No. 40/1961:

DEFAMATION ACT, 1961

ARRANGEMENT OF SECTIONS

PART I PRELIMINARY AND GENERAL

1 Short title.

2 Interpretation generally.

3 Commencement and proceedings affected.

4 Repeals.

PART II CRIMINAL PROCEEDINGS OF LIBEL

5 Competence of jury to give general verdict on trial of indictment for libel.

6 Plea of truth of matters charged on trial for defamatory libel and that publication was for public benefit.

7 Evidence by person charged to rebut prima facie case of publication by his agent.

8 Order of Judge required for prosecution of newspaper proprietor, etc.

9 Inquiry as to libel being for public benefit or being true.

10 Provisions as to summary conviction for libel.

11 Penalty for maliciously publishing defamatory libel.

12 Penalty for maliciously publishing libel known to be false.

13 Penalty for printing or publishing blasphemous or obscene libel.

PART III CIVIL PROCEEDINGS FOR DEFAMATION

14 Interpretation. (Part III).

15 Broad statements.

16 Words imputing unchastity or adultery actionable out special damage.

17 Offer of an apology admissible in evidence in mitigation of damages in action for defamation.

18 Newspaper and broadcast reports of proceedings in court privileged .

19 Slander affecting official, professional or business reputation.

20 Slander of title, etc.

21 Unintentional defamation.

22 Justification.

23 Fair comment.

24 Qualified privilege of certain newspaper and broadcasting reports.

25 Agreements for indemnity.

26 Evidence of other damages recovered by plaintiff.

27 Obligation on certain newspaper proprietors to be registered under the Registration of Business Names Act, 1916.

28 Saving.

FIRST SCHEDULE

SECOND SCHEDULE

AN ACT TO CONSOLIDATE WITH AMENDMENTS CERTAIN ENACTMENTS RELATING TO THE LAW OF DEFAMATION.

[17th August, 1961.]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:—

PART I PRELIMINARY AND GENERAL

1.—This Act may be cited as the Defamation Act, 1961 .

2.—In this Act—

"local authority" has the same meaning as in the Local Government Act, 1941 ;

"newspaper" except in section 27, means any paper containing public news or observations thereon, or consisting wholly or mainly of advertisements, which is printed for sale and is published in the State or in Northern Ireland either periodically or in parts or numbers at intervals not exceeding thirty-six days;

"proprietor" means, as well as the sole proprietor of any newspaper, in the case of a divided proprietorship, the persons who, as partners or otherwise, represent or are responsible for any share or interest in the newspaper as between themselves and the persons in like manner representing or responsible for the other shares or interests therein, and no other person.

3.—(1) This Act shall come into operation on the 1st day of January, 1962.

(2) Part III of this Act shall apply for the purposes of any proceedings begun after the commencement of this Act, whenever the cause of action arose, but shall not affect any proceedings commenced before the commencement of this Act.

4.—The enactments specified in the First Schedule to this Act are hereby repealed.

PART II CRIMINAL PROCEEDINGS OF LIBEL

5.—(1) On every trial of an indictment for making or publishing any libel to which a plea of not guilty is entered, the jury may give a general verdict of guilty or not guilty upon the whole matter put in issue on the indictment, and the jury shall not be required or directed by the court to find the person charged guilty merely on the proof of the publication by him of the paper charged to be a libel and of the sense ascribed to such paper in the indictment.

(2) On every such trial the court according to its discretion, give its opinion and directions to the jury on the matter in issue in like manner as in other criminal cases.

(3) Subsections (1) and (2) of this section shall not operate to prevent the jury from finding a special verdict, in their discretion, as in other criminal cases.

6.—On the trial of any indictment for a defamatory libel, the person charged having pleaded such plea as hereinafter mentioned, the truth of the matters charged may be inquired into but shall not amount to a defence, unless it was for the public benefit that the said matters charged should be published; and to entitle the defendant to give evidence of the truth of such matters charged as a defence to such indictment, it shall be necessary for the person charged in pleading to the said indictment, to allege the truth of the said matters charged, in the manner required in pleading a justification to an action for defamation, and further to allege that it was for the public benefit that the said matters charged should be published, and the particular fact or facts by reason of which it was for the public benefit that the said matters charged should be published, to which plea the prosecutor shall be at liberty to reply generally, denying the whole thereof; and if, after such plea, the person charged is convicted on such indictment, the court may, in pronouncing sentence, consider whether his guilt is aggravated or mitigated by the said plea and by the evidence given to prove or to disprove the same: provided that—

( a ) the truth of the matters charged in the alleged libel complained of by such indictment shall in no case be inquired into without such plea of justification;

( b ) in addition to such plea of justification, the person charged may enter a plea of not guilty;

( c ) nothing in this section shall take away or prejudice any defence under the plea of not guilty which it is competent to the person charged to make under such plea to any indictment for defamatory libel.

