Damages for Defamation
The primary remedy in a defamation action is damages. The purpose of damage is to vindicate the plaintiff’s good name and reputation. Damages may be awarded as a single sum or may be broken down into various heads of loss. Punitive or exemplary damages may be awarded where the defamation attracts the court’s strong disapproval.
Juries sit in High Court defamation cases. In defamation, harm to reputation is presumed It is not necessary to prove the quantum of the loss in the same manner as other litigation. It is said that the damages are “at large” in a sense, that they are largely a matter for the jury’s assessment. Unlike other types of loss, it is difficult to measure and quantify loss to reputation.
Formerly “special” damage was required in respect of slander (i.e., spoken defamation) other than certain categories of slander, which were actionable in themselves. This distinction has been abolished by the Defamation Act.
Criticism of Level of Damages and Legislative Response
There has been much criticism of the level of and variation in awards in defamation cases. The English Court of Appeal was granted powers in the 1990s, to substitute its own award where it deemed the jury award to be excessive.
The criticism has been made that defamation suits are brought to make money, rather than to clear a person’s name. The Supreme Court had not supported the giving of guidance by the judge to juries, on the level of monetary award. They had emphasised that defamation actions balance the freedom of speech against reputation, which the jury as community representatives, should appropriately make.
However, the Supreme Court has, on several occasions found the level of jury awards to be excessive and had remitted appealed cases for retrial. It has compared the levels of award, with a view to measuring whether particular awards are excessive relative to previous awards.
The Defamation Act provides that on the hearing of an appeal from a High Court in a Defamation action, the Supreme Court, in addition to any other order it may deem appropriate, may substitute for any amount of damages awarded, such amount as it considers appropriate (including as will be usual, a jury award).
Factors in Defamation Damages
Part of the reason why awards were large and arbitrary was the lack of direction and guidance given to jurors. The Defamation Act seeks to set out matters to which the jury should have regard, in quantifying loss arising from defamation. A list of eleven factors is set out;
- the nature and gravity of any allegation in the defamatory statement concerned;
- the means of publication of the defamatory statement including the enduring nature of those means;
- the extent to which the defamatory statement was circulated;
- the offering or making of an apology, correction or retraction by the defendant to the plaintiff in respect of the defamatory statement;
- the making of any offer to make amends by the defendant, whether or not the making of that offer was pleaded as a defence;
- the importance to the plaintiff of his or her reputation in the eyes of particular or all recipients of the defamatory statement;
- the extent (if at all) to which the plaintiff caused or contributed to, or acquiesced in, the publication of the defamatory statement;
- evidence given concerning the reputation of the plaintiff;
- if the defence of truth is pleaded and the defendant proves the truth of part but not the whole of the defamatory statement, the extent to which that defence is successfully pleaded in relation to the statement;
- if the defence of qualified privilege is pleaded, the extent to which the defendant has acceded to the request of the plaintiff to publish a reasonable statement by way of explanation or contradiction, and
- any order restraining republication, or any order under that section or correction order that the court proposes to make or, where the action is tried by the High Court sitting with a jury, would propose to make in the event of there being a finding of defamation.
Factors in Assessing Damages
The Defamation Act provides that the parties to an action may make submissions to the court, in relation to damages. Judges are required to give directions in relation to damages to the jury in a High Court case. When making an award of general damages, the judge or jury must have regard to the circumstances of the case, and the list of factors set out above.
The nature and gravity of the statement are usually the most important factor in assessing damages. The greater the seriousness of the accusation. the greater the defamation. Accusations touching on a person’s integrity, reputation, loyalty or courage are usually serious in nature. False acquisition of sexual offences is especially grave.
The means of publication, including the enduring nature of those means are relevant. Accordingly, a spoken defamation is less serious than one that is permanently recorded and available. Broadcast defamations are more serious, than those which are published to a small number of persons, all things being equal. The extent of circulation of the media is relevant. Publication in a newspaper is more serious than publication to one or to a handful of person.
The offering or making of an apology correction or retraction is weighed in the balance, in considering the level of damages. The making of, or the failure to make an offer of amends, may be taken into account irrespective of whether it is pleaded as a defence.
An offer of amends may be a defence in itself unless the plaintiff can prove that the defendant knew or should have known that the offending material referred to him and was defamatory. If it is pleaded as a defence, no other defence can be put forward. On first principles, an offer of amends will mitigate the loss and significantly lessens damages. It would seem that an offer of amends would generally earn least 40 to 50 percent discount. However, this will depend on the entirety of the circumstances.
The plaintiff’s reputation in the eyes of the particular recipients of the defamatory statement may be significant, depending on the particular circumstances. Evidence of the plaintiff’s reputation will often be relevant. The defendant may give evidence which bears on the plaintiff’s reputation with a view to reducing the award. The evidence may relate to the plaintiff’s general reputation.
In some cases, defamation may be especially serious where it is made and published to a particular group, with which the plaintiff has a business and financial relationships.
The extent to which the plaintiff caused, has contributed to or acquiesce in the publication of the defamatory statement is a significant factor. Consent is a total defence to defamation. Short of this, the plaintiff may have participated in a public forum and provoked a particular reply. The fact that the plaintiff may himself have sought to attract publicity which led ultimately to “or brought on” the defamation may be relevant.
