Intermediaries

Republication

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.


Makers and Distributors

Defamation law distinguishes between persons who publish and persons who distribute the material. Persons who publish defamatory material are usually unconditionally liable.  Distributors have a lower level of liability.  Generally, their obligations cease provided that they remove the material, once the alleged defamation has been brought to their attention or they become aware of it.

If discussions are hosted on web blogs, questions arise as to whether the publisher of the website may be legally liable for the content. Issues may arise in relation to liability for publications by employees.

Under private international law rules, a person may be generally sued, either where he resides or where the harm has occurred.  In the case of defamation, legal action may be brought against a publisher where it is established or where the damage to reputation has been suffered.  The above rules apply within the EU.  Slightly different rules apply in respect of dealings outside the EU.  See the section on conflict of laws and civil wrongs.


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 shall not be 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.


Internet and other Intermediate Service Providers

Case law prior to the below Directive, suggested that an ISP could be liable as a publisher. Later cases confirmed that if the ISP played a passive role, then it would not be deemed to be a publisher. It has been held that Google’s ordinary functions, do not make it a publisher at common law. Different considerations arise where an entity hosts or has some element of control over the material.

An Irish court has held a chatroom with editorial control, to be an intermediary service provider for the purpose of the legislation.  Accordingly, it had no liability where it did not have actual knowledge of the publication. The protection of the legislation has been afforded to a news organization in relation to comments on a news article, in circumstances where   the organisation did not have knowledge of the defamatory content.

The ultimate position will depend on the circumstances and on the nature of control over the website. If the operator of the site goes beyond storage and hosting, the immunity may be lost. If the site is moderated, the protection of the legislation is unlikely to be available.


EU Directive Protecting ISP

The EU E-Commerce Directive contains a number of provisions which protect internet service providers, which are mere conduits. An intermediate internet service provider (ISP), is not liable for information transmitted in, or for the provision of access to, a communication network if it has been provided by a recipient of the service, provided that following conditions are complied with

  • the ISP did not initiate the transmission;
  • the ISP did not select the receiver of the transmission and
  • did not select or modify the content or information contained in it.

The transmission and provision of access to a communications network include automatic, intermediate and transient storage of information, in so far as it is for the purpose of carrying out transmission of the network and provided that the information is not stored for any period longer than reasonably necessary.

An ISP provider is not liable for the automatic, intermediate or temporary storage of information which is performed to make the system of onward transmission more efficient.


Intermediaries and Internet Service Providers

The position in respect of internet service providers and various online intermediaries has not been definitively decided.  Internet service providers are unlikely to be deemed publishers, for the purposes of defamation law.  Difficult questions of interpretation arise as to whether and to what extent groups which hold discussions, are distributors or publishers.  Distributors are not generally liable unless they are negligent.  However, publishers are strictly liable.

An intermediary (internet) service provider is not liable for information transmitted in a communication network if the information has been passively carried (and no more).  Conditions apply. It is a condition that the intermediary service provider did not initiate the transmission, did not select the receiver of the transmission and did not select or modify the information contained.

There is a specific exemption for caching. Caching involves creating temporary copies of a web page.  This facilitates a user using the same content, which can be provided by the local copy made by the internet service provider, rather than going back to the source page on the occasion of each subsequent re-use of the page.

The intermediary service provider is not liable for the automatic, intermediate and temporary storage of information for the sole purpose of making more efficient, its onward transmission to other users of the service upon their request.  Certain conditions apply.  In particular, the intermediary service provider must not modify the information and must comply with certain rules and industry practices.

It must act quickly in order to remove and disable access, once it acquires actual knowledge of the fact that the information from which it has sourced, has been removed, had access disabled or if a Court or administrative authority has ordered its removal or disablement.


Passive Providers and Mere Conduits

Intermediary service providers providing hosting services enjoy certain exemptions. This covers the storage of information, which has been provided by the service recipient.  The hosting provider will not be liable for information stored, provided that it complies with certain conditions.

It must not have actual knowledge of the unlawful activity concerned and must not be aware of facts or circumstances, from which the unlawful activity is apparent. Upon obtaining such knowledge or awareness, it must act quickly to remove or disable access to the information.

The exemption applies to passive service providers.  Intermediaries and operators which edit or control the content may not qualify for the exemption.  Bodies qualifying for the exemption may be deemed to become actually aware of circumstances if they become sufficiently prominent. The exemption does not apply where the service recipient is acting under the control of the intermediate service provider.

Internet service providers who are mere conduits, or who provide caching or hosting services have an obligation to monitor content.  They may be obliged by EU states to notify the public authorities of illegal activity.


