Defamation

Question 1

define defamation

Answer 1

Defamation Act 2009
S. 6(2)
Defamation is the publication, by any means, of a defamatory statement concerning a person to one or more than
one other person.

1. Publication
2. Defamatory Statement
3. Identifies the plaintiff
4. No defence

Question 2

is the test of whether a statement is defamatory or not subjective or objective?

Answer 2

In order to be actionable in defamation, the statement must be capable of damaging the reputation of another.
The test of whether a statement is defamatory is therefore an objective one and so the court considers whether the statement is one that would lower the individual in the eyes of right thinking members of society

Question 3

define statement

Answer 3

S.2 – Statement

a) A statement made orally or in writing
b) Visual images, sounds, features and any other method signifying meaning
c) A statement broadcast on radio or tv or published on the internet.
d) Electronic communications

Question 4

define publication

Answer 4

S.6(4)
It is not a publication if the statement is published to the person to whom it relates and to a person other than to whom it relates in circumstances where
a. It was not intended that the statement would be published to second person and
b. It was not reasonably foreseeable that the publication to the first person would result in publication to the second.

Question 5

what was established about a defamatory statement in Berry v Irish times

Answer 5

Repetition of a defamatory statement is defamation. Here, it was a photo of a defamatory placard.

Question 6

is accidental publication defamatory?

Answer 6

Paul v. Holt - Accidental publication is defamatory if it is reasonably foreseeable that the statement would be communicated to
persons other than the plaintiff.

Question 7

identification

Answer 7

S.6(3)

A defamatory statement concerns a person if it could be reasonably inferred as referring to him or her.

Question 8

Sinclair v. Gogarty - identification

Answer 8

Two jews on Sackville street was deemed sufficient to identify them, as they were the only jews with shops there.

Question 9

what are the facts of Hill v Cork Examiner

Answer 9

The suggestion that the pl was imprisoned for sexual offences rather than bodily harm defamed him, even though he had a diminished reputation.

Question 10

what are the facts of Berkoff v Burchill?

Answer 10

In Berkoff v Burchil, the actor Stephen Berkoff brought an action against a Sunday Times journalist who stated in her column that he was ‘hideously ugly’. While the article did not claim he was a bad actor or engaged in wrongful activity, the judge upheld the claim in defamation on the basis that Burchill’s actions ‘held him to ridicule and contempt’.

Question 11

is it necessary to prove that the defendant intended to refer to the plaintiff ?

Answer 11

it is not necessary to prove that the defendant intended to refer to the plaintiff if the general public would honestly and reasonably believe that the article did in fact referred to the plaintiff. In those circumstances, it will be considered defamatory per se.

Question 12

defamatory innuendo

Answer 12

Words will be given their ordinary and natural meaning when assessing whether they are capable of being defamatory. That said, a statement which appears innocent on its face, may be actionable where it contains defamatory innuendo

Question 13

what are the facts of Glennon v The star -defamatory innuendo

Answer 13

The positioning of an unrelated photograph beside a story on the maltreatment of horses led to a 20,000 settlement and the courts have been willing to look beyond the printed matter and consider the impact and implication of the statement

Question 14

what are the facts of Reynolds v Malocco

Answer 14

The plaintiff was a well known Dublin nightclub owner who brought an action against the defendant regarding a magazine article referring to him as a ‘gay bachelor’. The defendant contented that the word ‘gay was an adjective used to describe the plaintiff’s joyful character and was not intended as commentary on his sexuality.

The court found that the words used should be given their ordinary meaning and were being used to describe the plaintiff’s sexuality.

In the words of Kelly J.. “One would have to be a resident on the moon not be aware” of the fact that the word “ synonymous with homosexuals and homosexual activity”. The statement therefore implied that the plaintiff was a hypocrite who was concealing his true sexuality and this was capable of being defamatory.

Question 15

what are the facts of cassidy v daily mirror newspaper ltd?

Answer 15

the defendant newspapers pictured the plaintiff with
her husband announcing their engagement when in fact the couple had been married for
some years and had children. The plaintiff sued for defamation because although the picture and caption were innocuous in themselves, the suggestion to be taken from it was that she
was living in sin and her children were illegitimate. The court upheld the claim and awarded damages against the newspaper.

Question 16

defences to defamation s.15

Answer 16

• Truth
• E-commerce Directive
• Absolute privilege
• Direct privilege
• Honest opinion
• Offer of amends
• Apology
• Fair and reasonable publication
• Innocent publication

Question 17

Truth as a defence

Answer 17

S.16(1)
Defence to prove that the statement is true in all material aspects.

