Defamation Claims – tort of defamation
Defamation Law in Ireland is governed by the Constitution, Common Law and The Defamation Act 2009. The Defamation Act 2009 has redefined and modernised defamation law. The terms ‘slander’ and ‘libel’ have now been amalgamated into one term, the ‘tort of defamation’.
So what is Defamation?
The definition of Defamation is set out in Section 6 Defamation Act 2009. Defamation arises where there is a false statement made about a person which damages their reputation, in the eyes of reasonable members of society. A defamatory statement can either be oral or in writing.
Defamation can arise in many ways:
- Spoken word i.e. tv and radio
- Press or magazine article
- Internet articles
- Social media – Irish Defamation Claim against Facebook
- A customer being wrongly accused of shoplifting
- False Imprisonment – Where a person is detained by security based on a false accusation of theft/shoplifting
- Defamation by a media organisation
How can I make a claim?
In order to bring a claim for defamation it is necessary to prove the following:
- The statement has been made to a third party or parties i.e. The defamatory statement must be published, This statement can be published online, in a newspaper or magazine or on TV/Radio;
- The published statement is false;
- The statement has in fact caused damage to your reputation;
- The statement either makes reference to you or you can be recognised or identified by the contents of the statement. If just one person is in a position to confirm that they were able to identify you after hearing or reading the defamatory statement, this will be enough to ground a claim for defamation.
See – Defamation on Social Media Platforms >
How long do I have to bring a Claim for Defamation?
Under Section 38 of the Statute of Limitations 1957 a claimant has one year within which to bring a claim for defamation. Section 38 goes on to say that the Court does have discretion to direct a longer period of up to two years from the date on which the cause of action accrued.
This discretion should only be used by the Courts where the interests of justice require an extension of time or where the prejudice that would be suffered by the plaintiff/claimant significantly outweighs the prejudice that he Defendant would suffer if the extension of time were given. Section 38 of the Statute of Limitations
The date of accrual of the cause of action is the date on which the defamatory statement was first published. Where the defamatory statement is published online, the date of accrual is the date on which the statement was first capable of being viewed or listened to.
It is advisable to contact a solicitor as soon as possible if you believe that you have been defamed in order to stop the Statute of limitations from running against you.
What are the Defences available to a claim for Defamation?
Part 3 of the Defamation Act 2009 sets out the Defences available to a defendant in a defamation claim:
- The Defence of Truth Section 16 Defamation Act 2009;
- Absolute Privilege Section 17 Defamation Act 2009, This Defence may be used, for example, where the statement in respect of which the action was brought was made in either House of the Oireachtas, made in the European Parliament or by a Judge during court proceedings;
- Qualified Privilege Section 18 Defamation Act 2009, This Defence may be used, for example, where the statement was published to a person who had a duty to receive or an interest in receiving the information;
- The Defence of Honest Opinion Section 20 Defamation Act 2009;
- Offer to Make Amends Section 22 defamation Act 2009, An Offer to Make Amends must be in writing, state that it is in fact an Offer to Make Amends and state whether it relates to the entire statement or only part thereof;
- Apology Section 24 Defamation Act 2009; Although an apology is not in fact a full defence to a claim for Defamation, it will reduce the amount of compensation payable by the defendant. An apology does not constitute an express or implied admission of liability.
- Consent to Publish Section 25 Defamation Act 2009
- Fair and Reasonable Publication on a Matter of Public Interest Section 26 Defamation Act 2009;
- Innocent Publication Section 27 Defamation Act 2009.
As with all litigation claims, damages will vary from case to case. Due to the fact that damages in defamation claims can be very high, many of them will settle before going to court. The main reason that the majority of these cases will settle in advance of trial is that the legal costs of running a trial are substantial and juries can be unpredictable.
It must be pointed out at this stage that the majority of Defamation claims will be heard by a jury in the High Court. The only way in which the High Court can vindicate the rights of a person that has been defamed is by awarding damages. As mentioned above, juries are very unpredictable and a trial judge is limited in the instructions that can be given to a jury in determining damages, hence why settlement, if possible, is preferable.
Read – Woman awarded €1.2 million in Damages
There are four heads of damage for which a defamed person may claim:
When evaluating general damages in a claim for defamation, there are many factors that a jury must take into account, such as:
- The means of publication i.e. online, in a newspaper, radio broadcast etc;
- How long the defamatory content was published for, if published online, is it possible to completely remove the defamatory comment from all platforms;
- The gravity of the allegations made;
- The reputation of the plaintiff, was the plaintiff held in high regard before the publication of the defamatory statement;
- Has the defendant offered an apology, offer of amends, correction or retraction;
- Damage actually caused to the plaintiff’s reputation;
These are just a few of the many factors that will be taken into account when calculating the level of damages to be awarded to the Plaintiff.
In some cases the plaintiff may be able to ground a claim for special damages. A claim for special damages will be brought into the proceedings where the plaintiff has suffered an actual financial loss as a result of the defamatory publication.
Aggravated damages will be awarded to the plaintiff if the court/jury considers that the conduct of the defendant, in defending the proceedings, has further aggravated or caused further injury to the plaintiff.
Punitive damages will be awarded where it has been proven that the defendant intended to publish the defamatory statement, knowing same to be untrue.