DEFAMATION SOLICITORS
The Law of Defamation
The Law of Defamation allows an individual to protect, restore and vindicate the integrity of his or her good name where it may have come under unjust attack.
The number of defamation cases in Ireland has risen exponentially in recent years, and it is believed that social media may be a driving force behind this increase. Traditional media platforms, such as newspapers or radio, typically incorporate checks and balances prior to publication. For example, newspaper articles are rarely published without passing an editor’s desk. However, social media allows individuals to make unchecked and unedited comments at any time and with great ease. Social media postings also have the potential to reach large numbers of people directly. Unfortunately, these postings, if defamatory, can seriously damage the good reputation of an individual. Each individual has a right to a good name, and this principle has been enshrined in Article 40.3.2° of the Constitution, the common law, and in statute for generations. Thus, an attack on a person’s reputation or good name is actionable.
Defamation Act 2009
The Defamation Act 2009 sets out the current law of defamation in Ireland. Section 6(2) of the Act defines defamation as “the publication, by any means, of a defamatory statement concerning a person to one or more persons (other than the first-mentioned person)”. It further elaborates that a “defamatory statement means a statement that tends to injure a person’s reputation in the eyes of reasonable members of society”.
There are a number of elements that make up the basis of a defamation action.
Firstly, there must be the publication of a statement. Publication has a broad definition but can be boiled down to meaning any communication to a third party other than to the person who claims they have been defamed. Publication of a statement can be written, oral, electronic or even by sound or gesture. Naturally, with the increasing prominence of social media, a posting online or on a social media platform also comes within the definition of publication for the purposes of the Act.
The statement must also be defamatory. The 2009 Act provides that if a statement tends to injure a person’s reputation, then it is defamatory. In deciding whether a statement is defamatory, it is considered whether a statement has the potential to lower a person’s reputation in the eyes of ordinary members of society or if a statement opens the person to hatred, ridicule or contempt.
It is also important to note that defamatory statements are actionable per se. This means that they do not require proof of actual damage to the defamed party in order for an action to be brought. Instead, what matter is that the statements were defamatory and had the potential to damage an individual’s reputation.
A final consideration is that if the social media post was made by somebody outside Ireland, it must be shown that it was accessed by individuals in this country for a defamation case to proceed here, as per the case of Coleman v MGN Ltd [2012] IESC 20.
In practice
In recent years a number of cases arising from online defamation have led to much-publicised settlements and awards.
In 2017, a settlement of over €30,000 and a formal apology were made in Letterkenny Circuit Civil Court. The case involved a married couple who were defamed by their neighbour in a series of Facebook posts. The neighbour had falsely stated that the Plaintiff husband was engaging in an affair, amongst other spurious allegations. The Judge described the allegations as “scurrilous and reckless” and stated that the couple were “wronged and their names seriously sullied”. The Judge concluded by stating that social media posts “can result in long term hurt to families and people’s good names”.
In another recent case, this time against the HSE, a settlement of €40,000 was approved by Mr. Justice Kevin Cross of the High Court in circumstances where a woman was defamed on social media by the foster parents of her child. The settlement figure was exclusive of legal costs.
Defences
It should be noted that there are number of defences which may succeed in defeating a defamation case even when the elemements of defamation are present. These include: truth, privilege (absolute and qualified), honest opinion, offer of amends, apology, consent, fair and reasonable publication (on matter of public interest), innocent publication and the Directive on E-Commerce.
In relation to the last defence mentioned above, the directive excludes from liability “relevant service providers” when they are mere conduits or when they are caching or hosting material. This is an important consideration when taking a defamation action on foot of a statement published on a social media site such as Twitter or Facebook. The social media site is generally excluded from liability for the statement. Moreover, they are under no obligation to give the details of the user who published they defamatory statement on their platforms. An individual may have to seek a Norwich Pharmacal order to force the platform to disclose the details of its users. In Muwema v Facebook Ireland [2016] IEHC 519 the court made clear that it was at its discretion to make such an order, as such it is not guaranteed. As a result, it is of great benefit if the individual who published the statement is easily identifiable.
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