The right to a good name is given huge importance in Irish law, given Constitutional protection under Article 40.3.2. which states as follows:-
“The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.”
Your reputation – your “good name” is therefore given high priority in the State and our defamation laws have followed suit. False statements that damage your reputation or lower you in the eyes of the public – in the eyes of “right-thinking people” are generally actionable but this is not always the case as we shall see.
The law surrounding defamation is currently covered by the Defamation Act 2009, which came into force on 1st January 2010. Prior to this, attacks on the reputation generally came through in two separate ways – libel or slander. Libel involved false statements in writing eg articles or reports in newspapers that diminished your reputation. Slander was the name given to false and damaging statements made verbally.
The Defamation Act combined these two offences into one tort called “Defamation” and all actions are now taken under this heading.
While the right to a good reputation receives constitutional protection, so too does the right to freedom of expression and for this reason the Courts have to apply a balance between these two competing rights.
Before bringing any claim for defamation, there are a few things that need to be proven:-
- The statement must be false.
In order to be classed as “defamation” the statement in question must be false and there must be no doubt on this aspect of the claim. A defendant will always succeed if they can show that the statement made was true.
- It must be published appropriately.
You cannot bring a case against someone who says something about you to you and no-one else. The laws on defamation require not only that the statement is false, but also that it has been published to a third party and has caused your reputation to be lowered as a result.
While it is a requirement that the statement has been published, there is no requirement for publication to be made to a large group of people. In fact, publication to just one person can amount to a case of defamation, once it can be shown that it was reasonably foreseeable that the publication has taken place.
Defamatory material doesn’t have to include written material. It can also include photographs that were published and have the effect of damaging your reputation. Such photographs can be actionable if you can show that the publication meant that you could be identified.
- The statement must be defamatory.
Section 2 of the Defamation Act defines a defamatory statement as one “that tends to injure a person’s reputation in the eyes of reasonable members of society.”
You do not need to be named to succeed in a case of defamation. Once the statement is made in such a way as to identify you as the subject then this is sufficient.
Are there any defences to a claim of defamation?
The 2009 sets out 9 different means of defending against a claim of defamation, as follows:-
No case can be brought where the party who was the subject of the statement has agreed for it to be made.
If it can be shown that the statement made was true, then the case will fall. Defamation can only be proven if the statement in question is false. When it comes to the burden of proof however, the defendant is required to prove that the statement is true. So the statement is considered to be false unless the Defendant can prove otherwise.
- Absolute privilege
This defence will apply to any statement made in the Dail or Seanad. It will also apply to statements made by judges in the exercise of their judicial duty. The defence also includes statements made by various chambers of the European Union, as well as statements made in front of tribunals or in the reports of such tribunals. There are a number of other types of statements that attract absolute privilege and they mainly involve statements made in the course of judicial acts.
- Qualified privilege
This is a defence which sets out a person may have a legal, moral or social duty to speak to another party who has a similar interest in receiving the information. The defence cannot be relied on if it can be shown that the statement was made maliciously.
- Innocent publication
This involves a situation where the person who published the defamatory statement was not its original author and did not realise that the publication would lead to an action for defamation. It is usually invoked in a situation where a defamatory statement has been repeated and the person who repeated it falls under this defence.
- Honest opinion
This can be used if the publisher honestly thought that the statement was true, or where it was published to people who believed the statement was based on allegations of fact that were proven or honestly believed and which were known to those to whom the statement was published. It can also be used if the opinion was based on allegations of act that were proven or reasonably likely and which were privileged and where the opinion involved a matter of public interest.
- Fair and reasonable publication on a matter of public interest.
This defence can be used if the statement was made for the good of the public or in some way which is genuinely beneficial to the public. It must however be fair and reasonable in the circumstances.
- Offer of amends
The defendant can make an offer to the defamed party to make amends. This must be in writing and could involve, for example, offering a written apology which is also published and which clarifies the false statement and highlights that it is not true. They can also make an offer of damages to the defamed party.
An apology can be used as a part-defence and can also mitigate future damages awarded.
Is there a deadline for bringing a case?
The Defamation Act provides that the defamed party has 1 year from the date of publication to bring a case so it is important to move as quickly as possible for this reason, and also because you will want the damaging statement to be removed or clarified immediately so that the public doesn’t continue to believe the false statement.
Costs and damages
The amount of damages that could be awarded varies enormously. The Courts will take into account how widely the statement was spread, how damaging it is and how quickly steps were taken to clarify the matter.
Before bringing a case, it’s important to consider whether you can afford to do so. While a statement can be clarified relatively quickly and at a low cost, embarking on a long legal case can be very costly. If it is clear that the Defendant is the kind of party that will not be able to pay significant damages and cover costs, then it might be preferable not to go down the road of a legal action.
This is a very important consideration given the fact that defamation cases can be very long and complex and very costly as a result. If there is no hope of the defendant paying damages or if they cannot do so then there may be little point in bringing the case.
In a case where you are successful, your costs will generally be paid by the defendant. But once again, you need to think about how costs will be paid before you embark on a case. You may have to pay some costs upfront and these will then be recouped from the defendant if the case is successful. Most defamation cases are only brought when a person feels particularly aggrieved and feels that their reputation has been severely damaged and it is important to think about whether you can proceed once taking into account all of the above.
Defamation cases are generally complex and need specialist advice to succeed. If you feel that you have been defamed or are concerned about a false statement made about you, fill out the form below and we will get back to you within 24 hours.