Constitutional Right to Good Name
The Constitution provides that the State will guarantee in its laws to respect and, in as far as practicable by its laws to defend and vindicate, the personal rights of the citizen. The personal rights of the citizen include his right to his good name. The law of defamation is the means through which the Constitutional right may be asserted.
The Constitution also provides for the right of free expression by citizens of their convictions and opinions. It provides that the education of public opinion, being a matter of such grave importance to the common good, the State shall endeavour to ensure that the organs of public opinion such as the radio, press and cinema, while preserving the right to liberty of expression including criticism of government policy, shall not be used to undermine public order, morality or the authority of the State.
Freedom of Speech
The Irish Constitution, European Convention on Human Rights (“ECHR”) and the EU Charter of Fundamental Rights (“EUCFR”) each provide that freedom of expression is a fundamental human right. The Irish Constitution, the ECHR and the EUCFR also provide that there are limitations on the right of freedom of expression, in the public and private interests.
The ECHR provides that everyone has the right to freedom of expression. This includes the right to hold opinions and the right to receive and impart information and ideas, without interference by public authorities and regardless of frontiers. The protection is stated not to prevent Sttes from requiring the licensing of broadcasting, television or cinema enterprises.
The Irish Courts have taken the view that the Irish and ECHR rights are broadly similar. Each recognises that the freedom may be limited, and subject to restrictions which are necessary in a democratic society. There are differences as to the scope of the Irish Constitutional provision and the ECHR provisions. They do not fully coincide
The freedom to express opinions, comment and communicate are presumed necessary and desirable features of a democratic society. This echoes the particularly strong freedom of speech provision in the First Amendment to the United States Constitution.
The State is bound to give effect to the rights and principles in the European Convention on Human Rights. The Irish Courts may declare non-compliance with the Convention.
The European Convention on Human Rights guarantees freedom of expression. This includes the freedom to hold opinions, receive and impart information and ideas, without interference by public authority and regardless of frontiers.
Article 10 of the ECHR provides that the exercise of freedoms since it carries duties and responsibilities may be subject to “such formalities, conditions, restrictions and penalties as are prescribed by law and are necessary in a democratic society in the interest of national security, territorial integrity or public safety… or the protection of the reputational rights of others or preventing the disclosure of information received in confidence….”.
Defamation Law, Constitution and ECHR
The Constitution and the Convention may impact on the law of defamation. The Irish courts may find that the law of defamation does not sufficiently protect the right of a person to his good name or his right to express opinions. They may find existing defamation law to be unconstitutional or incompatible with the Convention.
The courts must interpret the Defamation Act and common law principles in a manner that is compatible with the Constitution and the Convention. Accordingly, the legislation and relevant common law principles must be interpreted in light of the considerable and evolving body of cases which interpret the Constitution and the Convention.
Limits on Freedoms
The ECHR protection provides that freedom of opinion and expression carries with it, duties and responsibilities. The freedom may be subject to formalities, conditions, restrictions and penalties which must (if at all) be prescribed by law. They must be necessary in a democratic society in the interests of national security, territorial integrity, for public safety, for the prevention of crime or disorder, for the protection of health or morals, for the protection of reputation or rights of others, for preventing disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary.
The Irish Constitution provides that the guarantee is subject to public order and morality. It provides that the State shall endeavour to ensure that the organs of public opinion while preserving the right of liberty of expression, including criticism of public policy, shall not be used to undermine public order or morality or the authority of the State.
It has been suggested that the Constitutional guarantee relates to public expressions rather than private expressions. Remarkably, the Constitution specifically provides that the utterance of blasphemous, seditious or indecent materials shall be an offence punishable by law.
Definition of Defamatory Statement
A defamatory statement at common law is one which tends to lower the person in the eyes of society; in the estimation of “right-thinking members of society generally” or in the eyes of the “average right-thinking man” or tends to hold that person up to ridicule, hatred or contempt, causes the person to be shunned or avoided. At times the courts have used other formulations which emphasise that the statements are such that it has affected the claimant in an adverse manner, in relation to the attitude of others to him.
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. The test for defamation is a uniform test, with reference to “reasonable” members of societies. It does not make allowances for sensitivities of particular segments or groups of society.
