Categories
Defamation

High Court Awards €500 for Defamation in Luas Ticket Case

A defamation case involving a graduate of Maynooth University and the Luas service is an instructive one to take a look at when it comes to considering defamation law in Ireland.

The background to the case involved Mr Diop, a “coloured gentleman” according to the High Court, boarding the Luas transport service with a valid ticket. Two security guards boarded the tram and went to the plaintiff and his brother and demanded to see their tickets.

The plaintiff accused the security guards of “slightly racially profiling”.

One of the guards ordered the plaintiff and his brother to leave the tram; however, the other guard quickly told them to remain on the tram and the plaintiff and his brother travelled on to their destination. Mr Diop then attempted to submit a complaint but the Luas office was closed.

The plaintiff then brought defamation proceedings against the company operating the Luas on the basis that the demand to produce tickets, certain hand gestures by the security guards, and a verbal exchange in which the plaintiff was ordered to leave the carriage were defamatory because other passengers would have concluded that they did not have valid tickets or had acted in a way which would justify their removal from the Luas.

The security guards denied that they had engaged in racial profiling and asserted their right to demand production of tickets and denied that the plaintiff and his brother were singled out.

Findings of the High Court

The High Court reviewed the exchange between the parties and had the benefit of body cameras which recorded the exchange and CCTV. It noted a conflict of evidence between what the security guards related and the plaintiff’s version of events.

However, the Court must look at the entirety of the transaction and exchange between the parties to decide whether the plaintiff was defamed or not. In Griffin v Sunday Newspapers [2011] IEHC 331 it was held that

“Thus it follows that a plaintiff cannot select an isolated passage or sentence in an article and complain of that alone if other parts of the article throw a different light on that passage. The real test is whether the result of the whole is calculated to injure the plaintiff’s character.”

The Court decided in this case that asking for the production of the tickets was not, of itself, defamatory. It also held that the plaintiff had not acted in a manner that was obstructive or abusive to anyone. For this reason, there was no reason for one of the security guards to ask him to leave the Luas tram. He had a contractual right to stay, having purchased a ticket, provided he did not misbehave.

The Court held that one of the security guards had, by reason of his hand gestures and asking the plaintiff to step off the Luas, defamed the plaintiff.

Qualified privilege

The defendant in this case relied on the defence of qualified privilege. This is provided for under the Defamation Act 2009, section 18.

Qualified privilege arises commonly in two categories of situations:

  1. Where a person makes an accusation-for example of shoplifting-and this turns out to be wrong
  2. Where a person makes a complaint to another person about somebody, thinking that other person is the correct individual to make the complaint to, and that person is not the correct person to complain to

Section 18 of the Defamation Act provides, inter alia,

be a defence to a defamation action for the defendant to prove that—

(a) the statement was published to a person or persons who

(i) had a duty to receive, or interest in receiving, the information contained in the statement, or

(ii) the defendant believed upon reasonable grounds that the said person or persons had such a duty or interest, and

(b) the defendant had a corresponding duty to communicate, or interest in communicating, the information to such person or persons.

The Court decided that the initial action of asking for the tickets to be produced was entitled to the qualified privilege defence. However, once it was established the plaintiff had a valid ticket qualified privilege could not be relied upon.

The Court noted in this case that the instruction to leave the train by one security guard was countermanded quickly by the other guard; in fact, the plaintiff and his brother had not even stood up from their seats.

The court held, therefore, that there was a momentary breach of contract and defamation, but this was almost immediately expunged by the other guard saying that they could stay on the tram. For this reason, the award of damages was only a nominal sum as it would be unjustified and unwarranted to make a substantial award of damages, having regard to section 31 of the Defamation Act 2009.

The Plaintiff was awarded €500 in nominal damages to reflect the momentary, fleeting defamation.

The Court also held that the plaintiff and his brother were most impressive witnesses and were treated badly and unfairly. However, the Court held that this case was not about unfairness but purely about defamation.

You can read the entire case : Leon Diop and Transdev Dublin Light Rail & STT Risk Management Limited.

Categories
Consumer Rights Defamation

Defamatory or Illegal Content on Social Media Sites Can Be Removed Worldwide-ECJ Decision in Facebook Ireland Case

Do you think the social media sites do enough when it comes to the offensive material that is published on their platforms?

Do Facebook and Twitter, for example, act swiftly (or at all) to remove the hate speech and racist stuff that is on full view courtesy of various keyboard warriors hiding behind fake names and flags?

The Court of Justice of the European Union has just handed down an interesting decision in a case taken against Facebook Ireland. The case I am referring to is Eva Glawischnig-Piesczek v Facebook Ireland Limited Case C-18/18, Court of Justice of the European Union, with a decision delivered on 3 October 2019.

What the ECJ decided

The European Court of Justice has held that Facebook can be ordered by EU national courts to remove or block access to defamatory material-defamatory, that is, in the eyes of the national court of the EU member state.

There is a further significant outcome to this decision: a national court’s decision that material should be removed means it can be ordered to be removed in another country even if, in that other country, the material is not defamatory or illegal.

