Defamation

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S(12) Defamation Act 2009

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Its not only natural persons who are considered to have a reputation in the eyes of the law, corporations can also maintain an action in defamation - S(12) Defamation Act 2009. See: The McLibel Case

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Definition

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Prior to 2009 Act, there was no statutory definition of 'defamation' provided and one was left to rely on the common law definition provided by Walsh J in Quigley v Creation Ltd:

Defamation is committed by the wrongful publication of a false statement about a person, which tends to lower that person in the eyes of right thinking members of society or tends to hold that person up to hatred, ridicule or contempt, or causes that person to be shunned or avoided by right thinking members of society.

“defamatory statement” means a statement that tends to injure a person’s reputation in the eyes of reasonable members of society, and “defamatory” shall be construed accordingly;

However, s 6(2) 2009 Act - "the publication, by any means, of a defamatory statement concerning a person to one or more (other than the first-mentioned person), and "defamation" shall be construed accordingly".

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Publication

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The definition of publication is now provided under S6(4) of the 2009 Act and states that:

... there shall be no publication for the purposes of the tort of defamation if the defamatory statement concerned is published to the person to whom it relates and to a person other than the person to whom it relates in circumstances where-
(a) it was not intended that the statement would be published to the second-mentioned person, and
(b) it was not reasonably foreseeable that publication of the statement to the first mentioned person would result in its being published to the second-mentioned person.

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Monson v Tussauds Ltd

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It was held that a waxworks model of the plaintiff placed in the Chamber of Horrors amounted to the publication of a defamatory statement, particularly when the plaintiff had recently been the accused in a murder trial.

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Berry v Irish Times Ltd.

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The Irish Times reproduced a photograph of a man holding a placard containing an alleged defamatory statement about the plaintiff. Held the production of the photograph by the Irish Times was found to be publication by the defendants notwithstanding that it was not the maker of the statement.

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Paul v Holt

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A letter was addressed to a Mr Paul at an address in Newry, Co. Down. The Pl's brother lived there too and opened it, showed it to his wife & Pl's wife. The defendant was found to have published a
defamatory statement even if it was accidental. Evidence was introduced which showed that the defendant was aware that the plaintiff's brother lived at the same address. He had therefore, acted negligently and because the publication was foreseeable he was liable in defamation.

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Multiple Publication

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The multiple publication rule has effectively all but been abolished in Irish law. Section 11 of the 2009 Act provides that a person only has one cause of action in respect of multiple publication. Multiple publication means publication by a person of the same defamatory statement to 2 or more persons (other than the person in respect of whom the statement is made). The court may grant leave to a person to bring more than one action where it considers that the interests of justice so require.

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Byrne v Deane [1937] I KB 818

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Police raided a golf clubhouse and removed illegal "fruit machines" which were on the premises. The following verse was posted on the wall of the clubhouse which the plaintiff claimed was directed towards him: "But he who gave the game away, may he byrne in hell and rue the day." It was held that there was no defamation. A statement which
implied that an individual assisted the police in the prevention of crime would not lower that an individual in the eyes of right thinking members of society, even if it did affect his popularity and spoil the entertainment of the club members.

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Berkoff v Burchill [I 996] 4 All ER I

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The defendant was a journalist who wrote a review of a play by the actor/director Stephen Berkoff and made comments to the effect that the plaintiff, Mr Berkoff, was "hideously ugly". The plaintiff - at a preliminary hearing - argued that the comments attributed to the defendant amounted to defamation.

[W]ords may be defamatory, even though they neither impute disgraceful conduct to the plaintiff nor any lack of skill or efficiency in the conduct of his trade or professional activity, if they hold him up to contempt, scorn or ridicule or tend to exclude him from society.

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Youssopoff v Metro-Goldwyn-Mayer Pictures Ltd

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An allegation in a motion picture that Rasputin had raped the plaintiff, a Russian princess, was held to defame her and the making of the film amounted to a publication.

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Reynolds v Molocco t/a "Patrick"

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The plaintiff was a company director of such clubs as "The POD" and "The Red Box". He sought an injunction relating to an article which referred to him as "gay bachelor". The defendant claimed that the words meant in their ordinary meaning, i.e., he was a happy go-lucky type of man. The court rejected this contention observing that:

Language is a living thing and words can change their meaning over the years ... (a) word may acquire a secondary meaning which it did not formerly have ... over the last 30 years or so it has become synonymous with homosexuals and homosexual activity. One would have to be resident on the moon not to be aware of this.

