Irish Law Reform Commission Papers and Reports

THE LAW REFORM COMMISSION

AN COIMISIÚN UM ATHCHÓIRIÚ AN DLÍ

 

CONSULTATION PAPER

ON

THE CIVIL LAW OF DEFAMATION

 

March 1991

IRELAND

The Law Reform Commission

Ardilaun Centre, 111 St Stephen's Green, Dublin 2

 

 

© Copyright The Law Reform Commission 1991

First Published March 1991

 

 

CONTENTS PAGES   INTRODUCTION 1–2   PART 1: THE PRESENT LAW 3–153   CHAPTER 1: GENERAL 3–42   Purpose of the Law of Defamation 3   The Distinction between Libel and Slander 4   The Prima Facie Case 6   Defamatory Effect 7   Burden of Proof and Defamatory Effect 12   The Meaning of Words: 12   (1) The innuendo 12   (2) Pleading Innuendos 14   Functions of Judge and Jury 19   Identification 22   Group Defamation 25   Publication 28   Innocent Dissemination and Distributors 32   Multiple Publication 36   Slander and Proof of Damage 36   CHAPTER 2: DEFENCES 43–107   Defences Generally 43   Justification 44   Partial Justification 48   Justification and Previous Convictions 52   Repetition and Justification 54   Justification and Aggravated Damages 54   The Defence of Fair Comment 56   Proof of the Supporting Facts 60   Fairness of Comment 67   Matters of Public Interest 71   Malice and Fair Comment 73   Absolute Privilege 75   The President 75   Parliamentary Proceedings 75   Administration of Justice 77   Quasi-Judicial Bodies 83   THIS IS AN ORIGINAL PAGE-BREAK: PAGE NUMBER=v   CONTENTS PAGES   Communications between Solicitor and Client 87   The Executive 87   Qualified Privilege 88   The Media 91   Fair and Accurate Reports of Judicial Proceedings 93   Statutory Provisions 94   Malice and Qualified Privilege 98   Relevance 102   Section 21 and Unintentional Defamation 104   CHAPTER 3: REMEDIES 108–134   Damages 108   Compensatory Damages 108   Aggravation of Damages 116   Mitigation of Damages 117   Punitive Damages 126   Injunctions 129   Interlocutory Injunctions 129   Ex Parte Injunctions and in camera proceedings 132   Perpetual Injunctions 133   Declarations 134   CHAPTER 4: MISCELLANEOUS 135–153   Payment Into Court 135   Limitation Periods 137   Malice and Joint Publishers – The Infectious Malice Rule 137   Corporate Bodies 143   Defamation of the Dead 148   Survival of the Defamation Action 148   Apology 149   Fault Issues in Defamation Law 149   THIS IS AN ORIGINAL PAGE-BREAK: PAGE NUMBER=vi   CONTENTS PAGES   PART 2 – THE LAW IN THE UNITED STATES 154–193   CHAPTER 5: UNITED STATES CASE LAW 155–174   (a) Birth of the Public Official Doctrine 155   (b) Transition from Public Official to Public Figure 159   (c) The Public Interest Experiment 160   (d) Public Figures Restored: New Law for Private Figures 161   (e) The question of punitive damages 162   (f) The Category of Public Figures Narrows 163   (g) The Content of the Speech Re-enters the Equation 164   (h) The Final Step: Reversal of the presumption of falsity 165   (i) Reservations as to the modern case law 168   (j) The Status of Opinions in United States Law 170   CHAPTER 6: COMPARISON BETWEEN UNITED STATES AND IRISH DEFAMATION LAW 174–175   CHAPTER 7: THE COMMON LAW AND NEW YORK TIMES V SULLIVAN 176–178   CHAPTER 8: AN ANALYSIS OF THE MERITS OF UNITED STATES DEFAMATION LAW 179–193   PART 3 – PROPOSALS FOR REFORM 194–439   Introduction 194   CHAPTER 9: PRELIMINARY 196–214   A. The Distinction between Libel and Slander 196   B. Definition of Defamation 199   C. Meaning of Words 207   D. Payment Into Court 211   THIS IS AN ORIGINAL PAGE-BREAK: PAGE NUMBER=vii   CONTENTS PAGES   E. Apology 213   F. Pleading the Words “Falsely and Maliciously” 215   II Privileged Statements 216–253   A. Absolute Privilege 216   (a) Utterances made in Parliamentary Committees 219   (b) Statements made by One State Official to Another 220   (c) Statements made in the Course of Judicial Proceedings 220   (i) By Judges 221   (ii) By Parties, Witnesses, Advocates 222   (d) Communications between Solicitor and Client 223   B. Qualified Privilege 224–253   1. Malice 224   (i) Proposals to clarify the common law element of Malice 225   (ii) Qualified Privilege and Joint Malice 227   (iii) Abolition of the Malice Element in the defence of qualified privilege 228   2. Common Law Categories of Qualified Privilege 230   3. Creating a Defence of Fair Report 241   4. Statutory Qualified Privilege 242   5. Fair and Accurate Reports of Judicial Proceedings 250   Recapitulation on Qualified Privilege 252   III – Statements of Opinion 254–292   Introduction 254   THIS IS AN ORIGINAL PAGE-BREAK: PAGE NUMBER=viii   CONTENTS PAGES   A. Fair Comment 258   1. Title 259   2. Truth of Supporting Facts 259   3. Mangena v Wright 265   4. Malice 266   (i) Reform of the Malice Element 267   (a) Where the Defendant is the Author 267   (b) Malice where the publisher is not the Author 270   (ii) Abolition of the Malice Element 272   5. Fair Comment and Joint Malice 274   6. Fairness of Comment 275   7. Base and Dishonourable Motives 277   8. Rolled Up Plea 277   9. Aggravated Damages 278   10. Abolition of Action for Opinions 278   11. Matters of Public Interest 280   B. Distinction between Fact and Comment 281   C. The European Court of Human Rights and the Lingens Case 285   IV – Factual Statements 293–345   Introduction 293   A. Justification 294   1. Title 294   2. Substance or Sting 294   3. Section 22 and Partial Justification 295   4. Previous Convictions or Acquittals and Justification 298   5. Aggravated Damages 300   6. Reasonable Belief in Truth 301   B. Wider Defences for factual statements 304   1. The United States 304   2. The Faulks Committee 306   3. The New Zealand Committee 309   4. The National Newspapers of Ireland 313   THIS IS AN ORIGINAL PAGE-BREAK: PAGE NUMBER=ix   CONTENTS PAGES   C. Defence of Reasonable Care 316–320   D. Presumption of Falsity 321   E. Section 21 and Unintentional Defamation 327   F. The Case for Protection of Sources 336   The Constitutional Problem 337   G. Statements of fact in the Context of Satire and Fiction 344   V – Remedies 346–364   A. Damages 364   1. Reforms of the present role of the jury in defamation cases 350   2. Statutory Guidance as to Factors which should affect damages 352   3. Abolition of Punitive Damages 359   4. Role of the Appellate Court 363   B. Injunctions 364   C. Proceedings for Declaratory Judgment 365   D. Correction Orders 374   E. Declaratory Judgment 376   F. Right of Reply 376   G. Publication of Judgment 383   VI – Juries in Actions for Defamation 384–391   THIS IS AN ORIGINAL PAGE-BREAK: PAGE NUMBER=x   CONTENTS PAGES   VII – Identity of Parties 392–422   A. Public Figure Plaintiffs 392   B. Group Plaintiffs 398   C. Defamation of the Dead 401   D. The Libel-Proof Plaintiff Doctrine 406   E. Corporate Bodies 411   F. Media Defendants 414   G. Distributors and Printers 417   VIII – Miscellaneous 423–439   A. Limitation Periods 423   B. Striking Out and Dismissal for Want of Prosecution 426   C. Survival of Actions 428   D. Multiple Publication 431   E. Civil Legal Aid 436   F. Privacy Law and Defamation Law 438   Summary of Provisional Recommendations 440–453   Appendix A – Some Observations on the Right to Privacy in Irish Law 454   Appendix B – A Comment on Rule 18 – Rules of the National Union of Journalists 460   List of Commission Publications 464–467   THIS IS AN ORIGINAL PAGE-BREAK: PAGE NUMBER=xi

INTRODUCTION

In January 1989 the Attorney General pursuant to section 4(2)(c) of the Law Reform Commission Act 1975 requested the Commission to undertake an examination of, and conduct research and formulate and submit to him proposals for reform of, the law of Defamation and Contempt of Court.

The subject matter of this request can be divided into three parts: Civil Defamation, Criminal Defamation and Contempt of Court. In turn, criminal defamation takes four forms: criminal libel, obscene libel, blasphemous libel and seditious libel.

The Commission decided to undertake firstly an examination of civil defamation, the most extensive of these categories. This Consultation Paper contains the results of that examination together with the provisional proposals of the Commission for reforms in the law. We will, in the near future, be publishing further Consultation Papers on the other subjects comprised in the Attorney General's request.

Before embarking on their study of the subject, the Commission published an advertisement in the national press inviting submissions from interested persons as to aspects of these branches of the law which they considered in need of change. We have received a number of written submissions in response to this request from members of the public, Radio Telefis Eireann, the National Newspapers of Ireland and The Irish Publishers' Association. Members of the Commission also met representatives of these bodies and visited newspaper offices in Dublin.

We have been conscious throughout our examination of this area of the law that one of its principal functions is to preserve a balance between two competing interests, that of individuals in their good name and that of the

media in freedom of expression. We have in the result been concerned to familiarise ourselves, on as extensive a scale as possible, with the views of all those who are concerned with protecting these different interests.

The layout of the Consultation Paper is in general the same as in our previous papers and reports. We begin by setting out the present law and identifying the areas in which it is most clearly in need of reform. We consider models for change to be found in other jurisdictions or which have been put forward by commentators on the deficiencies of the present law, including the submissions made to the Commission in response to our advertisement. We have, however, departed from precedent in one way. A separate section is devoted to examining developments in the law during the past three decades in the United States of America. We considered that these developments merited detailed examination, since they raise fundamental issues as to the objectives which a defamation law should seek to attain in a modern democracy. We conclude by presenting our tentative recommendations for reform.

We emphasise again that the proposals for reform contained in this Consultation Paper are provisional in their nature. We invite written submissions in relation to any of these proposals and the material contained in this Consultation Paper. Any such submissions received by us will be assessed with great care before we present our final proposals to the Attorney General. We also hope to hold a Seminar which will enable a full discussion of the Consultation Paper to take place, details of which will be announced shortly.

We would be grateful if submissions on the Consultation Paper were sent to us at the Commission's Offices not later than May 22nd 1991.

 

PART I: THE PRESENT LAW

CHAPTER 1: GENERAL

Purpose of the Law of Defamation

1.

The law of tort seeks to redress two types of injury, namely, injury to the person and injury to property. Injuries to the person may be physical or non-physical. The core of the defamation action is one type of non-physical injury to the person, that is, injury to reputation. It can take two forms: libel, which is in written or permanent form and slander, which is in verbal form.

2.

Defamation law attempts to serve and strike a balance between two competing interests, protection of reputation and freedom of speech. There are provisions in the Constitution of Ireland which affect both these interests and to which reference must be made at the outset.

Article 40.3 says:

Article 40.6.1° says:

It will be noted that the Irish constitutional guarantee of free speech is a qualified one. This is in line with most theories of freedom of speech which recognise that freedom of expression requires some regulation.

3.

The action in defamation serves to prevent or provide redress for injury to a person's reputation caused by statements of defamatory effect.

The classic exposition of the basis of defamation law is provided by Cave J in Scott v Sampson²–“Speaking generally the law recognises in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit; and if such false statements are made without lawful excuse, and damage results to the person of whom they are made, he has a right of action”.

The Distinction between Libel and Slander

4.

The law of defamation divides defamatory statements into those which constitute libel and those which constitute slander.³

5.

The distinction between libel and slander has been said to be between an

1 Hughes, Defaming Public Figures, 59 Australian LJ 482, 483.   2 (1882) 8 QBD 491, 503.   3 The historical origins of this distinction are traced in Jones v Jones [1916] 2 AC 481, 489–90; McMahon & Binchy, Irish Law of Torts, 332–3; Winfield & Jolowicz on Tort, 12 ed, 301–2.

 

 

oral and a written statement, the rationale being thought to be that a written statement reveals more design or malice. The more modern view is that the distinction is based on the permanency or transiency of the statement.

6.

There are two main differences between libel and slander. First, libel is always actionable per se, i.e. without proof of special damage. Slander may or may not require proof of special damage, depending on the nature of the words spoken. Secondly, libel is a crime as well as a tort. Slander is not in itself a crime, although certain spoken words may breach the criminal law for being seditious, treasonable, blasphemous or tending to breach the peace.

More modern descriptions of libel include the word “permanent”

Further support for this basis of distinction is found in the Defamation Act 1961, section 15 of which provides that broadcasting by means of wireless telegraphy shall be treated as publication in permanent form. Although section 15 does not state that such a broadcast is a libel, this is presumably the effect of deeming it to be a publication in permanent form.⁷

However as R.F.V. Heuston has pointed out in relation to the equivalent English provision,

4 Per Lopes LJ, Monson v Tussauds Ltd [1894] 1 QB 671.   5 Per Slesser LJ, Youssoupoff v MGM (1933) 50 TLR 581, 587.   6 McMahon & Binchy, Irish Law of Torts, p 331.   7 This view is supported by the Explanatory Memorandum to the Defamation Act 1961.

 

 

7.

Most libels are both permanent and visible. Notably, gestures were slander at common law, and the 1961 Act includes gestures within its definition of “words” (section 14.2). However problems arose where there was a combination of oral delivery and permanency, compounded by modern electronic communication methods. These problems are now resolved by s15 of the Defamation Act 1961.

The reading aloud from a script was held to be the publication of a libel in Robinson v Chambers.⁹ In England, the Theatres Act 1968 treats the publication of words in a play as publication in permanent form, “play” being widely defined, although it excludes domestic performances, rehearsals, and performances to enable records, film, or broadcasts to be made. At common law and apart from statute, it would appear that while a broadcast from a written script is libel, an extemporary broadcast is slander.¹⁰ It was held in Youssoupoff v MGM¹¹ that the communication of defamatory matter by means of a film constituted a libel rather than a slander.

Such questions in relation to the electronic media are now settled by section 15 of the Defamation Act 1961 which provides that:

The Prima Facie Case

8.

The following conditions must be demonstrated by the plaintiff to have been fulfilled in order to establish a prima facie case of defamation:

In an action for libel, the plaintiff need not prove damage since damage is presumed. In an action for slander the plaintiff must in addition prove damage, except in four specific cases.¹²

8 “Recent Developments in the Law of Defamation”, RFV Heuston, (1966) IR Jur 247 at 249.   9 [1946] NI (No 2) 148.   10 Gatley on Libel and Slander, 8 Ed, p 146.   11 [1933] 50 TLR 581.   12 See below paras (39–52).

 

 

Defamatory Effect

9.

The definition of defamatory effect is provided by a compilation of judicial statements. A defamatory effect is said to be produced where a statement tends to lower the person in the eyes of society,¹³or in the estimation of “right-thinking members of society generally”¹⁴or in the eyes of the “average right-thinking man”¹⁵or tends to hold that person up to ridicule, hatred or contempt,¹⁶or causes the person to be shunned or avoided.¹⁷

10.

The standard of a reasonable man is used to measure whether a statement is considered defamatory or not.

The issue of defamatory effect is left to the jury as representing the reasonable man. The ordinary man is presumed to be somewhere between the two extremes of unusually suspicious and unusually naive.

“In defamation, as in perhaps no other form of civil proceedings, the position of the jury is so uniquely important that, while it is for the judge to determine whether the words complained of are capable of defamatory meaning, the judge should not withhold the matter from the jury unless he is satisfied that it would be wholly unreasonable to attribute a libellous meaning to the words complained of”.¹⁸

As it is for the jury to determine whether the words were defamatory or not, the plaintiff or his witnesses may not be questioned as to the effect the words produced on them in the determination of this issue. RTE point out, however, that evidence of this kind can indirectly influence the 'libel or no libel' question in cases where actual damage is claimed, because questioning of this type will be admitted to establish actual damage. RTE claim that juries cannot be adequately warned that such evidence may not be used on the 'libel or no libel' question, and that evidence as to the effect of the statements on friends and family will heavily influence the jury towards the view that it is defamatory.¹⁹

The standard of the reasonable man may be seen as an average or aggregate view of society's opinion. The adoption of an objective standard encounters problems when the statement challenged touches on matter in relation to which there are sharply divided community viewpoints, whether political, social, religious or moral. The statement may be defamatory in the eyes of some sections of society and non-defamatory in the eyes of other sections of society. As McDonald states,

13 Mawe v Piggott (1869) IR 4 CL 54, 59.   14 Sim v Stetch [1936] 2 All ER 1237, per Lord Atkin at 1240.   15 Quigley v Creation Ltd [1971] IR 269, per Walsh J at 272.   16 Parmiter v Coupland (1840) 6 M & W 105, Mawe v Pigott, supra, footnote 13.   17 Youssoupoff v MGM (1934) 50 TLR 581.   18 Per Walsh J, Quigley v Creation Ltd [1971] IR 269, at 272.   19 Part of an RTE submission to this Commission.

 

 

One such issue encountered by the courts is relatively straightforward. This is where the statement challenged alleges that the plaintiff in some way upheld the law. Undoubtedly this would lower the plaintiff in the eyes of a section of the community who felt that the law should not have been upheld. However the courts have refused to hold defamatory a statement which imputes that the plaintiff upheld the law. An older example of this is Mawe v Piggott,²¹ where a newspaper article reported the plaintiff, a parish priest, as saying, “I will watch them, I will denounce them to the tender mercies of the Croydons, the Talbots, the Barrys.” The innuendo alleged was that he would watch men who were ready to give up all for Ireland, and cause them to be prosecuted for a political offence. Lawson J said:

A more recent illustration of this principle is provided by Berry v Irish Times. The plaintiff, who was the Secretary of the Department of Justice, claimed to have been libelled by a placard, reproduced by a newspaper photograph, which bore the words:

It was held by the Supreme Court that the words were not capable of a defamatory meaning. O'Dalaigh CJ, delivering the majority judgment said:

20 McDonald, Irish Law of Defamation, p16.   21 (1869) IR 4 CL 54.   22 Ibid, at 62.

 

 

Fitzgerald J, however, dissenting, identified a standard of opinion of which the law could approve and by which the statement could nonetheless be defamatory:

McLoughlin J, also dissenting, took a similar view:

In Mawe v Pigott, Lawson J considered the result to stem from the straightforward application of the “right thinking members of society” test. Right-thinking members of society could not consider the plaintiff's reputation injured if it was said of him that he upheld the law. However this view of such cases may be artificial. It is perhaps simpler to say that an allegation of upholding the law may never be defamatory, irrespective of the view of the average person. This rule therefore does not flow from the application of an average community standard but rather from the court's duty to uphold the rule of law. In this light the rule is a limited exception to the normal measure of defamatory effect. But the problem at least shows the law grappling to find a community standard by which defamatory allegations are to be measured. One American writer, examining this problem in relation to a similar American case, Connelly v McKay, notes that this exercise involves a slight shift in emphasis from the actual injury to reputation to enforcement of community standards.²⁶

The problems which are hinted at in the above type of case become more acute where the statement challenged concerns moral or political questions about which opinions are sharply divided. For example, is it defamatory to

23 Ibid, at 375.   24 Ibid, at 378.   25 Ibid, at p 379–80.   26 See Post, 74 Calif L Rev 691, at 714–5, discussing Connelly v McKay, 176 Misc. 685, 28 NYS 2d 327 (1941). In that case the plaintiff maintained a service station and rooming house primarily patronised by interstate truck drivers. The plaintiff brought a libel action in respect of an allegation that he was informing the authorities of the names of truck drivers who were violating interstate rules. The Court refused to allow an action where the allegation concerned the giving of information on violations of the law to the proper authorities.

 

 

say (1) that a person was raped, (2) that a person engaged in extra-marital sexual intercourse (not consisting of adultery), (3) that a person was a “scab”? In America, such problems have arisen in relation to statements alleging a person is a Communist, or is a Republican where he is in fact a Democrat. In relation to an allegation of rape, there are two judicial statements to the effect that such an imputation is defamatory. The first is in Youssoupoff v MGM,19 where such an allegation formed the basis of libel proceedings. The second is the following dictum of Walsh J in Quigley v Creation Ltd–

Walsh J appeared to be of the view that although this was undesirable, the allegation of rape would in fact lower the plaintiff's reputation. However whether a statement “in fact” injures reputation may be more difficult, as with the examples of the “scab” or the “Democrat-Republican” above. Members of society may differ in their reaction to a statement although they are all on “the right side” of the law. According to which reaction is the Court to assess the effect of the statement? Modern Irish cases have been sensitive to this problem and have on more than one occasion recognised that a statement may be defamatory if it lowers the plaintiff's reputation in a section of the community only. For example, Walsh J stated in Quigley v Creation Ltd that words are defamatory if they injure the plaintiff's reputation “in the eyes of a considerable and respectable class of the community, though not in the eyes of the community as a whole”. In Berry v Irish Times, McLoughlin J said with regard to the phrase “right-thinking people”, “it does not mean all such people but only some people, perhaps even only one, because if a plaintiff loses the respect for his reputation of some or even one right-thinking person he suffers some injury”.

11.

The determination of the defamatory effect of a statement does not take into account the intention of the speaker.

An objective test is used to determine the meaning of a statement i.e. how the ordinary reasonable man would understand the words. Accordingly, (a) a statement which the ordinary reader would understand as defamatory will be so, even if the speaker meant no harm, (b) a statement which the ordinary reader would not find defamatory will not be so, even if the speaker was

27 [1971] IR 269, at 272.

 

 

malicious. As Monahan CJ stated in 1856: “the question was not what the writer intended, but what effect (the words) were likely to produce on the person who read or heard them”.²⁸

This follows from the rationale underlying defamation, which emphasises the effect of a statement on a standard of opinion, represented by the jury;

12.

Mere vulgar abuse is not defamatory

The defence of vulgar abuse is probably entirely confined to cases of slander, since the context of a remark is much more significant in the case of slander. In the case of a written statement, one may expect a certain degree of deliberation. It is unlikely that a written statement would be protected on grounds of being mere vulgar abuse.

13.

Ridicule is defamatory

In the Dunlop case, the plaintiff sought an injunction to restrain the defendant company from distributing material in Ireland containing caricatures, in which he was depicted “in an exaggerated foppish manner” and in absurd attitudes. The issue was whether leave to serve out of the jurisdiction should be allowed, and therefore Powell J did not determine whether such representation of the plaintiff was in fact defamatory, but as he found that it was capable of being so, he refused to discharge the order giving leave to serve out.

Nonetheless, material to which the plaintiff objects as ridicule may be found by the court to be mere humour, and therefore not defamatory. In Emerson v Grimsby Times,³¹ the alleged libel consisted of a full 'account' in the local newspaper of the plaintiff's wedding, and a statement about the honeymoon,

28 White v Tyrell (1856) 5 ICLR 477, 487.   29 Per May CJ, Bolton v O'Brien (1885) 16 LR Ir 97, 108.   30 Dunlop v Dunlop Rubber Co [1920] 1 IR 280, per Powell J at 291.   31 (1926) 42 TLR 238.

 

 

which was published one day before the plaintiff's wedding actually took place. The plaintiff's claim was struck out as frivolous and vexatious.

It may be that forms of satire or comedy are increasingly being held to be defamatory. McDonald cites a Circuit Court case in 1977, Thorpe & Lee v Ames³² in which two barmen recovered damages for the following statement in a local newspaper:

RTE are of the view that there is a trend towards holding comical or satirical statements to be defamatory, and that this inhibits their presenting of comedy on television.³³

Burden of Proof and Defamatory Effect

14.

The burden of proof lies on the plaintiff to establish that a defamatory imputation is conveyed.

The defamatory nature of a statement is not to be confused with its falsity. While the burden is on the plaintiff to show that the statement was of a defamatory nature, he is not obliged to prove its falsity. The law presumes the falsity of defamatory statements.³⁴

The Meaning of Words

(a) The innuendo

15.

The terminology of defamation law refers to the different meanings that may be ascribed to words as (a) the “ordinary and natural meaning” and (b) the “innuendo”. In every day conversation, the word “innuendo” is used by people as referring to a statement made by way of hint or suggestion rather than directly. In the law of defamation, it has a different and rather artificial meaning.

The distinction in law between (a) the ordinary and natural meaning of words and (b) an “innuendo” is best illustrated by examples. If it is said of a man that he was seen frequently entering a brothel, the words are regarded by the law as capable of being defamatory in their ordinary and natural meaning. If the statement is simply to the effect that the person was seen frequently entering a named premises, the words would not be regarded as capable of being defamatory in their ordinary and natural meaning. If, however, the

32 Irish Times, 23 November 1977.   33 Part of an RTE submission to this Commission.   34 para 62.

 

 

named premises was a brothel, the statement is capable of containing a defamatory implication to any one who knew that the house was a brothel but not to any one who did not.³⁵ In this latter instance, the words, although not defamatory in their ordinary and natural meaning are capable of being defamatory by reason of an innuendo. The innuendo, it will be seen, depends upon the proof by the plaintiff of extrinsic facts which demonstrate that a statement innocent on its face is defamatory.

However, the expression “the ordinary and natural meaning” of words is deceptive, because it encompasses two things: the direct, literal meaning of the words and an inferential meaning inherent in those words. For example, the statement “McCarthy committed the murder” is plainly defamatory and requires no explanation. If, however, a lengthy article were to set out that McCarthy was in the vicinity of the crime, was found with the murder weapon and had a motive for killing the victim, it might not directly implicate McCarthy in the murder, but he could well argue that this meaning was to be inferred from the article. Understandably, the layman would regard this as a classic example of an “innuendo”, but the law does not: it treats that inferential meaning as part of the “ordinary and natural meaning” of the words and not as an innuendo.

The confusion frequently evidenced in this area has been compounded by an insistence in England on referring to the meaning which depends on the establishment of extrinsic facts as a “true” innuendo, as distinct from the “false” innuendo where the pleader is simply elaborating the ordinary and natural meaning of the words. It is time that this unhappily worded terminology was replaced by the clearer distinction suggested by Lord Devlin, i.e. that between the “legal innuendo” and the “popular innuendo”.³⁶

One of the clearest examples of a legal innuendo is Tolley v Fry and Sons.³⁷ The defendants, by way of advertisement for their chocolate product, issued a caricature of the plaintiff depicting him playing golf with a packet of their chocolate protruding from his pocket. Such a caricature was, of course, not defamatory per se: if the plaintiff was a professional golfer, there would have been nothing inconsistent with his status in his endorsing some one's products (by implication for reward). But the plaintiff was in fact an amateur golfer and the House of Lords held that the caricature was capable of bearing the meaning alleged in the legal innuendo, i.e. that the plaintiff had agreed to promote the defendant's products for reward and had thereby prostituted his reputation as an amateur golfer.

By contrast, in Irish People's Assurance Society v City of Dublin Assurance Company Limited³⁸ the plaintiff company claimed that a reproduction of

35 Lewis v Daily Telegraph [1962] AC, per Lord Devlin at 278.   36 Lewis v Daily Telegraph [1964] AC 234 at 279–280.   37 [1931] AC 333.   38 [1929] IR 25.

 

 

extracts from their balance sheet out of context implied that they were insolvent. This was clearly a “popular innuendo” as distinct from a “legal innuendo”, since it did not depend for its establishment on the proof of extrinsic facts. The confusion rife in this branch of the law is, however, demonstrated by the fact that both Fitzgibbon J and Murnaghan J in the Supreme Court referred to it without qualification as an “innuendo”.

(b) Pleading Innuendos

It might be thought that the distinction discussed in the preceding section is of academic importance only. This is to some extent true, but it has also a practical significance so far as the pleadings in defamation actions are concerned.

In the case of the legal innuendo, it might seem reasonable that, not merely the special meaning being attributed to the words should be pleaded, but also the extrinsic facts alleged to give rise to that meaning. It has always been, and still is, necessary to prove the supporting extrinsic facts at the trial and prior to the Common Law Procedure Amendment Act (Ireland) 1853, it was also necessary to plead the material extrinsic facts. The law was regarded as having been settled in this sense by the judgment of de Gray CJ, giving the unanimous decision of the judges in R v Horne³⁹ in 1777. The Irish Act of 1853, like its English counterpart of the preceding year, however, did away with the necessity of pleading the material extrinsic facts. Thereafter, in both England and Ireland only the innuendo meaning had to be pleaded and not the supporting facts, although it remained the practice to plead those facts. In England, however, the law was changed in 1949 as a result of a recommendation of the Porter Committee who thought that ignorance of the extrinsic facts supporting a legal innuendo could surprise and prejudice a defendant. As a result, Order 19, Rule 6(2) (RSC) was introduced, providing that:

There was no corresponding change in Ireland and in Kavanagh v The Leader and Another,⁴⁰ Lavery J said that the law still was that the extrinsic facts did not have to be pleaded. Since then, Order 19 Rule 5(1) of the Rules of the Superior Court 1986 has been introduced requiring particulars of the wrong alleged to be pleaded in the Statement of Claim. In the absence of any decision as to whether this general rule has altered the special position in defamation cases, the law remains to some degree uncertain. It is, however, customary in practice to plead the necessary extrinsic facts in the Statement

39 (1777) 2 Camp 680.   40 S Ct, unreported, 4 March 1955.

 

 

of Claim.

The English Act of 1852 introduced another change which was not parallelled in Ireland. Thereafter, a legal innuendo – as distinct from a popular innuendo – gave rise to a separate cause of action. Hence if the words were defamatory in the ordinary and natural meaning and also by reason of a legal innuendo, the plaintiff was entitled to a separate verdict in respect of each alleged meaning and, if he succeeded, to damages in respect of each meaning. Moreover, if more than one legal innuendo were pleaded, he was entitled to a separate verdict in respect of each such legal innuendo. A further consequence of this in England was that, if the plaintiff failed to establish a legal innuendo, he could fall back on the ordinary and natural meaning of the words. Blackburn J stated in Watkin v Hall:

However, as the Irish Act of 1853 contained no equivalent provision, the Irish Courts continue to apply the former rule, that if an innuendo was pleaded and subsequently rejected, the plaintiff was not permitted to rely on the defamatory meaning of the words in their ordinary and natural sense. As was stated in Bolton v O'Brien⁴¹:

The twofold rationale for this rule was adverted to by Johnson J in the Queens Bench division in Fisher v Nation Newspaper and Rooney.⁴² First, the plaintiff by pleading an innuendo is saying that the defendant spoke the words in an innuendo sense and, when the jury finds that they were not spoken in this sense, it is as though they were never spoken at all. Second, it would take the defendant by surprise to expect him to defend a meaning at trial which he did not expect. However, in Fisher's case, the Court of Appeal reversed the Queen's Bench Division and laid down a new rule that a plaintiff should be allowed to fall back on the natural meaning of the words even if they had not been specifically relied on in the pleadings. The major consideration influencing the Court appears to have been a desire to make the English and Irish systems identical:

41 (1885) 16 LR Ir 97.   42 [1901] 2 IR 465.

 

 

In Kavanagh v The Leader,⁴³ Lavery J considered the decision in Fisher's case to be settled law.

So much for the legal innuendo. As for the popular innuendo, it was at one time the law in England, and may still be the law in Ireland, that there was no particular obligation on the plaintiff to specify in his meanings the popular innuendoes upon which he will rely. However in a series of decisions in the early 1970s, the Court of Appeal in England held that it was necessary for the plaintiff to set out the meaning alleged where the words were capable of more than one meaning. The Faulks Committee, examining the law in 1975, understood the effects of these decisions to be as follows:

The Faulks Committee thought that the precise rules on pleading popular innuendoes were not settled and recommended clarification in this area.

The rules as to pleading innuendoes, whether legal or popular can, accordingly, be stated as follows:

16.

Where a legal innuendo is relied on, the extrinsic facts supporting it must be proved at the trial if the plaintiff is to succeed upon the innuendo. However, it would appear that it is not necessary in Ireland to plead the extrinsic facts in the Statement of Claim, although this appears to be the normal practice.

17.

Where one or more legal innuendoes are successfully pleaded, each gives rise to a separate cause of action, entitling the plaintiff to a separate verdict and award of damages in respect of each innuendo.

18.

Where a plaintiff pleads a defamatory meaning in the legal innuendo sense only and fails, he may fall back on the ordinary and natural meaning of the words.

43 Supra, footnote 40.

 

 

19.

Where it is contended that words are defamatory in their ordinary and natural meaning, it is not necessary for the plaintiff to plead any more than the words themselves. Hence where the plaintiff relies on a popular innuendo, it is not necessary in general for him to plead such an innuendo. However, it is probably necessary to plead such an innuendo where

20.

A defamatory meaning may be conveyed by publishing true and accurate matter in a misleading way or context.

In Irish People's Assurance Society v City of Dublin Assurance Company Limited, the alleged libel consisted of extracts from balance sheets. The plaintiff pleaded that the reproduction of these extracts out of context implied that the company was insolvent and that it was financially unsafe for policy holders to insure with them. The trial judge ruled that the document was true in substance and fact and directed that judgment be entered for the defendants. An appeal to the Supreme Court was allowed, on the ground that the jury should have determined whether the document as a whole conveyed an accurate impression of the society's financial position.

Fitzgibbon J stated:

Similarly, in the earlier English case of Monson v Tussauds Ltd, Lord Halsbury said:

21.

The determination of the defamatory effect of a statement is a question for the jury. It is a general rule that a witness may not be asked what the

effect of the statement was on him. This admits of one exception, viz. a witness may give evidence of defamatory meaning where a legal innuendo is involved.

In Kenny v Freeman's Journal⁴⁴ the issue was whether a new trial should be granted on the basis that evidence was improperly received, such evidence including that of witnesses as to the effect produced on them upon seeing the cartoon which constituted the libel. Palles CB stated:

A common example of such evidence being received is in the case of an ironic statement; it appears also to be the case in relation to pictures and cartoons. The basis for the rule and its exception appears to be that where the meaning is plain, the jury are capable of interpreting it alone, but witness evidence is admissible where the meaning is more complicated:

22.

All facts going to make up a libel must be known at the time of publication. Facts coming to the knowledge of a reader/hearer after this time are irrelevant.

In Grappelli v Derek Block (Holdings) Ltd,⁴⁷ the defendants had made bookings for concerts by the plaintiff, a musician of international repute, without his consent, and these were cancelled. On the occasion of cancelling the venues, the defendants told the managers of the concert-halls that the plaintiff was seriously ill and would probably never tour again. This false explanation was passed on to members of the public. Subsequently, notices appeared in newspapers announcing forthcoming concerts by the plaintiff. The plaintiff brought an action alleging that the defendant's statement gave rise to an innuendo that he had previously given a reason for cancelling concerts which

44 (1892) 27 ILTR 8.   45 Ibid, p 8–9.   46 Ibid, at p 9.   47 [1981] 2 All ER 272.

 

 

he knew to be false. It was held that, since the cause of action arose as soon as the words complained of were published, any extrinsic facts relied upon to support the innuendo had to be known to the audience at the time of publication. Accordingly, inferences put on the words as a result of facts coming to light after the publication did not make the words defamatory. (This might seem a somewhat harsh result, but it should be borne in mind that the plaintiff had a possible alternative remedy in injurious falsehood).

The Grapelli case was, however, distinguished in Hayward v Thompson⁴⁸ where facts coming to the knowledge of the readers subsequent to the initial publication were held admissible as they pointed to the identity of the person defamed. In that case, the plaintiff was well-known for his support of many charitable causes in Great Britain, and between 1970–1975 he contributed over £200,000 to the Liberal Party. In 1978 an article appeared in a national newspaper stating that the names of several people connected with an alleged murder plot had been given to the police, one of them being a “wealthy benefactor of the Liberal Party”. A second article named the plaintiff in connection with the investigations. The plaintiff contended the articles meant that he was guilty or reasonably suspected of participating in or condoning the murder plot, and that the second article identified him as the person referred to in the first article. The jury awarded £50,000 damages. The Court of Appeal dismissed an appeal by the defendants, holding that although it is not possible to bring in a publication to make words defamatory which were not so in the initial publication, this does not apply were the words used in the first article are defamatory and the only question is one of identification.

Functions of Judge and Jury

23.

Determination of whether the statement was capable of being defamatory is a matter for the judge. Determination of whether the statement was in fact defamatory lies with the jury.

A further authoritative statement as to the respective provinces of judge and jury in a defamation case is provided by Henchy J in Barrett v Independent Newspapers:

48 [1981] 3 All ER 450.   49 Per Parke B in Parmiter v Coupland (1840) 6 M & W 105, 107.

 

 

24.

It is settled that the trial judge may withdraw the issue of libel or no libel from the jury on the ground that the words complained of are not capable of defamatory meaning. There has been more controversy as to whether the judge may withdraw the issue from the jury on the grounds that the jury would be perverse in holding that they were not defamatory, but the current Irish position is that he may not do so.

The role of the jury in defamation actions was stressed by Walsh J in Quigley v Creation Ltd,⁵¹:

It has also been said that, in arriving at a conclusion as to whether the words are capable of defamatory meaning, unlikely and fanciful constructions should be avoided. The law was thus stated by Lord Morris of Borth-y-Gest giving

50 [1986] ILRM 601, 606.   51 [1971] IR 269, 272.   52 But the actual finding in that case – that to say of a well known Irish actor that he chose to work and live in London because the rewards and opportunities there were better than in Ireland was capable of a defamatory meaning – seems surprising. Can it really be defamatory to say of an artist that he prefers to work abroad because he can make more effective use of his talents in another country?.

 

 

the advice of the Privy Council in Jones v Skelton:⁵³

It also follows that a judge may withdraw a particular innuendo from the jury on the basis that the words were incapable of bearing that particular defamatory meaning.

In Barrett v Independent Newspaper,⁵⁴ the converse situation arose. The trial judge held that the words complained of were defamatory as a matter of law, and left only the question of damages to the jury. The Supreme Court on appeal, by a majority of three to two, held that the judge had usurped the function of the jury in holding that the words were defamatory. As Henchy J noted,

However, McCarthy J, dissenting, was of the opinion that the words in their ordinary meaning were clearly defamatory, that a finding by the jury to the contrary would have been perverse, and that therefore the trial judge was correct in acting as he did. Finlay CJ was of the same view:

It may be noted that the view of the dissentients in the Barrett case was foreshadowed by Fitzgerald and McLoughlin JJ in Berry v Irish Times.⁵⁶ There, the jury had found that the publication of the words was not defamatory. The plaintiffs appeal, on the ground that this finding was perverse and the trial unsatisfactory, was dismissed by the Supreme Court. However the dissenting judges felt not only that the words were defamatory, but that they were so

53 [1963] 3 All ER 952 at p958.   54 [1986] ILRM 601.   55 Ibid at, p 603.   56 [1973] IR 368.

 

 

clearly so that a new trial should be ordered and limited to the assessment of damages. In other words, they envisaged a new trial where the issue of defamatory effect would not be left to the jury, because the statement was incapable of innocent meaning.

However, the current Irish position on this point would appear to be represented by the majority view in the Barrett case. Accordingly, while the issue of libel or no libel may be withdrawn from the jury where the judge rules the words incapable of defamatory meaning, he may not do the same in respect of words he thinks incapable of innocent meaning.

Identification

25.

It is an essential element of the tort of defamation that the plaintiff was identified in the statement complained of. The plaintiff must satisfy the judge that he is reasonably capable of being identified from the statement. He must then satisfy the jury that he was in fact the person referred to. In most cases, the plaintiff is named; however, in others extrinsic evidence may be necessary.

In Berry v Irish Times,⁵⁷ the placard complained of merely bore the plaintiff's name, but it was not contested that this referred to the plaintiff who was the Secretary to the Department of Justice at the time.

Extrinsic evidence was admitted in the Fullam case⁵⁸ in order to identify the plaintiff, who was a renowned footballer. The defendants had stated in a newspaper article that the plaintiff used his right foot for balancing only and that the club managers had devised a scheme to improve his shooting by requiring him to wear a carpet slipper. (The article was published some 25 years after the end of the plaintiff's career). Objection was taken on behalf of the defendants to the admission of evidence of jeering by crowds and neighbours of the plaintiff. The evidence was held admissible for the purpose of identifying the plaintiff as the target of the libel.⁵⁹ Similarly, in Morgan v Odhams Press Ltd⁶⁰ and Jozwiak v Sadek⁶¹ extrinsic evidence was admitted to establish identification of the plaintiff.

The case of Sinclair v Gogarty⁶² involved an application for an injunction restraining the publication of a book entitled “As I Was Going Down Sackville Street”. One of the questions for the court was whether the passages

57 Ibid.   58 Fullam v Associated Newspapers Ltd [1953–54] Ir Jur Rep 79, [1955–56] Ir Jur Rep 45.   59 Furthermore, although such evidence is not admissible for the purpose of assessing the defamatory effect of a statement, if it is admitted for the purpose of identification, the jury need not be directed to exclude the evidence from their minds when considering the former issue.   60 [1971] 2 All ER 1156.   61 [1954] 1 All ER 3.   62 [1937] IR 377.

 

 

complained of clearly referred to the plaintiff his brother and his grandfather. Hanna J accepted the uncontradicted evidence of Mr Samuel Beckett that the passages did refer to the plaintiff and that there were “sufficient indicia” in the passages to give readers the “necessary clue to their identity”. Not only does the case illustrate the admissibility of extrinsic evidence to establish identity: it also emphasises that a thin veneer of disguise will not protect an author from libelling identifiable people:

26.

At common law the test of identification does not take into account the intention of the defamer.

The test of identification is whether the words would be understood by reasonable people to refer to the plaintiff. Therefore, the intent of the defendant is irrelevant in this context:

In Hulton v Jones,⁶⁵ the defendants who were proprietors and publishers of a newspaper, published defamatory statements about a person whom the author and editor thought to be fictitious. Unknown to them, the name used was actually the name of the plaintiff. It was held that in an action for libel, it was no defence to say that the defendant did not intend to defame the plaintiff, if reasonable people would find the language to be defamatory of the plaintiff.⁶⁶

The newspaper involved in Newstead v London Express Newspaper⁶⁷ published an account of the bigamy trial of one “Harold Newstead, 30 year old

63 Ibid, per Hanna J at p 380.   64 Youssoupoff v Metro-Goldwyn-Meyer, (1933) 50 TLR 581, per Scrutton LJ at p 583.   65 [1910] AC 20.   66 It may be that the holding in that case was influenced by the fact that the plaintiff had previously worked for the newspaper in question, and that in some senses the defendant was reckless in failing to realise that the “fictitious” name could refer to a real person. However the strict rule emerging from that case was applied thereafter even where there was no recklessness involved on the part of the defendant.   67 [1940] 1 KB 371.

 

 

Camberwell man”, which was true of a barman of that name, but not as regards a hair-dresser of the same name. It was held on appeal that the evidence would have justified a jury finding that reasonable persons would understand the words to refer to the plaintiff, and that the fact that they were true of another person than the plaintiff did not afford a good defence. A similar lack of detail was fatal to the defendant in Outram v Reid.⁶⁸ The Glasgow Herald published a notice, abbreviated from the Edinburgh Gazette, noting the bankruptcy of a wine and spirit merchant, without citing the address. A wine and spirit merchant of the same name recovered damages. The strictness of the common law position exemplified by these cases is now affected by s21 of the Defamation Act 1961 and will be considered in more detail under Unintentional Defamation below.⁶⁹

However, if the defendant does not avail of the statutory machinery, the common law rule on liability applies. A recent example of a case of mistaken identity is Charles Merrill v Sunday Newspapers Ltd.⁷⁰ The plaintiff claimed that an article published in the Sunday World confused him with Charles Merrill-Mount, also an American living in Dublin, who was convicted of selling letters and documents from the US Congress Library. The plaintiff also claimed that the defendants published a photograph of himself with the caption, “Charles Merrill-Mount pictured in Dublin in 1972”. The defendants admitted that a mistake had been made and apologised to the plaintiff. The jury awarded £35,000 damages.

27.

Indirect Identification: In some cases, the plaintiff may establish that he was indirectly identified and defamed, although he was not referred to in any sense in the alleged libel.

The most commonly cited example of this is Cassidy v Daily Mirror Newspapers Ltd,⁷¹ where a photograph of one Mr C and a Miss X was published together with the words; “Mr C, the racehorse owner, and Miss X, whose engagement has been announced”. In fact, Mr C was married to the plaintiff who was not referred to in any sense in the photograph. Nonetheless, it was held that she was entitled to recover damages for libel and that a meaning defamatory of her had been conveyed, namely, that she “was an immoral woman who had cohabited with Corrigan without being married to him”. Scrutton LJ said the following:

68 (1852) 14 D. 577, cited by Walker, Delict, p 751.   69 At para 116 below.   70 Reported Irish Times, 9 and 10 June 1989.   71 [1929] 2 KB 331.

 

 

A similar mistake of identity occurred in Hough v London Express Newspapers Ltd.⁷³ The libel consisted of the following statement:

The plaintiff, Mrs Hough, who was not “curly headed”, successfully relied on the innuendo that the words implied that she was a dishonest woman falsely representing to be Hough's wife.

Again in Morgan v Odhams Press Ltd,⁷⁴ the article complained of did not directly refer to the plaintiff. The article concerned a dog-doping gang and a girl who had helped a reporter and police in connection with their arrest and was headed; “Dog-doping girl goes into hiding”. It stated that the girl had been kidnapped by members of the gang and kept in a house in Finchley. In fact, the girl in question had been under the charge of the plaintiff reporter for some time, had stayed at lodgings and at his flat, and had been seen with him by other people. The plaintiff successfully contended that the article was defamatory of him, in that it suggested that he was connected with the dog-doping and kidnapping activities.

28.

Group Defamation

No member of a group or class can bring an action in respect of defamatory statements made about the group unless he can establish that he was specifically referred to. The circumstances or words of the statement may indicate a reference to the plaintiff. Furthermore, where the reference is to a limited group, the plaintiff may be able to maintain an action. It is a matter of law for the Judge as to whether the words are capable of referring to the plaintiff who must then satisfy the jury that he was identified as a matter of fact.

72 Ibid, at p 338–9.   73 [1940] 2 KB 507.   74 [1971] 1 WLR 1239.

 

 

The general rule is illustrated by a 1913 Irish case, O'Brien v Eason & Son.⁷⁵ In this case, an individual member of the Ancient Order of Hibernians brought an action in respect of comments made about this organisation in a weekly journal printed in England and circulated in Ireland. It was held that he could not maintain an action in respect of reflections upon a class or association, merely by virtue of his being one of its members. Commenting on the lack of sufficient identification, Cherry LJ said:

Lack of precise identification was again the rationale for the dismissal of the plaintiff's action in Gallagher & Shatter v Independent Newspapers.⁷⁷ A letter to the Evening Herald referred to a case in which the plaintiffs had acted as solicitor, involving the banning of a booklet on family planning, and described it as one of the examples of behind-the-scenes scheming and plotting against the Constitution and Catholic life by a handful of solicitors and judges. The jury found that the words complained of did not refer to the two plaintiffs. This seems unduly restrictive since many people would have known exactly who the acting solicitors were.

The circumstances or the wording of the article may disclose a reference to the plaintiff. An example of this is Le Fanu v Malcolmson,⁷⁸ in which the article complained of suggested that cruelties were practised upon employees in certain Irish factories. Although this appeared to be a class defamation, certain other statements in the article, including a reference to Waterford, constituted sufficient evidence for a jury to identify the plaintiff's factory as the one primarily attacked.

The size of the class referred to may have a bearing on whether the plaintiff may maintain an action. As Willes J expressed the matter in Eastwood v Holmes:⁷⁹

Yet if a man wrote that all lawyers in town X were thieves, and there were only two lawyers in that town, there would be sufficient identification of these two individuals.⁸⁰ This is illustrated by Browne v DC Thomson & Co,⁸¹ where

75 (1913) 47 ILTR 266.   76 Ibid, at 268.   77 Reported in the Irish Times, 10 May 1980.   78 (1946) 8 ILR 418; (1948) 1 HLC 637.   79 1 F & F 347, 349.   80 This principle seems difficult to reconcile with the application of the law by the jury in the Gallagher and Shatter case.

 

 

a newspaper article stated that in Queenstown “the Roman Catholic religious authorities” had abused their influence. The seven pursuers showed that they were the sole persons who exercised Roman Catholic authority in Queenstown, and were held entitled to sue in libel as individually defamed. Lord Kinnear stated:

An authorative exposition of the rule in this context emerges from Knuppfer v London Express Newspapers Ltd.⁸² Viscount Simon LC stated:

The crucial question is reference to the plaintiff, and not the size of the class:

Duncan & Neill⁸⁴ put forward the following statement on the law relating to group defamation:

81 [1912] SC 359.   82 [1944] AC 116.   83 Ibid, at 199.   84 Duncan & Neill, Defamation (1978), para 6.13, p 30. Footnote omitted.

 

 

Publication

29.

For a defamatory statement to be actionable, it must have been published to someone other than the plaintiff himself. This is because defamation serves to protect reputation in the eyes of others, and not merely hurt pride on the part of the plaintiff.

“What is the meaning of publication? The making known of defamatory matter after it has been written to some person other than the person of whom it is written. If the statement is sent straight to the person of whom it is written, there is no publication; for you cannot publish a libel of a man to himself”.⁸⁵ Accordingly, the sending of a letter or the stating of defamatory matter to the individual concerned will not of itself constitute publication.

In Berry v Irish Times,⁸⁶ McLoughlin J defined defamation as a publication which tends to injure reputation in the minds of right-thinking people and continued: “It does not mean all such people but only some such people, perhaps even only one, because if a plaintiff loses the respect for his reputation of some or even one right-thinking person he suffers some injury”.

One American writer has referred to the “defamation triangle” because of the necessity of third party involvement:

85 Per Lord Esher MR, Pullman v Hill, [1891] 1 QB 514, 517.   86 [1973] IR 368.   87 Epstein, Was New York Times v Sullivan Wrong? 53 U Chicago L Rev 782, 785.

 

 

30.

In some situations, there may be a handing over of defamatory matter to someone other than the plaintiff, but there is no publication in law. Where a typist hands back material to an employer, or a printer to the author, there is no publication. However, the initial passing of the material to the typist or printer will constitute publication.

As Andrews LCJ stated in Eglantine Inn v Smith:

Nonetheless, although there is no publication, a printer may be held liable as a concurrent wrongdoer with the publisher. In the Eglantine case, an official of a trade union composed a handbill defamatory of the plaintiffs, which was printed by the defendant printers in the ordinary course of business and subsequently distributed by agents of the trade union. Andrews LCJ stated:

The implications of this decision may be far-reaching. Presumably the position of a typist would not be affected, since it could seem unfair that a typist who has no choice but to follow orders would be held jointly liable for a libel published by his or her employer. A printer might be said to be in a different position in that they have a choice whether to accept the publication for printing or not. This point will be returned to when considering defences in respect of printers.

“Malicious” Publications

31.

It is normally said that the words must be published “maliciously”. The older cases say that malice is the gist of defamation. However, malice in this context refers to the wrongful intent which the law presumes from the making

88 [1948] NI 29, 33.   89 The phrase “joint tortfeasor” has been replaced in Irish law by “concurrent wrongdoer” since the enactment of the Civil Liability Act 1961.

 

 

of a defamatory statement and is known as “malice in law”. Accordingly, the word “maliciously” is a formality which is normally inserted in the statement of claim. “Malice in fact” may, however, be relevant to certain defences.

32.

Incidental Publication: If the defendant communicates defamatory matter to the plaintiff and a third party becomes aware of it, the defendant is liable for the publication to the third party only if he could reasonably have anticipated the third party intervention.

If the defendant leaves his correspondence about, or puts letters in wrong envelopes, or speaks too loudly, he will be liable because he could have anticipated that a third party would become aware of the defamatory material. However if the third party becomes aware of the material through an unauthorised act, the defendant will not be liable. Lord Esher MR, speaking in 1891, stated:

Similarly, in Huth v Huth,⁹¹ there was held to be no publication by the defendant where the posted communication had been taken out of its envelope and read by a butler, in breach of his duty and out of curiosity.

It will depend largely on the facts of each case whether the defendant should have foreseen the possibility of third party intervention. In Paul v Holt,⁹² the defendant sent a letter to a “Mr Paul, Ardavoyle, Meigh, Newry”. The plaintiff had a brother by the same name, living in the same district. The letter was read by the brother, his wife and the plaintiff's wife. On appeal, it was held that the case should have gone to the jury because there was no want of publication. The defendant should have proved that he did not know of the existence of the plaintiff's brother. Conversely, in Keogh v Incorporated Dental Hospital⁹³ where the letter complained of was opened by the plaintiff's assistant, who was authorised to open letters in his absence, it was held that there was no publication. The defendants did not know, nor ought they have known, that the plaintiff had a clerk who was authorised to open his letters. In the Paul case, the defendant should have anticipated that the plaintiff might have a brother of the same name in the same district; in the Keogh case, the defendants need not have anticipated that a clerk might open a letter sent to a business address. From these two cases, it is perhaps questionable whether a sufficiently uniform standard of foreseeability is applied to defendants. It is possible that the bare facts of the Keogh case are coloured by the context in which the letter was written, namely, “a communication sent by the

90 Pullman v Hill, [1891] 1 QB 524, 527.   91 [1915] 3 KB 32.   92 69 ILTR 157 (1935).   93 [1910] 2 IR 166, 577.

 

 

defendants, at his own request to the plaintiff, to the address given by him, though in fact opened by an assistant of the plaintiff, of whose existence or duties it is not proved the defendants had any knowledge”.⁹⁴

Postcards

There is a legal presumption that the sending of a postcard is a publication.⁹⁵ Theoretically, this is justified because the law may assume in such a case that the sender should have anticipated the possibility of communication to a third party. However, the presumption has more to do with the practicalities of proof:

Swinfen Eady LJ re-affirmed the foreseeability principle in the Huth case:

Husband and Wife

A communication between spouses is not a publication. Although this was formerly rationalised on the basis of the marriage unit in law, it now appears to be based on an argument of practicality. In Wennhak v Morgan,⁹⁸ Manisty

94 Per Dodd J, Keogh v Incorporated Dental Hospital [1910] 2 IR 166, 577 at p 589.   95 Robinson v Jones (1879) 4 LR Ir 391.   96 Huth v Huth, [1915] 3 KB 32, per Lord Reading CJ at 39. In that case, the Court refused to extend the presumption of publication to unsealed envelopes.   97 [1915] 3 KB 32, 43.   98 (1888) 20 QBD 635, 639.

 

 

J stated:

A situation distinct from this is where a third party makes a defamatory communication to one spouse concerning the other. In such a case there is publication. In Theaker v Richardson,⁹⁹ the defendant, who was a rival candidate to the plaintiff in an imminent election for a local district council, wrote a letter addressed to the plaintiff and delivered it to her home. The plaintiff's husband opened it, thinking it was an election address. The jury found that it was a natural and probable consequence of the defendant's delivery of the letter that someone other than the plaintiff would open it, and it was held on appeal that the jury findings should not be disturbed.

A number of comments as to this case may be made. First, it does not lay down the proposition that judicial notice is taken of the fact that spouses read each other's letters. It confirms that the question of publication depends on the state of the defendant's knowledge, proved or inferred, as to the conditions likely to prevail at the destination of the letter. Commonsense, however, dictates that while the normal foreseeability test is applied, the reading of a letter by a spouse is an act which a jury will usually find to be capable of being anticipated by the defendant. Secondly, the case confirms that the communication of defamatory matter by a third party to a spouse does constitute publication.

There is no decision of which we are aware as to whether this principle extends to unmarried persons who are cohabiting or to those whose marriages outside the State are not recognised in this jurisdiction.

Innocent Dissemination and Distributors

33.

Each time a person becomes aware of a defamatory statement there is an actionable publication. Technically, therefore, a libel on a television show would be a publication to every person who saw the show. Every person who repeats a libel is liable for its publication.

34.

However, a distinction is drawn between those who take an active part in the publication and mere distributors. Prima facie the distributor is liable for publication. However, he may escape liability by showing:

The burden of proof is on the defendant-distributor to displace the prima facie presumption of publication.

The rule that a news vendor could escape liability on this basis was laid down in Emmens v Pottle,¹⁰⁰ and affirmed in Vizetelly v Mudie's Select Library.¹⁰¹ The principles in this area were clearly explained by Romer LJ:

The rule in Emmens v Pottle was recognised in three Irish cases concerning Easons and Son; FitzGibbon v Eason & Son,¹⁰³Ross v Eason & Son,¹⁰⁴McDermot v Eason & Son.¹⁰⁵

What sort of circumstances might alert a distributor to the fact that a newspaper might contain a libel? One answer is the nature of the material itself:

100 (1885) 16 QBD 354.   101 [1900] 2 QB 170.   102 Ibid, at 180.   103 (1910) 45 ILTR 91.   104 (1911) 45 ILTR 89.   105 (1914) 48 ILTR 1.

 

 

Another answer is the context of the publication. In McDermott v Eason & Son,¹⁰⁷ a previous action concerning comments relating to the same subject matter was brought against the defendant news vendors, but proceedings were discontinued. Subsequently a second writ was issued against Eason and another defendant, Smith. The defendant Eason moved that all further proceedings be stayed as the action was frivolous and vexatious. The Court made an order staying all further proceedings against Eason. The plaintiff then obtained an order that Smith be struck out and that the plaintiff be at liberty to proceed against Eason alone. Subsequently the writ with which the present case was concerned was issued claiming damages against Eason alone. Prior to the distribution of the material which was the subject matter of the present action, the newspaper proprietors sent handbills, posters and circulars to the defendants promising an article “of keen local interest” and of a “sensational character”. It was held that in view of these facts, the plaintiff was entitled to have a question left to the jury as to whether the defendants were guilty of negligence.

Another factor influencing the court as to whether the defendant was negligent as to the contents of the material distributed may be his system of checking the material. This was fatal to the defence in the Vizetelly case. The defendants were the proprietors of a library which circulated a book without knowing that it contained a libel on the plaintiff. One of the directors gave evidence that he and the co-director alone exercised supervision over the books and that the books were too numerous to be examined for libels. They did not employ readers because it was cheaper for them to run the risk of being sued for libel than to do so. It was held that the defendants had failed to discharge the prima facie presumption of publication.

The fact that a distributor is presumptively liable may lead him to refuse to distribute material. Thus, in Goldsmith v Sperrings,¹⁰⁸ the plaintiff, an international company chairman and director, considered himself to be the victim of a sustained campaign of libel in a fortnightly paper. In addition to bringing a civil action against the publishers, the editor and the main distributors, he issued 74 writs against 37 secondary wholesale and retail distributors. 16 of the distributors reached settlements with the plaintiff on terms that he discontinued the actions if they ceased to handle the paper.

106 Per Samuel Walker, Bart, LC, Ross v Eason & Son, (1911) 45 ILTR 89, at p 93.   107 (1914) 48 ILTR 1.   108 [1977] 1 WLR, 478.

 

 

It is to be noted that 17 of the distributors continued to handle the paper, having being given an indemnity by the publishers against any legal costs or damages that would be incurred, while the remaining distributors applied for an order that the actions be stayed or dismissed as an abuse of court process, in that the plaintiff's purpose was not to protect his reputation but to destroy the paper by cutting off its retail outlets. A majority of the Court of Appeal held that the action should not be stayed at the interlocutory stage unless there was strong evidence to support the allegation that the plaintiff's purpose was collateral; and, further, that the settlements did not constitute unlawful agreements so as to taint the actions being continued against the remaining distributors.

Thus a distributor may, on his own initiative, cease to handle a journal which he suspects may contain defamatory material or may cease to handle it as the result of negotiations with the plaintiff. Bridge LJ, for the majority, rejected the proposition that this was a serious threat to the freedom of the press:

Lord Denning MR, dissenting, considered that the view of the majority could lead to a dangerous form of self-censorship:

 

 

35.

The above defence which is open to distributors is not available to printers.

This leaves printers in an even more precarious position. They may succeed in extracting an indemnity from the publishers, but they are not protected by defamation law. This difficulty is exacerbated by modern technology: the printers may never even see the hard copy of material which comes on to screens from external sources and is simply tansferred to plates for publication.

Multiple Publication

36.

At present, a plaintiff may take different actions against different defendants for publishing the same statement. This follows from the proposition that each person who repeats a libel is liable for it.

Slander and Proof of Damage

37.

Unlike cases of libel where damage is presumed from the publication of the defamatory matter, the plaintiff in a slander action must prove actual damage in order to succeed. To this, there are four exceptions, i.e. cases in which the damage is presumed from the nature of the slander and there is no need for the plaintiff to prove special damage.

38.

The courts will not extend the categories of slander actionable per se.

109 The dissenting judgment of Lord Denning MR was criticised in unusually forthright language by Bridge LJ on the ground that it rested on legal propositions and authorities produced by the Master of the Rolls as a result of private research with which counsel for the plaintiff had never been given an opportunity of dealing.   110 Per Asquith J, Kerr v Kennedy [1942] 1 KB at p 411.

 

 

this case as one in which a clear principal may be freely extended. Lord Herschell, in his judgment in Alexander v Jenkins,¹¹¹ remarked of this very point that

39.

The four categories of slander actionable per se are as follows:

40.

The first two categories have developed purely at common law. The third category is now provided for in section 19 of the Defamation Act 1961, amending the common law position. The fourth category was created by the Slander of Women Act 1891, and is re-enacted in section 16 of the Defamation Act 1961.

41.

Words Imputing the Commission of an Offence Punishable by Imprisonment: The offence imputed must carry with it the possibility of imprisonment. It does not include an offence punishable by fine, even where imprisonment may be imposed in default of paying such fine.

Examples of such offences include stealing,¹¹³ obtaining money by false pretences,¹¹⁴ perjury,¹¹⁵ and blackmail.¹¹⁶ In many of these cases, the fact that the slander was actionable per se is assumed rather than discussed, and the

111 [1892] 1 QB 797, 801.   112 Per Viscount Haldane, Jones v Jones, [1916] 2 AC 481, 489.   113 McFadden v Lynch (1883) 17 ILTR 93; Ede v Scott (1858) 7 ICLR 607; Wallace v Carroll (1860) 11 ICLR 485; Corcoran v W & R Jacob Ltd [1945] IR 446.   114 Kirkwood – Hackett v Tierney [1952] IR 158.   115 Keanan v Wallace, (1916) 51 ILTR 19.   116 Hartery v Welltrade, High Court, unreported 15 March 1978.

 

 

case is then decided on grounds of privilege. For example, in Corcoran v W & R Jacob Ltd, an allegation of larceny was made to an employee of the defendants by another employee of the defendants, who was a commissionaire, in the course of his report on the plaintiff. The occasion was held to have been privileged and the Supreme Court set aside the jury finding of malice, so that the action for slander was dismissed.

42.

The imputation must be that the plaintiff actually committed the offence, and not merely that he is under suspicion of having done so.

43.

The rationale for rendering this category of slander actionable per se may be either, (a) the fact that it threatens the plaintiff's freedom or (b) the fact that he may be socially ostracised as a result.

In Gray v Jones¹¹¹ the basis of this category of slander was stated to be the fact that it would cause the person to be shunned or avoided, and not because it put him in danger of a criminal prosecution. Winfield & Jolowicz support this view:

McMahon and Binchy recognise that the rationale is not clear but submit that the policy promoted relates to the plaintiff's liberty.

44.

Statements Imputing Possession of a Contagious Disease: There is uncertainty as to what diseases are included in this category as no modern cases deal with this type of slander.

In the older cases, imputations of French Pox,¹¹⁹ leprosy¹²⁰ and venereal disease¹²¹ were held to be actionable per se. This category takes on more significance in the light of the spread of AIDS today.

45.

The basis for rendering this category of statements actionable per se may be either, (a) social ostracism through fear of infection, (b) reflection on the moral character of the plaintiff, or (c) imputation of personal uncleanliness.¹²²

In Crittal v Horner¹²³ where the slander consisted in an imputation of having French Pox, the slander was said to lie not in the “wicked means of getting”

117 [1939] 1 All ER 798.   118 Tort, 11 ed, p 280.   119 Crittal v Horner, (1614) Hobart 219; Grimes v Lovell (1699) 1 Ld Ray 446.   120 Taylor v Perkins 79 ER 126 (1607).   121 Bloodworth v Grey (1844) 7 N Gr 334.   122 McDonald, Irish Law of Defamation, p 86.   123 (1614) Hobart 219.

 

 

the disease but in the “odiousness of the infection, as a leper”– in other words, rationale (a) rather than (b). Similarly, in Villers v Monsley, the rationale appears to have been the social ostracism of the plaintiff: “nobody will eat, drink, or have intercourse with the person who has the itch ...”¹²⁴

46.

Words Tending to Cause Injury in the Way of Office, Profession, Calling, Trade or Business: At common law, the plaintiff is required to satisfy the double burden of showing (a) that the words were spoken of him in the way of his office, profession, calling, trade or business, and (b) that the words were likely to injure him in that position.

This proved to be a difficult test to meet in practice, as the first limb was strictly interpreted. In McMullen v Mulhall & Farrell¹²⁵ the defendants said to the plaintiff's employer: “McMullen is not a member of any union, and you must dismiss him”. The employer had an understanding with the unions that he would not hire non-union men if union-men were available to work, and dismissed the plaintiff. In fact, the plaintiff was a union member. The Supreme Court held that the words were not defamatory because there was no evidence that “non-membership of a trade union imports any want of skill, incapacity or unfitness to exercise the calling of a painter”.¹²⁶ Kennedy CJ defined words touching a person in his trade as words which related to

In Ayre v Craven,¹²⁷ Lord Denman CJ noted that some of the cases in this context had produced “surprising” results, due to the limitation of the first limb of the double hurdle. Examples cited were that of a clergyman who failed to obtain redress for an imputation of adultery and a school mistress who failed despite a charge of prostitution. The words complained of did not technically refer to the plaintiffs in their respective callings.

The case of Bennett v Quane,¹²⁸ is an illustration of a plaintiff succeeding under the common law rule. The defendant, referring to the plaintiff's solicitor, said: “He brought an action in the Circuit Court instead of the District Court to get more costs for himself”. It was held that these words had a natural tendency to injure the plaintiff's reputation as a solicitor. Again in Curneen v Sweeney,¹²⁹ it was accepted that an imputation of dishonesty

124 95 ER 886, 887 (1769).   125 [1929] IR 470.   126 Ibid, per Kennedy CJ at p 476.   127 (1834) 2 Ad and E 2, 111 ER 1; cited in Bennett v Qu ane, (1947)IJR 28.   128 (1947) IJR 28.   129 (1969) 103 ILTR 29.

 

 

touched the solicitor plaintiff in the way of his profession.

47.

The common law position is now altered by section 19 of the Defamation Act, 1961, which requires that the plaintiff prove only the second part of the double hurdle, i.e. that the words tend to disparage him in his calling, trade, or profession.

Thus, although an accusation of prostitution made against a schoolteacher would not refer to her in her occupation as a schoolteacher, they would certainly tend to disparage or injure her in that occupation.

48.

Offices of Profit and Offices of Honour: As regards the third category of slanders actionable per se, the common law drew a further distinction between offices of profit and offices of honour. An office of profit is one which carries with it a salary or other emolument, the loss of which necessarily entails pecuniary damage. An office of honour is one to which no salary is attached. The common law rule was that an imputation of misconduct, but not unfitness, was actionable per se, if spoken about the holder of an office of honour. However, imputations of both misconduct and unfitness were actionable per se, if spoken about the holder of an office for profit.

McDonald suggests that a stricter test may have been applied in Ireland, namely, that an honorary office-holder was required to show likelihood of temporal loss before the words were actionable per se.¹³⁰ This would not cover the likelihood of removal from office.

In any event, it is unclear whether the distinction between the two types of office has survived the Defamation Act, 1961. McMahon & Binchy state:

Gatley also states that the distinction appears to have survived the equivalent English provision, section 2 of the Defamation Act, 1952;¹³² whereas Winfield and Jolowicz observe that section 2 of the English Act appears wide enough to put an end to the distinction.¹³³

49.

Words Imputing Unchastity or Adultery to a Girl or Woman: This category of slander actionable per se was introduced by the Slander of Women Act, 1891 and finds current expression in section 16 of the Defamation Act, 1961.

130 Irish Law of Defamation, p 88.   131 Irish Law of Torts, p 335.   132 Libel and Slander, 8 ed, at para 174.   133 Tort, 12ed, p 301.

 

 

Notably this category applies to females only. The Judge must decide whether the act in question is “unchaste”¹³⁴ or constitutes adultery.¹³⁵

An interesting issue arises in relation to an imputation of rape. In Youssoupoff v MGM,¹³⁶ it was held that an imputation of rape was defamatory of the plaintiff, but the case concerned a libel by film, not a slander. Walsh J in Quigley v Creation Ltd,¹³⁷ agreed that an allegation of rape would be defamatory, saying that although society should not think less of a woman because she has been raped, regrettably this is the reality and the estimation of the plaintiff would be lowered. It seems likely that an allegation of rape would be regarded as an imputation of unchastity so as to make such a slander actionable.

The rationale for making this category of statements actionable per se is set out by Asquith J in Kerr v Kennedy.¹³⁸ Having stated that damages are presumed with regard to certain slanders because either pecuniary loss is almost certain, or the statement is intrinsically outrageous,¹³⁹ he continued –

It is unlikely that the justification advanced in these cases for treating an allegation of rape as defamatory would command much support to-day. If the provisional recommendation made at a later stage in this paper were adopted, i.e. to abolish the distinction between libel and slander, the point would to that extent become academic. However, it would remain of possible relevance in the general law of defamation.

50.

With regard to slanders falling outside the four categories, special damage must be proved by the plaintiff.

51.

The term “special damage” signifies that no damages are recoverable merely for loss of reputation, despite this being the basis of the tort. Winfield and Jolowicz define special damage as “loss of money or of some temporal

134 Lesbianism has been held to be an unchaste act in this context –Kerr v Kennedy, [1942] 1 KB 409. In Devine v Keane, (1926) 61 ILTR 118, the charge was less specific, the slander consisting of the following words –   “Had I taken the ruffian as short as he took me and reported him for his gross misconduct with my servant girl he would not be wearing the jacket which he is wearing today.”   135 Tait v Beggs [1905] 2 IR 525.   136 (1933) 50 TLR 581.   137 [1971] IR 269, at 272.   138 [1942] 1 KB at 411.   139 See above, para 41.

 

 

or material damage estimable in money”.¹⁴⁰

McDonald describes special damage as “peculiarly and narrowly” defined.¹⁴¹ The loss of the material benefits of hospitality is special damage, whereas the loss of mere society is not.¹⁴² The loss of a tangible business advantage is special damage, whereas the loss of general business reputation is not.¹⁴³ The loss of the material needs of a member of a religious community who is expelled as a result of the slander is special damage.¹⁴⁴ The loss of a client¹⁴⁵ or the loss of customers is special damage.¹⁴⁶

52.

The special damage must be the natural and probable consequence of the slander.¹⁴⁷

Thus there is no special damage where the damage complained of by the plaintiff is not deemed to be the natural consequence of the slander, although it was in fact the result of the slander.

140 Tort, 12 ed p 298.   141 Irish Law of Defamation, p 92.   142 Per Harrison J, Dwyer v Meehan (1886) 18 LR Ir 138, 154, contrasting the “loss of substantial hospitality, which had been a permanent addition to a person's income” with “mere loss of the society of acquaintances”.   143 Storey v Challands, 173 ER 475 (1937) – here it was held that if A says of B, a commission agent, that he is an unprincipled man and borrowed money with repaying it, this is not actionable per se; but if A says this to C, who was preparing to deal with B, and C does not do so as a consequence of the slander, this constitutes a special damage.   144 Dwyer v Meehan (1886) 18 LR Ir 138. However in Roberts v Roberts (1864) 5 B & S 384 where loss of membership of a religious society did not result in material loss, the action failed.   145 King v Watts (1838) 8 C&P 614.   146 Bateman v Lyall (1860) 7 CB (NS) 638.   147 See Halsbury's Laws of England, vol 28, para 18.