The test remains objective in the sense that it refers to what reasonable or right-thinking members of society (formerly of the public) think. Therefore, even if the defamation is published to a limited category of people who do not take a defamatory meaning from it, the person who makes the statement may be sued and found liable, although the quantum of compensation awarded may be less than might otherwise be awarded.
Nature of Defamation
A defamation claim requires that a defamatory statement be made about the claimant. Defamation does not require intention or even negligence. Defamation may occur by reason of innocent or mistaken publication.
In many cases, the defamation will be entirely clear. In other cases, the position will be more marginal and involve questions of judgment and degree.
Where a statement has more than one meaning, the claimant must set out the alleged defamatory meaning. The Defamation Act now clarifies that a person may sue once only in respect of a publication, notwithstanding that it may have multiple defamatory imputations.
Words are understood in their natural and ordinary meaning. This is the meaning which reasonable people would take from the words concerned. The overall context and its impression on the person to whom the statement is published must be considered.
Words which are harmless in one context may be defamatory in another, and vice versa. What may be defamatory in relation to one person, may not be defamatory in relation to another. The context is critical.
What is or is not defamatory, evolves with society. What would have been defamatory in a former age may not be defamatory in modern times. This evolving community-based aspect is the justification for the retention of the jury trial, in a defamation case.
Common Defamatory Matters
It is impossible to list all the types of statement which may be defamatory. Everything depends on the circumstances.
Accusations of dishonesty and lying, are commonly the subject of defamation. Statements which adversely affect a person’s integrity, reputation, professional reputation, business, courage, honour and the core attributes of his personality, are likely to be defamatory. Accusations of criminality and sexual offences and acquisitions affecting a person’s trade are likely to be defamatory in most contexts.
Mere ridicule or insults do not comprise defamation. However, where the ridicule injures a person’s reputation by exposing him to contempt and ridicule from others, the statement may be defamatory. A person may be subject to ridicule by a photograph, notwithstanding that it is not doctored. The context may be such as to encourage ridicule such that the person’s character is damaged.
The basic principle remains that mere threats, insults and degradation do not of themselves, constitute defamation unless, and until it impugns the person’s character.
Role of Judge and Jury
The judge decides whether the words are capable of being defamatory. The jury decides whether they are in fact defamatory. The judge may accordingly rule, that the words are incapable of bearing a defamatory meaning and thereby remove the case from the jury. A defendant may apply to the judge for a ruling on this issue. If the judge so rules, the case fails. Where the claimant claims that there are multiple imputations, it is sufficient that one of them is capable of bearing a defamatory meaning.
The 2009 Act provides for a preliminary ruling in relation to whether the statement is reasonably capable of bearing the imputation claimed and if so, whether that imputation is reasonably capable of bearing a defamatory meaning. Where the court rules that either of the above tests has failed, the legal action is dismissed in relation to that imputation.
The application may be brought by way of a pre-trial motion, before the hearing of the action and the empanelling of a jury. It may be taken at any time, including during the course of the trial, in which event the jury will be absent.
Words may have multiple levels of meaning, depending on the context. Innuendo refers to the meaning as understood by persons with additional special knowledge or knowledge of other relevant facts. In some cases, the defamation will not be readily apparent, other than to those who have particular knowledge and information by which they can link the statement to the claimant or have knowledge of circumstances or context, which render an apparently innocuous statement, defamatory.
Words carry their ordinary meaning and the natural and ordinary implications of that meaning. In this case, the inferences and implications are not innuendo in that they do not require any particular knowledge of circumstances or context. An innuendo gives an extended meaning, arising from special knowledge or awareness by third parties of further facts.
As defamation is a strict liability civil wrong, the person making the statement need not be aware of the innuendo. The intention of state of mind of the person making the statement is irrelevant.
The claimant must set out the innuendo in his pleadings and prove the relevant facts which permit third parties to understand the innuendo. In this context, the relevant facts must be known to at least one of the persons, to whom the publication or communication is made. The relevant facts must be known at the time the publication was made.
