Defences

Defence of Truth I

It is a defence to an action for defamation to show that the alleged defamatory statement is substantially true.  This defence reflects the principle that a person should not be compensated for damage done by a statement which is, in fact, true and accurate.  In effect, the statement is protected as an exercise of freedom of speech.

Although truth is a defence, it may often be impractical or impossible to prove the truth of what is otherwise a defamatory statement. A person who seeks to assert the truth of a statement runs the risk of having aggravated damages awarded against him.  On the other hand, the jury may take account of other evidence following short of the defence of truth which shows bad character in the claimant, so that it reduces the ultimate award of damages.

It is a defence known as the “defence of truth” to a defamation action for the defendant to prove that the statement in respect of which the action was brought is true in all material respects. In a defamation action in respect of a statement containing two or more distinct allegations against the plaintiff, the defence of truth shall not fail by reason only of the truth of every allegation not being proved, if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining allegations.

The onus of proof is on the defendant, who asserts the truth of the alleged defamatory statement.  In effect, the defamatory statement once proved and shown to be potentially defamatory, is presumed untrue, until otherwise proved.


Defence of Truth II

If a statement is true, it does not matter that the defendant acted maliciously or was unaware of the truth of the statement.  The truth may be established by facts that happened after the ostensibly defamatory statement was made.

A defendant who claims truth must have a basis for so doing.  He runs the risk of aggravating liability significantly, if he puts forward a defence of truth, without justification and a realistic basis.

The requirement of the defence is that statement was substantially true. It need not be literally true, in every single respect. The requirement for proving substantial truth is satisfied if the defendant does not prove the truth of every part of the statement, but the parts which are untrue are not such as to substantially damage the claimant. However, if there are two separate defamatory statements, then the substantial truth of each must be proved.


Defence of Truth III

If a statement has multiple meanings, the literal truth of one meaning may not suffice to establish the defence of truth, are most serious the words cannot be justified if the most serious amputation which can be reasonably taken.  In common with defamation, generally, the judge decides whether the wording may have defamatory meaning and the jury decides if it does in fact compel.

The repetition of a defamatory statement made by the third party is generally defamatory. In the same way, statements or imputations that a person is suspected or reasonably suspected of something, are not sufficient in themselves to constitute the defence of truth, notwithstanding the suspicions are in fact held. The fact that the police or that persons in authority have reasonable ground for suspicion may be sufficient if reasonable cause can be shown.

Where general accusations are made in relation to a person’s character, it may not be enough to justify them with reference to an instance of the relevant behaviour. It is necessary to show a number of instances of the relevant behaviour, in order to justify a generalised character-based accusation.


Consent

Consent is a defence to a defamatory statement. The issue of consent may arise in a number of contexts. A person may allege that he has not consented to an interview in the terms published.

A person may consent to a particular procedure which necessarily requires repetition of alleged defamatory material. A person may give prior consent to the publication of findings or proceedings which affect his reputation.


Opinion and Fundamental Rights

A defence of honest opinion may be available.  The defence expresses the right to freedom of speech principle under the Irish Constitution of the European Convention on Human Rights.  One important aspect of this is the freedom of the press to comment on matters of public interest in a democratic society.

The European Convention on Human Rights provides that everyone has the right to freedom of expression.  The right includes the freedom to hold opinions and to receive and impart information and ideas, without interference by public authority and regardless of frontiers. Article 40.6of the Constitution provides

The State guarantees liberty for the exercise of the following rights, subject to public order and morality, the right of the citizens to express their convictions and opinions freely.

The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.

The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.


Defence of Honest Opinion

The defence requires that the opinion is honestly held. The Defamation Act set out criteria in relation to distinguishing fact from opinion.  The court is to have regard to the extent                                 to which the statement is capable of being proved, the extent to which the statement was made in circumstances in which it was likely to have been reasonably understood as a statement of  an opinion rather than a statement consisting of an allegation of fact, the words used in the statement and the extent which the statement was subject to a qualification, disclaimer or  cautionary words.