 

 

CHAPTER 2: DEFENCES

Defences Generally

53.

The following are the defences possible in an action for defamation:

Defences (1) – (3) are dealt with above under Publication and Identification.

Defences (9) – (13) apply to torts generally. Defence (14) is dealt with above under Distinction between Libel and Slander. The main common law defences peculiar to the tort of defamation are, accordingly, Justification, Fair Comment, Absolute Privilege and Qualified Privilege.

In addition to these common law defences there is a statutory defence of Unintentional Defamation. Before proceeding to consider in detail the defences of justification, fair comment, privilege and unintentional defamation, it is worth noting the figures offered by the Boyle-McGonagle Report (commissioned by the National Newspapers of Ireland) as to the use of the individual defences by national newspapers, who represent 55% of defendants in libel actions in the High Court. According to the High Court records in the period 1980–1985, justification was pleaded in only 5% of cases. Fair comment was pleaded in a healthier 41% of cases, and privilege in 12%. Most interestingly, the offer of amends in section 21 of the Defamation Act was not availed of at all. The most common form of defence, in 78% of cases, was denial of some form i.e. denial of defamatory meaning, denial of reference to the plaintiff or denial of damage.²

JUSTIFICATION

54.

The defence of justification is that the words complained of were true

1 Per Dickson J, Chemeskey v Armadale Publishers [1979] 90 DLR (3rd) 321, 342.   2 Report on Press Freedom and Libel, para 614, Table H, p 44.

 

 

in substance and in fact.

55.

Truth alone constitutes the defence of justification. There is no requirement that the defendant show that the statement was made for public benefit.

This is a major point of difference between the civil action in defamation and the crime of libel. The defence of truth is available to the crime of libel only where the public benefit is additionally involved.

Some jurisdictions require the test of public benefit to be met in civil defamation cases also. Whether such a requirement is additionally necessary depends on the state of the law on privacy. If a plaintiff can resort to principles of privacy to complain about true statements made about his private life, there is no need for defamation law to protect this interest. However if there is no separate protection of privacy, defamation law can be adjusted to protect plaintiffs from objectionable statements about their private lives, by requiring the defendant to show that not only was the statement true, but that it was within an acceptable area of comment, namely of public benefit or interest.⁴

A recent English case has held that although truth is a defence to a defamation action, the publication of a true statement may nonetheless be actionable on a different basis, namely if there is a conspiracy with the sole or dominant purpose of injuring the plaintiff.⁵ Publishers should therefore be wary of assuming that the publication of true material is sacrosanct. Although the publication of truth is indeed unimpeachable in terms of defamation law, it may be, for example, that a combined campaign by newspapers to smear a person's character, although the allegations are true, would be a conspiracy.

56.

Malice does not affect the defence of justification. If a statement is true, the intent of the defendant when making it is irrelevant.

3 Per Littledale J, in McPherson v Daniels (1829) 10 B & C 263, 272.   4 For full discussion, see below, Privacy Law and Defamation Law, p436.   5 Gulf Oil (GB) Ltd v Page [1987] 3 All ER 14. The authority of this decision is somewhat weakened by the fact that it was a ruling on a motion for an interlocutory injunction. While the principle as stated in the text above seems unexceptionable, the actual decision is somewhat surprising: it is curious to find an injunction being granted to restrain publication of a statement admitted to be true by the invocation of the somewhat anomalous tort of conspiracy.

 

 

As a general principle, defamation law is preoccupied with injury to the plaintiff, rather than with the intention of the defendant. Moreover, in this instance, the state of mind of the defendant is irrelevant because there exists no injury at law. Similarly a belief in the truth of a statement on the part of the defendant does not constitute the defence of justification. It is the factual truth of the words that goes to make up the defence.

57.

Presumption of Falsity: As stated at paragraph 10 above, the burden of proof is on the plaintiff to show that the words complained of are defamatory. However, once this is shown, the law presumes the statement to be false. The plaintiff does not have to prove the falsity of the statement; rather, the defendant who raises the defence must establish its truth.

Accordingly, where the defendant pleads a defence other than justification, the issue of truth does not technically arise. The case proceeds on the legal assumption that the statement is false and the defendant attempts to establish that he published the words on an occasion which is protected (privilege), or that the statement is of a type that is protected (fair comment). However, evidence of the falsity of the statement will usually emerge from the plaintiff's case.

The presumption of falsity is a separate issue from that of fault. The common law rule in relation to truth is that liability is strict, so that the plaintiff does not have to prove that the defendant was at fault in failing to realise the statement was true. If the statement is actually false, the state of mind of the defendant is irrelevant. The presumption of falsity is a separate point and tilts the balance even more in favour of the plaintiff. Not only does the plaintiff not have to show fault, he does not have to show falsity.

It is possible to separate the two issues so that, for example, the statement is presumed false but the plaintiff has to prove fault. This was the position in the United States in the period following New York Times v Sullivan⁶ and Gertz v Welch⁷ until 1986. However, the United States position has now been altered so that both rules are the converse of the common law rules. The plaintiff must show falsity, and must then show fault on the part of the defendant.⁸

58.

Where the plaintiff relies on a legal innuendo, the defence of justification must meet the innuendo and not merely plead to the natural meaning of the words. Where he relies on a “popular” innuendo, the defence must similarly plead to the constructions sought to be put on the words complained of by the plaintiff in his pleadings.

As stated at number 15 above, the verbal accuracy of the statement published

6 (1964) 376 US 254.   7 (1974) 418 US 323.   8 See below, para 168.

 

 

may not be sufficient to constitute justification if there is an innuendo involved. In Irish People's Assurance Society v City of Dublin Assurance Co Ltd,⁹ proof by the defendant that the extracts of the balance sheets reproduced were accurate was not sufficient to constitute justification, where the popular innuendo pleaded was that the parent company was insolvent and it was not safe for policy holders to insure with them. The defence must match the imputation and justify it. So here it would have been necessary for the defendants to prove that the plaintiff was in fact insolvent.

In Lewis v Daily Telegraph,¹⁰ two national newspapers published front page articles headed: “Inquiry on Firm by City Police”, and “Fraud Squad Probe Firm” respectively. It was stated in substance that the police were enquiring into the affairs of a company, of which the plaintiff was chairman. The defendants admitted that the words were defamatory in their ordinary and natural meaning, but pleaded justification i.e. that the police actually were investigating the company's affairs. The plaintiff relied also on an innuendo meaning, (pleaded as a legal innuendo, but held to be a popular innuendo) namely, that the plaintiff was guilty of fraud. However the House of Lords ruled that the words were incapable of bearing that meaning, and therefore the defendants were not required to justify the secondary meaning. If they had been capable of that meaning, the defendant would have had to show that the plaintiff had actually been guilty of fraud, since he would have to justify this secondary meaning.

59.

Inaccuracy of Detail: Even at common law it is sufficient if the defendant establishes the truth of the substance of the imputation in order to succeed in the defence of justification. The inaccuracy of minor details will not result in the failure of the defence, whereas material inaccuracy will. The cases often refer to extracting the “sting” of the statement. “Unless the discrepancy between the statement complained of and the matter justified is so great that a defence of justification ought to be struck out, the question of fact for the court is whether the defendant has substantially justified the libel”.¹¹

Referring to the defence of justification, Lord Shaw stated in Sutherland v Stopes that:

9 [1929] IR 25.   10 [1964] AC 234.   11 Halsbury's Laws of England, vol 28, para 84.   12 [1925] AC 47, 79.

 

 

He illustrated this with the following example:

An example of such a case is Alexander v N E R'way.¹³ The defendants published at their stations a notice stating that the plaintiff had been convicted of riding in a train without a ticket and sentenced to a fine of £1 and the alternative of three weeks' imprisonment in default of payment. The fact that the term of imprisonment was two weeks did not prevent the defence of justification from succeeding, and it became a question for the jury whether the notice was substantially true.

PARTIAL JUSTIFICATION

60.

Where the defendant makes defamatory statements as to two or more independent matters, he must in general be prepared to prove the truth of each, in order to succeed in a defence of justification. However a defendant may justify a part of a defamatory statement as long as he does not attempt to argue that this is justification of the whole. It is only if the statements are severable that the defendant may achieve partial justification in this way.

A plea of full justification was amended to one of partial justification in Goody v Odhams Press Ltd.¹⁶ Against the background of the Great Train Robbery, the plaintiff was sentenced to thirty years imprisonment for robbery, conspiring to stop the mail and being armed with an offensive weapon. One

13 (1865) 6 B & S 340.   14 Per Tindal CJ, Clarke v Taylor, 2 Bing NC 654, 664.   15 Per Lord Shaw, Sutherland v Stopes, [1925] AC 47, 78.   16 [1967] 1 QB 333.

 

 

year later, a newspaper published an article headed, “A suburban housewife reveals how she was caught up in the great mail bag plot”, the article containing many references to the plaintiff. As the rule in Hollington v Hewthorn¹⁷ was then still being applied, to the effect that evidence of the plaintiff's conviction was inadmissible, the defendants amended their defence of full justification to one of partial justification. This consisted of the following:

61.

Order 22, Rule 1(3) Rules of the Superior Courts prohibits the payment into court of money in actions for libel and slander unless liability is admitted in the defence.¹⁸It is not clear that a partial admission of liability would be sufficient to allow payment into court.

62.

Distinguishable from partial justification of an imputation, is attempted justification by proof of a less serious form of imputation. A defendant may not justify a statement by proving that a less serious form of the wrong alleged was committed by the plaintiff.

In Morrow v McGaver,¹⁹ a plea of justification failed because the justification showed only acts of oppression and harshness on the part of the plaintiff, while the slander itself imputed commission of those acts for selfish and personal motives. In White v Tyrrell,²⁰ proof that the plaintiff's father was guilty of one breach of contract did not constitute justification where the libel imputed fraudulent dealings to him.

63.

If the statements are clearly severable, a plaintiff may choose the statements on which he wishes to bring his action. In such a case the defendant may not bring in uncontested parts of the publication before the court.

A case which illustrates the operation of this rule is Plato Films v Speidel.²¹ The plaintiff had been the Supreme Commander of the Axis Land Forces in Central Europe, and brought an action claiming that he had been libelled in a film in which he had been depicted as being privy to the murders of King Alexander of Yugoslavia and M. Barthou in 1934, and as having betrayed Field-Marshal Rommel in 1944. The appeal to the House of Lords concerned issues of pleading in preparation for a trial which had not yet occurred.

17 See below at para 65.   18 See para 141 below.   19 (1951) 1 ICLR 579.   20 (1856) 5 ICLR 498.   21 [1961] AC 1090.

 

 

The defendants sought to rely on the fact that the plaintiff chose to sue on certain parts of the film, and not on others which were also defamatory of the plaintiff, as a ground for mitigating damages. However, this course of action was vigorously rejected –

However where the statements are not severable, the whole context may be examined. This is illustrated by S & K Holdings v Throgmorton Publicatioris,²⁴ where the Plato case was distinguished. The defendants published an article on auditing matters relating to the plaintiff in a financial newspaper. The plaintiff brought an action in libel in respect of the entire article with one omission. This was paragraph 7, which referred to the plaintiff's involvement in certain “accounting controversies”. The defendants' replies to a request for particulars included four pages relating to paragraph 7, and the issue arose as to whether this should be struck out. The Court of Appeal held that the paragraph in question was not clearly severable from the rest of the article, and the particulars objected to were admissible and should not be struck out. The case was treated as one in which severance was not possible –“unless the parts are clearly severable, I do not think it is open to the plaintiff to pick and choose. He must take the publication as it is, with all the defamatory statements about him.”²⁵ The Plato case was considered to be one in which the statements were “clearly severable into distinct parts as if they were different chapters”. This, however, was not a case in which severance was desirable:

22 Ibid, per Viscount Simonds, p 1125.   23 Ibid, per Lord Radcliffe, at p 1127.   24 [1972] 1 WLR 1036.   25 Ibid, per Lord Denning MR at p 1039.

 

 

A similar result was achieved in the recent case of Polly Peck (Holdings) plc v Trelford.²⁷ The defendants published two articles concerning the plaintiffs' business affairs in their newspaper. The plaintiffs brought an action in libel, basing their complaint on some but not all of the articles' content. The defendant pleaded justification and fair comment. The plaintiffs sought to strike out certain particulars of the defence on the ground that they were irrelevant or that they were an attempt to justify matters which had not been complained of. It was held that where the plaintiff chose to complain of a part of a publication, the defendant was entitled to look at the whole of the publication in order to establish context. However, where the publication contained distinct and severable statements, the plaintiff was entitled to select some for complaint and the defendant was not entitled to assert the truth of the others by way of justification. In each case, it would be a question of fact whether the statements were severable. If the defamatory allegation had a common sting, they would not be regarded as separate and distinct allegations.

64.

The common law position on partial justification outlined at no. 60 above is now altered by s22 of the Defamation Act 1961. Section 22 provides:

The section applies only where the words complained of contain severable and distinct defamatory imputations. If some are proved true, a full defence will be established, provided the imputations not proved true do not add material injury to the plaintiff's reputation. The result is that a defence of partial

26 Ibid, at 1040 per Edmund Davies LJ.   27 [1986] 2 All ER 84.

 

 

justification will in certain circumstances provide a complete defence.²⁸

It seems that the section does not apply where the words complained of contain a single imputation. For example, if the defendant alleged the plaintiff was a murderer whereas the plaintiff had been convicted of manslaughter, the section would not apply and the common law rule prevents a defence of justification being established where the defendant succeeds only in showing that the plaintiff was guilty of a less serious form of offence.²⁹

JUSTIFICATION AND PREVIOUS CONVICTIONS

65.

It may be that the alleged libel consists of an accusation of legal wrongdoing, and the defendant wishes to justify by adducing evidence of a previous conviction of the plaintiff for the offence. The Irish position on this has yet to be stated.

At common law the rule in Hollington v Hewthorn³⁰ was that evidence of a prior criminal conviction was not admissible in subsequent civil proceedings where the same issue was raised for determination. The case was not a libel case, but concerned a civil action for damages in negligence arising out of a car collision, in which the plaintiff wished to admit evidence of a conviction of the defendant driver for careless driving. This was held to be inadmissible.

The impact of this rule on libel actions was that a defendant could not rely on a previous conviction to justify a statement such as, “X committed the murder”, or “X was guilty of the offence”. This is illustrated by Goody v Odhams Press.³¹ The most that defendant could do was to plead partial justification, i.e. that the words were true insofar as the plaintiff had received a prison sentence, or his appeal was disposed of.

The rule in Hollington v Hewthorn attracted criticism from the time of its adoption. In the Goody case Salmon LJ referred to it as a “strange rule” and hoped that it would be reconsidered;³² and Lord Denning MR expressed the view that it was wrong. The latter Judge reiterated this view and Diplock LJ spoke of the rule as “ripe for re-examination” in Barclays Bank v Cole,³³ a case of curious facts. Here the defendant had received a fifteen year prison sentence for robbery of a bank, and his appeal was rejected. The bank sued to recover the money lost, alleging in its statement of claim that the defendant had wrongfully entered their branch and stolen their property, but were faced with the inadmissibility as evidence of the previous conviction.

28 See Duncan & Neill, (1978) para 11.09, p 57.   29 Duncan & Neill suggest that in such a case the conviction of the lesser offence would affect damages; and further that the defendant might be entitled to present the case as one of partial justification; para 11.10, p 57.   30 [1943] KB 587.   31 [1967] 1 QB 333. For facts, see above para 60.   32 Ibid, at p 342.   33 [1967] 2 QB 738, [1966] 3 All ER 948.

 

 

In 1968, the English Civil Evidence Act was enacted, section 13 of which provides that in an action for libel or slander, in which the question whether a person committed a criminal offence is relevant, proof that he stands convicted of the offence is “conclusive evidence” that he committed it.³⁴

The New Zealand courts similarly admit evidence of a conviction in this context, although it is not deemed “conclusive evidence” that the offence was committed, as in England. The test laid down in Jorgensen v News Media is that the previous conviction is “some evidence” of the plaintiff's guilt.³⁵

66.

It seems unlikely that an Irish court would choose to apply the rule in Hollington v Hewthorn.

This statement is not based merely on the fact that English legislation has altered the rule in that jurisdiction, and that the New Zealand courts have declined to apply the rule. Common sense would seem to require that the previous conviction be given weight in a libel action. There may already be a basis in law for putting an end to plaintiffs action since the decision in Kelly v Ireland.³⁶ In that case O'Hanlon J identified evidential estoppel and abuse of process as doctrines by which a person might be prevented from having issues retried which were determined in earlier proceedings.³⁷

An English House of Lords case also supports the view that where a final decision has been made by a criminal court, it is a general rule of public policy that the use of the civil action to initiate a collateral attack on that decision is an abuse of court process. Therefore it may be that if a plaintiff wishes to bring an action in defamation in respect of matter which was already the subject of criminal proceedings, it will be considered an abuse of court process. This presumably depends on whether, on the facts, it is considered a collateral attack on the previous decision.³⁸

If the courts are reluctant to retry issues determined in previous criminal

34 A person stands convicted of an offence if there subsists against him a conviction of that offence by or before a court in the United Kingdom or a court-martial there or elsewhere –Civil Evidence Act, s 13(3).   35 [1969] NZLR 961, per North P, at p 980, Turner J, at p 992, McCarthy J, at p 994.   36 [1986] ILRM 318. See also Breathnach v Ireland, unreported, Lardner J, judgment delivered 1990; McGrath v Commissioner of An Garda Siochana, Supreme Court, unreported, judgments delivered 17th July 1990.   37 McDonald, Irish Law of Defamation, p 107.   38 The House of Lords case referred to is Hunter v Chief Constable of West Midlands [1982] AC 529. The prior criminal conviction there was the life imprisonment of six people for the Birmingham Bombings in 1974. During the criminal trial, there was a trial within a trial (voir dire) in the absence of the jury, to determine the question whether the accused had been assaulted by police and whether their confessions were voluntary. The statements were admitted in evidence as voluntary. The subsequent civil action was not one for libel, but for assault, brought by the Six against various police members and against the Home Office in respect of assaults by prison officers and prisoners. The House of Lords dismissed the plaintiffs appeal, holding that it was a collateral attack upon the previous criminal conviction.

 

 

cases, they may admit evidence of previous convictions in order to avoid this.

REPETITION AND JUSTIFICATION

67.

It is not a defence for the publisher of the statement complained of to claim that he was merely repeating what someone else had said. He must prove that the statement is true.

In Cleary v Lenihan, following an election for the mayoralty in which the plaintiff was successfully re-elected, the defendant published in a newspaper a statement that the unsuccessful candidate was about to lodge a petition in the court against the election on the ground that intimidation and undue influence was employed by the plaintiff and that the latter had plied a large number of voters with drink prior to the voting. In an action for libel in respect of these allegations, the defendant pleaded that the unsuccessful candidate caused a petition to be prepared containing the allegations set out and that it was the intention of the defeated candidate to lodge the petition in court. The plaintiff demurred to the defence on the ground that the defendant circulated matter which was contained in the petition but which was never presented and that since the defendant did not purport to prove true what was allegedly contained in the petition, the defence of justification failed. The question was therefore whether the defendant had to justify all the allegations or whether he could point to the fact that a petition containing the allegations had been prepared by another, in other words, make out a defence on the basis of repetition. It was held that the defence failed.³⁹

JUSTIFICATION AND AGGRAVATED DAMAGES

68.

Where the defendant attempts to plead justification and fails, the jury may award aggravated damages. This follows from the fact that the jury are entitled to look at the conduct of the defendant from the time of publication down to the time a verdict is given.

The rule stated by Gatley⁴¹ was described as “well settled” by Lord Denning MR in Associated Leisure Ltd v Associated Newspapers Ltd.⁴²–

39 (1874) 8 ILTR 146.   40 Per Murnaghan J in Gallagher v Touhy, (1924) 58 ILTR 134, at 135.   41 Libel and Slander, 6 ed, p 462, para 1046.   42 [1970] 3 WLR 101, 105.

 

 

69.

The original rationale for the aggravated damage rule in cases of unsuccessful pleas of justification was that the maintenance of the defence could be evidence of malice. However, persistence in a plea of justification may point more to the honesty and sincerity of the publisher, than to his malice.

As Sellers LJ stated in Broadway Approvals Ltd v Odhams Press, (No.2):

Another aspect of the rule was adverted to by Davies LJ in the Broadway Approvals case. If a failed plea of justification were held automatically to indicate malice, a defendant could never raise fair comment as a defence as well, because malice destroys the defence of fair comment –

70.

More recently the basis for the justification/aggravated damage rule has been identified as the increased circulation given to defamatory statements by the trial and media reports.

This rationale is supported by the comments of Lord Diplock in Cassell v Broome:⁴⁴

43 [1965] 1 WLR 805, 814.   44 [1972] AC 1027, at p 1125.

 

 

In Kennedy v Hearne,⁴⁵ the defendants not only persisted in a plea of justification but also attempted to establish that the defendant already had a bad reputation, the latter being a factor which may mitigate damages.⁴⁶ The fact that the defendant's statements achieved greater circulation through the trial was clearly a factor influencing the Supreme Court in increasing the amount of aggravated damages:

The proportion of aggravated damages in relation to the total award in that case illustrates how the aggravated damage rule is a real disincentive to pleading justification; of the £10,500 damages award, £10,000 consisted of aggravated damages.

71.

The aggravated damage rule is not absolute. Aggravated damages may or may not be awarded in the case of a failed plea of justification. However, judicial statements are not specific as to when the full rigour of the rule should be invoked.

In the Kennedy case⁴⁸ the defendants accepted that aggravated damages were appropriate, but attempted to put forward a distinction between defendants on the basis of their fault. They argued that defendants who recklessly and without basis made an accusation which attracted aggravated damages should attract a higher level of aggravated damages than a person who made such an accusation with more basis to it. Finlay CJ refused to accept this submission.

THE DEFENCE OF FAIR COMMENT

72.

The defence of fair comment is available to defendants who make defamatory statements which consist of fair comments on matters of public interest.

45 [1988] ILRM 531.   46 See para 128 below.   47 Ibid, per Finlay CJ at p 541.   48 [1986] ILRM 531.

 

 

In such cases, the criticism is often not a personal attack, but reflects on the subject's published work –

73.

Several elements are combined to make up the defence –

The burden of proof is on the defendant to establish these matters.

74.

Notwithstanding the presence of all these elements, the defence will fail if malice on the part of the defendant is shown. The burden is on the plaintiff to establish malice in order to defeat the defence. Thus it is said that malice destroys the defence of fair comment.

The question of malice and the issue of fairness of comment are separate. The question of malice arises only where the ingredients of the defence have been established, including fairness of comment. “Fairness” and “malice” are therefore sequential issues in the defence, and are not merged into a single test. The test of fairness is objective, i.e. “Is the comment one that an honest, albeit prejudiced, person might make in the circumstances?”⁵¹ The test of malice is subjective –“whether the publisher himself was actuated by malice”.⁵² As Dickson J said in the Cherneskey case:

49 Per Scott, LJ in Lyon v Daily Telegraph, [1943] 2 All ER 316, 319.   50 Per Lord Porter, Kemsley v Foot, [1952] AC 345, at 355.   51 Per Dickson J, Cherneskey v Armadale Publishers, (1978) 90 DLR (3rd) 321, 345. Although Dickson J dissented in that case, his views on fairness and malice are the orthodox ones. See Halsbury's Laws of England, vol 28, paras 141 and 145.   52 Ibid.

 

 

75.

The defence of fair comment is not applicable in the case of an assertion of pure fact. However, the truth of the supporting facts is an essential element of the defence. This makes the defence more difficult to rely on than qualified privilege, where malice alone defeats the defence. The defence of fair comment originated out of the refusal of judges in the nineteenth century to extend qualified privilege to public comment, and offers a lesser protection to those who make comments on matters of public interest.

76.

Difficulties arise in relation to distinguishing comment from fact, and the court draws guidance from the circumstances and context of the statement. Just as a statement may be defamatory in one context, and non-defamatory in another, a statement may constitute a comment in one and a fact in another.

Some of the cases illustrate the difficulties of distinguishing between comment and fact. In Dakhyl v Labouchere,⁵⁴ the plaintiff was described in a newspaper article as “a quack of the rankest species”. Was this a statement of fact, the truth of which had to be established, or was it a comment? The House of Lords ordered a re-trial, holding that it was capable of being a comment.

In Campbell v Irish Press⁵⁵ the following statements about an exhibition of snooker were held by the trial judge to be statements of fact:

On appeal, Kingsmill-Moore J held that the first statement could be regarded as an expression of opinion, namely, that the exhibition was being badly run. As to the second statement, he felt that its first part could be a comment on the ability of the player, while the second part could be a comment resulting from the fact that the ball had deviated, namely, that the table was uneven.

The manner in which the defendant conducts his case may be one of the circumstances which the court takes into account in deciding whether a statement is a fact or a comment. In London Artists v Littler,⁵⁶ the defendant published a letter which suggested that the plaintiffs had taken part in what appeared to be a plot to force the end of the run of the play which the defendant was producing. The Court of Appeal held that the allegation of a

53 Ibid.   54 [1908] 2 KB 325.   55 (1955) 90 ILTR 105.   56 [1969] 2 QB 375.

 

 

plot was an allegation of fact, which the defendant had failed to substantiate; alternatively, that the allegation of a plot was a comment without any basis of fact. One of the factors influencing the Court to the conclusion that the allegation was one of fact, was that the defendant had originally intended to plead justification, but withdrew this defence.⁵⁷

Duncan & Neill suggest the following as guidelines for distinguishing statements of fact from comment:

77.

The Rolled Up Plea: Due to the difficulty of distinguishing facts from comment, there arose the practice of pleading what is known as the rolled up plea. Now it appears to be better practice to set out in the particulars which statements are comments and which are facts, and to state which facts are relied on to support the comment.

The original rolled up plea consisted of the following formula:

The plea was developed to cater for comments the supporting facts of which were to be found elsewhere. The final part of the plea read:

57 Lord Denning MR, at p 392.   58 See Hunt v Star Newspaper Co Ltd [1908] 2 KB 309, Fletcher Moulton LJ at 319.

 

 

For some time this gave rise to a confusion that the plea consisted of a rolled up plea of justification and fair comment. However, the House of Lords in Sutherland v Stopes⁵⁹ put an end to this confusion by holding that the rolled up plea is a defence of fair comment only.

Recently, in Cooney v Browne,⁶⁰ Hamilton J held that where the facts alleged to support the comment in the defence of fair comment are so numerous and unspecific that it would be unfair to expect the plaintiff to present his case without notice of their true range, the plaintiff is entitled to particulars of which of the words are alleged to be statements of fact, and of the facts relied on to support such factual statements. This judgment was affirmed by the Supreme Court.

A point which is sometimes overlooked is that the onus is on the defendant to prove the truth of the supporting facts. This parallels the onus of proof in relation to truth as it arises in relation to the defence of justification. The Boyle-McGonagle Report not only advocates a reversal of the presumption of falsity in the context of justification,⁶¹ but also in the context of fair comment.⁶²

The Boyle-McGonagle Report refers to Cooney v Browne as tilting the balance against the defendant. It is submitted that the effect of Cooney v Browne is merely to clarify pleading procedure. If the balance is tilted against the defendant, this is inherent in the defence of fair comment as it exists at common law.

We will consider later in this Paper whether the present presumption of falsity should be retained. However, at this point a question may be simply posed but not answered, namely whether it is a logical necessity that the same presumption should exist in relation to justification and the factual elements of fair comment.

PROOF OF THE SUPPORTING FACTS

78.

One of the elements of the defence of fair comment is that the comment must be based on facts which were either stated by the defendant or indicated by him so that the recipient may ascertain the matter on which the comment is based.

To say, for example, of AB that “he is unfit to hold public office since he has been convicted of embezzling” is clearly a comment based on stated facts. To say of AB that “he is unfit to hold public office, having regard to events in which he was involved in 1983” (where AB was convicted of embezzlement in

59 [1925] AC 47.   60 [1985] IR 185, (High Court) and 190 (Supreme Court).   61 Report on Press Freedom and Libel, para 5.16.   62 Ibid, para 5.21.

 

 

that year) is a comment based on facts indicated by the defendant rather than stated expressly. The important feature is that, before the defence can be availed of, the facts must be either so stated or indicated. In the example chosen, if the defendant contented himself with saying “AB is unfit for public office” that would be treated as a statement of fact and the defence of fair comment could not arise.

As Palles CB stated in 1879:

The same proposition was thus stated in the modern case of Kemsley v Foot⁶⁴ where Lord Porter stated:

If the defendant makes a statement and fails to identify facts on which it is based, it will be treated as a statement of fact which must be defended by justification or privilege:

79.

Where a defendant set out the facts on which his comment was based,

63 Lefroy v Burnside (1879) 4 Lr Ir 556, 565. The case of Eglantine Inn v Smith, [1948] NI 29 is an example of a defence of fair comment failing because the defamatory document contained allegations of fact which were not truly stated.   64 [1952] AC 345.   65 Ibid, at 355.   66 Kemsley v Foot [1952] AC 345, per Lord Porter at 356.

 

 

he was obliged at common law to prove all those facts to be true, however unimportant some of them might be. This was modified by s23 of the Defamation Act 1961 which provides that the defence of fair comment is not to fail because the truth of every allegation is not proved, if the expression of opinion is fair comment having regard to the facts which are proved.

80.

An unsuccessful attempt to show the truth of supporting facts may result in a jury award of aggravated damages.

This proposition was affirmed by Kingsmill-Moore J in Campbell v Irish Press,⁶⁸ in which he stated that where a defendant failed to show the truth of supporting facts, he “not only automatically failed in making good his plea of fair comment, but would leave it open to a jury, if they should think fit, to mark their opinion of his conduct by an increase in damages”.

This is part of the wider principle that any unsuccessful attempt to prove the truth of a statement may result in an award of aggravated damages for the defendant, which was seen in relation to justification.

81.

Where the facts on which the comment is based are not stated by the defendant but are indicated by him to be elsewhere, the common law appears to have applied a less rigid rule in relation to proving the truth of each fact. It seems that the proof of only some, or even one, of the facts by the defendant would support the comment.

That a less rigid rule was applied to the latter situation is supported by Kemsley v Foot. Lord Porter stated as follows:

67 Kemsley v Foot [1952] AC 345, per Lord Porter at 357–8.   68 (1955) 90 ILTR 105.

 

 

Lord Tucker stated:

82.

The common law rule that where the facts are stated by the defendant each fact must be proved true has been modified by section 23 of theDefamation Act 1961.

Section 23 provides:

There are three areas of doubt concerning the operation of this section. The first question raised is whether s23 modifies the common law rule relating to proof of (i) supporting facts contained within the material complained of only, or also (ii) supporting facts referred to in the material complained of but located elsewhere. The second question is whether s23 operates in a manner similar to s22 (justification), so that imputations have to be divided into major and minor facts. The third question is in relation to the standard of fairness envisaged by the section.

Question 1: Does s23 apply to facts stated in the defamatory material only, or does it also apply to facts located elsewhere?

The Irish s23 has its equivalent in the English Defamation Act 1952, which provision was based on a recommendation by the Porter Committee in 1948. The wording of the Porter Committee proposal is quite different from the legislative provision enacted and therefore references to that committee's intent are not a reliable guide to the meaning of s23 of our Act. The Porter

69 [1952] AC 345, at 358.   70 Ibid, at 362.

 

 

Committee proposal would have confined the new rule to statements of fact “contained in the alleged libel”. McDonald is of the view that s23 is restricted in a similar way. However, we are of the opinion that s23 is ambiguous, since it refers to “facts alleged or referred to in the words complained of, which would seem to indicate the wider interpretation. It may be wondered whether it makes any difference whether facts merely referred to in the words complained of come within the section, because the old common law rule was that proof of any fact sufficient to support the comment would enable the defendant to succeed. Therefore the section merely makes the position identical for both cases. This is our view. However, there are two interpretations of s23 in relation to Question 2 which follows. Under one of these, the effect of s23 would not be to make the two cases identical. This is the interpretation adopted by McDonald, which would make the s23 rule stricter than the common law rule on proof of facts located outside the words complained of. On this view, it would become necessary to know whether s23 applies to facts located outside the defamatory material as well as facts located within it.

Question 2: How does s23 operate? In particular, what kind of facts may remain unproved?

There appears to be a conflict of opinion regarding the effect of section 23. The first view is that the defendant need not prove the truth of every fact stated, provided the facts not proved to be true are unimportant as regards further injury to reputation. The second view is that the defendant need not prove the truth of every fact stated, provided the expression of opinion is fair comment with regard to such of the facts as are proved true. There is no difference involved between these views where the unproved facts are unimportant. However, a difference of result does arise where the unproved facts are important. On the first view the defence would not succeed in such a case; whereas on the second view it would succeed. This is illustrated by the following examples.

Example 1:

Suppose the defendant made the following two statements of facts –“X is a murderer and X stole a cream bun”– and followed them with the comment “X is despicable”. It would seem that if he proved that X was a murderer, and the jury found that the comment was fair in relation to this fact, the defence would succeed even though X had not stolen a cream bun. However, at common law the falsity of one of the facts would apparently have destroyed the defence.

Example 2:

Suppose the defendant makes two statements of fact –“X was convicted of drunken driving and X is guilty of manslaughter”–followed by the comment, “X is despicable”. The defendant proves that X was convicted of drunken

driving but fails to prove the allegation of manslaughter. On the first view of section 23, the defendant would not be entitled to avail of the section, because the allegation of manslaughter is significant. On the second view, the defendant may succeed under s 23 if the jury are of the opinion that the expression of opinion was fair comment in relation to the offence of drunken driving. However, it can be argued that a careful reading of section 23 allows only for the second interpretation advocated. This appears to be supported by Duncan & Neill.⁷¹ Furthermore, it would make identical the rules governing proof of facts indicated in the words complained of and proof of facts contained in the words complained of. However, the first interpretation is adopted by McDonald. It is submitted that this view is erroneous and results from two sources: (a) an incorrect comparison between proof of facts under s 23 (fair comment) and proof of facts under s 22 (justification), and (b) the wording of the original Porter Committee proposal.

McDonald argues that s23 operates only if the facts are divisible into major and minor facts, and that it preserves the defence only if the major facts are proved true and the minor ones are not, as in Example 1. This weighing of the gravity of allegations is phrased by McDonald in a similar way to his interpretation of s22, dealing with justification, although that section is worded in a different way. Curiously, the McDonald interpretation of s23 matches the original proposal of the Porter Committee, which was worded as follows:

Although the Porter Committee proposal does indeed support the McDonald interpretation of s 23, it is submitted that a careful reading of the section will reveal that it does not give precise effect to the recommendation.

Question 3: What standard of fairness does s23 envisage?

The final question in relation to s 23 arises in connection with the use of the phrase “fair comment”. Does fairness in this context import the wide common law interpretation or does the section envisage a new statutory standard of fairness? If the latter solution is the correct one, the effect of the section is

71 Defamation, at para 12.10, p 65–66.   72 Porter Committee Report, para 90.

 

 

to relax one common law rule while tightening another. However the section is silent on this point.

In conclusion, s 23 raises a number of questions: (1) in relation to its ambit, because of the doubts as to the location of the facts to which it applies, (2) because of the discrepancy between the Porter Committee recommendation and the wording of the section, and (3) because of the ambiguity of the word “fair” which has bedeviled this defence at common law. It requires a large measure of clarification.

However for the time being we accept the statement of Duncan & Neill as a correct analysis of the rules on proof of facts supporting a comment:

83.

There is one exception to the rule that the supporting facts must be true in order to succeed in the defence of fair comment. This arises where the facts pointed out are contained in a privileged document. This is known as the rule in Mangena v Wright from the case in which the proposition was laid down.

In Mangena v Wright,⁷⁴ Phillimore J defined the exception as applying to facts contained in a “privileged document”, giving as examples a vote in Parliament, and a Judge giving reasons for judgment.

73 Duncan & Neill, Defamation, para 12.10, p66.   74 [1909] 2 KB 958.

 

 

84.

The extent of the application of the rule of Mangena v Wright is unclear.

In Bailey v Truth & Sportsman⁷⁵ Starke J referred to “findings of fact or conclusions of Parliament or of a Commission or other tribunal” as falling within the ambit of the rule. In Grech v Odhams Press,⁷⁶ Jenkins LJ thought that the rule also applied to statements made by witnesses in judicial proceedings, provided they were fairly and accurately reported by the defendant.⁷⁷

The most recent formulation of this rule is provided by Edmund Davies LJ in London Artists v Littler⁷⁸ in more general terms:

FAIRNESS OF COMMENT

85.

It is usually stated that to avail of the defence, the defendant must show that the comment was fair.

86.

A fair comment is not necessarily one which the judge or jury would make themselves, or would consider reasonable. The essential point in this context is that fairness is not equated with reasonableness. Thus extravagance of language or violence of criticism does not render the comment unfair, as long as it is still within the parameters of opinion. The test of fairness is an objective one.

A test of fairness was enunciated by Lord Esher MR in 1887:

This test was approved by the House of Lords in Stopes v Sutherland, where Lord Hewart CJ said⁸⁰:

75 (1938) 60 CLR 700.   76 [1958] 2 QB 275.   77 Jenkins LJ, at p 285.   78 [1969] 2 QB 375 at 395.   79 Per Lord Esher, MR, Merivale v Carson, (1887) 20 QBD 275.   80 [1925] AC 47, 375.

 

 

The test of Lord Esher MR, adopted in Sutherland v Stopes, is ambiguous. One would expect a fair-minded man not to hold prejudiced or exaggerated views. Although the test clearly implies that the comment need not be reasonable, it is difficult to give the description “fair” a meaningful content. Halsbury recognises that a precise test is difficult to discern from the cases and states that the question is whether the comment is one that a man could honestly make on the facts proved.⁸¹ Thus fairness appears to be a misleading description, for a comment which might appear unfair to many will be considered “fair” in the specialised sense in which it is used in relation to the defence of fair comment. Duncan & Neill similarly state:

Other reform bodies have considered the term “fair” in this defence to be devoid of meaning and have recommended dropping the word from the title.⁸³

87.

Imputation of Base and Dishonourable Conduct or Motives: The law is uncertain as to the test to be applied where the comment contains allegations that the plaintiff has acted dishonestly or dishonourably or was inspired by base or sordid motives. The first view is that the defence of fair comment does not apply at all in this case and such allegations must be defended by justification. The second view is that the defence of fair comment does apply, but the defendant must show that the comment was reasonable. The third view is that the defence of fair comment applies and the ordinary test of fairness is used.

The singling out of this class of case occurred in Campbell v Spottiswoode⁸⁴ where Cockburn CJ stated that:

81 Halsbury's Laws of England, vol 28 para 141.   82 Duncan & Neill, Defamation, para 12.01, footnote 1, p 62.   83 See below, paras 301–305.   84 (1963) 3 B & S 769.

 

 

This ambiguous formulation led to the three interpretations set out above and detailed as follows:

Duncan & Neill suggest that in each case the statement should be examined in order to see whether it is an assertion of fact or an expression of opinion.⁹⁵

89 [1908] 2 KB 325n.   90 [1908] 2 KB 309, 317.   91 [1909] 1 KB 239, 253.   92 [1958] 2 All ER 516.   93 [1965] 2 All ER 523.   94 Ibid, at 535.   95 Duncan & Neill, Defamation, para 12.30 p 77.

 

 

It is quite possible that in some contexts the imputation of base and dishonourable motives is an assertion of fact which requires justification, while in others it is more in the nature of a comment. Once the statement is capable of being defended as a comment, there does not appear to be any special reason for imposing a special test of reasonableness upon it.

There appears to be only one Irish case dealing with allegations of base and sordid motives. This is Black v Northern Whig,⁹⁶ where it was stated of the plaintiffs that they were “impelled by motives which they themselves emphasise unblushingly and propelled by anxious and apprehensive interests behind the scenes”. In the course of his judgment Brown J referred to Joynt v Cycle Trade Publishing Co and Hunt v Star Newspaper Co which, we have seen above, support the view that such allegations must be treated as allegations of fact and justified. Brown J stated “There is no evidence to support them as facts. If they are comment they are not warranted by any facts set out in the article”. Although Brown J did not expand on his understanding of what was required to “warrant” the comment, and he did not decide definitively whether the allegations were statements of fact or opinion, the case probably aligns itself with those other cases where the imputations of sordid motives was treated as a statement of fact.

MATTERS OF PUBLIC INTEREST

88.

The third element to be established by the defendant in the defence of fair comment is that the subject matter consists of a matter of public interest.

89.

Matters of public interest include a wide range of activities, including matters inherently of interest to the public and matters submitted to the public for their attention. Whether the material is a matter of public interest is for the judge to decide.

Gatley lists the following topics as matters of public interest:

90.

The defence of fair comment on a matter of public interest does not protect a defendant in making comments on the private lives of public persons, except where this appears to be relevant to their involvement in public affairs.

91.

Although 'matters of public interest' open to comment include the administration of justice, a defendant must be careful not to overstep the boundaries of contempt of court. This includes (1) statements which “scandalize” the court, i.e. undermine confidence in or impute improper motives to the judiciary, (2) statements which seriously misrepresent judicial proceedings, (3) statements which are likely to prejudice a fair and unbiased trial, where proceedings are pending. In this latter category, where a judgment is under appeal, the likelihood of discussion prejudicing its outcome is greatly reduced, because no jury is involved.

This latter point is illustrated by Cullen v Toibin and Magill Publications.⁹⁹ While the plaintiffs appeal to the Court of Criminal Appeal was pending, the defendants entered into a contract to publish the account of one Elizabeth Madden of her relationship with the plaintiff prior to and including the events which were the subject matter of the trial. The grounds of appeal related to the insufficiency of the uncorroborated evidence of an accomplice necessary to sustain a conviction for murder. The Supreme Court refused to grant an injunction to the plaintiff, holding that the publication of the article could not possibly prejudice the objective determination by the appellate court of pure issues of law:

98 Libel and Slander, 8ed, pp 315–324, paras 732–746.   99 [1984] ILRM 577.

 

 

92.

It is sometimes erroneously assumed that the issue of a writ in respect of a publication precludes further comment on the same matter. Plaintiffs have on occasion exploited this fear of defendants by issuing so-called “gagging writs”. However, the issue of a writ in itself does not put an end to further comment on the same subject-matter.

In Thomson v Times Newspapers Salmon LJ stated that:

“The law says – and says emphatically – that the issue of a writ is not to be used so as to be a muzzle to prevent discussion”.¹⁰²

Again in 1974, Lord Reid stated:

Thus in Irish Provident Association v Hastings,¹⁰⁴ where proceedings were instituted against a newspaper proprietor in respect of articles published in his newspaper, mere republication of matter along the same lines did not in itself constitute a contempt of court.

Furthermore, the issue of a writ with the objective of stifling further comment may constitute malicious prosecution, in respect of which damages may be recovered. Such an action exists where the proceedings have been commenced or maintained without reasonable or probable cause and maliciously i.e. out of some improper and wrongful motive, which includes the use of the legal process for some other than its legally appointed and appropriate purpose.¹⁰⁵

MALICE AND FAIR COMMENT

93.

A “fair” comment which is based on facts, and concerns a matter of public interest may nonetheless fall outside the defence of fair comment if it is shown that the defendant was actuated by malice.

100 Ibid, per O'Higgins CJ at p 582.   101 [1969] 1 WLR 1236, 1240.   102 Per Lord Denning MR, Wallersteiner v Moir [1974] 1 WLR 991, 1004–5.   103 Attorney General v Times Newspapers [1974] AC 273, at p 301.   104 (1904) 5 New Ir Jur Rep 10.   105 Doreen v Suedes (Ireland) [1982] ILRM 126.

 

 

We discuss the legal concept of 'malice' in greater detail at a later stage. At this point, it is sufficient to note that the term as used in the law of defamation is not confined in its application to spite or ill-will. Malice in law is a wrong or improper motive or feeling existing in the mind of the defendant at the time of publishing and actuating that publication. That 'malice' in this sense may defeat a defence of fair comment was established in Thomas v Bradbury Agnew and Company Limited¹⁰⁶ which concerned the publication of a review of a book, written by the plaintiff, in Punch. There was evidence of malice on the part of the defendant from the relations between the parties before the action, the special manner in which the article appeared in the magazine, the expression of the defendant, and his demeanour in the witness box. Collins MR stated:

Fairness and malice are separate enquiries. This is borne out by the language of Denning LJ in Adams v Sunday Pictorial Newspapers (1920) Ltd v Champion:

The concept of malice in relation to the defence of qualified privilege was examined thoroughly in Horrocks v Lowe.¹¹⁰ It has been suggested by Duncan and Neill that the criteria governing the malice element set out in that case apply equally to fair comment. Accordingly, the defence of fair comment will only be defeated if the plaintiff shows that the defendant had an improper

106 [1906] 2 KB 627.   107 Ibid at p 640.   108 Ibid at p 642.   109 [1951] 1 KB 354, at p 360. See also the comments of Scrutton LJ in Lyle-Samuel v Odhams, [1920] 1 KB 135, at 143.   110 [1974] 1 All ER 662.

 

 

motive for publishing the words and that the improper motive was the sole or dominant motive. If the comment did not represent the honest opinion of the defendant this would constitute improper motive. Furthermore, even if the comment did represent the honest opinion of the defendant the plaintiff may still prove improper motive of another form e.g. spite, ill-will, or publication for personal gain.¹¹¹

It may also be that the publication by a defendant of the opinion of another, with which it does not agree, will be indicative of actual malice. This is discussed at no. 148 below.

ABSOLUTE PRIVILEGE

94.

Absolute privilege protects statements in situations in which the law considers that absolute freedom of communication is so essential that no action in defamation should be allowed, regardless of the truth of the statement or the motive of the speaker.

In such cases, the speaker is totally immune from liability, even if he published the words with full knowledge of their falsity and with the express intention of injuring the plaintiff. Malice is therefore irrelevant to the defence of absolute liability. A study of the defence focuses on the occasions on which such privilege is said to exist.

THE PRESIDENT

95.

Article 13.8(i) of the Constitution provides that

This immunity from liability would appear to be wide enough to encompass defamatory statements made by the President other than in his or her private capacity.

PARLIAMENTARY PROCEEDINGS

96.

Article 15.12 of the Constitution provides as follows:

111 See Duncan & Neill, Defamation, para 17.10, p 126.

 

 

Although it is not specified, it is probable that such privilege is absolute.

Three types of statement enjoy absolute privilege due to Article 15.12; utterances in either House, reports of such utterances, and official reports and publications. The word “utterances” would seem to exclude written statements as well as signs and gestures. Reports of utterances are privileged regardless of whether they are official or unofficial, or made by a media or non-media publisher.

97.

Utterances in parliamentary committees are privileged by virtue of the Committees of the Houses of the Oireachtas (Privilege and Procedure) Act 1976. A “committee” is defined as a committee appointed by either House of the Oireachtas or jointly by both Houses. Section 2 of the 1976 Act provides:

Again the nature of the privilege is not specified, but is probably absolute.

A doubt continues to exist whether the privilege attaches to witnesses summoned to give evidence before a committee.¹¹² McDonald submits that such witness statements are nonetheless absolutely privileged at common law.¹¹³ However, if the cases cited by the author, dealing with the proceedings of parliamentary committees, do not appear to have definitively settled the common law position with regard to utterances of members of the committee,¹¹⁴ it is hard to see how they are any more authoritive on the

112 At least, with respect to a committee other than the Public Accounts Committee, since witness statements to that committee are given the same immunities and privileges as a witness before the High Court under s.3(2) of the Committee of Public Accounts of Dail Eireann (Privilege and Procedure) Act 1970.   113 See McDonald, Irish Law of Defamation, p 124–5.   114 See John Kelly TD, Dail Debates, vol 289, col 322.

 

 

statements of witnesses.

ADMINISTRATION OF JUSTICE

98.

At common law, the general principle is that anything said in the course of judicial proceedings is absolutely privileged.

This principle is usually stated in absolute terms. Gatley, for example, says:

Winfied & Jolowicz also state the immunity in absolute terms:

Halsbury also adopts a concise formulation:

McDonald, however, states that the general principle fragments, according to whether relevant or irrelevant statements are involved, and secondly, according to whether a judge, party, witness or advocate makes a statement.¹¹⁸

99.

Judicial Privilege; Surprisingly, there is no direct Constitutional provision dealing with judicial privilege. It may be implicit in Article 35.2, which provides that all judges shall be independent in the exercise of their judicial functions, subject only to the Constitution and the law. At common law, a Judge of Record is absolutely privileged for liability in respect of any

115 Gatley, Libel and Slander, 8 ed, p 159, para 383. Footnotes omitted.   116 Winfield & Jolowicz, Tort, 12 ed, p 333–4. Footnotes omitted.   117 Halsbury's Laws of England, vol 28, para 98.   118 McDonald, Irish Law of Defamation, p127.

 

 

statement made by him in the performance of his office.¹¹⁹This does not apply in two situations: first, where the judge acts ministerially¹²⁰as opposed to judicially, and secondly, if the judge acts in excess of jurisdiction.¹²¹

The general principle was stated by Lord Mansfield as follows:

Its importance was reiterated in Ward v Freeman:

In Tughan v Craig, the judge sued in a defamation action had said of the plaintiff's solicitor in an earlier case:

Dodd J held that the action was not maintainable against the defendant judge. He stated:

119 See Tughan v Craig, [1918] 1 IR 245, where Dodd J reviewed the earlier authorities such as Taafe v Downes, (1813) 3 Moore PC 36n, Ward v Freeman, (1842) 2 ICLR 460, Money v Leach, 1 WBL 560 and Mostyn v Fabrigas, Cowp 172.   120 Ferguson v Kinnoull, (1852) 9 CL & Fin 251; Ward v Freeman, (1842) 2 ICLR 460, 469, 513.   121 O'Keefe v Cullen, (1873) IR 7 CL 319, 411; Houlden v Smith, (1850) 14 QB 841; Sirros v Moore, (1975) QB 118, 140.   122 Mostyn v Fabrigas, Cowp 172.   123 (1852) 2 ICLR 460, per Greene B at p 467.   124 [1918] 2 IR 245.

 

 

In Macauley & Co Ltd v Wyse-Power,¹²⁵ Maguire J held that an action against a Circuit Court judge for slander was not maintainable, where the matter complained of was uttered in the course of his performance of judicial duties. It was better, he said, that an individual should suffer than that the Court of Justice be hindered by apprehensions on the part of judges that their words may become the subject of an action. He described the privilege as the privilege of the People:

The first exception to the judicial immunity rule is that the privilege does not attach to words spoken by a judge when acting ministerially. This was recognised implicitly in Ward v Freeman,¹²⁶ where the central issue was whether the act in question, the refusal of an appeal, constituted a judicial or a ministerial act. The essence of a ministerial act appears to be an absence of discretion. This will most frequently arise in the District Court where, for example, the District Justice is obliged to grant a particular licence if certain conditions are met and exercises no judicial discretion.

The second exception to the principle of judicial immunity is where the judge acts in excess of jurisdiction. In O'Keeffe v Cullen, Whiteside CJ recognised the privilege of judges:

However he added:

125 (1943) 77 ILTR 61.   126 Supra, footnote 123.   127 (1873) IR 7 CL 319, 410.

 

 

In the recent case of Sirros v Moore & Others,¹²⁹ the Court of Appeal held that although a judge will be liable for acts in excess of jurisdiction, he must additionally be aware that he was acting outside his jurisdiction. In the course of his judgment, Lord Denning MR stated:

Buckley LJ said:

100.

Parties and Witnesses: Parties and witnesses enjoy absolute liability in respect of defamatory statements made in the course of the administration of justice.

The privilege which attaches to witness statements is based on policy reasons:

128 Ibid, at 411. Houlden v Smith 14 QB 852 and Beaurain v Scott, 3 Camp. 388, illustrate instances of judges acting in excess of jurisdiction. In the former case the defendant judge had no jurisdiction to commit the plaintiff to jail, nor even to summon him to show cause for non-payment of a debt; in the second case, the defendant, a member of the Ecclesiastical Court, was held liable in damages to the plaintiff for unlawfully excommunicating him because the plaintiff had refused to obey an order the Court had no power to make.   129 [1975] QB 118.

 

 

101.

It is clear that this privilege protects statements properly and lawfully made in the due course of judicial proceedings; however a doubt exists as to whether irrelevance or malice defeats the privilege.

In Kennedy v Hilliard,¹³¹ it was held that no action lies against a party for a statement in an affidavit made by him as a witness, even if the statement was irrelevant and was expunged from the affidavit by an order of the competent court. This case was approved in McCabe v Joynt, where Palles CB stated:

The same judge quoted with approval the policy considerations outlined by Pigot CB in Kennedy v Hilliard for the view that false malicious witness statements are covered by the privilege:

130 Per O'Dalaigh CJ, In Re Haughey [1971] IR 217, 264.   131 (1859) 10 ICLR 195.   132 [1901] 2 IR 115, 126.   133 Supra, footnote 132, at 128, at 209–210.

 

 

Later, in explaining why both material and non-material matter in the affidavit should be protected, Pigot CB said that:

Despite this authority, McDonald¹³⁵ says that the position is not totally settled and argues that the authorities prior to Kennedy v Hilliard went both ways, but on the whole tended to the view that irrelevant statements were not protected. Furthermore, O'Dalaigh CJ in Re Haughey¹³⁶ expressed the view that an irrelevant statement loses the witness his privilege and he may be sued in defamation. Walsh and Budd JJ agreed with the judgment of O'Dalaigh CJ. However it is diluted by the fact that it was obiter dictum and stated without reference to authority.

In conclusion, the view that irrelevant or malicious statements made by a witness or party are within the privilege is supported by two decisions, one in 1859 and one in 1901. On the other hand, there are a number of older authorities tending to the opposite view and a recent Supreme Court obiter dictum supported by two other members of the court, stating that irrelevancy destroys the privilege.

102.

Advocates' Privilege: Advocates include barristers, solicitors, and parties appearing on their own behalf. Such persons have an absolute privilege in relation to relevant statements they make in the course of the administration of justice.

103.

It is unclear whether this privilege extends to irrelevant or malicious statements. The current Irish position appears to be that such statements are not privileged.

In the Irish 19th century case of The Queen v Kiernan,¹³⁷ Crampton J cited an earlier English case, Hodgson v Scarlett,¹³⁸ as laying down two propositions:

134 Ibid, at 211.   135 Irish Law of Defamation, p 133.   136 [1971] IR 217, at 264.   137 (1885) 5 ICLR 171.   138 1 B & A 232.

 

 

Another Irish case of the same period supports this view. In the Queen v Hutchins,¹³⁹ the defendant, conducting his own case at Quarter Sessions, made slanderous statements concerning the plaintiff at the conclusion of the case. Lefroy CJ made absolute a conditional order for leave to file a criminal information against the defendant, on the basis that the advocate's privilege is lost when the terms used are calculated to produce a breach of the peace:

Although the loss of the privilege was because the words tended to breach the peace and not because of irrelevancy, the case supports the view that the privilege may be lost if the words are not pertinent to the proceedings.

In conclusion it would appear that the Irish position is that all statements made by an advocate do not automatically enjoy privilege. The English position, however, has been altered since the decision in Munster v Lamb.¹⁴⁰ In this case, the Court of Appeal held that no action would lie against an advocate for defamatory words spoken in the course of judicial proceedings, even though they were uttered maliciously and with no object of supporting the client, and without justification, lawful excuse or personal ill will towards the plaintiff arising out of a previously existing cause, and the statements are irrelevant to every issue of fact before the tribunal. McDonald doubts the correctness of this decision.¹⁴¹ However Gatley¹⁴² notes that Munster v Lamb was cited with approval in Rondel v Worsley¹⁴³ and that the rule in Munster v Lamb has been held as binding on the New Zealand courts.¹⁴⁴

QUASI-JUDICIAL BODIES

104.

There is English authority in support of the view that the doctrine of absolute liability existing in respect of statements made in the course of proceedings before a Court of Justice equally applies to tribunals which

139 (1857) 7 ICLR 425.   140 (1883) 11 QBD 588.   141 Irish Law of Defamation, p136.   142 Libel and Slander, 8ed, p 166, footnote 72.   143 [1969] 1 AC at pp 229, 252, 266–7, 271.   144 Richardson v Harley (1911) 31 NZLR 464.

 

 

exercise judicial functions.¹⁴⁵

This would presumably apply to bodies exercising limited functions and powers of a judicial nature under Article 37 of our Constitution.

In Royal Aquarium v Parkinson, Lord Esher MR stated:

Similarly, in O'Connor v Waldron,¹⁴⁷ Lord Atkin stated:

The doctrine has been held to apply to the proceedings of a number of bodies in England; a Justice of the Peace,¹⁴⁹ a Commission issued by the bishop of a diocese,¹⁵⁰ the Disciplinary Committee constituted under the Solicitors Act,¹⁵¹ the Benchers of an Inn of Court¹⁵² and a local military tribunal.¹⁵³

It is a difficult task to draw a precise line between judicial and non-judicial functions. English case law provides guidance as to how to identify judicial functions for the purpose of applying the doctrine of absolute privilege. Irish case law provides guidelines identifying limited judicial functions for the purposes of Article 37.

145 See Gatley, Libel and Slander, 8ed, p 173, para 409; Duncan & Neill, Defamation, para 13.11, p 85; Royal Aquarium v Parkinson [1892] 1 QB 431; O'Connor v Waldron [1935] AC 76.   146 [1892] 1 QB 431, 442.   147 [1935] AC 76.   148 Ibid, at 81.   149 Hodson v Pare [1899] 1 QB 455.   150 Barratt v Kearns, [1905] 1 KB 504.   151 Addis v Crocker, [1961] 1 QB 11.   152 Lincoln v Daniels [1962] 1 QB 237.   153 Copartnership Farms v Harvey Smith [1918] 2 KB 405.

 

 

Gatley¹⁵⁴ identifies a number of elements that go to make up an administration of justice:

In the Irish context, the doctrine that absolute liability protects statements made in the course of quasi-judicial proceedings would presumably apply to bodies exercising limited judicial functions under Article 37 of our Constitution. The exercise by a body of non-limited judicial powers would be an unconstitutional usurpation of the sphere of the courts. In this respect, the Irish case law on drawing the boundaries of “limited” judicial powers is relevant to ascertaining the bodies to which the doctrine of absolute privilege would apply.

In Re Solicitor's Act 1954,¹⁵⁵ the power to strike a solicitor off the roll exercised by the Disciplinary Committee of the Incorporated Law Society was held to be a sanction of such severity that its exercise amounted to an administration of justice which was not limited. In a later case, Re Solicitor's Act 1954 and D, a Solicitor,¹⁵⁶ it was held that the power to deny a solicitor of a practising certificate for a year was not so final a decision as to amount to an administration of justice. In Cowan v Attorney General,¹⁵⁷ a test based on a statement of the Supreme Court in the first Solicitor's Act case was formulated by Haugh J:

154 Libel and Slander, 8ed, p 167–170, paras 404–406.   155 [1960] IR 239.   156 95 ILTR 60.   157 [1961] IR 411.

 

 

A body acting in such a way would not be exercising limited judicial functions. A similar test was adopted in McDonald v Bord na gCon, (No 2)¹⁵⁸ by Kenny J in the High Court.

A recent English case specifically examines the issue of determining whether a body is quasi-judicial for the purpose of absolute privilege. In Hasselblad (GB) Ltd v Orbinson,¹⁵⁹ the body in question was the European Commission. In the course of an investigation into alleged anti-competition practices by the plaintiff, the Commission received a letter from the defendant stating that the plaintiffs had refused to repair a camera purchased by him on the ground that although it was manufactured by the plaintiff's parent company, it had not been purchased from an authorised dealer. As required under its procedure, the Commission sent a copy of this letter to the plaintiff in order to afford an opportunity of reply. The plaintiff denied the allegations and threatened the defendant with defamation proceedings. When the defendant refused to apologise or retract, the plaintiff commenced defamation proceedings on the basis of the letter.

The Court of Appeal held that the letter was sufficiently connected with the process of giving evidence as to come within the privilege, if any, afforded to written or oral evidence given directly to or before the Commission. Accordingly, it was necessary to decide whether the Commission was a quasi-judicial tribunal to which the rule of absolute privilege applied. The court considered (a) the authority under which the Commission acted, (b) the nature of the question into which it was its duty to inquire, (c) the legal consequences of its decision, and (d) the procedure adopted by the Commission. It held that although the Commission's duties required it to investigate infringements of the anti-competition principles and to take appropriate measures to bring these to an end, and although its decisions were enforceable by the High Court, the procedure adopted by the Commission indicated that it acted in a manner dissimilar to a court of justice. In particular, the Court of Appeal noted the fact that its decisions were reached by Commissioners who had not attended the hearing on the basis of the advice of Member States who were not directly concerned. Accordingly, the Commission and its procedures were administrative rather than judicial or quasi-judicial in character, and evidence given to it did not attract absolute privilege.

However, although the Court of Appeal held that the letter given to the Commission did not attract absolute privilege, it refused to allow the letter to form the basis of defamation proceedings on a different ground. The public interest in having libellous allegations investigated and redressed by the law had to be balanced against the public interest in ensuring that the Commission would not be frustrated in its duties under the Treaty. On balance, the court held, the public interest in favour of assisting the

158 [1965] IR 217, 100 ILTR 89.   159 [1985] 1 All ER 173.

 

 

Commission in carrying out its duties required the court to refuse to allow the letter to be produced in a libel action.

This public interest argument leaves room for expansion. On this view, if a body and its functions are held to be administrative rather than judicial or quasi-judicial, the battle is not over. It may be that there is such a public interest in assisting the functions of the body in question that evidence given to it may not be used to ground defamation proceedings. The Ombudsman, for example, would probably not be a judicial or quasi-judicial entity. However, there is no doubt that to allow defamation proceedings to be brought on the basis of a complaint made to him would greatly hamper his functions and duties. It is surprising, however, that the Court of Appeal in the Hasselblad case did not hold the occasion to be one of qualified privilege. It might easily have been found that the defendant had an interest to make the statement and that the Commission had a duty to receive it. Complaints made to the proper authorities attract qualified privilege at common law, as is clear from Hynes-O'Sullivan v Driscoll.¹⁶⁰

COMMUNICATIONS BETWEEN SOLICITOR AND CLIENT

105.

It has been held that communications between solicitor and client are absolutely privileged.

This was held by the Court of Appeal in More v Weaver,¹⁶¹ although the correctness of the decision was doubted by Lord Atkin in Minter v Priest.¹⁶² It is clear, however, that they attract at least qualified privilege.

THE EXECUTIVE

106.

Statements made by certain public officials concerning matters of State in the course of their official duties are absolutely privileged at common law.

There is little Irish authority in this area and this statement represents the generally accepted position at common law as laid down in a number of

160 Unreported, Supreme Court, 21 July 1988.   161 [1928] 2 KB 570.   162 [1930] AC 588.

 

 

English, Australian and United States decisions.¹⁶³ While the cases support the view that it would extend to communications made by Government Ministers to each other or to their subordinate officials, it is not clear how far beyond these categories it extends. It is thought, however, that McDonald is correct in stating that the limitations recently recognised by Irish decisions¹⁶⁴ on claims of executive privilege in relation to the production of documents in civil or criminal proceedings do not affect the privilege now under consideration. At a later point in this paper, we consider the desirability of clarifying the extent of this absolute privilege.

QUALIFIED PRIVILEGE

107.

The law affords protection on certain occasions to a person acting in good faith and without improper motive who makes a statement which is untrue and defamatory.

108.

There are a number of occasions which attract qualified privilege:

109.

Malice defeats the defence of qualified privilege.

110.

Statements made pursuant to a legal, social or moral duty to a person who has a corresponding interest to receive the statement:

The fact that a person to whom defamatory matter is published had an obvious interest in receiving the matter is not sufficient to establish a privileged occasion. The person making the statement must also have a legal, social or moral duty to make it. This element of reciprocity was recognised in Watt v Longsdon.¹⁶⁸ The test of “duty” advanced in that case was as follows:

Examples of such duty and interest are provided by Lawless v Anglo-Egyptian Cotton & Oil Co,¹⁷⁰Kirkwood-Hackett v Tierney¹⁷¹ and Hartery v Welltrade.¹⁷² In the first case, the defamatory material was contained in the auditors' report

166 (a) (b) and (c) attract qualified privilege at common law.   167 Horrocks v Lowe [1974] 1 All ER 662, per Lord Diplock at 669.   168 [1930] 1 KB 130.   169 Ibid, per Greer LJ, p 153.   170 (1869) LR 4 QB 262.   171 [1952] IR 185.   172 High Court, Unreported, 15 March 1978.

 

 

of a company which had been circulated to the company share-holders after a resolution of an ordinary general meeting. It was held that the occasion was privileged because the directors had a duty to communicate the report to the shareholders, and it was in the interest of all the shareholders to be informed of its contents. In the second case, the defamatory statement was made by the President of University College Dublin to a student in the presence of the College Secretary, in the course of an enquiry into a money draft allegedly wrongly paid to the student. The occasion was privileged because the speaker had a duty to make a full enquiry into the matter. In the third case listed, it was held to be a privileged occasion where the author of the statement had made a complaint to the Garda Siochana and a request that a criminal offence be investigated, since the statement was made pursuant to a legal duty.

The duty may also be of a more social or moral character, such as where an employer writes a character reference in respect of an employee, or a father speaks to a son or daughter about his/her intended spouse, or an employer warns an employee about their associates. It also encompasses those cases where the maker of a statement has spoken to the proper authority in order to redress a public grievance.¹⁷³

An example of the failure of the defence due to a want of duty and interest is provided by Sevenoaks v Latimer.¹⁷⁴ One L, a postmaster, was instructed to make inquiries by the Post Office authorities with regard to the misappropriation of a postal order. The defendant stated his belief to one M that the plaintiff was guilty of the crime under investigation. It was held that, as the defendant had no duty to make the statement, and M had no duty or interest to receive it, there was no occasion of qualified privilege.

Reciprocity of interest means that the person receiving the statement must actually have an interest in its receipt. It has recently been held by the Supreme Court in Hynes – O'Sullivan v O'Driscoll¹⁷⁵ that it is not sufficient if the maker of the statement honestly and reasonably believed that the recipient had an interest to receive it, if the recipient did not actually have such an interest.

In England, there appears to be one exception to this reciprocity rule. In London Association v Greenlands Ltd¹⁷⁶ it was held that where an enquiry is made of a person as to the financial circumstances and credit of a trader, that person is deemed to be giving the information on an occasion of qualified privilege if (a) he bona fide believes in the truth of the information and (b) bona fide believes that the person making the enquiry has an interest which

173 McMahon & Binchy, Irish Law of Torts, p 363, Gatley, Libel and Slander, 8ed p 221, para 522, Hynes-O'Sullivan v O'Driscoll, Unreported, Supreme Court, 21 July 1988.   174 54 ILTR 11.   175 Unreported Supreme Court 21 July 1988.   176 [1916] 2 AC 15.

 

 

justifies the enquiry. This decision does not appear to have been considered by any Irish Court.

A distinction is made in relation to bodies which make statements as to the credit of other commercial bodies in answer to specific enquiries. If the body giving the information does so for profit, at common law it does not attract privilege; but if it does not do so for profit, it does attract privilege.¹⁷⁷

111.

Statements made for the protection of an interest to a person who has a duty or interest to receive the statement.

The interest protected may be the property or the person of the speaker himself,¹⁷⁸ the interest of a third party,¹⁷⁹ or the interest of a group.¹⁸⁰

Examples of such occasions of privilege include a decision by the Stewards of the Jockey Club published in the Racing Calendar to an audience which is interested in horse racing,¹⁸¹ a statement made to parishioners about their priest,¹⁸² and a statement made in answer to a request by an interested party as to the plaintiff's commercial standing or credit.¹⁸³ Furthermore, when a person is threatened with legal proceedings for libel or is a defendant in such proceedings, the publication by him of an apology in the newspaper in which the alleged libel appeared is an occasion of privilege.¹⁸⁴

The Media

The courts have consistently refused to recognise an interest or duty on the part of the press to report matters of public interest to the public sufficient to constitute an occasion of privilege. There is therefore no media qualified

177 London Association for Protection of Trade v Greenlands Ltd, Ibid, and Macintosh v Dun [1908] AC 390 (Privy Council).   178 McMahon & Binchy, Irish Law of Torts, p.364, McDonald, Irish Law of Torts, p.146–150.   179 McDonald, p 150–6; here, however, factors such as the relationship between the speaker and the person protected, and the risk posed by the person defamed to the person protected, come into play.   180 McDonald, p 156–161, including proceedings of domestic tribunals.   181 Chapman v Ellesmere [1932] 2 KB 431.   182 O'Keeffe v Cullen, (1873) IR 7 CL 319.   183 Davis v Reeves (1855) 5 ICLR 79, Fitzsimmons v Duncan & Kemp & Co [1908] 2 IR 43.   184 Willis v Irish Press Ltd 72 ILTR 238.

 

 

privilege as such.¹⁸⁵ In London Artists v Littler,¹⁸⁶ a theatrical producer published a letter in the national press suggesting that the plaintiffs had taken part in a plot to force the end of the run of a play produced by him. The defence of qualified privilege, inter alia, was pleaded. The Court of Appeal felt that a duty to communicate information to the public arose where it was in the interest of the public that such publication be made, but that such a duty did not arise simply because the information appeared to be of legitimate public interest.

The same result was reached in the more recent case of Blackshaw v Lord.¹⁸⁷ In that case, the defendant journalist attended a press conference where it was stated that it had emerged from committee investigations that there had been irregularities in the management of a government department scheme to provide finance for companies developing oil and gas resources in the North Sea, and that a senior official had been dismissed. The defendant subsequently attempted to glean more information from the press officer of the relevant department. In the course of a telephone conversation, the press officer denied that anyone in the department had been dismissed, but stated that the plaintiff had held the post of under-secretary at the relevant time and was in charge of the division operating the scheme, that the plaintiff had subsequently left the division for a position of equal rank in a different division, and had then resigned for personal reasons, mainly to pursue a writing career. The defendant wrote an account of the information obtained from the press conference and the press officer, stating that the plaintiff had resigned, but omitted to state that he had done so for personal reasons. In the libel action brought by the plaintiff, the defendant pleaded, inter alia, qualified privilege. However, the Court of Appeal held that it was not sufficient that the report was of general interest to the public. The public would have to have a legitimate interest in receiving the information and the publisher would require a corresponding duty to publish the report to the public at large. The question whether this interest and duty existed would depend on the particular circumstances of each case, and on the facts, did not exist in the present case. Similarly in the New Zealand case, of Truth (New

185 However it may be that matter published in a media organ attracts qualified privilege for other reasons. In Nevin v Roddy & Carty [1935] IR 397 the plaintiff brought a libel action against C, the writer of the letter complained of, and R, the proprietor of the newspaper in which it was published. The jury found the letter to be defamatory of the plaintiff. However the defendant argued that the letter was a response to the action of the plaintiff and another in making defamatory statements concerning the defendant at an open Corporation meeting, with the intention that they should be published in the press. On appeal, the Supreme Court held that the occasion of C's reply was privileged and that he had lawful justification for resorting to the newspaper in which the plaintiff's charges appeared. There was nothing in the defendant's letter which was not sufficiently connected with the indication of his character to ground an objection of irrelevancy. The jury finding that there was no malice on the defendant's part should not be disturbed, and the judgment entered for the defendant should stand.   186 [1968] 1 WLR 607.   187 [1983] 2 All ER 311.

 

 

Zealand) Ltd v Holloway,¹⁸⁸ it was held that the defence of privilege could not be claimed by a newspaper simply because the topic covered was of public interest.

No court in this jurisdiction has ruled on this specific point, but the Northern Ireland decision in Doyle v The Economist¹⁸⁹ is in conformity with the English and New Zealand position. In that case the defendant published an article concerning the appointment of the plaintiff and two others as County Court judges, which allegedly implied that the plaintiff's appointment was not made on merit. The author of the article said that its content was based on interviews with senior Bar members and other eminent persons, but refused to give these sources in a witness box. It was held that although the matter was undoubtedly of public interest, it could not be said that there was any kind of duty on the defendant to pass on views to the public which were exposed in private and confidential discussion by unidentified persons, and untested for reliability and motive.