The words need not necessarily be defamatory all that is required is that they are capable of being defamatory. Being homosexual is not necessarily defamatory, however if it implies that the plaintiff was being hypocritical by disguising his true sexual orientation then it is capable
of having a defamatory effect.

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COLEMAN -V- MGN LIMITED Supreme Court. Neutral citation (2012) IESC 20

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Judgment was delivered on March 15th, 2012, by the Chief Justice, Mrs Justice Susan Denham, with Mr Justice John Murray, Mr Justice Adrian Hardiman, Mr Justice Nial Fennelly and Mr Justice Donal O’Donnell concurring.

JUDGMENT

An appeal by Mirror Group Newspapers against a High Court refusal to strike out defamation proceedings against the Daily Mirror newspaper was allowed, and the court stated it had no jurisdiction over the subject matter of the proceedings.

BACKGROUND

The proceedings were taken by the plaintiff, who lives in Claremorris, Co Mayo, against Mirror Group Newspapers in Canary Wharf, London. These arose from an article and photograph, which included the plaintiff, published in March 2003 in the Daily Mirror under a heading “Yob War – Boozy: Lads on a typical night out in Britain”, which outlined measures announced by the then British home secretary David Blunkett to control behaviour on the streets.

These included police powers to close “crack dens”, fixed fines of £80 for “yobs” between 16 and 18 and instant fines for parents of under-15s.

Mr Coleman claimed that the article and the juxtaposition of the photograph meant he was a “yob” and a drunkard, guilty of criminal conduct, a drug dealer, someone who should be investigated by the police and subject to criminal sanction and had engaged in anti-social behaviour.

He claimed the photograph was republished in September 2003 to accompany another article on binge-drinking in Britain. He also claimed the newspaper was circulated in Ireland. He claimed he had been defamed and had suffered loss, damage and expense, and he brought a claim for aggravated, exemplary and punitive damages.

The newspaper sought an order that the High Court decline jurisdiction to hear the case. On January 15th the High Court refused the motion. Mr Justice Peter Charleton said: “I have to take a statement of claim as being true in very respect.” Turning to the question, “Where does the libel occur?” he said: “With internet publications nowadays, a recording from Saudi Arabia might end up in Ireland on the news.”

He added that the plaintiff was within his rights to choose the jurisdiction. “He may not be able to prove publication but he could prove it if someone brought back a copy of the paper from the United Kingdom. There could be rumours flying around from emigrants and migratory workers from the United Kingdom.” MGN appealed this ruling to the Supreme Court.

When the appeal came before the Supreme Court in October 2010, it was indicated that there was evidence of the circulation of the newspaper in question in Ireland, but this evidence was not before the court and time was given to the plaintiff to file further evidence.

When the hearing resumed on March 8th, counsel for the plaintiff said the claim was now one of internet publication based on jurisprudence and the fact that the Daily Mirror was online every day. Counsel for the plaintiff admitted there was no evidence of publication of this article on the Daily Mirror site. The case now hinged on the issue of publication on the internet, through an archival site, UKPressOnline.

The case had therefore changed since last before the court, when it was stated there was evidence of the newspaper being available in Ireland.

DECISION

The case was now one where it was the plaintiff’s case that the defamation was published on the internet, specifically the Daily Mirror online and UKPressOnline, a subscription-based archival website. There is no general access other than to a thumbnail miniature of part of the article and photograph, and it was agreed that the plaintiff could not be recognised on this thumbnail. His name was not mentioned in the article, so he could not be identified by a search. The appeal had shifted as it progressed through the court, the judge said.

There was need for evidence of a publication to establish a tort of defamation. There was no evidence that the Daily Mirror was published online in 2003. There was no evidence that the daily edition of the paper was on the web in 2003. There was no evidence of any hits on any such site in this jurisdiction. There were therefore fatal flaws in the plaintiff’s case.

The basic grounds on which the plaintiff now moved his case were never pleaded and were not established in evidence. Neither on the pleadings nor on the evidence did the court have jurisdiction, and the appeal was allowed.

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Seamus Mulvaney -v- Betfair (2009)

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Directive 2000/31/EC ("the e-commerce directive") sets down,inter alia , the circumstances in which internet intermediaries, as defined, can be held accountable for material which is hosted, cached or carried by them but which they did not create. The Directive was transposed into Irish Law by the European Communities (Directive 2000/31/EC) Regulations 2003. Regulation 18(1) of those Regulations provides:-

"An intermediary service provider who provides a relevant service consisting of the storage of information provided by a recipient of the service shall not be liable for the information stored at the request of that recipient if -

(a) the intermediary service provider does not have actual knowledge of the unlawful activity concerned and, as regards claims for damages, is not aware of facts or circumstances from which that unlawful activity is apparent, or

(b) the intermediary service provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information."