It is worth noting that it is not necessary for the defendant prove that the statement is true in every detail so long as the substance of the statement can be proven to be true

Question 18

statement of fact v statement of opinion - truth defence

Answer 18

Truth will provide a good defence to an action in defamation where the statement is a statement of fact. But where the statement is an opinion, the defence of fair comment/honest opinion is more likely to apply.

Question 19

what are the facts of Alexander v North Eastern railway - truth and justification

Answer 19

the plaintiff was fined and sentenced to two weeks imprisonment for travelling on a train without paying the correct ticket. The defendant printed and displayed a poster that stated that the plaintiff had been fined and was sentenced to three weeks imprisonment and the plaintiff sued based on the inaccuracy in the statement.

The defendant successfully pleaded the defence of justification because while he statement itself may have contained some factual errors, the inaccuracies did not alter the general tenor of the statement

Question 20

what are the different occasions in which absolute privilege arises

Answer 20

S.17 provides a list:
In connection to houses of Oireachtas/ EU, or by judges or witnesses etc. Also reports made by govt bodies that
are fair and accurate. Also in front of parliamentary committees or tribunals, or in such reports etc.

Question 21

Qualified privilege

Answer 21

S.18(2)
It is a defence to show that:
a. The statement was published to a person who –
i. Had a duty to receive or interest in receiving the information contained in the statement, or
ii. The defendant believed upon reasonable grounds that the said person or persons had such an interest
or duty and
b. The defendant had a corresponding duty to communicate or interest in communicating the information
to such persons.
Thus, need to show defendant was under a duty. Once established, can only be lost by showing malice.

Question 22

when is an opinion considered to be honestly held?

Answer 22

an opinion is honestly held if:

a. the defendant believed in the truth of the opinion;
b. the opinion was based on allegations of fact; and
c. the opinion related to a matter of public interest.

Question 23

how to distinguish between allegations of opinion and fact

Answer 23

Section 2191) provides that the court shall have regard to the following:

a. The extent to which the statement is capable of being proved;
b. The extent to which the statement was made in circumstances in which it was likely to have
been reasonably understood as a statement of opinion rather than a statement consisting of
an allegation of fact; and
c. The words used in the statement and the extent to which the statement was subject to a
qualification or a disclaimer or was accompanied by cautionary words.

Question 24

what is Public interest ?

Answer 24

S.18(7)

Must be legal, social or moral interest.

Question 25

what are the facts of

Ryanair DAC v. Van Zwol & ors - public interest

Answer 25

Defendants were a group of pilots who set up a group to look at setting up a trade union, at the time Ryanair didn’t
recognise trade unions. They sent an email around saying that the company was set to do poorly in the financial
quarter as part of their pilot updates and this was despite that some investors had made profit from selling their
shares after positive indications price would go up.
Qualified privilege was recognised as the communication was relevant to their email grouping. It was
communicating financial information that they had an interest in.

Question 26

an offer to make amends

Answer 26

Under section 21 of the Act 1961, an offer to make amends means the
defendant must offer:
a. to make a suitable correction of the statement concerned and a sufficient apology;
b. to publish that correction and apology in such manner as is reasonable and practicable in
the circumstances, and

c. to pay such sum in compensation or damages and such costs as may be agreed by the parties or determined to be payable.

Question 27

apology

Answer 27

Apologies were previously viewed as an admission of liability, however the 2009 Act
provides that an apology will not constitute an express or implied admission of liability and is not relevant to the determination of liability in an action.

Question 28

Innocent publication

Answer 28

S.27
a. He or she was not the author, editor or publisher of the statement to which the action relates;
b. That he or she took reasonable care in relation to its publication and,
c. That he or she had no reason to believe that what they did caused or contributed to the publication of a
statement that would give rise to defamation.

this defence is for bookseller, printers etc.

Question 29

limitation of actions - defamation

Answer 29

S.38 - Limitation period is one year; can be extended by the judge but not beyond two years.

Question 30

Defamation of a body corporate

Answer 30

The Act provides that a body corporate may bring a defamation action in respect to a
defamatory statement concerning it, whether or not it has incurred financial loss as a result of publication of that statement.

Question 31

Remedies - nuisance

Answer 31

They can get injunctions, but damages are the primary one.