The law on defamation in Ireland

You can take legal action against a person or corporation who makes a ‘defamatory statement’ to another person.

A defamatory statement is a statement that reasonable members of society would think damages your reputation. A statement is not defamatory if it is true or substantially true.

Since the Defamation Act 2009, ‘defamation’ has replaced both ‘slander’ and ‘libel’.

To take a case for defamation, you must show that the statement you are complaining about was ‘published’ to at least one other person. The ‘one other person’ cannot only be the person who is taking the complaint.

‘Published’ includes any type of communication, for example:

• Conversation with another person
• Comments made on social media
• Newspaper articles
• Blog posts
• Speeches

The ‘defamatory statement’ must also be something that a reasonable person would think injures your reputation.

The person or organisation that made the statement can defend their actions as described below.

The Defamation Act 2009 sets out defences and privileges against a legal action for defamation.

The statement is true

A statement is not defamatory if it is true or substantially true. The onus of proving that the statement is true rests on the person defending the action (the person who made the statement).

Even if the statement is untrue, it is only defamatory if it damages the reputation of the person making the complaint.

Absolute privilege

Some statements, when made in an official capacity or as part of a testimony, have the protection of absolute privilege. This means that the person making the statement is protected from a claim of defamation. Examples of absolute privilege include statements made:

• By a TD in the Dáil or a Senator in the Seanad
• By an MEP in the European Parliament
• By a judge in the performance of their duties
• By another person in a court as part of a court proceeding (for example, solicitors or parties to a legal claim)
• As part of an Oireachtas Committee
• In a tribunal of inquiry or commission of investigation

Qualified privilege

Certain statements may be privileged, but can lose the privilege if the statement was made maliciously, or if the person later refuses to correct an inaccuracy.

This includes statements made by you to:

• A person who had a duty or interest in receiving the statement or
• A person who you reasonably believed had a duty or interest in receiving the statement

and

• Where you had a duty or interest in making the statement to the person or persons.

For example, if you believed that your work colleague was not following health and safety requirements and causing some risk or danger, and you reported this to your employer’s health and safety officer, the report may be privileged. This is only if you honestly believed that what you told the health and safety officer was true.

A common form of qualified privilege is fair and accurate reporting of court proceedings and court decisions.

Honest opinion

The defence of ‘honest opinion’ may apply where you give your opinion and all of these conditions are met:

• The opinion is honestly held
• The opinion is based on allegations of facts that are set out with the statement or known to the person complaining of defamation (or that they could reasonably be expected to have known), or based on allegations of fact that are privileged (for example, based on the judgment of a court)
• The matter is of public interest

The opinion is ‘honestly held’ if the person making the statement believed the truth of the allegation at the time of making the statement. The person who offers the defence must prove that the opinion was honestly held.

If the publisher is sued (for example, the newspaper that published a columnist’s opinion), the publisher must prove that they believed that the opinion was honestly held.

Defamatory statements relating to a person’s private life will generally not apply as it is unlikely to be of “public interest”.

Fair and reasonable publication

A statement made in good faith and about something that is in the public interest may not be defamatory. The court will consider:

• The seriousness of the allegations
• How much the statement was about the performance of a person’s public duties
• If the statement made it clear that when it was discussing allegations or suspicions, rather than facts
• If there were exceptional circumstances that made it necessary to publish the statement
• If the person who was the subject of the statement was given the opportunity to give their side of events

Innocent publication

Innocent publication may apply where a person is not responsible for the statement or the publication of the statement, but contributed to distributing the statement in some way.

For example, a company that prints newspapers, or delivers newspapers to shops is not responsible for the content of the newspapers and would not usually be liable for defamation because of a statement carried by a newspaper they are printing or distributing.

This defence has also been used by social media companies for defamatory posts made on their platforms.

The Defamation Act 2009 does not have any laws that are particularly aimed at social media posts and social media companies, including messaging platforms.

If you post an allegation or an opinion about a person (or a corporation) on a social media platform, that person or corporation could accuse you of defamation.

If you post anonymously, you may still face court action. The subject of the post can apply to the High Court for an order to compel the platform to release information about the owner of the profile that made the post. This is known as a Norwich Pharmacal Order. It is named after one of the cases in which it was first made.

The Government has announced that it will draft new legislation to update the Defamation Act 2009, including provisions for social media companies and posts.

If you believe that a defamatory statement has been made about you that damages your reputation, you can take a complaint to court. Defamation hearings in the High Court are sometimes held with a jury. You must generally make a claim within one year of the defamatory statement being issued.

You can apply for an injunction to prevent a defamatory statement from being published, or to have a defamatory statement removed (from a website for example). An injunction is an order of the court that compels a person or body to either do something or refrain from doing something.

Before taking a complaint to court, you should get legal advice. There are other options available including:

• Making a complaint to the organisation that published the statement
• Making a complaint to the Press Council or the Broadcasting Authority of Ireland for corporations that are regulated by those organisations

The Press Council and the Broadcasting Authority of Ireland cannot investigate complaints where legal action has already commenced.

A complaint for defamation may be resolved in a number of ways.

An Apology

The maker of the defamatory statement may simply apologise. This may reduce any damages payable to the complainant if legal proceedings are pursued and successful.

An Offer of Amends

The maker of a defamatory statement may make an “offer of amends” in writing to the person who is alleged to have been defamed. That offer of amends will include an offer to make a suitable correction and a sufficient apology. The correction and apology will be published in an appropriate place. The offer of amends may also include an offer to pay compensation or damages.

If an appropriate offer of amends is not accepted, it can be used in some cases as a defence to any later legal proceedings.

Correction Order

A court can issue a Correction Order, which orders the person who made the statement to publish a correction of the defamatory statement.

Injunction

The Court can issue an order that prohibits the publication of a defamatory statement.

Damages

The amount of damages that may be awarded depend on a number of factors, including the seriousness of the damage to the person’s reputation. If the complaint is heard in the High Court and there is a jury, the jury decides the amount of damages that should be awarded. If it is in the Circuit Court or the High Court (and there is no jury), the judge makes the decision.

The judge (or jury) should consider the actions of the person who made the statement since the publication of the defamatory statement. This could include if a correction or apology was issued.

For further information, you should get legal advice.