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  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.
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:
- Where a person makes an accusation-for example of shoplifting-and this turns out to be wrong
- 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.