Defamation on the web: An Irish perspective, in brief

Is defamation on the Web special?

No; except in the sense that there is no statutory provision applicable to publications on the Web similar to, for example, Section 24 of the Defamation Act 1961 conferring a qualified privilege on newspapers and broadcasting media disseminating fair and accurate reports of the matters set out in the 2nd Schedule to the Act.

Where does the Irish law of defamation come from?

Irish law of defamation comes from the common law, from the Constitution of Ireland and from the Defamation Act 1961.

What is Defamation?

Defamation may be a slander or a libel. Generally speaking, libel is the making of statements in permanent form that disparage the plaintiff or tend to bring him into ridicule or contempt. Slander is the making of statements in transitory form that disparage the plaintiff or tend to bring him into ridicule or contempt.

Are defamatory statements ever defensible?

Yes, sometimes. Mere abuse, for instance, is not actionable. The immediately useful defence is justification; proving that what has been said is true. True or not, statements made under privilege, absolute or qualified, can be defended.

Are defamatory statements easily defended?

No. The law presumes any defamatory statement to be false. So, the burden of proof of the truth of the statement lies on the defendant. Furthermore, to succeed, the defendant must prove the truth of that about which the plaintiff makes complaint. If he does not match his proofs to the imputation complained of by the plaintiff, the defendant will lose.

What jurisdiction applies?

Jurisdiction and choice of law arise in trans-national disputes and are complicated issues. A decision on the applicable jurisdiction must be made under the rules of private international law. Practicality should also be taken into account. Publication on the internet involves publication in every country in the world. In principal, action could be taken anywhere. However, what is actionable defamation in one country may not be actionable in another, each jurisdiction having its own legal system. The law of defamation is protective of reputation. So, if you have no reputation in Australia you cannot say you have suffered damage to your reputation there. Again, if the defendant lives in Australia, it would, practically speaking, be of little point to issue proceedings in Ireland. (If you are successful, how do you collect your damages? The judgments of the Irish courts are not directly enforceable in Australia.) So, it is necessary to consider where the Plaintiff lives and where the defendant lives. (Strictly speaking the issue is domicile, but residence will usually indicate domicile). It is also necessary to consider where the Defendant has assets. (What is the point of incurring costs to get judgment against a homeless person, say?) If the Plaintiff and the Defendant both reside in the EU, the Brussels convention on jurisdiction and enforcement of judgments in civil and commercial matters will very likely apply. “Reside��? may have a technical meaning – a limited liability company may have its registered office outside the EU but have a trading presence in the EU.

Is the jurisdiction of the ISP relevant?

No, not for the purpose of choosing the jurisdiction in which to sue the defamer.

Who is a defamer?

The maker of the defamatory utterance is a defamer; so too is any publisher. An ISP is a publisher. However under S.I. No. 68/2003: European Communities (Directive 2000/31/EC) Regulations 2003, an ISP is not liable if (i) the ISP does not have actual knowledge of the unlawful activity concerned and, as regards claims for damages, is not aware of facts or circumstances from which that unlawful activity is apparent, or (b) the ISP, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.

When is a statement absolutely privileged?

Absolute privilege means no liability ever arises for the statement. Parliamentary privilege, which is absolute, attaches, for the benefit of members, to a) utterances made in the Dail or the Seanad; b) reports of those utterances; c) utterances made in parliamentary committees; reports of those utterances; d) the publication of official reports and publications. Absolute privilege attaches to statements that are made in the course of the administration of justice. This has been stated as “…anything said, or published in writing, in the court and as part of legal proceedings cannot be made the subject of an action for defamation…��? This, strictly, is not accurate. Under the common law a judge is absolutely privileged in respect of what he or she does while acting in the performance of his or her office. This may need review in the light of the passing of the European Convention on Human Rights Act 2003. Under this act, rules of law or procedure are to be interpreted to safeguard the human rights of persons. It is a right under the convention to one’s good name and to the vindication of that right when it is attacked. If the judge is not acting in the course of the office there is no absolute privilege. A party or a witness also has absolute privilege in respect of statements that are made in the course of the administration of justice. The statement may be in oral evidence or on affidavit or in instructions to lawyers or in pleadings. An advocate has absolute privilege in respect of statements that are made in the course of the administration of justice. However the statement must be relevant, but the burden of proof will probably lie on the plaintiff to prove that it was not relevant. Government ministers, civil servants and other public officials acting in the course of their office and in pursuit of acts of state have absolute privilege in respect of statements that are made by them. The width of this privilege may be less than it appears; minor civil servants will not normally have such a privilege.

When does a statement have qualified privilege?

There are a number of occasions where it is permitted to make defamatory statements without having to answer for the inaccuracy of them. This qualified privilege is a defence only where there is an absence of malice. “Malice��? is best termed “improper motive��?. So, a statement may be defamatory and untrue but a plaintiff will still lose an action for the defamation, having failed to prove malice on the part of the defamer. The occasions are as follows;

A. statements made in self defence attract qualified privilege. If attacked, a person is entitled to answer back without regard to fine points of fact where the statement is made bona fide and without malice. The audience must be the same one as heard the original attack. The reply is not confined to the exact subject matter as the attack. The audience may be a person, a group or the public. The privilege also extends to threats against the property of the person. That is, where his property has been damaged or is subject to threat his statements in its defence or in attempts to recover it are privileged. The statement must be made bona fide and without malice and that usually means it is addressed to a person who might be part of the process to remedy the loss. An accusation of theft of one’s own property is one example of an occasion of qualified privilege.

B. statements made in defence of another within a particular relationship to the defamer attract qualified privilege. If such a person is at risk a person is entitled to communicate the danger to that person. The required, or admissible, relationships are many; a former employer may enlighten a prospective employer when a statement is requested; (the person making the enquiry must have a legitimate reason for making the enquiry, such as the fear of financial loss). The statement may be volunteered, without enquiry but there needs to be a suitable relationship between the parties for this to be privileged. (In Curneen v Sweeney, an auctioneer selling land told his employee to inform the purchaser that the solicitor acting for the purchaser was unsuitable and untrustworthy. This was held not to be a privileged statement). There must be a risk of damage to the person intended to be protected.

C. statements made in defence of a group or its members where the statement is made bona fide and without malice and the defamer has a relevant relationship with the group and its members, attract qualified privilege. “Group��? has a very broad meaning. It can include a religious group or the users of a public service. The relationship may consist of membership of the group or an employer/employee relationship. Of course, it is necessary that there be a threat towards the group from the defamed person for the statement to be privileged.

D. the statutory privilege set out in Section 24 of the Defamation Act 1961, which protects reports of judicial proceedings, public meetings etc. It is necessary to look at the 2nd Schedule of the Act to see what is covered.

E. Fair Comment. This privilege arises in respect of comment on matters of public interest. The comment should accompany or imply reference to facts supporting the comment. The facts should be true and there must be a connection between the facts and the comment. It is this connection which determines the “fairness��? of the comment. If the connection can be shown the comment is fair.

WARNING; this post is no substitute for legal advice and no representation is made as to the accuracy of the views expressed herein. Readers should consult their solicitors.