Defamation - CASE LIST

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Defamation

Defamation Act 2009 includes these requirements:

(1) a publication (2) must prove statement is about plaintiff (3) must be defamatory of any person with a good name.

1. Publication:

Section 6(2) of the Defamation Act - publication is a (1) statement made orally or in writing (2) visual images, sounds, gestures, or other (3) a statement on TV, radio or the internet and (4) an electronic communication.

Must be sent to someone other than the plaintiff to be a publication that is defamatory.

Monson v Tussauds - a waxwork can be a publication - "publication by any means"

Berry v Irish Times - republication - can be publication - was not defamatory as he was helping police arrest terrorists.

Paul v Holt - accidental publication - sent defamatory letter to Mr. Paul but he and his brother lived at the address - reasonable care must be taken not to publish if you wish to claim accidental publication

2. Identification:

Section 6(3) - a defamatory statement concerns a person if it could reasonably be understood as referring to him or her.

Does not have to name the plaintiff - must clearly identify them though -

Sinclair v Gogarty - reference to jews on sackville street - very few and obviously referred to plaintiff

Morgan v Odhams Press - if normal readers would come to the conclusion that the photo or statements referred to the plaintiff then identification was achieved.

Hayward v Thompson - "wealthy benefactor of the liberal party" referred to the plaintiff as there were very few at the time.

Hulton v Jones - caricature referred to a Mr. Jones which everyone understood to mean the plaintiff.

3. Defamatory Meaning:

statement that tends to injure a person's reputation in the eyes of reasonable members of society

Berry v Irish Times - assisting the police in arresting terrorists could never be construed as defamatory - he was doing good.

The courts focus on words used -

Glennon v The Star - picture of plaintiff next to article about abusing horses resulted in a £20,000 settlement for plaintiff.

Reynolds v Malocco - called plaintiff "gay" in his magazine, meaning "joyous" but given the words ordinary meaning, it meant homosexual - it was not defamatory to be homosexual, but it implied he lied about his sexuality, saying he was a liar was defamatory.

Chakravarty v Advertiser - the court emphasised the concept of the "reasonable reader" being crucial in interpreting whether the article is truly defamatory.

4. Defences:

Justification / Truth - Section 16 - defence if defendant can prove that the statement is true in all material aspects.

Typically, only the general aspect of the statement must be proved true.

Alexander v NE Railway - woman arrested and imprisoned for 2 weeks after not buying a ticket and using train - poster stated she was jailed for 3 weeks - she sued for defamation - refused as the "general sting" of the statement was true.

Cooper v RTE - general tenor of his sale of investment portfolios to help people evade taxes was true - defence applied.

Absolute Privilege - Section 17 of the Act

All statements made in parliament, tribunals, reports, European parliament, judicial proceedings, and reports of these are covered by absolute privilege and cannot be defamatory.

Qualified Privilege - Section 18(2) - if the defendant proves the statement was published to a person who had a duty or interest in receiving the information contained in the statement (or the defendant believed that that person had an interest) and the defendant therefore had a duty to communicate the information to that person.

Any malice will defeat a claim of qualified privilege - Clark v Molyneuax

McCormack v Adrian Olsthoom - shop-lifting - Qualified privilege provides a defence where a recognised interest must be defended.

Reynolds v Irish Times - the press can invoke qualified privilege depending on factors: (1) seriousness of allegations (2) nature of information (public concern?) (3) source of information (reputable?) (4) steps taken to verify information (5) status of information (6) urgency of information (7) comment sought from plaintiff? (8) plaintiff's side of story portrayed? (9) tone of publication (factual?) (10) circumstances of publication.

Talbot v Hermitage Golf Club - claims that plaintiff was handicap building - qualified privilege as important in golf - but capable of being defamatory.

Fair and Reasonable Publication

Section 26 - defence if (1) published in good faith (2) in the course of discussion of subject in public interest (3) discussion of which was for benefit of public (4) manner of publication did not exceed what was reasonable (5) it was fair and reasonable to publish the statement

Fair Comment / Honest Opinion

Section 20 - honestly held if (1) D believed the truth of the opinion (2) opinion was based on allegation of fact (3) opinion related to a matter of public opinion

To avail of this, the defendant must also prove the truth of the allegation.

Offer of Amends

Section 22 - public apology - correction with an offer of compensation - if accepted, court can enforce, if denied, court can look towards imposing damages - Christie v TV Networks.

Apology

private apology - does not go towards the guilt of the defendant - taken into account when measuring damages.

Innocent Publication

A defence for printers, distributors, and sellers of film and sound recordings.

(1) not the author, editor or publisher of the statement (2) took reasonable care in relation to its publication (3) did not know, and had no reason to believe what what it did caused or contributed to the publication of a statement that would give rise to an action in defamation.

Consent

If you consent to a publication, you cannot claim defamation.

Remedies

Lodgement

Damages

Declaratory Order

Correction Order

Prohibition Order

Online Defamation

Tansey v Rate-Your-Solicitor.com - post removed by court order - you are fixed with the defamation if you are aware of the defamation and have the ability to remove it but fail or refuse to do so.

Other Points:

Time Limits - one year which can be extended to two within the first year - Quinn v Reserve Defence Forces

Nolan v Sunday Newspapers - claimed that he hosted sex parties - in reality he only attended the sex parties - but it was posted in conjunction with stating he had a prior conviction for money laundering - painted him in a very bad light as if the sex parties were for the purpose of laundering money - this was defamatory.