The claimant must generally identify the persons who have the requisite knowledge to understand the innuendo. This defendant should be in a position to identify to whom he did or did not make the alleged defamatory statement. This will not be necessary where the publication has been so wide, that some persons must have knowledge of the innuendo, such as in the case of publication in a newspaper or other popular media.
The requirement does not necessarily require the claimant to publish details of his witnesses. The general principle in litigation is that witnesses need not be disclosed in advance, and the requirement may not be used as a means of circumventing this general principle.
The defamatory statement must be published. Publication means the communication of the defamatory statement. No claim arises until a defamatory statement has been published to a third party. This requirement reflects the fact that defamation protects the claimant’s reputation. It is not defamation to accuse a person wrongly or make a disparaging statement of him, to his face, out of the hearing of, and in a manner that is not communicated to, others.
In theory, the slightest publication can establish liability for damages. However, the wider the publication, the greater the extent of damage that is likely to be incurred.
The Defamation Act provides that defamation consists of the publication by any means, of a defamatory statement concerning a person, to one or more other persons. There was a common law rule that publication to the person concerned and his spouse did not constitute publication to a third party. It is unlikely that this rules still survives.
A whole chain of people may publish and republish a defamatory remark. This may include a person who makes and repeat the remark, publishers and printers. Traditionally, it may also include wholesalers, shopkeepers and suppliers. The internet and information technology increased exponentially, the possibilities for republication.
The common law recognised that certain people who technically publish a defamatory statement, should not be held responsible for it, provided that they act innocently and without knowledge of the defamation. At common law, a distributor, retailer or lender was not liable if he could show that he was not aware that the material contained a libel and was not negligent in this regard. The onus was on him to prove that he was not negligent.
The issue of innocent publication has assumed greater significance in the internet age. A gross defamation may be made which spreads worldwide in a couple of moments, causing grave damage to a person’s reputation. internet service providers have certain protections under EU Directive.
Defence of Innocent Publication I
The Defamation Act provides for the defence of innocent publication. It is a defence for the defendant to prove that he or she was not the author or publisher of the statement concerned, that he took reasonable steps in relation to its publication and did not know and had no reason to believe that the publication was defamatory.
A person is not considered to be the author, editor or publisher of a statement
- if he was responsible for printing, production, distribution and selling only of printed material;
- in the case of a film and sound recording, that he was responsible for processing copying, distribution, exhibition or selling the film or recording;
- In relation to an electronic medium on which the statement is recorded or stored, that he is responsible for processing, copying, distributing or selling only, of the electronic medium or was responsible for the operation or provision only of the equipment system or service by which the statement would be capable of being retrieved, copied, distributed or made available.
The court, in determining whether the person took reasonable care or had reason to believe that he or she caused or contributed to the publication of the defamatory statement, shall have regard to the extent of the person’s responsibility for the content of the statement and the decision to publish it, the nature of the circumstances of the publication and the person’s previous character or conduct.
Defence of Innocent Publication II
The person must prove that he is neither the author, editor, or publisher. The author is usually the person from whom the statement emanates or originates. An editor is a person who has control over content. The editor will generally have input and control over the content. Some persons who are nominally editors, may not have any control over content.
The defence requires that the intermediary should not be involved in monitoring, censoring, amending or controlling the publication. The privilege is lost if the person acts negligently or does not act with reasonable care. If a distributor, vendor, etc. has reason to believe that any publication may contain defamatory material, the requirement for reasonable care may require that he takes steps to examine it.
What is required by reasonable care, will depend on the circumstances. Unless there is a reason to believe that the publication may be defamatory, there is no need to examine the particular material. Where, however, it has been publicised that particular material contains defamatory material, it may be negligent to continue to distribute.
The nature of the publication itself may be relevant. Where a publication is known to contain libellous material, the vendor or distributor may be obliged to do more to avoid being classed as negligent, and accordingly, lose the benefit of the defence. Where a warning is given that material being distributed or sold is libellous, the protection may be lost out, if the defendant is negligent in the circumstances.
At common law, the distributor, retailer etc. was not liable, unless he knows or ought to have known that the newspaper or periodical contained a libel, which could not be justified. If he reasonably believed the statement to be true, justified or privileged, he was afforded protection. The statutory wording now governs the position, so that the common law position has been modified.
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