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.

The High Court Affidavit of Verification In Personal Injury and Defamation Actions

affidavit of verification

An affidavit of verification is required in the High Court to verify assertions or facts alleged in personal injury actions and defamation proceedings. It is to verify a pleading or replies to a request for further information and is required pursuant to section 14 of the Civil Liability and Courts Act, 2004 in personal injury actions, and pursuant to section 8 of Defamation Act, 2009.

A copy is served on the party who is being served with the pleading or replies to further information.

(4) An affidavit under this section shall be lodged in court not later than—

(a) 21 days after the service of the pleading concerned or such longer period as the court may direct or the parties may agree, or

(b) in the case of a requirement to which subsection (8)(b) applies, 7 days before the date fixed for the trial of the personal injuries action concerned. (Section 14 Civil Liability and Courts Act 2004).

The form it should take is as follows:

AFFIDAVIT OF VERIFICATION

O. 1A, r. 10

THE HIGH COURT

20…. No……
Between A.B., …………….. Plaintiff,

and C.D., …………. Defendant.

I, AB, ……………….. of …………………. , the (plaintiff, defendant or state other capacity or authority) in the above-entitled proceedings, aged eighteen years and upwards MAKE OATH and say as follows:

1. I beg to refer to the contents of the (personal injuries summons, defence, reply, further information etc. – as the case may be) delivered herein on behalf of the (plaintiff/ defendant) on the ….. day of ………….. 20 …. *[upon which this affidavit is endorsed] *[and upon a true copy of which marked “A” I have signed my name prior to the swearing hereof].

2. The assertions, allegations and information contained in the said (personal injuries summons, etc.) which are within my own knowledge are true. I honestly believe that the assertions, allegations and information contained in the said (personal injuries summons, etc.) which are not within my own knowledge are true.

3. I am aware that it is an offence to make a statement in this affidavit that is false or misleading in any material respect and that I know to be false or misleading.

SWORN etc

It is an offence to make a statement in an affidavit that is false or misleading and you can be fined up to €100,000 and/or imprisoned for up to 10 years, pursuant to section 29 of the Civil Liability and Courts Act, 2004.

Defamation Law in Ireland-the Facts You Should Know

defamation law ireland

In 2010 Donal Kinsella, a businessman, was awarded €10 m in the High Court in a defamation action against his employer. Kenmare Resources.

We all have a constitutional right to our good name, and protection against defamatory statements being published about us.

The principal piece of legislation in Ireland dealing with defamation is the Defamation Act, 2009.

This act defines a defamatory statement as follows:

“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;

Statement includes

  1. Made orally or in writing
  2. visual images, sounds, gestures and any other method of signifying meaning
  3. a statement—

    (i) broadcast on the radio or television, or

    (ii) published on the internet, and
  4. an electronic communication

What is defamation?

Section 6 of the Defamation Act, 2009 sets out the tort of defamation, and it replaces the torts of slander and libel:

6.— (1) The tort of libel and the tort of slander—

(a) shall cease to be so described, and

(b) shall, instead, be collectively described, and are referred to in this Act, as the “ tort of defamation ”.

(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.

(3) A defamatory statement concerns a person if it could reasonably be understood as referring to him or her.

(4) There shall be no publication for the purposes of the tort of defamation if the defamatory statement concerned is published to the person to whom it relates and to a person other than the person to whom it relates in circumstances where—

(a) it was not intended that the statement would be published to the second-mentioned person, and

(b) it was not reasonably foreseeable that publication of the statement to the first-mentioned person would result in its being published to the second-mentioned person.

(5) The tort of defamation is actionable without proof of special damage.

You will see from the above that in order to win a case for defamation you will need to prove:

  1. The publication of a defamatory statement
  2. The statement is about you, or you can be identified from it
  3. It must be published to a third person, not just to the person to whom it relates (you).

Section 12 provides for defamation of a company, not just a natural person:

12.— The provisions of this Act apply to a body corporate as they apply to a natural person, and a body corporate may bring a defamation action under this Act in respect of a statement concerning it that it claims is defamatory whether or not it has incurred or is likely to incur financial loss as a result of the publication of that statement.

Defences to defamation actions

Part 3 of the Defamation Act, 2009 sets out certain statutory defences:

Remedies for defamation

The remedies are set out in part 4 of the Defamation Act, 2009 and include

  1. A declaratory order
  2. Damages
  3. Correction order
  4. Lodgment of money in settlement of action
  5. An order prohibiting publication of the defamatory statement.

A defamation action cannot be brought after a period of one year from when the cause of action arose, or, only if the Court allows in the interests of justice, two years.

This action cannot be brought in the District Court, though.

Conclusion

Nowadays the opportunity for publication of defamatory remarks has increased exponentially, thanks to social media platforms such as Twitter, Facebook, LinkedIn etc. When discussions online get heated or topics, such as water charges or pylon erection, raise passions it is easy to trade insults and make statements that could prove very expensive.

Just as traditional media such as newspapers, magazines, tv, radio needed to be careful about what was published individuals nowadays can be virtual publishers and get into deep trouble.

Making defamatory remarks on Facebook or Twitter or YouTube is just the same as a newspaper or magazine publishing defamatory material.

And the Defamation Act, 2009 makes it clear as a bell how such causes of action can be pursued, the defences, and the remedies for the injured party.

Time Limits in Civil Litigation and the Statute of Limitations

time-limit-civil-litigation

The time limits within which you can bring a civil action in Ireland are set out in the Statute of Limitations, 1957, as amended by the Statute of Limitations (Amendment) Acts, 1991 and 2000.