Defences and Mitigation
If the defence of truth is pleaded and the defendant proves the truth of part, but not of the whole of the defamatory statement, the extent to which the defence is successful in relation to the statement is relevant. Accordingly, partial truth while not being a defence is relevant to the assessment of the damages. Under the prior law, nominal or contemptuous damages might be granted, if the plaintiff’s reputation was poor.
If the defence of qualified privileges is pleaded, the extent to which the defendant has acceded to the request of the plaintiff to publish a reasonable statement by way of explanation and contradiction is relevant. Some categories of privilege require as a condition that an opportunity be given for a suitable explanation and contradiction. It must be offered in the same medium of communication and must be adequate and reasonable, having regard to all the circumstances.
It is relevant whether an order has been made pre-trial, whether a correction order has been made, or if the court proposes to make such an order, is relevant to the issue of damages.
The defendant in a defamation action may, with the leave of court, for the purpose of mitigating damages, give evidence of any matter that will have a bearing on the reputation of the plaintiff. It must relate to matters connected with the defamatory statement.
Evidence in mitigation may be offered. The defendant may give evidence in mitigation, that plaintiff has been already in another defamation action, been awarded damages in respect of the statement containing substantially the same allegations as are contained in the defamatory statement to which action relates.
Types of Damage
Nominal damages may be awarded where there is defamation, but the jury or the court disapproves of the plaintiff’s behaviour or considers that he has not suffered loss or does not have a reputation, which merits compensation.
Contemptuous damages describe the type of award, which a jury or court may award where there has been a technical defamation, but the plaintiff has no moral claim to compensation. Unlike the case with nominal damages, no order for costs might be made, and the plaintiff might exceptionally, be obliged to contribute to the defendant’s cost.
Apart from general damages, special damages for specific, quantifiable financial loss may be pleaded and awarded. They must have been caused by the defamation. If a claimant falls short of proving specific damage, some element of the loss may be reflected in the award of general damages.
An action may be taken for the benefit of a deceased’s estate or against the state of a deceased. There cannot be an award of general damages, punitive damages or aggregated damages for the benefit of or against the estate of deceased. The claim is limited it to special (quantifiable) damages.
Punitive and Exemplarity Damages
Punitive or exemplary damages might be granted if the defamation is particularly egregious. The purpose is to show the court (and society’s) disapproval. They are quasi-punitive nature. If the compensatory award is sufficient to show societal disapproval, then exemplary or punitive damages should not be awarded.
The Defamation Act provides for the grant of punitive damages. Where, in a defamatory action, the court finds the defendant liable to pay damages, and it is proved
- that the defendant intended to publish the defamatory statement concerned to a third party;
- knew that the statement would be understood by that third party to refer to the plaintiff and
- knew that the statement was untrue or in publishing, it was reckless as to whether it was true or not,
the court may in addition to any special, general or aggravated damages payable to the defendant, order the defendant to pay punitive damages in such amount as it considers appropriate.
The provision of a statutory standard might imply that punitive damages may be granted more readily than under the previous law. It is not yet clear how the provision will be interpreted. The provision facilitates the grant of punitive damages in these cases but does not require it. It may be aimed at cases where information is deliberately and cynically published in a calculated way that the publicity may exceed the cost.
The legislation provides separately for the award of aggravated damages. Publication and repetition of the defamation may be an aggravating factor.
Where in a defamation action, the court finds that the defendant is liable to pay damages in respect of the defamatory statement and the defendant conducts his defence in a manner that aggravated the injury caused to the plaintiff’s reputation by the statement, the court may in addition to other types of damages, order payment of aggravated damages in such amount as it considers appropriate, to compensate the plaintiff for the aggravation of the injury or damage.
A distinction may be made between a defence which is bound to fail on the basis of truth and one which is on the margins, and that is reasonable to pursue. In some circumstances, the failure to apologise may be an aggravating factor. This is likely to grow in importance, now that the Defamation Act permits apology, without the admission of liability.
Evidence of Claimant’s Reputation
Traditionally at common law, the defendant could raise the plaintiff’s general bad reputation. However, he may not bring in rumours that he has done what the defamatory statement claims, of evidence of particular acts of misconduct which tend to show his disposition in this regard. Criminal convictions are allowed, by way of exception.
The evidence of bad reputation must be relevant to the defamatory statement concerned. The Irish courts may be prepared to allow evidence of particular acts which are relevant to the plaintiff’s reputation in the context of the alleged defamation, by way of mitigation of damages.
It may be possible to give evidence that the plaintiff’s reputation is so poor that the damages should be reduced or mitigated. The bad or poor reputation must be specifically relevant. Rumours or suspicions of specific discreditable acts are not permitted. In effect, this excludes hearsay and irrelevant materials.
The Defamation Act deals with the issue of prior acquittals and convictions. Where a person has been acquitted of an offence in the State, the fact of his acquittal and the findings of fact made in the proceedings are admissible in evidence in a defamation action. Where a person has been convicted of an offence in the State, the fact of his or her conviction and any findings of fact are admissible in evidence.
References and Sources
Defamation Act 2009
Circuit Court Rules (Defamation) 2009, S.I. No. 486 of 2009
Rules of the Superior Courts (Defamation) 2009, S.I. No. 511 of 2009
Information Technology Law in Ireland 2 Kelleher & Murray 2007
Tully Tort Law in Ireland 2014
Defamation Law Cox & McCullough 3ed 2014
McMahon & Binchy Law of Torts 4ed 2013
Maher Defamation law 2011
EU and UK Texts