Regulation 15 provides:-
"A provision of Regulation 16, 17 or 18 providing that a relevant service provider shall not be liable for a particular act shall be construed as a provision to the effect that the provider shall not -

(a) be liable in damages or, unless otherwise provided, be liable to be the subject of an order providing for any other form of relief, for infringing, by reason of that act, the legal rights of any natural or legal person or, by reason of that act, for breaching any duty, or

(b) be liable to be subject to any proceedings (whether civil or criminal) by reason of that act constituting a contravention of any enactment or an infringement of any rule of law."

Regulation 3(1) does not define "intermediary service provider", but defines "relevant service provider" as "any natural or legal person providing a relevant service" and provides:-

"'relevant service' means an information society service within the meaning of Article 1.2 of Directive 98/34/EC, as amended by Directive 98/48/EC, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of the service, other than a service specified in Schedule 1 to these Regulations."

Article 1(5)(d) of the e-commerce directive exempts "gambling activities" from coming within the scope of the directive. The corresponding provision in the Regulations of 2003, reg. 2(f), exempts "activities to which the Betting Act 1931, the Gaming and Lotteries Acts 1956 to 1979 or the National Lottery Act 1986 applies or apply".

The plaintiffs brought proceedings against the defendant claiming damages for libel arising out of comments posted on the chat room of the defendant's betting exchange website by registered customers of the defendant. The defendant pleaded, inter alia , that it was an "intermediary service provider" providing "a relevant service consisting of the storage of information provided by a recipient of the service", within the meaning of reg. 18(1) of the Regulations of 2003 and it sought to rely on the exclusion of liability provided by that provision. The plaintiffs replied that the defendant's business was a gambling activity and that it was thus not entitled to rely on the e-commerce directive or the Regulations of 2003.
The High Court (Herbert J.) directed that the following preliminary issues be tried:-

1. Did the defendant, in the provision of the chat room on its website, fall within the scope of the e-commerce directive and the Regulations of 2003?
2. Was the defendant an "intermediary service provider", within the meaning of reg. 18(1)?
3. Did the provision by the defendant of the chat room on its website constitute the provision of "a relevant service consisting of the storage of information provided by a recipient of the service", within the meaning of reg. 18(1)?

Held by the High Court (Clarke J.), in answering the questions posed in the positive, 1, that the focus of the gambling exclusion, in both the e-commerce directive and the Regulations of 2003, was centred on the relevant activity, rather than what might be said to be the general business of the person engaged in the activity concerned. The relevant activity in the instant case was not gambling, in any sense of the word, but rather the provision of a chat room which had no direct connectivity with the betting section of the website.

2. That an "intermediary service provider", as referred to in reg. 18(1), fell within the definition of a "relevant service provider", as it provided an "information society service".

3. That the service provided by the defendant, through its chat room, clearly fell within the meaning of "relevant service", as it involved the hosting of information provided by a recipient of the service and available to other users of the service. It followed that the defendant, in providing this service, was a "relevant service provider" and so an "intermediary service provider", within the meaning of the Regulations of 2003.

Quaere : whether the activities of a betting exchange were caught by the gambling exclusion in the legislation.

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Hamberagen v Koppens

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Calling somebody a "Dutch bastard" was held to be mere vulgar abuse and not to be taken as a serious comment questioning the plaintiff's parentage.

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Section 14 of the 2009 Act

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Section 14 of the 2009 Act provides that the court may give a ruling:

(a) as to whether the statement in respect of which the action was brought is reasonably capable of bearing, the imputation pleaded by the plaintiff, and

(b) (where the court rules that that statement is reasonably capable of bearing that imputation) as to whether that imputation is reasonably capable of bearing a defamatory meaning, upon an application being made to it in that behalf.

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The False Innuendo

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This occurs where the individual can "read between the lines" of the statement and garner another meaning which may be defamatory. For example, to state that a bank employee "is no longer authorized to handle cash" could be defamatory as the ordinary reader might believe from that statement that the employee is in some way dishonest.

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Campbell v Irish Press Ltd.