However, other limitation periods are set out in the Civil Liability Act, 1961, the Liability for Defective Products Act 1991 and the Civil Liability and Courts Act 2004.

If an action is not commenced within the limitation period, it will become statute barred and the defendant will have a good defence to the claim.

In general, when calculating the time period, it commences on the date that the cause of action occurred. However, there are exceptions eg if the plaintiff is under a disability, where the defendant is deceased, where claims have to be submitted to the Injuries Board in the first instance and in certain personal injury actions where the plaintiff only discovers at a later date that they have a cause of action.

Actions in Tort

A tort is a civil wrong. Generally, the limitation period for bringing such an action is 6 years.

However some torts such as negligence, nuisance or breach of duty and involving personal injury or an action for slander have different limitation periods.

Actions for Personal Injury Based on Negligence, Nuisance or Breach of Duty

Actions in this category must be brought within 2 years of

a)      The date on which the cause of action accrued or

b)      The date on which the Plaintiff first had knowledge of the injury, that the injury was significant, and the identity of the defendant.

When the plaintiff had the requisite knowledge as defined in section 2 of the Statue of Limitations (Amendment) Act 1991:

2.(1) For the purposes of any provision of this Act whereby the time within which an action in respect of an injury may be brought depends on a person’s date of knowledge (whether he is the person injured or a personal representative or dependant of the person injured) references to that person’s date of knowledge are references to the date on which he first had knowledge of the following facts:
(a) that the person alleged to have been injured had been injured,
(b) that the injury in question was significant,
(c) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty,
(d) the identity of the defendant, and
(e) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;
and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.
(2) For the purposes of this section, a person’s knowledge includes knowledge which he might reasonably have been expected to acquire—
(a) from facts observable or ascertainable by him, or
(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek.
(3) Notwithstanding subsection (2) of this section—
(a) a person shall not be fixed under this section with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice; and
(b) a person injured shall not be fixed under this section with knowledge of a fact relevant to the injury which he has failed to acquire as a result of that injury.

Fatal Injury Actions

Actions for fatal injury claims must be brought within 2 years of the date of death.

Assault

An action for trespass to the person or assault and battery must be brought within 6 years of the accrual of the cause of action.

Defamation

An action for defamation (including libel and slander) can be brought within one year as set out in the Defamation Act, 2009. There is a possibility of having this extended to two years on application to Court.

Contract

Actions founded on contract or quasi-contract must be brought within 6 years of the breach of contract

1.1 Debts

Actions for the recovery of debts (liquidated sums) are based on contract and actions can be brought within 6 years of when the sum became due.

However, this can be changed if the debtor acknowledges the debt after it becomes due or he makes a part payment. The right of action in these circumstances will be deemed to have accrued on the date of acknowledgement of the debt or on the date of part payment.

This applies regardless of whether the statutory period has expired or not.

1.2 Defective Motor Vehicles

Claims for defective motor vehicles must be brought within 2 years of the date on which the cause of action accrued.

Defective Products

Actions for defective products must be brought within 3 years of either

a)      The date of accrual of the cause of action or

b)      The date on which you had knowledge of the defect, damage, and producer of the product.

Recovery of Land

Actions for the recovery of land must be brought within 12 years from the accrual of the right of action.

Actions against the Estate of a Deceased Person

These must be brought within 2 years of the death of the deceased person unless the proceedings were commenced within the relevant statutory period and were pending at the date of death.

When does time begin to run?

The limitation period begins to run from the date of accrual of the cause of action.

Extension of the Limitation Period

Calculating the limitation period can be altered in certain limited circumstances eg

  • Fraud of the defendant-time begins to run when the fraud is discovered or when it could have been discovered with reasonable diligence
  • Mistake
  • Where the plaintiff is under a disability.

A person is under a disability according to the Statute of Limitations, 1957 when they are

1)      A minor

2)      A person of unsound mind

3)      A convict subject to the Forfeiture Act, 1870.

This definition was expanded by the Statute of Limitations (Amendment) Act 2000 to cover victims of sexual abuse.

A person under a disability can bring an action within the prescribed period of ceasing to be under the disability.

Personal Injury Assessment Board Act, 2003

A claim for personal injuries or a fatal injuries claim needs to be first made to the Injuries Board.

Once an application is acknowledged by the Injuries Board the limitation period stops running; but it recommences six months from the date of a letter of authorisation from the Injuries Board.

When Does Time Stop Running?

Time stops running when legal proceedings have been instituted.

This will depend on which Court you commence proceedings in.

District Court: when a Civil Summons has been sent by post to the Defendant or sent to a Summons Server

Circuit Court: when a Civil Bill or Personal Injuries Summons is issued

High Court: when the summons is issued out of the central office of the High Court.

If you think that you have a cause of action for a wrong done to you, it is essential that you see a solicitor as soon as possible so that any action taken is not ‘statute barred’ and is taken within the time prescribed under the law.

Dismissal for delay or want of prosecution

A court can dismiss proceedings if they are not resolved withing a reasonable time. The Master of the High Court can make an order to dismiss an action with costs for want of prosecution. This can also occur if there has not been a proceeding for 2 years since the last proceeding or where the plaintiff fails to attend for trial.

The Courts can also dismiss a claim for delay or want of prosecution where the interests of justice require it.

Defence of Statute Barred

It’s worth noting that a plaintiff reserves the right to bring legal proceedings even if they are statute barred and out of time. The defendant must plead the statute of Limitations as a defence in these circumstances, or the Court cannot consider whether the case is out of time or not.

It can also occur that the Defendant can be estopped from pleading the statute of Limitations if the defendant or his agent lead the plaintiff, through conduct or words, to believe it would not be pleaded.