The labelling of something as an opinion is not necessarily conclusive, although it is a relevant factor. Practical issues of judgement and interpretation may arise in distinguishing opinions from facts.  Some statements in the forms of opinions assert facts.  Some statements are clearly subjective.  Other statements will have facts and opinions intermingled.

It must be proved that the opinion related to a matter of public interest.  This is a matter for determination by the judge.  It would include matters of public affairs and matters in the public arena.  And this context “interest” does not mean that the matter might be of interest to the public.  It implies matters that are of legitimate concern to the public.


Private Matters and Public Interest

Questions have arisen in the context of the private lives of public figures.  In some cases, private qualities and character may be inconsistent with publicly stated opinions and attributes relevant to the public position. Matters which are prurient and salacious and may of interest to the public but are not in the public interest in this sense.

A person’s private life is not generally a matter of public interest.  However, if a people publicises his private life and seeks publicity, it may cease to be private.

Where allegations are privileged, the defence of honest opinion requires that the defendant did not know and could not recently have known that the allegations were untrue and the opinion could not be understood to imply that they were true.

The requirement that the facts are set out or referred to is justified on the basis that the public should be in a position to make up your own mind, on the underlying facts. If the matter is already known to the public, little reference may be required.


Fact v Opinion

There must be a factual basis for the opinion. The defendant must believe that the opinion is true, or if he is not the author, that the author believes that it is true.  The opinions may be based on allegations of facts specified in the statement containing the opinion or referred to in it, that were known or might reasonably be expected to be known by the persons to whom it was published.  Alternatively, the opinion may be based on allegations of fact to which the defence of absolute or qualified privilege would be available.

The matters to which the court in a defamation action shall have regard, for the purposes of distinguishing between a statement consisting of allegations of fact and a statement consisting of opinion, shall include the following:

  • the extent to which the statement is capable of being proved;
  • 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
  • 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. The defendant must prove that the facts are true or partly true and that the belief is honestly held on the basis of these proved facts.

Fair and Reasonable Publication on Matter of Public Opinion

The Defamation Act provides a new defence of fair and reasonable publication on a matter of public interest.  The defence reflects developments in the US and later UK law.  The European Convention on Human Rights contemplates a defence based on the right to free speech in these circumstances.

The European Court of Human Rights has upheld the principle of freedom to make a fair and reasonable publication on a matter of public interest. This must be undertaken in accordance with principles of responsible journalism.  A journalist must act in good faith. They must provide accurate and reliable information in accordance with ethical principles.

The defence appears to be a statutory codification of the common law defence, famously elaborated by the House of Lords in a case involving former Taoiseach, Albert Reynolds. The defence may allow publication in the public interest in relation to matters in political discussion.  The defence is not limited to political discussion and extends to matters of serious public concern.

The principles were accepted in the number of Irish case prior to the commencement of the Defamation Act.  It was not clear whether the defence developed by the courts has been codified in the Defamation Act. The principles have not been uniformly adopted by the courts.

This principle is based on the interest of the public in a democracy in free expression on matters of public interest.  There was a corresponding duty on a journalist or another in a similar position to act responsibly. These tests are not rigid.


Factors Taken into Account

In considering what might qualify, a range of factors are taken into account;

  • the more serious allegation, the more harmful it is to a person’s reputation;
  • certain information is of greater public concern than other information
  • the source of the information, its credibility and bias;
  • the steps taken to verify the information;
  • the urgency of the matter, bearing in mind that news turnaround times may be fast;
  • the status of the information, in terms of investigation and credibility;
  • whether a comment has been sought from the persons affected and his response;
  • whether the publication contains the claimant’s version;
  • the tone of the article;
  • the circumstances of the publication

The matter comes down to balancing the right of the public to know against the reputation of the person, the subject of the comment. The defence operates by granting the privilege. In the case of privilege, a person must have a legitimate interest in publicising a particular matter.


Interest in the Matter

There are conditions to the availability of privilege. The person who makes the statement must not act maliciously. There must be an interest on the part of both the person making and receiving the statement. The person must not knowingly or recklessly make an untruth statement.