112.

Fair and Accurate Reports of Judicial Proceedings

The rule was stated by Lord Esher MR in 1893 as follows:

The rationale of this common law privilege is clearly explained by Salmon LJ in Burnett & Hallamshire Fuel Ltd v Sheffield Telegraph and Star Ltd:

188 [1960] NZLR 69.   189 [1980] NI 171.   190 Kimber v Press Association Ltd [1893] 1 QB 65, 68.

 

 

An example of such a report failing for lack of accuracy is in Mitchell v Hirst, Kidd & Rennie Ltd.¹⁹² The plaintiffs had been charged with theft and taking a car without the owner's consent against road traffic legislation. The charges of theft were dropped at the police court. Nonetheless, newspaper reports appeared subsequently with the headings “Stolen Motor Car” and “Motor Car Theft”. The reporters at the police court had not heard the withdrawal of the charge of theft, and this was found to be due to their inattention. The lack of accuracy was fatal to the privilege, and the plaintiffs recovered damages for libel.

Section 18 of our Defamation Act sets out a privilege in relation to the reporting of judicial decisions. It is not clear whether this privilege is absolute or qualified. However, it differs from the common law privilege under discussion in a number of other respects. First, the statutory privilege is confined to the media, whereas the common law privilege is not. Secondly the statutory privilege is conditional upon the report being “contemporaneous with” the proceedings reported, whereas there is no such time restraint upon the common law privilege. Thirdly, the statutory defence may be wider than the common law privilege in its geographical aspect, for it covers reports of court proceedings in Northern Ireland as well as the Republic of Ireland. The common law privilege appears to attach to proceedings in the domestic country only, and is extended to foreign court proceedings only reluctantly. However, where the foreign court proceedings are tied in closely with the administration of justice in the domestic country, the reporting of such proceedings may attract privilege at common law.¹⁹³

113.

Reports Privileged by Virtue of s24 of the Defamation Act

The Second Schedule to the Defamation Act 1961 sets out a lengthy list of matters the reports of which attract qualified privilege. Section 24 of the Act provides that in respect of the matter listed in Part II of the Schedule, the defence of qualified privilege shall fail if it is proved that the defendant was requested by the plaintiff to publish a reasonable statement by way of explanation or contradiction and refused or neglected to do so, or has done so in a manner not adequate or reasonable in the circumstances. The matter listed in Part I is not made subject to this condition.

As with all the occasions of qualified privilege, malice destroys the defence.¹⁹⁴ As malice is not defined in the Act, its interpretation appears to be left to the common law. Section 24(3) adds that the defence does not attach to publications which are prohibited by law, or to the publication of matter

191 [1960] 1 WLR 502, at p 504.   192 [1936] 3 All ER 872.   193 Webb v Times Publishing Co. [1960] 2 QB 535.   194 Defamation Act 1961, S24(1).

 

 

which is neither of public concern nor of public benefit.

It should be borne in mind that the cases of common law privilege already discussed remain part of the law: the cases set out in the Second Schedule supplement rather than replace them.

The list of matters contained in the Second Schedule is as follows:

PART I

Statements privileged without Explanation or Contradiction

 

 

PART II

Statements privileged subject to Explanation or Contradiction

The sum of these matters constitutes the range of subjects of which the media are entitled to make fair and accurate reports. There is consequently no protection for reporting statements by public figures such as politicians, judges acting unofficially, the Attorney General, the DPP or the Ombudsman. If a media organ were to report a statement by such a figure which was defamatory of an individual, it would have to avail itself of the other defences in defamation law, since it is as liable as the original author of the statement.

195 The 1961 Act refers to the Companies Acts 1908–59, which code has been replaced by the Companies Acts 1963–90. Section 4 of the Companies Act 1963 provides that references in any Act to a company formed and registered, or registered, under the Companies (Consolidation) Act 1908 shall be construed as references to a company formed and registered, or registered, under that Act or the 1963 Act.

 

 

114.

Malice and Qualified Privilege

Malice destroys the defence of qualified privilege. If an occasion of privilege has been shown by the defendant to exist, the onus is on the plaintiff to establish malice on the part of the defendant.

The occasion which is privileged is so for a reason and the defendant must use the occasion for that reason. “He is not entitled to the protection if he uses the occasion for some indirect and wrong motive. If he uses the occasion to ratify his anger or his malice, he uses the occasion not for the reason which makes the occasion privileged, but for an indirect or wrong motive ....”¹⁹⁶

The use of the term “malice” has not been without ambiguity and the comments of Duncan and Neill are helpful:

Malice has been described in various ways; a “wrong or improper motive or feeling existing in the mind of the defendant at the time of publishing and actuating that publication”, or “want of good faith”¹⁹⁸“feelings not accounted for by the exigencies of the occasion ... but male fide, and in order to injure the complainant”¹⁹⁹“an improper purpose i.e. a purpose inconsistent with the social policy which it is the policy of the law to secure by the technical device of privilege”.²⁰⁰

In some cases personal spite or ill-will may indicate wrong motive. In others, a belief in the falsity of the statement or a reckless disregard as to its truth may constitute malice. McMahon & Binchy state that on some occasions, however, the making of a statement by a person who does not believe in its truth would not defeat the privilege, as where a person making a character reference draws attention to the fact that an offence was suspected of the plaintiff, although the referee does not himself believe it.²⁰¹

196 Per Brett LJ, Clarke v Molyneaux, 3 QBD 246–247 (1877).   197 Duncan & Neill, Defamation, para 17.04, p 121.   198 Kirkwood – Hackett v Tierney [1952] IR 185, 203 and 199 respectively.   199 Jacob v Lawrence (1879) 4 LR Ir 579, 582.   200 McMahon & Binchy, Irish Law of Torts, p 369, quoting I Harper & James, 452.   201 McMahon & Binchy, Irish Law of Torts, 369.

 

 

McDonald also mentions this exception:

However McDonald voices a number of objections to this exception. Firstly, the authority in support of this exception is scarce, and is mostly obiter or academic. Secondly, it is wrong in principle because it facilitates the telling of falsehoods with knowledge of their falsity. McDonald suggests that if such an exception were sanctioned, it should at least be made conditional upon the informer additionally communicating his knowledge that the statement is untrue.²⁰³

Where the author of the statement is an expert, and the statement is untrue, this does not of itself indicate malice which would defeat the defence of qualified privilege. In Denvir v Taylor²⁰⁴ an engineering expert supervising an electrical plant made certain allegations in a letter concerning an electrician employed in connection with the plant. The occasion was admitted to be privileged, but the jury found malice. On appeal it was held that the fact that the defendant was an expert making unfounded allegations did not of itself indicate malice, and as there was no other evidence of express malice the plaintiff could not succeed.

In England, there is now an authoritative statement as to the malice element in relation to the defence of qualified privilege. This is provided by the House of Lords in Horrocks v Lowe.²⁰⁵ Lord Diplock, with whom three of the law Lords concurred, stated as follows:

202 McDonald, Irish Law of Defamation, p 206, quoting from Butterill v Whytehead (1879) 41 LT 588, 590.   203 McDonald, Irish Law of Defamation p206.   204 [1936] Ir Jur Rep 4.   205 [1974] 1 All ER 662.

 

 

The guiding principles in English law as regards malice may therefore be stated as follows:

As these principles clarify the existing law on malice, it is likely that they would be persuasive in an Irish case.

Relevance

115.

Irrelevance and Qualified Privilege: If the defendant makes statements which are irrelevant to the occasion of privilege, the defence may be lost.

For example, in McKeogh v O'Brien Moran²⁰⁶ the plaintiff doctor wrote a report to a local Government Department complaining of the way a Mrs N, midwife, conducted her cases. The Department referred the matter to the county council and the report was published in the local press. The defendant solicitor wrote to the county council on behalf of Mrs. N, denying the contents of the report and adding: “She will be able to prove when the time comes that there was greater reason for complaint against Dr. McKeogh in his treatment of his patients than there was against her”. It was held that this statement was irrelevant to and unconnected with the purpose of the letter, which conferred privilege on the other sections of the letter. The irrelevant statement destroyed the defence of privilege.

It is not clear whether irrelevant matter is treated as falling outside the privilege or whether it should be seen merely as evidence from which malice may be inferred. In Horrocks v Lowe Lord Diplock took the view that irrelevant material should be taken as evidence of malice. Otherwise the court might be tempted to apply an objective standard of relevancy which would detract in a large measure from the protection afforded by the privilege:

206 [1957] IR 348.

 

 

Again, as the cases are English they are not binding on the Irish courts but it is to be expected that they would be of persuasive influence. Accordingly, it is helpful to set out the principles submitted by Duncan & Neill as representing the current English position:

According to this analysis irrelevance may defeat the defence in two ways. Firstly, if material is grossly irrelevant it may destroy the privilege by itself. Secondly, if material is irrelevant, it may provide evidence of malice which destroys the defence.

207 (1877) 3 QBD 237.   208 Duncan & Neill, Defamation, para 17.09, p 125.

 

 

SECTION 21 AND UNINTENTIONAL DEFAMATION

116.

At common law, the intent of the defamer is not relevant to (a) the determination of the defamatory effect of the statement, and (b) the issue of identification.²⁰⁹ Section 21 of the Defamation Act 1961 was introduced as an attempt to allow the defendant to establish a defence where (a) the defamatory effect of the statement was unanticipated, or (b) the defendant was unaware that the plaintiff would be identified from the statement.

Central to the defence is the element of fault. The section may only be availed of if the defendant exercised reasonable care prior to the publication. The crucial step in the procedure of the section is the offer of amends. Provided the defendant makes an offer of amends and complies with all the terms of the section, no proceedings may subsequently be taken against him.

Section 21 reads as follows:

The section has been criticised by McDonald as ineffective for three main reasons:

RTE complain that the definition of innocent defamation is too narrow and unduly restricts the type of mistakes that may gain protection.

210 Part of an RTE submission to this Commission.   211 McDonald MD, Irish Law of Defamation, p 231.

 

 

The Boyle-McGonagle Report²¹² additionally criticises the following aspects of the section –

Perhaps the strongest criticism of the section is the statistic offered by the Boyle-McGonagle Report. In the period 1980–85, the High Court records show that the national newspapers did not once avail of the section.²¹⁴

212 Report on Press Freedom and Libel, para 5.5 – 5.9.   213 Under S 21(b). Defamation Act 1961.   214 Remembering that national newspapers represent 55% of defendants in High Court libel actions.

 

 

CHAPTER 3: REMEDIES

Three remedies exist in Ireland at present for the plaintiff in a defamation action. The principal remedy consists of damages. The second type of remedy is the injunction, which may be an injunction awarded after verdict for the plaintiff (in addition to or instead of damages), or an interlocutory injunction awarded prior to the hearing in order to prevent publication pending the hearing. The final remedy is the declaratory judgment, which is not, however, availed of in practice.

DAMAGES

117.

Damages may be of four different types. Compensatory damages are awarded for injury to reputation and hurt feelings.¹ Nominal damages are awarded where the plaintiff has a proper case and wishes only to vindicate his character . Contemptuous damages are awarded as a mark of disapproval by the jury of the plaintiff having brought the action, although he has nonetheless established some damage to his reputation. Punitive damages are awarded in order to punish the defendant.

COMPENSATORY DAMAGES

118.

Compensatory damages are of two types, general and special. General damages are the sum awarded in respect of the loss of reputation which the law presumes to follow from the publication of all libels and of slanders

1 “In a case such as this in which there is no question of punitive, exemplary or aggravated damages, it is the duty of the judge to direct the jury that the damages must be confined to such sum of money as will fairly and reasonably compensate the plaintiff for his injured feelings and for, any diminution in his standing among right thinking people as a result of the words complained of ...” per Henchy J, Barrett case [1986] ILRM 601.

 

 

actionable per se. Evidence of such loss is not necessary, but the plaintiff may produce it if he wishes.² Special damages consist of the sum awarded in respect of the special damage which must be proved in cases of slanders actionable only on proof of special damage.

119.

A judge sitting alone determines the amount of damages. Where there is a jury, the jury sets the sum to be awarded. Damages are said to be “at large” i.e. the award is not limited to pecuniary loss that can be proved.

120.

Assessment of General Damages: The jury award of damages is discretionary. As Palles CB stated in Harris v Arnott:

Nonetheless the courts have considered certain factors to be relevant in considering the extent of damage.

In Barrett v Independent Newspapers, Henchy J listed as relevant considerations in the assessment of damages: “the nature of the libel, the standing of the plaintiff, the extent of the publication, the conduct of the defendant at all stages of the case”.⁴ Griffin J listed similar factors and added, “any social disadvantage which may result or be thought likely to result from the wrong which has been done to the plaintiff, and the injury to his feelings”.⁵ Notably a factor held not to be relevant is the fact that a plaintiff agrees to donate all damages to a named charity.

In Uren v John Fairfax, Windeyer J explained the variety of factors that may be taken into account in assessing compensatory damages as follows:

2 In Campbell v Irish Press, (1955) ILTR 105, the Supreme Court found erroneous a direction of the trial judge that gave the impression that special damage was required to be shown in a libel action.   3 (1890) 26 LR Ir 55, 67–68.   4 [1986]I LRM 601, 608.   5 Ibid, at p614.

 

 

Despite the wide variety of relevant factors emerging from these quotations, it is clear that these judges envisaged injury to reputation as the primary wrong to be redressed, while hurt feelings would be a side issue. RTE, however, complain that in practice counsel are allowed by trial judges to base their line of presentation on the emotional distress inflicted on the plaintiff, which is not the core of the tort, in theory at least.⁷ They ask the Commission to address this problem.

RTE's criticism is supported by the decision in an English case, Fielding v Variety Incorporated⁸ where the injury to reputation was negligible but the court held that the plaintiff was entitled to compensation for feelings of “anxiety and annoyance”.⁹ The plaintiff was a theatre impresario and the defendants published in their journal an article which falsely stated that his latest London production was a flop. The court considered that the fact of the play's success would speak for itself and if American producers read the article they would know its falsity, and therefore no material injury to reputation had been caused. If compensation for injured feelings may be awarded not merely in addition to, but instead of, injury to reputation, this raises questions as to the direction which defamation actions are taking. It may be that it is desirable to allow recovery for such injury. However, it is unfair to impose rules relating to reputational injury upon defendants and expect them to defend an action, the gist of which is something quite different.

121.

Assessment of Special Damages: Special damages are awarded to the plaintiff for quantifiable loss suffered as a natural result of the publication on the basis of principles of causation and remoteness applicable to any other tort.¹⁰“The special damage must be the natural and reasonable result of the defendant's words”.¹¹

6 (1966) 117 CLR at p150.   7 Part of an RTE submission to this Commission.   8 [1967] 2 QB 841.   9 Ibid, per Salmon LJ at 856.   10 Halsbury's Laws of England, vol. 28, para. 18.   11 Gatley, Libel and Slander, 8ed, p97 para. 209. For example in Lynch v Knight (1861) 9 HLC 577, the loss of consortium by a wife after a slander imputing that she had been seduced was held to be damage too remote to be actionable; the husband's reaction was not the reasonable consequence of the words uttered.

 

 

Although the tort of defamation serves to protect reputation, injury to reputation is the one thing that does not constitute special damage.¹² The principal types of special damage are pecuniary or material loss, such as loss of a contract, or employment, or membership of a club, or a spouse. The question of remoteness of damage arises in this area because the pecuniary loss depends to a large extent on the act of a third party, and it may be raised in argument that the third party's act is an intervening act which relieves the defendant from liability.

Where the damage is directly attributable to the independent act of a third party, the defendant will not be liable unless (a) he intended that as a consequence of his publications a third party would act as he did, or (b) it was a natural and probable consequence of his words that the third party would act as he did.

In the case of Vicars v Wilcocks,¹³ it was held that damage was too remote where B was wrongfully dismissed by C after A slandered B. Now, however, it seems that such damage would not necessarily be too remote:

Further authority for the view that Vicars v Wilcocks no longer represents the law is found in McGregor on Damages.¹⁶ That author argues that the decision in Vicars case was based on a previous decision, Morriss v Longdale¹⁷ where Lord Eldon LC expressed the view that if a third party refused to complete his contract with the plaintiff, the plaintiff could not sue the slanderer because the plaintiff could sue the third party instead.

However, this line of reasoning was discredited in relation to another tort in the later case of Lumley v Gye.¹⁸

Where the termination of contract was lawful, the courts have been more willing to allow recovery to the plaintiff from the slanderer.¹⁹

12 See McGregor on Damages, 15ed, para. 1639–1641.   13 (1806) 8 East 1.   14 Gatley, Libel and Slander, 8ed, p98, para. 211.   15 Winfield and Jolovicz on Tort, 12ed, p299.   16 See paras 1648–9.   17 (1800) 2 B and P 284.   18 (1853) 2 E and B 216.   19 Longdon-Griffiths v Smith [1950] 2 All ER 662.

 

 

Where A slanders B to C, and C repeats it to D, who then refuses to deal with B, this was held in Ward v Weeks²⁰ to be damage too remote for B to recover from A. The spontaneous and unauthorised communication by C to D was not considered the necessary consequence of A's original statement to C. The decision has been criticised on the grounds that, taking account of human nature, the repetition of the slander to someone who is in a position to injure the victim is a foreseeable event. However, liability for repetition was held to exist in four types of case in Speight v Gosnay:²¹

Although the general principles of remoteness apply, there appears to be one peculiarity in relation to defamation. In the case of slanders not actionable per se, illness arising from mental worry is too remote, whereas in relation to slanders actionable per se, libel and other torts, such injury is actionable, provided the damage amounts to nervous shock.

122.

Reputation and Damages: The law presumes a man to have a good reputation and it is not necessary for the plaintiff to adduce evidence of his good reputation. However, for a number of reasons it may be advisable for a plaintiff to do so. First, the standing of the plaintiff in the community will affect the measure of damages. Secondly, the plaintiff may have been cross-examined as to credibility and evidence of his good reputation will serve to counteract any bad impression left by such cross-examination. Thirdly, the defendant may intend to produce evidence of bad reputation in relation to the imputation in question in order to mitigate damages.²²

123.

An appeal lies against a jury award of damages where there is no proper proportion between what was actually awarded and what could reasonably have been awarded. However, an appellate court will be very reluctant to overturn a jury verdict. The appellate court does not merely substitute its own view of what should have been awarded, but rather looks to see whether there was any basis for the sum awarded.

This reluctance to interfere with jury verdicts on damages is illustrated by the following examples of judicial statement:

20 (1830) 7 Bing. 211.   21 (1890) 60 LJQB 231.   22 See paras 128–129 below.

 

 

124.

Where the Supreme Court is of the opinion that the jury's award of damages was unreasonable, it appears that it can substitute its own figure without ordering a re-trial.

This was affirmed by a majority of the Supreme Court in the recent case of Holohan v Donohue²⁶ in 1986. The specific question raised on appeal to the Supreme Court was whether it had jurisdiction under Article 34.4.3° of the Constitution to substitute its own figure for the jury award in the High court in a civil case, or whether a restriction was imposed on its appellate jurisdiction in this context by s96 of the Courts of Justice Act 1924.

Article 34.4.3° provides that the Supreme Court shall have appellate jurisdiction from “all decisions of the High Court”, subject to such exceptions and regulations as may be prescribed by law. S 94 of the Courts of Justice Act 1924 provides that nothing in the 1924 Act “shall take away or prejudice the right of any party to an action in the High Court ... to have questions of fact tried by a jury in such cases as he might heretofore of right have so required in the Supreme court of Judicature in Ireland”, subject to certain exceptions of which the Holohan case was not one. S 96 of the 1924 Act provides that every appeal from a judgment in the High Court in an action tried by judge and jury shall be made by way of motion to the Supreme Court for a new trial and that, in any appeal to which the section applies, “the appellate tribunal may, in lieu of ordering a new trial, set aside the verdict, findings and judgment appealed against and enter such judgment as the court considers proper”.

The plaintiff in the Holohan case had been awarded over £94,000 for personal injuries and loss caused by the negligence of the defendant in a road traffic

23 Per Whiteside CJ, Cosgrave v Trade Auxilary (1874) IR 8 CL 349, 358.   24 Per Johnson J, Bolton v O'Brien (1885) 16 LR Ir 97, 131.   25 Per Finlay CJ, Barret v Independent Newspapers, [1986] ILRM 601.   26 [1986] ILRM 250.

 

 

accident. The defendant appealed the award of general damages, which consisted of £30,000 for pain and suffering to date, and £55,000 for future pain and suffering. All the members of the Supreme Court agreed that this award of general damages was excessive. A majority of the Supreme Court (Finlay CJ, Hederman, Henchy and Griffin JJ) held that the Court had jurisdiction to substitute its own figure of damages. McCarthy J, dissenting, was of the view that it had jurisdiction only to order a re-trial.

Finlay CJ, with whom Hederman J concurred, rejected the first submission of the respondent, that the reference in s96 of the right of the appellate tribunal to set aside the “verdict, findings and judgment” appealed against, as opposed to the power of the appellate court to enter a “judgment”, meant that where a re-trial was not ordered, the only alternative was a reversal of the entire judgment of the High Court. The Chief Justice also rejected the submission of the respondent to the effect that to exercise a power of substitution would be, in effect, to deprive him of the right to have questions of fact involved in the assessment of damages tried by a jury. While s94 dealt with the right of trial in the High Court, it did not purport to deal with the right of appeal to the Supreme Court. He noted that his chief difference of opinion from McCarthy J was that he was not of the view that the measurement or assessment of damages was a finding of fact.

Henchy J reached the same conclusion. He noted the only Supreme Court decision dealing with the power to assess damages as an alternative to ordering a re-trial was Gahan v Engineering Products Ltd.²⁷ In that case a jury award of damages was held to be so excessive as to require the court's intervention and re-assessment. In the Gahan case, O'Dalaigh CJ stated:

The Supreme Court proceeded to assess damages itself and the question of the jurisdiction itself was not argued before it. For over fifteen years, the Court acted on that ruling, and the jurisdiction to do so was not challenged until the Holohan case.

Henchy J said that although the conclusion in the Gahan case was correct, it was based on an incorrect assumption:

27 [1971] IR 30.

 

 

The question then became whether s96 of the 1924 Act constituted a restriction on this constitutionally granted appellate jurisdiction. Henchy J answered as follows:

McCarthy J was of the opinion that the Supreme Court has jurisdiction only to order a re-trial on the issue of damages. He observed that the majority holding would logically extend to all other civil cases involving a jury, including defamation actions. Thus, although a re-trial would always be an alternative, in an appropriate case, the Supreme Court would have the power to substitute damages in defamation actions, although such assessment was normally stated to be “peculiarly the province of the jury”. The majority judgments do not refer to defamation actions. However, as the power was found to have a constitutional basis, it is unlikely that defamation actions would be treated any differently, in the absence of specific legislation. McCarthy J was clearly of the opinion that the majority result affected defamation actions.

The present Irish position following the Holohan case is that the Supreme Court may substitute its own award of damages in a case on appeal from a High Court civil action involving a jury. However, the power to order a re-trial is always an alternative. The decision as to which course to adopt depends on the circumstances of the case and not on the wishes of the parties, although their wishes would be “an important factor”.²⁹ The Chief Justice stated that if the respondent expressed a strong desire to have a new trial, the appellant would have to advance “very compelling and strong reasons” as to why the court should not do that. Furthermore, if the transcript of the trial did not contain a “sufficiently clear and concrete set of facts” which would

28 [1986] IR 250, 259–60.   29 Ibid, at 254, per Finlay CJ, see also Henchy J at 261.

 

 

allow the Supreme Court to assess damages, it should order a re-trial. However, a substitution of damages was made in the Holohan case because there was no conflict of medical evidence and there was no reason why the Court could not make its own assessment. The defendant was anxious to have the case disposed of as it was eight years since the accident had occurred. These factors combined to make it an appropriate case for the exercise of this aspect of the Court's appellate jurisdiction.

AGGRAVATION OF DAMAGES

125.

A plaintiff may obtain aggravated compensatory damages. They are not a separate award but are still within the “compensatory damages” award. They are awarded as a response to particularly offensive conduct by the defendant. In theory they are distinct from punitive damages. However the case law has not always upheld this distinction.

One type of conduct which will justify a jury award of aggravated damages is where the defendant persists in a plea of justification which fails,³⁰ or where he unsuccessfully insists on the truth of the supporting facts in a defence of fair comment.³¹

Other examples of aggravating circumstances include the lack of a full and proper apology,³² although a lack of apology is not automatically an aggravating factor; the publication of felonious charges at the time of the withdrawal of the defamatory statement;³³ and the extent of circulation.³⁴ The aggravating conduct of the defendant may be peculiar to the individual case.

In Higgins v Monaghan & O'Reilly,³⁵ the libel consisted of a false charge of personation at an election, followed by an arrest at the instance of the personation agent. The plaintiff was detained in a voting-booth for about an hour and then marched publicly to barracks where she was held for a further two hours before being charged. The plaintiff was heavily pregnant at the time and alleged that as a result of this ordeal she gave birth to a still-born child. These factors were presumably the basis for the aggravated damages awarded by the court.

Malice will also inflate damages. According to McGregor, this is merely part of a principle that the whole conduct of the defendant at all times may be

30 Bell v Parke (1860) 11 ICLR 413, 423; Gallagher v Tuohy (1924) 58 ILTR 134, 135; Associated Leisure Ltd v Associated Newspapers Ltd, [1970] 3 WLR 101, 105; Cassell v Broome [1972] AC 1027, 1125. See para 68 above.   31 Campbell v Irish Press (1955) ILTR 105 24 per Kingsmill-Moore J. See para 84 above.   32 Harriss v Arnott (1889) 26 LR Ir 55. Halsbury is of the view that an apology is a mitigating factor only in certain circumstances – see Halsbury's Laws of England, vol 28 para 240.   33 Bolton v O'Brien (1885) 16 LR Ir 97, 112.   34 See Halsbury's Laws of England, vol 28, para 237.   35 (1940) 74 ILTR 56.

 

 

examined. “The practical effect is that damages will fluctuate up or down with the degree of culpability of the defendants behaviour”.³⁶ Indeed, McGregor includes persistence in a plea of justification, and a lack of apology as instances of malice on the part of the defendant.

Damages may also be aggravated where the defendant unsuccessfully attempts to mitigate damages by adducing evidence of the plaintiff's bad reputation.³⁷

Mitigation of Damages

126.

The defendant may lead evidence in mitigation of damages as follows:

127.

Order 36, R 36 RSC (1986) provides the following requirements of notice in relation to mitigation of damages:

36 McGregor on Damages, 15ed, para 1665.   37 Kennedy v Hearne [1988] ILRM 531.   38 [1986] ILRM 601, e.g. Barrett v Independent Newspapers where the plaintiff wrote a moderate letter to the defendant concerning the defamation and failed to request even an apology.

 

 

Notably, the notice requirement may be dispensed with by the judge. Furthermore the rule is of no application where the defence of justification is raised.

128.

Evidence of the plaintiff's bad reputation may serve to mitigate damages.

129.

There are three types of evidence by which reputation can be proved;

The leading authority for the English position is Scott v Sampson.⁴⁰ It is worth setting out a portion of the judgment of Cave J in this case at length, as it represents the English position in this area:

39 Per Lord Radcliffe, Plato Films v Speidel [1961] AC 1090 at p1128. See also the remarks of Pigot CB in Bell v Parke (1860) 11 ICLR 413, at p425 where he contrasts the case of an individual about whom a general suspicion of his having committed a murder exists, and an individual who is a person of “unblemished fame, upon whose character the breath of slander has never been blown”.   40 (1882) 8 QBD 491.

 

 

He proceeded to quote from Starkie on Evidence:

With regard to the first category of evidence he said:

With regard to the second category of evidence he said:

On the third category of evidence he said –

This was accepted as an accurate statement of the law in Hobbs v Tinling,⁴¹ and in Plato Films v Speidel⁴² the House of Lords refused to review the decision in Scott v Sampson. Viscount Simonds admitted the difficulty of drawing the boundaries between the types of evidence in certain cases:

A predominant consideration in limiting evidence of reputation is to prevent the trial becoming unduly lengthy and complicated:

41 [1929] 2 KB 1, see in particular Scrutton LJ at p17–18.   42 [1961] AC 1090.   43 Ibid, at 1124–5.

 

 

It may be noted that the holding in the Plato case was not unanimously supported. Lord Radcliffe dissented vigorously:

Resistance to the decision in Plato was also evidenced in Goody v Odhams Press.⁴⁶ The defendants sought to introduce evidence tending to show bad reputation of two types: (a) evidence of a general bad reputation as a thief and robber given to violence, and (b) evidence of previous convictions for such offences. The first type of evidence was clearly admissible as coming within the first category. However, a strict reading of the second category might have equated previous convictions with specific acts of misconduct. But, Lord Denning MR held that evidence of previous convictions was essentially different from “previous instances of misconduct” because the latter “had not been tried out or resulted in convictions or come before a court of law”. Salmon LJ distinguished the Plato case on the grounds that the latter case excluded evidence of facts “tending to prove that the plaintiff ought not to have a good reputation”, whereas in the case before him the evidence was that the plaintiff in fact had a bad reputation. The rule that evidence of specific acts of misconduct are inadmissible to mitigate damages therefore admits of an exception. Where the specific acts of misconduct have resulted in convictions, they may properly be admitted in evidence to mitigate damages.

A further inroad into the “specific acts” rule appears to have been made in the recent English case of Pamplin v Express Newspapers Ltd (No 2).⁴⁷ There the plaintiff had devised a scheme for avoiding the payment of parking fines

44 Ibid, at p1144, per Lord Harriss.   45 Ibid at p111.   46 [1967] 1 QB 333.   47 [1988] 1 All ER 282.

 

 

and television licence fees by registering his car and television set in the name of his son, who was too young to be prosecuted for a criminal offence. A national newspaper commenting on this scheme described the plaintiff as a “slippery, unscrupulous spiv”. In an action in defamation brought by the plaintiff, the defendants pleaded fair comment and justification. At trial, the plaintiff admitted some of his behaviour could be described as “slippery” and “unscrupulous”, and this was treated as admitted partial justification. The judge directed the jury that even if the defendant's plea of justification was unsuccessful the jury could take into account the acts of misconduct in relation to mitigation of damages, where the specific acts of misconduct are relied on in support of the plea of justification. The jury awarded the plaintiff a sum of one halfpenny, and the judge ordered him to pay costs. The plaintiff appealed contending, inter alia, that the judge had misdirected the jury on the matters that could properly be taken into account in mitigation of damages. The Court of Appeal dismissed the appeal, holding that although a defendant when adducing evidence of bad reputation was not allowed to introduce specific acts of misconduct, the defendant was entitled to rely in mitigation of damages on any evidence properly before the jury, including evidence of specific acts of misconduct or other evidence adduced in support of an unsuccessful plea of justification.

Following this decision, the English rule may be re-stated as follows: The defendant may not adduce evidence in mitigation of damages of specific acts of misconduct on the part of the plaintiff, excepting previous convictions of the plaintiff; but the jury may consider evidence of specific acts of misconduct in mitigation of damages if this evidence was already before the court on some other issue.

Scott v Sampson was accepted as settled law in the Irish case of Kavanagh v The Leader in 1955.⁴⁸ However, McDonald observes that in the older Irish case of Bolton v O'Brien⁴⁹ specific instances of conduct related to the libel were admitted not only in relation to cross-examination as to credit but also with a view to reducing damages.⁵⁰ No modern Irish case appears to deal specifically with this point and it is accordingly unclear to what extent the rule in Scott v Sampson, and its exceptions, apply in Ireland.

130.

The circulation of the libel may mitigate damages.

This is supported by Gathercole v Miall⁵¹ where it was stated:

48 Unreported, Supreme Court, 4 March 1955.   49 (1885) 16 LR Ir 97.   50 McDonald, Irish Law of Defamation, p249.   51 (1846) 15 M and W 319, 153 ER 872.

 

 

In the straightforward case, the circulation of the libel will match the circulation of the publication. However, in some cases, paradoxically, the circulation of the libel may be small although the circulation of the newspaper is large. This may occur where, for example, no direct reference is made to the plaintiff, but defamatory matter is understood to refer to him by a small number of people who know of certain circumstances.

In Morgan v Odhams Press Ltd⁵² a House of Lords decision, a new trial was ordered on the ground that damages were inordinately large and that the jury had not been warned that the article complained of would be understood as referring to the plaintiff only by a small circle of friends and neighbours. Lord Reid stated:

Lord Guest said:

This principle would presumably also apply in a case where the words are innocent on their face but have a defamatory effect because of special circumstances known only to some of the recipients of the statement. For example, if a newspaper article stated that Mrs X had a child in 1942, but it was known to some readers that Mrs X was unmarried until 1946, the circulation of the libel would not be the extent of the newspaper's circulation, but rather measured according to an approximation of the number of people

52 [1971] 1 WLR 1239.   53 Ibid, at 1247.   54 Ibid, at 1262. See also Halsbury's Laws of England, vol 28, para 237.

 

 

who would be aware of the marriage date and for whom the statement would take on a defamatory meaning.

This could reduce the damaging circulation of the libel from a national one to a small locality or district. This basis for mitigating damages is therefore significant, although it appears to be frequently overlooked by textbooks and litigants alike.

It should, however, be borne in mind that the gravity of the defamation is not necessarily co-extensive with the size of its audience. A letter to a person such as an employer, or to a circle of friends, could be as damaging as the same material published to the world at large. While the assessment of damages would benefit from consideration of this factor i.e. the circulation of the libel to measure damages, it should enter the equation as one and not the dominant factor.

131.

It is not clear whether the defendant's state of mind may mitigate damages under the present law.

The recent case of Lynch v Irish Press Ltd⁵⁵ supports the view that a lack of culpability on the defendant's part will not reduce damages. In that case, Mr Justice O'Hanlon directed the jury that if they found that the reporter had reasonable grounds for believing in the truth of the statement, this would be a factor affecting damages. However, he recalled the jury and altered his direction after counsel objected that there was no basis in law for this direction. (We should point out that there is no formal report of O'Hanlon J's charge and our summary is based on newspaper reports).

There is also authority to the contrary. Gatley states as follows:

McDonald takes a similar view:

55 Unreported. See Sunday Tribune, 12 February 1989.   56 Gatley, Libel and Slander, 8ed, p585, para 1431. The reference to “the rule” is to a rule of court requiring notice of matters to be pleaded in mitigation of damages. Our equivalent is Order 36, r 36 RSC.

 

 

An old Irish case also supports this view. In Harris v Arnott, Barry LJ stated the position in very strong terms:

Duncan & Neill state –

Indeed, in one of the most important cases establishing that an innocent state of mind on the part of the defendant is not a defence, it was stated that this factor could nonetheless affect damages. In Hulton v Jones, Farwell LJ said in the Court of Appeals –

57 McDonald, Irish Law of Defamation, p251.   58 (1889) 26 LR IR 55, 75–6, italics supplied.   59 Duncan and Neill Defamation, para 18.21, p141.

 

 

132.

The defendant may mitigate damages by showing that he repeated the material from another source and disclosed that source in the publication. The defendant must fulfil both of these requirements; it is not sufficient to show one or the other.⁶¹

PUNITIVE DAMAGES

133.

Punitive damages are awarded to mark the jury's sense of outrage at the defendant's conduct. The object of such an award is to teach the defendant that tort does not pay, to deter him and others from similar conduct in the future and to punish the defendants for the conduct in question.

134.

A number of criticisms have been directed at the use of punitive damages in civil actions:

135.

In England, the House of Lords limited the occasions on which punitive damages may be awarded to three categories in the celebrated case ofRookes v Barnard.⁶² These are set out as follows in the speech of Lord Devlin, who delivered the opinion of the court:

Lord Devlin specifically envisaged the second category as covering certain libel cases:

With reference also to this second category, Lord Diplock stated in Cassell v Broome:

However, the mere fact that a defendant will profit from the article would not of itself point to exemplary damages, since newspapers are in the business for profit. The failure of the trial judge to point this out to the jury and to emphasise that such an award was rare and unusual was one of the grounds for ordering a re-trial on the issue of damages in Riches v News Group Newspapers Ltd.⁶⁵

The requisites in England for an award of punitive damages in a defamation action are therefore (a) knowledge that what is to be done is against the law or a reckless disregard whether what is to be done is illegal, and (b) a decision to continue with the publication because the material advantages outweigh the prospects of material loss.⁶⁶

63 Ibid, at p1227.   64 [1972] AC 1027 at p1130.   65 [1985] 2 AII ER 845.   66 Halsbury's Laws of England, vol 28, para 18.

 

 

The decision in Rookes was a major curtailment of the law on punitive damages. Indeed, the English Court of Appeal in Cassell v Broome⁶⁷ refused to follow the categories set out in Rookes v Bernard, Lord Denning MR observing, “Lord Devlin threw over all that we ever knew about exemplary damages. He knocked down the common law as it had existed for centuries.” However the House of Lords rejected the Court of Appeal contention that Rookes had been decided per incuriam, and by a majority of five to two, it re-instated the authority of Lord Devlin's judgment,⁶⁸ which accordingly now represents the English position on punitive damages.

The High Court of Australia refused to follow the categories set out in Rookes v Barnard in Uren v John Fairfax,⁶⁹ and this was upheld by the Privy Council in Australian Consolidated Press v Uren.⁷⁰ The Canadian Courts⁷¹ and the New Zealand Courts⁷² likewise preferred to maintain the old position on punitive damages, i.e. that they can be awarded in any case where the court considers the conduct of the defendant to be such that damages should not be by way of compensation only, but should also punish the defendant, help to deter others from acting likewise and reflect the detestation of the court for the conduct in question.

It would appear that in Ireland the categories of cases in which punitive damages may be awarded are not confined to those laid down in Rookes v Barnard. In Dillon v Dunnes Stores (Georges Street) Ltd,⁷³ O'Dalaigh CJ stated that it was not open to question that the jury could award punitive damages in an action for false imprisonment. Similarly, in another post-Rookes case, McWilliam J accepted in McDonald v Galvin⁷⁴ that exemplary damages could be given in the case before him, which concerned an action for assault and battery resulting in pain, shock and humiliation i.e. one falling outside the Devlin categories. In Garvey v Ireland⁷⁵ the same judge held exemplary damages to be recoverable, on facts, however, that fell within Lord Devlin's first category.

Punitive damages were mentioned by Hamilton P in the recent case of Kennedy and Arnold v Ireland.⁷⁶ In that case he held that punitive damages so called were inappropriate because the Minister for Justice who took up office after the occurrence of the wrong in question, telephone tapping, had publicly vindicated the good name of the plaintiffs. However he noted Lord Devlin's first category of exemplary damages and continued:

67 [1971] 2 QB 354.   68 [1972] AC 1027.   69 (1966) 117 CLR 118.   70 (1966) 117 CLR 221.   71 Paragon Properties Ltd v Magna Investments (1972) 24 DLR (3d) 156.   72 Fogg v McKnight [1968] NZLR 330, Taylor v Beere [1982] 1 NZLR 81.   73 Unreported, Supreme Court, 20 December, 1968.   74 Unreported, High Court, 23 February 1976.   75 Unreported, High Court, 19 December 1979.   76 [1988] ILRM 472, 478.

 

 

It is as least arguable that “aggravated” and “exemplary” damages are two distinct heads of damage and that such dicta do not encourage careful awards by juries.

It appears from the award of exemplary damages in the recent INTO case, reported in the Irish Times, Friday 15 February 1991, that the Supreme Court has refused to follow the categories set out in Rookes v Barnard. The award appears to have been based on infringement of the constitutional right to primary education.

INJUNCTIONS

136.

An injunction to restrain the publication or republication of a defamatory statement may be granted during, before or after a hearing. The Judicature (Ireland) Act 1877 conferred jurisdiction on the High Court to grant injunctions in all cases where it appears just and convenient to do so, and on such terms as the court sees fit. Order 50 Rule 6 RSC authorises the grant of interlocutory injunctions.

INTERLOCUTORY INJUNCTIONS

137.

A plaintiff in a defamation case seeking to obtain an interlocutory injunction will be met with more stringent standards than a plaintiff in any other tort case.⁷⁸ In the ordinary case, the court considers whether the plaintiff has raised a fair or serious question, whether damages would adequately compensate the plaintiff and whether the balance of convenience favours the granting of the interlocutory injunction. The defamation plaintiff must show, however, that it is highly unlikely that the defendant will succeed in the main action. An interlocutory injunction will not be granted if

In Sinclair v Gogarty,⁷⁹ Sullivan CJ delivering the judgment of the Supreme Court commented on the jurisdiction of the court in this area as being “a jurisdiction of a delicate nature”. Applying the principle stated by Lord Esher in Coulson v Coulson,⁸⁰ Sullivan CJ stated:

The rule in Bonnard v Perryman⁸¹ is that where a defendant in a libel action intends to plead justification, a court will not grant an interlocutory injunction to restrain publication of the statement complained of. This principle probably applies to any other defence raised. Halsbury states the law to be as follows:

More recently, the English Court of Appeal has held that the principle that no injunction will issue if the defendant intends to plead justification extends to allegations which cannot be proved but which are inseparable from other allegations the sting of which the defendant intends to justify. In Khashoggi v IPC Magazines Ltd⁸³ the defendants published an article associating the plaintiff with a number of men, including a foreign head of state. The plaintiff brought an action in respect of her alleged affair with the head of state and obtained an interlocutory injunction. The defendants applied for the injunction to be discharged on the ground that although they were unable to prove the particular allegation complained of, this allegation was inseparable from the other allegations the common sting of which was general promiscuity, and which they intended to justify. The court of Appeal discharged the injunction.

In Monson v Tussauds Ltd,⁸⁴ the plaintiff sought an interlocutory injunction to restrain the exhibition of a model representing him in an exhibition of wax

79 [1937] IR 377.   80 (1887) 3 TLR 846.   81 [1891] 2 CH 269.   82 Halsbury's Laws of England, 4ed, vol. 28, para 168, footnotes omitted.   83 [1986] 3 All ER 577.   84 [1894] 1 QB 671.

 

 

figures by the defendants, complaining that it portrayed him as guilty of a murder for which he had been tried and acquitted. Initially the defendants intended to plead merely that the exhibition was not libellous and the Queens Bench Division granted an interlocutory injunction. On appeal, it appeared from further affidavits that there would be a question at trial as to whether the plaintiff had consented to the exhibition. The Court of Appeal held unanimously that, under the rule in Bonnard v Perryman, an interlocutory injunction should not be granted.

The three judges differed as to the nature of the rule in Bonnard v Perryman. Lord Halsbury felt that the rule was not absolute and did not automatically preclude a court from granting the interlocutory injunction: “If I were to understand the tests suggested to be applicable to all cases, so that it practically excluded actions of libel from the operation of the Judicature Acts with regard to granting interlocutory injunctions, it would be to overrule the legislature – a power which is not possessed either by this or any other Court”. Lopes and Davy LJJ held that the rule was an absolute rule of practice with regard to the circumstances in which an interlocutory injunction may be granted in libel cases. However, the apparent difference between the two views may be reconciled. Lord Halsbury resisted the conclusion that the raising of a defence (such as justification of a consent) would necessarily entail the refusal of an interlocutory injunction. However, the same result may be achieved by simply applying the rule in Bonnard v Perryman, bearing in mind that the rule is qualified by the phrase “save in the clearest of cases”. In the clearest of cases, i.e. where the matter is unarguably defamatory and the defence will also obviously fail, an interlocutory injunction will issue. In other cases, an interlocutory injunction will not be granted. It appears sufficient if the defendant raises “a case for consideration by the jury”.⁸⁵

How is a court to determine whether a case for a jury arises, or whether a defence such as justification has been raised merely to prevent the granting of an interlocutory injunction? The simple solution is to examine the affidavits in order to see whether the plea of justification has any substance. However, it appears that this is not always the practice and that a rigid approach refusing the injunction categorically where the defence is raised may be applied.

The case of Cullen v Stanley⁸⁶ illustrates what is arguably the better course for a court to adopt in deciding whether to grant an interlocutory injunction in this context.⁸⁷ The plaintiff was a baker who had been selected by the Labour Party to stand for election. He sought an interlocutory injunction to restrain the publication of statements by the defendants to the effect that he had acted as “scab” on an occasion of a baker's strike. The plaintiff deposed that the statements were absolutely false and that he believed the publication

85 Per Davy LJ at p697.   86 [1926] IR 73.   87 See McDonald, Irish Law of Defamation, p261.

 

 

was for the purpose of prejudicing his position as a candidate. One of the defendants submitted an affidavit simply stating that all the allegations were true, and that he would prove this at trial. The Supreme Court held that the plaintiff was entitled to the interlocutory injunction. O'Connor J referred to the argument of the defendant that the rule in Bonnard v Perryman automatically precluded the grant of an interlocutory injunction once the defence of justification was raised, and continued:

The judge then proceeded to examine the detailed affidavit of the plaintiff, which he contrasted with the “baldest affidavit” of the defendant, and held that on the evidence before the court, there was nothing to support the plea of justification.⁸⁹

An example of the more rigid type of approach is Gallagher v Tuohy,⁹⁰ where the matter complained of consisted of a circular containing defamatory statements concerning the plaintiff in his business capacity. Murnaghan J stated:

Ex parte injunctions and in camera proceedings

138.

A recent Irish decision in which the ACC sought an injunction has attracted criticism as to the ambit of the judicial power to order proceedings

88 [1926] IR at 85–85.   89 Kennedy CJ at p83 also observed the detail of the plaintiff's affidavit as compared with that of the defendant.   90 (1924) 58 ILTR 134.

 

 

to be held in camera.⁹¹

In August 1985, the Agricultural Credit Corporation sought an injunction to restrain the publication of an article in the magazine Irish Business concerning the business affairs of the ACC. On August 1, O'Hanlon J granted an ex parte injunction to ACC at a special sitting at his home. The Irish Times reported that the original terms of the injunction prohibited not only a report of the proceedings but also of the fact that they had taken place.⁹² However, Casey suggests that it is not clear that the judge did actually so rule, and that such a ruling might not be competent.⁹³ The relevant part of s45 of the Courts (Supplemental Provisions) Act 1961 merely states that justice shall be administered other than in public in cases involving applications of an urgent nature for relief by way of an injunction. This would seem to prohibit public attendance at the proceedings without prohibiting media coverage of the decision. In any case, whether the ban was the result of a prohibition or a misunderstanding, on Saturday 3 August O'Hanlon J made an order clearly allowing the fact of the injunction to be reported.

A few days later, ACC's application for an interlocutory injunction was heard. Irish Business undertook not to publish the original article, but said that they intended to publish a substitute article. ACC sought to enjoin this also on the ground that it was based on documents belonging to them and the publication of which would be a breach of confidence and/or copyright. Lardner J granted the injunction to restrain such breach of confidence, Irish Business having conceded ACC's property in the documents. The judge reserved the question as to whether the author of the article should be compelled to disclose the source of the documents.

It is not entirely clear that O'Hanlon J in making his first order imposed a ban on the reporting of the fact of the injunction, or, if he did, that such a power was inherent in s45, but the decision has caused concern and attracted criticism.⁹⁴ Accordingly, the ambit of s45 in the context of defamation law requires some clarification.

Perpetual Injunctions

139.

The court may award a perpetual injunction to the plaintiff at the hearing where it is established that there is a likelihood of repetition. In general, this will reduce the amount of compensatory damages because the injunction prevents future damage to reputation.

91 Reported in the Irish Times, 5–9 August 1985.   92 Irish Times, 5 August 1985, p1.   93 Casey, Constitutional Law in Ireland, p455.   94 See Irish Times, 7 August 1985; Report on Press Freedom and Libel, p28.

 

 

DECLARATIONS

140.

Under Order 19, Rule 29 of the Rules of the Superior courts there is a general power in the court to make a declaratory judgment or order whether or not consequential relief is claimed. However, in practice this remedy does not appear to be availed of in defamation actions.

Order 19, rule 29 RSC provides:

 

 

CHAPTER 4: MISCELLANEOUS

Payment into Court

141.

Order 22 of the Rules of the Superior Courts contains the Irish rules on the payment into court procedure. The most controversial aspect of these rules in the context of defamation law is that the defendant in a defamation action, unlike other actions, may only make a payment into court if liability is admitted in the defence.

The payment into court procedure encourages the parties to settle without proceeding to trial. The defendant pays a sum of money into court in satisfaction of the claim and, if this is accepted by the plaintiff, further proceedings are stayed. There is a disincentive to the plaintiff to proceed to trial because if the sum awarded at trial is less than the sum paid into court, the plaintiff will incur costs. This is the result of Order 22, rule 6(4) which provides, in the event of the sum awarded being less than the sum paid in, that the plaintiff is entitled to the costs incurred up to the point of payment into court while the defendant is entitled to costs after this act. As the costs prior to the payment into court will always be trivial as compared with those incurred thereafter, the net result is that the plaintiff will be liable for most of the costs where the sum awarded at trial is less than the amount paid in.

For no apparent reason a distinction is drawn in Order 22 between actions for death, damages or concerning admiralty on the one hand, and actions for libel or slander, inter alia, on the other. Whereas the defendant may make a payment into court irrespective of whether liability is admitted in the first set of cases, he may only do so in libel or slander actions if he admits liability.¹ This distinction has been widely criticised.²

1 Order 22, rule 1(3).   2 See, for example, Report on Press Freedom and Libel, 3.43.

 

 

Curiously, the Libel Act 1843 contained a provision allowing for payment into court, provided (1) the defendant was a newspaper or other periodical, (2) the defendant pleaded that the libel was inserted without actual malice and without gross negligence and, as soon afterwards as possible, a full apology was inserted in the newspaper or other periodical.

Apart from the fact that it is limited to the press, the proision is altogether different as regards liability. To plead that there was no malice and no gross negligence comes close to saying that there was no liability.

By contrast, Order 22 allows payment into court only when there is admission of liability. However, the 1843 Act was repealed by the Defamation Act 1961, and no similar provision has been re-enacted.

It appears that the Rules of the Superior Courts and the Circuit Court Rules are not in harmony in this area. Order 12, rule 9 of the Circuit Court Rules provides –

There is no exception to the rule that the defendant may make a payment into court with a denial of liability, and it would appear that this course of action is open to a defendant in a defamation action. An argument might be made that Order 59, rule 14 of the Circuit Court rules would import the High Court rule disallowing payment into court by a defamation defendant unless liability is admitted, since it provides –

However since this is less a case of “no Rule provided” and more a case of a “Rule which differs” from a High Court Rule, it is more likely that Order 59, rule 14 is inapplicable. It appears that the present Circuit and Superior Court Rules are different in that the former allow a defamation defendant to pay a sum into court while denying liability whereas the latter do not.

A defendant may also increase the amount paid into court under Order 22 Rule 1(2). This states that a defendant may “at once, without leave, and upon notice to the plaintiff, pay into Court an additional sum of money as an increase in a payment made under paragraph (1) hereof” and that notice must be given and payment made at least three months before the date on which the action is first listed for hearing. An action for libel or slander where liability is admitted comes within the class of actions in which payment into

court may be made under paragraph (1), and therefore the rule on increased payment into court applies to such actions.

LIMITATION PERIODS

142.

Under section 11(2)(a) of the Statute of Limitations 1957, an action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued. This six year limitation period encompasses actions for libel. Under section 11(2)(c), the limitation period for actions for slander is three years from the date on which the cause of action accrued. In cases of libel, the cause of action accrues when the publication is made. In cases of slanders actionable per se, the cause of action accrues when the words are spoken, and in cases of slanders actionable on proof of special damage, the cause of action accrues when the special damage occurs.³

MALICE AND JOINT PUBLISHERS – THE INFECTIOUS MALICE RULE

143.

The defences of privilege and fair comment are defeated by a showing of malice on the part of the defendant. If A is sued as being responsible for the publication of a defamatory statement by B, the question arises whether malice on the part of B destroys a defence of privilege or fair comment for A. In Irish law, the answer is provided by section 11(4) of the Civil Liability Act, 1961, which provides:

Vicarious liability is therefore the deciding criterion. If A is vicariously liable for B, B's malice will destroy A's defence. If A is not vicariously liable for B, it will not.

Section 11(4) applies only to libels. Therefore, in relation to slander, the old position governs whereby all defendants responsible may be infected by the malice of one.⁴

The typical case of infectious malice through vicarious liability is illustrated by Fitzsimmons v Duncan and Kemp & Co.⁵ The defendants were a company carrying on the business of mercantile inquiry agents. Their clients filled out forms and the defendants supplied the answers to their queries after obtaining

3 McDonald, Irish Law of Defamation, p238.   4 McDonald, Irish Law of Defamation, p270. However the decision in Egger v Viscount Chelmsford [1965] 1 QB 248 (discussed below) may alter the common law position in relation to slanders as well as libels.   5 [1908] 2 IR 483.

 

 

reports from their local correspondent in the district where the person enquired about carried on business. In this case, an unfavourable report was made by a local correspondent about the plaintiff, which was sent to the local manager, then to the defendants and ultimately to the client. The occasion was held to be privileged, but the defendants were held liable on the basis of malice on the part of the local correspondent. Fitzgibbon LJ described the law as settled that

Later, he said:

There is no English statutory provision equivalent to our section 11(4), but a similar position exists there since the decision in Egger v Viscount Chelmsford.⁸ The Egger case illustrates the converse situation to the Fitzsimmons case i.e. where there is no vicarious liability involved. The plaintiff in the Egger case was a judge of Alsatian dogs whose name was kept on a list by the Kennel Club. A Miss R, arranging a dog show, wrote to the Kennel Club asking that the plaintiff be approved for the show. The Club responded by a letter to the effect that they did not approve. The action was brought against the assistant secretary and ten members of the sub-committee of the Club. The defendants pleaded inter alia, an occasion of qualified privilege, but the plaintiffs argued that the malice of some members of the sub-committee ousted the privilege for all the defendants. The Court of Appeal allowed the appeal by the secretary and the three committee members found at the trial to be innocent of malice. Each of these was held to have an independent and individual privilege in relation to the publication, which could not be defeated by malice on the part of others. Explaining the

6 Ibid, p513.   7 Ibid, p514.   8 [1965] 1 QB 248.

 

 

rationale behind this holding, Lord Denning MR said:

Later he stated what is the current English position, akin to the Irish one:

144.

It is necessary to know when a person is vicariously liable for the acts of another. Employers are clearly responsible for their employees, and principals for their agents. Less clear is whether a publisher of a journal or broadcast is liable for unpaid contributors to his paper or programme. If a paper is liable for such persons, and therefore infected by their malice, this would pose threats to press efficacy.¹¹

145.

Infectious malice becomes a relevant enquiry in relation to another defence, namely, the offer of amends under s21 of the Defamation Act 1961. Section 21(7) provides that, in relation to the defence of unintentional defamation under that section, where a newspaper wishes to rely on the defence in respect of a defamatory statement made by a contributor, it must actually prove that the author acted without malice. Thus, if the newspaper fails to establish lack of malice, it will be infected by it and lose the defence.

146.

The publication of a contributor's letter may also lose the newspaper the defence of fair comment or privilege on the grounds of malice, on the basis of actual, not infectious, malice. Up to now, we have been considering the case where the malice of the unpaid contributor may infect the publisher. However, it may also be that the view expressed by the unpaid contributor will result in an imputation of actual malice to the publisher. This is because the publisher might disagree with the view expressed, or might express differing views elsewhere in the paper, and the plaintiff may plead that this shows a lack of honesty, and therefore malice, in the statement. The media position

9 Ibid at p259.   10 Ibid at p265.   11 This point is made by RTE in their submission to the Law Reform Commission. The comments of Dickson J in Chemeskey v Armadale Publishers, 1979 90 DLR (3rd) 321, in relation to press freedom are relevant to this point, although they were spoken in the context of actual, not infectious, malice – see para 149 below.

 

 

here is delicate and would require to be clarified.

The real problem in this area arises where the newspaper holds or publishes an opinion different from that voiced in the contributor's letter. Where the newspaper shares the views expressed in the letter, there is no real problem as is shown by Lyon v Daily Telegraph.¹² In that case, the letter published in the correspondence columns of the defendant newspaper was purportedly written from a vicarage by one A. Winslow, but in fact the address given was fictitious and there was no clergyman named A. Winslow existing. The letter was defamatory in that it referred to a radio programme, in which the plaintiffs were the principal artists, as costly, vulgar and unworthy. The defendants pleaded fair comment. The Court of Appeal held that the defence was open to the defendants because the letter itself did not exceed the limits of fair comment and there was no evidence of malice. It is important to note that the fact that the paper shared the views contained in the letter was relevant to the question of malice –

The plaintiffs attempted to argue that the failure of the paper to make enquiries as to the identification of the author rendered the comment unfair, but Scott LJ replied:

He felt that a general rule of law requiring a newspaper to verify the signature and address of every letter would result in “a burden so deterrent in practice as very much to reduce the valuable contribution to public discussion which results from a free publication of correspondence in the press”. Although the Court of Appeal did not have to consider the case where a newspaper publishes conflicting opinions and whether this establishes actual malice on its part, the tenor of the judgment of Lord Justice Scott was much in favour of full and free discussion in the newspapers –

12 [1943] 2 All ER 316.   13 Ibid, per Scott LJ at p318.   14 Ibid at p319.

 

 

The Supreme Court of Canada faced a more difficult problem in Cherneskey v Armadale Publishers Ltd.¹⁵ The defendants had published an article in their newspaper concerning a meeting of the city council, at which the plaintiff, lawyer and city alderman, was present. They subsequently published a letter in response to this article, in which the writers accused the plaintiff of taking a “racist” position on the matter before the council. The evidence established that the honest opinion of the newspaper differed from that expressed in the letter. The issue, therefore, was squarely before the court as to whether actual malice is shown from the fact that the newspaper itself holds different views from those expressed in its letter columns.

A majority of the Supreme Court held that in this situation actual malice is imputed to the newspaper defendant. They held that it was a constituent part of the defence of fair comment that the defendant show that the opinion was an honest expression of his views. The same considerations, they held, applied to each publisher of the comment –“each publisher in relying on the defence of fair comment is in exactly the same position as the original writer. When there is no evidence as to the honest belief of the writers of the letter, and the newspaper and its publisher have disavowed any such belief on their part, the defence of fair comment cannot be sustained”. However, in that case a vigorous dissent was led by Dickson J.¹⁶ The objections of Dickson J may be analysed as two-fold, legal and practical. From the legal point of view, Dickson J felt that the majority had lost sight of the fact that the defence of fair comment involved a double hurdle i.e. first, the objective test as to whether the comment is fair, and secondly, the subjective test involving the state of mind of the defendant. One could merge the two tests and ask whether the statement was the publisher's real opinion, and while “this works passably well when the defendant is the writer ... it does not work at all if he is not”. In relation to the second, subjective test, Dickson J said:

15 1979 90 DLR (3d) 321.   16 Spencer and Estey JJ concurred in the opinion of Dickson J.

 

 

From a practical point of view, Dickson J analysed the impact of the majority holding on press freedom. If there were a rule denying the newspaper the defence of fair comment unless it could show that it honestly believed in the views expressed, the effect on press freedom would be extremely negative:

17 Ibid at 346.   18 Ibid at 348.   19 Ibid at 343.

 

 

No Irish case appears to have dealt with the problem of contributors' comments or letters. The resulting doubt in this area places organs of the media in a precarious position when publishing such statements. The disadvantages of forcing a newspaper to publish only the views with which it agrees have been eloquently set out by Dickson J in the Cherneskey case. However, RTE may be in an even more difficult position, as its obligation of impartiality under the Broadcasting Act precludes it from ever adopting a contributor's viewpoint as its own. Accordingly, RTE argue, since it cannot adopt a contributor's comment as its own opinion (something which would be necessary to enable it to deny malice) it cannot, in the event of such comment containing defamatory material, avail of the defence of fair comment.²¹

CORPORATE BODIES

147.

Trading Corporations: It appears that a trading corporation may sue in respect of defamatory statements concerning its trading capacity or business activities, and defamatory statements concerning its more general activities, such as treatment of employees or sponsorship of public events. No proof of special damage is required. There are naturally some allegations in respect of which a trading corporation may not sue, such as murder, incest or adultery.

In South Hetton Coal Co. Ltd. v North Eastern News Association Ltd.²² where the cause of action at the suit of an incorporated trading company was recognised, Lord Esher MR explained the doctrine as follows –

20 Ibid at 344.   21 Part of an RTE submission to this Commission.   22 [1894] 1 QB 133.

 

 

However Lord Esher went on to draw an analogy between defamatory statements concerning a person in the way of his business and defamatory statements reflecting on a company's mode of carrying on business, both of which could be actionable, but declined to attempt definition of an exhaustive rule of all statements which would be libellous of a company.²⁴

In the same case Lopes LJ echoed Lord Esher's comments about statements which are not capable of being defamatory of a company –

Leaving aside allegations such as murder, incest and adultery, of which presumably no one would be foolish enough to accuse a company in the first place, the language used by both of the judges considered allows for considerable latitude in relation to the statements upon which a company may sue. In the words of Lopes LJ, “method(s) of conducting its affairs” would arguably include allegations of bad treatment of employees, negative statements concerning sponsorship of public events, or more importantly in a modern context, allegations that the company is not environmentally conscious or fails to observe safety standards. It may be noted however that the third judge, Kay LJ, expressed the right of the company in narrower terms, stating that “a trading corporation may sue for a libel calculated to injure them in respect of their business”.

It was specifically held in the South Hetton case that no specific damage must be proved by the company where the statement is defamatory of it. However

23 Ibid at 138.   24 Ibid, 139.   25 Ibid, 141.

 

 

a competing view is that a company should have to show financial loss, or at least that the allegation was likely to cause it financial loss. Such a view is expressed by Lord Reid in Lewis v Daily Telegraph²⁶–

These comments do not make clear whether Lord Reid would require the company to show financial loss, or show that the statement would tend to cause financial loss. However, he certainly envisaged that even where the effect of the allegation was to injure the company's goodwill, financial implications would have to be involved for the statement to be actionable.

Surprisingly, two cases more in line with this view were cited to the Court in the South Hetton Coal case and do not seem to have influenced the more wide-ranging view of actionable allegations which was arguably evidenced by Lord Esher MR and Lopes LJ in that case. Lord Esher did not refer to the cases at all in his judgment, while Lopes LJ approved the decisions in Metropolitan Saloon Omnibus Co. v Hawkins²⁷ and Mayor of Manchester v Williams²⁸ but arguably did not adopt the reasoning of those cases. In the Hawkins case, Pollock LB stated that “a corporation at common law may maintain an action for a libel by which its property would be injured”. This would seem to be a good deal narrower than the view of Lopes LJ that allegations in respect of “methods of conducting its affairs” would be actionable. Again in the Williams case, Day J stated that “[the] limits of a corporation's right of action are those suggested by Pollock, CB in the case which has been referred to. A corporation may sue for a libel affecting property, not for one merely affecting personal reputation”. In the Williams case, the statement of claim complained that the plaintiffs had been charged with corrupt practices and contained no allegation that the plaintiff had suffered any special pecuniary damage in consequence of such publication. It is difficult to resist the conclusion that Day LJ would have required not only an allegation affecting the plaintiff's property, but indeed specific damage to be illustrated.

Such decisions do not make for clarity and it is difficult, in the apparent absence of Irish authority on this point, to know the extent of a trading corporation's right to sue in defamation, if any, in Ireland.²⁹

26 [1964] AC 234, 262.   27 4 H & N 87.   28 [1891] 1 QB 94.   29 In Eglantine Inn v Smith [1948] NI 29, the plaintiffs who were inn proprietors were held entitled to recover in respect of allegations concerning the plaintiff's treatment of employees. However, the right of action was assumed without being discussed.

 

 

148.

Non-Trading Corporations: It appears that non-trading Corporations may sue in respect of defamatory statements concerning their necessarily non-profit making activities.

The important case here is Bognor Regis UDC v Campion³⁰ where it was held that a local government corporation had a “governing” reputation which could be protected from defamatory allegations by recourse to an action in defamation.

It was seen above that there was some confusion as to whether a trading corporation could sue in respect of defamatory allegations not reflecting on the property or business itself, but that the South Hetton Coal case appeared to have settled that such allegations would be actionable, without expressly overruling the Williams case. Since non-trading corporations are not in the business of making profit, it was natural that the question would be raised in a case concerning such a body. The Williams case was again cited to the court in Bognor Regis UDC v Campion, where Browne LJ disposed of it on three grounds. He distinguished the Williams case on the basis that a different type of body was here in question and that no allegation of corruption was here involved. However, he questioned the more general view of Day J in the Williams case that a corporation may sue only in respect of a libel affecting property and not one affecting personal reputation:

He also questioned the view of Day J that a charge of corruption cannot ever be actionable at the suit of a corporation, noting that this view had been severely criticised by Spencer Bower, Fraser, and Oliver J in the case of Willis v Brookes.³¹ Furthermore the libel found actionable in National Union of General and Municipal Workers v William closely resembled a charge of corruption.

Again the absence of Irish authority renders it difficult to point a conclusive picture in relation to the capacity of non-trading bodies to sue in defamation.

149.

Unincorporated Associations: The general rule is that unincorporated associations cannot sue or be sued in their own name. The two exceptions to this rule are trade unions and partnerships.

150.

Trade Unions: The position of trade unions as plaintiffs in libel suits in Ireland is unclear. Trade unions are however immune from tortious liability by virtue of s4 of the Trade Disputes Act 1906 and may therefore not be sued in defamation. The constitutionality of this broad immunity has been

30 [1971] 2QB 109.   31 [1947] 1 All ER 191.

 

 

questioned.

In England, the right of trade unions to maintain an action in tort, specifically including libel, was recognised in National Union of General and Municipal Workers v William.³² Sufficient personality in the eyes of the law was attributed to trade unions by an examination of the legislation governing these bodies, and once this was found, it was a short step to confer actionability in respect of defamation. Uthwatt J stated as follows –

However in 1971 the English Trade Union and Labour Relations Act was passed which provided in section 2(1) that a trade union should not be, or be treated as if it were, a body corporate. It was held in EETPU v Times Newspapers³³ that accordingly a trade union (not being a special register body) could not maintain an action in its own name for damages in relation to reputation. Nonetheless Gatley is of the view that a trade union can still sue in libel notwithstanding the EETPU case. There has since been a 1974 Trade Union and Labour Relations Act which although it also provides that a trade union shall not be, or be treated as if it were, a body corporate, confers a capacity on a trade union to sue in “proceedings relating to property or founded on contract or tort or any other cause of action whatsoever”. These are the same as the relevant provisions in the 1971 Act and the comments of Gatley continue to apply.³⁴ Duncan and Neill also take the view that a trade union can sue in respect of libel under the new legislation.³⁵

If there is no Irish case-law on trade unions as libel plaintiffs, there is at least statutory provision for trade unions as tort defendants. Section 4 of the Trade Disputes Act 1906 provides that a trade union is immune from liability “in respect of any tortious act alleged to have been committed by or on behalf of the union”. The equivalent immunity in England was held to include actions in respect of libel.³⁶

32 [1946] KB 81.   33 [1980] QB 585.   34 See Gatley, Libel and Slander, 8ed, para 970.   35 See Duncan and Neill, Defamation, para 9.11.   36 Vacher and Son v London Society of Compositors [1913] AC 107.

 

 

The immunity of trade unions is, however, confined by s11 of the Trade Union Act 1941 to authorised trade unions, their members or officials which or who for the time being are holders of negotiating licences under that legislation.

151.

Partnerships: An unincorporated partnership possesses sufficient legal personality to sue or be sued in its own name,³⁷ and if sued, the partners are jointly and severally liable for the wrong committed.³⁸

DEFAMATION OF THE DEAD

152.

An action in defamation may not be brought in respect of a statement which is defamatory of a person who was dead at the time of publication.³⁹

153.

However if the defamatory statement about a dead person also has the effect of defaming a living person, an action lies in respect of the latter injury.

SURVIVAL OF THE DEFAMATION ACTION

154.

Death of the wrongdoer: Unlike most civil actions, the cause of action in defamation does not survive the death of the wrongdoer.

Section 6 of the Civil Liability Act 1961 defines an “excepted cause of action” to include defamation, and section 8(1) provides:

It appears that this special exemption for the defamation cause of action, among others, is because the absence of the wrongdoer could prejudice the defences that might be raised by his personal representatives, especially those which may be rebutted by malice.

However the death of a wrongdoer after the verdict or judgment would not affect the plaintiff's rights, nor would his death between verdict and judgment.⁴⁰

155.

Death of the person defamed: The right of action in defamation does not survive the death of the defamed person.

Section 7(1) of the Civil Liability Act 1961 provides:

37 Le Fanu v Malcolmson (1846) 8 ILR 410, Meekins v Henson [1846] 1 QB 472.   38 Sections 10 and 12, Partnership Act 1890.   39 Halsbury's Laws of England, vol 28, para 6; McDonald, Irish Law of Defamation, p281.   40 Order 17, Rule 1, RSC.

 

 

One of the excepted causes of action is defamation.

APOLOGY

156.

Apology: An apology is not a defence to a defamation action. Under section 17 of the Defamation Act 1961 evidence that the defendant made or offered an apology to the plaintiff before the commencement of the action or as soon afterwards as he had an opportunity of doing so may mitigate damages.

The fact that an apology will mitigate damages under section 17 appears to suggest that the making of an apology is an admission of liability. The Boyle-McGonagle Report records that defendants are unwilling to offer an apology for this reason and suggests that the section should be re-formulated so that the publication of an apology should be seen as a matter of courtesy rather than an admission of liability.⁴¹

FAULT ISSUES IN DEFAMATION LAW

157.

Relevance of the Defendant's State of Mind.

It is usually stated that liability in defamation law is strict. “Liability for libel does not depend on the intention of the defamer; but on the fact of defamation”.⁴² This position of strict liability has been rationalised as follows:

However, as the tort of defamation is a composite one, the issue of fault arises in many different aspects of the case.

The plaintiff must show, as part of his case, a number of things;

41 Report on Press Freedom and Libel, paras 5.30–5.31.   42 Cassidy v Daily Mirror Newspaper (1929) 2 KB 331, per Russell LJ.   43 Epstein, Was New York Times v Sullivan Wrong?, 53 U Chicago L Rev 782, 797.

 

 

In a typical case, the defendant (a) realised the statement was defamatory, (b) intended to refer to the plaintiff, and (c) intended to publish it. However, in any given case, any one or several of these elements might be lacking e.g. the defendant may not have intended to refer to the plaintiff, or he may not have intended to publish.

The issue of fault may arise in a number of different ways:

We believe that the statements 'Liability in defamation law is strict' and that 'The defendant's state of mind is not relevant' are too broad to be helpful. The answers to (a)–(g) above are not a uniform 'yes' or 'no'. The response varies according to the question. Most of the solutions have emerged in previous discussion. It is proposed to draw attention briefly to the answer to each question.⁴⁴

A. Where the State of Mind is Relevant

1. The Defendant Who Does Not Intend to Publish

In order for a defamatory statement to become actionable, the statement must

44 In two cases, the answer is that strict liability does or does not apply, depending on whether a statutory provision is availed of. This is in relation to the defence provided in s21 of the Defamation Act 1961.

 

 

have been published to someone other than the plaintiff himself. However, the mere fact of publication will not always render the statement actionable. The law has developed a defence of unintentional publication in the following circumstances. If the defendant communicates defamatory matter to the plaintiff and it becomes known to a third party, he will be liable for the publication only if he should reasonably have foreseen that there might be publication to a third party. However, if the law considers that the defendant could not have reasonably foreseen the possibility of communication to a third party, he will not be liable.⁴⁵

The test is therefore one of reasonable foreseeability; the defendant may escape liability if he shows that he published the statement to the plaintiff in circumstances in which he could not have reasonably foreseen its publication to someone other than the plaintiff. The defence applies only where the defendant communicated the matter to the plaintiff and a third party intervened.