Eva Glawischnig-Piesczek v Facebook Ireland

Ms Glawsicnig-Piesczek is an Austrian politician who requested Facebook remove certain comments about her made by a user on Facebook. The Supreme Court in Austria referred the case to the European Court of Justice as it held the comments to be illegal and defamatory.

The consequences of the EU Court decision

  • Social media platforms can be ordered to remove or block access to identical information declared unlawful
  • They can be ordered to remove equivalent information deemed unlawful or defamatory
  • The decision applies on a worldwide basis-that is to say if it is deemed unlawful in Austria, for example, the comments cannot be published on Facebook UK or Facebook Ireland.

As a consequence of this decision the Supreme Court in Austria now has the power to decide on where and how the material is to be removed. This remains to be seen but the Austrian Supreme Court now has the authority to order Facebook to remove the comments on every Facebook platform worldwide and this was one of the questions referred by the Supreme Court in Austria.

Conclusion

This is good news for the user of the platform and gives an individual more power to ensure illegal or unlawful comments are not published anywhere and there is no getting around the order of a national court to remove illegal comments.

This is a significant increase in the power of the user of social media platforms and places far greater obligations on the social media companies such as Twitter, Facebook, Instagram, YouTube, etc.

You can read the entire judgment in Eva Glawischnig-Piesczek v Facebook Ireland Limited here.

Read the press release of the Court of Justice of the European Union the 3rd October 2019.

Categories
Defamation

Defamation Law in Ireland-What You Should Know

defamation law

Everyone is entitled to their good name and reputation. Our constitution, Bunreacht na hEireann, recognises this in article 40.3.2. And our statute books recognises this right, too.

For defamation is now a statutory tort-that is a civil wrong. It is defined in section 6, Defamation Act, 2009 as

2) The tort of defamation consists of the publication, by any means, of a defamatory statement concerning a person to one or more than one person (other than the first-mentioned person), and “ defamation ” shall be construed accordingly.

It is worth noting that defamation is now actionable per se, even in circumstances where there is no proof of special damage. Section 12 of the act also allows a body corporate to bring a defamation action.

Defamatory statement

A defamatory statement is defined in section 2, Defamation Act, 2009 as

“ 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;

 

This statement can be written or oral, therefore a false, oral accusation in a shop of, for example shoplifting or failing to pay for goods, can be defamatory.

Publication can also take place in the traditional written media such as newspapers and magazines but an increasing number of defamation actions are arising from social media websites such as Twitter, Facebook, etc.

We have all seen a raft of debates and exchanges on social media sites which have become extremely heated, often culminating in defamatory statements being published for the whole world to see.

Early in 2017 a Donegal couple were awarded €30,000 in a defamation action they brought against their neighbour arising from false, defamatory postings made by the neighbour on Facebook. The neighbour had admitted the wrongdoing and apologised to the couple.

Statute of Limitations

Section 38 of the act provides that you must bring your defamation action within one year, although this can be extended to two years in exceptional circumstances.

At its simplest defamation will occur where a defamatory statement is made to a third party.

A defamation action is

“defamation action” means—

(a) an action for damages for defamation, or

(b) an application for a declaratory order,

whether or not a claim for other relief under this Act is made

 

Section 8 of the act obliges the parties to a defamation action to swear a verifying affidavit, similar to an affidavit of verification in a personal injuries action, swearing as to the truth of pleadings and assertions or allegations of facts.

Defences to a defamation action

There are statutory defences to a defamation action as follows:

Section 22 provides a statutory offer to make amends and the effect of the offer to make amends is set out in section 23.

Section 24 provides for a statutory apology scheme which will mitigate a defendant’s damage. Such an apology is not an admission of liability and evidence of the apology is not admissible in any civil action as evidence of liability of the defendant.

Remedies for defamation

Section 28 of the Defamation Act, 2009 provides for a declaratory order from the Circuit Court. This order will state that the statement was defamatory of the applicant.

Damages are also a remedy, as set out in section 31 of the act and a correction order can be made by the Courts, pursuant to section 30, and a prohibitory order pursuant to section 33. Section 32 allows a Court to order the defendant to pay aggravated and punitive damages where (b) the defendant conducted his or her defence in a manner that aggravated the injury caused to the plaintiff’s reputation by the defamatory statement.

Section 29 allows a defendant to pay a sum of money into Court in satisfaction of the defamation action.

Constitutional right to good name

Article 40.3.2 of Bunreacht na hEireann states:

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.

A defamation action will also include a claim damages for breach of the Plaintiff’s constitutional right to maintain his/her good name.

Defamation proceedings

Defamation proceedings are commenced in the High Court by way of a Plenary Summons and Statement of Claim.

What to do if you think you have been defamed

If you think you have been defamed you should consider getting professional advice. It is easy, in the heat of an argument online, to form the view that you have been defamed but whether you have or not is something you should get professional advice on.

Your good name and reputation is a fundamental personal right recognised in the Irish Constitution and any defamatory remarks that go unchallenged may lead to significant damage to you in both a personal and business capacity.

Depending on the context of the defamatory remarks you may also have other causes of action against anyone who makes such remarks against you, for example breach of contract, negligence, breach of duty.