Conditions of ISP Immunity

The intermediate service provider is not liable, provided that it

  • does not modify the information;
  • complies with conditions relating to access;
  • complies with the rules regarding the updating of information that has been specified in a manner widely recognised or used in the industry
  • does not interfere with the lawful use of technology widely recognised or used by the industry, to obtain data on the use of information and
  • acts expeditiously to remove or disable access to the information it has stored, on obtaining actual knowledge of the fact that the initial source of the transmission has been removed from the network, where access has been disabled or where a court or administrative authority has ordered its removal or disablement.

Courts may make orders against ISPs requiring it not to infringe or to cease infringement of legal rights.


ISP Defence Hosting

An ISP provider acting as a host which stores information provided by a recipient of the service is not liable for information stored at the request of the recipient. This is provided the following conditions are complied with;

  • the ISP does not have actual knowledge of the unlawful activity concerned
  • the ISP is not aware of facts from which unlawful activity is apparent;
  • the ISP on obtaining knowledge or becoming aware acts expeditiously to remove or disable access to the information.

The defence is not available where the recipient of the service is acting under the control of the ISP. A court may make orders prohibiting infringement or requiring that it cease.


Obligations of ISP and Intermediaries

An EU  Directive provides that that Member States must not impose a general obligation on ISPs to monitor information they transmit or store nor may they impose any obligation to actively seek facts or circumstances indicating illegal activity.

States may establish obligations for information society providers, promptly to inform public authorities of alleged illegal activities undertaken or information provided by customers or obligations to communicate to the competent authorities, at their request, information enabling the identification of the recipients of their services, with whom they have storage agreements.

Once the ISP has been informed of the defamatory material, the question arises as to what it is obliged to do to remove it. Where removal is impracticable without enormous cost, expense or complication, there is a limit to the steps which are required of the ISP to remove it.


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       Hardback             €195.00

EU and UK Texts


 

Defamation Act

PART 3

Defences

Abolition of certain defences.

15.— (1) Subject to sections 17 (1) and 18 (1), any defence that, immediately before the commencement of this Part, could have been pleaded as a defence in an action for libel or slander is abolished.

(2) In this section—

“ defence ” shall not include a defence under—

(a) statute,

(b) an act of the institutions of the European Communities, or

(c) regulations made for the purpose of giving effect to an act of the institutions of the European Communities;

“ European Communities ” has the same meaning as it has in the European Communities Act 1972 ;

“ statute ” means—

(a) an Act of the Oireachtas, or

(b) a statute that was in force in Saorstát Éireann immediately before the date of the coming into operation of the Constitution and that continues to be of full force and effect by virtue of Article 50 of the Constitution.


Truth.

16.— (1) It shall be a defence (to be known and in this Act referred to 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.

(2) In a defamation action in respect of a statement containing 2 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.


Absolute privilege.

17.— (1) It shall be a defence to a defamation action for the defendant to prove that the statement in respect of which the action was brought would, if it had been made immediately before the commencement of this section, have been considered under the law in force immediately before such commencement as having been made on an occasion of absolute privilege.

(2) Subject to section 11(2) of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997 , and without prejudice to the generality of subsection (1), it shall be a defence to a defamation action for the defendant to prove that the statement in respect of which the action was brought was—

(a) made in either House of the Oireachtas by a member of either House of the Oireachtas,

(b) contained in a report of a statement, to which paragraph (a) applies, produced by or on the authority of either such House,

(c) made in the European Parliament by a member of that Parliament,

(d) contained in a report of a statement, to which paragraph (c) applies, produced by or on the authority of the European Parliament,

(e) contained in a judgment of a court established by law in the State,

(f) made by a judge, or other person, performing a judicial function,

(g) made by a party, witness, legal representative or juror in the course of proceedings presided over by a judge, or other person, performing a judicial function,

(h) made in the course of proceedings involving the exercise of limited functions and powers of a judicial nature in accordance with Article 37 of the Constitution, where the statement is connected with those proceedings,

(i) a fair and accurate report of proceedings publicly heard before, or decision made public by, any court—

(i) established by law in the State, or

(ii) established under the law of Northern Ireland,

(j) a fair and accurate report of proceedings to which a relevant enactment referred to in section 40 of the Civil Liability and Courts Act 2004 applies,

(k) a fair and accurate report of proceedings publicly heard before, or decision made public by, any court or arbitral tribunal established by an international agreement to which the State is a party including the Court of Justice of the European Communities, the Court of First Instance of the European Communities, the European Court of Human Rights and the International Court of Justice,