2. The Defendant Who Makes an Innocent Statement Which Becomes Defamatory by Virtue of Circumstances Unknown to Him

An example of this situation is Cassidy v Daily Mirror Newspaper.⁴⁶ An announcement by a newspaper of a couple's engagement is an innocent statement on its face. However, the circumstance unknown to the publisher here was that one of the persons in the photograph was already married. Because of this fact, the statement was defamatory of the person's spouse. At common law, the defendant was liable in such a situation.

It was considered that the common law position was too harsh in this respect and an attempt was made to alleviate the position of such a defendant by means of s21 of the Defamation Act 1961. This provided certain types of defendant with an opportunity to make an offer of amends which, if accepted, would preclude an action being brought. One of the types of defendant envisaged was precisely the defendant in Cassidy's case since innocent publication in the section was defined to include the situation where “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”.⁴⁷ Whereas the common law position in this context was one of strict liability, under s21 of the Defamation Act 1961 the fault criterion is “reasonable care”. In order to come within the section, the publisher must prove he exercised all reasonable care in relation to the publication.

Accordingly, the current legal position as to a defendant who makes an innocent statement which becomes defamatory by virtue of circumstances

45 See para 32 above.   46 [1929] 2 KB 331. For facts, see para 27 above.   47 Section 21(5)(b).

 

 

unknown to him is that a statutory standard of reasonable care has replaced the common law strict liability rule. The standard of reasonable care is combined with the different remedy, i.e. the offer of amends. However, if the defendant does not avail of s21, the common law rule of strict liability applies.

3. The Defendant Who Does Not Intend to Refer to the Plaintiff and is Unaware of the Circumstances Which Have the Effect of Making the Publication Refer to the Plaintiff

An example of such a case is Hulton v Jones,⁴⁸ where a newspaper published an article depicting the life of a fictitious individual, but his name coincided with that of a real person. The article was understood by those who knew the plaintiff to refer to him. At common law, the defendant is liable.

Again, the Defamation Act 1961 attempts to alleviate the position of such a defendant by means of s21 and the offer of amends. Innocent publication is defined to include the case where “the publisher did not intend to publish them [the words] of and concerning that other person, and did not know of circumstances by virtue of which they might be understood to refer to him”.⁴⁹ The use of the section is conditional upon the publisher having exercised reasonable care in relation to the publication.

Accordingly, the current legal position as to a defendant who does not intend to refer to the plaintiff and is unaware of the circumstances which have the effect of making the publication refer to the plaintiff, is that a standard of reasonable care has replaced the common law strict liability rule. However, if the defendant does not avail of s21, the common law rule of strict liability applies.

4. Can a Malicious State of Mind Destroy a Defence? – Fair Comment and Qualified Privilege

With regard to fair comment and qualified privilege, it is for the defendant to establish each of the elements which go to make up the defence in question. However, if the plaintiffs thereafter succeed in establishing malice on the part of the defendant, this will defeat the defence. The state of mind of the defendant while making the publication is a highly relevant factor; it may be a point on which the defence stands or falls.

5. Can an Innocent State of Mind Mitigate Damages?

It was argued at para 131 above that the authority prior to Lynch v Irish Press Ltd tended to the view that the defendant's state of mind may reduce damages. However, the view was accepted by O'Hanlon J in the Lynch case (as reported by the press) that there was no authority to support this

48 [1910] AC 20. See para 26 above for facts.   49 Section 21(5)(a).

 

 

proposition. On balance, it seems that the point remains open as the question does not appear to have been fully argued before O'Hanlon J.⁵⁰

B. Where the State of Mind is Not Relevant

158.

The defendant's state of mind is not relevant to the determination as to whether a statement is defamatory. This is measured according to a community standard, represented by the jury.

159.

The defendant's state of mind is not relevant to the issue of falsity. If a statement of fact is false, it is no defence for the defendant to say that he has reasonable grounds for believing in its truth. Where the defendant cannot prove the truth of a defamatory statement, the only defence available is privilege.

50 See Sunday Tribune, 12 February 1989.

 

 

PART 2: THE LAW IN THE UNITED STATES

160.

In the discussion of Irish defamation law which the publication of the Law Reform Commission's Consultation Paper will produce, references to United States law will most certainly be made. This is for a number of reasons. First, American jurisprudence on defamation has undergone a radical transformation in the last 25 years and has rejected much of the common law framework in this area. Secondly, the changes effected were achieved under the guidance of a Constitutional guarantee of free speech. The parallel with Ireland is obvious. Thirdly, many cases emerging over that period were dealt with by the United States Supreme Court, thus providing a unique opportunity to see continuous treatment of a single topic by the final court of appeal in that jurisdiction. Already a number of defences drawing inspiration from United States law have been proposed to the Commission and are discussed at a later point. We therefore feel that a thorough examination of United States law is vital, and have set out the case law in detail together with a discussion of the merits of the American system in both its theoretical and practical aspects.

 

 

CHAPTER 5: UNITED STATES CASE LAW

(a) The Birth of the Public Official Doctrine

161.

The leading American case in the context of modern defamation law is New York Times v Sullivan, a decision of the United States Supreme Court in 1964.¹ This is the case which set the Supreme Court upon its path of the public figure/private figure dichotomy in defamation law. However, in some senses, the stage was set for a major reform in the area of defamation in a 1931 decision, Near v Minnesota.² In that case, the Supreme Court interpreted the First Amendment of the Constitution and its guarantee of free speech as prohibiting prior restraints on freedom of speech in all but a few cases. The majority opinion, delivered by Chief Justice Hughes, justified the removal of prior restraint by pointing to the availability of the action in defamation after publication:

The fact that the First Amendment had an effect on prior restraints of speech clearly had implications for restrictions on or punishments for speech once published. As one writer puts it:

1 (1964) 376 US 254.   2 283 US 697.   3 283 US 697, at 718–9, per Hughes, CJ.

 

 

That opportunity to review the common law rules on defamation arose in New York Times v Sullivan. The dispute arose out of the publication in the New York Times of a page advertisement alleging violation of black civil rights in Alabama. Although the plaintiff was not specifically referred to, he claimed to have been defamed in his capacity as supervisor of the police department. The local jury awarded $500,000 damages and the Supreme Court of Alabama affirmed.

There was arguably a number of ways in which the plaintiff's appeal to the United States Supreme Court could have been disposed of.⁵ However, the Supreme Court chose to carve out a whole new standard for the law of defamation. It singled out public officials as a special category of plaintiff and replaced the common law rule of strict liability with a narrowly defined fault criterion:

Henceforward a defendant could make false defamatory statements about a public official without fear of a defamation action, unless the plaintiff could show the defendant actually knew the statement was false or was reckless as to its falsity. It is crucial to note that the Supreme Court's definition of malice is an entity quite distinct from malice at common law. It has since been held that proof of actual malice must be “clear and convincing”. In Bose Corp v Consumers Union of United States⁷ the court held that the plaintiff must “demonstrate with clear and convincing evidence that the defendant realised that his statement was false or that he subjectively entertained serious doubts as to the truth of the statement.”⁸

Pausing for a moment, it is worth recalling that the facts giving rise to this innovation involved high-level official conduct in relation to a fiercely controversial issue, namely the civil rights debate. Epstein writes:

4 Epstein, Was New York Times v Sullivan Wrong? 53 U Chicago L Rev 782, 789.   5 See below, p184.   6 376 US 254, at p.279–80, per Brennan, J.   7 466 US 485 (1984).   8 Ibid at 511, n 30.

 

 

“and

From another viewpoint the New York Times decision was an attempt to use the substantive rules of law to curb high damages awards –

A crucial point about New York Times v Sullivan is that it concerned false statements of fact. The correct analogy is therefore with our defence of justification, and not the defence of fair comment. It is sometimes stated that New York Times opened up the way for “criticism” of public officials. This is misleading. In cases of real comment or opinion, the common law defence of fair comment would have applied. Indeed, opinion statements have become

9 Epstein, Was New York Times v Sullivan Wrong? 53 U Chicago L Rev 782, at 782 respectively.   10 Barrett, Symposium: New Perspectives in the Law of Defamation: Declaratory Judgments for Libel: A Better Alternative, 74 Calif L Rev 847, 854.

 

 

non-actionable in the United States.¹¹ However, it is inaccurate to think of New York Times as applying to expressions of opinion; it applies to statements of fact.

The range of plaintiffs coming within the New York Times innovation were public officials. It was inevitable that further definition of this concept would be required. A number of decisions followed in which it was necessary for the Supreme Court to decide whether a specific plaintiff was a 'public official' for this purpose. In Rosenblatt v Baer¹² the plaintiff was a supervisor of a county-owned ski recreation centre. Was he a public official, and if so, why? The Supreme Court answered as follows:

Moreover, the statements complained of must consist of statements reflecting on the person in their capacity as that public official. Statements about fitness for office would therefore clearly come within the New York Times protection. As a result, the Supreme Court was asked to decide whether particular charges touched on fitness for office, and whether long forgotten charges would come within the New York Times protection. In Garrison v Louisiana¹³, the Supreme Court held that charges of laziness and inefficiency in relation to judges were charges touching on fitness for office. Accordingly, they came within the New York Times protection and the statements were actionable only on proof of malice. In Monitor Patriot Company v Roselle A Roy¹⁴ it held that charges involving illegal conduct some forty years previously were not too remote to come within the protection, because a charge of criminal conduct would always be relevant to fitness for office. It will be remembered that none of these charges would be actionable unless the plaintiff could show that the defendant actually knew the statement was false, or was reckless as to its falsity. Otherwise, the truth of the statement would not be at issue.

This could lead to some curious results, as shown by Ocala Star-Banner v Damron.¹⁵ A Leonard Damron was running for election as county tax assessor. A reporter telephoned a story to his newspaper that James Damron (Leonard's brother) had been indicted for perjury by a grand jury. The editor had never heard of James Damron, and the newspaper reported that Leonard

11 See below, p177 et seq.   12 383 US 75.   13 379 US 64.   14 401 US 265.   15 401 US 295.

 

 

Damron had been charged in a Federal Court with perjury in a civil rights suit. The jury awarded compensatory damages to the plaintiff and the Florida District Court of Appeal affirmed. On certiorari, the United States Supreme Court reversed and remanded, holding that a charge of criminal conduct is never irrelevant to an official's fitness for office. Accordingly the plaintiff could not maintain an action in defamation. The case illustrates the extent of the New York Times protection where the plaintiff is unable to prove malice.

(b) Transition from Public Official to Public Figure

162.

Meanwhile, in 1967 the Supreme Court had embarked on an extension to the New York Times protection by widening it to cover statements made about a greater range of plaintiffs. The category of “public officials” who would have to overcome the New York Times hurdle in a defamation action was expanded to include “public figures” generally. This was the result of two cases decided together;¹⁶Curtis Publishing Company v Butts and Associated Press v Walker. In the Butts case, the defamatory matter consisted of a Saturday Evening Post article claiming that the athletic coach of the University of Georgia had “fixed” a football game. The plaintiff in the Walker case was a retired General challenging a report that he had led a violent crowd in opposition to a desegregation decree at the University of Mississippi. Chief Justice Warren stated:

As a result, the public figure was to be equated with the public official for the purposes of the New York Times rule. The 'public figure' was defined in the Butts case as including persons “ultimately involved in the resolution of important public questions or (who), by reason of their fame, shape events in areas of concern to society at large”.¹⁷ This definition therefore included figures who drew public attention through no desire of their own. In Time

16 At 388 US 130.   17 Ibid, p164.

 

 

Incorporated v Hill¹⁸ the plaintiff and his family had attracted the public's attention because they were held hostage in their home by some escaped convicts. They subsequently discouraged publicity efforts about the incident, which had caused extensive involuntary notoriety. A novel, and then a play, about a hostage incident later appeared, and the magazine Life published an account of the play relating it to the Hill incident. The plaintiff sued for damages under a New York statute providing a cause of action to a person whose name or picture is used by another without consent for the purposes of trade or advertising. The Supreme Court held that the New York Times standard applied to the New York statute and held that the trial court's failure to direct the jury accordingly constituted reversible error. The essential point, however, although it was not a defamation action, is that the New York Times standard was held to apply to the plaintiff despite active efforts on his part to resist publicity.

At this point, the momentum of the Supreme Court was towards expanding the New York Times rule. It reached a certain point, as will be seen below, and began to constrict again. This wide definition of public figure would be cut down in time. However, before that development, another innovation was taking place.

(c) The Public Interest Experiment

163.

The Supreme Court had moved from “public officials” to “public figures”, and had defined the latter in a manner emphasizing the nature of the person's activities and influence. As if looking for a peg on which to hang the New York Times rule, it seized on this aspect of the “public figure” category to formulate a new concept on which to base the rule, namely “public interest”. If the real reason for allowing debate about public officials and public figures was because of the activities in question, it seemed logical to base the rule on the public nature of these activities. The focus was therefore shifted from the status of the plaintiff to the content of the publication.

This was the holding of the plurality opinion in Rosenbloom v Metro Media¹⁹ where the split in views evidenced the problems posed by the major reshaping of defamation law. A magazine distributor had been described in a radio broadcast as a “smut merchant”. One judge, Mr Justice Black, took his by now customary absolutist view, holding that the First Amendment gave the press complete immunity from libel actions. Mr Justice White thought that there should be a complete immunity except where malice was present. The three dissenting judges argued that a fault concept should replace strict liability in public interest cases and that only actual damages should be allowed. The plurality opinion, however, held that the New York Times rule applied because the subject matter was one of public interest. Mr Justice Brennan expressed the plurality opinion as follows:

18 385 US 374.   19 403 US 29.

 

 

The result of this would be that wherever a defamatory statement of fact were made about a person which involved a matter of public interest, that person would have no redress unless he could prove that the defendant knew of, or was reckless as to, the falsity of the statement. However the “public interest” experiment was soon to be abandoned.

(d) Public Figures Restored: New Law for Private Figures

164.

The second leading case in American defamation law is Gertz v Welch.²⁰ The plaintiff was a lawyer who had been retained by a family in a civil suit against a policeman who had been convicted of murder. A magazine called 'American Opinion' accused Gertz of being the architect of a frame-up of the policeman in the murder trial, and called him a “Communist-fronter”. The District Court entered judgment for the defendant on the basis that the plaintiff was a public figure and had failed to prove malice on the part of the defendant. However the United States Supreme Court allowed the appeal, holding that Gertz was not a “public figure”. The test of public interest was dropped. The court affirmed the public/private figure dichotomy and set out the guiding considerations for each category.

(i) Public Figures– These were defined as governmental officers and those who by reason of the notoriety of their achievements, or the vigour and success with which they sought the public's attention, were properly classed as public figures. The New York Times test was retained for these plaintiffs. A plaintiff falling into this category would therefore have an action in defamation only if he could prove that the statement was made with knowledge of its falsity or reckless disregard of its truth. The justification for this harsher rule was (i) that such persons would usually enjoy a greater access to channels of communication and have an opportunity to correct false statements, and (ii) that such persons would have voluntarily exposed themselves to the risk of defamatory falsehood, unlike a private individual.

(ii) Private Figures– The test of the dissentients in Rosenbloom was adopted. Such individuals could recover damages in respect of defamatory falsehood provided fault on the part of the defendant was shown. Although this was a

20 418 US 323 (1974).

 

 

less harsh rule than the public figure rule, it still represented a departure from the common law strict liability position:

The essential difference between public and private figure plaintiffs was therefore that negligent statements of fact could be made about public figures, but not about private individuals.

(e) The question of punitive damages

165.

The Court in Gertz v Welch went on to set out guidelines for damages. Actual damages only could be recovered, unless there was knowledge of falsity or reckless indifference to truth. It would seem that the statement of Powell J. allows room for punitive damages where such knowledge or recklessness is present, and therefore in all cases where a public figure has overcome the New York Times actionability hurdle:

That this leaves the way open for an award of punitive damages where actual malice is supported by the statement by O'Connor, J in the later case of Hepps v Philadelphia Newspapers:

A later case, Dun & Bradstreet Inc v Greenmoss Builders Inc²² limited the above holdings to cases where the speech was of public concern. In that case, there was a private figure plaintiff and speech of purely private concern. The court held that in such a case, punitive damages could be recovered without a showing of actual malice.

21 475 US 767, 774.   22 472 US 749.

 

 

The result would seem to be as follows:

In cases where the speech is of public concern;

An important point to note is that “actual damage” was widely defined. Unlike “special damage” at common law, it is not equated with financial loss. Mr Justice Powell stated specifically that it was “not limited to out-of-pocket loss” and that “the more customary types of actual harm inflicted by defamatory falsehood included impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering”.

This would appear to be similar to our compensatory damages. Perhaps the difference is that evidence of such damage must be adduced by the plaintiff, and is not presumed by the court. However, one writer has stated as follows:

(f) The Category of Public Figures Narrows

166.

The holding in Gertz that the plaintiff was not a public figure, and the emphasis of the court that a public figure must have voluntarily placed himself in that position, started a trend in reading the public figure category restrictively. Mr Justice Powell cautioned against finding the person to be a

23 Barrett, Supra footnote 10 at p. 854 n. 45.

 

 

public figure too readily:

In Time Incorporated v Firestone²⁴ the plaintiff had been involved in a sensational divorce case and the defendants argued that she had become a public figure by virtue of this publicity and press interviews given by her. The Court refused to hold that the plaintiff was a public figure on the basis that she had been involuntarily drawn into the public forum. In Hutchinson v Proxmire²⁵ the plaintiff was a scientist whose federally funded research had been described by the defendant Senator as an example of wasteful government spending. Again the court held that the failure of the plaintiff to throw himself into public controversy prevented him from being a public figure. And in 1979, the plaintiff in Wolston v Readers Digest Association Inc²⁶ brought an action in defamation because a book had listed him as a Soviet Agent. In 1958, this person had been briefly in the public eye after his failure to appear before a grand jury investigating Soviet espionage, which resulted in a criminal conviction for contempt. The mere fact of his being cited for contempt was held to be insufficient reason to render him a public figure in the context of statements about Soviet espionage. Thus, while the New York Times standard continues to apply to “public figure” plaintiffs, it seems that this category is restrictively construed.

(g) The content of the speech re-enters the equation

167.

It was pointed out at (c) that the Supreme Court in Rosenbloom v Metro Media²⁷ flirted with the idea of replacing the “public figure” concept with a “public interest” criterion. This was discarded in Gertz v Welch²⁸. However, following Dun & Bradstreet, the content of the speech would seem to have re-entered the equation, but this time as an additional, rather than an alternative, requirement. In that case, the court held that where the speech did not concern matters of public interest, awards of presumed and punitive damages could be made under standards less stringent than New York Times and Gertz:

24 424 US 488.   25 443 US 111 (1979).   26 443 US 157 (1979).   27 Supra, fn.   28 Supra, fn.

 

 

Following the Greenmoss case, we may conclude that the appropriate level of protection for speech in United States law depends on the configuration of the case, with three variables involved:

It may be noted that only the issue of damages was before the court in Dun and Bradstreet. It leaves open the question whether the Gertz fault standards are also swept away where the speech is of private concern and the plaintiff is a private individual.

(h) The Final Step: Reversal of the presumption of falsity

168.

In New York Times and Gertz, the primary issue was fault in relation to truth. The public figure plaintiff would have to show that the defendant knew of or was reckless as to the falsity of the statement. The private figure plaintiff would have to show some less stringent standard of fault in relation to falsity. However, these cases left undisturbed the common law presumption of falsity, which places the burden of proof of truth on the defendant. The sequence of trial would therefore be as follows: (1) The plaintiff shows the statement is defamatory; (2) the Court presumes the falsity of the statement; (3) the plaintiff shows the defendant is at fault (private plaintiff) or acted with malice (public plaintiff). It might have been thought that a part of the plaintiff's case in showing fault would be a showing of falsity. However, the Supreme Court in 1986 chose to reverse this presumption so that (2) above would read as follows: “The plaintiff shows the falsity of the statement”.

This reversal was effected in Hepps v Philadelphia Newspapers.³¹ The newspaper

29 Ibid, at 761. Interestingly, the false “fact” asserted in that case consisted of an inaccurate credit report stating that a building contractor had filed a voluntary petition for bankruptcy. The holding that this was a matter of private concern has been criticised on the basis that the bankruptcy announcement of a local company is information of great concern to residents of the community in which the company is located; See Kellerman, 54 U Cin L Rev 1375, 1392.   30 Kalm, 62 NYUL Rev, 812, 813.   31 (1986) 475 US 767.

 

 

had published a series of articles alleging that the plaintiff corporation had links with organised crime and had used these to influence the State's governmental processes. The trial court, a Pennsylvania State court, instructed the jury that the burden of proving falsity was on the plaintiff. The Pennsylvania Supreme Court remanded the case for a new trial, holding that a showing of fault did not require a showing of falsity, and that the burden of proving truth was on the defendant.

In the United States Supreme Court, O'Connor J, delivering the opinion of the Court, stated:

O'Connor J justified this rule on the basis that a presumption either way would be of significance only in cases of doubt or ambiguity, and that in areas of public concern, the presumption should operate in favour of free speech –

O'Connor J thought that in most cases this reversal would be of little practical significance for the plaintiff:

32 Ibid, at 776.   33 Ibid, at 776–7.   34 Ibid, at 778.

 

 

It is crucial to note that this reversal of presumption was effected only in cases where the speech is of public concern. It is this factor which tips the presumption in favour of speech. Presumably, in a case where the speech is of private concern, the common law rule continues to apply. More worrying, however, is O'Connor J's reference to “media” defendants. In practice, the defendant is more than likely to be a media defendant. It may be, however, that a new theoretical distinction was introduced. Strictly speaking, the new presumption operates where the speech is of public concern and the defendant is a media organ. Brennan J wrote a separate concurring opinion in which he adverted to this point:

A vigorous dissent in the Hepps case was written by Stevens J, with whom Burger CJ, White and Rehnquist JJ agreed. He argued that the new presumption would undoubtedly benefit defendants, but only unmeritorious defendants:

Accepting that a risk would have to be borne by either the plaintiff or the defendant, Stevens J disagreed with the majority that the plaintiff should be required to bear the risk, in light of the fact that the defendant had made the statement “either with a mind toward assassinating his good name or with careless indifference to that possibility”.

Stevens J also accepted the view of the majority that the reversal of the presumption would make little practical difference in most cases. However, he observed –

35 Ibid, at 779.

 

 

He noted also that proof of fault would not necessarily entail proving falsity. A plaintiff could show negligence in the way in which the material was gathered, regardless of truth or falsity. Stevens J thought that in a case where the plaintiff could show the defendant was at fault in the reckless way he collected the material, the presumption advocated by the majority would achieve an unjust and unconstitutional result:

However, the result of the majority holding in Hepps is that where speech is of public concern, the plaintiff must show falsity as a prior matter to showing malice (in the case of a public figure plaintiff) or fault (in the case of a private plaintiff).

(i) Reservations as to the modern caselaw

169.

All of these developments were, as we have seen, emphatically grounded on the First Amendment guarantee. At its most extreme, this viewpoint is to be found in the view of Jefferson which was cited by Douglas J in Gertz v Welch;

Thus, in New York Times, Black J stated the majority view in its starkest form:

But dissentient views emerged at a relatively early stage in the court. Thus, Stuart J in Rosenblatt v Baer gave early expression to unease at the new developments:

 

 

It is interesting to note that some of the most cogent restatements of the orthodox law are to be found in the dissenting opinions of White J in recent cases: interesting because White J had joined the majority opinion in New York Times. Thus, he had this to say in Gertz v Welch:

In Dun & Bradstreet v Greenmoss, the same Justice made explicit his reservations about the view which he had previously held as a member of the majority in New York Times:

He went on to associate himself, to some extent at least, with those who criticised the New York Times decision on the ground that it needlessly jettisoned the common law standard of liability in defamation and summed up his view as follows:

Even stronger criticism of the majority decisions in New York Times and its progeny can be found in such remarks as those of Stewart J in Rosenblatt v

 

 

Baer:

And, to the same effect, Stevens J, dissenting, said in Hepps v Philadelphia Newspapers:

(j) The Status of Opinions in United States Law

170.

New York Times and its successors concerned defamatory statements of fact. This raises the question of how opinion statements are dealt with under the First Amendment. The prevailing view appears to be that opinion statements have been rendered non-actionable following the celebrated statement of Powell J. in Gertz v Welch:

However, unlike New York Times this turning point was not followed up by a succession of Supreme Court decisions. Unfortunately the two Supreme Court cases in which opinion statements have been at issue, the actionability of opinions is not faced squarely as an issue. The first of the two cases usually cited actually preceded Gertz v Welch. This is Greenbelt Publishing Assoc v Bresler³⁷ where the Court held that the use of the word “blackmail” to describe the plaintiff developer's use of bargaining power did not amount to libel as a matter of law. However, it has been suggested that the holding of the court is open to a number of interpretations:³⁸

The second case, Letter Carriers v Austin,³⁹ was decided on the same day as Gertz. The subject matter consisted of trade union literature containing an abusive and insulting definition of a “scab”. Justice Marshall writing for the majority noted that federal labour policy required more protection for a union involved in a labour dispute than State law, and reasoned that the right to persuade others to join a union should not be easily stifled by threats of defamation. However he first cited Gertz as authority for the proposition that there must be a statement of fact to ground a libel action. It was held that even the most pejorative opinion would be protected under labour law. Despite this more limited holding, the court did recognise the legitimacy of the reasoning in Gertz. It is also noteworthy that it interpreted Greenbelt as authority for the opinion privilege i.e. interpretation 3 suggested above.

The result of this scanty case law is that the opinion doctrine is subject to some controversy. One commentator states the doctrine is not yet settled.⁴⁰ On the other hand, the recent Annenburg Washington Report assumes that opinion statements are not actionable:

Another writer states that most federal and state courts have interpreted Gertz as providing absolute constitutional protection for opinions, but admits that there is confusion as to how the distinction between fact and opinion is to be drawn and the exact contours of the privilege.⁴² We adopt the following statement as the most concise analysis of the situation:

39 418 US 264.   40 Elder, Defamation and Freedom of Expression, 35 ICLQ 891, 921.   41 Report, p.20.   42 See Berritt, The Fact Opinion Distinction in Libel Law, 52 Brooklyn L. Rev. 879.   43 Base Corp. v Consumers Union Inc. 104 S.Ct. 1949, 1961 (1984).

 

 

It is interesting to note that if the lower courts have seized upon the Gertz dictum to abolish the law on fair comment, this may not have been the result intended by the court in that case. Justice Rehnquist, who joined in Powell J's opinion in Gertz, subsequently stated:

While the lower courts appear to be implementing the 'non-actionability for opinion' doctrine, there appears to be a lack of uniformity in their method of application. One writer discerns two approaches currently being used.⁴⁶ The first approach categorically prohibits actionability in respect of any type of opinion, once a statement has been characterised as such. Accordingly it becomes crucial to distinguish between fact and opinion and various tests are used to this end – the verifiability test, the totality of circumstances test, or combination of these two.

The second approach is based on the Restatement (Second) of Torts (1977). Section 566 provides –

The section thereby retains actionability for “mixed” as opposed to “pure” statements of opinion. A “pure opinion” is one which sets out the facts on which it is based, or refers to facts already known to the general public. A “mixed” opinion is one that is apparently based on facts which are neither stated or implied. We find the terminology of “pure” and “mixed” opinions misleading and prefer the terms “supported opinion” and “unsupported

44 Thomas, supra footnote 38, at p1008.   45 Justice Rehnquist dissenting on the Court's denial of certiorari in Ollman v Evans 105 S Ct 2662 (1985).   46 Thomas, supra footnote 28.

 

 

opinion”. The following examples illustrate the different types of opinion under the restatement test:

Example 1 would be “pure” (supported) opinion because the facts supporting the conclusion are set out. Example 2 is also pure (supported) opinion because the facts on which the conclusion is based, the content of the TV station's broadcasting, are a matter of public knowledge. Example 3 is a “mixed” or (unsupported) opinion since no facts are in any way pointed to as foundation for the opinion.

The rationale for differentiating between the two types of statement was given by the Eight Circuit as follows:

It does not appear that there is any requirement that the facts to support a “pure opinion” be proved true. If this is correct, then this test only superficially resembles the common law requirement that the comment must be based on fact to avail of the defence of fair comment, for the common law imposes the additional requirement that such facts be proved true.

47 Lauderback v American Broadcasting Co. 741 F.2d. 193, 195–96 (8th Cir. 1984).

 

 

CHAPTER 6: COMPARISON BETWEEN UNITED STATES AND IRISH DEFAMATION LAW

171.

For purposes of clarity, the following is a brief summary of the essential differences between current United States and Irish law on defamation.

 

 

CHAPTER 7: THE COMMON LAW AND NEW YORK TIMES v SULLIVAN

172.

The modern United States law on defamation has its origins in the case of New York Times v Sullivan. The decision was hailed as a victory for freedom of speech and the removal of the fetters imposed on such freedom by the common law. In the discussion of the decision and its aftermath, an important point has often been overlooked. Could the proper application of the common law itself have reached a satisfactory result in the New York Times case? It is usually assumed that the common law rules would have allowed the plaintiff in that case to recover damages, an assumption which is fortified by the award of $500,000 by the Alabama jury. Yet most would agree that the plaintiff was not meritorious and such a result would have been unsatisfactory. The common law was deficient, the argument goes, and therefore something radical had to be done.

It is submitted that this assumption is incorrect. It is thought that the Supreme Court in New York Times could have reached a satisfactory conclusion without departing from common law principles, or at most, by refining those common law principles in a constitutional light. The award of $500,000 by the Alabama jury was not due to the application of common law principles; rather, it was due to their misapplication. This conclusion is supported by the comment of Epstein:

If it is true that common law principles could have satisfactorily resolved the

1 Epstein, Was New York Times v Sullivan Wrong? 53 U chicago L Rev 782, 790.

 

 

New York Times dispute, it seems that the United States Supreme Court turned its back on the easier course of applying and, where necessary, developing the common law and embarked on the arduous task of building up an entirely new body of defamation law fraught with its own difficulties. It is a reassuring lesson of caution for those of us who have not yet turned our backs on a body of law which has been built up over centuries.

173.

The following are ways in which it is suggested that the Supreme Court in New York Times could have dismissed the plaintiff's case by means of the application, or reform, of common law principles.

At least one American writer has criticised the manner in which the Court in New York Times approached the common law principles:

5 Epstein, supra, footnote 1, pp791–2.

 

 

CHAPTER 8: AN ANALYSIS OF THE MERITS OF UNITED STATES DEFAMATION LAW

174.

(i) Arguments in favour of United States position

1.

The New York Times rule which applies to public figures has the undoubted advantage that it opens up discussion of the public activities of central figures in society. The media are no longer confined to the defence of justification in relation to false statements of fact. The Irish media say that they cannot get their sources to testify in open court with the result that they cannot avail of the defence of justification in many cases. (It is thought that, in any event, some of the sources would not survive cross-examination). Unless the statement comes within an occasion of privilege, they claim that they are effectively left without a defence. They argue that, under the New York Times test, they may publish statements of fact concerning public figures freely and without fear of having to exercise self censorship.

2.

New York Times has been criticised on the grounds that it did not go far enough and that it should have rendered statements concerning public figures entirely nonactionable. One writer rationalises this on the basis that “truth” in a political context is illusory:

 

 

Another writer rationalises the view that Sullivan did not go far enough on the basis that the justification for the rule was the content of the speech in question and that the motive of the speaker was irrelevant to this issue:

3.

The introduction of a fault standard in defamation cases involving private individuals represents a fairer balance between individual reputation and free speech than does strict liability.

175.

(ii) Arguments against the United States position

1. Benefit to Unmeritorious Defendants

The very argument that is cited in favour of the New York Times rule may be used against it. It was said that the rule opened up public discussion on the public activities of public figures, which it does. Unfortunately, however, the defence is so wide that it allows unmeritorious as well as meritorious defendants to avail of it. A defendant may be sloppy, careless or negligent; he may make large and unjustified mistakes; however, the plaintiff cannot bring an action unless he shows that the defendant actually knew of, or was reckless as to, the

1 Lewis, New York Times v Sullivan Reconsidered, 83 Columbia L Rev 603, 620 (1983).   2 Meiklejohn, Speech and the First Amendment; Public Speech and Libel Litigation: Are They Compatible? 14 Hofstra L Rev 547, 557. Meiklejohn advocates an absolute privilege for the press when speaking on matters of public concern, provided there is a statutory right of reply.

 

 

falsity of the statement. The Damron case discussed above shows how it may be difficult to meet this test of actual knowledge or recklessness.

This argument would probably be met if the 'malice' element in New York Times were widened to include negligence. Thus public and private figures alike could bring actions if they proved that the defendant knew of the falsity or was reckless or negligent as to the falsity.

2. Truth

The American public/private figure dichotomy moves away from the issue of truth. If we picture all statements of facts as a set, the common law divides it into two sub-sets on the basis of truth or falsity, the latter only being actionable. New York Times divides it on the basis of the status of the plaintiff and his involvement in public affairs. The logical result of this would be that all statements of fact about a public figure would be non-actionable. However, the court shied away from this absolutist position and added the gloss that the public figure could recover damages if he showed the defendant knew or was reckless as to the issue of truth. There seems to be an underlying unease about permitting false statements of fact to go unpunished.

It is submitted that in the case of statements of fact, truth should, as far as possible, be the main criterion. Suppose X were to say that Y is a thief. The average onlooker is asked whether Y should be allowed recovery. The natural response of the observer is to ask whether the statement is true. Yet in most of the United States cases cited since New York Times, we do not know whether the statement at issue was true or false. Were the judges in Garrison v Louisiana lazy and unfit for office? Did Butts 'fix' the football game? Did Walker lead a violent crowd? Was Rosenbloom a “smut” merchant? We simply do not know because truth was never a central factor. In the one case where we do know the statement was false, the Damron case, the plaintiff lost and yet our sympathies are clearly with the plaintiff. The less the law focuses on truth, the greater is the sense of dissatisfaction by the parties involved and the public:

 

 

If defamation law is to allow sufficient latitude to freedom of speech to allow for vigorous exposure of official misconduct, it must also be careful not to allow for false accusations of official misconduct. If the public interest is extremely high in relation to official actions, it is equally high in having false accusations in this area corrected. In this respect, the American position arguably fails to serve the public interest –

On the other hand, it is strongly arguable that the common law does not make truth the central enquiry. While it renders truthful

3 Epstein, Was New York Times v Sullivan Wrong?   4 Barrett, supra, page 158, footnote 10, at 859. The phrases within single quotation marks are from Bezanson, Libel Law and the Realities of Litigation: Setting the Record Straight, 71 Iowa L. Rev. 226.   5 Mathews, American Defamation Law: From Sullivan, Through Greenmoss, and Beyond, 48 Ohio St. L.J. 513, 530.

 

 

statements non-actionable in theory, by means of the defence of justification, the reality is that truth is not litigated at all. This is due to the combined result of the presumption of falsity and the difficulties of justifying, so that falsity may not be contested by the defendant. Again neither party is the victor; the plaintiff will maintain that the statement is false and that the defendant won on a technicality (that is, if the defendant succeeds in another defence).

If neither the United States nor the common law position is a system which adequately makes provision for the determination of truth, other ways of bringing this issue to the forefront of libel actions must be addressed e.g. declaratory actions, correction orders, a reversal of the presumption of falsity.

3. Balancing of Interests

Defamation law attempts to strike a balance between the competing interests of free speech and individual reputation. It is arguable that the American public figure rule abandons one interest virtually to the exclusion of the other. This may be the result of having a constitutional guarantee of free speech without having its constitutional counterpart, the guarantee of protection of reputation. However, in Ireland there are constitutional guarantees of both these interests. If the American position represents a bias rather than a compromise, it may not be a position open to Ireland.⁶

4. Flexibility of Remedy

The American position does nothing to alleviate the all/or nothing damages situation. It does not attempt to introduce any flexibility into the law of defamation by means of new remedies. It merely swings from a pro-plaintiff to a pro-defendant position, in the name of free speech. Where the plaintiff cannot overcome the New York Times hurdle, he is without redress despite actual injury to his reputation. Where he does overcome the hurdle, it seems that not only is he entitled to damages, but also to punitive damages.

6 One American writer has specifically examined the competing interest of reputation and analysed its components and how they affect common law doctrine. He stresses that First Amendment decisions have failed to address overtly this countervailing interest in great detail and that the clarity of the Supreme Court's reasoning has suffered as a result; See Post, Symposium: New Perspectives in the Law of Defamation: The Social Foundations of Defamation Law: Reputation and the Constitution, 74 Calif L Rev 691.

 

 

Indeed, the position may even be worse than that. The recent Annenburg Washington Program Report on Libel points out that many expensive and complex suits end in an inconclusive way, with millions spent and neither party the winner. The following is a set of examples set out in their Report:

7 Barrett, supra page 158, fn 10, at 856. Footnotes omitted.   8 AWP Report at p.9.

 

 

Dichotomy between Public and Private Figures

Is a distinction between public and private individuals desirable, given that the defence applies to false statements of fact? The defence of fair comment in our law protects a wide range of opinions and, with reforms, could protect an even wider range. Public expression of opinions about public figures is therefore protected. There may be no need, or desirability, for a defence which protects the false statements of facts about such persons. A politician certainly “consents” to being in the public eye; however, he does not necessarily “consent” to being the subject of false statements of fact. Such a rule might well be a disincentive to persons to enter the public arena. Apart from the injustice to the plaintiff, the rule does not benefit the public. The public no longer knows whether statements about public figures are true or false, except in the rare case where the plaintiff can go into court and prove the defendant knew that the statement was false or was reckless as to its falsity.

Definition of Public Figures

There are practical difficulties with the public figure concept. As has emerged from the United States cases, a number of questions fall to be determined: do all Government officials come within the New York Times rule, or only high level officials?⁹ Where is the cut-off point? What is conduct touching on fitness for office? How remote in time can the charge be? Who is a public figure? Is a person a public figure for the purposes of the test if has voluntarily thrust himself into the public arena but cannot be said to have ready access to channels of communication? What happens where a person has access to the channels of communication only for a limited period?

It could be said that these are only the difficulties of circumscribing the limits of the rule, as occurs with any rule of law. A body of case-law might answer some of these questions, but the difficulty of adopting an appropriate category may well be insurmountable.

Application

Even if the New York Times rule were considered to be a good balance between freedom of speech and individual reputation, it is not clear that the safeguards built in to the rule will be understood and applied by the jury. One American author writes:

9 For example, whether public school teachers are faced with the New York Times hurdle is a question of some controversy. Some state courts have held teachers to be public officials, others have held them to be public figures, and others again have held that they are neither. One writer explores this dilemma and suggests that teachers must be held to the New York Times Standard – see Cane, Defamation of Teachers, Behind the Times? 56 Fordham L Rev 1191.

 

 

Another writer observes:

This argument should not be pressed too far. If the jury's dislike for the media is so strong that it will misapply the law, this will be true for any rule of law, not merely the New York Times rule. If anything, it argues more towards a New York Times type rule where the media is given a wider margin of error than is theoretically necessary. This is a point adverted to by Epstein:

In other words, while a theoretical rule would allow the plaintiff to recover if he could show negligence, recklessness or actual knowledge of falsity, the error rate in litigation requires a stricter practical rule that only allows the plaintiff to recover if he can show recklessness or actual knowledge of falsity. If this was indeed the reasoning of the Supreme Court in New York Times, it gives the rule a sophistication which its critics do not normally accord it. It is a point which should be seriously considered.

8. Difficulties of Proving Malice

When the defendant consists of more than one person, it is very difficult for the plaintiff to prove malice on its part. It involves

10 Lewis, New York Times v Sullivan Reconsidered, 83 Columbia, L. Rev. 603, 613.   11 Plave, Tavoulareas v Piro; An Extensive Exercise of Independent judgment, 56 Geo. Wash. L. Rev. 854.   12 Epstein, supra, footnote 1, at 802.

 

 

investigations into the internal workings of, for example, a media organ. Allied to this difficulty of proof is the cost of proof, which is discussed below.

The above arguments have been from a theoretical point of view, and, sometimes, from the plaintiff's point of view. The next three arguments are in some ways even more powerful because they work on the premise that the New York Times rule does not, in fact, benefit the defendant. The basic argument is that while the defendant believes that he is better off under the New York Times rule, the truth is that he is incurring more costs, paying more damages, and losing credibility.

9. Cost of Proving Malice

Once malice is essential to liability, as under the New York Times rule, costs are increased. Under Irish law, the question of liability turns largely on external facts. The element of malice shifts the enquiry to the defendant's internal state of mind, which in the case of a media defendant may be the internal state of mind of many people. Discovery then has the potential to become an enormous process. As one writer puts it:

This view is widely supported:

13 Shapiro, Symposium: New Perspectives in the Law of Defamation, Libel Regulatory Analysis, 74 Calif L Rev 883, 886.   14 Barrett, supra page 158, n 10, at 855–6. Footnotes omitted.   15 Ibid, at 861.

 

 

It may be noted that in the early years following New York Times, public-figure libel cases were quickly disposed of by summary judgment on the malice issue. Usually the motion for summary judgment by the defence was based on affidavits of the reporter and editor describing the reporting process and asserting that the responsible person had no knowledge of the falsity. If the plaintiff merely repeated in an affidavit that there was actual malice without supporting facts, the defendant was entitled to summary judgment. However plaintiffs' lawyers gradually realized that they could avoid summary judgment by taking discovery on the state of mind issue and in Herbert v Lando¹⁸ the Supreme Court expressly authorised inquiries into the editorial process in order to facilitate proof of actual malice. The costs of libel actions rose accordingly.

16 Ollman v Evans, 750 F 2d 970, 996 (DC Cir 1984) Bork J.   17 Thomas, Statements of Fact, Statements of Opinion, and the First Amendment, 74 Calif L Rev 1001, at 1026–7, footnotes omitted.   18 441 US 153 (1979).

 

 

10. Damages

It is difficult to assess whether the overall damages incurred by the press have increased since New York Times, or whether that rule has curbed their levels. One American writer is of the view that if damages awards have not increased both in number and in content, there is certainly no indication that they have been reduced since New York Times v Sullivan.¹⁹ Barrett, however, is of the view that the New York Times rule has resulted in a reduction of damages for defendants:

Furthermore, Professor Bezanson, who was involved in the Iowa Libel Research Project states as follows:

11. Social Cost

The preceding two arguments showed that the New York Times rule is probably detrimental to the finances of defendants, due to costs and damages. The following argument against the New York Times rule is that it is detrimental to the defendant's credibility.

This is similar to argument number 7 above. Once defamation law moves away from the issue of truth, the public no longer know who to believe.

19 Epstein, supra footnote 1.   20 Barrett, supra, page 158, footnote 10, at 855. Footnotes omitted.   21 Bezanson, Symposium etc. The Libel Suit in Retrospect: What Plaintiffs Want and What Plaintiffs Get, 74 Calif L Rev 789, 790–1. Footnotes omitted.

 

 

Epstein draws analogy between the strict liability rules on defamation and the law on consumer warranties. Sellers are often eager to have a strict liability rule in relation to their products. The strict liability rule binds the defendant to his product while it encourages the buyer to purchase the product even where he lacks precise information about the seller or the manufacturing process. If the law shifted away from this position, sellers would have to devise other ways of convincing buyers of the quality of their product, and the public would lose because it would have to incur search and inspection costs in trying to find quality products.

Epstein argues that the common law defamation rules operate as a means of binding the defendants to the public. They know that if a statement is false, the injured person will have a means of redress. Therefore they gain confidence in what is published and not challenged, and believe that it is true. The introduction of an actual malice rule upsets this balance. “The actual malice rule, in effect, is a rule that the law regards bad information as favourably as good information so long as it was only produced with gross negligence. It is tantamount to a rule that a merchant can escape the consequences of selling contaminated goods so long as he does not mean to hurt his customers. Ex ante, consumers as a class tend to lose, as do producers.“²³

Another American writer advocates this approach of viewing newspaper activity in particular from the industrial viewpoint:

22 Barrett, supra page 158 n 10, at 862.   23 Epstein, supra, footnote 1, at 811.   24 Shapiro, Symposium: New Perspectives in the Law of Defamation, Libel Regulatory Process, 74 Calif L Rev 883.

 

 

If the New York Times rule is seen as a regulatory code for a professional and industrial sector, it is arguably a bad standard because it fails to encourage quality product –

The net result is that the wide protection afforded by the New York Times rule damages the public confidence in the media and is of detriment to defendants because of the effect on their reputation.

12.

A final argument against the New York Times rule argues not for its abolition, but for its refinement. A number of amendments to the rule would meet many of the foregoing criticisms.

The first involves widening the definition of fault in relation to public figures so that negligence is included. This wider definition of fault would bring public figures in line with private figures. The essential difference between the two categories, following New York Times v Sullivan and Gertz v Welch, is that a defendant may negligently publish false statements about a public figure, but not about a private figure. A standard imposing liability where the defendant is negligent would also bring defamation in line with a larger bulk of tort law. An Australian writer favours this approach:

25 Ibid, 884–5.

 

 

One American writer defends the New York Times position.

We are not at present convinced of the merit of the assumption in this passage, namely that, in the situation where the publisher does not exercise reasonable care, allowing him to publish is better than forcing him to engage in self-censorship. It is at least arguable that where a publisher/writer has neglected to check his facts or exercise reasonable care, his best policy is silence. More importantly, no public good would appear to be served by publication of statements that are negligently prepared; the truth of such assertions would be a hit and miss affair.

The second amendment to the Sullivan rule would be to reverse the burden of proof. At present, the onus is on the plaintiff to show that the defendant was at fault. If the wider definition of fault above were adopted, it could then be required of the defendant that he meet a standard of reasonable care. The facts and documents surrounding the publication being in the defendant's possession, the difficulties and expense of discovery would thereby be avoided.

The third amendment would involve provision for the plaintiff to reply to or rebut the assertion made as a pre-requisite to invoking the defence. The final amendment would involve confining the category of defendants to whom the defence in respect of factual assertions applies to public officials and politicians and excluding public figures. If a wide latitude to factual assertions is necessitated, it must be on the basis of the role of a wide public debate in self-government. This rationale justifies the application of the defence where the speech concerns public

26 Hughes, Defaming Public Figures, 59 Aust LJ 482, 484.   27 Marder, Libel Proof Plaintiffs – Rabble Without a Cause, 67 BUL Rev 993, 1010. Footnotes omitted.

 

 

officials and politicians. It does not justify its application to other public figures. The United States Supreme Court justified the application of this defence to public figures on two grounds: (a) the fact that they have access to the media and (b) the fact that they voluntarily undertook to become public figures. We are not convinced by these arguments.

Many public figures do not have access to the media or if they do, are not necessarily quoted at the length they would wish. Second, many public figures do not voluntarily undertake this position. However, even where they do, a reduced protection under the law of defamation might provide a disincentive to others to take part in public life. More importantly, is it strictly necessary for a public figure to become the target of false factual assertions and if so, what does it achieve?

 

 

PART 3: PROPOSALS FOR REFORM

Introduction

176.

In most tort actions, the interests of two parties are competing for priority and the issue must be resolved in favour of either the plaintiff or the defendant. The interest of the public in having the matter resolved is implicated usually only to the extent of society's desire to see justice done. A defamation action is unusual in that there are three interested parties. The plaintiff who perceives himself to be a victim of an attack upon his reputation wishes to assert his constitutional right to protection of his good name. The defendant who has made the statement at issue is appealing to a countervailing constitutional guarantee of free speech. The delicate balancing exercise necessitated by attempting to reconcile these important interests is complicated by the fact that expression of any kind plays a vital role in democracy and there is therefore also a large public interest at stake. Throughout this Paper we have attempted to give full consideration to each of these interests.

We believe that current Irish defamation law fails to serve each of these interests satisfactorily in many areas. We believe that many problems stem from lack of clarity and lack of certainty. Accordingly we attempt to define new principles in simple language and avoid the use of negative formulations where possible. We also feel that certain rules which at present exist would benefit from being set out in clear statutory form so that jurisprudence in defamation will develop based on a new Act rather than interpretation of cases decided in other jurisdictions. Finally we believe that in certain areas Irish law fails to give adequate protection to particular interests, which is a failure to give due respect to Constitutional provisions. Accordingly we make a number of important substantive recommendations.

We should like to note at this point the classification adopted in relation to defences – Parts II–IV. Traditional classification of defamation defences is as

follows: Justification, Fair Comment, Absolute Privilege, Qualified Privilege, Unintentional Defamation. In this part, we have chosen the different format of Privileged Statements, Opinion Statements, and Factual Statements for a number of reasons. First, we believe this classification emphasises the underlying rationale of the defences in each section. For example, privileged statements are deemed so because of the occasion on which they are uttered whereas opinion statements merit protection because of the nature of the statement. Second, particularly in the section on Factual Statements there are a number of defences to be considered and it makes for greater clarity to link these under a common heading of factual statements so as to emphasise the type of statement to which the defences are addressed. Finally, we have chosen the particular order of Parts II-IV in order to emphasise that the defences considered in part IV would apply exclusively to statements which are neither privileged nor constitute opinions. In order fully to appreciate the implications of the defences in Part IV it is necessary to think of these defences as “last resorts” in the sense that the failure or refusal to adopt the defence will result in the defendant being held liable.

 

 

CHAPTER 9: PRELIMINARY

A. THE DISTINCTION BETWEEN LIBEL AND SLANDER

177.

Under existing law there is a division in defamation law based on the form in which the defamatory statement is communicated. The two types of defamatory statement are libel and slander. It was formerly said that libel consisted of a written statement while slander was oral, but this is inaccurate in the context of modern methods of communication. The more modern formulations of the distinction state that libel is in permanent form, while slander is transient.¹

The practical difference is that all libels are actionable per se i.e. without proof of special damage. Slanders, subject to the four established exceptions, are actionable only on proof of special damage.

The distinction between libel and slander has been criticised for failing to take into account modern methods of communication. Attempts have been made to meet this problem. The Defamation Act 1961 provides that broadcasting by means of wireless telegraphy is treated as publication in permanent form.² Although this does not specifically say that such broadcasts if defamatory are libels, this is the effect of the section if the correct view to-day is that permanent publications are libels.³ A more important criticism is based on the practical distinction between the two forms of defamation, which may lead to odd results. A person could carry on a deliberate and sustained campaign of verbal attacks on another, and if that other were unable to bring himself within any of the four excepted categories of slander, he would be without redress unless he could show special damage. The assumption that verbal communication is less damaging is not true in every case. Yet, if the person

1 See Part I.   2 Section 15, Defamation Act 1961.   3 This view is supported by the remarks in the Explanatory Memorandum to the 1961 Act.

 

 

abused could show that he lost one dinner booking because of the campaign, he would have shown special damage and he could recover substantial and even punitive damages.

178.

The basis of the distinction appears to be purely historical. The reason for its maintenance appears to be a fear of opening the floodgates to a host of petty and trivial claims. As far back as 1843, a Report on the Law of Defamation issued by a Select Committee of the House of Lords recommended the abolition of the distinction. However, the Porter Committee favoured the retention of the distinction, because they felt that “scope for trivial but costly litigation might be enormously increased” and this would “be likely to encourage frivolous actions”. The Faulks Committee thought that the distinction between libel and slander was an area in which “the forms of the law continue to rule us from the grave”. It thought that it rendered this part of the law “unreasonably and unnecessarily complicated and refined, carrying a host of rules and exceptions, derived partly from precedent and partly from statute, which are illogical, difficult to learn, and in certain applications, it must be added, unjust”.⁴ It thought that the fear of a flood of new actions was unjustified in view of the fact that defamation actions played only a small part in English and Scottish litigation. Furthermore, even if such actions were commenced, there was no reason to suppose that they would not receive short shrift in the English courts. Firstly, by the defence that words were spoken by way of vulgar abuse or joke would remain. Secondly, the expense of litigation would deter all but the most serious plaintiff. Furthermore, it would be expected that would-be litigants would receive responsible legal advice, and that the judiciary would quickly develop a climate adverse to frivolous slander actions. (We should say that our impression is that in Ireland a significant proportion of potential defamation claims do not go beyond the first interview with a solicitor or the first opinion from counsel). The Faulks Committee therefore recommended the abolition of the distinction.

179.

The distinction between libel and slander was abolished in New Zealand by s4 of the Defamation Act 1954. The New Zealand Committee on Defamation's Report noted that the abolition of the distinction had not produced any problems since its enactment in 1954.

The distinction between libel and slander was adopted in New South Wales in the Injuries to Character Act 1847 and the abolition was preserved by virtue of s3(2) of the Defamation Act 1901 (NSW). However, the New South Wales Law Reform Commission recommended a return to the theoretical common law distinction, while insisting that the practical effects of the distinction should not be resurrected.⁵ S8 of the Defamation Act 1974 (NSW) resurrects the theoretical distinction without its practical effects, providing that –

4 Faulks Committee Report, Para 86.   5 NSW LRC, Report on Defamation, No. 11, (1971), App D, paras 33–34.

 

 

The position obtaining in the Australian Code States is that both the theoretical and practical effects of the distinction have been done away with. The Australian Law Reform Commission felt that there was no advantage in maintaining any distinction between libel and slander, and recommended that it be abolished.

Similarly, the British Columbia Report on Defamation recommended the abolition of the distinction, stating that “whatever value there may be in distinguishing between libel and slander is outweighed by the disadvantages of maintaining an ancient distinction that no longer has any logical or rational justification”.⁶

180.

We provisionally recommend the abolition of the distinction between libel and slander. We further recommend that there be a new cause of action in “defamation” in which proof of special damage is not necessary. Following from this, we recommend the repeal of sections 15,⁷16 and 19 of the Defamation Act 1961. We will later provisionally recommend that the method of publication should be taken into account in assessing damages.

6 British Columbia Report on Defamation, p.14.   7 The repeal of s15 will necessitate an amendment to s20(2) of the Defamation Act 1961.

 

 

B. DEFINITION OF DEFAMATION⁸

181.

The Defamation Act 1961 contains no definition of a defamatory statement. Various definitions of defamation are found at common law:

There is much to be said for a simple statutory definition which defines the subject-matter of defamation legislation and which defines the limits of defamation in modern phraseology. The press in Ireland feels that a statutory

8 Discussion by the reform bodies is located as follows – Australian Law Reform Commission Report, paras 77–84, New Zealand Committee Report, paras 58–67, Faulks Committee Report, paras 58–71.   9 (1936) 52 TLR 669, per Lord Atkin, p 671.   10 (1882) 8 QBD 491.   11 (1840) 6 M & W 105.   12 (1934) 50 TLR 581.   13 [1971] IR 269, per Walsh J at 272.

 

 

definition is desirable.¹⁴

The Reform Bodies

182.

The New Zealand Committee refused to recommend a statutory definition. They felt that a statutory definition would face a number of difficulties:

The Faulks Committee thought that the tort of defamation was entitled to a statutory definition and decided to take and adapt the formulation of Lord Atkin in Sim v Stretch. However, it was felt that the word “right-thinking” could have a political flavour, and that “society” might have a social meaning as well as referring to an organisation of persons. Therefore, they adopted the following definition:

The New Zealand Committee criticised this formulation on two grounds. It felt that the phrase “likely to affect a person adversely” was too wide, since many statements could adversely affect a person without amounting to defamation under the present law. It also thought that the “estimation of reasonable persons generally” was a phrase capable of being vague and ambiguous.

183.

The Australian Law Reform Commission recommended a statutory definition in the following terms:

Paragraph (a) follows Lord Atkin's formulation in covering situations where reputation is detracted from, whether or not through hatred, contempt or ridicule. Paragraph (b) puts the old formula of “shunning and avoiding” into modern terms. Paragraph (c) is based on the protection afforded in the Australian Code States for plaintiffs who have been caused financial loss. If a person makes an untrue statement about another which causes financial loss, it seems that such person should bear the loss. Halsbury states that such imputations are defamatory at common law.¹⁵ This definition is favoured by the Boyle-McGonagle Roport and the submission to the Commission by the National Newspapers of Ireland.

The Annenburg Washington Programme

184.

The simplest definition of all is put forward by this Report. It is stated in the following terms:

That Report also puts forward a definition of publication:

It will be recalled that at common law if the defendant publishes defamatory matter to the plaintiff but it becomes available to a third party, the defendant is liable only if he could reasonably anticipate such third party intervention. The Annenburg definition encompasses this situation by providing that there is publication if the defendant negligently communicates the matter to a person other than the plaintiff.

United States Restatement

185.

The Restatement of Torts (Second) provides a definition of defamatory matter as follows:

15 Halsbury's Laws of England, vol 28, para 42.   16 Annenburg Washington Programme Report, p.15, section 2(6) of the proposed Libel Reform Act.

 

 

Proposals

186.

We suggest that a definition of defamation should encompass four matters:

(1) Publication to a third party

187.

This part of the definition is relatively unproblematic. One possibility is simply to place this requirement in a longer sentence e.g. “Defamation shall consist of publication to a third party of ... etc.”. However since at common law a person is liable for an unintended publication only if he could reasonably foresee the possibility of publication to a third party, the Annenburg formulation is favoured. We suggest that the publication aspect of the definition be placed in a separate sentence: “Publication shall consist of the intentional or negligent communication of the defamatory matter to a person other than the plaintiff”.

(2) The injury itself

188.

We considered but rejected the Parmiter v Coupland definition because it instances one type of reputational injury only and is therefore too limited. A statement may be defamatory at common law without exposing a person to hatred, ridicule or contempt. We considered but rejected the Youssoupoff definition for the same reason.

We considered but rejected the Faulks Committee definition. The phrase “likely to affect a person adversely” has a potentially wider ambit than reputational injury. Furthermore we feel that the term “reputation” should be central to the definition. Moreover, the phrase “in all the circumstances” is felt to be superfluous. The internal rules of defamation determine to what extent context is relevant to a defamatory statement.

We found the Australian proposal attractive, but considered that on balance a simpler definition is to be preferred and that part (a) of that definition might well encompass (b) and (c) of the same definition. However this formulation was favoured by the Boyle-McGonagle Report and the NNI Submission.

We also found the United States Restatement definition attractive, but again felt that a simpler definition would capture the injury to reputation which is necessary to a defamation action.

We accordingly favoured the wording of (1) the Annenburg proposal (2) Sim v Stretch (3) Scott v Sampson and (4) Quigley v Creation Ltd. The following are the possibilities for this part of the definition –

 

 

At present we favour a definition which defines the injury as simply “injury to reputation”. We believe that this more general definition covers the more particular instances of injury described by the Australian proposal and the Restatement definition.

(3) The standard by which injury or no injury is to be assessed

189.

(i) Objective standards

The traditional common law standard by which injury is measured is an objective one, represented by the “reasonable man”, the “average person”, “public esteem”“right-thinking people” or some other such phrase. In Part I we saw that these phrases presupposed a uniform community reaction on a particular topic, and that in response to the fact that community reaction is often diverse, recent Irish cases conceded that a statement would be defamatory if it injured reputation in the eyes of a class of the community or even one member of the community.

We believe that if an objective standard is the one by which reputational injury is to be measured, it should take account of differing views in the community.

While it is perhaps naive to suppose, as the Faulks Committee appear to have done, that the formulation “right thinking people” suggests some political bias, it is unquestionably somewhat dated. We are, accordingly, inclined towards a formulation which sets out the standard by which injury is to be assessed as (injury) “in the eyes of the community or a section thereof”.

190.

(ii) Other standards

We considered the possibility of abandoning an objective community standard and looked at certain other standards.

191.

(iii) Upholding the law

In the current law section we saw that a statement which imputes that the plaintiff upheld the law may not in law be considered defamatory. This does not flow from the application of a community standard but rather stems from the view that the law cannot condemn acts which are beneficial to it and therefore statements which impute the performance of such acts to an individual. We provisionally recommend that a provision be enacted stating that an allegation that the plaintiff upheld, complied with or assisted the law in any form shall not be considered defamatory.

The following examples illustrate the operation of each test:

 

 

The statement in example (1) is both false and damaging to X. The statement in example (2) is false but not damaging to Y. If anything, his reputation will be enhanced. The statement in example (3) is false; it will damage A's reputation in some sections of society, and not in others. The statement in example (4) is false but is non-damaging as a matter of law.

We favour the adoption of the test in parts (i) and (iii), but invite views on the alternative tests in part (ii). For the present, we recommend that injury be assessed according to damage “in the eyes of the community or a section thereof”, and that an allegation that the plaintiff upheld, complied with or assisted the law in any form shall not be considered defamatory”.

(4) Identification of the plaintiff

192.

The fourth issue which may be included in the definition of defamation is the issue of identification. Most definitions say that the statement must have been “of and concerning” the plaintiff.

In this respect we found the Restatement definition useful –

We would adopt this formulation in the following terms:

“Concerning” defined: Defamatory matter concerns the plaintiff if its recipient correctly or reasonably understood it to refer to the plaintiff.¹⁷

We accordingly provisionally recommend the following definition of defamation. However, we welcome views on this matter.

 

 

C. THE MEANING OF WORDS

The Intention of the Author

193.

The issue of defamatory meaning, in actions in the High Court, is one for the jury, whose view is supposed to represent how the ordinary man would understand the words in question. The judge first rules whether the words are capable of defamatory effect and then leaves it to the jury to decide if the words did in fact bear a defamatory meaning. The intention of the publisher in this context is not relevant.¹⁸

The Faulks Committee considered whether the intention of the publisher should be relevant to the issue of defamatory effect but rejected this conclusion. This would not only introduce a further complication for the jury, but would be a factor of which the original recipient of the statement would not be aware. If the defendant fails to convey what he meant by the words used, he has only himself to blame. While the Committee accepted that the same words may be understood differently by individual people, they felt that any change in this area would be more disadvantageous than the present system.

We feel that these considerations are appropriate. The author of a statement may choose the words he wishes to use. It would import an element of undesirable complexity and a potential for abuse to allow such a person to plead that the words were understood to convey a meaning different from the one he intended. The existing position encourages a publisher to choose his words carefully, so that defamatory imputations may not be read into them. We would not recommend any change in the law which would make relevant the author's view as to whether the words were intended to be defamatory.

18 See Part I, paras 6 and 7.

 

 

The Tribunal of Fact and the Defamatory Effect

194.

Since the issue of defamatory effect is for the tribunal of fact – the jury in the High Court, the judge in the Circuit Court – it is a general rule that the plaintiff or his witnesses may not be questioned as to their understanding of the words and the effect the words produced on them. However, in cases where special damage is claimed, questioning of this kind is permitted to establish actual damage. RTE complain that juries are not, and in their view cannot, be adequately warned that such questioning should not influence the “libel or no libel” question. They suggest, accordingly, that the jury be sent out to determine whether the statement was defamatory before the plaintiff starts to testify. Our provisional view, however, is against this proposal. If it were adopted, the jury in every case would be considering the “libel or no libel” issue in an artificial context. No doubt in relatively simple cases such a proposal would be practicable. In lengthier actions, however, one could not say with sufficient certainty that nothing which subsequently came to light could not legitimately weigh with the jury in considering the issue of “libel or no libel”. However, we invite views as to the merits of this proposal.

Composite Meanings

195.

The terms (a) natural and ordinary meaning, (b) popular innuendo and (c) legal innuendo were explained above.¹⁹ To recapitulate briefly, the ordinary and natural meaning of words is the direct, literal meaning of words. The popular innuendo is a meaning inherent in the words complained of which may require some explanation or clarification. The legal innuendo is the meaning which may be inferred from the words only with the aid of extrinsic facts.

Causes of Action

196.

A legal innuendo gives rise to a separate and distinct cause of action.²⁰ Thus, where words are defamatory in both their ordinary and natural meaning and in a legal innuendo sense, the plaintiff has two distinct causes of action. Technically, in such a case a plaintiff is entitled to two awards of damages. In practice only a single combined award of damages is made. The Faulks Committee recommended that a claim in defamation based on a single publication with or without a plea of legal innuendo should constitute a single cause of action giving rise to one award of damages only. The New South Wales Law Reform Commission thought the plaintiff should have a cause of action for each defamatory imputation published of him, but with a single award of damages in respect of all imputations. However, the Australian Law Reform Commission pointed out that as long as the plaintiff is required to draft his pleadings with sufficient particularity to inform a defendant of the case he has to meet, and all imputations are dealt with simultaneously by the selected remedies, the question whether there should

19 See Part I, paras 11 et seq.   20 Part I, para 19.

 

 

be one or more causes of action is not of great practical significance. That Commission recommended for the sake of simplicity that the law should provide that a single publication should give rise to one cause of action irrespective of the number of imputations contained therein. However, a statement containing numerous imputations could attract higher damages. We agree and provisionally recommend that a claim in defamation based on a single publication should give rise to a single cause of action, but invite views on this matter.

Pleading of Meanings

197.

Where the plaintiff intends to rely on a legal innuendo at trial, he must set out in his pleading the meaning which he attributes to the words. Usually, he will also set out the facts relied on to support this meaning. In England, this is a requirement of Order 82, rule 3(1) RSC. In Ireland, this appears to be a matter of practice. It is essential for him, however, to prove the extrinsic evidence at the trial.²¹

Where a popular innuendo is to be relied on at trial, it appears that in Ireland there is no obligation on the plaintiff to set out the meaning relied on. A series of cases in the Court of Appeal in England have altered the position there so that it appears to be necessary to set out such meaning if there is a doubt as to the meaning of which the plaintiff complains, or there is a need to crystallise the meaning in a long article.²² This is how the Faulks Committee understood the law as it stood in 1975.

In relation to the pleading of legal innuendos, the Faulks Committee noted that their Order 82 rule 3(1) did not require a plaintiff to specify the persons or class of persons to whom the extrinsic facts are alleged to be known. They felt that this should be made a requirement of the pleading. It would then be necessary for a plaintiff alleging that the words complained of were used in a defamatory sense other than their ordinary meaning, to give particulars of the facts and matter on which he relies in support of such sense and to give particulars of the persons or class of persons to whom these facts were known.

198.

We agree and provisionally recommend that there be a Rule of Court stating that where the plaintiff in a defamation action alleges that the words or matters complained of were used in a defamatory sense other than their ordinary meaning,

199.

The Faulks Committee noted that the precise limitations which the pleading of a popular innuendo imposed on the plaintiff's case were not settled, and accordingly made proposals for clarification. They recommended that where a popular innuendo was involved, the pleading of such a meaning should not be mandatory but that in doubtful cases it should be pleaded.

They felt, however, that where a suitable case for pleading a popular innuendo arose, it should be carefully controlled, for a number of reasons. Firstly, the introduction of a popular innuendo into the proceedings necessarily added a new complexity as to the meaning of words, and it was undesirable and expensive to allow popular innuendos to become elaborate and verbose. Secondly, since the purpose of the popular innuendo was to explain and not extend the meaning of the words, it would be fair to both parties that the popular innuendo should be construed within the scope of the publication which it seeks to interpret. The provision recommended by the Faulks Committee reads as follows:²³

200.

It is suggested that there be a new Irish Rule of Court incorporating the above recommendation with regard to popular innuendos.

23 Faulks Committee Report, para 119 (d).

 

 

D. PAYMENT INTO COURT

Admission of liability

201.

There is a distinction drawn in Order 22 Rule 6 of the Rules of the Superior Courts between actions for death, damages or admiralty actions on the one hand, and actions for libel or slander, inter alia, on the other. In respect of the former, the defendant may make a payment into court whether or not liability is admitted. It must, however, be stated whether liability is admitted or denied.²⁴ In respect of libel and slander actions, money may not be paid into court at all unless liability is admitted in the defence.²⁵ There does not appear to be any obvious reason for this distinction.

When the Defamation Bill was being debated in the Dail, Deputy J.A. Costello expressed his approval of the rule –

However this argument applies to all defendants, not merely those in libel

24 Order 22, rule 1(6).   25 Order 22, rule 1(3).

 

 

actions and therefore Mr Costello's view would seem to be more in the nature of a criticism of the payment into court rules in general. The argument, with respect, does not justify the distinction drawn between libel and other actions. The Boyle-McGonagle Report attacks the distinction in the following terms:

One may compare the English position. Originally, the rule on defamation actions was the same as the current Irish position. Under Order 22, rule 1, RSC 1883, there could similarly be no payment into court in a defamation action if the defence denied liability. This was substituted by RSC, (No.1) 1933 and amended by RSC (No.1) 1934; the new Order 22, rule 1(1) allowed payment with a denial of liability in all actions but in subsection (3) required that the notice of payment state where the liability was denied or admitted. This was omitted when Order 22, rule 1(3) was substituted by RSC (No 1) 1938 and does not appear in the modern RSC Order 22, rule 1(2).²⁷ The current English position is therefore that money may be paid into court in actions for libel and slander regardless of whether liability is admitted or denied, and there is no requirement that the defendant state whether liability is admitted or denied.

202.

We provisionally recommend that the rules on payment into court should be identical for defamation and other tort actions.

203.

It was noted in Part I that the Circuit Court Rules appear to allow payment into court without admission of liability in all actions.²⁸If the High Court rules are amended so as to allow payment into court with denial of liability in defamation actions, we recommend no change in the existing Circuit Court rules.

26 Report on Press Freedom and Libel, p 30, para 5.43.   27 Halsbury's Laws of England, vol 28, para 196, n 4.   28 Part I para 144.

 

 

E. APOLOGY

204.

Section 17 of the Defamation Act 1961 provides that a defendant may give evidence in mitigation of damage that he made or offered an apology to the plaintiff before the commencement of the action or as soon afterwards as he had an opportunity of doing so. It has been repeatedly represented to us that this section has the effect of making apologies appear as admissions of liability. It is clear that an apology is quite distinct from a correction, retraction or any form of admission that the publisher was in error. It is simply a matter of courtesy and draws the reader's attention to the fact that matter concerning the plaintiff is somehow in dispute. We agree that it should not be regarded as constituting an admission of liability. We accordingly recommend the following provision to replace the existing s17.

Apology

 

 

F. PLEADING OF WORDS “FALSELY AND MALICIOUSLY”

205.

The Faulks Committee recommended that the practice of pleading in the Statement of Claim the words “falsely and maliciously” should be treated as obsolete. As Winfield and Jolowicz point out these words in the Statement of Claim are a mere formality and are ignored, unless there is actual malice which is relevant to certain defences. There would seem to be no reason for retaining the words “falsely and maliciously” in the Statement of Claim and we accordingly recommend that this practice be discontinued.

 

 

CHAPTER 10: PRIVILEGED STATEMENTS

A. Absolute Privilege

206.

Absolute privilege is a protection afforded by law to statements made on certain occasions which the law considers to be so important that no action in defamation should be allowed in respect of them, regardless of the truth of the statement or the motives of the speaker. The categories of absolute privilege are set out above.

We propose to consider the policy arguments affecting the more important of these categories in detail, but before we do so, a fundamental question of principle must be addressed, namely, whether the concept of absolute privilege itself is justifiable. The conflicting arguments are most clearly illustrated when one takes the particular case of statements made in the course of judicial proceedings as contrasted with statements made during proceedings of quasi-judicial and administrative bodies.

In the first case, i.e. judicial proceedings, given certain conditions, the privilege under the present law is absolute. In the second, i.e. quasi-judicial or administrative proceedings, the position is less clear. Gatley takes the view that absolute privilege attaches to proceedings of quasi-judicial tribunals to the same extent as proceedings in courts. It could be argued, however, that the proceedings of a wider range of bodies should be protected. The Faulks Committee, for example, recommended the extension of the principle to the proceedings of formal hospital inquiries. This is merely one example of the range of proceedings that could potentially merit protection. But resolving the issue as to whether administrative bodies should attract absolute or qualified privilege necessitates a critical assessment of the concept of absolute privilege itself.

Let us see how the argument operates in relation to administrative bodies.

 

 

207.

An absolute immunity is conferred upon statements made in the course of judicial proceedings. It is but a short step to extend that immunity, by analogy, to statements made in the course of quasi-judicial proceedings. These bodies, the argument runs, operate in a manner similar to courts and they should accordingly benefit from the same privileges. It is when an extension to cover administrative bodies is proposed that we must pause and reconsider the reasons for extension. On one view, the reason for including quasi-judicial bodies within the privilege is because they are “like courts”. On this view, no further extension should be made because administrative bodies are not “like courts”. However, a prior question should be asked, namely, why the immunity was conferred on the courts in the first place. It is submitted that the rationale behind judicial immunity is that proceedings would be impeded if parties were unable to speak freely. If this is the real reason for the privilege, it can quickly be seen that many bodies, not quasi-judicial bodies exclusively, require such a privilege in order to function effectively.