The public interest defence requires a public interest in communicating and receiving the information.  The judge decides on whether this is the case.  The entirety of the story should be considered, and if the alleged defamatory statement did not make a contribution to it, then their inclusion may be unjustifiable.  The publication must be undertaken responsibly.

The legislation lists factors, to which the courts will have regard, in deciding whether if it is fair and reasonable to publish the statement concerned.

The statement must be published in good faith in the course of or for the purpose of the discussion of the subject of public interest, the discussions of which is for public benefit. In the circumstances of the case, with matter and extent of publication of the statement must not exceed what was reasonably sufficient and it must be fair and reasonable to publish the statement. Publication must take place in good faith.


Fair and reasonable publication on a matter of public interest. I

It is a defence (known as “defence of fair and reasonable publication”) to a defamation action for the defendant to prove

  • that the statement in respect of which the action was brought was published in good faith, and) in the course of, or for the purpose of, the discussion of a subject of public interest, the discussion of which was for the public benefit,
  • in all of the circumstances of the case, the manner and extent of publication of the statement did not exceed that which was reasonably sufficient, and
  • in all of the circumstances of the case, it was fair and reasonable to publish the statement.

The court shall, in determining whether it was fair and reasonable to publish the statement concerned, take into account such matters as the court considers relevant including any or all of the following:

  • the extent to which the statement concerned refers to the performance by the person of his or her public functions;
  • the seriousness of any allegations made in the statement;
  • the context and content (including the language used) of the statement;
  • the extent to which the statement drew a distinction between suspicions, allegations and facts;
  • the extent to which there were exceptional circumstances that necessitated the publication of the statement on the date of publication;
  • in the case of a statement published in a periodical by a person who, at the time of publication, was a member of the Press Council, the extent to which the person adhered to the code of standards of the Press Council and abided by determinations of the Press Ombudsman and determinations of the Press Council;
  • in the case of a statement published in a periodical by a person who, at the time of publication, was not a member of the Press Council, the extent to which the publisher of the periodical adhered to standards equivalent to the standards specified in paragraph (f);
  • the extent to which the plaintiff’s version of events was represented in the publication concerned and given the same or similar prominence as was given to the statement concerned;  if the plaintiff’s version of events was not so represented, the extent to which a reasonable attempt was made by the publisher to obtain and publish a response from that person; and the attempts made, and the means used, by the defendant to verify the assertions and allegations concerning the plaintiff in the statement.

The failure or refusal of a plaintiff to respond to attempts by or on behalf of the defendant, to elicit the plaintiff’s version of events, shall not constitute or imply consent to the publication of the statement, or entitle the court to draw any inference therefrom.


Innocent publication.

It is a defence (known as the “defence of innocent publication”) to a defamation action for the defendant to prove that

  • he or she was not the author, editor or publisher of the statement to which the action relates,
  • he or she took reasonable care in relation to its publication, and
  • he or she did not know and had no reason to believe, that what he or she did cause or contributed to the publication of a statement that would give rise to a cause of action in defamation.

A person shall not be considered to be the author, editor or publisher of a statement if—

  • in relation to a printed material containing the statement, he or she was responsible for the printing, production, distribution or selling only of the printed material,
  • in relation to a film or sound recording containing the statement, he or she was responsible for the processing, copying, distribution, exhibition or selling only of the film or sound recording,
  •  in relation to any electronic medium on which the statement is recorded or stored, he or she was responsible for the processing, copying, distribution or selling only of the electronic medium or was responsible for the operation or provision only of any equipment, system or service by means of which the statement would be capable of being retrieved, copied, distributed or made available.

The court shall, for the purposes of determining whether a person took reasonable care, or had reason to believe that what he or she did cause or contributed to the publication of a defamatory statement, have regard to

  • the extent of the person’s responsibility for the content of the statement or the decision to publish it,
  • the nature or circumstances of the publication, and
  • the previous conduct or character of the person.

References and Sources

Legislation

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

Irish Books

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