Defamation is one of the most serious dangers facing journalists and publishers today. Eighty per cent of all defamation actions are brought against the media - and a libel action can bankrupt a small newspaper or radio station.
Balance of rights
Journalists may feel that they should have the right to say whatever they like. After all, Article 40.6.1.i of the Irish Constitution says that the State guarantees the right of citizens to express freely their convictions and opinions. But the right of freedom of expression in Ireland is not absolute.
The Article goes on to say that, because of the importance of educating public opinion, the State will try to ensure that the organs of public opinion such as the radio and the press (it doesn't mention television) keep their right to liberty of expression, but they shall not be used to undermine public order, morality or the authority of the State.
The right of freedom of speech is also guaranteed by Article 10 (1) of the European Human Rights Convention, which provides that: "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas, without interference by public authority and regardless of frontiers."
But Article 10 (2) subjects this freedom to such restrictions "as are necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary".
Of course, the Irish Constitution does not only guarantee freedom to the media. It also guarantees to respect the personal rights of citizens. Article 40.3.2 of the Constitution says "the State shall, in particular, by its laws, protect as best it may from unjust attack (and, in the case of injustice done, vindicate) the life, person, good name and property rights of every citizen."
In the 1988 case of Kennedy v Hearne, the Irish High Court specifically acknowledged the role played by the law of defamation in vindicating a citizen's right to his good name.
What is defamation?
The traditional definition of defamation was publication of a false statement which subjected a person to hatred, ridicule or contempt. That rather archaic definition has given way to a more modern one: a defamatory statement is one which tends to lower the reputation of the subject in the eyes of right-thinking people. (That means that a person cannot sue for having his reputation lowered in the eyes of, for example, other members of his criminal gang!)
Defamation is divided into two forms: libel and slander. Historically, libel was the written form of defamation, while slander was the spoken form.
The advent of modern technology has made those definitions obsolete. Even though broadcasting is, in one way, a more transient medium than newspapers, the invention of tape and video recorders means that a false statement can now be preserved in the same way as a newspaper cutting. So today, a defamatory statement broadcast on radio or television or the Internet would be regarded as libellous, rather than slanderous.
The essential practical difference between libel and slander nowadays is that, in a slander action, the plaintiff (that is the person bringing the action) has to prove that the words caused him actual damage, financial or otherwise.
There are, however, exceptions to this rule. If a spoken statement suggests that a woman has been unchaste, or slanders a person in his profession or calling, or suggests that a person has a criminal record or contagious disease, no proof of actual damage is necessary.
Defamation is what is known as a "strict liability" offence, which means that the state of mind of the offender is irrelevant. No intention to defame is required.
Everyone involved in the publication of a defamatory statement is liable to be sued - including the journalist, sub-editor, editor or producer, owner and distributor! Repetition of a defamatory remark may give rise to a separate action - and the complainant may sue everybody who repeats the libel.
An actionable defamatory statement has three ingredients:
- it must be published,
- it must refer to the complainant and
- it must be false.
A defamatory statement is only actionable if it is published. In the 1840 case of Ahern v Maguire, Chief Baron Brady said that, if a letter "however slanderous, is received only by the person to whom it is addressed, and does not go beyond him, there is no publication of it in law to support an action for libel". (But a wrongly addressed letter containing defamatory remarks would be actionable if opened by someone other than the subject of the remarks.)
A person who is aware that a libellous report is about to be published may apply to the courts for an injunction to prevent publication. But in the case of National Irish Bank v Radio Telefis Eireann  2 IR 465, the Supreme Court said that, if the publisher made out a strong case for publication on a public interest basis, the court, in its discretion, should not grant the injunction, but leave the applicant to seek a remedy in damages.
In order to prove publication, it is only necessary to show that one person received the communication and that his opinion of the subject was lowered as a result. A jury may, however, take into account the extent of publication when considering damages.
A defamatory statement need not necessarily name anyone. It may suggest a person or persons by - for example - their profession, location or connections. A former garda commissioner was awarded £30,000 damages for the use of a graphic which featured his ears in a television programme on corruption! And a senior barrister settled a High Court action against Irish television for an undisclosed amount for using a graphic of her car in a story about drunk drivers.
If just one person gives credible evidence that he recognised the complainant by the description or image, that is enough to ground a defamation action.
Only a living person may sue for libel. Once a person dies, relatives or friends have no right to sue for civil defamation of the deceased. The widow of a Church of Ireland rector who was accused of connections with the IRA tried to get round this by suing the Phoenix magazine for criminal libel, but she was unsuccessful.
Defence of justification
Only a false statement is actionable. But defamation differs from other torts in that a statement will be presumed to be defamatory until proved otherwise. If a defendant wishes to plead justification as a defence, he has to prove the truth of the statement. It is not up to the complainant to prove that the original statement was false.
If the defendant can prove the substantial truth of the statement, that is an end of the matter. No matter how old the allegation or how obscure or how intrusive of a person's privacy, a complainant is not entitled to have his good name vindicated in relation to publication of a true statement.
Mistake is not a defence to an action for defamation, although it may have some effect on the amount of damages awarded. A false report which is published maliciously is likely to attract higher damages than an erroneous report published innocently - but damages for errors can still be high enough to put media organisations out of business.
