Well, in the Rules of the Superior Courts, after Order 1 which defines an originating summons, a plenary summons and a summary summons, Order 1B refers to the Defamation Act 2009 and SI 511 of 2009. I presume the Rules: Order 1B is the contents of the Statutory Instrument.
The Defamation Act 2009 rationalised the caselaw to date in some respects. The terms ‘libel’ and ‘slander’ are replaced with the word ‘defamation’. A “defamatory statement” means a statement that tends to injure a person’s reputation in the eyes of reasonable members of society. The legislation also refers to the meaning of the statement as an ‘imputation’. A negative review of bad work would presumably tend to injure a person’s reputation (if they had a reputation beforehand and it was good, so capable of being further damaged) so would be “actionable”, but then there are defences (below). So a true statement can be defamatory. It is actionable without proof of special damages. For any pleadings containing allegations of facts, the allegations need to be supported by an affidavit within 2 months of the pleadings. It is not clear to me whether merely commencing an action is a pleading in the case but allegations of fact are generally in the Statement of Claim. A company can bring a claim “whether or not it has incurred or is likely to incur financial loss”, however I understand it needs to prove substantial damage to its reputation. Whereas in the past, a reputation could be by word of mouth or advertisements and articles in the broadsheets, a company or business person should probably have an online presence to prove it has a reputation. It should also be a good reputation, as say a person associated with illegality would struggle to prove they have a reputation to damage.
Defence of truth – it is for the defendant to prove that the statement in respect of which the action was brought is true in all material respects. But “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”.
There are defences of absolute or qualified privilege. As a gross generalisation, the former seems to relate to the circumstances, such as the forum, whereas the latter seems to relate more to the relationship between the parties. For the purpose of this explanation, I am ignoring the more specialised area of privilege (absolute or qualified).
Defence of honest opinion: in the case of a statement consisting of an opinion, it is for the defendant to prove that the opinion was ‘honestly held’. The allegations of fact on which the opinion is based should be stated, and its publication should be in the public interest. It seems to be saying: keep your opinions to yourself unless knowing them is in the public interest and you state what your opinions are based on, and you honestly have believe what you are saying. In relation to the underlying allegations of fact (in the case of an opinion), do they need to be true? given that you only report them as your opinion. By definition in the legislation, for the opinion to be ‘honestly held’, (a), (b) and (c) of section 20(1) of the 2009 Act need to be true. (a) is obviously, you need to believe the opinion is true. (b) is that the underlying allegations (on which the opinion was based) are stated or referred to in the statement of opinion. (Eg I imagine: “John has put on a lot of weight. In my opinion, he has been eating too much.”) (c) however, requires that the matter is of public interest. I imagine in many circumstances it would not be a matter of public interest to comment on an individual’s weight; whereas, in some it might be eg if the person were holding themselves out as a paragon of sensible eating. It would then also be a question as to whether such a trivial observation were defamatory, eg in the case where the person was not relying on a reputation. Is an opinion like that not just a statement of the odds of something being true? If you said: “I think it’s likely he has been overeating, but there could be other explanations.” that would be safer. In the case of a workman going round Ireland holding out that they would do a good job, it would surely be in the public interest to give an honestly held opinion based on stated underlying facts. But what if the underlying facts are not true? Section 20(3)(b) specifies that the defence of honest opinion will fail if the underlying facts are not true. So what the legislation is catching as non-defensible defamation by opinion is, even if your underlying facts are correct, if your opinion is not honestly held etc (eg “John looks fat (true). In my opinion, he has been eating too much” (dishonest opinion, in fact, I know he has a medical condition.)) Or if your opinion is honestly held, but your underlying facts are incorrect (Eg “John has put on weight since last year (false), he must be eating too much” (incorrect underlying fact, even if the opinion is honestly held.)) Is an opinion safer than a statement of fact? If the opinion is honestly held, even if it points to something that is not true, if the underlying facts are true, then the statement of opinion is OK, subject to you including in your statement of opinion those underlying true facts. (Eg “John has put on weight since last year” (true) “I honestly believe that he is eating too much” (false) is OK, if it is in the public interest and even if not if it does not damage John’s reputation as per the basic definition of defamatory statement above.) (I am not saying that it would not damage a person’s reputation, especially in the times we live in, but also say it might be more so for a sensitive teenager where the peer group becomes the relevant ‘reasonable members of society’. I wonder does that group change depending on the circumstances or is it always a judicious selection? I would guess it does change with the circumstances, or at least includes reasonable members of the likely audience. Probably the safest thing is to add the word ‘allegedly’, then it’s not your opinion, and the only fact you are referring to is the fact that other people have said something (assuming this is true).
Section 26 provides for “Fair and reasonable publication on a matter of public interest” as a public interest defence. So you publish a defamatory (reputationally damaging) statement but it’s in the public interest. This is aimed to include the Press and investigative reporting, and the publication of things that there is evidence for but the truth of which may not be known. It seems to remove the requirement for honest opinion, because in the case of a professional journalist, it is not their opinion that counts, they are trying to report facts. And equally it removes the requirement for truth. The provision is circumscribed by several subsections requiring reasonable care and fairness, under the definition of whether it was “fair and reasonable to publish the statement concerned”. For instance: “(a) the extent to which the statement concerned refers to the performance by the person of his or her public functions;” – I don’t know whether public functions includes a person advertising to the general public to do work, which is then done by way of a private contract, or does it only include statutory public bodies employing the (defamed) person, but it is only one factor. The final point is “(j) the attempts made, and the means used, by the defendant to verify the assertions and allegations concerning the plaintiff in the statement.” So any correspondence would be relevant. A fuller understanding of this section requires reference to the code of standards of the Press Council. Quoted from Bing Co-Pilot [AI], but the legislation includes everyone in the standards, not just the Press, if they are relying on the public interest defence. It should be noted that the area of privacy (and confidentiality) is a specialised and very current area of law, separate from defamation:
- Press Council of Ireland:
- The Code of Practice for resolving complaints about the press sets the benchmark for professional and ethical standards in Ireland.
- Key principles include:
- Truth and Accuracy: The press must strive for truth and accuracy in reporting. Significant inaccuracies or misleading statements should be promptly corrected.
- Distinguishing Fact and Comment: Comment, conjecture, and unconfirmed reports should not be presented as facts.
- Fair Procedures and Honesty: The press should maintain fair procedures and honesty in gathering and publishing news.
- Respect for Rights: Everyone has constitutional protection for their good name, and the press should avoid malicious misrepresentation.
- Privacy: Privacy is a human right, and the press must respect it1.