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The plaintiff was in the business of providing snooker equipment. He organized an exhibition featuring a famous snooker player. A review of the
exhibition was written by the defendants which stated that the snooker player failed to reach a century break because "the table told lies" i.e. the table was unfit for play. The plaintiff alleged that this comment implied that he was inept at organizing such competitions and was
therefore professionally incompetent. The court accepted that the words amounted to an innuendo which was defamatory of the plaintiff.

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The True Innuendo

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This is a statement made which, although innocent on its face, may be defamatory when read in light of certain extrinsic facts. For example, to say that "Jane Doe is pregnant" does not appear on its face to be defamatory. However, if Jane Doe happens to be a nun, then in light of those extrinsic facts, the statement will be defamatory if untrue.

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Cassidy v Daily Mirror Newspaper Ltd

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A photograph of Mr Cassidy accompanied by a woman was published by the defendants. It included the caption "Mr Cassidy who recently got engaged to Miss X." This was defamatory to Mrs Cassidy who was not in the photograph. She argued that it implied that she was not married to Mr Cassidy at all and that
she was living immorally with him.

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Tolley v Fry & Sons Ltd

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A cartoon featured the plaintiff a well-known amateur golfer. In the cartoon he was seen to be promoting Fry's chocolate. The plaintiff claimed that the cartoon was defamatory as it implied that he was prostituting his amateur status by accepting money to promote the defendant's product.

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Hill v Cork Examiner

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An implication in a photograph and headline that the plaintiff had been imprisoned for sexual offences, rather than causing bodily harm, was found to be defamatory.

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Charleston v News Group Newspapers Ltd.

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The plaintiffs were actors who played Harold and Madge in the TV soap, Neighbours. The plaintiffs brought an action in defamation against the defendant because of the publication of an
article which contained the headline "Strewth! What's Harold up to with our Madge?"

Beneath the article was a photograph of two naked people engaged in explicit sexual activity. There was also a smaller photograph in a similar vein with the plaintiff's heads superimposed on the bodies of porn actors. The article went on to refer to a pornographic computer game which superimposed the actors heads onto the bodies of actors without their consent. The article taken as a whole was found not to be defamatory of the plaintiffs.

The House of Lords found that one cannot take isolated parts of a story (such as the headline) without considering the full context. The test to be applied as to the meaning of the publication would
include:

The meaning, including an inferential meaning, which the word would convey to the mind of the ordinary, reasonable, fair-minded reader.

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McGarth v Independent Newspapers

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In that case, the defendant published a photograph of the plaintiff, a CIE worker, by way of a correction of an early publication error, with a caption entitled "businessman ... who borrowed to invest _9,600 in Eircom shares, not _50,000 as reported".

The photograph appeared under the headline of an entirely unrelated article headlined "Big Business linked to Family of Terrorist." That story dealt with the links between Osama bin Laden and companies. The plaintiff argued that the implication was that he was linked to terrorism. Gilligan J accepted the "bane and antidote" test and found that the ordinary reader must consider:

The headline, the article, the accompanying photograph and the caption underneath the photograph have to be considered in totality as published and that further the correct criterion to be applied is the meaning which the title, the article, the accompanying photograph and the caption underneath would convey to the mind of the ordinary reasonable fair minded reader.

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The 'Bane and Antidote'

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Whether the words are defamatory will be examined in the context the words are written and the overall impression that is left on the public. In such situations the test of whether the publication is defamatory would depend on what the ordinary reasonable reader would believe having read in the article in its entirety having considered the caption accompanying the photograph. If after reading the entire piece, the ordinary reader would conclude that there was no connection between the piece and the plaintiff, then no action will lie.

This test - also known as 'the bane and antidote' test - was outlined by Alderson B in Chalmers v Payne, 21 as follows, "In one part of this publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and antidote must be taken together."

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Hickey -v- Sunday Newspapers (2011)

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The first plaintiff was the mother of the second plaintiff. The first plaintiff's relationship with the father of the second plaintiff was the subject of widespread publicity due to his marriage to a well known entertainer. In September, 2005 the first plaintiff gave an interview to a national newspaper in which she gave details of the impending birth of the second plaintiff in an attempt to control media speculation. In February, 2006, the wife of the father of the second plaintiff left a voice message on his telephone containing a torrent of abuse, which message subsequently circulated on the internet. In May, 2006, the first plaintiff, her partner and the second plaintiff were photographed in public leaving the Registry of Births, Deaths and Marriages. A photograph appeared in an issue of the defendant newspaper, together with an article in which the second defendant was referred to as a "love child" and containing excerpts from the circulated voice message and including a reference to the first plaintiff as a "whore". The plaintiffs instituted proceedings seeking damages for breach of privacy, and, in respect of the first plaintiff, defamation.