(l) made in proceedings before a committee appointed by either House of the Oireachtas or jointly by both Houses of the Oireachtas,

(m) made in proceedings before a committee of the European Parliament,

(n) made in the course of proceedings before a tribunal established under the Tribunals of Inquiry (Evidence) Acts 1921 to 2004, where the statement is connected with those proceedings,

(o) contained in a report of any such tribunal,

(p) made in the course of proceedings before a commission of investigation established under the Commissions of Investigation Act 2004 , where the statement is connected with those proceedings,

(q) contained in a report of any such commission,

(r) made in the course of an inquest by a coroner or contained in a decision made or verdict given at or during such inquest,

(s) made in the course of an inquiry conducted on the authority of a Minister of the Government, the Government, the Oireachtas, either House of the Oireachtas or a court established by law in the State,

(t) made in the course of an inquiry conducted in Northern Ireland on the authority of a person or body corresponding to a person or body referred to in paragraph (s),

(u) contained in a report of an inquiry referred to in paragraph (s) or (t),

(v) made in the course of proceedings before an arbitral tribunal where the statement is connected with those proceedings,

(w) made pursuant to and in accordance with an order of a court established by law in the State.

(3) Section 2 of the Committees of the Houses of the Oireachtas (Privilege and Procedure) Act 1976 is amended by the insertion of the following subsection:

“(3) In this section ‘utterance’ includes a statement within the meaning of the Defamation Act 2009 ;”.

(4) A defence under this section shall be known as, and is referred to in this Act, as the “defence of absolute privilege ”.


Qualified privilege.

18.— (1) Subject to section 17 , it shall be a defence to a defamation action for the defendant to prove that the statement in respect of which the action was brought would, if it had been made immediately before the commencement of this section, have been considered under the law (other than the Act of 1961) in force immediately before such commencement as having been made on an occasion of qualified privilege.

(2) Without prejudice to the generality of subsection (1), it shall, subject to section 19 , be a defence to a defamation action for the defendant to prove that—

(a) the statement was published to a person or persons who—

(i) had a duty to receive, or interest in receiving, the information contained in the statement, or

(ii) the defendant believed upon reasonable grounds that the said person or persons had such a duty or interest, and

(b) the defendant had a corresponding duty to communicate, or interest in communicating, the information to such person or persons.

(3) Without prejudice to the generality of subsection (1), it shall be a defence to a defamation action for the defendant to prove that the statement to which the action relates is—

(a) a statement to which Part 1 of Schedule 1 applies,

(b) contained in a report, copy, extract or summary referred to in that Part, or

(c) contained in a determination referred to in that Part.

(4) Without prejudice to the generality of subsection (1), it shall be a defence to a defamation action for the defendant to prove that the statement to which the action relates is contained in a report, copy or summary referred to in Part 2 of Schedule 1 , unless it is proved that the defendant was requested by the plaintiff to publish in the same medium of communication in which he or she published the statement concerned, a reasonable statement by way of explanation or a contradiction, and has refused or failed to do so or has done so in a manner that is not adequate or reasonable having regard to all of the circumstances.

(5) Nothing in subsection (3) shall be construed as—

(a) protecting the publication of any statement the publication of which is prohibited by law, or of any statement that is not of public concern and the publication of which is not for the public benefit, or

(b) limiting or abridging any privilege subsisting apart from subsection (3).

(6) A defence under this section shall be known, and is referred to in this Act, as the “ defence of qualified privilege ”.

(7) In this section—

“duty” means a legal, moral or social duty;

“interest” means a legal, moral or social interest.


Loss of defence of qualified privilege.

19.— (1) In a defamation action, the defence of qualified privilege shall fail if, in relation to the publication of the statement in respect of which the action was brought, the plaintiff proves that the defendant acted with malice.

(2) The defence of qualified privilege shall not fail by reason only of the publication of the statement concerned to a person other than an interested person if it is proved that the statement was published to the person because the publisher mistook him or her for an interested person.

(3) Where a defamation action is brought against more than one defendant, the failure of the defence of qualified privilege in relation to one of the defendants by virtue of the application of subsection (1) shall not cause the failure of the defence in relation to another of the defendants unless that other defendant was vicariously liable for such acts or omissions of the first-mentioned defendant as gave rise to the cause of action concerned.

(4) Section 11(4) of the Civil Liability Act 1961 is repealed.

(5) In this section “interested person” means, in relation to a statement, a person who, under section 18 (2)(a), had a duty or interest in receiving the information contained in the statement.