7.—Whenever, upon the trial of an indictment for the publication of a libel, a plea of not guilty having been entered, evidence is given establishing a presumption of publication against the person charged by the act of any other person by his authority, it shall be competent for the person charged to prove that the publication was made without his authority, consent or knowledge and that the publication did not arise from want of due care or caution on his part.

8.—No criminal prosecution stall be commenced against any proprietor, publisher, editor or any person responsible for the publication of a newspaper for any libel published therein without the order of a Judge of the High Court sitting in camera being first had and obtained, and every application for such order shall be made on notice to the person accused, who shall have an opportunity of being heard against the application.

9.—A Justice of the District Court, upon the hearing of a charge against a proprietor, publisher or editor or any person responsible for the publication of a newspaper for a libel published therein, may receive evidence as to the publication being for the public benefit, as to the matters charged in the libel being true, as to the report being fair and accurate and published without malice and as to any matter which, under this or any other Act or otherwise, might be given in evidence by way of defence by the person charged on his trial on indictment, and the Justice, if, of opinion after hearing such evidence that there is a strong or probable presumption that the jury on the trial would acquit the person charged, may dismiss the case.

10.—If a Justice of the District Court, upon the hearing of a charge against a proprietor, publisher, editor or any person responsible for the publication of a newspaper for a libel published therein, is of opinion that, though the person charged is shown to have been guilty, the libel was of a trivial character and that the offence may be adequately punished by virtue of the powers conferred by this section, the Justice shall cause the charge to be reduced into writing and read to the person charged and shall then ask him if he desires to be tried by a jury or consents to the case being dealt with summarily, and, if such person consents to the case being dealt with summarily, may summarily convict him, and impose on him a fine not exceeding fifty pounds, and the Summary Jurisdiction Acts shall apply accordingly.

11.—Every person who maliciously publishes any defamatory libel shall, on conviction thereof on indictment, be liable to a fine not exceeding two hundred pounds or to imprisonment for a term not exceeding one year or to both such fine and imprisonment.

12.—Every person who maliciously publishes any defamatory libel, knowing the same to be false, shall, on conviction thereof on indictment, be liable to a fine not exceeding five hundred pounds or to imprisonment for a term not exceeding two years or to both such fine and imprisonment.

13.—(1) Every person who composes, prints or publishes any blasphemous or obscene libel shall, on conviction thereof on indictment, be liable to a fine not exceeding five hundred pounds or imprisonment for a term not exceeding two years or to both fine and imprisonment or to penal servitude for a term not exceeding seven years.

( a ) In every case in which a person is convicted of composing, printing or publishing a blasphemous libel, the court may make an order for the seizure and carrying away and detaining in safe custody, in such manner as shall be directed in the order, of all copies of the, libel in the possession of such person or of any other person named in the order for his use, evidence upon oath having been previously given to the satisfaction of the court that copies of the said libel are in the possession of such other person for the use of the person convicted.

( b ) Upon the making of an order under paragraph (a)of this subsection, any member of the Garda Síochána acting under such order may enter, if necessary by the use of force, and search for any copies of the said libel any building, house or other place belonging to the person convicted or to such other person named in the order and may seize and carry away and detain in the manner directed in such order all copies of the libel found therein.

( c ) If, in any such case, the conviction is quashed on appeal, any copies of the libel seized under an order under paragraph (a)of this subsection shall be returned free of charge to the person or persons from whom they were seized.

( d ) Where, in any such case, an appeal is not lodged or the conviction is confirmed on appeal, any copies of the libel seized under an order under paragraph (a)of this subsection shall, on the application of a member of the Garda Síochána to the court which made such order, be disposed of in such manner as such court may direct.