Held by the High Court (Kearns P.), in dismissing the claim, 1, that restricting freedom of expression for privacy considerations required circumstances which could be clearly identified as the right of privacy had to be balanced with the right to freedom of expression.

2. That the performance of a function of public nature could not, in the absence of additional considerations, give rise to a legitimate expectation of privacy.

3. That the publication of photographs of the plaintiffs did not amount to a breach of their privacy due to the fact that the photographs were taken in a public place, nothing was disclosed that could not have been seen by any person then present, the publication did not expose the plaintiffs to any risk of physical harm from any person with ill intent, no campaign of surveillance on the plaintiffs had been established and the features of the infant second plaintiff were not recognisable.

4. That it was an important consideration that the first plaintiff had actively sought publicity from the press and media concerning her partnership and the impending birth of her child.

5. That the use of the word "whore", while capable of being defamatory, when taken in the context of the whole article, amounted to reported speech of vulgar abuse, and was not, therefore, defamatory.

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Knupffer v London Express Newspaper

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Where the plaintiff is not named, the test which decides whether the words used refer to him is the question whether the words used are such aw would reasonably lead persons acquainted with the plaintiff to believe that he was the person referred to.

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Sinclair v Gogarty

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The defendant in his book, made a defamatory reference regarding
"two jews on Sackville Street". It was held that an ordinary sensible person could reasonably identify the plaintiff from this statement.

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E. Hulton & Co. v Jones

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The defendant published what was intended to be a
fictional article regarding a one Artemus Jones which stated "There is Artemus Jones with a woman who is not his wife, who must be, you know - the other thing!" The 'real' Artemus Jones, a practicing barrister, brought an action for defamation. It was held that even though
the article was intended to be humorous, it was capable of affecting the reputation of the plaintiff and therefore was defamatory. Evidence was accepted that a number of friends and acquaintances of the plaintiff had read the article and had taken it as referring to the plaintiff.

The court slated:

A man in good faith may publish a libel believing it to be true, and it may be found by the jury that he acted in good faith believing it to be true, and it may be found by the jury that he acted in good faith believing it to be true, and reasonably believing it to be true, but that in fact the statement was false. Under those circumstances he has no defence to the action, however excellent his intention.

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Newstead v London Express Newspaper

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A reference was made to "the bigamist Harold Newstead of Camberwell". There were two Harold Newsteads in Camberwell, one of whom was not a bigamist. The publication was defamatory of the innocent Harold Newstead with the court noting that "the risk of coincidence has to be borne by the publisher in whose hands the control of accuracy lay."

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Fullam v Associated Newspapers Ltd

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A crowd jeering a footballer following an article which was less than complimentary of his skills, was held to be good evidence that the plaintiff had been identified in the offending article.

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Reference to a class

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Section 10 of the 2009 Act provides that where a person publishes a defamatory statement about a member of a class of persons that member will have a cause of action in defamation if:

(a) by reason of the number of persons who are members of that class, or
(b) by virtue of the circumstances in which the statement is published, The statement could
reasonably be understood to refer, in particular, to the member concerned.
Thus, whether a member of a class of persons can bring an action for defamation will
depend on the size of the class, the generality of the statement made etc.

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Le Fanu v Malcolmsan

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An article about the cruelties performed by Irish factory owners was not defamatory as it was too general. However, the article proffered further information and also mentioned Waterford city as a location. This additional information was sufficient to allow the plaintiff to ground an action.

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Knupffer v London Express Newspaper Ltd

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A magazine referred to a group of journalists covering criminal trials at the Old Bailey as "beer sodden hacks". The journalists succeeded
in their action for defamation. The group was sufficiently identifiable.

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Section 15 of the 2009 Act - Defences

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Section 15 of the 2009 Act provides that any defence immediately before the commencement of the Act that could have been pleaded as a defence in an action for libel or slander is abolished and replaced by the defences listed below. Essentially, the common law defences
were put on a statutory footing, expanded and added to. The defences which now exist are:

(1) Truth
(2) Absolute Privilege
(3) Qualified Privilege
(4) Honest Opinion
( 5) Fair and Reasonable Publication on a Matter of Public Interest
(6) Offer of Amends
(7) Apology
(8) Consent
(9) Innocent Publication