If we accept this argument provisionally, how are we to list the bodies covered by the privilege? How is one to distinguish between the bodies that require the privilege and those that do not? It is suggested that any proposed formulation should have at its core the purpose of the privilege. Even if a list of bodies is drawn up, there should be an additional general formula stating, for example, that all bodies come within the privilege whose proceedings would be impeded by a lack of privilege.

208.

The formula suggested is merely a crude version to show that the original purpose of the privilege should be central to the definition. There is little merit in moving gracefully from analogy to analogy if the original purpose of the privilege is not borne in mind. An example of such an exercise is provided by the Hasselblad case.¹ The Court of Appeal examined the attributes of the European Commission and skilfully deduced that it was not a quasi-judicial body and it therefore did not fall within the principle of absolute immunity. However, it barred a defamation action in respect of a letter produced before that Commission because there was a “public interest” in assisting the Commission to carry out its duties. It is difficult to resist the conclusion that the Court of Appeal, having “analogised” the Commission out of the judicial sphere, was dissatisfied with the conclusion and wished to prevent defamation actions in some way because a lack of immunity would hamper the Commission in its duties. This supports the view that the purpose of the privilege should always be foremost in mind when considering extensions, and that a responsible statutory provision should make the purpose of the privilege apparent.

However, the matter does not end here. It must be remembered that while the extension seems logical, the privilege being extended is absolute. This should not be lightly undertaken. In an ordinary case of qualified privilege the speaker forfeits his privilege if he abuses the privilege. Why should a

1 Discussed at Part I, para 107.

 

 

statement made before an administrative body continue to have an immunity even though there has been what the average onlooker would call an abuse of the privilege? Indeed, pursuing this argument, why should a person speaking before a court, or in Parliament, continue to have an immunity when the average onlooker would feel there was an abuse? In short, it could be said that a privilege is there for a purpose, but that it should always be lost when the privilege is abused. There is something inherently disquieting about the notion of an absolute privilege which can never be defeated.

Looking at privilege from this point of view, the decision whether to place hospital enquiries, (Faulks Committee) or other enquiries set up by law or executive authority (ALRC Report) into the absolute privilege or the qualified privilege camp becomes an arbitrary decision. This is arguably because the notion of absolute privilege is unsatisfactory and clear abuses of privilege should be accounted for, irrespective of the location of their utterance. To put it crudely, there is an unfairness in the present situation, where one person can defame another in Parliament by abusing his privilege, and cannot do so before a county council, although the subject matter of the statement is identical.

209.

So far, two arguments have been made. The first is that the same privilege should attach to all proceedings requiring a wide latitude of speech. The second is that this privilege should always be defeated if it is abused. From one point of view, absolute privilege should be reduced to a qualified privilege across the board i.e. in the Oireachtas, in court proceedings, between members of the Executive, before bodies exercising judicial and administrative functions. However, the theory runs into practical difficulties. The most likely place for defamatory accusations to be aired is in the Oireachtas, and with the advent of televised proceedings, the existence of an absolute privilige is possibly a cause for concern. But this privilege is the least assailable of the occasions of absolute privilege since it originates in the Constitution. The ideal might be a Constitutional amendment reducing the privilege accorded to statements made in either House of the Oireachtas, but this is an unlikely possibility. In any event, one should not lightly disregard the importance in a democracy of having at least one forum where freedom of speech is absolute.

Accepting then that this occasion of absolute privilege will remain, the options are

 

 

If one were to accept the second option, it could only be on the basis that it was thought desirable to retain the concept of absolute privilege. Whichever option is adopted, one would have to determine where quasi-judicial and administrative bodies fit into the picture. If it is thought desirable to end the category of absolute privilege, save in the case of parliamentary privilege, leaving abusers of the various privileges to be dealt with under the law of defamation, it could be argued that the remedy of a correction order or a defamatory judgment might be more appropriate than damages.

Our present preference is for option (a), i.e. restricting absolute privilege to parliamentary proceedings and replacing it by privilege in the existing categories now attracting absolute privilege. We welcome views, however, on the general issue as to whether absolute privilege should be retained.

210.

We now proceed to examine the existing categories of absolute privilege which present special problems and we do so on the basis that our ultimate final recommendation may take the form of either option (a) or option (b).

(a) Utterances Made in Parliamentary Committees

Section 2(1) of the Committees of the House of the Oireachtas (Privilege and Procedure) Act 1976 provides that a member of either House of the Oireachtas shall not, in respect of any utterance, before a Committee be amenable to any court or authority other than the House of the Oireachtas by which the Committee was appointed. Section 2(2) goes on to establish a privilege in respect of the documents of a Committee, the documents of its members connected with the Committee or its functions, the official reports and publications of a Committee, and utterances in a Committee of members, advisers, officials and agents of the Committee. One notable exclusion from the section is witnesses Although McDonald² argues that witness statements are already absolutely privileged at common law, it might be advisable to clarify the law, as the common law position may not be settled. Deputy John Kelly said in a Dail debate:

Although this statement was made prior to the large measure of clarification achieved by the 1976 Act, we believe that the comments of Deputy Kelly are still relevant to the position of witnesses, who were not included in the 1976 Act. We provisionally recommend that s2(2)(c) of the 1976 Act be amended by inserting the words “or witnesses before” after the words “agents”.

2 Irish Law of Defamation, p 124–5.

 

 

(b) Statements made by one State Official to Another

211.

At present, these statements are said to be absolutely privileged at common law.³ It might be useful, however, to provide some guidance as to what communications are protected, and to what officials it extends. It may be noted that the Australian Law Reform Commission felt that such communications should attract qualified privilege only –

However it is interesting to note that the United States Restatement of Torts (Second) provides in section 591 that an absolute privilege exists in respect of communications made in the performance of official duties by (a) any executive or administrative officer of the United States or (b) a governor or other superior executive officer of a state.

212.

We provisionally recommend that there be a provision setting out the limits of executive privilege in respect of defamatory communications. We invite views as to whether this should be absolute or qualified, and to whom it should apply.

(c) Statements Made in the Course of Judicial Proceedings

213.

It is normally stated categorically that statements made in the course of judicial proceedings are absolutely privileged.⁵ However, it seems, firstly, that where a judge acts ministerially, absolute privilege does not apply.⁶ Nor does it apply where he acts in excess of jurisdiction and where the judge was aware that he was acting in access of jurisdiction.⁷

Secondly, it may be that irrelevancy or malice destroys the privilege of parties, witnesses and advocates.⁸Kennedy v Hilliard,⁹ and McCabe v Joynt,¹⁰ held that the malice does not defeat the privilege for witnesses. McDonald¹¹ argues that that a number of older authorities which pointed the other way were ignored

3 Dawkins v Lord Paulet, (1869) LR 5 QB 95; Chatterton v Secretary of State for India in Council, [1895] 2 QB 198.   4 ALRC Report, para 136.   5 Gatley, Libel and Slander, 8ed, para 383; Winfield and Jolowicz, Tort, 11ed p 333–4; Faulks Committee Report para 183(a); New Zealand Report, para 167; Australian Law Reform Commission Report, para 132.   6 See Part 1, para 102.   7 Ibid.   8 See Part 1, paras 103–106.   9 (1859) 10 ICLR 195.   10 [1901] 2 IR 115.   11 Irish Law of Defamation, at p133.

 

 

for policy reasons in Kennedy v Hilliard, and that a recent dictum of O'Dalaigh CJ in Re Haughey¹² supports the view that irrelevancy destroys the privilege of a witness. As regards advocates, in The Queen v Kiernan¹³ the privilege was defined as with a lack of good faith or motivated by malice. In The Queen v Hutchins¹⁴ slanderous remarks made at the conclusion of a case were held to fall outside the privilege. However, the Court of Appeal in Munster v Lamb¹⁵ held that the privilege was absolute and this was adopted by the New Zealand courts in Richardson v Harley.¹⁶It would seem that some clarification in this area is necessary

Judges

214.

The Faulks Committee referred to the principle of judicial immunity without mentioning the exceptions set out above, namely acts in excess of jurisdiction or ministerial acts.¹⁹ They declined to propose any change to the existing law. It is unclear under this proposal whether the two exceptions are covered by the privilege or not. However it may be that ministerial acts and acts in excess of jurisdiction are not considered to be judicial statements at all so that the privilege does not apply to them. The Faulks Committee thought that in cases of abuse of the privilege, the judge in question could be satisfactorily dealt with by Parliament or the Lord Chancellor. They did, however, consider a proposal put forward by Mr LJ Blom-Cooper QC. This suggested that judicial privilege should be neither absolute nor qualified, but a generic privilege, which would be lost if there was express malice, proved clearly and conclusively. However, the Committee felt that the absence of complaints indicated that there was no real problem in this area and declined to adopt this proposal.

It would seem desirable that the law should make clear whether the principle of judicial immunity includes ministerial acts of the judge and acts in excess of jurisdiction. It is of interest to note that the United States second Re-Statement of Torts (1977) provides as follows in s585:-

We believe that a provision of this general nature would probably be declaratory of the common law. Accordingly, we provisionally recommend that there should be a provision that a judge or other officer performing a judicial function and who is not knowingly acting without jurisdiction or performing a purely ministerial function should be absolutely privileged to publish defamatory

12 [1971] IR 217, 264.   13 (1855) 5 ICLR 171.   14 (1857) 7 ICLR 425.   15 (1883) 11 QBD 588.   16 (1911) 31 NZLR 464.

 

 

matter in the performance of that function if the publication has some relation to the matter before him.

(ii) Parties, Witnesses, Advocates

215.

The Faulks Committee considered whether the privilege of advocates should be withdrawn in cases of abuse of privilege. It decided that the rule of public policy “that advocates in appearing for a party in legal proceedings should do so with his mind uninfluenced by the fear of an action for defamation”¹⁷ was still valid and should not be modified.

As seen above, there is some doubt created by the cases as to whether absolute privilege attaches to all statements of a party, witness, or advocate in Ireland. If a similar view to the Faulks Committee were taken, i.e. that the privilege should have no exceptions, this would benefit from being set out in a statutory provision. However, the dictum of O'Dalaigh CJ in Re Haughey should be borne in mind.

216.

If it is felt that this is the better view, it must be remembered that parties and witnesses will usually have little knowledge of what is relevant, or of the constraints of the law of defamation. Advocates might be expected to know somewhat more; on the other hand, a person might be representing himself. Perhaps the easiest way to deal with this would be to treat parties, witnesses and advocates all alike. The onus should be on the plaintiff alleging that defamatory words were spoken of him in the course of judicial proceedings to establish an abuse of the occasion. A defamation action should only be brought in clear cases.

It is noteworthy that the United States Restatement of Torts (Second) provides as follows in section 586 –

17 Faulks Committee Report, para 200.   18 [1971] IR 217, at 264. Emphasis added.

 

 

A similar provision in respect of “parties to judicial proceedings” is provided for in section 587, and for “jurors” in section 588. Accordingly the privilege would be forfeited if the publication bore no relation to the proceedings. However, malice would not defeat the privilege. We favour these proposals and therefore recommend that statements made by parties, witnesses, advocates and jurors should be absolutely privileged provided the matter bears some relation to the legal proceedings in question.

(d) Communications between Solicitor and Client

217.

We noted in our discussion of the present law that it has been held in England that such communications are absolutely privileged, but that the correctness of the decision has been doubted. The New Zealand Committee noted that only qualified privilege attaches to such communications in Scotland and recommended that this should also be the law in New Zealand.

218.

The law undoubtedly requires clarification in this area and our provisional recommendation is that there should be a provision that communications between solicitors and clients should attract qualified privilege only. It would also seem reasonable that the same should apply to communications between counsel and client.

 

 

B. QUALIFIED PRIVILEGE

219.

The occasions which attract qualified privilege are set out in detail above. They may be broadly summarised as falling into three categories:

1. MALICE

220.

A showing by the plaintiff that the defendant was actuated by malice will destroy the privilege. This means malice in publishing the defamatory words of the plaintiff. It is not sufficient to show that bad relations existed between the parties, because the defendant may still have published the words believing them to be true or without any improper motive. It was submitted earlier in this Paper that the judgment of Lord Diplock in Horrocks v Lowe¹⁹ accurately sets out the common law criteria governing the malice element in the defence of qualified privilege. These were identified as follows:

(i) Proposals to clarify the common law element of malice

221.

The Faulks Committee recommended that the term “malice” be dropped and that a provision be enacted stating that the defence of qualified privilege shall be defeated “if the plaintiff proves that the defendant in making the publication complained of took improper advantage of the occasion giving rise to the privilege”. The burden of proof was left on the plaintiff.

The New Zealand Committee recommended that the term “malice” be dropped, but that the provision should be slightly broader. The defence of qualified privilege would be defeated where it was shown that “the defendant was actuated by spite or ill-will or where it is proved that the defendant took any other improper advantage of the occasion of publication giving rise to the privilege”. The burden of proof was left on the plaintiff.

A variant on each of these proposals would be to place the onus of proof on the defendant. These should be phrased in positive terms. Thus the first variant could require the defendant to show that he “used the occasion giving rise to the privilege for its proper purpose”. The second variant could require the defendant to show that “he published in good faith and used the occasion for its proper purpose”.

It will be remembered that at common law two other factors could destroy the defence of qualified privilege. Firstly, if the communication is made to persons without an interest in the subject matter the privilege is lost. This is known as excess of communication. Secondly, if the matter included irrelevant statements, this could destroy the privilege. It was observed in Part I that it was unclear whether irrelevancy destroyed the privilege in its own right or whether it destroyed the privilege because it was evidence of malice.

The view advocated by Duncan and Neill was that irrelevancy could destroy

the privilege on both grounds. Neither the Faulks nor the New Zealand Committee included either of these elements in their formulation. However, the next formulation considered does a number of things. It includes the elements of relevancy and excess of communication; it defines malice in a broader way than either of the two definitions examined so far; and it places the burden of proof on the defendant. This is the definition of the Australian Code States. It requires the publication to be in good faith and defines good faith as follows:

222.

The Australian Law Reform Commission thought that this formulation suffered from “most of the defects” of the common law rules, but did not elaborate as to what these were. However, it went on to introduce another factor into the equation, namely the dilemma as to whether a person comes within the privilege where he passes on matter knowing it to be false but stating his opinion as to its accuracy. It was seen in Part I that there is some controversy as to whether such a communication should benefit from the privilege, although Lord Diplock's statement in Horrocks v Lowe would include such a communication within the privilege.²⁰ The Australian Law Reform Commission thought that such a communication should come within the privilege and offered the following definition:

The alternative of showing “reasonable conduct” is open to a defendant who feels he has a duty to pass on a statement which he knows to be untrue. The definition does not provide for the elements of excessive communication or

20 See above, Part I, para 117.

 

 

irrelevancy.

223.

The final definition offered is that of the Annenburg Washington Program Report on Libel:

This formulation covers the issue of excess of communication since the privilege is forfeited if the defendant deliberately publishes to persons without an interest in the communication. A variant on this would be to provide that the privilege is forfeited if the defendant deliberately or recklessly publishes to persons without an interest in the publication, for a defendant might communicate matter to a group not caring in the least whether or not it is constituted of interested parties only, but this would not be deliberate publication to disinterested parties. The issue of relevancy is not covered by the provision. Malice is replaced with a provision forfeiting the privilege if the defendant knows or is reckless as to the falsity of the statement. This has the merit of clarity and simplicity, but it might be considered too narrow as it excludes other types of improper motive such as spite or ill-will.

224.

Having considered the various proposals on a provision replacing the common law term of “malice” in the context of qualified privilege, we wish to propose our own hybrid definition incorporating aspects of several of the above proposals. We have included the following issues in our definition of the circumstances in which a qualified privilege is deemed abused and forfeited: (1) replacement of the term “malice” itself; (2) inclusion of a provision stating that irrelevancy destroys the privilege, (3) inclusion of a provision stating that excess of communication destroys the privilege, (4) inclusion of a provision stating that a lack of belief in the truth of the statement will not destroy the defence if the defendant acted reasonably in making the publication, (5) inclusion of a provision stating where the burden of proof is to lie – in this respect we have opted for the common law position, leaving the burden of proof in the plaintiff to show that the privilege was abused. Our proposal is set out in full following some comments on “joint malice” in the context of qualified privilege.

(ii) Qualified privilege and joint malice

225.

Under existing law the presence of malice defeats the defence of qualified privilege. Where there are two or more defendants, malice on the part of one does not destroy the defence of qualified privilege for another,

unless that other is vicariously liable for the malice of the first. This is provided under s11(4) of the Defamation Act 1961.

It was already suggested that the application of s11(4) should be extended to slanders as well as libels, or, if the two entities are merged into one tort, to “defamation”.

226.

We believe that s11(4) should be repealed and that a provision on joint malice relevant to qualified privilege should be included in an “abuse of privilege” section relevant to qualified privilege. It is clearer and simpler to have all the rules on abuse of qualified privilege alongside each other. We accordingly recommend the following provision on abuse of qualified privilege:

“Forfeiture of Qualified Privilege

(iii) Abolition of the malice element in the defence of qualified privilege

227.

The New Zealand Committee considered a suggestion that the defence of qualified privilege should not be defeated by motives of ill-will or spite at

all. It was argued that if the public interest is the rationale behind the privilege, the motive of the speaker is irrelevant. The New Zealand Committee rejected this argument without much consideration:

While we agree with the conclusion of the New Zealand Committee, it is felt that the argument put to it was not met. An argument will be made to show how motive may be relevant even though the rationale of the defence is public interest. It is proposed to achieve this by contrasting the malice element in the defences of privilege and comment.

228.

It will be argued that the malice element in relation to the defence of fair comment could be discarded.²¹ However, it is not felt that the same considerations are appropriate to the defence of qualified privilege. The defence of comment, it will be argued, is based on the content of the statement (an opinion), and should not necessarily be defeated where subject-matter is published by an author with malicious intent. However, the protection afforded by the defence of qualified privilege is not based on the content of the statement, but on the occasion of its making. In a sense, it is a protection afforded by the law so that everyday life may continue without being punctuated by defamation actions. This is why it is said that the privilege is for the “public interest”. The privilege is a concession which should be properly availed of. Once it is abused, in a broad sense, the protection should be withdrawn. If the speaker introduces irrelevant material, or publishes to persons without an interest, or makes statements in bad faith and with the purpose of injuring the plaintiff, we see no reason for the law to protect him.

The presence of the malice element in relation to both defences of privilege and comment is deceptive in that it implies that they are similar. We feel that because of the different reasons for these defences, the extent of their protection should not be determined by the same factor. It is suggested that there should be a presumption in favour of freedom of speech in the case of opinion statements and the question is, “Should malice lose the defendant his defence?” With privileged statements, there is no such presumption, and the question is the reverse; “Why should a malicious defendant be protected?” Why is there a difference of presumption? The expression of a wide range of opinions is part and parcel of a democracy, and any restrictions on such statements should be carefully imposed and justified solely on the basis that statements forfeiting that protection do not contribute to the overall aim of free and useful speech in society. By contrast, there is nothing inherently

21 See below, Section III Opinion Statements at p278.

 

 

valuable in a privileged statement per se; the reason for its protection is to allow business, private life and public affairs to be conducted smoothly. The protection of the statement is contingent upon its advancing this aim, and accordingly the defence is strictly construed.

229.

Accordingly, it is submitted that it would not be inconsistent to abolish the malice element in relation to the defence of comment and retain it in relation to the defence of privilege. We favour its retention in the defence of privilege. However, the term “malice” should be dropped and the various proposals for reform outlined should be considered.

2. THE COMMON LAW CATEGORIES OF QUALIFIED PRIVILEGE

230.

The first issue to be considered in the context of the common law categories of qualified privilege is whether they should be codified, in other words whether there should be a provision defining the factors which must be present in order for an occasion of qualified privilege to be established. The New Zealand Committee did not favour such a proposal. It noted that the ambit of the common law defence of qualified privilege was broad and difficult to define or categorise with certainty, because the law defined the relationship of publisher and recipient in terms of common interest, duty and interest, corresponding interest, requests for information, remedies for grievances and replies to attacks. They felt that any attempt to codify this area of defamation would not only be difficult, but also undesirable.

231.

We have already made proposals for the reform of the malice element in the defence of qualified privilege. We feel that it would be more coherent to place such a provision alongside a statutory definition of qualified privilege and further, that since all the other defences will be defined, we should recommend a definition of qualified privilege. We agree that the common law occasions of qualified privilege are numerous and diverse; however we feel that the elements of “duty” and “interest” are common to them all and that a broad definition focusing on these two factors would retain the flexibility of the common law while providing a framework within which these occasions may develop. The Australian Commission favoured codification. However as they were dissatisfied with certain aspects of the definition at common law, their definition was not merely declaratory of the common law. We will consider these changes below. For the moment we propose the following definition, loosely based on the Australian proposal, which is declaratory of the common law:

Sub-section 3 is declaratory of the common law rule that there is no media qualified privilege per se and that there is no “duty” on the part of the media to convey information on matters of public interest to its readers in the sense employed by the defence of qualified privilege.

232.

The Australian Law Reform Commission looked at the requirement of reciprocity of interest or duty on the part of the speaker and recipient, and the requirement of actual interest or duty on the part of the speaker and recipient. It analysed these two components and recommended reform in the following terms:

233.

This proposal is therefore that reciprocity of interest is not necessary, and that only the recipient should have an interest or apparent interest, but that they speaker need not have any interest. The speaker will not lose the defence by reason only that he had no duty or interest (unlike the common law). However he must act reasonably in all the circumstancess.

The Australian Law Reform Commission continued:

234.

This proposal is therefore that lack of actual interest on the part of the recipient alone will not defeat the defence. It is sufficient if the recipient had an interest or apparent interest, and the speaker had reasonable grounds for believing the recipient to have such interest or apparent interest.

235.

The section on qualified privilege in the draft bill set out by the Australian Law Reform Commission embodies these reforms. It is a somewhat difficult provision, and for clarity, we will place at its head two provisions which might have made the effect of the provision clearer. These are indicated by the square brackets.

[A. The defence of limited privilege shall not fail by reason only of the fact that the defendant had no duty or interest in communicating information of the kind contained in the allegedly defamatory matter.

B. The defence of limited privilege shall not fail by reason only of the fact that the recipient had no actual interest in receiving information of the kind contained in the allegedly defamatory matter.]

It must be carefully noted that “interest” and “duty” in subsection (1)(b) includes “apparent interest” and “apparent duty.” Otherwise subsection (1) makes no sense.

236.

At its simplest, the net result is that the following conditions must be met to establish an occasion of qualified privilege under the above proposal:

237.

The following illustrates how the defence might work.

Example 1 Solicitor A wishes to complain about Doctor B to the correct professional body (the facts of Hynes – Sullivan v O'Driscoll). Solicitor A complains to the wrong professional body. At common law, the communication is not privileged, because the recipient body had no actual interest in receiving the complaint. However, under the proposal this would not be fatal to Solicitor A's defence. If Solicitor A had reasonable grounds for believing that the body had an interest in the matter, and the body had an apparent interest in the matter, Solicitor A would have a defence if his

conduct was reasonable in all the circumstances.

Example 2 Solicitor A hears from Solicitor B about the misconduct of Doctor C in a case dealt with by Solicitor B. Solicitor A takes it upon himself to report the misconduct to the correct professional body. At common law, the communication would not be privileged, because Solicitor A has no interest or duty to make the communication. Under the proposal, this factor would not be fatal to the defence. Since he reported to the correct body, the interest of the recipient is not an issue. He could succeed in his defence if he convinced the court that he believed the matter to be true, or that his conduct was reasonable in all the circumstances. He might, for example, fulfil the latter requirement by showing that Solicitor B was away on holidays when Solicitor A realized that the time limit on the complaint which B intended to make would run out while B was away.

Example 3 Solicitor A hears from Solicitor B about the misconduct of Doctor C in a case dealt with by Solicitor B. Solicitor A complains to the incorrect professional body. Based on an amalgamation of the analysis of examples one and two above, Solicitor A could succeed in making out a defence.

238.

We have seen that the Australian Law Reform Commission proposals concerned both (1) the reciprocity element of duty and interest in the defence and (2) the actual interest or duty required by the common law. In the significant case of Hynes – Sullivan v O'Driscoll, the Irish Supreme Court rejected an argument for a reform of the defence in relation to aspect (2) above i.e. the rule requiring actual interest or duty on the part of the recipient to receive information of the kind in question. A complaint concerning an individual was made to the incorrect professional body. The reform of the common law rule proposed was that actual interest on the part of the recipient body should not be necessary, and that it should suffice if the defendant “honestly and reasonably” believed the recipient to have an interest. The Supreme Court rejected the proposed reform and retained the common law test of actual interest. We will now examine the case in some detail.

The case arose out of the giving of evidence by the plaintiff psychiatrist in matrimonial proceedings. The plaintiff was unwilling to give evidence in these proceedings, and the defendant solicitor caused a sub-poena to be served on her. The plaintiff attended the court in Dublin, and returned home after the parties settled the action. She claimed £300 as payment of her fees for attending court, and refused to furnish particulars as to how she had calculated that sum when so requested by the defendant.

The plaintiff subsequently wrote to the Incorporated Law Society asking about guidelines on the issue of sub-poenas to professional people, complaining that the defendant had acted in a reprehensible manner and asking for their help in obtaining the payment of the fees. The Law Society sent a copy of this letter to the defendant and the defendant wrote a reply, in the course of which he accused the plaintiff of duplicity and described her as holding scant

regard for professional ethics and the solemnity of the law. He also stated that when he informed the plaintiff of his intention to serve her with a sub-poena, she replied that she would send him a sick note. He stated that she had attempted to avoid service of the sub-poena and that she was obsessed with payment of her fees. The defendant then sent a copy of this letter to the Irish Medical Association together with a cover letter stating that (a) the plaintiff was willing to falsify a medical certificate, (b) the plaintiff lacked integrity as demonstrated by her complaint against the defendant, and (c) that the plaintiff had demanded exorbitant fees for her attendance in court.

The IMA replied that they had no function in relation to the defendant's complaints and that they should be re-addressed to the Medical Council. The plaintiff subsequently wrote to the latter body in similar terms.

The plaintiff brought an action for libel in respect of (1) the letter written to the Law Society, (2) the letters sent to the IMA and (3) the letter sent to the Medical Council. The defendant pleaded justification, but this issue did not arise on appeal. The parties agreed that the sending of the letters to the Law Society and the Medical Council were occasions of qualified privilege, and the only question on appeal was whether there was evidence of malice in regard to these two communications. However, the Supreme Court had to decide whether the letter to the IMA attracted qualified privilege. Counsel for the defendant argued that although reciprocity of interest was absent, the occasion was still one of qualified privilege because the defendant honestly and reasonably believed that the IMA had such an interest.

Henchy J rejected this submission for a number of reasons. Firstly, the submission ran counter to two Supreme Court decisions; Reilly v Gill²² and Kirkwood-Hackett v Tierney.²³ Although the point was not specifically addressed in those cases, the court's decision in those cases was based on the assumption that a qualified privilege could not exist unless the person communicating the statement had a duty or interest to make it and the person to whom it is made had a corresponding duty or interest to receive it. Henchy J thought that such a “clearly held and repeatedly expressed opinion” should not be overruled.

Secondly, Henchy J was of the view that Article 40.3.1° of the Constitution would not be fulfilled if a right to defame were recognised on such a “purely subjective basis”. He stated that “the constitutional priorities would be ignored if the law considered an occasion of qualified privilege to depend only on the honest opinion of the communicator as to the existence of a right or duty in the other person to receive the communication”. In this part of his judgment, Henchy J was referring to a proposal that would allow qualified privilege if the defendant “honestly” (but not reasonably) believed the recipient of the statement had an interest to receive it. He went on to give arguments

22 [1951] 85 ILTR 165.   23 [1952] IR 185.

 

 

against a more objective test, namely, whether the defendant “honestly and reasonably” believed the recipient to have an interest in the statement.

Henchy J was not satisfied that this formulation would be suitable for the wide variety of relationships covered by the defence of qualified privilege. He accepted that while limited exceptions to the existing rule might be desirable, the “general rule suggested may prove to be unsuitable or unjust in certain cases”. He also thought that it would be unsatisfactory to overrule a previous decision of the court, when the point at issue had merely been argued ex parte in the present case.

Furthermore, the proposed reform would be more suitably effected by statute and after consideration by the Law Reform Commission. Finally, the proposal would not benefit the defendant in the case before the court, because the defendant could not, on the facts, be said to have acted reasonably. In this context, Henchy J took into account the fact that the defendant was a solicitor of eleven years standing.

McCarthy J thought that the defendant's proposal was “attractive”, but that it overlooked the plaintiff's constitutional right to his good name. As the defence of qualified privilege was in itself an infringement of this right, its existence should be clear to all parties. This would not be the case if the victim of a defamatory letter of complaint should have the determination of his course of action hinge on the honest and reasonable belief of the publisher, which could only be determined in court:

Finlay CJ thought that if the principle urged by the defendant were adopted, “it would quite clearly be fundamental to any principle so developed that a person volunteering such a statement would take the utmost care in ascertaining as to whether the person to whom he was communicating it had an interest or duty to receive it”.

239.

This Supreme Court decision has been criticized by Marc McDonald.²⁴ One of the points of criticism is that the Supreme Court failed to address the defence as a whole, in particular the following issues:

24 Non Media Qualified Privilege, (1989) DULJ 94.

 

 

It is disappointing that the author did not analyse (1) and (2). We suggest that the social purpose which the law seeks to protect through the defence of qualified privilege includes a contribution to the harmony of social relationships and the passive diffusion of confrontation and anger within such relationships. The rationale is that in the many relationships of every day life – social, familial, work related, disciplinary – people say unfriendly things about each other and friction arises. The law's response is that these matters should be resolved in an informal way, and that persons should have the elbow room to speak in an informal setting without ending up in a court of law. If every defamatory remark about another could end up as a court case, it is rather unlikely that we would have a world of golden tongued saints, but rather a minefield of legal disputes. Ordinary every day speech would become artificially stunted and the law would be promoting the degree of friction within such relationships. Therefore the law affords qualified privilege in such instances and possibly contributes to informal methods of resolving disputes and harmony in every day life.

240.

These are the basic ideas behind the defence of qualified privilege. It can of course be argued that defamatory statements in a certain context – such as a complaint to a disciplinary body – are of a rather more formal nature and should not be within a privilege. This does not negate the underlying rationale of the defence but rather calls for tighter and better definition thereof.

However, the fact that McDonald does not detail some of the social purposes he has in mind may perhaps account for his view of the defence taken throughout the article, and reflected in his setting out of “the nature of the defamer's interest in seeking to serve the social purpose” as a matter to be considered. As he points out himself, the social purpose behind the defence “can obviously not, usually, be served merely by a freedom to speak defamatory untruths for their own sake. The speaker's need to speak must, therefore, be connected in some ways with the relevant social or whatever purpose is supposed to be served”. The point apparently overlooked here, and firmly intertwined with the purposes of the defence, is that the defence of qualified privilege (and that indeed of absolute privilege) is rooted in the premise that what the defendant said was untrue. The basic attitude is: “You

said something nasty about Mr Smith, but given the context in which you said it, it is not the type of statement that should be litigated in court. So we don't really care if it was true or not”. With absolute privilege, this is the basic idea of the defence, although the “context” is of a different type to the “context” of an occasion of qualified privilege. With qualified privilege the attitude would continue: “Although we don't really care if it's true or not, we do care if you said it maliciously”.

This can be contrasted with McDonald's statement that “[The] speaker will usually think that what he says is connected with the social purpose. But, his belief that the statement is true cannot effect the objective question of whether the statement serves the social purpose or not. If the speaker knew the statement was untrue before he spoke, he would have to accept that speaking it would not serve the purpose”. The weakness is that McDonald believes that the social purpose inherent in the defence of qualified privilege is the telling of the truth. This is surely incorrect. The social purpose of the defence of qualified privilege lies in keeping certain matters out of court. The only defence in defamation law which has for its purpose the promotion of truth is jusification.

241.

McDonald suggests that the rationale of the defence is that if the speaker did not have elbow room to speak untruths, he would not speak at all. We would suggest, however, that the idea is that if the speaker did not have elbow room to speak untruths, he would end up in court.

242.

McDonald's assumption that the speaking of truth is the object of the defence again emerges where he says:

We think that this illustrates an incorrect understanding of the defence of qualified privilege.

The proposal urged upon the Supreme Court was in respect of only one aspect of the defence of qualified privilege i.e. the requirement of actual interest on the part of the recipient. As we have seen, the Australian proposal extended a number of features of the defence. A middle ground is suggested by McDonald. He examines two proposals: (a) that the defence would be made out where the recipient has no actual interest but the speaker honestly and reasonably believes that he had, and (b) that the defence would be made out where the speaker had no actual interest but the speaker himself

honestly and reasonably believed that he had.

McDonald is not convinced that either proposal is fairer than the present “actual interest” (or “objective”) test. However, he says, if a choice is to be made between the two, (b) would be a more equitable reform than (a), because “at least” in this situation, “there is the possibility that the recipient might otherwise have been legitimately interested in receiving the statement”, whereas in situation (a) “there is the certainty that the statement has been made to someone who is not interested in receiving it”.

In fact this analysis of (b) is inaccurate, because if (b) alone is enacted, there is a certainty that the statement was made to someone who is interested in receiving it. This is because if (b) only is enacted, the requirement that the recipient had an actual interest remains untouched.

Neither is McDonald's earlier statement entirely accurate, to the effect that the Australian Law Reform Commission recommended that a defence be afforded to a defendant who honestly but reasonably thought himself entitled to speak even though such was not the case. In fact the Australian Law Reform Commission dropped entirely any reference in the defence to the defendant's interest or duty to speak, and substituted instead the requirements that he believed the matter to be true or that his conduct was reasonable in all the circumstances. A defendant acting “reasonably in all the circumstances” is not quite the same as a defendant who “honestly and reasonably but mistakenly” believes he is entitled to speak.

243.

Conclusions

244.

Our proposed enactment in relation to qualified privilege would be as follows–

The common law rule denies privilege to publication for reward, which would otherwise attract the defence. The Australian Law Reform Commission criticised this for being at odds with modern commercial practices and

 

 

recommended that credit bureaus should have this protection. The primary consideration should be the legitimate interest of the recipient in the information, not whether the statement was made for reward. The Faulks Committee recommended that the “publication to the subscribers by a credit bureau or agency (whether commercial or non-profit making) of matter issued in the ordinary course of business of the agency should be protected by qualified privilege.”²⁵ The Australian Law Reform Commission preferred to make the basis of its proposal clearer: “The defence under this section does not fail by reason of the fact that the matter was published for fee or reward.” We favour the view that the presence of a fee or reward should not destroy the defence and favour the provision of the Australian Law Reform Commission.

3. CREATING A DEFENCE OF FAIR REPORT

245.

Attention should be drawn to one important feature of the Australian Law Reform Commission's proposal on qualified privilege. Having considered and rejected the arguments for a media qualified privilege, they excluded the media altogether from the defence of qualified privilege.²⁶

The Australian Law Reform Commission then went on to create a separate defence of Fair Report. The media would therefore be excluded from the defence of qualified privilege, but would be entitled to avail of the defences of Fair Report, Comment and Justification. The essence of the defence of Fair Report is to pull together all the proceedings and statements which may be reported by the media. In Ireland, the media's rights of reporting are scattered throughout the Defamation Act,²⁷ the Constitution²⁸ and the common law.²⁹ Most of the reporting rights are seen as instances of qualified privilege. We provisionally recommend the adoption of a similar defence in order to give clarity and coherence to the Irish law on press freedom.

Firstly, it is difficult for a reporter to know the exact limits of his reporting rights without a thorough knowledge of defamation law. Secondly, there are inconsistencies in that some reporting rights are absolute e.g. reports of Parliamentary utterances and perhaps s18, while others are qualified. Thirdly, reporting of matters of public interest is an exercise which should be controlled by considerations which are not necessarily the same as the considerations governing other instances of qualified privilege. For example, reports of the matters contained in the Second Schedule to the Defamation Act 1961 lose their privilege if they are made with malice. However, malice

25 Para 242(m).   26 In order to draw a distinction between the media and other publishers, the defence was limited to publications made to a particular person or particular group of persons. Lest there be an argument that all the readers of a newspaper constitute a “group”, the proposal provided that persons were not to be regarded as constituting a particular group by reason only of the fact that they received particular published matter.   27 Sections 18 and 24.   28 Reports of Parliamentary utterances.   29 Reports of court proceedings, which overlaps with s18.

 

 

may not be the most appropriate criterion where the reporting by a newspaper of a Minister's statement is concerned, whereas it may be more relevant where one employee complains to his employer about a fellow employee. It is therefore proposed to examine the approach of the Australian Law Reform Commission in relation to its defence of Fair Report.

The Australian Law Reform Commission considered that although a list of proceedings which may be reported was useful, no list could cover all proceedings and statements which are of legitimate public concern. Accordingly, they set out a list of such proceedings and statements and provided in addition a more general provision catching all remaining matters. Crucial to this provision is the idea of an “attributed” statement i.e. a statement made by another published by the defendant. We may ultimately make a recommendation to the same effect. We shall therefore examine the existing list of matters which may be reported. Accordingly, it is proposed to postpone the examination of the Australian list and its general provision, and examine as a prior matter the list of matters contained in the Second Schedule of our Act in order to see how it might be improved upon. This will have to be undertaken whether or not a defence of Fair Report is favoured.

4. STATUTORY QUALIFIED PRIVILEGE

246.

Under existing Irish law, fair and accurate reports of certain matters are protected by privilege under Section 24 of the Defamation Act 1961. The privilege may be defeated by a showing of malice, and there is a further requirement that the matters be of public concern and the public benefit, and not prohibited by law. The matters of which reports are protected are set out in Schedule II to the Act; those contained in Part I of the Schedule are privileged without any explanation or contradiction, those in Part II are privileged subject only to an explanation or contradiction.³⁰

A number of reforms to the list of matters contained in Schedule II have been suggested as follows–³¹

We invite views on all of the above suggestions.

The Australian Proposal of Fair Report

247.

Having examined the internal changes of detail that might be made to s24 of our Defamation Act, it is now proposed to examine the Australian defence of Fair Report. It will be remembered that the Australian Commission proposed a list of matters whose proceedings would be subject to privilege, together with a more general provision designed to capture remaining matters not encompassed by the list. This general provision also sets out the restrictions upon the right. If the amendments to s24 suggested are adopted, this would obviously serve as a list for this purpose.

The Australian list is as follows:

The reporting of these matters was made subject to two conditions. Firstly, the report should be fair and accurate. Secondly, in all but three cases, the publisher should afford the defamed person a right of reply.

248.

The additional general provision incorporates the following features:

249.

The entire defence of fair report proposed by the Australian Commission is as follows:

Section 11 referred to in the section concerns defamation of a deceased person. Schedule I referred to in the section was set out earlier in full.

Notably, the list of proceedings given by the Australian Commission is very similar to that contained in our Schedule II. We could broaden some of our provisions slightly, and add the general provision. The defence of Fair Report would be a defence in its own right, rather than a form of qualified privilege. It would be subject to internal restrictions appropriate to the media, and it would be clear and easy for the media to know what may be published.

250.

There is one further complication. The matters which may be reported under s24 of our Defamation Act are supplemented by the Constitutional privilege of reporting parliamentary utterances, and the privilege of reporting court proceedings, which is governed by s18 of the Defamation Act. If the defence of Fair Report is adopted, it is suggested that the reporting of court

proceedings should be included within it, rendering s18 redundant.³⁶ As a Constitutional amendment would be highly unlikely and indeed is of no urgency, the fact that the reporting of Parliamentary utterances would remain absolute would be an anomaly within an otherwise coherent framework on media reporting.

251.

It is noteworthy that the Annenburg Washington Programme Report made a recommendation which is broadly similar to the Australian defence of Fair Report. Section 5 of the Draft Bill provides:

The Report explains the effect of this section as follows:³⁷

36 This could be achieved, as was done by the Australian Law Reform Commission, by referring to the reporting of matters contained in the list of absolute privilege.   37 Annenburg Washington Program Report, p 22.

 

 

252.

The main features of the Annenburg proposal are identical to the Australian proposal. However, it omits several elements. The first is that there is no requirement that the report be reasonably contemporaneous with original publication. The second difference between the two proposals is that the Australian provision requires the publication to have been “reasonable” in all the circumstances. It was already pointed out that the Australian Commission was itself reluctant to introduce this element into the defence. The third difference is only apparent. The Australian proposal requires the defendant to afford the plaintiff an opportunity of reply (in all but three cases). However the Act drafted by the Annenburg Program provides for such a right elsewhere among its provisions, although not specifically included in the section on Neutral Reportage.

We feel that the rights of reporting statements made by others should be brought under an umbrella defence of fair report governed by its own restrictions. We invite views as to whether this should be achieved by means of a list of matters alone (the approach of s14 of the Defamation Act 1961), or by means of a list of matters supplemented by a catch-all general provision. We tend to favour the latter approach. However we feel that providing the identity of the speaker may afford too wide a protection and suggest that it might be limited to statements attributed to “the proceedings of legally constituted bodies”, “persons speaking in an official capacity” or some other such formulation.

We invite views on the creation of an umbrella defence of Fair Report.

5. FAIR AND ACCURATE REPORTS OF JUDICIAL PROCEEDINGS

253.

At common law, there is a privilege accorded to fair and accurate reports of judicial proceedings, which is defeated upon a showing of malice. It is irrelevant by whom the matter was published, and when it published. Gatley describes the common law privilege as follows:

Although the Irish Constitution specifically confers protection on reports of parliamentary proceedings, it confers no immunity on reports of judicial proceedings. These are governed by section 18 of our Defamation Act. This accords a privilege to fair and accurate reports of judicial proceedings by newspapers and the broadcast media provided the reports are published contemporaneously with such proceedings. Section 18 is not merely declaratory of the common law privilege. It differs from it in a number of respects; (a) it extends to court proceedings in Northern Ireland as well as the Republic, whereas the common law privilege applied only to reports of court proceedings held in the domestic country;³⁹ (b) it imposes a requirement that the publication be contemporaneous, which was not imposed at common law; (c) it is restricted to media defendants, whereas at common law it was never so confined; (d) it may also differ in nature. It is not clear whether this statutory privilege is absolute or qualified. McDonald⁴⁰ sets out the arguments for both sides. The net result appears to be that although it was intended that this privilege be absolute, the failure to include the word “absolute” has resulted in the privilege being a qualified one.

254.

We recommend at least four reforms to s18 of the Defamation Act. First, there appears to be no reason for limiting the range of defendants who may avail of the defence. In practice, media organs are the primary reporters of court cases. However, other important users of the privilege include legal text writers, who at present apparently rely on the common law privilege. We therefore recommend the extension of the privilege to all defendants. Second, we see no reason for requiring the report to be “contemporaneous”. Although it may be argued that it is unfair to take up old court cases against people, no such principle applies generally to “old” truths raked up against people. We therefore recommend the abolition of the requirement of contemporaneity. Third, we recommend that the nature of the privilege be clarified. Fourth, s18 refers to reports “publicly heard” before a court. This prevents the reporting of the judgement of in camera proceedings even though the judgment itself is made public. We recommend that s18 be reworded to include reports of “proceedings publicly heard or judgment made public by” any court within the

38 Gatley, Libel and Slander, 8ed para 428.   39 Except where the proceedings of the foreign court are closely connected with the administration of justice in the domestic country –Webb v Times Publishing Co [1960] 2 QB 535.   40 Irish Law of Defamation, at p 171–3.

 

 

section.

255.

In the course of our examination of s18, we envisaged one problem of interpretation that might arise in relation to the words “fair and accurate”. Is it an “accurate” report if a journalist correctly records matters which occurred on the first day of trial (such as the bringing of three charges against the accused) but neglects to report matters which occurred on subsequent days (such as the dropping of two of the charges)? Arguably he gave a “fair and accurate” report of the proceedings on the day in question. We believe that if this is the case, it is unfair. If the trial had lasted only a day, it would not have been “accurate” if the journalist had failed to record that two of the charges were dropped. We see no reason for allowing him to do so merely because the “proceedings” in the fullest sense of the word continued for a longer period. While media organs may argue that they cannot check the outcome of every case of which it commenced reportage, we would reply that one should not commence reporting a case unless one is prepared to follow it through to the end. Otherwise serious libels may occur. We therefore provisionally recommend that s18 be rewarded to make it clear that “proceedings” mean the full proceedings in any given case.

256.

We should finally like to note a proposal made to us in the course of our visit to the offices of one national newspaper. It was observed that many simple errors of identity and fact in the reporting of court proceedings could be avoided if copies of the charge sheet were supplied to media reporters. At present, the making available of charge sheets to journalists appears to be discretionary, whereas it seems that in Northern Ireland the practice is to make them available as a matter of course. We believe that charge sheets should be made available to journalists present in court at judicial proceedings and invite views as to whether any problems would arise from this change in practice.

Recapitulation on Qualified Privilege

257.

The area of qualified privilege is in many ways the most difficult area in defamation law. While the defences of justification and comment focus on the content of the statement, qualified privilege attempts to capture all the occasions where the defendant author should have some, but not too much, latitude of speech. With such an ambitious aim, small wonder then that it is at present a patchwork of duty-interest relationships and statutory interventions, with the malice element overshadowing every defendant, whether a newspaper reporting a statement made at a county council meeting or a father commenting on his daughter's future husband.

A large number of reforms have been considered. However, the area of qualified privilege can be seen as straining in three directions. Firstly, it is attempting to cover media reportage of events of public interest. The defence of fair report would pull out all these situations into a coherent, internally controlled defence. Secondly, it is catering for the common law type situation,

the employer-employee, father-daughter, complainant-complainee relationship; in short the multiplicity of situations that arise in everyday life where one person asks for or offers an opinion about another. The category of qualified privilege should be retained for this purpose and its limits clarified. Thirdly, a further confusion is caused by the media who wish to use this category as a foundation on which to build a defence to solve their problems of proving truth, which suggestion is considered below.⁴¹ We will put forward the view that such a defence would strain the concept of qualified privilege and if adopted, should be a separate defence centred on public interest and not viewed as a category of qualified privilege. It will be remembered that public interest is not crucial to the initial concept of qualified privilege.

41 See section IV, Factual Statements, 311–6.

 

 

CHAPTER 12: STATEMENTS OF OPINION

Introduction

258.

Most theories of freedom of speech recognise the importance of the distinction between factual assertions and expressions of opinion. The essential theoretical point of difference between the two forms of expression is that facts are capable of objective proof while opinions, comments, value judgements and criticisms are not. Although the jurisdictions discussed in this report – common law, European and United States – varied widely in their treatment of freedom of speech, one uniform principle emerged from each country, namely that the defences in respect of factual statements were invariably more stringent than the defences for opinion statements.

259.

In the United States, for example, where factual statements on matters of public interest are accorded a wide protection, particularly in relation to public figures, the protection for opinions is wider again; the prevailing view is that expressions of opinion are non-actionable. In common law jurisdictions the privilege accorded to opinions under the defence of fair comment may be contrasted with the stringent requirement of proving truth in respect of factual statements. In the European countries discussed by an Interights Study¹ (France, Germany, Netherlands, Belgium, Norway, Sweden, Denmark, Greece) defamatory statements of fact were protected by either absolute or qualified privileges, none of which required the proof of truth. Indeed, given the nature of this form of expression, such a requirement would be impossible to fulfil. This principle is stated succinctly in the celebrated case of Gertz v

1 European Court of Human Rights, Lingens v Austria, Third Party Intervention of the International Press Institute in Application No. 12/1984/84/131 of Counsel: The International Centre for the Legal Protection of Human Rights (Interights). Interights is located at 5–15 Cromer St, London WC1 8LS.

 

 

Welch²–

A similar statement was made by the European Court of Human Rights in Lingens v Austria–

The wide freedom given to expressions of opinion is justified on a number of grounds. We consider it useful to examine these briefly in order to place our defence of fair comment in context. We believe that a re-examination of the reasons for protecting opinions will be helpful in determining the limits of fair comment and deciding whether reforms of this defence should be recommended.

260.

The first justification for a wide-ranging protection for opinion statement is based on freedom of opinion as an individual liberty. Accordingly we find Professor Rodney Smolla stating that –

261.

The second theory focuses not on the individual but on society and the role of opinions in a democracy. Self-governance is meaningful only if the citizen has a range of viewpoints from which to choose. Official limitations on opinions limit the citizen's access to information and therefore his choice, and to this extent his role in self-governance is diminished and that of official organs is increased. Perhaps the most famous exponent of this view is Meiklejohn, who explained that freedom of speech was –

2 [1974] 418 US 323.   3 Series A No. 103, 8 EHRR 407.   4 Smolla, Dun & Bradstreet, Hepps and Liberty Lobby: A New Analytic Primer on the Future Course of Defamation, (1987) 75 Geo LJ 1519, 1539.   5 A. Meiklejohn, Free Speech and Its Relation to Self-Government (1948), p. 88.

 

 

This basis for freedom of expression has been repeatedly adopted by the United States Supreme Court e.g.

The German Constitutional Court has also recognised this justification for wide freedom of speech, stating that freedom of expression is –

A Danish writer expresses this rationale in similar terms –

262.

The third rationale for the wide protection given to opinions is that society is engaged in a pursuit of truth, to which the competition of ideas is essential. Christenson, the Danish writer cited above, refers to this aim –

The United States Supreme Court is also a proponent of this view, employing the “marketplace” metaphor to describe an intellectual centre for exchanging ideas so that a long-term process of evaluation and re-evaluation will produce more truth. That a short-term clash and competition of ideas and opinions is necessary to more long-term goals is well-expressed by the US Supreme Court in Cohen v California–

6 Whitney v California, 274 US 357, 375 per Brandeis J. (1927).   7 Landmark Communications v Virginia, 435 US 829, 838 (1978).   8 Luth case, Bveuf GE 7, 198, 208 (1958).   9 Christenson, Bent. Free Speech for Public Employees in Denmark, 26 Scandinavian Studies in Law, 39–75 (1982) at 64.

 

 

It may be noted that the tradition of using the “marketplace” metaphor was initiated by Holmes J. in Abrams v US¹¹ and is generally attributed to the writings of John Stuart Mill.

263.

These, then, are the justifications for the wide protection afforded to opinions; the role of opinions in self-governance, the role of opinions in pursuit of truth, and the role of opinions as an expression of individual liberty. All of these emphasise that the content of the statement is what gives the statement its value. This may be contrasted with privileged statements, which are afforded protection not on the basis of their content, but due to the occasion on which they were published. It is also to be contrasted with factual assertions, whose content is not necessarily of value; rather certain types of factual statement are of value, namely truthful ones. We believe that the fact that the content of an opinion is what gives it value is important to bear in mind when considering the limits of a defence such as fair comment.

10 403 US 15, 14–5 (1971).   11 250 US 616, 630 (1919).

 

 

A. FAIR COMMENT¹²

264.

The defence of fair comment is open to any individual and protects freedom of expression on matters of public interest, where the statement complained of by the plaintiff is a comment. At common law, the conditions of the defence were fulfilled if it were established that;

The defence protects defamatory statements of opinion and not defamatory statements of fact. Defamatory statements of fact must be defended by the defence of justification or privilege.

265.

Reform of the defence of fair comment is discussed under the following headings:

(1) Title (2) Supporting Facts (3) Mangena v Wright (4) Malice (5) Joint Malice (6) Fairness (7) Base and Dishonourable Motives (8) Rolled Up Plea (9) Aggravated Damages (10) Abolition of Action for Comments (11) Matters of Public Interest.

12 Discussion by the reform bodies may be found as follows: ALRC Report paras 127–131, NZ Committee Report paras 137–165, Faulks Committee Report paras 147–177.

 

 

(1) Title

266.

The Faulks Committee, the New Zealand Law Reform Commission and the Australian Law Reform Commission all recommended that the defence be renamed simply “Comment”. The adjective “fair” was considered misleading considering the nature of the defence, which may actually protect unfair comments, given that an honest but prejudiced opinion may be considered unfair by an objective standard. As long as the comment is published honestly and is not inspired by malicious motives the comment will be regarded as fair. As the New Zealand Law Reform Commission stated:

It is thought, however, that the title “Comment” might give the misleading impression that all comments are protected. In fact, there is a major restriction on the types of comment that will be protected, because of the requirement that it be based on fact. A more accurate title would be “Comment based on Fact”. This immediately calls to mind the main elements of the defence and emphasises the restriction of factual basis. When other elements of the defence are retained, removed or modified, there is a tendency to forget that the comment must always be based on fact. It is therefore suggested that the defence of Fair Comment be renamed Comment or Comment based on fact.

(2) Truth of Supporting Facts

267.

At common law, the facts supporting the comment must be stated or indicated in the matter complained of. The general rule is that the facts supporting the comment must be true.¹³ A distinction appears to have arisen at common law between facts contained in the defamatory matter and facts located outside the defamatory matter. A rigid rule was applied to facts contained in the defamatory matter so that the failure of the defendant to prove any of these facts would be fatal to the defence. A more relaxed rule was applied to facts located outside the defamatory matter, so that the defence could succeed even if some of the facts were untrue. It appears that proof of even one of the facts would be sufficient in this case, provided the comment was supported by this fact.¹⁴

The Porter Committee, examining the law in 1948, did not refer to any such

13 This rule is subject to one exception known as the rule in Mangena v Wright on which see below, para 277.   14 Kemsley v Foot [1952] AC 345. See also para 84, Part I above.

 

 

distinction. It criticised the rigidity of the rule requiring each and every fact supporting the comment to be proved true. It wanted to achieve a position under which the defence would succeed if the gist or sting of the facts supporting the comment were proved true.¹⁵ It made its recommendation in the following terms:

It seems that this reform was to be limited to cases where the facts were contained in the defamatory matter, due to the reference in (a) to “statements of fact contained in the alleged libel”. However, it is possible that the Porter Committee did not take cognizance of the distinction at common law at all.

It is also important to note that the wording of part (a) of the provision envisages a weighing-type operation. If the unproved statement of fact adds materially to the reputational injury, the defence will not succeed; if it does not add materially to the injury, the defence will succeed (subject, of course, to the defendant also complying with the requirements of part (b)).

268.

Following this, there appeared in the English and Irish Defamation Acts an identical provision, which reads as follows:

This section did not, however, give precise effect to the Porter Committee recommendation. Most importantly, it is thought, no weighing operation appears to be envisaged by the section. If the comment is fair comment having regard to the facts proved, the defence should not fail merely because all the other facts have not been proved. Yet this is not made conditional

15 Porter Committee Report, para 89.   16 Ibid, para 90.   17 Section 23 of Defamation Act 1961 (Ireland), section 6 of Defamation Act 1952 (England).

 

 

upon the unproved facts adding no further material injury to reputation. It would seem that even if the remaining unproved facts do materially injure the plaintiff's reputation, the defence of fair comment will still succeed. This is clearly a departure from the intent of the Porter Committee. It also represents a contrast with a similar provision introduced in the context of justification, namely s22.

269.

Secondly, part (b) of the Porter Committee provision referred to the honesty of the defendant in making the comment. The common law cases had given such a wide latitude to the term fair that unfairness would only be found where there was dishonesty. Presumably the Porter Committee wished to solidify this position by use of the term “honestly”. However, s 23 requires the expression of opinion to be “fair comment” having regard to the proven facts. This leaves room for doubt. Perhaps the common law interpretation of “fairness” should be read into the section. On the other hand, it is possible to argue that this introduces a new statutory standard of objective fairness, which would restrict the defence considerably.

Section 23 suffers from another ambiguity, indeed the same doubt inherent in the Porter Committee provision. How does the section square with the distinction set out in Kemsley v Foot between facts located within and without the defamatory material? Does the section apply to facts within the material only (supported by the first two lines of the section) or does it embrace facts wherever located (supported by the phrase “facts alleged or referred to”)? The answer is open to argument.

Surprisingly, when the Faulks Committee examined the provision in 1975, it assumed that it did give effect to the Porter Committee proposal in the sense that it allowed the defendant to prove the substance of the facts:

It has been argued already that a correct reading of the section allows the defendant much more latitude. The defendant may succeed if he proves some of the substantial facts to be true, even if the remaining unproved facts are equally substantial.

The Faulks Committee did recognise, however, that the section might be understood to be limited in application to the case where the facts were contained in the matter complained of. For this reason, they recommended

18 Porter Committee Report, para 172.

 

 

a new section which would allow the defendant to rely on any facts in support of the comment. The proposal reads as follows:

It will be noted that this formulation avoids the problem posed by the phrase “fair comment” in s23, namely whether honesty is to be equated with fairness, or whether some other test is used. Here the necessary connection between the proven facts and the comment is that the facts are “relevant and afforded a good foundation” for the comment. This confines the section to the issue of supporting facts and does not involve the issue of fairness at all, which is presumably left to the common law.

270.

However, the proposal does not address what seems to us to be the primary difficulty with the section. If the defendant proves facts which are relevant and provide a foundation for the comment, it does not matter that other relevant, and perhaps, important facts have been left unproved. The Porter Committee wished the defendant to prove the substance or sting of the facts. Under the Faulks proposal, the defendant may succeed without proving the substance of the facts. Suppose the defendant lists a series of grave charges against the plaintiff and makes a derogatory comment. Under the Faulks proposal, if he proves only some, or possibly even one, of these charges and the necessary connection between the charge and the comment, his defence will succeed. Yet because of the unproved charges he can in no way be said to have proved the substance of the facts. In this respect the Faulks proposal does not give effect to the intent of the Porter Committee.

NEW ZEALAND

271.

The New Zealand Law Reform Commission recommended a similar amendment to their existing equivalent section, but worded it differently –

The wording in part (b) may cause confusion because breaking down the section, the result is a two-fold rule:

This achieves the same result as the Faulks proposal. It solves the problem concerning the location of facts. However, the defendant may still succeed in his defence, although he has left some facts unproved. These facts may be substantial, they may cause material injury or not; the section appears indifferent to such unproved words.

AUSTRALIA

272.

The Australian Law Reform Commission adopted a different formulation. It will be recalled that in relation to the defence of justification, the Australian Law Reform Commission recommended that the truth of facts should be considered proven if the defendant showed that the facts “were in substance true or in substance were not materially different from the truth”.

The same formulation was adopted for the proof of the truth of facts in support of the defence of fair comment, and in addition it was stated that the comment should be based on –

These are alternatives, it shall be emphasised.

20 New Zealand Committee Report, para 146.

 

 

273.

This proposal operates in a clear and simple way. Firstly, it is clear that it applies to supporting facts wherever located. Secondly, it requires the defendant to prove the substantial truth of these supporting facts. We believe that this proposal gives effect to the intent of the Porter Committee to the extent that it requires the defendant to prove the substantial truth of supporting facts.

Conclusions

274.

We believe that a provision on supporting facts in the context of fair comment should be clear on two points:

It is quite possible for a provision to apply one rule on the extent of proof required to facts within the publication, and another rule with regard to facts outside the publication.

275.

Let us summarise the response of other reform bodies. The Porter Committee wished the defendant to prove substantial truth, but did not clarify whether its proposal applied to facts wherever located. The Faulks Committee made clear that its proposal applied to facts wherever located and required the defendant to prove sufficient facts to support the comment. This is surprising because it thought that it was giving effect to the Porter Committee's intent. The New Zealand proposal applied one rule to facts within the publication and another to facts outside the publication. Where the facts were within the publication, the defendant was required to prove only sufficient facts to support the comment; where the facts were outside the publication, the defendant was required to prove substantial truth. The Australian Commission required the defendant to prove the substantial truth of facts wherever located.

Our view is that in relation to facts located outside the publication containing the comment, the defendant should be required to prove only sufficient facts to support the comment. It is unrealistic to hold him to a higher degree of truth.

In relation to facts set out in the publication containing the comment, we reject the view that the defendant be required to prove each and every fact, as he did at common law. We considered both remaining options i.e. proof of substantial truth, and proof of sufficient facts to support the comment. We feel that the latter requirement is more in harmony with the ratio of the defence of fair comment.

 

 

276.

Concluding that section 23 of the Defamation Act 1961 is ambiguous and unsatisfactory, we provisionally recommend its replacement by the following provision:

277.

We have deliberately used the phrase “publication containing the comment” so that the section applies even if the plaintiff sues on foot of only a part of the publication. We have used the phrase “expressly or impliedly referred to” in part (a)(ii) because the defendant may have referred to facts in a most indirect manner, but in a case where there is no doubt that the facts alluded to are known to the recipients of the matter. We have abandoned the more stringent requirement of proving substantial truth and opted for the proof of sufficient facts to support the comment. We have deliberately excluded any issue of “fairness” as this is a separate issue and will confuse the matter if dealt with under “proof of supporting facts”. We emphasise that the provision recommended covers truth of supporting facts only and would be part of a general provision on (fair) comment.

(3) Mangena v Wright

278.

There is one common law exception to the rule that the truth of supporting facts must be proved in order to succeed in the defence of fair comment. In Mangena v Wright,²¹ Phillimore J. defined the exception as applying to facts contained in a privileged document. More recently the exception was stated to apply where the facts were previously published on a “privileged occasion”.²²

The Australian Law Reform Commission proposed that this rule be embodied in legislative form. Clause 13 of the proposed legislation set out the requirements that (a) the matter be comment, (b) the facts be referred to in specified ways, (c) that the facts be true in substance or “(ii) had previously been published by some person mentioned in the circumstances mentioned in section 14”. Section 14 of the proposed Bill consists of a list of the

21 [1909] 2 KB 958 and see supra paras 83 and 84 of Part I.   22 London Artists v Littler [1969] 2 QB 375, 395 per Edmund Davies LJ.

 

 

instances of absolute privilege. The Australian Law Reform Commission commented:

It had been noted in Part I that the ambit of the rule in Mangena v Wright was unsettled at common law. The Australian recommendation solves this problem by equating statements which do not require proof of truth in the defence of fair comment with statements which attract absolute privilege.

279.

The rule in Mangena v Wright may be seen as a limited recognition of a corollary to the rights of reportage. If a defendant is entitled to report privileged statements without having to prove their truth, he must be allowed to comment on such reported statements. The Australian proposal has the merit that it allows a defendant to comment on any statement which is made on an occasion of absolute privilege: it therefore settles the contours of the protection which at common law are uncertain, and provides an easy method of identifying these contours. We provisionally recommend a statutory provision based on the rule in Mangena v Wright. At the minimum this should allow the defendant to avail of the defence of fair comment where the comment was supported by facts published on an occasion of absolute privilege.

280.

However we feel that if our interpretation of Mangena v Wright is correct i.e. that a person is entitled to comment on what he reports, this principle applies to all privileged reports and not merely reports that are absolutely privileged. We appreciate that a general right to report is not recognised in Irish law and that such a right is assembled in rather a piecemeal way from sections 18 and 24 of the Defamation Act, and the Constitutional provisions. Elsewhere in this report we consider the possibility of putting these reporting rights together under an umbrella defence of fair report governed by its own considerations and not necessarily defeated by malice, as the qualified privilege reporting rights under s24 currently are. We invite views as to whether the exemption from proving the truth of supporting facts should be extended to all cases where the facts were published on an occasion in respect of which the defendant has a right of fair report or in the absence of a generalised defence of fair report, all cases where the facts were published on an occasion of absolute or qualified privilege. We feel that if reporting rights are left in their current forms, such an exemption would be difficult to operate; but favour such an exemption if an umbrella defence of fair report is created.

(4) Malice

281.

The element of malice is a factor which adds complexity to the defence of fair comment. Where malice is alleged, a two-stage enquiry unfolds. First, the court must establish whether the comment was fair, according to an objective standard. Here the burden of proof is on the defendant. If it is

satisfied that the comment was fair, it goes on to consider whether the defendant was actuated by malice, involving a subjective enquiry to the state of mind of the defendant. Here the burden of proof is on the plaintiff. Malice in this context is wider than its lay meaning. In the words of the Faulks Committee, it covers “any indirect or improper motive which may have actuated the defendant in making the comment complained of, so that as a result the comment is not a genuine expression of his opinion but a counterfeit”. The defendant must have been actuated by malice when making the statement; it is not sufficient for the plaintiff to show there was bad blood previously existing between them.

282.

It has been seen that the House of Lords in Horrocks v Lowe²³ clarified the meaning of the term “malice” in relation to qualified privilege. If the view of Duncan and O'Neill that the rules set out by Lord Diplock in that case are equally applicable to fair comment is correct, the governing criteria may be set out as follows:

(i) Reform of the Malice Element

(a) Where the defendant is the author

283.

The reform bodies recommended the retention and clarification of the malice element in the defence of fair comment. As the Faulks Committee stated;

The New South Wales Defamation Act 1974, following upon a recommendation by the New South Wales Law Reform Commission on Defamation in 1971, contains a provision which focuses on the honesty of the defendant. The Act provides, in section 32(2), that the defence of fair

23 [1974] 1 All ER 662.

 

 

comment shall be defeated if it is shown that at the time when the comment was made, the comment did not represent the opinion of the defendant.

The Faulks Committee adopted an almost identical wording, inserting the word “genuine” into the formulation in order to emphasise the essential issue at stake. It will be remembered that at common law the plaintiff was required to prove malice on the part of the defendant. Consistent with this, the Faulks Committee recommendation left the burden of proof on the plaintiff to show that the opinion expressed was not the defendant's genuine opinion.

284.

The New Zealand Law Reform Commission felt that the burden should be reversed for two reasons; firstly, because if a defendant pleads fair comment, he should be prepared to testify as to his honest belief; and secondly, because it was preferable that a statutory provision be drafted in a positive rather than a negative form. The resulting provision read:

285.

Placing the burden of proof on the defendant has the merits of logic and simplicity. As the Australian Law Reform Commission says:

The Australian Law Reform Commission similarly advocated that “genuine expression of opinion” should replace malice as the criterion for testing the motive of the author. “Genuineness of opinion” is not synonymous with the motive of the author. The following passage may be quoted –

24 ALRC Report, p 69, n 39.

 

 

This passage refers to a footnote which contains the following statement –

286.

It is interesting that although the Australian Commission and the Faulks Committee recommended similar provisions on malice, they differ as to the effect of such a provision. Let us distinguish between three types of case; (1) the genuine opinion simpliciter, (2) the genuine opinion where the defendant was actuated by spite or ill-will, (3) the genuine opinion where the defendant was not actuated by spite or ill-will, but there is evidence of ill-will between the parties generally.

From the passage quoted above, it is clear that the Australian proposal was intended to protect all three categories of genuine opinion. However the following passage from the Faulks Report shows that this Committee thought that the defendant in category (2) would not be able to avail of the defence:

It may be that the Faulks proposal went further than was intended by that committee. If 'genuine opinion' is the sole test, a defendant in category (2) will be protected as the Australian Commission recognised, since a defendant may hold a genuine opinion and still be actuated by spite.

287.

If it were thought that a malice-type element in the defence of fair comment should be retained, the formulations discussed have the advantage of clarity and simplicity and are recommended. If the best course appeared to be to exclude from the defence the defendant within category (2), it should probably include a phrase such as “any other improper motive.” However, it might also be thought desirable to abolish this element of the defence altogether. This option is discussed below.²⁵

25 At p278.

 

 

(b) Malice where the publisher is not the author

288.

Where the publisher is not the author, he may be placed in a delicate position if he publishes a statement of opinion with which he disagrees. Under existing law, this may result in a finding of malice on his part. In Cherneskey v Armadale Publishers²⁶ a majority of the Supreme Court of Canada held that a newspaper and its editor could not sustain a defence of fair comment, where it had been proved that the words used in a letter to the paper were not an honest expression of their opinion and there was no evidence as to the honest belief of the writers.²⁷

289.

RTE highlight the difficulties of the present position in their submission.

290.

The Faulks Committee recommended that book publishers, newspaper proprietors and others who publish the opinions of authors with which they may disagree should be safeguarded. The onus of proof was again left on the plaintiff to show that the opinion was not believed by the defendant to be the genuine opinion of the author. Section 5(2)(b)(ii) of the Draft Bill provided that where the defendant is someone other than the author, the defence of comment would be defeated –

291.

The New Zealand Law Reform Commission recommended a similar type of provision, but reversed the burden of proof, so that the onus is on the defendant to bring himself within the scope of the defence;

26 [1978] 90 DLR (3d) 321.   27 This case is set out in detail at para 149 Part I.   28 Part of an RTE submission to this Commission.   29 New Zealand Report, para 152.

 

 

292.

Both of these provisions make the defence hinge on the belief of the defendant as to the genuineness of the author's opinion. However, a more objective standard was adopted by the Ontario Legislature.

293.

The British Columbia Report on Defamation noted that in Canada response to Cherneskey has been overwhelmingly critical. In its Annual Report in 1979 the Law Reform Commission stated –“It seemed totally wrong in principle that the law should stifle freedom of expression and debate on important issues by encouraging the media to publish only opinions with which they agree.” The Uniform Law Conference swiftly amended the Uniform Defamation Act in 1979 to overrule the decision. The British Columbia Commission examined the various legislative models of the various provinces and that of the Uniform Act. It recommended the following provision –

Which of these provisions is the most appropriate to solve the problems posed by Cherneskey? The Ontario model, which allows the defendant to succeed if “a person could honestly hold the opinion” presents difficulties. This was probably meant to exclude outrageous opinions that no-one could possibly honestly hold. However, on another view, a person could honestly hold any

30 SO 1980, c 35, s 2, now s 25 Libel and Slander Act, RSO 1980, c 237.

 

 

opinion. If so, the provision is so wide as to impose no restriction at all, and if this is desired, it should be stated in plainer terms. Alternatively, the requirement that a “person could honestly hold the opinion”, being an objective standard, could be used to impose the court's view of reasonableness by the back door. This matter should be dealt with, if at all, under the “fairness” element of fair comment, rather than the “malice” element. For the same reasons paragraph (b) of British Columbia provision is not favoured.

294.

The Faulks and New Zealand Committee proposals are identical except for the burden of proof. This particular issue will be resolved according to the placing of the onus of proof of 'malice' or rather, honesty, generally in the defence of fair comment. The test hinges on whether the defendant believes the opinion to be the genuine opinion of the writer. As far as such tests go, it is satisfactory. However, on one view it merely emphasises the artificiality of enquiring into the honest belief of the writer. Where a newspaper or other person published the opinion of another, does the law really care whether it is a genuine opinion? Arguably the merit of the opinion is that it contributes to public discussion and the belief of the defendant is really irrelevant. The British Columbia provision is similar in that it focuses on the defendant's knowledge in relation to the writer's opinion, but its wording makes it easier for the defendant publisher to avail of the defence because it is quite clear that he does not have to make enquiries as to the writer's belief. Indeed, under that provision it is hard to see the defendant being liable unless he actually knows the opinion is not honestly held by the writer and deliberately publishes despite this knowledge.

295.

The British Columbia provision also imports the interesting requirement that the writer be identified. It accepted that this would deny the protection of the provision to those who publish anonymous opinions. Some debate centred around the fairness of this result in relation to “NWBR” (name withheld by request) publications. However the Commission thought that to protect such statements would require further refinements of procedure in an already complicated area and declined to do so.

If a criterion of “genuine belief” is adopted as a replacement for malice, it is thought that the Faulks, New Zealand and British Columbia proposals are the most useful in relation to the present situation. However if the malice element were abolished altogether, such a provision would of course be unnecessary.

(ii) Abolition of the Malice Element

296.

