Other Remedies

Defamation Remedies.

The normal remedy for defamation is damages.  In some cases, however, damages may not be an adequate remedy, and an injunction may be granted.  An injunction may issue to prohibit an anticipated publication, in very exceptional circumstances. At the termination of a defamation trial, a perpetual injunction may be granted to restrain repetition of the defamatory statement.  In some cases, an injunction and damages may be granted.

An interim or interlocutory injunction may be granted, pending the trial of the matter. The purpose is to preserve the position pending the full trial.  Where an injunction is granted prior to trial, an undertaking will be required in relation to damages, should the applicant fail in the ultimate trial of the action. See the sections on pre-trial injunctions.

The issue of a prior pre-trial injunction in a defamation action raises issues of Constitutional and ECHR rights of freedom of speech.  The courts are reluctant to grant a so-called “prior restraint” on freedom of speech if there is any reasonable basis for arguing that the defendant may succeed in the ultimate trial of the action.  There is a heavy onus on the defendant to show that that grant of an injunction prior to trial is justifiable.


Pre-Trial Orders

The case law, even prior to the Defamation Act, made clear that an interlocutory injunction should only be granted where the case was clear.  The approach to defamation cases differed to the general approach to pre-trial injunctions.  The balance of convenience test would lead to the granting of injunctions on a more liberal basis than actually occurs.  Freedom of speech considerations in effect creates a presumption against the grant of an injunction unless the case is clear.

This principle is now embodied in statute which provides that a prior prohibition on publication should be granted, only if the plaintiff has no defence to the action and that it is reasonably likely to succeed.  The Defamation Act provides that where an order is made under it, it does not operate to prohibit the reporting of the making of the order, provided that the report does not republish the statement.

The United Kingdom courts have been prepared to grant orders protecting the anonymity of the order itself.  These so-called super-injunctions hide the fact that the injunction has been granted.  They had been justified to some extent, on the basis of the ease at which it is possible to search the Internet for material that would identify the parties and disclose the defamation.


Novel 2009 Remedies

The 2009 Act provides a number of novel procedures which seek to make defamation proceedings more efficient, less costly and less protracted.  There is provision for a summary application whereby a plaintiff can obtain an order correcting a defamation.  There is also provision for an order prohibiting further publication. The defendant may seek a declaration to the effect that the content of a statement is not itself defamatory.

A summary application may be made for a declaratory order, declaring that a defamatory statement is false.  If this order is granted, it precludes the claimant making any other claim, in particular, a claim for damages or injunction arising out of the defamation.

The court in a defamation action, may on the application of the plaintiff, grant summary relief to the plaintiff if it is satisfied the statement in respect of which the action is brought is defamatory, and the defendant has no defence to the action that it is reasonably likely to succeed.

Equally, the court may on the application of the defendant dismiss the action if it is satisfied the statement concerned is not reasonably capable of being found to have a defamatory meaning. The application is brought by notice of motion based on affidavit, without a jury.

The plaintiff must show that he has been defamed by the statement. If the defendant satisfies the court that he has a fair and reasonable prospect or probability of a real and bona fide defence, the summary order will be refused.


Correction Order

The Defamation Act allows for a correction order.  Where there is a finding that the statement was defamatory and that the defendant has no defence, the court may on the application of the plaintiff, make a correction order.  The correction order directs the defendant to publish a correction of the defamatory statement.

A correction order shall state the date and time at which it is to be published or the time by which it must be published.  It shall specify the form, content, extent and manner of publication.  Unless otherwise provided, it will require the correction to be published in such a manner as to ensure that it is communicated to all and substantially all of the persons, to whom the defamatory statement was published.

Where a claimant proposes to make an application for a correction order, he shall inform the defendant in writing, at least seven days beforehand and at the trial of the action, inform the court. An application may be made at any time during the trial, as the court may direct. A correction order is available under the summary procedure.


Declaration of Falsity and Defamation

The Defamation Act provides for an application to the Circuit Court for a declaration that a statement is false and defamatory of the applicant.  The court will make the order if it is satisfied

  • that the statement is defamatory of the applicant;
  • that the respondent has no defence;
  • the applicant requested the respondent to make and publish a correction statement or retraction in relation to the statement; and
  • the respondent has failed or refused to do so or failed to give it the same prominence as the original statement.

An applicant for a declaratory order is not obliged to prove the statement concerned is false.  Where this type of application is brought, the applicant may not bring any other proceedings arising from the statement. No order in relation to damages may be made on the application.

The application is brought by the motion on notice.  Where the court makes a declaration order, it may make an order prohibiting further publication and / or a correction order. The court may, for the purpose of making a determination on the application in an expeditious manner, give directions in relation to the delivery of pleadings and for the time and manner of a trial of the issues raised in the application.

Where a declaratory order is sought, the respondent cannot offer the defence of fair and reasonable publication on a matter of public interest, which would otherwise be available.


Apology I

The Defamation Act, 2009 allows for an apology. Prior to the Act, the apology would be an admission, so that the defendant might prejudice his position further, by making an apology. An apology by or on behalf of a defendant in relation to a statement to which the action relates does not now constitute an admission of liability. It is not relevant to the determination of liability.

In a defamation action, the defendant may give evidence in mitigation of damages that he made or offered an apology to the plaintiff in respect of the statement to which the action relates.