Honest opinion.

20.— (1) It shall be a defence (to be known, and in this section referred to, as the “defence of honest opinion”) to a defamation action for the defendant to prove that, in the case of a statement consisting of an opinion, the opinion was honestly held.

(2) Subject to subsection (3), an opinion is honestly held, for the purposes of this section, if—

(a) at the time of the publication of the statement, the defendant believed in the truth of the opinion or, where the defendant is not the author of the opinion, believed that the author believed it to be true,

(b) (i) the opinion was based on allegations of fact—

(I) specified in the statement containing the opinion, or

(II) referred to in that statement, that were known, or might reasonably be expected to have been known, by the persons to whom the statement was published,

or

(ii) the opinion was based on allegations of fact to which—

(I) the defence of absolute privilege, or

(II) the defence of qualified privilege,

would apply if a defamation action were brought in respect of such allegations,

and

(c) the opinion related to a matter of public interest.

(3) (a) The defence of honest opinion shall fail, if the opinion concerned is based on allegations of fact to which subsection (2) (b) (i) applies, unless—

(i) the defendant proves the truth of those allegations, or

(ii) where the defendant does not prove the truth of all of those allegations, the opinion is honestly held having regard to the allegations of fact the truth of which are proved.

(b) The defence of honest opinion shall fail, if the opinion concerned is based on allegations of fact to which subsection (2) (b) (ii) applies, unless—

(i) the defendant proves the truth of those allegations, or

(ii) where the defendant does not prove the truth of those allegations—

(I) the opinion could not reasonably be understood as implying that those allegations were true, and

(II) at the time of the publication of the opinion, the defendant did not know or could not reasonably have been expected to know that those allegations were untrue.

(4) Where a defamatory statement consisting of an opinion is published jointly by a person (“ first-mentioned person ”) and another person (“ joint publisher ”), the first-mentioned person shall not fail in pleading the defence of honest opinion in a subsequent defamation action brought in respect of that statement by reason only of that opinion not being honestly held by the joint publisher, unless the first-mentioned person was at the time of publication vicariously liable for the acts or omissions, from which the cause of action in respect of that statement accrued, of the joint publisher.


Distinguishing between allegations of fact and opinion.

21.— 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:

(a) the extent to which the statement is capable of being proved;

(b) 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

(c) 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.


Offer to make amends.

22.— (1) A person who has published a statement that is alleged to be defamatory of another person may make an offer to make amends.

(2) An offer to make amends shall—

(a) be in writing,

(b) state that it is an offer to make amends for the purposes of this section, and

(c) state whether the offer is in respect of the entire of the statement or an offer (in this Act referred to as a “ qual ified offer ”) in respect of—

(i) part only of the statement, or

(ii) a particular defamatory meaning only.

(3) An offer to make amends shall not be made after the delivery of the defence in the defamation action concerned.

(4) An offer to make amends may be withdrawn before it is accepted and where such an offer is withdrawn a new offer to make amends may be made.

(5) In this section “ an offer to make amends ” means an offer—

(a) to make a suitable correction of the statement concerned and a sufficient apology to the person to whom the statement refers or is alleged to refer,

(b) to publish that correction and apology in such manner as is reasonable and practicable in the circumstances, and

(c) to pay to the person such sum in compensation or damages (if any), and such costs, as may be agreed by them or as may be determined to be payable,

whether or not it is accompanied by any other offer to perform an act other than an act referred to in paragraph (a), (b) or (c).


Effect of offer to make amends.

23.— (1) If an offer to make amends under section 22 is accepted the following provisions shall apply:

(a) if the parties agree as to the measures that should be taken by the person who made the offer to ensure compliance by him or her with the terms of the offer, the High Court or, where a defamation action has already been brought, the court in which it was brought may, upon the application of the person to whom the offer was made, direct the party who made the offer to take those measures;

(b) if the parties do not so agree, the person who made the offer may, with the leave of the High Court or, where a defamation action has already been brought, the court in which it was brought, make a correction and apology by means of a statement before the court in such terms as may be approved by the court and give an undertaking as to the manner of their publication;

(c) if the parties do not agree as to the damages or costs that should be paid by the person who made the offer, those matters shall be determined by the High Court or, where a defamation action has already been brought, the court in which it was brought, and the court shall for those purposes have all such powers as it would have if it were determining damages or costs in a defamation action, and in making a determination under this paragraph it shall take into account the adequacy of any measures already taken to ensure compliance with the terms of the offer by the person who made the offer;

(d) no defamation action shall be brought or, if already brought, proceeded with against another person in respect of the statement to which the offer to make amends applies unless the court considers that in all the circumstances of the case it is just and proper to so do.