None of the reform bodies cited discussed at any length the possibility of removing the element of “malice” or “genuine opinion” from the defence altogether. Some of the members of the Faulks Committee were inclined to favour the abolition of the concept of malice (as opposed to the word malice) from the defence, but in the end agreed with the majority that malicious critics should be unable to avail of the defence which is available to honest

critics. It is a matter worth considering whether the defence of comment should depend at all on the presence or absence of genuine opinion on the part of the defendant. The idea that malice destroys the defence of fair comment has become so firmly entrenched that this point seems to have been overlooked.³¹

At the outset of our section on opinions, we set out a number of theories justifying a wide protection for expressions of opinion. We emphasised that unlike the defences of justification and privilege, the defence of fair comment is based on the value of an opinion per se, because of the contribution of the content of the opinion to democratic debate and public discussion. It is arguable that malice should not defeat this defence because the state of mind of the defendant is an irrelevant inquiry where the protection of the statement is based on its content.

297.

It must be remembered that removal of this restriction would not enlarge this defence to any great extent, due to the existence of the other major restriction, the requirement that the comment be based on true facts. The present position under which malice plays a role means that if A and B put forward the same opinion based on true facts, one will fail to obtain the protection of fair comment if he was inspired by malicious motives. This is not necessarily desirable if the justification for the protection is based on the content of the statement, in other words that it contributes to public debate. Furthermore, difficulties are encountered in attempting to illustrate malice, and, particularly where the defendant is not the author, this becomes a somewhat artificial enquiry. For example, if A, a newspaper, publishes an opinion expressed by B, a contributor, in its letter columns, on the basis that the opinion puts forward a view interesting to public debate, it may seem arbitrary to render A liable simply because B was malicious; this is particularly so when one bears in mind that another contributor, C, might have submitted the same opinion without malice. We accept that some people might find distasteful a theory of law that gives protection to statements made in order to inflict injury. On the other hand, it is not necessarily inconsistent to protect malicious statements if the justification for protecting such statements in the first place is due to its content: for example, a true statement of fact made maliciously will not render the publisher liable. In this case, the reason for protecting truthful statements is based on their content and malice is not considered relevant. In the same way it is arguable that because of the rationale underlying the defence of fair comment, the state of mind of the publisher is not a relevant enquiry. We therefore at present currently favour the view that malice in any form should not defeat the defence of fair comment, and recommend the abolition of the common law rule that “malice” defeats the defence of fair comment. However we welcome views on this issue.

31 The European Court in the Lingens case considered that a wide latitude should be given to statements of opinion. The distinction based on malice at common law might not allow sufficient latitude – See below, para 323 et seq..

 

 

(5) Fair Comment and Joint Malice.

298.

Under existing law, the defence of fair comment may be defeated by a showing of malice on the part of the defendant. A problem arises where two or more parties are responsible for the publication, and only one of them was actuated by malice. Does malice on the part of one publisher destroy the defence for the others? The answer is provided by section 11(4) of the Civil Liability Act 1961, which provides that where there is a joint libel in circumstances normally protected by fair comment, inter alia, the malice of one person shall not defeat the defence of the other, unless that other is vicariously liable for the malice of the first.

299.

One problem with the wording of this section is that it excludes slanders. These are therefore left to be governed by the common law under which the malice of one party to the publication automatically destroys the defence for the others responsible for the publication.³²The section should be reworded at least to the extent that slanders and libels are treated alike. If the distinction between libel and slander is abolished, the section could be re-worded so as to refer to a “joint defamation”.

300.

A more difficult problem with the section is in relation to the word “malice”. At this stage it is not clear whether the concept of malice will be retained in any form, or if it is, what form it will take. Clearly if the concept of malice itself is abolished, there will be no need for a provision on joint malice in relation to fair comment at all. If the concept of malice is retained, but in a different form, the wording in section 11(4) would require to be re-worded.

301.

For example, the Faulks Committee proposal was that the defence of fair comment should be defeated if it is shown that the comment did not represent the genuine opinion of the defendant. Section 11(4) would need to be re-written along the following lines:

32 Although the common law position was altered in England in Egger v Viscount Chelmsford [1965] 1 QB 248. The statement of Lord Denning MR at p.265 appears wide enough to cover slanders, although the facts of the case involved a libel. See above, Present law, para 146.

 

 

It may be noted that section 11(4) applies also to the defence of qualified privilege. It has been discussed separately in that context above.³³

(6) Fairness of Comment

302.

The restriction on protected comment represented by the malice element exists because fair comment developed originally as an offshoot of privilege. Once this restriction is questioned it becomes appropriate to examine the other restriction on comment not yet considered, namely the fairness of the comment. If it is felt that some restriction upon comment is desirable, it is felt that a more logical way to achieve this is to focus on the content of the statement, since this is the basis of the defence. The law's protection could be made contingent upon the comment being “fair” in the eyes of the court. This would inject new life into the original title “Fair Comment”. The new criterion would be reasonableness. It will be recalled that at common law the word “fair” in the title “fair comment” is not equated with “reasonable”.³⁴“Fair” has been given a much wider latitude. The test is whether “a fair man, no matter how prejudiced he may be, however exaggerated, or obstinate his views” would have said what was said.³⁵ This test may be confusing to a jury. A fair man is by definition not prejudiced or obstinate.

303.

However, the Faulks Committee took the definition one step further and adopted the statement of Lord Porter in Turner v MGM to the effect that the word “honest” should be substituted for “fair”.³⁶ The definition then states that a comment is protected by the defence if it is one that an honest man could have made, no matter how obstinate, prejudiced or exaggerated his views. This may be regarded as even more confused. If it is an attempt to restrict certain types of comments, it fails. Any comment in the world could be attributed to an honest man if he is allowed to be exaggerated, obstinate and prejudiced. If on the contrary, the definition is merely meant to emphasise the latitude available to comments, its message would be more clearly conveyed by its absence than its presence.

33 See above, p237.   34 Faulks Committee Report para 152:   “The adjective 'Fair' in the phrase 'Fair Comment' is seriously misleading having regard to the actual nature of the defence, which in reality protects unfair comments, since manifestly the opinion of a man with prejudiced or exaggerated views may be extremely unfair if viewed objectively by a balanced person.” New Zealand Committee Report para 141:     “The title 'fair comment' is misleading because the word 'fair' may be equated with the word 'reasonable'. The notion that the opinion or comment must be in any way fair or reasonable is an incorrect interpretation of the defence.”   35 Merivale v Carson (1887) 20 QBD 275, 291, per Lord Esher MR.   36 Faulks Committee Report para 148 and footnote 86, citing Lord Porter at [1950] 1 AER p 461.

 

 

If the element of fairness is to be made redundant such a test should not be adopted. It would be sufficient simply to define the other requirements of the defence. If, on the other hand, it were thought better to impose an element of fairness (in the sense of reasonableness), this should be done in clear terms.

304.

However, it is felt that a negative formulation should be avoided, partly for linguistic reasons, but primarily because it does not give adequate guidance. Therefore, an alternative formulation is suggested –

305.

We do not favour on the whole, however, the introduction of “fairness” or “reasonableness” to the defence of comment. Firstly, a court pronouncing upon the reasonableness of an opinion comes close to pronouncing upon its correctness. This danger is expressed by the British Columbia Law Reform Commission commenting on the existing law –

(One could indeed go further than the writer of that passage, who appears to fear that a jury might tend to reflect the majority opinion in society on a particular issue. This is not necessarily the case: still less is this necessarily the case where the issues of fact are being tried by a judge alone).

306.

Secondly, the risk a publisher faces in anticipating whether an opinion will be deemed reasonable would probably result in excessive self-censorship. Nonetheless, there are arguments in favour of such a restriction. It might be said that if publishers are forced to make comments reasonable, this is a good thing. It could also be said that this is a more logical basis on which to build a restriction than the element of malice currently reigning at common law. However on balance we are opposed to injecting new life into this restriction. We believe that a statutory provision should make it clear that a comment, in order to be protected, need not be fair, and that the defence be renamed either “Comment” or “Comment based on Fact”.

37 BC LRC Report, p 46.

 

 

(7) Base and Dishonourable Motives

307.

If the distinction between fact and comment is often difficult, there is one type of allegation that has brought home this problem acutely, and the result has been a confusion as to whether the defence of fair comment or justification applies. Some cases have leaned one way, some the other, and a third strain of cases has formed a hybrid category, so that the defence of fair comment applies, but the defendant is required to meet the more stringent test of “reasonableness”.³⁸ This has occurred where the allegation is that the plaintiff was inspired by base and dishonourable motives.

The Faulks Committee examined this area and recommended that allegations of base and dishonourable conduct be treated under the defence of fair comment and moreover, that the straightforward elements of the defence should be applicable. It thought that the imposition of a standard of reasonableness added an unnecessary complexity to the defence and that existing principles are adequate to cater for this type of case. This position could be adopted in Irish law in the form of a provision that imputations of base, dishonourable or similar conduct are to be treated in the same way as any other comment.

308.

A second approach is based on the view of Duncan and Neill who, it was seen, thought that it should be a question in each case as to whether the statement was a fact or a comment and the appropriate defences for each should apply. This approach is provisionally recommended, and the guidelines for distinguishing fact from comment set out elsewhere in this Paper³⁹should be considered. It could then be provided that if the statement is deemed to be a comment, the principles applicable to other types of comment should apply.

(8) Rolled-up Plea

309.

At present, a defendant pleading fair comment has the choice between two forms of plea, the fair comment plea simpliciter and the rolled-up plea. In relation to the former, he must give particulars of the facts on which the comment is based. In pleading the rolled-up plea, the defendant must give particulars stating which of the words are asserted to be statements of fact, and the facts he relies on to prove their truth. The particulars stating which of the words are asserted to be statements of facts are not very helpful as the pleader may state that the words are either comment or fact in the alternative.

310.

The Faulks Committee and the British Columbia Law Reform Commission thought that the rolled-up plea added nothing to the defence and that it constituted a trap for the unwary pleader. It recommended its abolition. In Ireland the rolled-up plea would seem to serve no useful purpose either and it is suggested that it be abolished. Accordingly, in a defence of fair comment, the defendant would be required to give particulars of facts in which

38 See Part I, para 90, p72 above.   39 See below, p290.

 

 

the comment was based. It will be recalled that in Cooney v Browne & Others,⁴⁰the Supreme Court held that the defendant is required to state which of the statements are factual and which are comment, and further that he should give particulars of the facts relied on to prove the truth of the factual statements. We provisionally recommend that a rule of court be formulated along these lines.

(9) Aggravated Damages

311.

At common law, a failure to prove the truth of supporting facts may result in an award of aggravated damages.⁴¹ The discussion of this rule in relation to the defence of justification above is applicable here also.⁴²

(10) Abolition of Actions for Comments

312.

The defence of fair comment is established at present if the following four requirements are met: (1) the subject matter is one of public interest, (2) the comment is supported by fact, (3) the comment is fair, (4) the comment was made without malice. We have suggested that the first two requirements are sufficient and that a reform of the defence might involve abolishing the need to show the latter two. However the question that now arises is whether all the requirements should be abolished, resulting in a position of non-actionability in respect of opinions.

It will be seen that prevailing American opinion is that, following a dictum in Gertz v Welch,⁴³ actionability for opinion statements has been abolished in that jurisdiction. Although the United States Supreme Court has yet to face this issue squarely, the lower courts appear convinced that this is the result of the statement of Powell J in Gertz and are currently applying various tests to implement the consequences of this move. Two arguments may be made in favour of the abolition of actionability for opinions. The first argues from the theories outlined above that the value of opinion statements lies in their contribution to society's search for truth and the self-governing core of democracy. The widest possible range of opinion should be allowed to issue free of judicial intervention in order for public debate to be as free as possible. The second argument is that the most significant restriction on comments at common law currently consists of the requirement that the facts supporting the comment be proved true; it might therefore be more logical to deal with such facts on the basis of justification rather than under the mantle of fair comment.

313.

There appear to be two main ways of dealing with opinions in the United States at present. These may serve as models for abolishing actionability of opinion.

40 [1985] ILRM 673.   41 See Part I para 83.   42 See below, p305–7.   43 418 US 323 (1974).

 

 

314.

It will be recalled that at common law, a pure opinion is also protected (assuming the matter is one of public interest and there is no malice) and a mixed opinion is not. However the essential difference between the common law and the Restatement in this regard is that at common law the proof of the facts set out or referred to must be proved; under s566 of the Restatement there appears to be no such requirement.

315.

Leaving aside the factors of malice, fairness and public interest for a moment, the options appear to be as follows:

316.

We are provisionally in favour of the first option, namely maintenance of a position under which the truth of supporting facts must be shown. We believe that abolition of this requirement would allow defendants to receive a protection even where they had mis-stated or invented facts on which to

base their comments.

317.

We draw attention to the fact that a number of European Countries employ a defence similar to the defence of fair comment (Belgium, Norway, France), and that in Belgium at least, the truth of supporting facts is an element of the defence. We therefore provisionally recommend the retention of the rule that truth of the supporting facts must be proved as an element of the defence of fair comment.

(11) Matter of Public Interest

318.

We consider the reform and possible repeal of this element of the defence of fair comment below, at Section IX on Privacy Law and Defamation Law.

 

 

B. DISTINCTION BETWEEN FACT AND COMMENT

319.

The distinction between fact and comment is a critical enquiry in the law of defamation. At common law it determines whether the defence of justification or fair comment applies. In America, the distinction has become even more crucial because prevailing opinion says that an action in respect of pure opinion statements cannot be maintained. It may be noted that a distinction between fact and comment is also drawn in the laws of France, the Federal Republic of Germany, Denmark, Norway, Sweden, Belgium, the Netherlands and Greece. In all of these countries, the defences in respect of facts are more stringent than those in relation to comments. As the exercise of distinguishing the two types of speech is peculiarly difficult in certain cases, it is surprising that case law has failed to provide criteria by which to measure the content of speech. We suggest that a test for making this distinction should be introduced.

320.

Due to the crucial importance of the distinction between fact and opinion in current United States law, guidance may be drawn from the various tests used in that jurisdiction.⁴⁴

321.

Another excellent example of a combination test is that adopted by the Annenburg Washington Report:

Explaining this section, the Report states at a later point:⁴⁶

45 Annenburg Washington Programme Report, p15.   46 Ibid, p20.

 

 

322.

However a straightforward combination test may lead to problems where the factors are equally weighted. This apparently was the problem in Mr Chow of New York v Ste Jour Azur SA⁴⁷ The plaintiff complained of the following statements in a restaurant review:

Despite the fact that each of these statements would be objectively verifiable, the court laid emphasis on the context of writing, namely that in a restaurant review the average reader would expect to find statements of opinion. The American writer examining this case concluded that the four fold test was inconclusive because context could pull one way, while the “objectively verifiable” test could pull another.

The test, however, is not necessarily ineffective. Perhaps the problem could be solved by weighting the factors so that if all things are equal, the verifiability factor will prevail. Furthermore, we are not convinced that the result in the Mr Chow case is correct. It is by no means evident that the reader of a restaurant review expects to find only statements of opinion. One could equally argue that a reader of such material expects the opposite i.e. statements of fact leading to a conclusion or opinion.

47 759 F 2d (2d Cir. 1985), Discussed by Berritt, 52 Brooklyn L.Rev. 879.

 

 

4. Restatement test. S566 of the Restatement provides that a “mixed” opinion is not protected i.e. an opinion which implies but in no way discloses underlying facts. Essentially this is a test for distinguishing fact from opinion because where a statement implies underlying but undisclosed facts (e.g. “X is corrupt”, with no facts set out) it is treated as a statement of fact. Although this does not appear to have been done, this test could be added to the other factors in a combination test. We believe that the degree to which the statement is supported by facts to a large extent determines whether it is a fact or opinion. For example, if an article sets out the events at a public meeting in detail and concludes that a person present at the meeting was “corrupt”, or “used blackmail” or “is dishonest”, the reader is more likely to treat the statement as one of opinion. At the other extreme, a bald unsupported statement that X is “corrupt” or “dishonest” is more in the nature of a statement of fact. Between these two extremes, the presence of supporting facts to a greater or lesser degree will weight the scales towards a statement of fact or a statement of opinion.

323.

We therefore provisionally recommend the following scheme for distinguishing fact and opinion as follows:

DISTINCTION BETWEEN FACT AND COMMENT

 

 

C. THE EUROPEAN COURT OF HUMAN RIGHTS AND THE LINGENS CASE

324.

Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms enshrines the right to freedom of expression, subject to such qualifications as are permitted under subsection (2). In the recent case of Lingens v Austria⁴⁸ the European Court of Human Rights held that a conviction under the Austrian Criminal Code for libel contravened Article 10 of the Convention. This case may have implications for Irish libel law, and it is proposed to set out its facts and judgment in detail. It may be noted at the outset that while libel law in Ireland is primarily within the civil law sphere, the conviction in the Lingens Case was under a Criminal Code. However, to draw an analogy between our law of criminal libel and the Austrian law on libel would be inaccurate. There is a general pattern as between common law and civil law countries; “[Most] of the serious violations of the personality are primarily considered from the aspect of tort law in the common law countries whereas the criminal aspect prevails in the other systems of law”.⁴⁹ It is thought that the Lingens judgment cannot be simply distinguished on the ground that it deals with criminal libel. Article 10 of the Convention is concerned with restrictions of any kind on free speech, the Lingens judgment is delivered on the basis of Article 10, and there is nothing in that judgment that turns on the fact that a criminal offence was in question. Moreover, the Austrian Criminal Code defines defamation in very similar terms to our definitions of defamation.

48 Series A no.103, 8 EHRR 407.   49 International Encyclopedia of Comparative Law, Torts, 10.70. This statement is borne out by the analysis of the law of European countries undertaken by Interights for the Lingens case.

 

 

LINGENS V AUSTRIA

The Background

325.

The material which resulted in the applicant's criminal conviction under the Austrian Criminal Code consisted of two articles written in the course of a political controversy following an Austrian General Election in 1975. The subject matter on which the articles were based consisted of a number of events shortly after the elections. The three central figures in the controversy were Mr Simon Wiesenthal, President of the Jewish Documentation Centre, Mr Friedrich Peter, President of the Austrian Liberal Party, and Mr Bruno Kreisky, retiring Chancellor and President of the Austrian Socialist Party. In the course of a television interview, Mr Wiesenthal accused Mr Peter of having served in the First SS Infantry Brigade during the Second World War. This Unit had on several occasions massacred civilians behind German lines in Russia. Mr Peter admitted membership of the unit, but denied participation in the atrocities.

The following day, Mr Kreisky was questioned on television about these accusations. Prior to the election, the possibility of a Peter-Kreisky coalition had been canvassed, and shortly before this second interview, Mr Kreisky had in fact held a meeting with Mr Peter, which had aroused great public interest. At the interview, Mr Kreisky excluded the possibility of a coalition because his party had won by an absolute majority. However, he strongly supported Mr Peter and referred to Mr Wiesenthal's organisation and activities as a “political mafia” and “mafia methods”. Similar remarks by Mr Kreisky were reported the next day in a Vienna newspaper to which he gave an interview. At this point, the applicant published two articles in the Vienna magazine “Profil”, one entitled “The Peter Case” and the other, “Reconciliation with the Nazis, but how?” In the course of the discussion in these articles, the author made certain pejorative remarks concerning Mr Kreisky. Mr Kreisky then successfully brought two private prosecutions against the applicant, Mr Lingens, under the Austrian Criminal Code.

The Articles

326.

It is worth setting out the contents of the two articles so that the reader may compare how the material might have been dealt with under Irish law. The First Article, “The Peter Case”, related the post-election events and described the activities of the first SS infantry brigade. It drew attention to Mr Peter's role in the criminal proceedings instituted against members of that brigade, and drew the conclusion that although Mr Peter was entitled to the presumption of innocence, his past nonetheless rendered him unacceptable as an Austrian politician. The article went on to criticise Mr Kreisky, and with regard to the latter's criticisms of Wiesenthal, the applicant wrote that if the remarks had been made by somebody else, it would have been described as the “basest opportunism”. However, he added that the position was more complicated because Mr Kreisky believed what he was saying.

 

 

The second article, “Reconciliation with the Nazis, but how?”, began by recalling the facts and stressing Mr Kreisky's influence on public opinion. Mr Kreisky was then criticised for supporting Mr Peter and also for his accommodating attitude to former Nazis who had recently taken part in Austrian politics. This was followed by six sections, covering, among others, the following views and themes:

The Austrian Criminal Code

327.

Mr Lingens was prosecuted under Article 111 of the Austrian Criminal Code. This article defines libellous material and broadly speaking, provides truth as the only defence. Article 111 reads as follows:

A number of points of difference between this and the common law may at once be noted. Firstly, as mentioned above, a libel is dealt with as a criminal offence instead of as a tort. However, the definition of a libel is essentially the same. Secondly, a defence of truth is the only one available. There is no defence similar to our defences of fair comment or privilege. In particular, there is no defence at all for statements of opinion. Thirdly, the defence of truth is slightly more lenient for the defendant than at common law. With the exception of media defendants, an important exception, the defendant may establish a defence by showing that the circumstances gave him sufficient reason to assume that the statement was true.

It is strongly arguable that the articles written by Mr Lingens would have been protected at common law. Provided the facts on which his comments were based were true, he was entitled to make statements of opinion. Even if these were required to be fair, it is likely that Mr Lingens could have availed of the defence. The wide margin given in court to the word “fair” means that even exaggerated, prejudiced or controversial views come within the defence. Reform bodies have deemed the word “fair” to be redundant and have recommended its abolition. Under this reform, Mr Lingens would probably have had a defence under Irish law because he had expressed an opinion based on fact.

The European Court Judgment

328.

The European Court of Human Rights took note of the wording of Article 10 of the Convention. Article 10 of the Convention reads as follows:

The question at issue was whether Article 111 of the Austrian Criminal Code, undoubtedly a restriction on free speech imposed by law, was a restriction “necessary in a democratic society”, within the meaning of Article 10 subsection 2. In order to satisfy this condition, a restriction would have to be “proportionate to the legitimate aim pursued” and the reasons adduced by the Austrian Court would have to be “relevant and sufficient”.⁵⁰

329.

The Court began by restating a commitment to open discussion and with a reminder that this often entails the voicing of opinions which many find disagreeable and uncomfortable.

330.

An extremely important aspect of the Court's judgment is the emphasis laid on the discussion of public figures.

50 Judgment of the Court at 25–6.   51 Judgment of the Court, para 41.   52 Judgment of the Court, para 42.

 

 

Arguably, the court was pointing in the direction of the developments in the United States. On the other hand, a wide latitude of discussion of politicians may be achieved in ways other than by use of the “public figure” concept.

331.

The court proceeded to examine the articles which had led to the applicant's convictions. It noted the heated political background to the remarks, the fact that the comments concerned Mr Kreisky's reputation as a politician, and concluded that “impugned expressions are therefore to be seen against the background of a post-election political controversy ..., in this struggle each used the weapons at his disposal; and these were in no way unusual in the hard-fought tussles of politics”.

Perhaps the most crucial aspect of the court's judgment, and probably the ratio of the case, is the position taken on facts versus opinions:

332.

Examining Article 111 of the Austrian Criminal Code in light of these observations, the Court noted that a journalist could escape conviction only by showing the truth of his statement and said:

Accordingly, the restriction on free speech represented by Article 111 of the Austrian Criminal Code was not “necessary in a democratic society” and was not proportionate to the legitimate aim pursued, and was, therefore, in breach of Article 10 of the Convention.

Implications for Ireland

333.

There are three possible readings of the ratio in the Lingens case. The narrowest ratio in the Lingens case is that Article 111 of the Austrian Criminal Code was in breach of Article 10 of the Convention because the defence of truth, the sole defence available, gave insufficient room for freedom of expression. A slightly wider ratio could be that Austrian law was in breach of the Convention as it failed to distinguish between fact and comment. It is arguable that there is another basis for the decision i.e. that Austrian law failed to give a wider latitude to criticism of politicians than to private figures. The Boyle – McGonagle Report placed great emphasis on the latter aspect of

53 Judgment of the Court, para 46.

 

 

the European Court Judgment.⁵⁴ It may be, however, that the comments of the European Court in relation to politicians were not necessary to its judgment.

334.

It may even be that there were two alternative grounds for the decision, namely (1) that Austrian law failed to distinguish between fact and comment, and (2) that Austrian law failed to give a wider margin of protection to statements concerning public figures. In its study of the law of ten European countries on defamation for the Lingens case, Interights emphasised that all the European countries examined both (1) distinguished between fact and comment and (2) allowed a wider range in practice to comment pertaining to public figures, unlike Austrian law. It is notable that Ireland was considered to provide a wider latitude in practice to statements concerning public officials, because the “public interest” limb of the defence of fair comment would be easier to satisfy where the conduct of a public official was at issue.

335.

Is Ireland in breach of Article 10 of the Convention? On the basis of the first two rationes set out, it is strongly arguable that Ireland is not in breach of Article 10. The defence of truth is not the sole defence provided for in the Irish law of defamation. Irish law does distinguish between statements of fact and comment, specifically by means of the defence of fair comment. The Lingens case gives added weight to the case for clarifying the defence of fair comment, so that it is apparent that as long as the supporting facts are true, the margin of comment permissible is wide, perhaps infinite. This could be achieved by dropping the requirement of “fair” in the defence (bearing in mind that the comment must still be supported by true facts) and abolishing the element of malice, which currently destroys the defence of fair comment.

336.

It is also arguable that even under existing Irish law, the defence of fair comment would have protected the remarks made by Mr Lingens. This is strongly supported by the observations of the European Court that the facts supporting the opinions set out were true.⁵⁵ It may also be noted that Interights supported the view that under the defence of fair comment, Mr Lingens would not have been held liable in Ireland.

337.

The main point of attack in relation to Irish law would be that it does not differentiate between private figures and politicians. The European Court envisaged that a wider protection be given to statements concerning politicians. Irish law does not make a theoretical differentiation on this basis. However, as noted above, it may be that a wider latitude of opinion with respect to public figures is allowed in practice. On this view there would be no need to provide expressly for such a distinction.

Furthermore, we have suggested in this report that the defence of fair

54 Report on Press Freedom and Libel, para 4.4.   55 Para 46 of judgment.

 

 

comment be widened in a number of respects. A wider range of opinion on any matter would be protected as a result, and therefore no special category for public figures would be necessary.

It is unlikely that the Lingens case could be read as advocating a wider protection for factual assertions concerning public figures. However if this is proposed, we would feel that such a distinction is undesirable on the basis of reasons set out in a later chapter.⁵⁶

56 See below p396.

 

 

IV. FACTUAL STATEMENTS

Introduction

338.

We have deliberately dealt with privileged statements and statements of opinion in advance of statements of fact. If a defendant makes a statement which can be defended on grounds of privilege or comment, or want of publication or other such ground, he will usually defend it on these grounds rather than attempt to defend it on grounds of truth. We wish to emphasise that the statements of fact discussed in this section are statements of fact to which no other defence applies. Therefore if the defendant fails to make out the defence discussed in this section, he will be liable in defamation. We therefore define the range of factual statements covered in section IV as factual statements to which no other defence applies.

 

 

A. JUSTIFICATION¹

1. TITLE

339.

The title “justification” was originally used to describe all the defences available to a defamation action, but when the defences of qualified privilege and fair comment developed in their own right, the term ceased to apply to them and continued to apply only to the defence of truth.² For this reason, the title “truth” has been suggested as being more appropriate and simple and its use has been recommended by the Australian Law Reform Commission, the New Zealand Law Reform Commission, the English Faulks Committee on Defamation and the Boyle-McGonagle Report. We are not entirely convinced that this is a desirable change. When it is borne in mind that the defence is available where the statements complained of consist partly of truth and partly of untruth, to describe the defence as “truth” rather than “justification” may not represent an improvement. However, we invite suggestions as to whether the name of the defence should be altered as suggested.

2. SUBSTANCE OR STING

340.

It is usually stated that the defendant who pleads justification must prove that the imputation was true in substance. To do so he need not establish the literal accuracy of every charge, but must extract the “sting” from the matter complained of.³ However, Gatley threw some doubt as to how strict this rule was by saying:

1 In order to avoid excessive footnoting, it will be noted that discussion by reform bodies of Justification is located as follows – Australian Law Reform Commission Report, paras 120–131, New Zealand Committee Report, paras 104–136, Faulks Committee Report, paras 127–146.   2 McDonald, Irish Law of Defamation, p 98.   3 See above under Present Law.

 

 

This would appear to run counter to the comments of Lord Shaw in Sutherland v Stopes, quoted at paragraph 59 of Part I. Lord Shaw stated that the defence of justification would not fail if the defendant alleged that a saddle had been stolen and sold the next day, where in fact it was sold a week later. In other words, the failure to prove the truth of a minor detail would not be fatal to the defence.

341.

The New Zealand Law Reform Commission felt it necessary to dispel any confusion in this area and recommended the enactment of the following provision:

The Australian Law Reform Commission formulation was that matter should be regarded as being true if the matter, and the imputation in the matter, was in substance true or in substance was not materially different from the truth.

342.

We agree that the defence of truth in this context should be as clear as possible. It has been represented to us by journalists that in practice the failure to prove minor details becomes fatal to their defence of truth. On balance we feel the Australian formulation is clearest. We therefore provisionally recommend the enactment of a provision that an imputation shall be proved to be true if it is in substance true or in substance was not materially different from the truth.

3. SECTION 22 AND PARTIAL JUSTIFICATION

343.

At common law, if the defendant made four severable defamatory statements of fact he was obliged to prove the truth of each statement in order to achieve a full justification. If he proved the truth of three out of four allegations, he achieved a partial justification only and was liable in damages for the fourth allegation.

Following a recommendation of the Porter Committee in 1948, the

4 Gatley, Libel & Slander, 6ed, para 354. Footnotes omitted.

 

 

Defamation Acts in England and Ireland contain a provision altering this position. This is contained in section 22 of our Defamation Act 1961:

Essentially this meant that the defendant could “convert” a plea of partial justification to a full justification and thereby have a complete defence. He could only do this where the unproved statement or statements did not add material injury to reputation having regard to the injury caused by the statements proved to be true. Using the example above, if the defendant proved the truth of three out of four allegations, the question then became whether the remaining statement added material injury. If it did not, he had a complete defence; if it did, he was liable in damages in respect of that statement.

344.

Although this result is straightforward, s22 is in some ways a curious provision. The rationale may have been to prevent a plaintiff from recovering damages in respect of some statements when the proof of the truth of other statements showed that he really was not entitled to any. From this point of view, the section was striking at damage awards. Unfortunately, the mechanism used i.e. conversion of a partial justification to a full justification, left the section open to the interpretation that the truth of the proven statements in some ways made the untruth of the remaining statement immaterial, or worse, made the remaining statement true.

A new problem then emerged. At common law, if the imputations are severable, the plaintiff is entitled to choose the statements on which he sues. This was evidenced in the celebrated case of Plato Films v Speidel.⁵ The plaintiff chose to ignore a number of unsavoury accusations and sued only on a part of the publication. Understandably, the defendants wished to bring in the statements which they had made but which the plaintiff had ignored, so that the court would have a more balanced view of the type of plaintiff they were dealing with. The House of Lords firmly rejected the defendant's attempts to bring the unsued-on parts of the publication into the fray. Yet if the plaintiff had sued on foot of the whole publication the court could have been entitled to look at the whole publication under the section and perhaps deduce that the statements not proved to be true did not add material injury to the plaintiff's reputation, thus exempting the defendant from damages.

345.

This leads to an anomalous situation. If a defendant makes four statements, three true and one false, there are two possible outcomes depending on the way the plaintiff conducts his case:

5 [1961] AC 1090; discussed above para 63.

 

 

(i) If the plaintiff sues on foot of all four, and the defendant can prove the truth of three, the court may then look at the injury caused by the remaining statement under s22 and decide whether the defendant is exonerated from all liability. (ii) If the plaintiff sues on foot of the last statement only, the defendant cannot introduce other parts of the publication and will be liable for the statement complained of (assuming he cannot prove its truth).

346.

Some law reform bodies considered that it was unjust that the outcome in such a situation should remain totally at the whim of the plaintiff's manner of conducting his case. They were not, however, agreed as to the manner in which this should be remedied. The first approach is that of the Faulks and New Zealand Committees, who recommended re-wording S22 (or rather its equivalent in their jurisdictions) as follows:

347.

By contrast, the Australian Law Reform Commission considered the issue as one pertinent to damages. They thought that it was “illogical to say that the truth of other imputations has the effect of making the false imputations sued upon true” (which is what is implied by converting a partial justification into a full one). The real purpose of introducing the unchallenged imputations was to show that the false allegation did not materially affect the reputation of the plaintiff, a matter which was more appropriate for consideration under the heading of damages. It therefore recommended

6 Faulks Committee Report, Draft Bill, section 4(2). The New Zealand provision in section 10(3) of their Draft Bill is in similar terms.

 

 

348.

We are of the view that the first approach suffers from two defects. First, it is conceptually unsound. To allow a defendant to convert a partial justification to a full one may be read as implying the unproved statements are true, although the intention may have been merely to imply that the unproved statements are immaterial, which is quite a different thing. Second, this approach is inflexible. The court must decide whether the unproved statements add material injury or not; the defence hinges on this factor. This is all very well if the statement clearly adds material injury or clearly does not, but in the cases falling into the grey area between these extremes, the court has no way of expressing its view that there was some, but not extensive injury.

349.

By contrast, the second approach does not encounter these problems. A partial justification is always that. Unproved statements emerge clearly as such, and even if the plaintiff obtains only nominal damages, the falsity of the statement, as distinct from the injury caused by it, will emerge from such an award. Furthermore, damages may be flexibly assessed, catering for differing degrees of injury caused by the remaining unproved statement or statements. Furthermore, it is an approach better equipped to deal with cases where the unproved statement reflects a totally different aspect of the plaintiff's reputation than that touched only by the proven statements e.g. the first three statements concern fraud, and the fourth alleges the plaintiff was a drunken driver. In such cases, it is particularly inappropriate that the truth of some statements should enable the defendant to construct a complete defence. We therefore provisionally recommend

4. PREVIOUS CONVICTIONS OR ACQUITTALS AND JUSTIFICATION

350.

At common law, the rule established by Hollington v Hewthorn⁷ was that evidence of a previous criminal conviction was not admissible in subsequent civil proceedings, where the same issue was raised for determination. In its application to defamation actions, it meant that if a publisher stated that X was guilty of an offence, he was not entitled to adduce evidence of the prior criminal conviction of X for that offence to justify.

7 [1943] KB 587.

 

 

351.

The English position was altered by the Civil Evidence Act 1968, s13 of which provides that in an action for libel or slander in which the question of whether a person committed a criminal offence is relevant, proof that he stands convicted of the offence is “conclusive evidence” that he committed it. In New Zealand, the change has been effected judicially and the weight given to the conviction is different. The test laid down by Jorgensen v News Media⁸ is that the previous criminal conviction is “some evidence” of the plaintiff's guilt.

There may already be some basis in Irish law for saying that the rule in Hollington v Hewthorn would not be applied by our courts. If evidence of the previous conviction is inadmissible, the court must then go on to consider the issue once again in the civil case. However, it has recently been stated that this may be seen as an abuse of court process, or may constitute evidential estoppel.⁹ If the Irish courts do not wish the issue to be retried, they will presumably be in favour of admitting evidence of the previous conviction.

The status of a conviction of a person not party to the defamation proceedings is also worthy of consideration. For example, suppose in the course of a libel action concerning an allegation of rape brought by the victim of the alleged rape, an issue arises as to the guilt of the alleged rapist, who was previously convicted for the rape in question, but is not a party to the libel action. The argument that it should not be possible to reopen the merits of a criminal conviction by suing for defamation does not apply to situations where the conviction is not that of the person suing.

352.

Finally, there is the question of the status to be attached to acquittals. The Law Reform Commission in England recommended that in defamation proceedings an acquittal should be conclusive evidence of the innocence of the person acquitted. While conceding that there could be exceptional cases in which the public interest could be served by a challenge to the correctness of an acquittal, they felt that on balance, the “great public interest” lay in inhibiting attempts to use defamation actions as a means of challenging the findings of criminal courts. However, this recommendation was not adopted in the Civil Evidence Act 1968 and has not been followed by other law reform agencies. On balance, we take the same view: while a person acquitted of a criminal offence may not under our law be charged with the same offence at any time thereafter, it does not follow that public discussions of the case should be effectively suppressed by rendering acquittals conclusive evidence of innocence in a defamation case in which the innocence of the persons acquitted is an issue.

Our provisional view is that it would be advisable to clarify the law in this area. In the case of a conviction, it is suggested that this should be treated not merely as evidence of the guilt of the person, but conclusive evidence.

8 [1969] NZLR 961.   9 Kelly v Ireland, [1986] ILRM 318.

 

 

If it is treated merely as “some evidence”, it is hard to see how the court can avoid going into a retrial of the issue to some degree. The guilt of the person has been established in a criminal trial beyond all reasonable doubt and this should be sufficient for the defendant in a defamation action to justify his reference to the plaintiff's guilt.

353.

We provisionally recommend that the law should provide that:

354.

We further provisionally recommend that there shall be no change in the present position in respect of the evidential value of acquittals.

5. AGGRAVATED DAMAGES

355.

Under existing law, aggravated damages may be awarded where the defendant has persisted in an unsuccessful plea of justification.¹⁰ The New Zealand Law Reform Commission considered whether this rule should be altered, but decided that since aggravated damages were awarded only where the defendant by persisting in the defence has caused further damage to the reputation and feelings of the plaintiff, there was no need to effect any change.

Two arguments are put forward by McDonald against this rule.¹¹ Firstly, he says that it is offensive to inflate damages for the exercise of a right which the law confers. Secondly, such a course of action may conflict with the immunity accorded to relevant statements made in the course of legal proceedings. McDonald notes that the New South Wales Law Reform Commission recommended that no inflation of damages should be allowed in respect of the way proceedings are conducted.

356.

In answer to these arguments, it may be said firstly, that the law does not in this case automatically inflate damages for the right which it confers. Whether or not aggravated damages will be awarded will be a matter of discretion. The court will be reluctant to do so if the defence was conducted honestly, for as Sellers LJ stated in Broadway Approval v Odhams Press (No 2):

10 See above under Present Law, para 68.   11 Irish Law of Defamation, p 112.

 

 

The fact that the rule is discretionary dilutes the first argument somewhat. The fact remains that where aggravated damages are awarded, the defendant is penalised for the exercise of a legal right. In answer to this it may be said that the tort of defamation is very different from most other torts and the defence of tort claims would not normally be seen as an attempt to repeat the tort. As to McDonald's second argument, based on the immunity accorded to statements in the course of judicial proceedings, it may be argued that this immunity is too wide as it stands. An exception in an appropriate case of justification may have much to commend it, in view of the fact that the original injury is being repeated and probably increased, by its utterance in a public setting. Our provisional suggestion is that the rule that aggravated damages may be awarded where there is an unsuccessful defence of justification shall be retained but we invite views.

357.

A different solution is put forward by RTE in their submission to the Law Reform Commission.¹³ Based on the practice in France, RTE suggest that a ban could be created on the reporting of defamation cases by the media, excepting the judgment itself. Accordingly, the raising of truth by a defendant would not increase the circulation of the libel and the issue of aggravated damages would not arise. This could be limited to a ban on reporting anything other than the judgment in defamation cases only where truth is raised as a defence. We consider the possibility of in camera proceedings for a different reason elsewhere in this Consultation Paper.¹⁴ We are not yet convinced of the merit of this suggestion.

6. REASONABLE BELIEF IN TRUTH

358.

The Australian Law Reform Commission raised the possibility in its Discussion Paper of a defence of “reasonable belief in truth.” This is to be contrasted with the current position under which only actual truth is a defence. The proposed defence would protect the defendant if he could prove that after making reasonable enquiries and on reasonable grounds he believed the matter to be true, provided also that he afforded the defamed person a full and adequate right of reply. The defendant would still be obliged to make a correction and pay for actual loss, but the fear of a high damage award would be removed.

A number of objections were raised to this suggestion. Firstly, it was said that where a loss must be borne between an active and a passive party, the

12 [1965] 1 WLR 805, 814.   13 Part of an RTE submission to this Commission.   14 See below p341 et seq.

 

 

active party should bear the loss. Secondly, the state of mind of the defendant does not affect the actual loss by the plaintiff and he should not be denied redress simply because the defendant believed in the truth of the statement. As against this the defendant is obliged to print a correction and so the plaintiff is not totally without redress. Thirdly, it was said that harmful acts without legal justification should bear the consequences. To this it may perhaps be replied that this begs the question, for the question at issue is whether reasonable belief should constitute a lawful justification. Finally, it was argued that the surrounding circumstances, including the reasonable belief of the publisher, would lie better as a means of reducing damages, rather than as a complete defence.

359.

Accordingly, the Australian Law Reform Commission decided not to recommend reasonable belief in truth as a defence, and instead included it among the surrounding circumstances which may affect damages. In their model Bill, they provided as follows in Section 28:

The example of Cassidy v Daily Mirror Newspapers¹⁵ might be cited as an example of where such mitigation of damages would be appropriate. In that case, Mr Cassidy had told the journalist that he was engaged to Miss X, and allowed their photograph to be taken together. The photograph and an announcement of their engagement were published. In fact, Mr Cassidy was already married and Mrs Cassidy brought an action in defamation.

Understandably, the publisher should not have a complete defence because the injury to Mrs Cassidy's reputation was the same, irrespective of the defendant's state of mind. However, a correction order would have gone some way to vindicating Mrs Cassidy's reputation, combined with damages. But it seems just that lesser damages would be awarded in such a case than one in which the defendant had published the material without any checking of the facts.

360.

It may be noted that the Austrian Criminal Code contains a defence to a libel action based on proof by the defendant that he had sufficient reason

15 [1929] 2 KB 331.

 

 

to assume that the statement was true. In Austria, defamation is dealt with under the criminal branch of the law, but it would be inaccurate to compare it to our law of criminal libel. Defamation in most civil law countries is dealt with as a crime rather than a tort. The definition of defamation under Article 111 of the Criminal Code is very similar to that at common law; the offence is committed if:

361.

In addition to the defence of truth, a defendant is also exempted from liability “if circumstances are established which gave him sufficient reason to assume that the statement was true”.¹⁶ However, this defence is not available to media defendants.¹⁷ Unlike the Australian proposal, this is a complete defence rather than a matter which may mitigate damages.¹⁸

362.

We believe that “reasonable belief in truth” should not be isolated as a factor which would either (i) bar liability (ii) bar liability subject to the requirement of making a correction or (iii) mitigate damages. We feel that “reasonable belief in truth” is but one example of conduct involving a lack of fault on the part of the defendant. Accordingly it is relevant to a discussion of whether a fault standard should be introduced into Irish law, whether in the form of (i) barring liability, (ii) barring liability provided the defendant complies with other conditions, (iii) mitigating damages. The issue of fault is dealt with elsewhere in this Report. Accordingly we do not recommend any provision in relation to “reasonable belief in truth” alone.

16 Article 111(3).   17 Combined effect of Article 111(2) and (3).   18 See Lingens v Austria, Series A, no 103, 8 EHRR 407.

 

 

B. WIDER DEFENCES FOR FACTUAL STATEMENTS

363.

This section explores a variety of defences advocated in respect of factual statements. Some of these defences would be confined to the media. Others would be available to any speaker provided the subject matter concerns either a matter of public interest or a particular type of plaintiff, whether public figure, public official or both. Most of the defences incorporate alternative remedies such as apology, correction, opportunity to reply or explanation. The feature common to all of these defences is that they share the premise that the defence of truth is too stringent where the subject matter concerns issues necessary to public debate.

364.

The defences examined are those recommended, considered by, or governing in, the following jurisdictions or bodies: (1) the United States (2) New Zealand Committee (3) the Faulks Committee (4) the National Newspapers of Ireland. We confine our discussion to the applicability of these defences to factual statements only. Accordingly where a particular defence deals with opinions we omit such reference. We conclude by examining the reaction of the Australian Commission to such defences, which we feel is useful in the light of the fact that Australia has experience of such a defence.

1. The United States

365.

There is a defence in the United States for a publisher who makes a factual statement concerning a public figure or a public official. This defence may be defeated by a proof by the plaintiff that the defendant published with “malice”, defined as actual knowledge of falsity or reckless disregard of falsity. The defence is not confined to the media. There is no requirement that the

matter be one of public interest.¹⁹

366.

It is not in dispute that there is a public interest in the exposure of official misconduct. We emphasize that by “official misconduct” we mean the actions of public officials purportedly carried out in the performance of the official's duties. We are not of the view that every thought, word or deed of a public official is a matter which should be exposed to the public. The United States defence outlined carries the clear advantage over the common law position that official misconduct may be exposed and the defendant will not be penalised on the basis of failure to meet a legal standard of proof unless he was actually aware of, or reckless as to, the falsity of the statement. We accept the value of exposure of such conduct as a contribution to public debate and the process of self-government.

367.

In our section on United States law we made a number of criticisms of this defence and we summarise these as follows. First, the defence is open to negligent defendants and we think that it would allow, if not encourage, low standards of journalism and other means of criticising public figures' conduct. Second, the public interest is not served by this defence. As we have stated, it is not in dispute that there is a high public interest in the exposure of official misconduct. However we do not agree that this public interest is well served by false accusations of official misconduct. Indeed, it might be argued that since the stakes are so high in a case involving a public figure, it is all the more reason for requiring high standards in relation to truth. The defence under examination does not allow the truth to come out. Careless and negligent false factual assertions are protected. We question the assertion that such forms of expression make a valuable contribution to public debate, and therefore the assertion that a defence which protects such forms of expression serves the public interest. Third, we suggested that the defence under consideration was permissible under the American Constitution where the right of free speech is given explicit guarantee without being accompanied by a guarantee of reputation, but that it might be impermissible under the Irish Constitution which specifically guarantees the protection of both rights. Fourth, we are not convinced that a dichotomy between public and private figures would be in keeping with the Irish Constitutional guarantee of equality before the law, even though this equality may take into account the different social function of individuals. We are not convinced that the central social function of a public figure or official justifies allowing negligent false factual assertions to be made about such a person and remain uncorrected. Fifth, we drew attention to the increased costs in defamation actions where the plaintiff is required to illustrate the defendant's state of mind and concluded, on the basis of American legal writing, that such costs could result in censorship of true material as chilling to free speech as the original common law position. Finally, we suggested that a legal framework that does not provide redress for false factual statements per se damaged the credibility of media generally.

19 However, where the matter is one of public interest the onus is on the plaintiff to show falsity, under Hepps v Philadelphia Newspapers (1986) 475 US 767.

 

 

368.

We accept that a number of alterations to the defence examined would render it more acceptable, namely:-

These amendments are incorporated into the following defences and will be considered individually.

2. Faulks Committee

369.

The Faulks Committee considered but rejected a defence proposed to them. The proposal provided a defence if the following conditions were satisfied:

We will set out the Faulks Committee arguments against this proposal and our counter-arguments to those, followed by our own objections to the proposal.

370.

Our principle objections to the defence were not outlined by the Faulks Committee and are as follows:

 

 

3. New Zealand

371.

The New Zealand Committee devoted a chapter to a consideration of a statutory defence of qualified privilege for the media. In that jurisdiction, the courts had refused to recognise that the media in modern society has a duty to provide information on matters of public interest and to publish such information to the public.²⁰ It should be noted that in Ireland the courts have declined to recognise that journalists enjoy any right to refuse to reveal confidences or disclose sources of confidential information where the court requires such revelation or disclosure; Re O'Kelly.²¹ In this context, the Irish courts have adopted a more rigid approach than that adopted in England as to the circumstances in which such revelations or disclosures should be compelled by the court. In that jurisdiction, the law has also been liberalised in favour of the media by the Contempt of Court Act 1981.

The New Zealand Committee noted that the Faulks Committee had rejected the contention that the absence of this added protection had a chilling effect on the media. However, it drew attention to what it considered an important point of difference between the UK and New Zealand, a point which is of direct interest to the Irish media:

372.

The New Zealand Committee recommended a new defence, the central elements of which were a requirement that the publisher had acted with reasonable care and that he gave the defamed person an opportunity to publish a statement explaining or refuting the original argument. The proposal was as follows:

373.

The proposal is similar to the proposal put to the Faulks Committee, except that it incorporates a right of explanation or contradiction. RTE have expressed their approval of the New Zealand proposal in relation to the qualified privilege defence for the media.²³

The main features of this proposal are therefore:

374.

We prefer this defence to that suggested by the Faulks Committee. By providing the plaintiff with an opportunity of reply, the proposal at least addresses the problem of leaving the victim remediless where the defendant can fulfil the conditions of the defence. Therefore although no damages may be awarded in respect of a false statement of fact (provided the conditions of the defence are complied with), the plaintiff would have an opportunity to air his viewpoint. This might not address the argument that there is no way of determining the truth. However perhaps this is not necessary where the subject matter is one of public interest. It might be sufficient to allow the plaintiff the opportunity to reply.

375.

A variant on this defence would be to base it not on “public interest” but on public officials and politicians. Under this defence it would be a defence to an action in respect of a factual assertion to show that –

376.

We prefer the emphasis on public officials and politicians rather than “public interest”. As with the “public figure” definition, the focus on “public interest” would reduce protection for many people caught up in events of public interest who were not acting in any representative or official capacity.

377.

A broadly similar proposal was put forward by Justice, namely that a qualified privilege should attach to statements based on information which might reasonably be believed to be true, provided that the defendant published a reasonable statement from the plaintiff by way of explanation on request and, if necessary, an apology. Some pertinent comments made by R.F.V. Heuston with respect to this proposal are worth quoting and considering in this context more generally –

Later in the same article, Heuston comments –

24 There is no such rule in the Irish R.S.C. (1986).   25 “Recent Developments in the Law of Defamation” (1966) Ir.Jur.247 at 262–3.

 

 

4. National Newspapers of Ireland

378.

The NNI proposed a defence which was a hybrid of the United States defence and the New Zealand proposal. No action in respect of a defamatory statement of fact could be taken unless the plaintiff showed (1) that the matter was of public interest and either (2) that the defendant refused to publish a reply or an apology, or (3) that the defendant published with actual knowledge of falsity or in reckless disregard of falsity. Because (2) and (3) are read disjunctively, the effect is to bar all actions where a reply or apology is published (assuming it is a matter of public interest) except where the plaintiff can show malice. There is no requirement that the defendant meets a standard of reasonable care. It may also be noted that a reply or an apology is sufficient to bar the action in the absence of actual knowledge or recklessness as to falsity. Therefore a defendant could make a false assertion of fact which was negligently prepared and escape liability simply by publishing an apology.

The only major difference between this defence and the United States defence is that provision is made for reply or apology. Our argument that the United States defence leaves the plaintiff entirely remediless is therefore addressed to some extent. There is one other difference which we feel is apparent only; the United States defence is based around “public figures” while the NNI defence is based around “public interest”. In general, the same type of speech is subject of the change. We feel that the arguments against the United States defence apply equally to the NNI proposal and would not recommend its adoption.

Australia

379.

The Australian experience has been different from the common law position. The Codes gave a conditional privilege in respect of matter published “in the course of, or for the purposes of, the discussion of some subject of public interest, the public discussion of which is for the public benefit”. Initially, this was not seen as widening the common law position, but a series of decisions involving the Code provision in the New South Wales Act culminated in the High Court of Australia decision in Calwell v Ipec Australia Ltd,²⁷ where the application of the conditional privilege to the media was firmly recognised. The Calwell decision has been replaced in New South Wales by a 1974 Act, but still applies in Queensland and Tasmania. The

26 The reference is to three case named Broadway Approvals v Odhams Press [1965] 1 WLR 805, McCarey v Associated Newspapers [1965] 2 QB 86 Lewis v Daily Telegraph [1964] A.C.334.   27 (1975) 135 CLR 321.

 

 

Australian Law Reform Commission received submissions that a qualified privilege be extended to the media under the new uniform Act. The arguments in favour of such a provision were that it would allow the media to expose misconduct and fault in matters of public interest without the necessity of proving the truth of the matter asserted, so long as the matter is one of public interest and the publisher is not motivated by improper motive. Matter, it was argued, is often true but impossible to prove, and a new qualified privilege for the media would encourage investigative journalism. The question was asked whether abuses of office involved in the US Watergate affair would ever have been exposed if the Washington Post had been obliged to prove the truth of its defamatory assertions.

380.

The Australian Law Reform Commission found that there appeared to be no relationship between the existence of the media qualified privilege defence and the level of investigative journalism in any jurisdiction. They found that the factor most affecting investigative journalism was costs. In relation to the Watergate issue, the Australian Law Reform Commission observed that the reporters for the Washington Post did not rely on qualified privilege, but rather on the truth of their statements; the material was constantly checked, and with one exception, all of the defamatory stories could have been proven true in court, with appropriate subpoena powers. The Australian Law Reform Commission concluded wryly:

381.

The Australian Law Reform Commission also adverted to one of our primary objections –

This argument may be met to some degree by incorporating a right of reply to the defence, as did the New Zealand Committee.

28 Para 145.   29 Para 146.

 

 

The Australian Law Reform Commission concluded that while there was indeed a need to encourage public discussion on matters of legitimate public interest, this should be done by according a wider right of reporting material originating from others, who are identified and accurately reported. While we agree that reporting rights should be wider and clearer than at present we feel that this is not helpful where the media organ itself has discovered facts of public interest.

Conclusion

382.

Of the defences in respect of false factual statements examined, we believe that the proposal of the New Zealand Committee affords the best balance between the rights of both parties involved and the need to serve public debate. However we will proceed to examine the case for introducing a fault criterion in defamation law generally. Furthermore in our Remedies section we will recommend the introduction of proceedings for a declaratory judgment, and the additional remedy of the correction order which may be used in addition to damages in the action for damages. Accordingly we will defer any recommendation on the New Zealand proposal examined in this chapter until these issues have been considered.

We should also point out that the inhibitions, whatever their extent, which at present exist on the investigation of matter of public concern are not, on any view, solely the consequence of the law of defamation and contempt of court which is the subject of our enquiry. The provisions of the Official Secrets Act 1961 have been frequently criticised as being too restrictive. There have been calls for the introduction of freedom of information legislation of the type in force in other jurisdictions. However, as it is not within our terms of reference, we confine ourselves to pointing out its relevance to the general topic of freedom of expression.

 

 

C. DEFENCE OF REASONABLE CARE

383.

In Part I we observed that since the tort of defamation was a composite tort, the issue of fault could arise in a variety of ways e.g. Was the defendant at fault in failing to anticipate publication? Was the defendant at fault in failing to see that the statement might be understood to refer to the plaintiff? Was the defendant at fault in failing to realize the statement was false? The discussion which follows centres on the last question i.e. fault in relation to the issue of truth. It is limited to defamatory statements of fact in relation to which no defence other than the defence of justification currently applies.

Under present Irish law, the rule is one of strict liability so that the defendant's state of mind in relation to the truth of the statement of fact is not relevant. The best that a defendant can do is raise the defence of justification and prove the actual truth of the statement (assuming that no other defence applies). However, if the statement is actually a false statement of fact, no distinction is made between defendants who are malicious, reckless or negligent in making the statement, and those who checked out their facts and had reasonable grounds for believing in its truth, or defendants who made a genuine mistake in publishing the statement.³⁰

The most obvious contrast with the common law position of strict liability in relation to falsity is United States law under which the plaintiff must establish fault on the part of the defendant, i.e. actual knowledge or recklessness as to falsity if he is a public plaintiff, or negligence if he is a private plaintiff. It is more difficult to compare European jurisdictions since defamation is more usually dealt with under the criminal law, where fault criteria are to be expected. It is interesting to note, however, that the Dutch Civil Code

30 Except, perhaps, that malice will inflate damages. It is not clear that an honest mistake, for example, will reduce damages.

 

 

specifically provides that in a civil lawsuit for defamation an “intention to offend” must be shown. (Article 1412.1).

We have seen that fault in the form of “reasonable care” is central to the defence under section 21 of the Defamation Act 1961. Fault or the state of mind of the defendant is also relevant at least to some degree to the question of damages when the defendant has been found liable.

We have already expressed our views opposing the operation of the American fault standard of actual knowledge of or reckless disregard as to falsity (where the plaintiff is a public figure).³¹ We now suggest that even the lower standard of negligence is unacceptable when the only remedy is an award of damages, because the constitutional guarantee of protection of reputation requires that injury to the plaintiff be righted in some manner. Bearing in mind that we will be proposing the introduction of the new remedies of the correction order and the declaratory judgment, we feel there is, however, a case to be made for a defence of reasonable care. In other words, the introduction of these two new remedies allows us to compromise between the two relevant interests (freedom of expression and vindication of reputation) without having to protect one to the exclusion of the other.

384.

We emphasise that two main situations must be distinguished;

With respect to the first situation, we feel that the guarantee of freedom of expression requires that some distinction should be made between defendants who exercise reasonable care and defendants who do not. We also feel that the guarantee of protection of reputation requires that some remedy should be available to a plaintiff who has suffered injury as a result of a defamatory publication irrespective of the defendant's conduct. We feel that the balance between freedom of expression and protection of reputation would be better struck by allowing plaintiffs always to obtain a correction order and/or declaratory judgment when a false defamatory statement is published, but by

31 See Part II.

 

 

also providing that damages should not be recoverable if the defendant can establish that he exercised reasonable care. However, general damages should be recoverable if the defendant either fails to plead or fails to make out a defence of reasonable care.

To take the first example above, Mr. O'Brien would bring an action in defamation seeking general damages, a correction order and/or a declaratory judgment. Assuming the defendant cannot prove actual truth, the plaintiff will in all events be entitled to a correction order and/or declaratory judgment. If the defendant newspaper can make out a defence of reasonable care, the plaintiff will obtain the correction order and/or declaratory judgment only. If the defendant does not raise the defence of reasonable care, or raises the defence but fails to satisfy the Court that its conduct amounted to reasonable care, the plaintiff can additionally recover general damages.

With respect to the second situation, the balance is somewhat different. If the plaintiff has sustained financial loss, there appears to be no good reason why she and not the defendants, should bear that loss. We are therefore of the view that where the plaintiff can establish financial loss clearly linked with the defamatory publication, he should be entitled to damages in respect of that loss. Examples of the type of financial loss envisaged would include loss of earnings through dismissal from a post, loss of profits such as through the cancellation of a restaurant's dinner bookings, or hospital expenses where the plaintiff has suffered a nervous breakdown in consequence of the publication.

To take the second example above, Miss O'Reilly would bring an action in defamation seeking a correction order and/or declaratory judgment, general damages and special damages. Assuming the defendant fails to prove actual truth, she will be entitled in all events to the correction order and/or declaratory judgment. Assuming she can prove that she suffered financial loss clearly linked with the defamatory publication, she will also be awarded special damages. If the defendant establishes that it exercised reasonable care, she will be entitled to no further remedy. However if the defendant fails to plead the defence of reasonable care, or it raises the defence but fails to satisfy the court that it did in fact exercise reasonable care, the plaintiff will additionally be awarded general damages.

385.

Our provisional recommendations are therefore as follows:

386.

What will constitute reasonable care? Although it will be for the tribunals of fact to decide whether the defendant has convinced them that he exercised reasonable care, we suggest that the following would constitute reasonable care:

387.

It is envisaged that the defence of reasonable care would not be available in the following examples:

 

 

D. PRESUMPTION OF FALSITY

388.

Under the present law, once the plaintiff has shown the matter complained of to be defamatory, the law presumes the statement to be false. Thus the burden of proof is on the defendant to establish the truth of the statement if he raises the defence of justification.

The Boyle/McGonagle Report suggested that this was the main reason that the defence of justification was pleaded as a separate defence in only a small number of cases (5% of the High Court cases studied). It was suggested that the burden of proof should be reversed, so that the plaintiff would have to show the falsity of the statement. A major problem for media defendants is that their sources are reluctant to disclose themselves in court. Accordingly, it is suggested, it is extremely difficult for a media defendant to prove truth.³² We should say at the outset that we think it is unlikely that the presumption of falsity is the main reason for the failure to plead justification. Equally important in practice, in our view, is the fact that in many cases the statement complained of is not true and the possibility of aggravated damages where there is an unsuccessful plea of justification.

It will be recalled that the Irish position combines the presumption of falsity with a strict liability criterion. This may be contrasted with the United States. The United States Supreme Court has recently reversed the common law presumption in relation to falsity in cases where the speech is of public concern. This was the result of Philadelphia Newspapers v Hepps,³³ where a majority of the court held that the plaintiff must bear the burden of showing

32 Focusing on the presumption of falsity is only one way of addressing this root problem. An alternative is suggested later.   33 (1986) 475 US 767.

 

 

falsity.³⁴

389.

This reversal must be placed in context. The Supreme Court had already, in a series of decisions, imposed a burden on the plaintiff to show fault on the part of the defendant, the degree of fault depending on the type of plaintiff in question.³⁵ Delivering the opinion of the court in the Hepps case, O'Connor J stated that the reversal would be of little practical significance because in most cases the plaintiff would demonstrate falsity as part of his case that the defendant was at fault. Accordingly, the reversal of the burden of proof would be crucial only in those rare cases where the evidence was so ambiguous that the presumption itself would be conclusive. The dissenting opinion, written by Stevens J, disagreed with the allocation of risk between the plaintiff and defendant, which is essentially the issue at stake. He argued that even if the re-allocation of the burden of proof made little practical difference in most cases, this was no answer to the cases in which it would be decisive. However, Stevens J also contested the assumption that the majority decision would be of little significance in the ordinary case. In showing fault, it was not necessarily a part of the plaintiff's case to demonstrate falsity. Fault could be illustrated by showing a careless method of collecting material and publishing on the part of the defendant, without focusing on the issue of falsity at all. On this view, the reversal of the burden of proof would be significant in all but the simplest of cases. If the question is therefore one of allocation of risk between the plaintiff and the defendant, Stevens J thought that the burden should fall on the defendant, bearing in mind that only negligent and reckless defendants were involved due to the requirement of fault.³⁶

390.

It may be noted that the Annenburg Washington Programme Report on Libel approved of the course adopted by the United States Supreme Court, namely that the burden of showing falsity with clear and convincing evidence be placed upon the plaintiff. Moreover, it recommends the extension of this burden to plaintiffs in all defamation cases. Section 6 of the Draft Act provides –

34 For a full discussion of this case, see above, para 168.   35 See paras 162 et seq.   36 This is because if a non-negligent defendant is involved, the plaintiff will fail to satisfy the fault requirement which is an essential part of his case in the United States. Therefore the only class of defendants to whom the presumption of falsity is important in that jurisdiction consists of defendants who are at fault.

 

 

The comment upon this section says –

391.

Arguments in favour of a reversal of the common law presumption of falsity:

391.

Arguments in favour of the existing presumption of falsity

393.

We do not feel that the benefit of the presumption as to falsity should favour, in the first instance, negligent defendants. Secondly, we feel that

43 See above under Social Cost.

 

 

where there has been a defamatory allegation and the sole issue is whether a correction order and/or declaratory judgment should be awarded, in other words that the truth of the allegation is the only issue, it is preferable that the benefit of the presumption should go to the injured plaintiff.

394.

We therefore provisionally recommend that the presumption of falsity existing under the present law should be retained.

 

 

E. SECTION 21 AND UNINTENTIONAL DEFAMATION

395.

Two types of defendants come within the category of the innocent or unintentional defamer as envisaged by s21 of the Defamation Act 1961. The first is the defendant who makes an innocent statement which becomes defamatory by virtue of circumstances unknown to him; the second is the defendant who does not intend to refer to the plaintiff and is unaware of the circumstances which have the effect of making the publication refer to the plaintiff. In the first category, a statement referring to the plaintiff may become defamatory due to circumstances unknown to the defendant either (a) because there were certain facts of which he was not aware or, (b) because he intended the character to be fictitious.

The common law treated such defendants harshly. The fact that he was innocent in the sense defined above did not affect his defence at all. The defendant was treated in the same way as a defendant who knew he was making a defamatory statement, or a defendant who fully intended to refer to the plaintiff. The Defamation Act 1961 attempted to alleviate this position by means of section 21. This provides the defendant with an opportunity to prevent a case being brought against him by making an offer of amends. The section is available only to defendants who are innocent in the sense defined above, and who additionally exercise a standard of reasonable care in relation to the publication. A defendant who is ignorant of the circumstances that alter the quality of his statement due to his own neglect or default does not come within the protection afforded by the section.

396.

The main features of the offer of amends are the requirement of the publication of an apology and a correction, and the provision that if the offer is accepted by the party aggrieved and is duly performed, no action in defamation may be taken or continued. If the offer is not accepted, proof by the defendant in a subsequent action that he published the words

innocently in relation to the plaintiff and that an offer was made as soon as practicable after the defendant received notice that the words were or might be defamatory of the plaintiff is a complete defence.

Criticisms of Section 21

397.

A number of criticisms have been levelled at the section in its present form. The Faulks Committee found that the procedure under their equivalent section was unsatisfactory because.

The Report then set out the procedural aspects of section 21 and commented; “The offer of amends as contained in the Defamation Act, 1961 is therefore, totally impractical and it is not to be wondered that it has never been used, to our knowledge, in this jurisdiction and only very rarely in England”. They recommended that the offer of amends be abolished and replaced by an order for correction, with very simple procedures, available irrespective of whether publication was intentional or otherwise. As a less popular alternative, they recommended that the existing offer of amends be widened in scope and the procedures be greatly simplified.

The Reform Bodies

398.

The reform bodies are divided in their responses to this situation. The New Zealand and Faulks Committees have recommended making detailed changes to the section, retaining its main features but rendering it more workable. The Australian Law Reform Commission thought that there was no need for such a provision in the light of their recommendation on corrections. If the defendant in such a case published a full and speedy correction, the court would take this into account in its assessment of damages.

The New Zealand and Faulks Committees examined the individual features of the section in order to see how it could be made more simple and more practicable.

399.

The Affidavit: The Faulks Committee recommended that the affidavit requirement be omitted. It should be sufficient for the defendant to set out as a matter of course the matters he relied on in support of his innocence in the letter accompanying his offer of amends. He would then be entitled to rely on other matters at trial, if these were particularised in the defence. The New Zealand Committee, however, felt that something more should be required of the defendant and recommended that the word “statement” should replace the word “affidavit” in the section. They recommended further that no evidence other than evidence of facts specified in the statement should be admissible in subsequent proceedings, because the facts surrounding the innocent publication would be known to the defendant at once and it would be possible for him to put them into his “statement”. They felt that some statement of facts should be provided to the plaintiff, so that before accepting

the offer of amends he should be in a position to assess whether or not the defendant did publish innocently. However, the replacement of the affidavit procedure by a statement of explanation would allow the media to make an offer of apology without having to consult a solicitor first.

It is not clear that either of the solutions proposed would meet the problem. The plaintiff should be in a position to assess whether the defendant has a case to make in support of his innocence. Therefore, a “statement” by the defendant should at least be required. However, when a media defendant is involved, investigations as to whether the statement was made innocently may take time. It may be impossible to accommodate the necessity for speed required by the section while allowing both sides to consider their position thoroughly. The Australian Law Reform Commission supports this view, stating that –

400.

Malice: The Faulks Committee felt that the requirement that the publisher who is not the author must prove that the author was not guilty of malice, was not only onerous, but also unsound in principle. Since the decision in Egger v Chelmsford,⁴⁸ a publisher in England is not infected by the malice of the author in cases outside s21 unless he is vicariously liable for the acts of the author. This is also the position in Ireland because of s11(4) of the Civil Liability Act, 1961. Therefore, there appeared to be no reason for this requirement of proving lack of malice under s21. We agree that if s21 is retained, this element of the procedure should be abolished.

401.

Title: The New Zealand Committee pointed out that the offer of amends did not anticipate the payment of money, but rather a publication of a correction and an apology to the party aggrieved. They felt that the title “offer of apology” was more appropriate. We feel that the title “offer of apology and correction” is more appropriate.

402.

A number of other matters were examined by the Faulks and New Zealand Committees in relation to the section. At present, under s21(4)(a), where an offer of amends is accepted by the party aggrieved, any question as to the steps to be taken in fulfilment of the offer as so accepted must, in default of agreement between the parties, be referred to and determined by the High Court, or, if proceedings in respect of the publication have been taken in the Circuit Court, by the Circuit Court. The Faulks Committee recommended that such references should be made to the Judge in Chambers. The New Zealand Committee recommended that where the parties fail to agree on the form of the correction or apology they should be encouraged to refer the question to an independent third person. Where either party refused

47 ALRC Report para 88.   48 [1965] 1 QB 248.

 

 

to refer the matter to the third person, the offer of apology would be deemed not to be accepted, and in any subsequent action the question whether a party was acting reasonably would be determined by looking at the willingness of that party to refer the matter to an independent person.

Under s21(4)(b) of our Act, the power of the court to make orders as to costs in an action includes the 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 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. The Faulks Committee recommended a provision to this effect. The New Zealand Committee considered that in any case all the costs of publishing the apology, all the solicitor and client costs of the aggrieved person, and all other expenses reasonably incurred by the aggrieved person should be borne by the publisher. They suggested that it be a requirement of the publisher's offer of apology that he offer to pay these costs.

The Faulks Committee made a further recommendation that where an offer of amends is accepted, the court should also have power to make such order with regard to unsold copies of a publication containing the words complained of as seems appropriate to the circumstances. In its discretion the court may in the order provide for the continuation or resumption of the distribution of such unsold copies unamended or for the inclusion in all such copies of a suitable statement, or alternatively may provide for the withdrawal of all unsold copies of the publication concerned. No such provision is currently contained in our s21.

The Faulks Committee recommended that where an aggrieved person refuses an offer of amends and brings or continues proceedings, the court may, if it is satisfied prima facie that an aggrieved party's complaint relates to insubstantial matters, order that security for costs be given by the aggrieved party. No such provision currently exists in our Act.

The Faulks Committee recommended that it should be set out that an unaccepted offer of amends should not constitute an admission of liability and should not be referred to in evidence in the proceedings, without the consent of the defendant who made the offer. There is no such provision in the Irish Act.

403.

Retention of Section 21

If section 21 is to be retained, we invite views as to whether any or all of the reforms discussed should be adopted, namely;

We provisionally recommend that the provision in section 21 requiring the publisher who is not the author to prove that the author was not guilty of malice be repealed.

Repeal and Replacement of Section 21

404.

The basic idea behind section 21 is to prevent defamation actions in respect of defamatory statements which were innocently published but were actually false. It has been seen that in its present form the procedure is rarely availed of and it is arguable that no measure of reform would salvage its operation. However we agree with its basic premise, namely that negotiations between the parties at an early stage should be encouraged. We also agree that in certain circumstances the publication of a full correction and apology by the defendant should be a complete defence in a subsequent action in defamation. We therefore wish to recommend a provision providing for negotiation and settlement by the parties at an early stage. We would, however, extend the ambit of the provision to cover all defendants who exercise reasonable care. We have tailored this proposal to fit with the defence of reasonable care advocated above.

It is of interest to us that the Annenburg Report canvassed a somewhat similar proposal. Under its recommendation, every plaintiff would be obliged to seek a retraction or an opportunity of reply before commencing suit. If the defendant complies with the plaintiff's request, all subsequent actions involving the particular publication and defendant are barred. The provision goes further than section 21 in making negotiations a pre-requisite to suit, and in applying this approach to all cases of defamation, not merely those in which

the defendant has failed to exercise reasonable care.

405.

We are not in agreement with some of the details of the Annenburg proposal. Our main objection is that actions in respect of all defamatory statements could be barred by the publication of a correction or a reply (depending on the plaintiff's request), even where these statements were made with malice or knowledge of falsity.

406.

We will set out our proposal on negotiation below, but first draw attention to one particular issue. Under section 21, it is the defendant who chooses to avail of the procedure. Under the Annenburg proposal, the plaintiff must make a request. Not only is there a difference between the party who initiates the procedure, there is a further difference in that section 21 is optional whereas a request for correction under the Annenburg proposal is a pre-requisite to suit. We favour the Annenburg approach in this respect because it prevents the plaintiff from proceeding to trial against the defendant's wishes, and if our proposal on the defence of reasonable care is implemented, the plaintiff who sues a defendant who exercises reasonable care will not be entitled at trial to more than a declaratory judgment or a correction order. It seems wrong to allow such a plaintiff to proceed to trial where the defendant is willing to apologise and make a full correction in the first place. The only plaintiffs who would be allowed to proceed would be –

Our proposal on enforced negotiation is as follows:

407.