The defendant must publish the apology in a manner and ensure that the apology is given the same or similar prominence as was given to the original statement.  Alternatively, he may offer to publish an apology in this manner. This must be done as soon as practicable after the person concerned makes the complaint to the defendant, regarding the defamatory matter in question or after bringing the legal action, whichever is earliest.


Apology II

The form and positioning of the apology are of importance. It should not be grudging. It must not imply the matter was a mere error or trivialize it. The apology should not compound the libel.

A defendant who wishes to give evidence on the above matters, shall at the time of delivering the defence, notify the claimant of his intention to give this evidence.

An order of publication of a correction may be made under the Defamation Act. The applicant must show that he has requested an apology, correction or retraction in relation to the alleged defamatory statement, and that the defendant has failed or refused to accede to the request, or that he has failed or refused to give the apology the same or similar prominence, to that given to the statement concerned.


Offer of Amends I

The Defamation Act provides for an offer of amends. Where a defendant accepts that he has wrongfully published a defamatory statement, he may offer a correction and apology, including, possibly, payment of compensation.

An offer of amends is an offer to make a suitable correction of the statement and a sufficient apology to the person to whom the statement refers, or is alleged to refer and to publish that correction and apology, in a manner that is reasonable and practicable under the circumstances and to pay a sum in compensation, if any such costs as may be agreed or as may be determined, whether or not accompanied by any other offer to perform an act other than that above

An offer of amends must be in writing, state that it offers to make amends under the Act, and state whether the offer is in respect of the entire of the statement, or in respect of part or it, or in respect of a particular defamatory meaning only.

An offer of amends may be made at any point up to the delivery of the defence. It may be withdrawn prior to acceptance. A new offer may be made.


Offer of Amends II

Where an offer of amends is made and is accepted, the parties agree as to the measures that should be taken. The court (whether or not a defamation action has been commenced), may on application direct a party to take those measures.

If the parties do not agree, the party who made the offer, may with leave of court (whether the action has been commenced or not) make a correction and apology by means of a statement before the court, in such terms as might be approved and give an undertaking as to the manner of its publication.

If the parties do not agree as to damages or costs, that should be paid by the person who made the offer; the matter shall be determined by the court (regardless whether the action has been commenced. The courts have all the powers it would have had in determining damages in defamation. It shall take account of the adequacy of the measures already taken to ensure compliance with the offer.

No defamation action shall be brought, or if already brought, proceeded with, in respect of the statement to which an offer to make amends applies, unless the court considers that in all the circumstances, that it is just and proper to do so.


Offer of Amends III

The parties should endeavour to agree the terms of the correction, apology and publication and if applicable and possible, the amounts to be paid in damages and costs. An application to be made to court, obliging the party to perform the agreed steps. Where an agreement is not reached, the defendant with the consent of the court, may make a correction and apology in court and give an undertaking as to publication.

If damages are not agreed upon, the court can determine damages if appropriate, based on the steps which the defendant may have taken. In this case, the proceedings may not continue or be commenced, unless the court considers it just and proper to do.

It may be expected that a discount, and perhaps a significant discount, may be granted in damages awarded. The degree of discount will depend on the earnestness and sufficiency of the measures in terms of remedying the original defamatory statement.

Where an offer of amends is rejected, this may be the basis of a defence. This is not the case if the claimant proves that the defendant ought reasonably to have known, at the time of publication of the statement concerned, that it referred to the plaintiff, that was it was likely to be so understood and that it was false and defamatory.

A qualified and limited offer of amends operates only in respect of the parts to which it refers. It may not be used in relation to other parts or meanings.


Time Limit for Commencement of Proceedings

A defamation action shall not be brought after the expiration of  one year, or  such longer period as the court may direct not exceeding 2 years, from  the date on which the claim arose / accrued.

The court shall not give a direction for a 2 year period unless it is satisfied that—

  • the interests of justice require the giving of the direction,
  • the prejudice that the plaintiff would suffer if the direction were not given would significantly outweigh the prejudice that the defendant would suffer if the direction were given.

The court shall, in deciding whether to give such a direction, have regard to the reason for the failure to bring the action within the period of one year and the extent to which any evidence relevant to the matter is by virtue of the delay no longer capable of being adduced.

The date of accrual of the right to claim is the date upon which the defamatory statement is first published. Where the statement is published through the medium of the internet, it is  the date on which it is first capable of being viewed or listened to through that medium..


Survival of cause of action on death.

On the death of a person a cause of action for defamation vested in him immediately before his death shall survive for the benefit of his estate. Where a cause of action for defamation survives for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person shall not include general damages, punitive damages or aggravated damages.

On the death of a person a cause of action subsisting against him shall survive against his estate. Where a cause of action for defamation survives against the estate of a deceased person, the damages recoverable against the estate of that person shall not include general damages, punitive damages or aggravated damages..


Multi-Jurisdiction Issues

Generally, an article must be viewed or downloaded within the jurisdiction in order to be published in that jurisdiction. Questions may arise as to legal action being taken in multiple jurisdictions. This raises conflict of laws questions.

Prospectively, publication of the internet and consequent liability may take place in multiple jurisdictions. Different jurisdictions take different approaches. In bread terns, defamation law in Ireland and the United Kingdom are more favourable to the claimant, than is the case in the United States.

The 2009 reforms restrict the multiple publication rules.  The court may permit a person to bring more than one defamation action in respect of multiple publications, only where it considers that the interests of justice so require. The legislation also goes some way towards clarifying the jurisdiction of Irish Courts in relation to defamation cases with cross-border aspects.


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

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