PART III CIVIL PROCEEDINGS FOR DEFAMATION

14.—(1) In this Part—

"broadcast" has the same meaning as in the Wireless Telegraphy Act, 1926 (in this section referred to as the Act of 1926) and "broadcasting" shall be construed accordingly;

"broadcasting station" has the same meaning as in the Act of 1926, as amended by the Broadcasting Authority Act, 1960 ;

"wireless" telegraphy has the same meaning as in the Act of 1926.

(2) Any reference in this Part to words shall be construed as including a reference to visual images, gestures and other methods of signifying meaning.

(3) Where words broadcast by means of wireless telegraphy are simultaneously transmitted by telegraph as defined by the Telegraph Act, 1863, in accordance, with a licence granted by the Minister for Posts and Telegraphs, the provisions of this Part shall apply as if the transmission were broadcasting by means of wireless telegraphy.

15.—For the purposes of the law of libel and slander the broadcasting of words by means of wireless telegraphy shall be treated as publication in permanent form.

16.—Words spoken and published which impute unchastity or adultery to any woman or girl shall not require special damage to render them actionable.

17.—In any action for defamation, it shall be lawful for the defendant (after notice in writing of his intention so to do, duly given to the plaintiff at the time of filing or delivering the plea in the action) to give in evidence, in mitigation of damage, that he made or offered an apology to the plaintiff for such defamation before the commencement of the action, or as soon as afterwards as he had an opportunity of doing so, in case the action shall have been commenced before there was an opportunity of making or of offering such apology.

18.—(1) A fair and accurate report published in any newspaper or broadcast by means of wireless telegraphy as part of any programme or service provided by means of a broadcasting station within the State or in Northern Ireland of proceedings publicly heard before any court established by law and exercising judicial authority within the State or in Northern Ireland shall, if published or broadcast contemporaneously with such proceedings, be privileged.

(2) Nothing in subsection (1) of this section shall authorise the publication or broadcasting of any blasphemous or obscene matter.

19.—In an action for slander in respect of words calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by him at the time of the publication, but shall not be necessary to allege or prove special damage, whether or not the words are spoken of the plaintiff in the way of his office, profession, calling, trade or business.

20.—(1) In an action for slander of title, slander of goods or other malicious falsehood, it shall not be necessary to allege or prove special damage—

( a ) if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are published in writing or other permanent form; or

( b ) if the said words calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by him at the time of the publication.

(2) Section 15 of this Act shall apply for the purposes of subsection (1) of this section as it applies for the purposes of the law of libel and slander.

21.—(1) A person who has published words alleged to be defamatory of another person may, if he claims that the words were published by him innocently in relation to that other person, make an offer of amends under this section, and in any such case—

( a ) if the offer is accepted by the party aggrieved and is duly performed, no proceedings for libel or slander shall be taken or continued by that party against the person making the offer in respect of the publication in question (but without prejudice to any cause of action against any other person jointly responsible for that publication);

( b ) if the offer is not accepted by the party aggrieved, then, except as otherwise provided by this section, it shall be a defence, in any proceedings by him for libel or slander against the person making the offer in respect of the publication in question, to prove that the words complained of were published by the defendant innocently in relation to the plaintiff and that the offer was made as soon as practicable after the defendant received notice that they were or might be defamatory of the plaintiff, and has not been withdrawn.

(2) An offer of amends under this section must be expressed to be made for the purposes of this section, and must be accompanied by an affidavit specifying the facts relied upon by the person making it to show that the words in question were published by him innocently in relation to the party aggrieved; and for the purposes of a defence under paragraph (b) of subsection (1) of this section no evidence, other than evidence of facts specified in the affidavit, shall be admissible on behalf of that person to prove that the words were so published.

(3) An offer of amends under this section shall be understood to mean an offer—

( a ) in any case, to publish or join in the publication of a suitable correction of the words complained of, and a sufficient apology to the party aggrieved in respect of those words;

( b ) where copies of a document or record containing the said words have been distributed by or with the knowledge of the person making the offer, to take such steps as are reasonably practicable on his part for notifying persons to whom copies have been so distributed that the words are alleged to be defamatory of the party aggrieved.