In order to plead fair comment, the publisher must be able to show that
- the report was on a matter of public interest
- the statement was a comment, rather than a fact and
- the comment was fair, in that the belief was honestly held
It is a matter for the court to decide whether words are facts or comments. Often the distinction is so unclear that defence lawyers will rely on what is called a "rolled-up plea". That means they claim that, insofar as the words consist of facts, they are true; insofar as they consist of opinions, they are fair comment made without malice and in good faith on a matter of public interest.
The test of malice is subjective, but the court will allow evidence of the publisher's previous conduct, refusal to apologise or repetition of the defamatory matter.
If a statement is privileged, a potential plaintiff has no cause of action. There are two types of privilege: absolute privilege and qualified privilege. In the case of absolute privilege, the intentions of the publisher are irrelevant.
For example, a Dáil deputy or member of the Seanad may say what he wishes about a person within the confines of the chamber. No matter how scurrilous the allegation or how improper the motive for making it, he may not be sued for that statement. Similarly in a court of law, a judge may not be sued for anything he may say, and a barrister may make whatever allegations he pleases while on his feet, without fear of an action for defamation. (A lawyer who makes irrelevant, insulting and provocative statements may be guilty of contempt of court, but that is a different matter!)
A fair, accurate and contemporaneous media report of Oireachtas or court proceedings is also absolutely privileged, even if the reporter is motivated by malice. Clearly this exception is aimed at allowing free speech for members of the judicial and legislative arms of government, and for accurate reports of their views.
Qualified privilege attaches to communications where the informant has a legal, moral or social duty to communicate the information and the recipient has a similar duty to receive it. For example, a person may write to an employer making allegations of dishonesty or incompetence against an employee. If the allegations are made in good faith, even if they are factually wrong, the communication is not actionable. This privilege is defeated by proof of malice.
The Defamation Act also provides qualified privilege for reports of the proceedings of certain foreign organisations (such as the European Court), copies of entries in public registers and notices, without the necessity to correct or explain such reports.
Qualified privilege is also granted for reports of certain public meetings, organisations and bodies (such as local authorities and tribunals) "subject to explanation or contradiction". In these cases, the publisher will lose the privilege if he fails to amend or clarify an erroneous statement.
The Law Reform Commission recommended that a publisher should be allowed to plead in his defence that he had "exercised reasonable care prior to publication in attempting to ascertain the truth of the allegation". But so far, this proposal is not part of Irish law, and the defence of reasonable care will not be enough to prevent an action for defamation (although it may mitigate damages.)
Publication of a full apology may be pleaded to limit a jury's award of damages. Unfortunately, an apology may also be seen as an admission of liability, which means that the publisher cannot subsequently plead justification or fair comment.
Occasionally an apology published by a media organisation may reflect adversely on the skill and ability of the journalist who wrote or broadcast the article in question. In the 1938 case of Willis v Irish Press, a journalist sued his employer for publishing what he claimed was an unwarranted apology. The Supreme Court ruled that publication of the apology was privileged, as it was a matter of self-defence for the newspaper. The rationale of that decision, coming at about the time of the introduction of the Constitution, might well be considered dubious today.
In the case of unintentional defamation, the 1961 Act permits an offer of amends in limited circumstances. If the offer of clarification is accepted by the complainant and is carried out by the publisher, the complainant will not subsequently be able to sue the publisher for the defamatory statement. The conditions for offering and accepting a clarification are set out in the Act.
Damages in a defamation case may be high enough to put a media organisation out of business - even before considering the matter of legal costs. Because of the high risk of defending a defamation action, the unpredictability of juries and the heavy legal costs of a hearing, the majority of libel cases are settled before coming to court.
A defendant who loses a defamation action is likely to have to meet the legal bill of both sides. He may limit his exposure to costs by lodging money in court in an offer of settlement. Formerly, a defendant who lodged money in Court could only do so if he admitted liability for the entire claim, but following the decision of Mr Justice Kelly in Norbrook Laboratories v SmithKline Beecham  2 IR 192, a defendant may now lodge money in respect of specified allegations and maintain his defence in relation to the remainder of the claim.
A publisher who denies liability must therefore take the risk of losing a case after it has been running in court for some days - or even weeks - with the attendant enormous legal bill. The highest award ever given by an Irish court in defamation damages was £300,000 to former Democratic Left leader Proinsias de Rossa for allegations that he approved of anti-semitism. (Legal costs were extra - a lot extra!)
If a publisher pleads justification (that an alleged fact is substantially true) and this turns out not to be the case, the jury may award aggravated damages as a punishment for the additional harm done to the complainant's reputation. For example, when Elton John sued the Sunday Mirror in 1993, he was awarded £75,000 in ordinary damages, but almost four times that amount in punitive damages. (This was reduced to a total of £75,000 on appeal.)
If a jury finds that a complainant has been libeled, the jurors must award at least nominal damages. Traditionally, this was a farthing. In the 1955 case of Campbell v Irish Press, concerning a review of a snooker exhibition which claimed "the table told lies", the jury awarded no damages, but the Supreme Court substituted an award of £1. In the action taken by the former Irish Taoiseach (prime minister) Albert Reynolds against the Sunday Times, it was just one penny. And in the April 2001 case of Irish parliamentarian Beverley Cooper-Flynn against state broadcaster RTE, the jury found that RTE had not proved its case, but other evidence showed that the plaintiff's character had not been damaged. She was awarded no damages and ordered to pay a legal bill estimated at £2 million.