Defamation Act 2009

6 November 2009 by Robert Browne

The above act was signed into Law in July of this year.  It is expected to come in to force before the end of 2009.

The Act abolishes the separate torts of libel and slander and creates a new tort of defamation.  Section 6(2) defines defamation as the publication, by any means, of a defamatory statement concerning a person to one or more than one person (other than the first mentioned person).

A defamatory statement is defined as a statement that tends to injure a person’s reputation in the eyes of reasonable members of society.

Section 6(4) states that there shall be no publication if the defamatory statement is published to the person to whom it relates (the Plaintiff) and to a person other than the Plaintiff where it was not intended that the statement would be published to the second mentioned person, and it was not reasonably foreseeable that publication of the statement to the Plaintiff would result in it being published to the second person.  It remains to be seen what the Courts will make of this notion of publication. 

Proof of special damage is no longer required to maintain an action.

Section 8 introduces the notion of verifying Affidavits to be sworn by both Plaintiff and Defendant verifying assertions or allegations contained in the Pleadings.  This extends the procedure introduced by the Civil Liability and Courts Act 2004. 

We have seen in certain cases where Courts have refused both Plaintiffs and Defendants the right to put allegations to witnesses where they failed to verify them on Affidavit.

Section 12 now provides that bodies corporate may bring a defamation action whether or not it has, or is likely to, incur financial loss as a result of the publication.

Section 13 changes the right of the Supreme Court on appeal to substitute its own figure for damages for the High Court award, including a jury award.

There is a new procedure for bringing a preliminary Motion in a Defamation Action to ask the Court whether a statement in respect of which the action is brought is reasonably capable of bearing the imputation pleaded by the Plaintiff and whether that imputation is reasonably capable of bearing a defamatory meaning. 

The Act abolishes all common law defences applicable prior to its coming into force.  It redefines them and makes them statutory.  These include the defences of truth, absolute privilege and qualified privilege. 

The defence of Qualified Privilege is set out in Section 18 and refers to a statement which was published to a person who either (a) had a duty to receive the information contained in the statement or (b) the Defendant believed on reasonable grounds that the person had a duty or interest in receiving the information and the Defendant had a duty to communicate or interest in communicating the information. 

This is always pleaded in cases where a complaint is made to the Gardai for example.  Interestingly, the Act defines both words “duty” and “interest” as a legal, moral or social duty and interest.

The Defence of qualified privilege is lost if the Plaintiff proves malice against the Defendant in the manner of the publication.

A further Defence of “Honest Opinion” is outlined in Section 20 and defined in Section 20(2)(a) as a statement which the Defendant believed, at the time of publication, in the truth of the opinion or, where the Defendant is not the author of the opinion, believed that the author believed it to be true.

The Defence of honest opinion will fail if the Defendant fails to prove that the fact which are alleged were actually true.  Honest opinion replaces the old “fair comment” defence.

Section 22 provides that a Defendant may make an offer of amends which will be a correction, an apology and an offer of compensation or damages and costs and new procedures are set out for applying to the High Court to rule on such matters.  This may be done before proceedings are even issued.  Once proceedings are issued the format could be no different to an assessment only defence.

The offer of an apology will be a mitigating factor in defending such proceedings and such apology will not constitute an express or implied admission of liability and will not be relevant to the determination of liability in an action. 

Section 25 provides for a Defence of consent where a Plaintiff consented to publication of a statement.  This may have relevance for bank customers who have consented to general terms and conditions which may incorporate a consent to publication of certain matters regarding their accounts.

Section 29(4) abolishes the need for a Defendant to admit liability in an action for damages for defamation when making a lodgement into Court.

The Statute of Limitations has now been amended and a defamation action shall not be brought after the expiration of one year or “such longer period as the Court may direct not exceeding two years” from the date on which the cause of action accrued.  The extension to a two year period will require a Plaintiff to prove that “the interests of justice require the extension of time and that the prejudice the Plaintiff would suffer would significantly outweigh the prejudice the Defendant would suffer if the time is extended”. 

A defamation action shall survive the death of the Plaintiff but only in respect of special damages.

The jurisdiction of the Circuit Court has been increased to €50,000.00.

Further Information:

Please contact: Robert Browne – rbrowne@mckr.ie – Tel. +353 1 670 2990