(4) Where an offer of amends under this section is accepted by the party aggrieved—

( a ) any question as to the steps to be taken in fulfilment of the offer as so accepted shall, in default of agreement between the parties, be referred to and determined by the High Court or, if proceedings in respect of the publication in question have been taken in the Circuit Court, by the Circuit Court, and the decision of such Court thereon shall be final;

( b ) the power of the court to make orders as to costs in proceedings by the party aggrieved against the person making the offer in respect of the publication in question, or in proceedings in respect of the offer under paragraph (a)of this subsection, shall include power to order the payment by the person making the offer to the party aggrieved of costs on an indemnity basis and any expenses reasonably incurred or to be incurred by that party in consequence of the publication in question;

and if no such proceedings as aforesaid are taken, the High Court may, upon application made by the party aggrieved, make any such order for the payment of such costs and expenses as aforesaid as could be made in such proceedings.

(5) For the purposes of this section words shall be treated as published by one person (in this subsection referred to as the publisher) innocently in relation to another person if, and only if, the following conditions are satisfied, that is to say—

( a ) that the publisher did not intend to publish them of and concerning that other person, and did not know of circumstances by virtue of which they might be understood to refer to him; or

( b ) that the words were not defamatory on the face of them, and the publisher did not know of circumstances by virtue of which they might be understood to be defamatory of that other person,

and in either case that the publisher exercised all reasonable in relation to the publication; and any reference in this subsection to the publisher shall be construed as including a reference to any servant or agent of the publisher who was concerned with the contents of the publication—

(6) Paragraph (b) of subsection (1) of this section shall not apply where the party aggrieved proves that he has suffered special damage.

(7) Paragraph (b) of subsection (1) of this section shall not apply in relation to the publication by any person of words of which he is not the author unless he proves that the words were written by the author without malice.

22.—In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved, if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges.

23.—In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved, if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved.

24.—(1) Subject to the provisions of this section, the publication in a newspaper or the broadcasting by means of wireless telegraphy as part of any programme or service provided by means of a broadcasting station within the State or in Northern Ireland of any such report or other matter as is mentioned in the Second Schedule to this Act shall be privileged unless the publication or broadcasting is proved to be made with malice.

(2) In an action for libel in respect of the publication or broadcasting of any such report or matter as is mentioned in Part II of the Second Schedule to this Act, the provisions of this section shall not be a defence if it is proved that the defendant has been requested by the plaintiff to publish in the newspaper in which the original publication was made or to broadcast from the broadcasting station from which the original broadcast was made, whichever is the case, a reasonable statement by way of explanation or contradiction, and has refused or neglected to do so, or has done so in a manner not adequate or not reasonable having regard to all the circumstances.

(3) Nothing in this section shall be construed as protecting the publication or broadcasting of any matter the publication or broadcasting of which is prohibited by law, or of any matter which is not of public concern and the publication or broadcast of which is not for the public benefit.

(4) Nothing in this section shall be construed as limiting or bridging any privilege subsisting (otherwise than by virtue of section 4 of the Law of Libel Amendment Act, 1888) immediately before the commencement of this Act.

25.—An agreement for indemnifying any person against civil ability for libel in respect of the publication of any matter shall not be unlawful unless at the time of the publication that person knows that the matter is defamatory, and does not reasonably believe there is a good defence to any action brought upon it.

26.—In any action for libel or slander the defendant may give evidence in mitigation of damages that the plaintiff has recovered damages, or has brought actions for damages, for libel or slander n respect of the publication of words to the same effect as the words on which the action is founded, or has received or agreed to receive compensation in respect of any such publication.

27.—(1) The proprietor of every newspaper having a place of business in the State shall, where such proprietor is not a company registered under the Companies Acts, 1908 to 1959, and is not required under the provisions of the Registration of Business Names Act, 1916, to be registered under that Act in respect of the business of carrying on such newspaper, be registered in the manner directed by that Act, and that Act shall apply to such proprietor in like manner as it applies to a film or individual referred to in section 1 thereof.

(2) Every reference in the Registration of Business Names Act, 1916, to that Act shall be construed as a reference to that Act as extended by subsection (1) of this section.

(3) In this section "newspaper" means any paper containing public news or observations thereon, or consisting wholly or mainly of advertisements, which is printed for sale and is published in the State either periodically or in parts or numbers at intervals not exceeding twenty-six days.