Provisions for referring questions to the Circuit or High Court concerning the steps to be taken in fulfilment of the request could be included. Such a provision is currently included in section 21, and the Court has a power to make an order with respect to the costs incurred.

We believe that this proposal is a better alternative to the existing s21. However it hinges to a large extent on the acceptance of our recommendation that general damages should only be awarded where the defendant failed to exercise reasonable care. To take an example, let us assume that Mr. A alleges that he has been defamed by a local newspaper and wishes (a) to have the truth of the matter published in the same newspaper, (b) to obtain general damages in respect of the injury to his reputation, and (c) to obtain damages in respect of financial loss clearly linked with the publication.

His first step is to contact the newspaper and ask for a retraction. If the newspaper obliges and publishes a conspicuous retraction within thirty days, this disposes of (a). Obviously he will not go on to claim a correction order and/or declaratory judgment in court because he has already obtained it. The newspaper will be more inclined to retract promptly because this will be a defence to a claim for a correction order and/or declaratory judgment and it saves the costs of a trial to do it early. In many cases, this will be the end of the matter. This is the purpose of recommendation (a) above.

408.

Now look at (b), his claim for general damages. The fact that the newspaper published a retraction is not a defence to a claim for general damages. However, the defence of reasonable care will be a defence to a claim for general damages. So, the advantage in publishing a retraction for a newspaper which feels it has exercised reasonable care is that the retraction will probably end the matter, because if the plaintiff persists in bringing a claim for general damages, the defendant will meet this claim with the defence of reasonable care. So, the apparent rigour of recommendation (b) above is lessened when it is considered in conjunction with the defence of reasonable

care. However, if the defendant will be unable to avail of this defence, the plaintiff will be entitled to go ahead and seek general damages at trial, even after the retraction.

409.

The next consideration is (c), his claim for damages in respect of financial loss. Our recommendation was that the defence of reasonable care would be no defence to such a claim. Clearly neither should the publication of a retraction be sufficient to dispose of the plaintiff's grievance. With his retraction already obtained the plaintiff goes to court and makes out his case for damages in respect of financial loss.

Of course, if the newspaper really believes that it was correct or that the allegation was not defamatory, or that some defence such as privilege applies, or that it was a statement of opinion not an allegation of fact, it can ignore the plaintiff's request for retraction and contest all the relevant issues at trial.

The procedure no more than formalises what would be expected to occur in any event. However it has a number of advantages for the plaintiff. It sets out certain requirements in respect of the retraction, for example the time limit, and that the retraction must be conspicious, probably the most important matter for the plaintiff. From the defendant's point of view, it is useful because the publication of the retraction may well lead the plaintiff to abandon any further claim, since he may not be prepared to bring a case for general damages if he is likely to meet a defence of reasonable care. Also, it makes clear to defendants in defamation actions that the publication of a retraction does not constitute an admission of liability and is a practice favoured by the law.

410.

We provisionally recommend that the publication of a timely and conspicuous retraction as defined above should be a defence to a claim for a correction order and/or declaratory judgment.

 

 

F. THE CASE FOR PROTECTION OF SOURCES

411.

A major complaint of the media is that they are prevented from reporting matters which are in the public interest and which they know to be true but cannot prove in court. The main reason for their being unable to prove the truth of their statements is a reluctance to disclose their sources. The position is a stale-mate; in theory they may publish what they like as long as it is true, but they cannot prove truth in practice. The basis of this reluctance to disclose sources is not entirely clear. One suggestion is that the reporter in question knows that if the source is revealed, no vital information will be passed on to the source in the future or, indeed, his job may be threatened. A second suggestion is that it is simply a matter of journalistic ethics: if a source gives information with the stipulation that his identity is not to be revealed, this should be respected. A clarification from the media as to the reasons for the reluctance to disclose sources would be welcomed. The importance of the distinction will emerge later in the present discussion. However, our impression is that in many cases in Ireland the sources are either other journalists or persons in the public service, including members of the Gardai. In the case of the second category, assuming that our impression is correct, it has to be borne in mind that affording protection to journalists against disclosure of their sources may effectively involve the law in condoning breaches of the Official Secrets Act. It may well be argued that the Act in question is both illiberal in spirit and badly drafted, but in that case the proper path for reform of the law is amendment of the Act which is outside our present terms of reference. Different considerations undoubtedly arise if the journalist's reluctance to disclose his source is on the sole ground that the information was given to him in confidence and no question of a breach of the Official Secrets Act is involved. We think that this distinction must be borne in mind in any discussion of the general problem.

 

 

The customary response to the stalemate outlined above has been to consider new defences for the media so that they do not have to prove truth. Thus there are calls for a media-qualified privilege or a defence modelled on the United States position so that there is a higher burden on the plaintiff if he is a public figure. The merits of these approaches are considered elsewhere.

However a different approach might be to specifically address the root problem. The problem is disclosure of sources. The solution may be to protect sources. There may be ways of enabling witnesses to give evidence without the fear of publicity. Two ways of achieving this are suggested. One is to give the court a power to prohibit the reporting of the identity of the source. The second is to give the court a power to exclude the public, including the media, from the trial.

The Constitutional Problem

412.

Before considering the merits of these suggestions, there is a constitutional hurdle to be overcome. Article 34.1 of the Constitution provides that justice shall be administered in public save in such special and limited cases as may be prescribed by law. A strong case would have to be made to bring this particular type of case within the “special and limited” bracket.

If one examines, by way of comparison, the matters that currently fall within the category of “special and limited” cases, it appears that in each of them, there is a strong reason for excluding the public or restricting the matters which may be reported. This may relate to protection of identity because of the private nature of the dispute (family law matters), protection of identity because of the embarrassing and unwanted publicity attached to the position of the person in question (rape proceedings) and protection of the entire subject matter because the disclosure would be prejudicial to persons dealing with the public (company disputes).

The question then is whether such a good reason exists in relation to witness statements in defamation actions. It is submitted that there are two plausible arguments in favour of this view. There is a significant public interest in the communication of truthful statements about a multitude of matters, especially those matters which concern the national economy, the activities of public figures and national security. It may well be argued that the media is currently prevented from supplying all of the information it possesses to the public, because of the problem of sources. The public interest is therefore the first reason for creating a “special and limited” case. Secondly, the provision of a new defence (such as a media-qualified privilege) may encroach on the constitutional rights of the individual, whose reputation is supposed to be protected. Conversely, failure to provide a new defence and retention of the existing law may be an encroachment on the constitutional rights of the media to express their convictions and opinions. Most people would agree that true statements should be protected, whereas false statements should not; but while

the defence of justification remains a dead letter, there may not be any workable solution which balances the constitutional rights of the individual and the media fairly. Retention or alteration of defences would seem inevitably to tip the balance either way.

This stalemate because of conflicting constitutional interests could be a good reason for bringing the proposed reform within a “special and limited” case within the meaning of Article 34.1 of the Constitution. It may even be stronger than some of the reasons for the existing “special and limited” categories. For example, the discretion to exclude the public under section 205(7) of the Companies Act is so that the interests of the company will not be seriously prejudiced. This is not necessarily a better reason for secrecy than those outlined in relation to the proposed reform.

Assuming that there are sufficiently persuasive reasons for bringing witness statements in defamation actions within the “special and limited” exception to the principle that justice be administered in public, the next question is whether either of the provisions suggested would achieve any improvement in practice. On this point, the response of the media would be particularly welcome.

413.

The first suggestion is that the court should have a power in cases in which justification is pleaded to prohibit the reporting of the identity of witnesses specified by the court. Two objections to this proposal are envisaged. Firstly, the identity of the witness may be revealed by the content of his testimony and the prohibition would be valueless. Secondly, there may be present in the court the very people from whom the source wishes to conceal his identity. However in one American case at least, a court held that it could order that identification of the source be made to counsel only and that it be used for the purposes of litigation only.⁴⁹ In Miller, the action for libel was brought in respect of an allegation that Miller, who had been Trustee of the Central States Pension Fund from 1955 to 1968, had swindled the pension fund out of $1.6 million through a fraudulent loan. The plaintiff discovered that the author had relied on confidential sources to write the article. The court denied three motions to compel disclosure of the identity of the confidential information on the basis that the plaintiff had not exhausted alternative means of proving that the defendant was reckless. After the plaintiff pursued other ways of proving this issue, the district court ordered the defendants to produce summaries of non-privileged parts of the file used to prepare the article which should be for use of counsel only and for litigation purposes only. In addition to the summaries, some non-privileged documents were released to plaintiff's counsel. The plaintiff moved a fourth time for disclosure and this time the district judge ordered disclosure, concluding that the informant's identity went to the heart of the matter. At the request of the defendants, the district judge certified the order for an interlocutory appeal.

49 Miller v Transamerican Press Inc. 621 F.2d 721 (5th Cir. 1980).

 

 

414.

The Court of Appeals for the Fifth Circuit held

415.

A more far-reaching suggestion is to give the court a power in cases in which justification is pleaded to exclude the public, including the media, from the court while a specific witness is giving evidence. This would prevent people unconnected with the presentation of the case from knowing not only the identity, but also the evidence, of the source. The judge and jury would decide whether the plea of justification were made out, but the public would never know on what basis their decision rested. Despite the advantage of this proposal, there are a number of objections to it:

If the the proposal suggested is adopted, the question arises as to whether a “public interest” element should be included. In other words, should the power to exclude the public be contingent upon the case involving a “matter of public interest”? On one view, this is a necessary facet of the power because the constitutional basis of the power argued for was grounded on the fact that such cases were in the public interest. On the other hand, this element would introduce a further indeterminate aspect to the power. Publishers would have to anticipate whether the court will deem the matter

one of public concern, and the courts will have to be relied on to read this requirement liberally. Omitting a public interest requirement avoids this problem but may detract from the constitutionality of the power.

416.

We think that the proposals considered would be ineffective in this country by reason of its size. However, we welcome views to the contrary.

American Law and Sources

417.

The issue of disclosure of sources has become an important and controversial one in the United States since the New York Times decision. This is a result of the different burden of proof on an American public figure plaintiff and an Irish plaintiff. For the purposes of comparison, let it be assumed that in a particular case the defendant newspaper has no defence of privilege or comment and does not come within section 21 of the Defamation Act 1961. In other words the sole issue to be contested is the truth of a factual statement made by the defendant. In Ireland if the defendant does not wish to disclose a confidential source, and this is the evidence on which his statement was based, he knows that a defence of justification is pointless. Once the plaintiff has proved publication and defamatory effect, falsity is presumed and essentially the case is over. The defendant's best option is to settle. By contrast in America, the public plaintiff has no hope of succeeding unless he can show that the statement was made with actual knowledge or in reckless disregard of its falsity. It is therefore crucial for him to know, of the sources on which the defendant based his information. He may show recklessness by showing either “that there were obvious reasons to doubt the accuracy or truthfulness of the informant, or that there was in fact no informant and therefore the article lacked foundation.”⁵¹ Some courts have held that a failure to disclose sources leads to an irrebutable presumption in law that there is no source. If there is no source, the article lacks foundation, and the plaintiff will be able to overcome the New York hurdle of showing recklessness. Therefore American cases have necessitated enquiry into two issues:

A second view is that refusal to disclose sources leads only to a rebuttable factual inference that the defendant has no source. This was the line taken in Maressa v New Jersey Monthly.⁵⁷ In that case, the court held that the presence of a state shield law gave the reporter an absolute protection from disclosure in the absence of a countervailing constitutional right. It distinguished this holding from other cases of a criminal nature where the privilege was held not to be absolute where disclosure was necessary in order to preserve the defendant's right to a fair criminal trial. The court went on to hold that the presence of this absolute privilege in a civil action did not entirely prevent a plaintiff from overcoming the New York Times hurdle. Recklessness might be established by inferential evidence, especially where the

53 408 US 665 (1972).   54 120 N.H. 383, 415 A.2d 683 (1980).   55 507 F. Supp. 880 (D. Haw. 1981).   56 Discussed by Berger, supra footnote 26, without citation.   57 89 N.J. 176, 445 A.2d 376.

 

 

defendant relies solely on the confidential source as the basis of his statement.

It appears that this controversy is inapplicable to Ireland because the different allocation of proof means that the defendant will simply avoid the defence of justification if he is not prepared to disclose sources. It might however become important if a concept of fault were introduced.

Meanwhile, it is interesting to note that a compromise solution has been employed by one American court to date and approved by at least one commentator. Where disclosure of sources is crucial to the plaintiff's case, the court can order the sources to be identified only to counsel and that this information be used for litigation purposes only.⁵⁸ It is encouraging that although the United States system is structured differently, the problem of disclosure of sources has been identified as a central issue and compromise approaches based on disclosure while concealing identity have at least been addressed.

Of interest also are the recent restrictions on reporting imposed by the editor of the American newspaper, The Washington Post, Mr Ben Bradlee. The new code of ethics introduced provides, inter alia, that all sources for facts cited must be mentioned in the text of stories.⁵⁹ Phrases such as “well-informed sources”, “Government sources”, and “sources close to the investigation” would become redundant. This self imposed restriction on journalism is interesting. It leads us to question our assumption that current journalistic practice is acceptable and should be protected. Dr A J F O'Reilly, chairman of Irish Independent Newspapers and a director of the Washington Post, recently adverted to the new code introduced by the Washington Post and urged Irish newspapers to adopt similar standards. Referring to the practice of using anonymous sources, Dr O'Reilly stated:

58 Berger, supra footnote 26, and Miller v Transamerican Press Inc, supra footnote 24, and accompanying text.   59 See Magill, October 1989, p18.   60 See Irish Times, Tues Nov 7 1989.

 

 

G. STATEMENTS OF FACT IN THE CONTEXT OF SATIRE AND FICTION

419.

Two particular types of factual statements are governed by peculiar considerations. The first is the fictional statement. The second is the satirical or sarcastic statement. RTE have raised concerns about the application of defamation law to fictional statements. While it can be argued in court that the context of the matter complained of was fictional and hence non-defamatory, there is a danger that the jury will ignore or downplay the fictitious context. RTE suggest a complete ban on defamation proceedings in respect of fictional works, unless the person can point to special circumstances which would cause the recipient to suspend his or her belief that the work was fictitious. We believe that the problems in relation to works of fiction would be better dealt with under the issue of identification. The real problem with a work of fiction is that defamatory statements may have been intentionally made about a character but the character is intended to be fictitious. It is arguable that a more stringent test of identification should be met where defamatory matter appears in a fictional context. Two American writers have put forward the following test for such cases:

420.

We welcome views as to whether, in cases involving defamatory matter contained in a fictional context, the ordinary requirement of identification should be supplemented by a requirement that the matter be reasonably understood as

61 Rich and Brilliant, Defamation-In-Fiction, 52 Brooklyn L.Rev. 1.

 

 

referring to “actual qualities or events involving the plaintiff.”

Satirical statements present a different problem. The plaintiff is clearly identified but the object of this form of expression is to exaggerate or ridicule his qualities or acts. Satire is a well-established form of criticism directed at public officials and public figures. It will be remembered that our recommended definition of defamation defined defamatory matter as matter which “tends to injure the plaintiff's reputation”. An additional provision could be incorporated stating that “matter which would reasonably be understood as satire is not defamatory”.

421.

In view of the obvious difficulty in securing agreement as to what constitutes “satire” as distinct from scurrility, we doubt whether such a proposal is really practicable. However, we welcome views on the suggestion.

 

 

V. REMEDIES

A. DAMAGES

INTRODUCTION

422.

The central role of damages in respect of defamation is a notable feature of common law jurisdictions. The reason for the pre-eminence of this remedy is historical. Throughout the Middle Ages, jurisdiction over defamation actions was exercised by the ecclesiastical courts. However, over the fifteenth century these courts lost this form of jurisdiction to the secular courts, particularly the Court of Kings Bench. The latter court expanded jurisdiction by permitting the “action on the case”, for words. At this time, most defamation cases were oral and the cases were therefore ones of slander. The cases of slander actionable per se were then developed to cater for other types of slander, which are now the instances of slander actionable on proof of special damage.

423.

Meanwhile the Star Chamber assumed jurisdiction over printing in the interests of public peace and introduced into English law a type of defamation based on form rather than damage. Following the abolition of the Star Chamber in 1641, the common law courts succeeded to its jurisdiction in defamation. The offence became a common law misdemeanour and the wrong became a tort. It seems that the principles developed by the Star Chamber in relation to breaches of the peace influenced a general doctrine of libels fixing libel as a wrong for which damage would be presumed. The result was that the torts of slander and libel, of quite different origins, became subsumed under the common law jurisdiction, in which the remedy of damages was the sole remedy available.

The influence of a legal structure dominated by this remedy cannot be underestimated. It has influenced the defences available and induced a feeling that liability necessitates payment of money, and that compensation is effected only by receipt of cash. In this Paper we question these assumptions and explore

the extent to which other remedies have a role to play in defamation cases. However we accept that damages will continue to play some role in defamation and accordingly examine possible reforms of this topic.

424.

Under existing law, the central remedy in the law of defamation is therefore the power to award damages. There are four heads of damages – compensatory, punitive, nominal and contemptuous. The latter two may be quickly disposed of as they are of lesser significance. A plaintiff may seek only nominal damages where his motive is solely to clear his name of the defamatory imputation. Contemptuous damages may be awarded where the jury considers that although the plaintiff is technically entitled to succeed, he should not have brought the action and they record their disapproval by awarding a trivial sum of damages.¹

Compensatory Damages

425.

Compensatory damages serve two functions:

Punitive Damages

426.

Punitive damages are awarded to punish the defendant for his conduct where this has been particularly oppressive, and to deter others from acting in a similar manner in the future. The role of punitive damages in England was re-assessed by the House of Lord in Rookes v Barnard.² It was held that punitive damages could only be awarded where the case fell into one of three categories:

This decision was affirmed in Broome v Cassell & Co.³

The existing Irish position on punitive damages is unclear, but it has been persuasively argued by at least one Irish commentator, on the basis of cases decided since 1964 and the Civil Liability Act 1961, that punitive damages continue to have a place in Irish law; and further that they are not currently subject to the restrictive categories of Rookes v Barnard.⁴ If this is so, it is suggested that the basis on which punitive damages may be awarded in defamation cases should at least be clarified. However, as it is still open to the Legislature to abolish punitive damages in defamation law, it is proposed to examine the arguments for and against the retention of punitive damages in Irish law at a later stage. First, however, we consider the operation of the remedy of damages in defamation cases in general terms.

Reforms in Relation to Damages Awards

427.

There is a general feeling among the media and booksellers that the current level of damages is unwarrantedly high. It is also felt that this is due in some part to the influence of certain large awards made to plaintiffs in English cases, such as Jeffrey Archer who received £500,000, Koo Stark who received £300,000, and Sonia Sutcliffe whose award of £600,000 was reduced to £60,000 on appeal. The highest award to date is the most recent – a sum of £1.5 million to Lord Aldington in the Repatriation of Cossacks case.⁵ Whether such cases in a neighbouring jurisdiction do in fact influence Irish juries is debatable. Nonetheless it is also felt that some awards by Irish juries themselves are unreasonably high and that, as a result, when settling a case, the Irish plaintiff will forego a trial and settle only in return for a substantial sum. Until recently, no awards on the scale of recent English awards have been in evidence in this jurisdiction. The larger awards include £25,000 to Joe Lynch, the actor, and £30,000 to Patrick Madigan, a solicitor; while the £60,000 awarded to the plaintiff, a Dail deputy, in Barrett v Independent

3 [1972] AC 1027.   4 Exemplary Damages in Irish Tort Law, White, 1987 ILT & SJ, Vol 5 (NS) No 3, 60. It appears from the newspaper report of the recent INTO case that the Supreme Court, in upholding an award of exemplary damages, justified the award by reference to the infringement of the plaintiffs' constitutional rights. Thus it would seem that the categories set out in Rookes v Barnard do not apply in this jurisdiction: See Irish Times, Friday 15 February 1991.   5 Reported Irish Times, 1 Dec 1989.

 

 

Newspapers⁶ was set aside on appeal and a new trial ordered. More recently, however, the awards have been rising. In the Cusack case⁷ the plaintiff was awarded £40,000; in the Dineen case⁸ the sum awarded was £77,000. The latest award is the highest; a sum of £135,000 was awarded in favour of the plaintiff, Francis McNamee, against the Daily Mail.⁹

It will be observed that, while awards in such actions in Ireland are undoubtedly increasing, the highest are still appreciably lower than the highest awards in England. It should also be borne in mind that one of the criticisms frequently advanced against the English awards – that they are grossly disproportionate to awards made by judges in personal injuries actions – can hardly be advanced in this country with anything like the same force. Not only are defamation awards somewhat lower; awards for personal injuries are also significantly higher in most cases than in England. (It remains to be seen, however, whether this latter feature will persist once the practice of trying personal injuries cases without a jury has become well established).

428.

In the absence of grossly excessive damage awards, the question of whether damages are unreasonably high and disproportionate to injury in this jurisdiction is largely a matter of opinion, particularly depending on what link the speaker represents in the defamation chain – author, publisher, victim, observer. Nonetheless we feel that a just system of awarding damages would try to ensure as far as possible that the damages were in proportion to the injury. It may be that the risk of disproportion may be increased where there is a jury; it might be decreased where there is guidance as to the factors which would affect damages. We propose to examine a number of possible alterations in the law which are intended to ensure that damages in such cases are reasonably proportionate to the injury suffered.

429.

In view of our recommendation that the defence of reasonable care should be available in respect of a claim for general damages, our consideration of reforms in the area of damages is of necessity directed to awards of damages in cases where the defendant has either failed to raise the defence of reasonable care, or has raised this defence and failed to make it out to the satisfaction of the court. An award of punitive damages, if this category is to be retained, would also arise in this context.

We deal with reforms in the area of damages under the following headings:

Abolition of the jury would arguably have a strong impact on damages. We discuss this topic separately below.¹⁰

(1) REFORMS OF THE PRESENT ROLE OF THE JURY IN DEFAMATION CASES.

(a) Discretion as to whether there should be a jury trial

430.

The court could be given a general discretion to decide in each case whether it is in the interests of justice that the trial should be by jury, in default of agreement between the parties. This was one of the proposals of the Faulks Committee.

This is to some degree implemented in the English Supreme Court Act 1981, section 69, under which a trial of a slander or libel action is tried by jury upon the application of either party, unless the court is “of the opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury”.¹¹

(b) Retention of jury for questions of fact only

431.

The jury could be retained to decide such matters as whether the words are in fact defamatory, or whether publication was reasonably foreseeable. The power to award damages could be reserved to the judge alone.

This suggestion has a number of advantages. The jury make a valuable contribution to defamation cases in that they alone are in a position to assess what the ordinary man would understand the words to mean and what the ordinary man would anticipate. The standard of the “reasonable man” loses artificiality and gains flesh when a jury is present in the courtroom. However, giving the power to award damages to the judge leaves this exercise to a person who has a wide range of experience in this matter and who may be expected to operate in a less arbitrary fashion. Furthermore it would presumably be easier to appeal a judge's award of damages than that of a jury.

(c) Combined role of judge and jury with regard to damages

432.

(d) Retention of jury for questions of fact and damages, subject to judicial instructions on damages

433.

If it was thought that the present jury role should be interfered with as little as possible, this suggestion might be welcomed. Again the public confidence might be increased by giving the core power to the jury, while fears of arbitrary awards would be reduced by the presence of judicial instructions. It is submitted that if no other option is considered attractive, judicial instructions at least should be recommended. A number of variants are possible.

434.

These two suggestions from RTE are attractive. They enable the defendant to know the precise basis of the award, which is crucial if he wishes to appeal on this ground. Furthermore, it forces a jury to be careful in arriving at figures. Finally, it addresses a problem mentioned by RTE, namely that there is a tendency at present to over-emphasise the “hurt feelings” aspect of the case to the virtual exclusion of the reputational injury part of it.¹³

(2) STATUTORY GUIDANCE AS TO FACTORS WHICH SHOULD AFFECT DAMAGES

435.

We believe that a statutory provision should set out the factors to be considered in the assessment of damages, whether or not the jury is to play a role in this area. We note that the Australian Commission included a provision in their draft Bill listing the factors to be considered in assessing damages.

The next question is what these factors should include. In Barrett v Independent Newspapers¹⁴ factors were set out which the judges felt should affect the damages awarded – the nature of the libel, the standing of the plaintiff, the extent of the publication, the conduct of the defendant at all stages of the case, social disadvantages to the plaintiff, and injury to feelings.

The factors chosen by the Australian Commission were as follows:¹⁵

Other Factors

436.

In addition to the above factors, we believe that a number of reforms recommended in the Australian Report necessitate the inclusion of certain other factors. For example, if the distinction between libel and slander is abolished, regard should be had in assessing damages to the permanence or transiency of the publication. We have also recommended the repeal of s22 of the Defamation Act 1961 which allowed the conversion of a partial justification to a full justification and recommended its replacement by a return to the common law rule on partial justification, provided the extent to which the truth of the whole publication is proved is considered by the court when assessing damages. This would be another factor in the provision on assessment of damages.

Circulation

437.

We also believe that the circulation of the libel should be considered by the court when assessing damages. There is English authority to the effect that this factor is extremely material to the calculation of damages.¹⁶ Logic would dictate that this factor could determine to a large extent the impact of the defamation and should be a crucial element in any assessment of damages. We would therefore include a provision stating that the court should have regard to the circulation of the libel. However, in a case of words innocent

16 See above Part 1, Present Law.

 

 

on their face but which become defamatory by reason of extrinsic facts known to some of the recipients of the matter, it may well be that the circulation of the publication would far exceed the circulation of the libel strictly speaking. For example, a newspaper read by thousands of people might state that Mrs. X had a child in 1955, but only a handful of those readers would be aware that Mrs X was unmarried until 1960, thereby rendering a statement innocuous on its face potentially defamatory. We believe that a provision should state that where words innocent on their face become defamatory by reason of facts known only to particular recipients, the circulation of the libel should be deemed co-extensive with an estimate of the people who had knowledge of these facts.

Importance of Recipients

438.

We also believe that the importance of the circulation of the libel in some cases should not lessen in significance the fact that in other cases serious damage may be caused although the circulation of the libel is minimal. For example, if there is only one recipient of the defamatory communication but that recipient is the plaintiff's potential employer, serious injury may well have been caused. We would therefore provisionally recommend a statutory provision stating that the Court should have regard to the importance to the plaintiff of his reputation in the eyes of the recipient(s) in question.

State of Mind of Defendant

439.

We believe that the state of mind of the defendant is a factor which merits some consideration. We have provisionally recommended in this Paper that a claim for general damages be barred where the defendant shows that he met a standard of reasonable care. Therefore a defendant who is faced with the prospect of a damages award is necessarily a defendant who has failed to exercise reasonable care. To this extent the state of mind of the defendant has been incorporated into the substantive law and is no longer a crucial enquiry at the damages stage. However, some distinction could be made in terms of damages between a defendant who was negligent and one who was malicious. Therefore the state of mind of the defendant could be included as a factor relevant to damages.

440.

More importantly, if our defence of reasonable care is rejected, we feel that it is imperative that the court should take into account the state of mind of the defendant in assessing damages. Otherwise similar sums may be awarded in respect of the most accidental and the most malicious libel. We would therefore provisionally recommend that the state of mind of the defendant should be a factor affecting damages particularly if our defence of reasonable care is rejected.

Plaintiff's Reputation

441.

We also believe that one of the factors listed should include the

plaintiff's reputation. In this context the rule in Scott v Sampson¹⁷ requires discussion. The general rule is that the defendant may lead evidence of the plaintiff's bad reputation in order to mitigate damages. In England, however, under the rule in Scott v Sampson, only evidence of general bad reputation may be admitted. The defendant is not entitled to lead evidence of particular acts of misconduct of the plaintiff, even though these might show that he deserved a bad reputation. In short, the defendant may prove that the plaintiff in fact had a general bad reputation, but not that he ought to have had such a reputation. It is not clear whether this strict position was ever in fact adopted by the Irish courts. In England, the rule has been relaxed to some degree by decisions which hold that a defendant may prove in mitigation of damages certain previous convictions of the plaintiff, or holdings in civil cases involving the plaintiff, on the grounds that such convictions or judgments are evidence that the plaintiff actually has a bad reputation. The Porter Committee noted that the main reason for the limiting by Cave J in Scott v Sampson of admissible evidence to evidence of general bad reputation alone, was that in practice to allow otherwise would impose a burden on the plaintiff to show “a uniform propriety of conduct during his whole life”, and would give rise to interminable issues only bearing remotely on the issue in dispute. However, the Porter Committee found that the theoretical soundness of the rule in Scott v Sampson led to curious and inequitable results in practice. It is worth setting out their comments at length:

17 (1882) 8 QBD 491.

 

 

442.

In Ireland at least some of the reasoning of this passage must be regarded as of dubious relevance. It is a rare event indeed for a plaintiff not to go into the box and, in the event of his taking that unusual course, it is most unlikely that the jury would be disposed to award him very much in the way of damages. Be that as it may, the Porter Committee recommended the abolition of the rule in Scott v Sampson to the extent that it excludes the giving of evidence of specific instances of misconduct on the part of the plaintiff. They recommended that the defendant, provided he gives due notice to the plaintiff, should be allowed to rely on mitigation of damages upon specific instances of misconduct and be entitled to call evidence in chief and to cross-examine the plaintiff in support of those allegations. However, the defendant should not be entitled, in the absence of a plea of justification, to rely on the facts in the publication complained of – for this would be an attempt to justify under the disguise of giving evidence in mitigation of damages.

18 Porter Committee Report, paras 149–152.

 

 

This recommendation of the Porter Committee failed to become part of the Defamation Act in England simply because it would not have been possible to complete the Third Reading of the Bill on the relevant day if the clause had been put to the House. The Faulks Committee in turn recommended the same change to the existing law, recognising that although it might in some, and it hoped rare, cases increase the length of the trial, it would reduce the abuse of procedure to which such trials were now subject. However, it qualified the matters, including specific acts of misconduct, that might be raised to matters relevant only to that aspect of the plaintiff's reputation with which the defamation is concerned. For example, if the defamation concerns the business integrity of an individual, the defendant may not adduce evidence of specific acts of sexual impropriety to show that he had a bad reputation, since this has no bearing on the defamation at issue. The Porter Committee recommendation had contained no such limitation.

The Faulks Committee recommendation reads as follows:

The New Zealand Committee and the Australian Law Reform Commission agreed that the rule in Scott v Sampson was too restrictive and recommended that the defendant be entitled to rely on specific instances of misconduct in order to mitigate damages, provided that these acts were relevant to that aspect of the plaintiff's reputation with which the defamation was concerned. The New Zealand Committee recommended that a provision be enacted requiring a proper form of notice to be given to the plaintiff if the defendant intends to adduce evidence of the plaintiff's bad character. Our Order 36, Rule 36 would appear to cover the situation already.

443.

Although Irish law may never in fact have adopted the restrictive rule in Scott v Sampson, it would be advisable to clarify this area. Accordingly, we provisionally recommend a provision similar to that proposed by the Faulks Committee. This would allow the defendant to introduce in mitigation of damages any matter, general or particular, relevant at the date of trial to that aspect of the plaintiff's reputation with which the defamation is concerned.

Financial loss

444.

A further issue for consideration in this context is the role of financial loss in defamation actions. At present damages in respect of financial loss resulting from a defamation may be awarded. We accept that recovery for

19 Faulks Committee Report, para 372.

 

 

financial loss should be allowed but feel that it should be specifically pleaded and proved, and subject to restrictions. Damages in respect of reputational injury are assessed by the court without the plaintiff having to show actual damage precisely because of the difficulties of such proof. No such difficulty obtains in the area of financial loss and we find it unsatisfactory that damages for financial loss should be at large. We would provisionally recommend that damages in respect of financial loss may be awarded in a defamation action only where the plaintiff shows

Emotional Distress

445.

Finally we believe that the position in relation to emotional distress should be examined. It may be that this factor is being given increasing prominence on influencing damage awards. RTE have complained that counsel in libel actions tend to base their presentation on the emotional distress caused. Furthermore, in an English case in 1967 the plaintiffs were awarded compensation for feelings of “anxiety and annoyance” although it was expressly stated that the injury to reputation was negligible.²⁰ We believe that this development in particular is undesirable. If damages are awarded in respect of something quite distinct from injury to reputation, where there is no injury to reputation, this would seem to be straining the concept of the action in defamation.

It is a different matter if injury to reputation in involved and damages for injury to feelings are classed as a head of damages. We accept that damages for hurt feelings are acceptable in this case. However, we invite views on methods of controlling this factor so that it neither dominates the presentation of the case nor the award of damages.

Having considered all the factors which we consider relevant to the Court's assessment of damages, we now set our provisional recommendations on factors which should be taken into account by the Court when assessing damages.

(3) ABOLITION OF PUNITIVE DAMAGES

The Reform Bodies on Punitive Damages

446.

The Faulks Committee regarded the categories of Rookes v Barnard with disfavour and recommended the abolition of punitive damages in defamation

law for a number of reasons.²¹ First, it seemed illogical that a person who committed a tort calculating to make more money out of it than the damages and costs that might be awarded would be regarded less favourably than a person who committed a tort out of sheer malice in order to break an innocent neighbour regardless of the cost. Secondly, they disliked the fact that punitive damages are given to a private individual as opposed to the State, as in the case of a fine. Thirdly, they felt that in a proper case, aggravated compensatory damages might be very substantial and justice would be satisfactorily achieved by abolishing the fine and resting damages for defamation purely on compensatory grounds. Fourthly, the safeguards of a criminal trial were absent: the basis on which punitive damages were awarded was vague, the award was made by a jury rather than a judge with experience and training, and there was no appeal. The best that an appellate court could do would be to quash the verdict and order a retrial.

The New Zealand Committee thought by contrast that there was a place in defamation law for punitive damages. However, they endeavoured to meet some of the criticisms of the Faulks Committee. First, they recommended that such awards be left to the judge and not to the jury. Secondly, they thought that the categories set out in Rookes v Barnard were too restrictive. They preferred the formulation of the High Court of Australia in Uren v John Fairfax & Sons Ltd²² under which punitive damages may be awarded if there is evidence that the defendant's conduct was high-handed, insolent, vindictive or malicious, or in some other way exhibited contumelious disregard of the plaintiff's rights. This met the problem of illogicality complained of by the Faulks Committee. The New Zealand Committee also recommended that a judge be given an express power, in a case in which punitive damages are warranted, to direct instead, or in addition, that the defendant pay the plaintiff's solicitor and client costs.

The Australian Law Reform Commission opted for the abolition of punitive damages and gave three short reasons for its proposal. First, it was felt undesirable that one person should profit by the punishment of another. Secondly, it was felt that punishment should not be inflicted in civil proceedings, without the safeguards of a criminal trial. Finally, it was inconsistent with Australian practice to permit a jury not only to decide liability but also to assign punishment.

The Annenburg Washington Program Report on Libel recommended the abolition of punitive damages, saying²³

21 Faulks Committee Report, paras 355–6.   22 (1966) 117 CLR 118.   23 At p 25 of the Report.

 

 

447.

By way of summary, then, it may be stated that three of the reform bodies recommended the abolition of punitive damages in defamation law, while one body recommended its retention. The body recommending its retention did not base the category of case in which punitive damages could be awarded on the categories set out in Rookes v Barnard, but rather on a more general test formulated in Uren v John Fairfax, and further recommended that such awards be made only by a judge.

448.

Arguments in Relation to Punitive Damages

449.

In addition to these counter-arguments a number of positive points may be made in favour of punitive damages.

450.

We suggest that a test modelled on the Australian provision should be considered. However, we do not favour the use of the word “malice” given its ambiguous history in defamation law. The following is an example of the type of provision envisaged –

In view of the recent award of exemptory damages upheld by the Supreme Court in the INTO case,²⁸ a further possibility would be to allow awards of exemptory damages where there has been an infringement of the plaintiff's constitutional rights.

(4) ROLE OF THE APPELLATE COURT

451.

Since Holohan v. Donohue²⁹ the Supreme Court has recognized its jurisdiction under Article 34.4.3 of the Constitution to substitute its own figure for a jury's award of damages on appeal in a civil case. No exception in relation to defamation actions was envisaged by the Supreme Court in that case. However, it should perhaps be made clear in statutory form that the Supreme Court does have this jurisdiction in defamation cases. This power clearly lessens the fear of unreasonable damage awards being allowed to stand.

We therefore provisionally recommend for the removal of doubt a statutory

27 Epstein, Was New York Times v Sullivan Wrong?, 53 U. Chicago L.Rev. 782, 814.   28 Reported Irish Times, Friday 15 February 1991.   29 [1986] ILRM 205.

 

 

provision stating that the Supreme Court has the power to substitute its own figure for an award of damages in an action for defamation which has been found by it to be unreasonable.

B. INJUNCTIONS

Interlocutory Injunctions

452.

The granting of an interlocutory injunction in a defamation case is rare. The courts do not wish to impose prior restraints on free speech and they are also reluctant to usurp in advance the function of the tribunal which will eventually try the case. As a result an interlocutory injunction will not be granted if (a) there is any doubt that the words are defamatory, or (b) the defendant intends to plead justification,³⁰ and probably any other recognised defence,³¹ and it is not manifest that such defence is bound to fail.

The Faulks Committee, New Zealand Committee and the Australian Law Reform Commission all refused to alter these principles and agreed that the power to grant interlocutory injunctions in defamation cases should continue to be exercised with caution.

Nonetheless, there are two matters which might be clarified in this area. The first concerns the rule in Bonnard v Perryman. It was noted above that in some cases where the defendant said that he would plead justification, fair comment or privilege, this was held automatically to preclude the granting of an interlocutory injunction³² whereas in other cases, the affidavits were examined in order to see if there were any grounds for the defence.³³ It is submitted that the latter course is preferable. An automatic refusal of an injunction merely because the defendant has stated his intention to plead one of these defences at trial might lead to abuses of the rule. The court should examine the affidavits in order to see whether a case for consideration by the jury has been made out. We recommend a provision along the following lines:

Where in the course of proceedings for defamation the plaintiff seeks an interlocutory injunction restraining publication of allegedly defamatory material,

453.

The second clarification that might be made is in response to the ACC

30 Under the rule in Bonnard v Perryman [1891] 2 Ch 269.   31 Halsbury's Laws of England, 4ed, vol.28, para. 168.   32 Gallagher v Touhy (1924) 58 ILTR 134.   33 Cullen v Stanley [1926] IR 73. See para 144, Current Law, at p 133–4.

 

 

case, discussed in detail in Part I.³⁴ It appears that in this case an ex parte injunction was ordered and that a prohibition was imposed upon the reporting of the fact of the injunction itself. It was suggested³⁵ that such a ruling might not have been competent under s 45 of the Courts (Supplemental Provisions) Act 1961. The media have expressed their anxiety about the prohibition imposed in this case. It may be that no statutory provision is required to respond to what appears to have been a deviation from the normal manner of granting injunctions. However, the media have suggested that this has occurred on more than one occasion. Accordingly, it is suggested there be a provision making it clear that, where an injunction is issued to restrain a publication, the court has no power to prohibit the reporting of the fact of the injunction.

C. PROCEEDINGS FOR DECLARATORY JUDGEMENT

454.

Under Order 19, rule 29 of the Irish Rules of the Superior Courts and Order 15, rule 16 of the English Rules of the Superior Courts, there is a general power in the Court to make a declaratory judgment or order whether or not consequential relief is claimed.

The Faulks Committee noted that this power had not been invoked in practice in defamation actions, because it was normally assumed that there must be a claim for damages. They recommended for the avoidance of doubt that a Rule of Court should clarify that an action for a declaration alone can be brought in defamation proceedings. Plaintiff's who wished to clear their reputations without claiming damages might wish to avail of this procedure.³⁶

The Boyle/McGonagle Report pointed out the advantage of the declaratory order to a plaintiff who wishes speedily to redress the harm done to his reputation and does not wish to obtain damages. However it observed that a declaratory order would have no great attraction for a plaintiff unless it were promptly available. It noted that under Order 3(20)(21)(22), a special procedure was available, which allowed for proceedings to be commenced by a special summons and dealt with speedily (Order 38). The Report recommended that this procedure be better publicised and its status as an alternative remedy to a suit for damages be expressly set out in a new Defamation Act.³⁷

455.

We should distinguish at this point between what we term “proceedings for a declaratory judgment” and the remedy of “the declaratory judgment”. We recommend elsewhere the introduction of the new remedies of the correction order and the declaratory judgment. These would be available to the judge in the ordinary action in defamation, set down for trial in the ordinary way

34 See above under Present Law.   35 By Casey, Constitutional Law in Ireland, p455.   36 Faulks Committee Report, para 378.   37 Report on Press Freedom and Libel, paras. 5.38–5.39.

 

 

and in which all the normal defences are available. We envisage proceedings for declaratory judgment to be a different type of proceeding altogether, the main features being that it would be set down for early trial, it would be limited to the issue of falsity of the statement, and that the declaratory judgment would be the only remedy available.

The declaratory judgement has increasingly become the focus of attention in the United States. It is particularly fortunate that a detailed discussion of two separate Bills providing for the remedy of the declaratory judgement was undertaken by two American writers, supplying us with the arguments for and against different aspects of this remedy. The two articles are written by Professor Franklin of Stanford University and Associate Professor Barrett of Rutgers University and the two Bills discussed are one put forward by Professor Franklin, and one introduced by Congressman Charles Schumer.³⁸ We propose to examine these Bills as a foundation for the introduction of proceedings for declaratory judgement.

The Franklin Bill

456.

The following is a summary of the essential parts of the Franklin Bill –

Section 1 –ACTION FOR DECLARATORY JUDGMENT THAT STATEMENT IS FALSE AND DEFAMATORY

Section 2 –LIMITATION OF ACTION

457.

Section 3 deals with proof and recovery in actions for damages; while section 4 deals with costs, providing incentives to use the declaratory judgment remedy. It must be recalled that in the United States each party bears his own costs.

Attention may be drawn to a number of features in this Bill:

As Franklin points out, the “crucial question” is whether plaintiffs will avail of the proposal in practice. His proposal offers a number of advantages to U.S. plaintiffs which would not apply to Irish plaintiffs, such as the fee shifting provisions and the fact that the trial is a no-fault one. It is submitted that the remedy is nonetheless an attractive one for Irish plaintiffs because (1) it is speedy (2) it is less costly, and (3) it specifically addresses the issue most important to the plaintiff, namely the falsity of the statement.

Since falsity is the only issue litigated in such a case, it might be unfair to leave the current presumption of falsity in actions for declaratory judgment. An Irish defendant might well be unable to contest a declaratory judgment action at all, unless he comes within a statutory or common law privilege. It might be more just to place the burden of proof of falsity in actions for declaratory judgments on the plaintiff.

The Schumer Bill

458.

The Schumer Bill embodies many of the features in the Franklin Bill, such as the burden of proof, the effect of opting for a declaratory judgment,

 

 

the limitation period and the importance of fee-shifting provisions. There are four major differences in the Schumer Bill however:

Election by the Defendant – The Pros and Cons

459.

Although the point may seem to be a simple one as to whether the plaintiff alone, or both plaintiff and defendant, may choose the declaratory option, the issue is much wider. If the plaintiff only is allowed to elect, the declaratory route merely becomes an alternative to damage actions. If the defendant also may elect, we are looking at the potential demise of damage

actions. As Professor Franklin states –

460.

Accordingly it is to be expected that damage actions would be allowed to continue in only a small number of cases if the defendant is permitted to convert an action for damages into proceedings for declaratory judgment.

461.

It is arguable that at least some newspapers do not rely on a reputation for accuracy to boost sales, as Barrett suggests, but rather on the sensational nature of their content. This undermines Barrett's argument.

462.

A number of final points may be made. The Franklin Bill does not include a provision mandating publication by the defendant of the judgment in a declaratory action. Franklin acknowledged this omission and thought that it was sufficient that the plaintiff emerged with a judicial declaration which he could show to employers, creditors, acquaintances and others. Furthermore, it would be expected that other media would report the fact of the judgment. However, he thought that a mandatory publication of judgment involved meddling with editorial process –

We are not satisfied that this should necesarily be the case in Ireland in the light of the practice in other countries of ordering publication of judgment.⁴²

463.

The second point is that Franklin leaves all common law and statutory privileges in place for the declaratory judgment action, thereby including qualified privilege. Barrett suggests that since qualified privilege protects interests which are less important than those served by absolute privilege, a plaintiff in the former case should arguably be entitled to set the record straight in a declaratory action.

In our discussion of absolute privilege, we questioned the fairness of affording a complete immunity to certain statements. One advantage of introducing the

41 Barrett, supra footnote 38, 871.   42 e.g. France, see below.

 

 

declaratory judgments would be that it would be possible to allow a person injured by a defamatory statement in circumstances to which absolute, or indeed qualified privilege, applies to seek redress in a form other than damages. Since the defences of absolute and qualified privilege were introduced in a legal context in which damages were the only remedy, some re-thinking of these defences is necessary if new remedies or new types of proceedings are introduced. We feel that the balance between freedom of expression and protection of reputation requires that damages should not be recovered in respect of statements in circumstances to which absolute and qualified privilege traditionally applied, but that the balance might require that declaratory judgment proceedings should be available to persons injured in such circumstances.

464.

We provisionally recommend the introduction of proceedings for declaratory judgment. We set out a skeleton of a provision on such proceedings and invite views on a number of topics–

Action for Declaratory Judgment that Statement was False and Defamatory.

465.

Some of these provisions are linked with our recommendations in a previous chapter on Request as a Pre-requisite to Suit. This required the plaintiff to request a timely and conspicuous retraction prior to bringing an action and proceedings were barred if the defendant obliged. The plaintiff could only proceed with an action if (1) he was refused a retraction, or the retraction was not timely or was not conspicuous, or (2) the plaintiff alleged a lack of reasonable care. This in turn is interwoven with our recommendation on the defence of reasonable care. If both of these recommendations are adopted, there would be no need to define the terms used in the section on declaratory proceedings. Instead, paragraph (e)(2) of the provision on declaratory proceedings could state:

466.

We invite views on the following possible additions or alterations to the proposed provision–

 

 

D. CORRECTION ORDERS

467.

At present the court has no power to order a defendant to publish a correction of the mistaken impression caused by his publication. Considerable attention was devoted by the Australian Law Reform Commission to this new remedy.⁴³ They recommended that the Court be given the power to make such an order. This suggestion commanded overwhelming support, including all of the major media interests in Australia.

One major concern expressed, however, was whether these orders would replace damages. The Commission recommended that the correction order would be available in addition to damages; however, in awarding damages, the court should be required to take into account the likely effect of the correction and compensate the plaintiff for any residual damage to his reputation only. In many cases this residual damage would be small as the correction order would go far to reducing the damage done. In other cases, as where there was delay, the correction order would not significantly reduce the injury done, and the residual damage would accordingly be higher. In some cases, the correction order might be of no assistance at all, in which case it should not be granted. The damages award and the correction order would be like opposite ends of a see-saw. The court starts by asking how much the correction order will reduce the injury, and the more it does so, the less damages are awarded; the less it does so, the higher damages are awarded. The Australian Law Reform Commission hoped that this additional weapon for the courts would release them from their inhibitions regarding defences.

The Australian Law Reform Commission proposals on correction orders were set out in their draft Bill in the following terms:

43 ALRC Report paras 251–2 and 257–9.

 

 

468.

We are in favour of the introduction of the correction order as an additional remedy in Court. It should be available to the plaintiff in all cases where the defendant has failed to establish the actual truth of a defamatory allegation of fact. If introduced in conjunction with the defence of reasonable care to a claim for general damages, the correction order would therefore be available:

We note in respect of (a) above that we consider that a correction order

44 Section 11 relates to defamation of the dead.

 

 

should issue even where the defendant has established reasonable care because by failing to prove actual truth, he has accepted in law that the statement is false. This is in harmony with our view that a correction order should issue in all cases where the truth of a defamatory allegation of fact has not been established by the defendant. We note also that a correction order may not be awarded in respect of a statement of opinion, since there is no such thing as a true or false opinion.

We provisionally recommend that the Court should have the power to award a correction order where the defendant has failed to establish the truth of a defamatory allegation of fact.

E. DECLARATORY JUDGMENT

469.

The essence of a correction order is that it is directed at a particular defendant and directs that defendant to publish particular material i.e. a retraction and a correction of the defamatory matter. We realize that in certain cases a correction order may not be appropriate, because it assumed that the defendant is a press or media organ. We propose the remedy of the declaratory judgment for situations where the plaintiff wishes to obtain a more general order of the court stating simply that the matter is false. For example, an employee who has been defamed by a fellow employee could present this judgment to his employer, or to a prospective employer, or could use it in proceedings in respect of unfair dismissal. We therefore see the declaratory judgment as a necessary counterpart of the correction order.

We provisionally recommend that the Court should have the power to issue a declaratory judgment stating the defamatory matter to be false where the defendant has failed to establish the actual truth of a defamatory allegation of fact.

F. RIGHT OF REPLY

470.

Under existing Irish law, there is no legally enforceable right of reply. Some newspapers offer it as one of their services. In France and Germany, however, the right of reply is a legally enforceable right.⁴⁵

France

The right of reply was introduced into French law by article 13 of the Act of 29 July 1881 on press freedom. Under article 13, the director of a written publication is obliged to insert the reply of any person, physical or legal, who has been named or designated in the publication free of charge and within a specified time period. A crucial point to note is that the individual requesting the right of reply need not show that the original statement was false or that

45 The following summary of the French and German Rights of Reply is based on the ALRC Report, p 95, fn 138 and material provided by Marie McGonagle, co-author of the Boyle/McGonagle Report on Press Freedom and Libel.

 

 

it caused harm. The mere mention of his name is sufficient to ground the right. Interestingly, the potential for far-reaching effects on the content of newspapers has not been fulfilled:

The time periods in which the reply must be printed are different with respect to daily newspapers and other periodicals. In the case of dailies, the reply must be printed within three days of receipt, except during election periods where the period is reduced to 24 hours. With regard to other publications, the reply must appear in the first issue to appear more than 2 days after receipt of the reply.

The reply must be given equal prominence to the article which was complained of, and must generally be of the same length, with minimum and maximum limits of 50 lines and 200 lines respectively. The reply must be printed free of charge. If the individual wishes to pay for additional lines, this does not entitle him to insist on a reply longer than the maximum 200 lines or the original article.

If the individual is met with a refusal to publish his reply, he may resort to a court action. Refusal to publish is a criminal offence punishable by fine or imprisonment of the director. The court must give judgment within 10 days, as speed is the aspect of the remedy which promotes its efficacy.

The broadcast media are governed by different legislation concerning the right of reply. The Act of 29 July 1982 replaces the provisions governing the right of reply contained in the Act of 3 July 1972 (as amended by a Decree of 13 May 1975). Under the 1972 Act, the remedy was limited to the state broadcasting system and was administered by a specially composed commission instead of the ordinary courts. It was not available to legal persons and it was necessary for the individual concerned to prove harm resulting from the statement. These features have now been altered so that (i) the right of reply extends to private broadcasting stations, (ii) it extends to legal persons, (iii) it is administered by the president of the Tribunal de Grande Instance acting in his capacity as referee (an urgent and speedy procedure) and (iv) it is necessary to show only that the statement was capable of causing harm.

Despite the reduced requirement that the individual need only show that the statement was capable of causing harm, it is still a major point of difference between the rights of reply in relation to the press and the broadcast media respectively. It will be recalled that the right of reply in relation to a press

46 Article 19, Freedom of Information and Expression in France, 1989, p15.

 

 

statement is exercisable where the individual was merely mentioned or indicated. It has been found that the right of reply in relation to the broadcast media has been of little practical value, since all demands for reply are contested on the ground that the original statement was not capable of causing harm and the resulting delay denies the remedy of the speed which is crucial to its efficacy.

Election periods– All rights of reply are affected during election periods. In the case of dailies, the obligation to publish a reply within three days is reduced to a 24 hour time period. The director must declare to the public at the commencement of an electoral campaign the time at which printing occurs. The time period of eight days applicable to the broadcast media is reduced to 24 hours also.

The Federal Republic of Germany⁴⁷

471.

In Germany the right to reply or the “right of counter-statement” is governed by the press laws of the individual states. The counter-statement may be demanded in respect of factual statements only: no reply will issue in respect of statements of opinion or value judgements. The most important yardstick of a factual assertion is whether the statement can be objectively proven. The statement of fact need not be detrimental to the individual concerned; he must merely be mentioned. The counter-statement is required to fulfil the following conditions.

There is no right to demand a counter-statement against reports of Parliament or the courts, business advertisements, or a previous counter-statement. There are certain restrictions upon the publication of the counter-statement which are applicable to the publisher. The counter-statement must be printed in the same part of publication as the original matter was placed. The publication of a counter-statement as a letter to the editor is not admissible. No arbitrary changes to the counter-statement are permitted, the printing thereof is free of charge. The truth of the counter-statement is not relevant, unless it is

47 The source of the following material is matter supplied by Marie McGonagle, co-author of the Boyle/McGonagle Report on Press Freedom and Libel.

 

 

manifestly untrue. A demand for a counter-statement in court is admissible if such a demand against a press organisation has failed, and the demand must by way of application for a provisional injunction.

England

472.

The Committee on Privacy and Related Matters (1990) in England recently examined the introduction of a statutory right of reply. It noted that a Private Member's Bill on Right of Reply had been introduced by Tony Worthington MP, the main provisions of which included;

The Committee noted that there had been strong opposition to the Bill from the Press.

The Committee outlined two arguments of principle in this area. One argument was that any requirement that the press publish any matter at the instance of another party restricted its freedom and opened the door to abuse.⁴⁸ The second argument was that any person who is inaccurately described or criticised (sic) in the press should be entitled to have the inaccuracy corrected. The Committee also observed that a limited right of reply existed under s7 of the Defamation Act 1952, the Irish equivalent of which is s24 of the Defamation Act 1961.

The Committee thought that much of the opposition to the right of reply stemmed from a misconception of its scope. As set out in the Bill, it would “strictly speaking not be a right of reply by the complainant but a right to have a correction published as a statement of fact”.⁴⁹ The Bill's proposed remedy would not apply to subjective questions of balance, distortion, misrepresentation or omission.

The Committee thought that the first main problem of definition was that of “factual inaccuracies” because “while certain facts may be demonstrably either true or false, the choice in a newspaper report is seldom so stark”. It noted that in West Germany sometimes lengthy negotiation was required between

48 Para. 11.4.   49 Para. 11.8.

 

 

lawyers over the terms of reply. A related problem was that of defining how serious the factual inaccuracy would have to be, since:

The Committee observed that the 1977 Royal Commission on the Press recommended against creating a mechanism for ensuring a right of reply on the ground that the press should not be subjected to a special regime of law nor labour under special disadvantages compared with the ordinary citizen. The Royal Commission recommended that the Press Council should actively involve itself, after publication, in obtaining counter-statements on behalf of those who had been criticized unfairly, on inaccurate information. However, the Private Members' Bill included the provision of a Press Commission to overcome two perceived weaknesses of the Press Council, its dependence on the press and the lack of powers of enforcement. The proposed Commission was criticised for failing to provide adequate legal mechanisms or safeguards, such as the right to an oral hearing, to demand evidence on oath, to cross-examination, to legal representation, discovery of documents, and appeal. The Committee said it could not see “how truth could be ascertained in cases of dispute, quickly or otherwise, without such safeguards”.⁵⁰

The Committee recommended that no statutory right of reply should be introduced because it was not persuaded that the factual inaccuracy of a story could be ascertained under a speedy and informal procedure.⁵¹ Instead, it recommended that the Press Complaints Commission (proposed by it) should consider complaints “both of inaccuracy and unfairness” and should, where appropriate, recommend the publication of a correction and apology.⁵²

473.

Some points may be made with regard to the above. Firstly, we believe that it is unhelpful to speak of correcting “criticisms”, since criticism is a subjective matter not capable of being proved true and is therefore not susceptible to correction. Similarly, we would disagree with the Committee's recommendations that the Press Complaints Commission deal with complaints of “unfairness” with a view to their correction. We believe corrections should be confined to factual statements, difficult as the nature of certain statements may be to establish.

474.

Secondly, we believe there is a confusion in the Bill and in the Calcutt Committee's Report as to the distinction between corrections and replies. The Bill proposed a “right of reply” which was in essence a correction. The Committee approves the argument that the establishment of truth cannot be achieved through an informal and speedy procedure. However, rights of reply

50 Para. 11.13.   51 Para. 11.15.   52 Para. 11.6.

 

 

do not seek to achieve this, because this is essentially a court function. Rather, rights of reply in essence allow the individual defamed to present his side of the story, with no authoritative statement that this is the correct version. The whole point about the right of reply procedure is that the public is left to make up its own mind after hearing both sides of the story. Therefore the arguments pressing for full legal safeguards are probably misplaced, since this would create procedures merely parallel to the court system.

475.

Thirdly, in response to the argument that the enforced publication of replies interferes with editorial freedom (which incidentally is a popular argument in the United States) it may be said that this presupposes an editorial right to print untruths, which probably reads too much into the right to freedom of expression. It also takes a simplistic, one-sided view of the right to freedom of expression, which in view of the constitutional guarantee of the right to a good name would be weak, if not eliminated in this jurisdiction.

476.

Fourthly, the Royal Commission on the Press referred to the proposed obligation to publish replies as a “disadvantage”, and one which should not be imposed on the media since this would place it in a weaker position than the rest of society. If one of the aims of the media is that of disseminating truthful information, it is difficult to see how the publication of either a correction or a reply is a “disadvantage”.

At present, some Irish newspapers allocate a section of their publication to replies to articles previously written. A legally enforceable right of reply would ensure that all media organs provide such a facility, and further, that the reply be given equal prominence to the original article.

In certain limited situations there is a right of reply in Irish statutory law. Reports of matters contained in Part II of the Second Schedule to the Defamation Act are privileged only if the defendant provides the plaintiff with the opportunity to make a reasonable statement by way of explanation or contradiction upon being so requested by the plaintiff. The privilege for reporters of such matters is therefore conditional upon the request for a right of reply being satisfied. However no provisions lay down the form or manner of publication of the explanation or contradiction. If a general right of reply were introduced into Irish law, the above provision in s24 would be superfluous.

477.

We invite views as to whether there should be a statutory right of reply in this jurisdiction. We provisionally suggest that such a right could embody the following features:

 

 

G. PUBLICATION OF JUDGMENT

478.

One of the remedies provided for in France is the court-backed publication of judgment.⁵³ It is a remedy which appears to have been developed by the courts. This must be done at the cost of the defendant in newspapers chosen by the plaintiff and the offending newspaper itself. The judgment must appear in the same place or in the same size print as the original article. Immediate execution of publication is often ordered, despite the lodgment of an appeal. In order to ensure prompt publication, the courts may impose a fine for each day's delay. The publication of judgment is a discretionary remedy, and the court may feel that the publicity attending the trial renders such publication unnecessary. The main objection voiced against this remedy is that it interferes with editorial freedom and therefore freedom of expression. However we would argue that the exercise of a right carries with it duties and obligations and that there is a strong case to be made in favour of regarding publication of adverse judgments as a duty or obligation in respect of the right of expression. This appears to be the view taken by publishers in other countries in relation to the right of expression. We feel that the use of correction orders would render this remedy unnecessary, but we welcome views on this.

53 See Encyclopedia of Comparative Law, Torts, at 10.99.

 

 

VI. JURIES IN ACTIONS FOR DEFAMATION

479.

Trial by jury in civil cases was at one time the norm. As a result of recent legislation, it has now become the exception. However, the jury trial in defamation actions has been retained. Under Section 94 of the Courts of Justice Act 1924, a party had a right to have questions of fact tried by jury in any action in the High Court or the Circuit Court, excepting actions for liquidated sums and actions for the enforcement of or breach of contract. The Courts Act 1971 abolished jury trials in the Circuit Court entirely. Until 1988, jury trials in civil actions in the High Court would therefore have been the rule rather than the exception. However, the Courts Act 1988 abolished juries in the following civil actions:

The tort of defamation was not included in this list. Accordingly, a party still enjoys the right to have a defamation action tried by a jury in the High Court. It should be noted that jurisdiction in actions in tort in the Circuit Court is limited to cases in which the damages claimed do not exceed £15,000.

480.

In defamation actions, the most valuable role of the jury has probably been in determining whether or not words should be considered defamatory. There is a large divergence between the way words and language are used in everyday situations and the way they are used by lawyers. As the tort of defamation involves the unusual exercise of bringing words spoken in the public arena into a court of law, where words are more carefully used and therefore scrutinized, the jury has always been seen as an important way of retaining the ordinary man's perception of what the words complained of mean and what they convey. The judge retains a measure of control in that he may withdraw the issue from the jury on the ground that the words are incapable of defamatory meaning. At present he cannot, however, do the converse i.e. direct the jury that they are incapable of innocent meaning.⁵⁷ Mr Justice Henchy stated in the Barrett case that:

This emphasises that in the vast majority of cases the crucial decision as to whether the words are defamatory of the plaintiff is in the hands of the jury, representing the standard of opinion of the community at large.

481.

In recent times, however, criticisms of the jury role have become more frequent, and on a different ground. This is a reaction to the large awards of damages being made at present by juries in defamation actions. All the reform bodies devoted a considerable amount of space to the role of the jury in this area. In their meetings with the Commission, all of the media and bookseller's representatives felt that the current level of damages awards was a problem which needed to be urgently addressed. One of the reasons identified for such large awards was the tendency to reflect developments in the United Kingdom, where a very different publishing climate prevailed, companies being more cavalier in their allegations and having far greater resources to contest defamation actions. The booksellers at their meeting pointed out that, due to the size of many Irish book-selling firms, their very existence was threatened by the prospect of a large damages award.

56 (d) and (e) are provided for under section 1(2) of the 1988 Act.   57 Barrett v Independent Newspapers [1980] ILRM 601.

 

 

482.

In their submission to the Commission, RTE observe that libel damages and costs represent a significant part of their expenditure. They also recommended that the Commission consider the less-often mentioned topic of costs. The general rule is that the costs go with the event, unless the judge otherwise directs. Costs could easily reach a sum far greater then the award of damages.

483.

It can be argued that in a significant number of cases, damages awards are excessive. Complaints about the high level of cost present a problem which can be addressed in a variey of ways. A number of methods of limiting damages were considered above.⁵⁸ Some of the options included a reduced role for the jury, or its entire abolition in defamation actions. The discussion of the abolition of the jury was postponed to this section.

484.

The following is a list of arguments for and against the entire abolition of the jury.⁵⁹ The arguments are not of equal weight and the order is not of any significance.

Arguments in Favour of Juries

Before setting out positive arguments in favour of jury abolition, it is proposed to set out a number of counter-arguments to the above points.

485.

The points (i) – (iv) are felt to be good points. Argument (v) assumes that there is public resentment of judicial decision- making as part of the establishment. This is not a premise from which to argue, as it calls into question the role and perception of judges in other cases generally. Argument (vi) overlooks the fact that judges are entrusted with sensitive religious and political issues in other cases, such as, for example, where a plaintiff invokes the anti-discrimination provisions of the Constitution (State (Quinn) v Ryan⁶⁰) or it is asserted that a political party is being denied its constitutional rights of free speech (State (Lynch) v Cooney.⁶¹) Argument (vii) ignores the fact that media defendants often feel that they are in the right but will not contest the case at Supreme Court level because of the costs involved and not because they feel the jury is right in some sort of moral sense. The second limb of the argument is even more dubious. The failure of juries to give reasons for decision is something that is perhaps inevitable because twelve people chosen at random are unlikely to reach a consensus for precisely the same reasons and it would be difficult in practice to provide facilities for the preparation and publication of such reasons. However, this is, if anything, a necessary evil which must be borne so that the other benefits of jury trial can be availed of: it is not one of the merits of jury trial. It turns appeals into something of a lottery and may even erode to some extent the would-be appellant's right of access to the courts.

486.

Arguments Against Juries

487.

Proposals of Other Reform Bodies

The present position in England is that an action for libel or slander in the Queen's Bench Division is tried by jury, unless the court is of the opinion that the trial requires the prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury. This is the result of the introduction of s69 of the Supreme Court Act 1981 which does not give full effect to the Faulks proposal but does give the Court some discretion as to whether there should be a jury trial.

The operation of the exception to the norm of jury trial in defamation actions can be seen in the recent case of Beta Construction Ltd v Channel Four TV Co. Ltd⁶³. The alleged libel was contained in a Channel Four television broadcast concerning the activities of contractors who stripped asbestos from buildings and the plaintiff alleged that the individual imputations were (i) that they lacked the skill, qualifications and integrity to do the job and thereby exposed other persons to risk, (ii) that they had failed to exhibit warning notices in the course of work at a school and thereby exposed children to risk of cancer

62 Faulks Committee Report, para 516.5   63 Reported in The Independent, Tuesday 7 November 1989.

 

 

from asbestos dust and (iii) that they had failed to remove dust contaminated with asbestos from a classroom. The defendants admitted liability before the trial and applied for damages to be assessed by a master or judge alone on the basis that the claim for damages would require prolonged examinations of documents and accounts which could not conveniently be made by a jury. The trial judge ordered that damages be assessed by a judge alone. On appeal, the Court of Appeal noted the relevant points for consideration set out by May LJ in Viscount de l'Isle v Times Newspapers Ltd,⁶⁴ namely (1) the physical problems of handling large bundles of documents where a jury is involved, (2) the prolongation of a trial where a jury was required to examine numerous documents, (3) the increased cost of litigation, and (4) the increased risk that the jury might not understand the issues sufficiently to resolve hem correctly. The Court of Appeal affirmed the decision of the trial judge that the trial should be by judge alone.

Conclusions

488.

Our provisional conclusion is that the case for ending completely the role of the jury in defamation actions has not been established. It seems to us a valuable feature of the present system that the ultimate decision as to whether the words are in fact defamatory is decided by a number of lay people rather

64 [1988] 1 WLR 49.   65 New Zealand Committee Report, para 468.   66 ALRC Report, paras 288–9.

 

 

than a judge. At this stage, we do not think that it has been shown that, in this context at least, the system has operated unfairly against defendants. Any risk that it might so operate is, in our view, sufficiently met by the existing law which reserves to the judge the decision as to whether the words complained of are reasonably capable of a defamatory meaning. This, in our view, is a sufficient protection to defendants against perverse jury verdicts, particularly when coupled with the ultimate power of the Supreme Court to reverse a judge's ruling on the matter.

We also feel at this stage of our deliberations that there is a more general argument in favour of the retention of at least some role for the jury. While there have been doubts expressed as to the value of the jury in civil, and even in criminal cases, we do not think that the case for a further erosion of its role in our law has been satisfactorily established. Retaining the jury in actions for defamation – and actions of a similar nature, such as assault and malicious prosecution, where more intangible aspects of human behaviour require to be evaluated – is a valuable institution in a democratic society and one that should not be too readily abandoned.

At the same time, we recognise the justifiable concern which has been caused by some awards in recent years. The inhibiting effect of expensive libel actions on the free discussion of matters of public concern is a factor to which weight must be attached. Many of the other proposals in this paper would go some way towards meeting the legitimate concerns of the media in this area. However, we think in addition that if juries are to be retained in defamation actions the present system can be modified in some important respects so as to reduce the danger of grossly excessive awards. (Nor should it be forgotten that juries, in this as in other areas, are also capable of awarding excessively mean damages). The major change we are provisionally inclined to favour is reserving to the judge the function of assessing damages, while giving the jury the right to determine their general legal level, i.e. whether they should be nominal, compensatory or punitive.

489.

We would, accordingly, provisionally recommend that

 

 

VII IDENTITY OF PARTIES

A. PUBLIC FIGURE PLAINTIFFS

490.

Current Irish law does not draw a distinction between different categories of plaintiff. Regardless of his or her public or private status, the plaintiff must meet the uniform requirements of the prima facie case. Similarly, the defendant does not have any greater or lesser protection in theory if the plaintiff is a public official or a public figure. However in practice it may be easier for the defendant to avail of the defence of fair comment, where a comment is involved, because it will be slightly easier for him to fulfil the “public interest” limb of the defence.

As we have seen, United States law stands in stark contrast to this position since the “public figure” (which includes public officials) must overcome a difficult hurdle in order to establish a case, i.e. the requirement that the material be published with actual knowledge of, or recklessness as to, falsity. A “private figure” plaintiff meets a lower burden of proof; he will succeed if he shows the publisher was negligent in failing to ascertain the falsity of the statement.

The question for consideration is whether the Irish law of defamation should expressly provide greater or lesser protection for public figures. The United States is the only jurisdiction which has expressly provided for less protection of public figures than other individuals. We will now examine the European countries, which provide greater, equal or less protection to public officials, or make no express distinctions in this regard.⁶⁷

67 Analysis of European law of Defamation is drawn from a study undertaken by Interights for Lingens v Austria.

 

 

1. Countries providing greater protection for public officials

491.

The countries which provide for greater protection of public officials are France, Greece and the Federal Republic of Germany. France and Greece both single out the President as deserving special protection. French law provides a special offence with harsher sanctions under article 26 of the Press Law of 1881. Although the offence is a criminal one, we believe that it is relevant to the particular point at issue i.e. whether public officials should have increased or decreased protection under the law of defamation as a matter of principle. In Greece, the Constitution authorises the seizure of publications which offend the reputation of the President (Article 14.3), while the Penal Code makes damage to the reputation of the President a criminal offence to which truth is not a defence (Article 168).

Greece and the Federal Republic of Germany afford increased protection to public officials other than the President, in theory at least. In Germany, section 187 of the Penal Code imposes more stringent penalties if untrue factual statements have been made against a person active in the political life of the nation, where the statements are directed at the public status of the person and tend to hamper the exercise of his public functions. In Greece, Article 181 of the Penal Code makes it a criminal offence to insult public, municipal or communal authorities, or leaders of political parties recognised by the Rules of the Greek Parliament. The Prime Minister and Ministers of the Government have been held to be “public authorities” for this purpose. However Article 181 has been so narrowly construed in practice that public officials rely on the general law of defamation in preference to this provision.

2. Countries providing equal protection for public officials

492.

Denmark introduced a specific provision into its Penal Code in the 1930's providing that defamation of those in public office was not to be treated more leniently than defamation of other individuals (Section 267a). This was introduced following a libel action in which the plaintiff, a government minister, had been defeated on the grounds that defamatory statements against politician should be treated more leniently than those against other individuals. However it appears that this provision has not yet been relied on in practice. In England, Belgium, the Netherlands, Sweden and Norway no distinction is made in theory between public figure and private figure plaintiffs.

LESS PROTECTION IN FACT

493.

It appears that in all the countries discussed, the practice under the law of defamation is that public officials in fact receive less protection. This is so whether the country makes no distinction at all in theory, or indeed if it makes a distinction according public officials increased protection. In some countries (Ireland, England, Belgium, Norway and France) this is the result of the defence of fair comment; in others it is due to a defence known as “justified interests” (Denmark, Federal Republic of Germany, Greece, the

Netherlands and Sweden), and in the remaining countries it is due to the broad interpretation of the constitutional guarantee of freedom of expression (Germany, Greece and United States).

(a) “Justified Interest” Type Defences

The essence of the defence of “justified interests” is that a statement published to serve a public interest is not punishable as defamation. In Denmark this defence is provided by s269 of the Penal Code and is constituted where either the truth has been shown or the author was under an obligation to act in justification of an obvious public interest. This defence is equally applicable to civil proceedings. Although there has been little Danish case law on this point, the legal literature is of the view that the result is to lessen protection for public officials because of the public interest in wide-ranging debate on the action of such officials. In the Federal Republic of Germany, the defence under section 193 of the Penal Code provides that critical judgments may be made in the perception of “justified interests”, provided they were not made with intent to defame. The case law establishes that it is easier to show that the conduct of a public official or politician is a matter of public interest than would be the conduct of other individuals. This defence is also available in civil proceedings. The Greek Penal Code similarly provides in Article 367 that insulting or defamatory opinions are not punishable if they are made, inter alia, in the perception of “justified interests” and it is again established in the case law that it is easier to fulfil this defence where the conduct of a public official is in question. In Sweden, the freedom of the Press Act 1949, which has constitutional status, provides a defence in Chapter 7, Article 4.9 where it was “justifiable” to publish the information in question, which has been interpreted to afford less protection for officials in practice. Although in the Netherlands the statutory defence to both civil and criminal actions refers to a need of serving the “public interest”, this defence has been interpreted in a similar way to the above defences of “justified interests”.