(2) Subject to subsection (3), it shall be a defence to a defamation action for a person to prove that he or she made an offer to make amends under section 22 and that it was not accepted, unless the plaintiff proves that the defendant knew or ought reasonably to have known at the time of the publication of the statement to which the offer relates that—

(a) it referred to the plaintiff or was likely to be understood as referring to the plaintiff, and

(b) it was false and defamatory of the plaintiff.

(3) Where the defendant in a defamation action made a qualified offer only, subsection (2) shall apply in relation to that part only of the action that relates to the part of the statement or the meaning, as the case may be, to which the qualified offer relates.

(4) A person who makes an offer to make amends is not required to plead it as a defence in a defamation action.

(5) If a defendant in a defamation action pleads the defence under this section, he or she shall not be entitled to plead any other defence in the action, and if the defence is pleaded in respect of a qualified offer only he or she shall not be entitled to plead any other defence in respect of that part of the action that relates to the part of the statement or the meaning, as the case may be, to which the qualified offer relates.


Apology.

24.— (1) In a defamation action the defendant may give evidence in mitigation of damage that he or she—

(a) made or offered an apology to the plaintiff in respect of the statement to which the action relates, and

(b) published the apology in such manner as ensured that the apology was given the same or similar prominence as was given to that statement, or offered to publish an apology in such a manner,

as soon as practicable after the plaintiff makes complaint to the defendant concerning the utterance to which the apology relates, or after the bringing of the action, whichever is earlier.

(2) In a defamation action, a defendant who intends to give evidence to which subsection (1) applies shall, at the time of the filing or delivery of the defence to the action, notify the plaintiff in writing of his or her intention to give such evidence.

(3) In a defamation action, an apology made by or on behalf of a defendant in respect of a statement to which the action relates—

(a) does not constitute an express or implied admission of liability by that defendant, and

(b) is not relevant to the determination of liability in the action.

(4) Evidence of an apology made by or on behalf of a person in respect of a statement to which the action relates is not admissible in any civil proceedings as evidence of liability of the defendant.


Consent to publish.

25.— In a defamation action it shall be a defence, to be known as the “ defence of consent ”, for a person to prove that the plaintiff consented to the publication of the statement in respect of which the action was brought.


Fair and reasonable publication on a matter of public interest.

26.— (1) It shall be a defence (to be known, and in this section referred to, as the “ defence of fair and reasonable publication ”) to a defamation action for the defendant to prove that—

(a) the statement in respect of which the action was brought was published—

(i) in good faith, and

(ii) 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,

(b) 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

(c) in all of the circumstances of the case, it was fair and reasonable to publish the statement.

(2) For the purposes of this section, 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:

(a) the extent to which the statement concerned refers to the performance by the person of his or her public functions;

(b) the seriousness of any allegations made in the statement;

(c) the context and content (including the language used) of the statement;

(d) the extent to which the statement drew a distinction between suspicions, allegations and facts;

(e) the extent to which there were exceptional circumstances that necessitated the publication of the statement on the date of publication;

(f) 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;

(g) 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);

(h) 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;

(i) 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

(j) the attempts made, and the means used, by the defendant to verify the assertions and allegations concerning the plaintiff in the statement.

(3) 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—

(a) constitute or imply consent to the publication of the statement, or

(b) entitle the court to draw any inference therefrom.

(4) In this section—

“ court” means, in relation to a defamation action brought in the High Court, the jury, if the High Court is sitting with a jury;

“ defamation action ” does not include an application for a declaratory order.


Innocent publication.

27.— (1) It shall be a defence (to be known as the “ defence of innocent publication ”) to a defamation action for the defendant to prove that—

(a) he or she was not the author, editor or publisher of the statement to which the action relates,

(b) he or she took reasonable care in relation to its publication, and

(c) he or she did not know, and had no reason to believe, that what he or she did caused or contributed to the publication of a statement that would give rise to a cause of action in defamation.

(2) A person shall not, for the purposes of this section, be considered to be the author, editor or publisher of a statement if—

(a) in relation to printed material containing the statement, he or she was responsible for the printing, production, distribution or selling only of the printed material,

(b) 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,

(c) 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.

(3) 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 caused or contributed to the publication of a defamatory statement, have regard to—

(a) the extent of the person’s responsibility for the content of the statement or the decision to publish it,

(b) the nature or circumstances of the publication, and

(c) the previous conduct or character of the person.