28.—Nothing in this Parts hall affect the law relating to criminal libel.

Section 4.

FIRST SCHEDULE

ENACTMENTS REPEALED

PART I

Acts of the Parliament of Ireland

PART II

Acts of the Parliament of the late United Kingdom of Great Britain and Ireland

Section 24.

SECOND SCHEDULE

STATEMENTS HAVING QUALIFIED PRIVILEGE

PART I

Statements privileged without Explanation or Contradiction

1. A fair and accurate report of any proceedings in public of a house of any legislature (including subordinate or federal legislatures) of any foreign sovereign State or any body which is part of such legislature or any body duly appointed by or under the legislature or executive of such State to hold a public inquiry in a matter of public importance.

2. A fair and accurate report of any proceedings in public of an international organization of which the State or the Government as a member or of any international conference to which the Government sends a representative.

3. A fair and accurate report of any proceedings in public of the International Court of Justice and any other judicial or arbitral tribunal deciding matters in dispute between States.

4. A fair and accurate report of any proceedings before a court (including a courtmartial) exercising jurisdiction under the law of any legislature (including subordinate or federal legislatures) of any foreign sovereign State.

5. A fair and accurate copy of or extract from any register kept in pursuance of any law which is open to inspection by the public or of any other document which is required by law to be open to inspection by the public.

6. Any notice or advertisement published by or on the authority of any court in the State or in Northern Ireland or any Judge or officer of such a court.

PART II

Statements privileged subject to Explanation or Contradiction

1. A fair and accurate report of the findings, or decision of any of the following associations, whether formed in the State or Northern Ireland, or of any committee or governing body thereof, that is to say

( a ) an association for the purpose of promoting or encouraging the exercise of or interest in any art, science, religion or learning, and empowered by its constitution to exercise control over or adjudicate upon matters of interest or concern to the association or the actions or conduct of any persons subject to such control or adjudication;

( b ) an association for the purpose of promoting or safe, guarding the interests of any trade, business, industry or profession or of the persons carrying on or engaged in any trade, by industry or profession and empowered by its constitution to exercise control over or adjudicate upon matters connected with the trade, business, industry or profession or the actions or conduct of those persons;

( c ) an association for the purpose of promoting or safeguarding the interests of any game, sport or pastime, to the playing or exercise of which members of the public are invited or admitted, and empowered by its constitution to exercise control over or adjudicate upon persons connected with or taking part in the game, sport or pastime;

being a finding or decision relating to a person who is a member of or is subject by virtue of any contract to the control of the association.

2. A fair and accurate report of the proceedings at any public meeting held in the State or Northern Ireland, being a meeting bona fide and lawfully held for a lawful purpose and for the furtherance or discussion of any matter of public concern whether the admission to the meeting is general or restricted.

3. A fair and accurate report of the proceedings at any meeting or sitting of—

( a ) any local authority, or committee of a long authority or local authorities, and any corresponding authority, or committee thereof in Northern Ireland;

( b ) any Judge or Justice acting otherwise than as a court exercising judicial authority and any corresponding person so acting in Northern Ireland;

( c ) any commission, tribunal, committee or person appointed, whether in the State or Northern Ireland, for the purposes of any inquiry under statutory authority;

( d ) any person appointed by a local authority to hold a local inquiry in pursuance of an Act of the Oireachtas and any person appointed by a corresponding authority in Northern Ireland to hold a local inquiry in pursuance of statutory authority;

( e ) any other tribunal, board, committee or body constituted by or under, and exercising functions under, statutory authority, whether in the State or Northern Ireland;

not being a meeting or sitting admission to which is not allowed to representatives of the press and other members of the public.

4. A fair and accurate report of the proceedings at a general meeting, whether in the State or Northern Ireland, of any company or association constituted, registered or certified by or under statutory authority or incorporated by charter, not being, in the case of a company in the State, a private company within the meaning of the Companies Acts, 1908 to 1959, or, in the case of a company in Northern Ireland, a private company within the meaning of the statutes relating to companies for the time being in force therein.

5. A copy or fair and accurate report or summary of any notice or other matter issued for the information of the public by or on behalf of any Government department, local authority or the Commissioner of the Garda Síochána or by or on behalf of a corresponding department, authority or officer in Northern Ireland.