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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.

Categories
Criminal Law

The Powers of the Gardai in A Criminal Investigation in Ireland

The powers of the Gardai in relation to investigating crime in Ireland are quite extensive.

garda-powers
Gardai investigative powers have increased in the last decade

These powers include the power to stop you and make reasonable inquiries, the power to stop and search and seize evidence, to enter and search your premises and of course the powers of detention and arrest.

The power to stop and make inquiries

A member of an Garda Siochana has the power to approach any member of the public to make inquiries.

The Supreme Court decision in DPP (Stratford) v Fagan (1994) also held that the Gardai have the power to stop motorists and make inquiries-even where they have not formed the opinion that the motorist has committed an offense.

Despite this decision the Gardai do not have the power generally to stop you merely to put questions to you.

The power to enter and search premises

The Gardai’s power to enter and search premises are limited to

1.  When they have a valid search warrant

2.  Where there is a statutory or common law power to enter without  a warrant (these circumstances are quite narrow, for example to attempt to assist if a building was on fire and people’s lives were at risk).

The Search warrant

A search warrant can be issued by a District Court judge or peace commissioner. The warrant will set out what is permitted and this may be the search of a person only, the search of a premises only or the search of both.

Senior officers of the Garda Siochana can also issue a search warrant in some circumstances.

Search warrants can not be issued willy nilly-the Guard seeking the warrant must swear “an information” that there are reasonable grounds for believing that an offense has been committed.

Searching of a person’s home

Entering and searching a person’s home is something that is jealously guarded by the Constitution of Ireland. Without a warrant any evidence obtained will be inadmissible in a subsequent prosecution unless there are extraordinary excusing circumstances.

Such circumstances would include a belief on the Guard’s behalf that it is necessary to safeguard life and limb.

If you are faced with a search warrant you should check it carefully to ensure that the right premises has been stated on the warrant and that whatever statutory power has led to the granting of the warrant has been strictly adhered to.

The Power To Stop and Search in Criminal Investigation

The Gardai have the power to stop and search a person under various pieces of legislation in Ireland. For example the Road Traffic laws, customs and excise laws and Misuse of Drugs Acts all confer this right.

It is important to note that when the Gardai do exercise this power the person who is stopped is entitled to know why and the specific piece of legislation under which they are being stopped and searched.

It is worth noting the anomaly thrown up by the Dublin Police act of 1842 which allows the Gardai to stop and search you on suspicion that you are in possession of stolen property.

But this law does not extend outside the Dublin Metropolitan district.

Power of search and seize

The Gardai have the power to search and seize, when they arrest a person, anything found on the person or at the place of arrest which they feel will be of evidentiary value in the subsequent prosecution of a crime.

This is a common law power but this power is also conferred by various pieces of legislation such as the Offences against the State act and Misuse of Drugs Acts. These pieces of legislation also confer the power on the Gardai to arrest a person who is found on a premises for which the Gardai have a search warrant.

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