In Ireland, the law protects your reputation. The Constitution guarantees that the State shall protect, and vindicate from unjust attack, the good name of every citizen. A person can make a claim against someone for making statements that injure the person’s reputation. This offence is called defamation law. It is a combination of the old offences of libel (written offences) and slander (spoken offences). Defamation requires communication. This can occur through any medium of communication, such as verbal statements, newspaper articles, or social media.
- The statement must be false or mostly false. A statement cannot be defamatory if it is true.
- The statement must be received by someone other than the person it concerns. You cannot defame a person without communication to a third party or parties.
- The statement does not have to identify someone directly if it could reasonably be understood to be about them.
- The statement must actually damage a person’s reputation. A person can take a claim of defamation without the need to show how precisely the damage was done. It needs to be shown that it reasonably affected their good name. If a person’s reputation is already tarnished then a claim of defamation will likely fail because the person may have no good name or reputation to ruin in the first place.
Burden of proof in Defamation Law
A plaintiff needs to show that the statement could reasonably be defamatory to bring a claim of defamation to court. They don’t need to show exactly how a defamatory statement affected their reputation, just that the statement could injure their reputation.
Once this has been established it is presumed that the statement is defamatory, and the burden of proof then falls upon the defendant to show that it was not or that it attracted a defense under the acts.
Defenses to a Claim of Defamation
Truth:
A defendant can show that the statements made were true.
Consent to publish:
The defendant may show that the plaintiff consented to the defamatory statement being published.
Innocent publication:
The defendant must show that they were not the author of the statement and took reasonable care in its publication. This includes statements posted on platforms such as social media or forum pages.
Qualified privilege:
Put simply, qualified privilege protects a person who had a duty or interest to disclose statements to someone who also had a duty or interest in receiving it. The application of this defence is broad, but it must have been made in good faith.
Defence of Honest opinion:
To succeed with this defence a defendant must show that the opinions they stated were honestly held. For this defence to succeed, the defendant must show that they believed the statement to be true at the time based on allegations of fact, and that the statement was of public interest.
Absolute/Statutory privilege:
Certain privileges are given to regulatory bodies such as the Oireachtas, the courts, or the European Parliament. Statements made while performing these functions are protected from defamation by absolute or statutory privilege.
Mitigating factors
Offer to make amends:
In response to a claim of defamation, A defendant may offer to make amends. This offer must include a written apology and a correction of the statements. If the offer is not accepted the defendant can rely on it as a defence in court. A defendant may not plead any other defence in tandem with this defence.
Apology:
A defendant may admit liability and offer an apology. This may reduce any damages awarded against them.
Damages Awarded
Defamation damages are generally decided by a jury after hearing the facts of the case.
Statute of Limitations
Defamation cases must be taken within one year. This can be extended to two years on application to Court if there are reasons excusing the delay. It is a very short timeframe to action.
Implementation
Defamation in Ireland is complicated to regulate. This is because both the good name and freedom of expression are protected in the Constitution, which means that both rights must be respected equally whenever the laws surrounding defamation are changed.
Defamation was for many years based on case law but was codified in Ireland with the Defamation act in 2009 which modernized and formalized the law. This act clearly defines a defamatory statement as well as lists the available defences to a claim of defamation.
Observations on the Act’s implementation
The were several issues with the act. In practice it proved too broadly applicable because of the burden of proof resting on defendants. This has made defamation claims in Ireland a prime candidate for SLAPPS (Strategic Lawsuit Against Public Participation). SLAPP claims are litigation claims taken vexatiously or strategically to bully people, in particular investigative journalists, with the threat of legal action. Vexatious claims of defamation were often enough to scare defendants into submission, as they could not afford to pay for litigation to defeat the claims.
A recent report from the law commission has indicated that the backlog of defamation claims may be the result of these SLAPP cases, with many filed years ago without any follow up.
Proposed Legislative Amendments to Defamation Law in Ireland
The Department of Justice in their recently published Justice Action Plan 2024 have stated that they intend to publish the Defamation (amendment Act) this year. The general draft of the bill has been published in March of 2023, with feedback received since.
Longstanding issues with the implementation of defamation of Ireland since 2009 are due to be resolved, with anti-SLAPP provisions implemented to protect journalists and other members of the public.
In general, claims of defamation will be more difficult to take, and easier to defend. Increased burdens of proof have been placed on corporations, and defamation claims can only be taken in Ireland if they are most relevant in our jurisdiction, to avoid the piggybacking of international defamation cases into our courts.
Another key feature of the bill is an expansion of the criteria to include online only journals and magazines, although successful defamation claims may still struggle to encapsulate posts made on social media because of their anonymity.
The initial publication of the bill sought to remove juries from defamation cases, to help normalize the disproportionate size of awards. This has received pushback in the subsequent year by practitioners who are hesitant to remove juries from the decision-making process altogether. Many have suggested other ways to control the size of awards may be found.