(b) “Fair Comment” Type Defences

England and Ireland use this defence and since one of the requirements thereof is that the matter be of public interest, this is generally easier to satisfy where the conduct of a public figure is in question. In Belgium the case law has developed a similar defence in respect of opinions. The court will afford a protection if the opinion was based on true facts and related to a public issue, provided the statement was not “unnecessarily harmful”.⁶⁸

68 Criminal prosecutions for defamation in Belgium are rare, and therefore this defence applies in civil actions.

 

 

The courts take into account that public officials by virtue of their function are expected to endure more vigorous attacks. In Norway, although the Penal Code contains no special provisions concerning public officials, the case law and legal literature recognise a privilege for comment on public affairs. Again in practice a public official is expected to endure harsher criticism than a private individual under this defence. In France there has developed a defence known as the right of “critique”, which has been consistently held to be applicable to criticisms of public officials and politicians, provided the criticism pertains to their acts and not to their person. It may be noted, however, that in all these cases, public officials receive lesser protection in respect of comment, but not in respect of defamatory statements of facts.

(c) Lesser protection for public officials due to interpretation of constitutional guarantees

In the last category of countries, lesser protection for public officials is the practice due to interpretation of constitutional guarantees of free speech; and not due to specific defences. In Germany, the jurisprudence on Article 5 of the Basic law, which contains the guarantee of free speech, establishes that freedom of expression is central to the operation of a democracy and therefore the greater the public interest in an issue, the less the protection afforded to an individual. In Greece, the Supreme Court has held that the guarantee of freedom of expression in Article 14 of the Constitution necessitates tolerance of harsh criticisms of the authorities.

It has already been noted that the United States Supreme Court has interpreted its guarantee of freedom of expression as necessitating a rule making actions by “public figure” plaintiffs more difficult. Therefore in the United States lesser protection is afforded to public figures both in theory and in practice.

Conclusions

494.

Ireland is in a broadly similar position to most European jurisdictions in that it provides equal protection for all plaintiffs in theory, but, due to the interpretation of the fair comment defence, arguably affords less protection for public officials in practice. United States law is unusual in expressly crafting a more difficult standard for public officials to meet. Indeed, some European countries (namely France, Greece and the Federal Republic of Germany) afford greater protection for specific public officials in theory, although this does not appear to represent the practical position.

We believe that wide and robust debate on the conduct of public officials is essential to maintain the essence of a democracy.

However we are careful to distinguish between the role of statements of fact and statements of opinion in such debate.⁶⁹

(a) Statements of Fact

495.

Where facts about a public official are known, the widest possible range of criticism or opinion thereon is desirable. By contrast, we believe that statements of fact contribute meaningfully to public debate only if they are true. As one writer puts it –

One of the aims of the changes suggested in this Paper is to achieve a law of defamation which encourages truthful statements. We believe strongly that this applies to public figures as well as to other plaintiffs. In respect of statements of fact, we believe that truth should be the decisive criterion. If we were to allow a wider protection to defendants where they publish factual assertions about public figures, we would accord them a license to make false statements which we believe is undesirable. Therefore we conclude that there should be no distinction drawn in the law on factual assertions between “public figure” plaintiffs and other plaintiffs. We note that this is not inconsistent with our recommendation that the exercise of reasonable care by the defendant should bar damages. The overall result is that a false assertion of fact about a public figure (as with any other) will be required to be corrected by the defendant, but that damages may only be recovered if the defendant additionally failed to exercise reasonable care. In no sense does this imply that defendants have a wider latitude than previously in respect of false factual assertions. They will continue to be liable, but their liability will be enforced in a different way; in all cases the misstatements will be corrected, and in cases where a standard of reasonable care is not met damages will be awarded.

(b) Statements of Opinion

496.

We believe, however, that a wide latitude of opinion is desirable, both in respect of public figures and other plaintiffs. At present the defence of fair comment is probably more easily availed of where the plaintiff is a public figure because it is expected that his or her conduct will entail closer scrutiny. We have made a number of recommendations to widen this defence generally.

69 Mr. Hugh J.O'Flaherty, S.C. has commented as follows:- “A distinction should be drawn between those in private life and those holding public office. Those who live by the media must expect occasionally to suffer at the hands of the media ... There should be an extension of the freedom to comment on persons holding public office, including politicians and, indeed, all public officials”. References to “comment on” or “criticisms of” public officials is misleading because they fail to delineate the form of expression involved.   70 Epstein, Was New York Times v Sullivan Wrong? 53 U. Chicago L. Rev. 782,813.

 

 

If these reforms are implemented, we do not feel that additional protection for comment in respect of public figures would be necessary. Accordingly we provisionally recommend no change in the law based on a distinction between “public” and “private” figures, either in respect of factual or opinion statements. We believe that other reforms in this Report will allow sufficient latitude for discussion of all persons.

 

 

B. GROUP PLAINTIFFS

497.

Under existing law, a member of a group which has been defamed cannot bring an action unless he can show that he was specifically referred to.⁷¹ A specific reference to the plaintiff may emerge from the circumstances of the case or from the size of the group; where the group is small, every member may be deemed to have a cause of action.

McDonald⁷² suggests that there may be constitutional reasons for granting a cause of action to the member of a group which has been defamed. The present prohibition may infringe on the constitutional right of access to the courts and the right to a good name by denying a cause of action simply because a defamer chose to attack a large group. Problems of multiplicity of actions could be addressed by deploying different remedies such as the declaratory judgment, correction order, or nominal damages. At present, it appears illogical to distinguish between plaintiffs merely on the basis that one belongs to a large group and the other to a small one.⁷³

The Australian Law Reform Commission appears to be the only reform body which considered this topic.⁷⁴ It identified three reasons underlying the rule on group defamation: (1) a fear of inhibiting political discussion and criticism which it was felt might result from granting sanctions for statements about classes of persons distinguished by race, creed, colour or calling; (2) a fear

71 See Part I para 28.   72 Irish Law of Defamation, p58.   73 Although this is not the theoretical position – see Knuppfer v London Express Newspapers Ltd [1944] AC 196, and the comments of Lord Atkin to the effect that the test is still reference to the plaintiff and not the size of the group – the practical result, however, probably achieves such a distinction.   74 ALRC Report, p.52, paras 95–98.

 

 

of multiplicity of actions; (3) the fact that a generalised statement about a group would not necessarily refer to an individual member. The last argument is felt to be a weak one, because the question is really one for the jury as to whether they would understand the statement to be defamatory of the plaintiff. The “multiplicity” argument may be met, as McDonald suggests, by alternative remedies – and perhaps, also, a provision stating that no other proceedings in respect of the same subject matter may be brought by another member of the group. As to the first argument cited, it must be remembered that only defamatory falsehoods would be actionable, which do not make any valuable contributions to public discussion anyway.

The Australian Law Reform Commission thought that in principle it seemed desirable to give relief and favoured the remedies of correction and declaration. However, it was concerned at the possibility of the courts being used as a forum for interracial and interreligious feuding. It could not arrive at a unanimous view on the issue and decided by a majority that the issues raised were not suitable for courtroom resolution, but were more apt for conciliation and persuasion. It proposed to wait until the effectiveness of the new remedy, the correction order, was tested, and also to see the effects of legislation on religious discrimination. Two members of the Commission, however, thought that there should be a provision allowing a group member to obtain an order for correction, a declaration or an injunction – but not damages.

The Australian Law Reform Commission envisaged that most problems in this area would arise in the context of religious or racist statements. It is not obvious that the same climate obtains in Ireland. It should be borne in mind that groups of a very different type might be attacked e.g. a group of lawyers,⁷⁵ the owners of a factory,⁷⁶ a political organisation,⁷⁷ or members of a State department.⁷⁸ The cases in which such actions have been brought in Ireland have not been concerned with statements about religious or racial groups. We believe that liability should be imposed on the person who defames a group provided an individual member of the group may be identified. In such a case we see no reason to restrict the form of remedy. We found useful the definition offered by the United States (Second) Restatement of Torts –

75 Eastwood v Holmes, [1858] 1 F & F 347 Gallagher & Shatter case, Irish Times 10/5/1980.   76 Le Fanu v Malcolmson, (1846) 8 ILR 418, (1848) 1 HLC 637.   77 O'Brien v Eason & Son, (1913) 47 ILTR 266.   78 Cole case, Irish Times 3/5/89.

 

 

We recommend the adoption of a provision in similar terms as we believe it is declaratory of the common law.

 

 

C. DEFAMATION OF THE DEAD

498.

At present, no actions may be maintained in defamation in respect of injury to the reputation of a person who was dead at the time of publication. This is subject to the principle that if the defamatory imputation contains a slur on the reputation of a living person, the latter may bring a defamation action in respect of the injury to his own reputation.

The Porter Committee refused to recommend any alteration of this position, finding no logical basis for granting a cause of action in respect of statements made about a dead person. They felt that granting a right of action to personal representatives was inappropriate, since the basis for vesting a right on the part of personal representatives was the injury suffered by the estate of the deceased.⁷⁹ By way of answer to this view, it may be said that an arguably logical basis for such an action is the fact that reputation does not die with the deceased – a reputation outlives its possessor. The result of the common law prohibition is that a person can without inhibition make any outrageously false statements about a person, from the moment of his death, so long as the statements do not reflect on living people. The individual interest is said to have been extinguished, so that the free speech interest gains dominance. Even if it were conceded that the former interest is extinguished, the real objection to the current position is that the freedom of speech interest is not enhanced by allowing such untrammelled freedom. Malicious and unfounded misstatements of fact do not further public discussion, information or education.

The Faulks Committee recommended an alteration to the law on a different ground, namely the interests of near relatives. “It would be an action to

79 Porter Committee Report, paras 27 and 28.

 

 

prevent people from telling defamatory lies about a dead man shortly after he is dead. Why should it remain lawful to add to the grief of a widow by stating falsely just after her husband has been buried that he was a criminal?”⁸⁰ The proposed right of action contained a number of features:

Notably, two members of the Committee dissented, stating that the grant of such an action would deal a “paralysing blow to the writing of recent history”.

The New Zealand Committee noted the dissent of these Faulks Committee members and observed that the majority's recommendations were intended to inhibit “the scurrilous and unfair writer and not the historian”.⁸¹ Therefore they limited their recommendation to cases where the words were not only proved untrue but the writer also knew of their falsity. The other point of difference from the English recommendation was that the time limit should be six years.⁸²

The Australian Law Reform Commission, concerned at the possible inhibition of historical writing, sought comment specifically from historians and the Royal Australian Historical Society. The response to the proposal of providing some cause of action was favourably received and there was no objection from anyone concerned with historical or biographical writing.

The Australian Law Reform Commission discarded the New Zealand view that the plaintiff should have to prove knowledge on the part of the defendant of the falsity of the statement. The purpose of the action being to set right a false statement, the fault of the defendant was considered irrelevant, particularly as there would be no award of damages at issue.⁸³

The time period recommended by the Australian Law Reform Commission was three years. The action was made available to the personal

80 Faulks Committee Report, para 419.   81 New Zealand Committee Report, para 440.   82 New Zealand Committee Report, para 442.   83 ALRC Report, para 101.

 

 

representatives of the deceased or the surviving spouse, parent, child, brother or sister of the deceased. There was also a proposal that where more than one person institutes such a defamation action in respect of the same matter, the court should make such order for transfer, removal, stay or consolidation as was necessary to avoid a multiplicity of actions. Where such a defamation action had been determined by a court, no further action could be instituted in respect of the same matter except by leave of the court.⁸⁴

499.

The reform bodies cited were unanimous in proposing a course of action in defamation in respect of the dead. One commentator, however, has expressed strong disagreement with these views:⁸⁵

McDonald suggests

In answer to these objections, it may be stated:

500.

The difficulties to which the present law can give rise were vividly illustrated by a recent Irish case, Hilliard v Penfield Enterprises Ltd and Others. The widow of a clergyman who had been killed in horrific circumstances sought leave from the High Court to commence a criminal prosecution for the publication of a libel in a periodical published by the defendants. Gannon J, while considering himself bound by the present state of the law to refuse the application, described the article as “scurrilous and contrived” and commented:

Under the present law, the plaintiff was, of course, unable to maintain civil proceedings. The further implications of the decision will be considered in the Consultation Paper which we will be shortly publishing on Criminal Libel.

It is worth quoting the observations of an American writer, Epstein:

501.

It is therefore suggested, that if there is no constitutional objection (based on the freedom of speech guarantee) to this reform, there should be a new cause of action in respect of defamatory statements made about a person who is dead at the time of publication. This should be subject to a time limit, the appropriate length of which is discussed below. It should vest in the close relatives and, perhaps, the personal representatives of the deceased. Damages should not be available, and provisions akin to the Australian recommendations should be enacted in order to prevent multiplicity of actions.

86 Epstein, Was New York Times v Sullivan Wrong? 53 U Chicago L Rev 782, 789.

 

 

D. THE LIBEL-PROOF PLAINTIFF DOCTRINE

502.

A procedure might be considered which has been developed by the United States courts since the adoption of the New York Times rule and its progeny. The courts have responded to the increasing length, cost and complexity of libel trials by developing a means of dismissing the plaintiff's case by way of summary judgment. The “libel-proof plaintiff” doctrine allows a court to dismiss a libel action where it appears that a plaintiff's reputation has not been significantly harmed. The doctrine is composed of two distinct branches – the “issue specific” branch and the “incremental” branch.⁸⁷ The “issue specific” branch involves dismissal of the case on summary judgment if the judge determines that the plaintiff's reputation is already so tarnished that any harm caused by the publication challenged would lead only to nominal damages. The “incremental branch” involves dismissal of the case on summary judgment where the judge determines that unchallenged statements within an article or group of statements challenged damage a plaintiff's reputation to such a degree that the incremental harm caused by the challenged statement would lead only to nominal damages.

It can be seen at once that the doctrine in its dual form parallels two distinct areas of rules at common law. The issue specific branch broadly corresponds to the common law rule that evidence of the plaintiff's bad reputation is admissible to mitigate damages. The incremental branch broadly corresponds to the rules on partial justification, an area which has been seen to be fraught with difficulty at present. The essential difference is of course that under the libel-proof doctrine, the case is dismissed at summary stage.

87 This terminology is put forward by Marder, Libel Proof Plaintiffs – Rabble Without a Cause, 67 B.U.L. Rev. 993.

 

 

It must however be pointed out that the US doctrine appears to be at an embryonic stage. The United States Supreme Court does not appear to have ruled on this doctrine, and the courts examining it have produced conflicting attitudes towards the use of summary judgment in this way. It is proposed to draw attention to a sample of the cases in which the doctrine has been at issue, by way of example as to the type of case to which it might apply.

A. THE ISSUE SPECIFIC BRANCH

503.

The doctrine appears to have first emerged in its “issue specific” form in Cardillo v Doubleday,⁸⁸ a decision of the United States Court of Appeals for the Second Circuit. In that case the plaintiff was a convicted criminal serving a 21 year sentence for assorted felonies, and had been previously convicted of a number of crimes. He had been indicted in Massachusets for fixing horse races and was the subject of testimony before a House Select Committee on Crime. The challenged statements were contained in a book and attributed to the plaintiff's participation in a variety of crimes, which the plaintiff denied having committed. The Court of Appeals affirmed the District Court's grant of summary judgment, finding that the plaintiff was “libel-proof” as a matter of law. The court defined a libel-proof plaintiff as a person “so unlikely by virtue of his life as a habitual criminal to be able to recover anything other than nominal damages as to warrant dismissal of his case”.

However, in Buckley v Littell,⁸⁹ the same court refused to extend the doctrine and described the Cardillo case as confined to its own facts. It was held that the plaintiff had a reputation which could be defamed despite his life in politics as a spokesman for a controversial political position. On this view, the libel-proof doctrine may only be employed where the plaintiff has no reputation left to protect. It may be observed that this is probably the most difficult aspect of the doctrine, for it is a dangerous thing to hold that a person has no reputation left at all. The doctrine should arguably be at least confined to cases where the allegation is of the same type as the activity in respect of which the plaintiff no longer has a reputation. For example, it would surely be unfair to hold a plaintiff convicted of assault and burglary incapable of bringing a libel action in respect of allegations of bribery, corruption, sexual assault or any other activity of an entirely different type from the offence for which he was convicted. On the other hand, the doctrine can be seen as a useful device for disposing of a plaintiff's case where he has lost his reputation due to various corrupt activities and the statement challenged imputes to him involvement in slightly more activities than those in which he actually took part. However if the doctrine is applied too liberally, there is a real danger that a person who has lost his reputation due to one incident is an “open target” as far as slanders and libels are concerned.

Loss of reputation does not result only from criminal convictions and logically,

88 518 F 2d 638, (2d Cir 1975).   89 539 F 2d 882 (2d Cir 1976).

 

 

therefore, the doctrine would not be confined to “habitual criminals”. However the closest the courts appear to have come to this is Wynberg v National Enquirer⁹⁰ where the court equated anti-social behaviour widely reported to the public with criminal behaviour, but the plaintiff involved had in fact been convicted for behaviour similar in nature to the behaviour imputed to him in the statements complained of.

A major problem with the doctrine is evidenced by the facts of Liberty Lobby v Anderson⁹¹ where the Court of Appeals for the District of Columbia refused to accept the doctrine. In that case the challenged publications had been preceded by publications containing similar matter. The defendants argued that the plaintiffs' reputation had been injured by the previous publications to a degree that the publication challenged added no further harm. These facts are clearly quite different and it certainly goes against common law principles to allow prior publications be a bar to an action with respect to a more recent libellous publication. Nonetheless, if the doctrine applies where the plaintiff's reputation in a specific area is already so low that nothing further can damage it, the case of previous publications would logically come within it. However, this particular problem is not peculiar to the libel-proof doctrine and the procedure of summary judgment. A court would be faced with the same dilemma if the defendant wished to bring in prior publications as evidence that the plaintiff had a bad reputation at the time of publication under the common law rule that evidence of bad reputation is admissible to mitigate damage. The root cause of the problem is probably the conflict between two common law rules which can pull in different directions; the first being the rule that every fresh publication is a libel, the second being that the plaintiff must only get damages commensurate with his reputation. Where the plaintiff has suffered a fall in reputation because of previous publications a problem arises due to the conflict between the two rules and not due to the summary procedure employed by the libel-proof plaintiff doctrine.

B. THE INCREMENTAL BRANCH

504.

This part of the doctrine is employed to dismiss a plaintiff's case where he has brought an action in respect of one out of a number of libellous allegations, and leaves the remainder unchallenged. It will be remembered that this occurred in the controversial case of Plato Films v Speidel⁹² which prompted the Faulks Committee to urge reforms of the section of their Defamation Act⁹³ dealing with severable imputations.

90 564 F Supp 924 (CD Cal 1982).   91 7466 F 2d 1563 (D C Cir 1984).   92 [1961] AC 1090, discussed in Present Law above.   93 S 22 of our Defamation Act 1961.

 

 

The operation of the doctrine is illustrated in Simmons Ford Inc v Consumers Union of United States⁹⁴ where the defendant consumer magazine published a review of the plaintiff's electric car, citing a number of poor performance and safety considerations and rating the car as unacceptable. The plaintiff challenged only one section of the review, which concerned the car's failure to meet specific safety standards in relation to occupants of the car in the event of crashes. The court granted summary judgement on the basis that the harm caused by the unchallenged statements would mean that the plaintiff could expect only nominal damages in respect of the challenged statement.

A slight variation of the doctrine is where the plaintiff brings an action in respect of all the statements, but the court dismisses the majority as non-actionable. It may then dismiss the rest of case on the basis that the harm caused by the remaining minority will lead only to nominal damages due to the harm caused by the majority of statements. This occurred in Herbert v Lando.⁹⁵ Such a situation usually would arise where a U.S. court dismisses a libel case on summary judgment because there is insufficient evidence of malice under the New York Times standard. The operation of this branch of the doctrine was criticised in the Liberty Lobby case on the ground that the non-actionability of certain statements may be specifically due to lack of proof of malice and does not in any way imply that these statements are true. However, it is arguable that the effect that a bad reputation has on the plaintiff's case (whether under the common law where it mitigates damages or under the American libel proof doctrine) has little to do with whether the loss of reputation has occurred justifiably or not. This is merely the consistent application of the common law principle that the defamation law is concerned with what the plaintiff's reputation is, and not what it ought to be. On the other hand, it is indeed harsh that a plaintiff who cannot meet the legal burdens of proof with respect to part of an article should be deemed to forfeit the protection of libel law in respect of that part of the article which he feels capable of challenging.

505.

A number of problems with the doctrine have emerged from the foregoing discussion. A number of other points may be added to this.

506.

In favour of the doctrine is undoubtedly the fact that it allows the court to dispose quickly of cases that are doomed from the start. However on balance we do not favour the doctrine. We believe that the question of whether the plaintiff has a reputation which may be libelled should be dealt with at trial rather than at summary stage. Furthermore, we feel that our recommendations on partial justification and damages in such cases are preferable to the corresponding branch of the libel-proof plaintiff doctrine. We therefore are provisionally opposed to the introduction of such a doctrine.

 

 

E. CORPORATE BODIES

507.

In Part I it was seen that trading and non-trading corporations appear to be capable of suing in defamation in respect of defamatory allegations concerning their business capacity (trading corporations) and more general allegations (trading and non-trading corporations), including treatment of employees and sponsorship of public events. Partnerships can also sue in their own name, as can trade unions, although the latter are immune from tortious liability by virtue of s4 of the Trade Disputes Act 1906. Subject to those two exceptions, unincorporated associations as a general rule cannot sue or be sued in defamation in their own name.

Proposals for Reform

508.

The Faulks Committee recommended that actions by trading corporations in defamation be limited to “cases where the trading corporation can either establish that it has suffered special damage, or can establish that the defamation was likely to cause it financial damage”.⁹⁶ It was suggested that the same limitations apply to government authorities and to trade unions.⁹⁷

The New Zealand Committee Report endorsed these recommendations, but took the view that the term “pecuniary loss” be used rather than the term “special damage,” on the ground that “special damage” includes not only financial loss, but also loss of some temporal or material advantage estimable in money”.⁹⁸

96 Faulks Committee Report, para 336.   97 Ibid at paras 340 and 341.   98 New Zealand Committee Report, paras 358–364.

 

 

A more radical reform of the law in this area has been proposed by the Boyle and McGonagle Report. It recommends the abolition of a right of action to sue in defamation for all entities other than individuals.⁹⁹ The report argues that such entities are afforded adequate protection by other areas of the law. For example, companies may sue for torts such as injurious falsehood. In addition, it is said that public bodies by their character and purpose should be “legitimate targets of public attention and criticism”,¹⁰⁰ although it should be observed that it does not follow that they should be defamed. Furthermore, the abolition of a right of action for entities other than individuals would not deprive defamed individuals such as directors or officers of companies or employees of a local authority, from suing in their own name.

509.

We are not convinced that there is sufficient justification for abolishing the cause of action in defamation which is available to corporate and quasi-corporate bodies. Although the type of reputation enjoyed by such bodies is somewhat different from that belonging to an individual and traditionally recognised by the common law, such bodies do undoubtedly have reputations which can be assailed. Furthermore, there may be an overlap between allegations against corporate or quasi-corporate bodies and allegations against an individual reflecting on his business reputation. We decline at this stage to recommend a proposal on the lines of the Boyle-McGonagle suggestion. We favour the New Zealand proposal over the Faulks proposal, because the term “special damage” has a peculiar meaning originating from the cases on slander actionable on proof of special damage and we believe it would introduce ambiguities into this area of the law. However we are not convinced that a corporate or quasi-corporate body should have to show that the allegation was likely to cause financial loss or, indeed, that it did in fact cause financial loss. We believe that such a limitation distorts the function of the action in defamation which is to compensate for reputational injury and not financial loss. This is not to say that financial loss consequent upon the publication is not recoverable. Rather damages could be awarded in respect of the reputational injury deemed to be caused by the allegation, and financial loss consequent upon such publication would require to be shown by the plaintiff in order to receive such increased damages as are necessary to compensate for that loss. This is consistent with our earlier recommendation on financial damage.¹⁰¹ However to make all damages conditional upon a showing of financial loss is a different thing. In many cases, there will in fact be harm caused by a defamatory statement but it will be almost impossible to prove. If a company gets a bad reputation, the financial loss sustained will be through individual or bodies deciding not to trade or associate themselves with it, which is one of the most difficult types of loss to prove. We would therefore recommend no change in the law respecting corporate and quasi-corporate plaintiffs. We recommend that it be set out in statutory form that all such bodies have a cause of action in defamation irrespective of whether financial

99 Report on Press Freedom and Libel, para 5.46.   100 Ibid.   101 See above, Part V Remedies; Damages.

 

 

loss is consequent upon the publication or was likely to be consequent upon the publication.

510.

We invite views, however, on the broad immunity conferred on trade unions by s4 of the Trade Disputes Act 1906. As McDonald notes, this may be an infringement of the right to a good name for no other reason than the fact that the defendant is a trade union and it may constitute unequal treatment of defendants without justification by reference to social or other function.¹⁰² McMahon and Binchy observe that the immunity is wider than that accorded to the State, following the decision in Byrne v Ireland¹⁰³

102 See McDonald, p279.   103 See McMahon and Binchy, p78; Byrne v Ireland is reported at [1972] IR 241.

 

 

F. MEDIA DEFENDANTS

511.

Irish law at present does not in general distinguish between media and non-media defendants. There is one exception to this principle. The defences provided by sections 18 and 24 of the Defamation Act 1961, which are rights of reporting court proceedings and other matters, may only be availed of by media organs. We propose to examine whether a distinction between media and other defendants is desirable in terms of the defences which may be availed of, and whether the existing distinction in relation to rights of reporting is justifiable.

It may be noted that the United States Supreme Court has yet to establish a rule, if at all, for the media which would apply in every case. In New York Times the Court mentioned the press but did not rest its decision on that basis. In Gertz, the court specifically limited its analysis to the media, but omitted to explain why. In Hepps, it was established that the plaintiff must show falsity where the defendant is a media organ and the issue is one of public concern, but the Court reserved the question as to whether the same standard would apply in a non-media case.

512.

A number of arguments may be put forward in favour of according a wider defence than truth to media defendants, where the statement is factual and cannot be defended on grounds of privilege, comment or fair report:

513.

As against this view, one may argue that the particular mention of the media in the constitutional guarantee of freedom of expression was merely to emphasise its inclusion rather than an indication of a wider right. It may be noted that a number of European countries accord the media a special mention in their Constitutions, but do not appear to interpret this to mean that the media have wider rights than individual citizens e.g. Belgium (the general guarantee is contained in Article 14 while a guarantee of press freedom is contained in Article 18); Greece (the general provision is in Article 14.1 while the press guarantee is in Article 14.2); the Federal Republic of Germany (where Article 5(1) of the Constitution, like ours, refers both to general freedom of expression and press freedom). In the Netherlands and in Norway, although the respective Constitutional guarantees refer to the press alone, the governing law applies to all defendants.

514.

In answer to this, one may argue that the fact that the media play such a vital role in democracy is precisely the reason for ensuring that their statements are trustworthy. If defences for the media are over-extended, or lax defences are introduced, false statements will go into widespread circulation. Therefore while we agree with the crucial importance of the media, we would not necessarily agree that this mandates wider protection than an individual citizen.

We have recommended the expansion of the defence of comment, which would render wider protection for the media in respect of opinions expressed unnecessary. Therefore the remaining form of expression which would benefit from increased protection would be factual statements. A number of defences in respect of factual statements have been considered in this report. Whichever position is ultimately adopted, we do not feel that the media should be given a special position.

515.

Indeed we do not see why the reporting rights in s18 and s24 of the Defamation Act 1961 should be confined to the media. Legal Textbook and article writers should benefit from the same protection as they are performing an equally legitimate function. We therefore recommend the extension of these

104 Part of an RTE submission to this Commission.

 

 

defences to all defendants.

 

 

G. DISTRIBUTORS AND PRINTERS

Distributors

516.

It is a general principle at common law that any person who publishes a defamatory statement is liable to the plaintiff. However, the common law itself has ameliorated the rigidity of this rule by providing a defence to some of those persons who take a subordinate part in publication, namely disseminators of defamatory matter. Such persons may escape liability provided they show:

The last proposition is wide enough to cover the other two. It may therefore be stated that a disseminator of defamatory material shall not be liable for its publication if he can prove that he was not negligent in failing to detect the defamatory matter.

The Faulks Committee considered the argument of certain major distributors that a heavy and unjustifiable burden had to be met by them in order to avail of the defence, involving the necessity of considering whether large volumes of material were defamatory prior to their publication. An objection from a

105 See above under Present Law.

 

 

different angle was also voiced, namely that the current law gave distributors an excuse to engage in self-censorship. The Committee gave little weight to this latter argument. It declined to recommend any change to the existing law, stating:

Printers

517.

At present, the defence of innocent dissemination is not available to printers. The Faulks Committee and the New Zealand Committees recommended the extension of this defence to this category of publishers.

Booksellers

518.

The New Zealand Committee was urged by the Booksellers' Association to adopt a different solution. This was that there should be a sharing of responsibility between the author, printer, publisher, distributors and retailers in a 'hierarchy' of responsibility, whether or not the plaintiff sued all of these defendants. The New Zealand Committee observed that under existing legislation, contribution might be recovered from a tortfeasor who is liable in respect of the same damages, or who would have been if sued, a provision which appeared to include defamation cases. It may be noted that a similar provision in Irish law finds expression in section 21 of the Civil Liability Act, 1961. The New Zealand Committee noted further that there was nothing to prevent a distributor from asking for an indemnity or contribution from any other party to the publication. Also, in cases where the plaintiff became aware of the libel but failed to bring it to the attention of the distributor as soon as practicable, contributory negligence could be pleaded by the defendant. It therefore recommended that the defence of innocent dissemination applicable to other distributors should specifically include booksellers.

The Faulks Committee, however, thought that different considerations applied to booksellers as distinct from other disseminators. It considered that the crucial period of publication by a bookseller was within the first few months after publication, so that if a decision were made to withhold a book during this period, this would result in the loss of the author's and publisher's total expenditure on the book. A decision to uphold the book might be made by a publisher after a writ is issued by the plaintiff. A failure to take precautions by the publisher could result in an increased award of damages, although such precautions may involve great expense.¹⁰⁷ On the other hand, the

106 Faulks Committee Report, para 297.   107 Such measures include the stopping of sales, arranging for travellers to withdraw unsold copies, having copies withdrawn from public libraries.

 

 

plaintiff, it was said, faces no risk in bringing the action. (This view apparently disregards the real risk a plaintiff faces of bearing all the costs). The Faulks Committee contrasted the position of the plaintiff in this regard with the plaintiff who claims an interlocutory injunction. In the latter case, the plaintiff is required to give an undertaking to the defendant to compensate the defendant for any losses incurred as a result of the injunction if the action fails. Accordingly, the Faulks Committee recommended that where a plaintiff had either expressly or impliedly requested a defendant to withhold, withdraw or correct a book he should not be entitled to recover additional damages on the ground that a defendant continued to publish the book, unless the plaintiff had given an undertaking to compensate the defendant for any loss incurred in complying with the request, should the action fail or be struck out.

The Australian proposal is different from those of the two reform bodies considered. The English and New Zealand Committees recommended the retention of the defence of innocent dissemination, so that if a defendant establishes that he was not negligent, he has a complete defence to the action. The Australian Committee recommended a defence based on the identity of the publisher, which would be a complete defence to any action for damages. The first major point of difference is that there is no requirement that the defendant meet any standard of care. The second point is that the plaintiff could, despite the defence, obtain an injunction.¹⁰⁸ The Australian Law Reform Commission felt that the existing position on disseminators was inadequate in two respects. Firstly, the defence available to distributors was unreasonable in expecting them to read all of the publications going through their hands, which appeared to be what was required in order to negative negligence. Secondly, the rule put the disseminator on notice of the likelihood of the existence of defamatory matter as soon as the person claims the disseminator is handling matter injurious to him, which in practice had the effect of making the disseminator cease to handle the document. Such persons are not equipped to make such judgments and they would prefer to cease handling the document rather than run the risk of handling defamatory material. “The effect is to stifle freedom of expression by imposing censorship without the intervention of a Court”. It may be noted that the Australian Law Reform Commission gave far more weight, and it is submitted, rightly so, to this latter factor than did the Faulks Committee.

The Australian Law Reform Commission acknowledged that any solution would have to cater for two innocent parties; the distributor who cannot be expected to know of the existence of defamatory material and cannot be reasonably expected to take the time and trouble to resist a claim, and the

108 It may be noted that Fleming, Law of Torts, 6ed, p 512 had made a similar suggestion. Referring to the existing law, he states:   “Even this reduced responsibility has been criticised as too onerous. For apart from uncertainty precisely what precautions are required to negative negligence, the defendant is in a quandary once a claim of libel is made. More reasonable would be to require distributor to yield only to an injunction”.

 

 

innocent person who wishes to protect his reputation. Therefore, they recommended, first, that a complete defence in a defamation action should be afforded to certain persons on the basis of their identity, without any requirement of negativing negligence on their part. Secondly, they recommended that the person claiming to be defamed should have the right to obtain an injunction restraining publication if he can satisfy the judge the matter is defamatory and otherwise indefensible. This would have three advantages: (a) abolish the fear of damages for the disseminator; (b) provide a protection of reputation for the plaintiff; and (c) restrict the flow of information to the public only after the intervention of a judge. This would be an improvement on the present situation which may encourage self-censorship.

Options for Irish Law

519.

We believe that at the minimum the defence which is currently available to distributors should be available to printers i.e. a complete immunity upon a showing by the defendant that he was not negligent in failing to realise the publication contained defamatory matter. We would prefer this to be phrased in positive terms so that the defendant has a defence provided he shows that he “met a standard of reasonable care in attempting to ascertain whether the publication in question contained defamatory material”.

However in view of modern printing methods and the resulting speed and deadlines which are necessary for a printer to remain viable in a competitive market, we are not convinced that a “reasonable care” defence would benefit printers. In most cases they simply do not have time to read the material passing through their hands and would presumably be unable to come within the defence. Although distributors do not operate under the same time constraints, they are in a similar position to printers in the sense that they play no role in determining the content of the publication with which they are dealing.

520.

We considered the Australian proposal which would provide the printer with a complete immunity from damages, although the plaintiff could request an injunction restaining publication. We examined the question as to whether it would be desirable to allow a plaintiff to obtain an injunction where the printer or distributor was actually “aware” of the defamatory content of the publication. We are not, however, in favour of this proposal because printers and distributors would be constantly asked to refrain from printing material and this request would deprive the printer or distributor of its defence. On balance, we feel that distributors and printers should have an absolute immunity from defamation actions. We provisionally recommend that distributors and printers should be immune from an action in defamation.

The impact of such a defence must also be assessed in the light of the decision in Englantine Inn v Smith¹⁰⁹ where Andrews L C J held that although a printer was not itself liable for defamation by reason of want of publication, it could nonetheless be held jointly liable for a defamation published by a trade union. We invite views as to whether, assuming the decision is correct, it represents a desirable rule.

Broadcasters of Live Programmes

521.

Both the Faulks and New Zealand Committees declined to recommend any change in the law relating to broadcasters of live programmes. Such publishers are in a precarious position, because they are liable for all material broadcasted, but since much of that material is live, they run the risk of defamatory statements being made by contributors. The Faulks Committee observed that such matters could be relied on in mitigation of damages. It also thought that to give the broadcast media a defence would often leave the defamed person remediless, unlike the position of booksellers, where the person will usually have a remedy against the author and publisher. The New Zealand Committee thought that to provide a defence “would be to invite an abuse of the media at the expense of other persons' reputations”.

Suggestions

522.

It might be specified that it should be a factor mitigating damages that the remark was made in the course of a live programme by a commentator, in situations in which the person conducting the programme could not have foreseen and avoided the comment, and took immediate steps to rectify the damage done.

It could be considered whether a correction might be an appropriate remedy, given that corrections on the broadcast media are an extremely effective means of drawing attention to the statement and vindicating the plaintiff's reputation. It could be provided that where a correction is made at the beginning of the next programme of the same series, this should be a defence to an action by the plaintiff for damages.

523.

The RTE representatives in their meeting with the Law Reform Commission identified another problem with defamation actions and the broadcast media generally. This is that an oral statement made in a programme may be very fleeting in nature. By contrast, at trial, the statement is reproduced in a document given to the jury, available to them throughout the trial, and is subjected to dictionary-type analysis. This presentation of the statement may distort its effect. The sound of the original statements may affect its meaning or lessen its damage effect. For example, if a person makes a defamatory statement in the heat of a dispute where feelings are running high, the public listening is likely to make allowance for the anger of the

109 [1948] N129, discussed above.

 

 

speaker and may not take the statement literally. The average speaker does not pause to weigh up the implications of his words, and the average listener knows this. However, at trial, the isolation of the phrase from its context and the sheer fact of its being set down in black and white, may add a gravity to the words which they did not originally possess. Accordingly, RTE thought that there should be a requirement that a tape of the programme should be played to the jury once or twice at trial, so that they could have a realistic impression of the statement. If a transcript were given to them at all, it should not be retained by them throughout the trail. That would go some way to re-creating the original effect of the statement. We invite views on this area.

 

 

VIII. MISCELLANEOUS

A. LIMITATION PERIODS

524.

Under existing law, an action for libel must be brought within six years from the date on which the cause of action accrued¹ while an action for slander must be brought within three years from the date on which the cause of action accrued.² With regard to libel and slander actionable per se, the cause of action accrues when publication to a third party occurs. With respect to slanders actionable only on proof of special damage, the cause of action accrues when the special damage is sustained.³

If the proposed abolition of the distinction between libel and slander is adopted, a single limitation period should be adopted in respect of all defamation actions. The Boyle-McGonagle Report thought that the six year period was too long and called for a limitation period of three years for all defamation actions. They also suggested the alternative that defamation actions could be commenced within six months of publication – a period of three months was the limitation period in France.

The Australian Law Reform Commission agreed that long limitation periods posed difficulties for the media in particular, because (a) journalists constituted an especially mobile workforce, with the result that the journalist who had written the material complained of might have long since left the newspaper, and (b) the media often did not keep records for long periods; tapes, for example, would rarely be kept for more than six months. Under Australian Legislation, radio and television stations were required to keep broadcasts of certain programmes for a period of six weeks only. Accordingly,

1 Statute of Limitations, s.11(2)(a).   2 Statute of Limitations, s.11(2)(c).   3 McDonald, Irish Law of Defamation p.238 Faulks Committee Report, para.526, citing Darley Main v Mitchell (1885) 11 AC 142.

 

 

the Australian Commission recommended a limitation period of six months from the time the plaintiff became aware of the publication, as well as an absolute period of three years where cases for the plaintiff did not learn of the publication for a long time. The plaintiff would therefore be required to bring his action within either period, whichever occurred first.⁴

The Faulks Committee opted for a longer time period, namely three years from the date of publication, capable of being extended by the court in appropriate cases where, owing to the plaintiff's ignorance of the relevant facts and circumstances relating to the cause of action, the limitation period expired before proceedings were commenced. On becoming aware of the relevant facts and circumstances in such a case, the plaintiff should institute proceedings within twelve months.⁵

The New Zealand Committee recommended that the limitation period should be reduced to two years, again capable of being extended, on grounds of mistake or other reasonable cause, up to a maximum period of six years from the date of publication.⁶

The Law Reform Commission of British Columbia noted that since the passing of legislation in 1979, all actions in defamation in that province were subject to a two year limitation period, and that the same period applied in most other Canadian provinces. The British Columbian limitation period runs from the date of publication. The Commission found that its time period operated well in practice and recommended that there be no change to the existing two-year limitation period.⁷

In America, it appears that most states apply a one year limitation period.⁸

We provisionally recommend a limitation period of three years, but invite views.

Limitation Periods and Defamation of the Dead

525.

Another point that will require consideration is what limitation period should apply with regard to defamation of the dead, if such a cause of action is recommended by the Commission. The Faulks Committee recommended that an action in defamation in respect of defamatory statements about a dead person should be brought within five years of the death. The New Zealand Committee recommended a period of six years from the date of death, as well as being subject to the two years from publication recommended in all cases. In other words, if A died in 1984, and B published defamatory statements about him in 1986, his relatives would have to bring the action by 1988, two

4 ALRC Report, para 281.   5 Faulks Committee Report, para 543.   6 NZ Committee Report, para 476.   7 BC LRC Report, p 59.   8 Barrett, Symposium: New Perspectives in the Law of Defamation; Declaratory Judgements for Libels; A Better Alternative, 74 Calif L Rev 847, 850 16n.

 

 

years from the date of publication. However, if C published defamatory statements in 1989, and the relative attempted to commence an action in 1991, he would be statute-barred because of the expiry of the six years since A's death. The Australian proposal was that an action should be brought in respect of defamatory material and published within three years of death. The limitation periods suggested, therefore, range from three years to six years from the date of death. We provisionally recommend that the time limit in respect of defamation of the dead should be 3 years.

 

 

B. STRIKING OUT AND DISMISSAL FOR WANT OF PROSECUTION

526.

The Boyle/McGonagle Report calls for provisions dealing with the situation where the plaintiff issues a writ, but fails to pursue the matter to trial within a reasonable time. It suggests that where defamation proceedings are not set down for trial within twelve months of the issue of the writ, there should be a power in the Court to strike them out.⁹ (Under the Rules of the Superior Courts at present the Court has such a power where no steps have been taken in the action for two years).

The reform bodies considered making similar recommendations. The Faulks Committee proposed a provision in the following terms;¹⁰

The Australian Law Reform Commission recommended that defamation actions should be instituted by summons returnable before a judge of the court within fourteen days after the date on which the summons was issued or within such other period as in the particular case the judge directs.¹¹ The court could then set a hearing date and make a suitable order as to

9 At para 5.45 of the Report.   10 Faulks Committee Report, para 559.   11 ALRC Report, Appendix C, Draft Bill, section 39(2)(a).

 

 

particulars, discovery, and interrogatories. The New Zealand Committee criticised this proposal because the preparation of the defence requires more time than the period envisaged by that provision.

The New Zealand Committee itself made a recommendation similar to that of the Faulks Committee. It felt that this would go some way towards solving the problems caused by “gagging writs”. Gagging writs are writs intended to stifle publication of further material on the same subject matter, where the plaintiff has no intention of pursuing the matter to trial. If the defendant publishes further matter, he may or may not be in contempt of court, depending on whether the contents could be said to prejudice the fair trial of the action. However, the problem is that the defendant cannot know whether the plaintiff will proceed to trial. In order to address this problem, the Committee proposed a number of additional provisions;

Provisions (a) and (b) would not be of value in Ireland because a plaintiff seeking damages does not normally specify the amount claimed (except in the Circuit Court, where he usually claims £15,000 due to that figure being the monetary jurisdictional limit on that court). We are not convinced of the utility of the remaining provision (c). It is unclear how a court is to decide that the writ is issued without any intention of pursuing the matter to trial. If the running of a certain length of time, such as one year, without further move by the plaintiff indicates that the plaintiff has no intention of pursuing the matter for trial, then the provision adds nothing to the Faulks proposal which would allow a case to be struck out when a year without steps taken has run.

527.

We believe that there should be a provision stating (i) where no step has been taken in a defamation action by the plaintiff within one year, the defendant should be entitled to have the proceedings dismissed for want of prosecution, unless the court orders otherwise and (ii) that if such proceedings have been struck out or dismissed, no further proceedings in respect of the same cause of action should be issued without leave of the court.

12 New Zealand Committee Report, para 427.

 

 

C. SURVIVAL OF ACTIONS¹³

A. Where the defamer dies before judgment

528.

The cause of action in defamation does not survive the death of the defamer, by virtue of s6 and s8(1) of the Civil Liability Act 1961, although most other causes of action in tort do survive the death of the wrongdoer. The rationale for the rule appears to be that it would be difficult to do justice if both parties cannot appear in the witness box, particularly in cases where a question of malice arises.

The Faulks Committee dealt specifically with the argument that the defendant's representatives would be prejudiced in presenting their defences.¹⁴ Firstly, they pointed out that in many cases the issue of malice would not arise at all. Secondly, in cases where the issue did arise, the onus was on the plaintiff to prove malice, and the inability to cross-examine the defendant would prejudice the plaintiff rather than the defendant. The Faulks Committee also pointed out that other causes of action, currently unaffected by the doctrine of 'actio personalis moritur cum persona' seemed not to suffer adversely from the absence of the defendant, although one would have thought they would e.g. plagiarism, fraud and malicious prosecution. A majority of the Faulks Committee recommended that the cause of action in defamation should survive against the estate of a deceased person.

The New Zealand Committee recommended that the cause of action should survive, but that the plaintiff should be limited to recovering special damages and costs, stating that it “[did] not consider that compensatory damages are

13 This section deals with death of the defamed person or defamer after publication. Where the defamed person is dead at the time of publication this is known as defamation of the dead and is dealt with separately.   14 Faulks Committee Report, para 402.

 

 

justified in such a case because of the personal nature of a defamation action”.¹⁵ However, as compensatory damages are by definition intended to compensate the plaintiff for injuries done, the death of the defendant would not appear to be a relevant reason for limiting such damages. It might, however, be a good reason for prohibiting punitive damages in such a case.

The Australian Law Reform Commission considered the death of the defendant to be an “irrelevant fact” in this context.¹⁶ The implications for the presentation of the case were not unique to defamation. Courts and juries take into account the fact that allegations against the dead are difficult to rebut; indeed, sometimes the absence of the dead assists the presentation of their case.¹⁷

529.

We recommend that a provision be enacted allowing a cause of action to survive the death of the defamer. We favour the recovery of compensatory damages in addition to special damages and costs, but not punitive damages.

B. Where the person defamed dies before judgment

530.

The Porter Committee averted to the fact that this case was different in that the issue of damages would necessarily be affected by the death of the plaintiff, although the liability of the wrongdoer would not. The Faulks Committee recommended the assimilation of this aspect of the law to that of Scotland so that where a person defamed starts an action but dies at any time prior to judgment, his personal representatives should be entitled to carry on the action to the extent of recovering both general and special damages; but that where the person defamed dies before starting the action, his personal representatives should be entitled to commence and carry on proceedings to the extent only of claiming an injunction and actual or likely pecuniary damage suffered by the deceased or his estate. There does not appear to be any reason for distinguishing between the plaintiff who dies before and the plaintiff who dies after commencing the action. In either case, he is dead by the time of verdict, and if it is considered that damages, or compensatory damages, are not appropriate, it is submitted that this should apply to both situations.

The New Zealand Committee thought that where the plaintiff died before commencing an action, no subsequent proceedings should be brought at all, because the representatives should not be allowed to bring an action which the plaintiff had neglected to do. However the Australian Law Reform Commission has pointed out that this assumes a decision not to take up a case. In fact the deceased may have intended to bring an action and instructed his solicitors to that end. However, the New Zealand Committee

15 New Zealand Committee Report, para 432.   16 Australian Law Reform Commission Report, para 104.   17 For example, there is no dilemma as to whether to give evidence or be cross-examined, or to refrain from doing so, with all the implications drawn from either course of action.

 

 

felt that where the plaintiff died between the commencement of an action and its judgment, his personal representatives should be entitled to carry on the action to the extent of claiming special damages, an injunction against further publication, and costs.

The Australian Law Reform Commission recommended that the right to institute an action should survive in favour of the personal representatives of a person defamed who dies without having instituted the action, and that a pending action should survive similarly in favour of his personal representative.

531.

We provisionally recommend that there should be a provision that a cause of action survives in favour of the personal representatives of the person who is defamed, but dies after publication, whether or not proceedings have been instituted.

In such a case the remedy might be limited to an injunction alone; or it might include compensation for special damage. Compensatory damages are felt to be inappropriate. We invite views on the nature of the remedy to be provided in such a case.

Consistent with both of the foregoing recommendations we recommend the deletion of the words “or for defamation” in s6 of the Civil Liability Act 1961 so that defamation is removed from the “excepted” causes of action which die with the victim and the wrongdoer.

 

 

D. MULTIPLE PUBLICATION

532.

Under present law, every copy of a newspaper, book or written matter, or any form of broadcast, is a separate publication to each recipient of the publication. The problem is not merely one of simultaneous actions in different locations. It is also possible for the same, or a different plaintiff to bring a second action in respect of words to the same effect as the publication involved in the first action. Although damages may be mitigated under S26 of the Defamation Act 1961, there is no prohibition upon such an action. Section 26 is worded as follows:–

It would seem that this section does not apply where the plaintiff in the second action is a different person from that in the first action. In such a case, not only is there no prohibition upon the action, but the first action is not a ground for mitigating damages. The reform bodies agreed that a multiplicity of actions respecting the same, or substantially the same, publication was undesirable and made proposals for reform.

The Faulks Committee noted that although a single action would usually be sufficient to protect the plaintiff's reputation, cases might arise in which a second action would be justifiable e.g. subsequent publication of the same matter; a publication in a foreign country or indeed in the same country, of which the plaintiff learns after the first action. The Committee therefore recommended that where proceedings in a defamation action had been

concluded by settlement, judgment or discontinuance, the plaintiff should not be permitted to bring further proceedings against the defendant in respect of publication of the same matter, except with the leave of the court or on notice to the defendant.¹⁸ The New Zealand Committee made an identical recommendation.¹⁹

The Australian Law Reform Commission proposed that the defamed person should have a single right of action in respect of a multiple publication, subject to one exception.²⁰ It defined multiple publication as “the publication by a particular person of the same or substantially the same matter in the same or substantially the same form to two or more recipients”. The sole exception allowed would be where a part of the multiple publication was not disclosed to the court during the first hearing. This was a response to the fact that a plaintiff might be unaware of a distribution until after the first hearing, and if there were a total ban on further proceedings, the defendant could conceal the extent of publication. However, this exception would be an incentive to the defendant to disclose the full extent of the publication during the first action.

533.

The two proposals are essentially the same. The Australian proposal is more specific in defining multiple publication. On the other hand, it is narrower in that the only exception envisaged is where the plaintiff was not aware of the extent of publication at the first trial. The Faulks Committee proposal allows the court a discretion to allow a separate trial whenever it sees fit. It might be advisable to retain this wider discretion but to define multiple publication using the Australian proposal, thus adopting the best features of both proposals.

534.

Another issue raised by RTE is the fact that a plaintiff may sue different publishers for the same statement.²¹ The above solution to multiple publication deals only with the same matter published by a single publisher. RTE point out that audiences receiving statements from different newspapers and broadcasters may not vary sufficiently to justify separate actions being brought against every publisher. However the expense of defending separate actions is far greater than if a single action is consolidated.

The New Zealand situation is interesting in this respect. Under their Defamation Act 1954, no action could be commenced in relation to the same or substantially the same matter in any other newspaper, unless the action were commenced within thirty days of the first action. If such an action is commenced within thirty days, the plaintiff is required to notify the defendants in each action or the other action, so that they may apply for consolidation. The New Zealand Committee recommended the extension of these provisions

18 Faulks Committee Report, para 291.   19 New Zealand Report, para 321 (c).   20 ALRC Report, para 282.   21 Part of an RTE Submission to this Commission.

 

 

to other news agencies, radio and TV broadcasts and cinemas. There would not appear to be any reason for confining it at all: it could apply to all defendants. However, the New Zealand Committee thought that the thirty day time limit was too stringent, and proposed that the court have a discretion to extend the time limit up to the time of the setting down of the first action of the trial. This type of provision would address the difficulty raised by RTE.

535.

RTE also raised the problem which arises where the plaintiff has lost an action taken outside the jurisdiction e.g. Northern Ireland or England.²² It is not clear that an estoppel defence would be available to a defendant in this situation. But RTE's fears that the plaintiff would be allowed to bring a case while they would be estopped from raising the same defences would seem to be ill-founded. If estoppel operates, it operates across the board so that the matter could simply not be raised a second time.

It is also not clear to us why a person who may have a reputation in different countries should not be entitled to sue in each of them. Accordingly, we would not be in favour of any change in the laws which would preclude such a plaintiff from issuing proceedings in this jurisdiction even though he has obtained damages in respect of the same defamatory statement in another jurisdiction. We think it should be left to the courts to determine when, if ever, estoppel should operate so as to prevent such a plaintiff from suing in this jurisdiction.

If the Australian proposal were to be adopted, multiple publication could be defined as:

The provision would contain an exception allowing for a second action if a part of the publication was not disclosed at the time of the first hearing or an exception giving a discretion to the court to allow a second action if it appears necessary in the circumstances of the case.

Alternatively, there could be a provision along the lines of the English proposal, i.e.:

22 Ibid, para 5.10.

 

 

536.

Examples of Provisions

537.

We favour provision D but invite views on the various provisions suggested. We also recommend the following provision

This last provision allows defendants the opportunity to consolidate their cases and to defend defamation actions more cheaply. The provision is modelled on the New Zealand Defamation Act 1954 section 9. However, the range of defendants has not been confined.

 

 

E. CIVIL LEGAL AID

538.

Under the existing scheme of civil legal aid, certificates will not be granted in respect of proceedings involving defamation.²³ Accordingly a person who does not have the means to protect his reputation is left without remedy.

We believe that the quality of a legal system should be judged not only be the calibre of its content but also by its accessibility. The numerous recommendations contained in this Paper will be rendered almost meaningless if they can be availed of only by a minority of defamed persons.

Neither are we convinced by the argument that the less wealthy person is less likely to be the target of a defamatory statement. If correct, this argument contains the seed of its own destruction because if there are few defamatory accusations against low income persons, there will be little strain on the financial budget of the legal aid system, which is the reason for excluding defamation actions in the first place. However, we believe that the argument is in fact incorrect in assuming that the wealthy suffer defamatory accusations to the exclusion of others. It overlooks the fact that public curiosity in a person is fed on many things other than wealth, prestige or status. A connection with crime, or a feature of morbid interest, for example, will be sufficient to bring a person into the public arena. A television documentary recently portrayed the distress of a woman whose son had been ridiculed and defamed by one of the English tabloids because of a severe physical handicap. One might even say that the greater the defamation the greater the public curiosity. Clearly the defamatory nature of the statement has little to do with the means or status of the victim, except perhaps that the public character of the victim may increase the newsworthiness of the story.

23 See Prl. 4147, Schedule A, Al(1).

 

 

Furthermore, many defamatory statements are made in a private sphere, for example to an employer, to a disciplinary board or to the local residents of a town. The assumption that libel law concerns a battle between the rich and famous and the press is alarming, and should prompt us to scrutinise our system to see if in fact the assumption is correct.

A good reputation is one of the few marketable commodities, not to say qualities, to which money is no obstacle. The poor man, like the rich man, has the right to a good reputation. The poor man, like the rich man, may have his life ruined by a defamatory statement. It is a travesty of justice to single out reputation as the human interest which one may only re-possess if one can pay for it.

We observe with approval that the Committee on Civil Legal Aid and Advice (1977) specifically rejected the argument that defamation be excluded from the civil legal aid scheme. It stated that:

We accept that there are financial limitations on the operation of the civil legal aid system. However, we agree with the Pringle Committee that if cases are to be excluded, it should be on grounds of gravity rather than category. The civil legal aid system is an attempt to achieve a measure of real justice in our society. Exclusion therefrom should be justified on strong grounds and not such arguments as put forward by the Dublin Solicitors Bar Association – namely that there would be a “proliferation of defamation actions when the legal aid scheme is introduced”.²⁴ The right to a good name is a constitutionally guaranteed interest. Its exclusion from the civil legal aid system is difficult to reconcile with its explicit recognition and position in the Constitution of Ireland.

We recommend that civil legal aid be available to the victims of defamatory statements.

24 See Committee on Civil Legal Aid and Advice, page 45.

 

 

F. PRIVACY LAW AND DEFAMATION LAW

539.

There is an overlap between the law on privacy and the law on defamation. If defamation law seeks to protect reputation, and privacy law seeks to protect matters which are personal to the individual and should not be regulated or revealed without his or her consent, it is clear that some invasions of privacy will also constitute an attack on reputation. For example, if it were said of a man that he indulged in sexually deviant practices in his home the statement would probably be defamatory and could also arguably be challenged as an invasion of privacy.

An essential difference between the two causes of action is that a true statement of fact is not actionable in defamation, whereas a true statement of fact could be actionable under privacy law. For example, if it is correctly stated of a man in 1989 that he was convicted of a criminal offence in 1933, this is not actionable in defamation because truth is a defence. However the person might argue that because he has since turned over a new leaf and led a life as a model citizen, it is an invasion of his privacy to rake up old slurs upon his reputation. The difference in treatment between the two causes of action is that defamation law looks to the quality of the statement (its truth, its negative effect) whereas privacy law looks to the content of the statement (whether it concerns a person's private life).

It might therefore be necessary to decide how the intersection between these two causes of action must be dealt with. A problem at the outset is the present state of privacy law in Ireland. To the extent that it exists, the right to privacy is an unenumerated right under the Constitution (Article 40.1). The Irish case law on privacy is set out in Appendix A, but for present purposes it is sufficient to say that jurisprudence in this area has been sparse. To date a right of privacy has been explicitly recognised only in the McGee case (a right to import and use contraceptives on the basis of the privacy of

the family unit) and the Kennedy case (a right not to have one's telecommunications intercepted without lawful justification by the State).

However a right to privacy has been refused recognition in more cases than it has been recognised.²⁵ Against this backdrop, a plaintiff who wishes to challenge an act on the basis that it infringes upon his privacy right is setting sail on an uncharted sea. This must be borne in mind when setting the limits of defamation law in this context. It would be unfortunate to widen defences in defamation law on the grounds that the plaintiff can seek redress under the guise of a privacy action, only to find that the particular privacy interest will not be protected by the Irish courts. On the other hand, any comprehensive treatment of defamation law, which seeks to protect the interest in reputation, should presumably not attempt to deal with a separate interest in a piecemeal way but rather present a set of rules which deal in a coherent manner with the central interest in reputation. However, the embryonic state of Irish privacy law may unfortunately necessitate a choice of practicality over theoretical satisfaction.

540.

We have concluded that we should not address the question of privacy in any greater detail in this Paper or in the Report which we will ultimately be presenting to the Attorney General. Our programme of Law Reform includes as one of the topics to be examined the question of privacy. That question gives rise to many more issues than are embraced in the topic of Defamation. There is much and varied material to be considered, e.g. postal and telephonic communications, unauthorised photographs, prisoner's rights²⁶, police surveillance, computer data and so on. The kind of statements which arise in a defamation case which touch also on privacy are only one type of a broad range of cases. Rather than consider questions of privacy in a shallow and piecemeal fashion, we propose to defer consideration of the entire topic to the Report which we will be presenting to the Taoiseach in due course. We have, however, set out the existing law in Appendix A to this Consultation Paper.

25 Norris v Attorney General [1984] IR 36, Madigan v Attorney General [1986] ILRM 136, Kane v Governor of Mountjoy Prison Unreptd. Sup. ct. 11 May 1988.   26 Cf Murray v Attorney General, Supreme Court, unreported, judgments delivered 14th February 1991.

 

 

SUMMARY OF PROVISIONAL RECOMMENDATIONS

(References in brackets are to relevant paragraphs in this Consultation Paper)

PRELIMINARY

Distinction between Libel and Slander

1.

We recommend the abolition of the distinction between libel and slander. We recommend the introduction of a new cause of action in defamation in which proof of special damage or specific pecuniary damage is not necessary. We recommend the repeal of sections 15, 16 and 19 of the Defamation Act 1961. The repeal of s15 will necessitate an amendment to s20(2) of the Defamation Act 1961. (Para 180).

2.

We recommend the following definition of defamation: (Para 192)

Meaning of Words (Paras 193–200)

3.

We invite views on the proposal that in a defamation action where special damage is alleged by the plaintiff, the jury should determine whether the statement was defamatory prior to the plaintiff testifying on the issue of special damage.

4.

We recommend that there be a Rule of Court stating that where the plaintiff in a defamation action alleges that the words complained of were used in a defamatory sense other than their ordinary meaning, the plaintiff shall be required (i) to give particulars of the facts and matters relied on to support such sense and (ii) to specify the persons or class of persons to whom these facts and matters are known.

5.

We recommend that there be a Rule of Court stating that where the plaintiff in a defamation action alleges that the words complained of were defamatory in their ordinary and natural meaning,

Payment into Court (Paras 201–203)

6.

We recommend that Order 22 RSC be amended so that a defendant in a defamation action may make payment into court without admission of liability.

Apology (Para 204)

7.

We recommend the following provision on apologies:

PRIVILEGED STATEMENTS

Absolute Privilege (Paras 206–209)

8.

We invite views on whether absolute privilege should be retained.

9.

We invite views on the following options:

Whichever option is preferred, statements made in the course of quasi-judicial or administrative proceedings would be governed by qualified privilege.

10.

We recommend that section 2(2)(c) of the Houses of the Oireachtas (Privilege and Procedure) Act 1976 be amended so as to include the words “or witnesses before” after the word “agents”, so as to confer the same privilege on witnesses before parliamentary committees as currently exists in respect of other parties appearing before such committees. (Para 210)

 

 

11.

We recommend that there be a provision setting out the limits of executive privilege in respect of defamatory communications. We invite views as to whether this should be absolute or qualified, and to whom it should apply. (Para 212)

12.

We recommend that there should be a provision that statements made by a judge or other officer performing a judicial function and who is not knowingly acting without jurisdiction or performing a purely ministerial function should be absolutely privileged if the publication has some relation to the matter before him. (Para 214)

13.

We recommend that statements made by parties, witnesses, advocates and jurors in the course of legal proceedings should be absolutely privileged provided the matter bore some relation to the legal proceedings in question. (Para 216)

14.

We recommend that there should be a provision that communications between solicitor and client, and between counsel and client, should attract qualified privilege only. (Para 218)

Qualified Privilege (Para 219 et seq)

15.

We recommend that a statutory provision defining the elements which are necessary to form an occasion of qualified privilege and the conditions under which the privilege is deemed forfeited.

16.

We recommend a provision stating that a qualified privilege shall be deemed forfeited and abused if (a) the defendant did not believe the matter to be true, (b) the defendant was primarily actuated by spite, ill-will or any other improper motive, (c) the matter bore no relation to the purpose for which the privilege was accorded, or (d) the manner and extent of publication exceeded what was reasonably sufficient for the occasion. We further recommend a statutory provision stating that a lack of belief in the truth of the matter will not result in forfeiture of the privilege if the defendant was reasonable in publishing the matter in all the circumstances. We recommend that the burden of proof be placed on the plaintiff to show abuse of the privilege. (Para 226)

17.

Consistent with the foregoing recommendation, we recommend the repeal of s11(4) of the Civil Liability Act and its replacement by a provision stating that where there is a joint defamation in circumstances giving rise to an occasion of qualified privilege, forfeiture by one defendant on any of the grounds (a)–(d) above shall result in forfeiture of the privilege by the other defendant only if that other was vicariously liable for the first. (Para 226)

18.

We recommend a statutory provision defining the elements which must be present in order to give rise to an occasion of qualified privilege as

follows: (Para 244)

19.

We invite views on the adoption of an 'umbrella' defence of fair report which would include the reporting rights currently set out in s29 of the Defamation Act 1961 read in conjunction with the Second Schedule, and s18 of the same Act. This defence would not be defeated by “malice” and would include the specific matters currently contained in the Second Schedule as well as a more general provision designed to afford the privilege to reports of matters omitted by the Schedule. (Para 252)

20.

In the absence of a more general defence of fair report, we recommend a number of changes to the matters set out in the Second Schedule to the 1961 Act. (Para 253)

21.

In the absence of a more general defence of fair report, we recommend that the nature of the privilege in s18 of the Defamation Act 1961 be clarified. We also recommend (i) the abolition of the requirement that the publication of the report be contemporaneous with the proceedings

reported, (ii) the extension of the privilege to all defendants, and (iii) that the privilege extend to reports of a judgement made public although the proceedings were held in camera. We further recommend that s18 be reworded to make it clear that “proceedings” mean the full proceedings in any given case. (Paras 254–255)

STATEMENTS OF OPINION

Fair Comment

22.

We recommend that a statutory provision set out the constituent elements of the defence of Fair Comment in a positive way.

23.

We recommend the repeal of s23 of the Defamation Act 1961 and its replacement by the following provision;

In order to avail of the defence of (fair) comment the defendant must show –

24.

We recommend a statutory provision based on the rule in Mangena v Wright. At the minimum this should allow the defendant to avail of the defence of (fair) comment where the comment was supported by facts published on an occasion of absolute privilege. We invite views as to whether the defence of (fair) comment should be available where the comment was supported by facts published on an occasion of qualified privilege or, if a generalised defence of fair report is adopted, that the comment was supported by facts published on an occasion in respect of which there is a defence of fair report. (Paras 279–280)

25.

We recommend the abolition of the common law rule that “malice” defeats the defence of fair comment. (Para 297)

26.

Consistent with the above recommendation, we recommend the repeal of s11(4) of the Civil Liability Act 1961 without replacement. (We have already recommended the repeal of this provision in the context of

qualified privilege but recommended a replacement in respect of qualified privilege only). (Para 300)

27.

We recommend a statutory provision clarifying that it is not a requirement of the defence of (fair) comment that the comment be fair.

28.

Consistent with the above recommendation we recommend a re-wording of the title of the defence. We recommend that it be re-named Comment or Comment Based on Fact.

29.

We recommend for the purposes of clarification that there be a statutory provision stating that allegations of base, dishonourable or other sordid motives shall be treated in the same way as any other defamatory allegation and that such a statement shall not be treated conclusively as fact or comment, nor shall a more stringent defence apply if it is found to be comment.

30.

We recommend the abolition of the “rolled-up plea”. We recommend that there be a Rule of Court requiring the defendant who wishes to avail of this defence to (i) state which of the statements are factual and which are comment, and (ii) give particulars of the facts relied on to support the truth of the factual statements.

31.

For our recommendation on the “public interest” aspect of the defence of fair comment, see below.

Distinction between Fact and Comment

32.

We recommend that there be a statutory provision setting out guidelines for the court in distinguishing between fact and comment.

33.

We recommend that part (a) of the provision should set out the following factors in distinguishing between fact and comment: (1) the extent to which the statement is objectively verifiable, (2) the language surrounding the statement, in particular cautionary or qualifying language, (3) the broader context of the statement, in particular whether one form of expression is traditionally associated with the type of publication in question. We recommend that part (b) state that a statement unsupported by any facts set out in the publication or expressly or impliedly referred to in the publication known to the recipient(s) of the publication shall be treated as a statement of fact.

 

 

FACTUAL STATEMENTS

Justification

34.

We recommend that a statutory provision set out the requirements to be fulfilled in order to avail of this defence. We invite views as to whether it should be re-named 'truth'. (Para 339)

35.

We recommend a statutory provision stating that in order to avail of the defence of truth in respect of a defamatory imputation, the defendant must show that it was in substance true or in substance was not materially different from the truth. (Para 342)

36.

We recommend the repeal of s22 of the Defamation Act 1961 and its replacement by –

37.

We recommend a statutory provision that:

38.

We recommend that the practice of pleading in the statement of claim the words “falsely and maliciously” should be deemed obsolete. (Para 215)

 

 

39.

We recommend that the rule that aggravated damages may be awarded where there is an unsuccessful defence of justification should be retained. (Para 356)

Defence of Reasonable Care (Para 385)

40.

It shall be a defence to a claim for general damages in respect of a defamatory allegation of fact that the defendant exercised reasonable care prior to publication in attempting to ascertain the truth of the allegation.

41.

It shall not be a defence to a claim for damages in respect of financial loss clearly linked with the publication that the defendant exercised reasonable care prior to publication in attempting to ascertain the truth if the allegation.

42.

It shall not be a defence to a claim for a correction order and/or declaratory judgment that the defendant exercised reasonable care prior to publication in attempting to ascertain the truth of the allegation.

Presumption of Falsity

43.

We recommend that the presumption of falsity existing under the present law should be retained. (Para 394)

Timely and Conspicuous Retraction

44.

We recommend the repeal of s21 of the Defamation Act 1961 and its replacement by a provision that the publication of a timely and conspicious retraction should be a defence to a claim for a correction order and/or declaratory judgment. We make provision for defining 'timely and conspicious retraction'.

45.

Should the foregoing recommendation be rejected, we make a number of proposals for the reform of s21. (Paras 403–410)

Fiction and Satire

46.

We invite views as to whether, in cases involving defamatory matter contained in a fictional context, the ordinary requirement of identification should be supplemented by a requirement that the matter be reasonably understood as referring to actual qualities or events involving the plaintiff. (Para 420)

47.

We invite views as to whether the definition of defamation should include a provision stating that matter which would reasonably be understood as satire is not defamatory. (Para 421)

 

 

REMEDIES

Damages (Paras 422–451)

48.

We recommend that:

49.

We recommend that there be a statutory provision setting out the factors to be considered by the court when assessing damages and set out a wide range of factors including the circulation of the libel, matters relevant to the plaintiff's reputation, the state of mind of the defendant, the durable or other nature of the publication and the extent to which the defendant proves the truth of the publication, irrespective of whether the plaintiff sues in whole or in part. (Para 445)

50.

We recommend the abolition of the rule in Scott v Sampson to the extent that it prohibits the defendant from adducing evidence of specific instances of misconduct by the plaintiff in order to show that the plaintiff had a bad reputation and thereby mitigate damages. We recommend a provision stating that the defendant may adduce in mitigation of damage any matter, general or particular, relevant at the date of trial to that aspect of the plaintiffs reputation with which the defamation is concerned. (Para 443)

51.

We recommend that damages in respect of financial loss may be awarded only where the plaintiff shows (1) the extent of such damage, and (2) that the damage was clearly linked with the publication. (Para 445)

52.

We invite views as to whether punitive damages should be abolished in defamation actions. (Para 449)

 

 

Injunctions

53.

We recommend a statutory provision stating as follows –

54.

We recommend a provision stating that where an injunction of any kind is issued to restrain publication of defamatory or allegedly defamatory matter, the court shall not have the power to make an order restraining the reporting of the fact that such injunction was issued. (Para 453)

Declaratory Proceedings

55.

We recommend the introduction of proceedings for a declaratory judgement which would provide the plaintiff with a speedy method of correcting a false statement. We invite views on a number of matters of detail in this provision. (Para 464–466)

Correction Orders

56.

We recommend that the Court should have the power to award a correction order where the defendant has failed to establish the truth of a defamatory allegation of fact. (Para 468)

Declaratory Judgment

57.

We recommend that the court should have the power to issue a declaratory judgment stating the defamatory matter to be false where the defendant has failed to establish the actual truth of a defamatory allegation of fact. (Para 469)

Right of Reply

58.

We examine a number of statutory rights of reply in other jurisdictions and welcome views as to whether there should be such a legally enforceable right in Ireland. We suggest features of such a right of reply. (Para 477)

 

 

Publication of Judgement

59.

We welcome views as to whether the court should be given the power to order publication of its judgement. (Para 478)

IDENTITY OF PARTIES

Group Plaintiffs (Para 497)

60.

We recommend a statutory provision affording a cause of action in defamation to an individual member of a group which has been defamed provided (a) the group or class is sufficiently small that the matter could be reasonable understood to refer to the individual plaintiff, or (b) the circumstances of the publication reasonably give rise to the conclusion that there is a particular reference to the individual plaintiff.

Defamation of the Dead

61.

We recommend that there should be a new cause of action in defamation in respect of defamatory statements made about a person who is dead at the time of publication, provided the action is brought within three years by close relatives or, perhaps, personal representatives of the deceased. We recommend that in such an action damages should not be available and instead that the remedies of correction order and injunction or declaratory proceedings should be available. We further recommend that provisions should be enacted to prevent multiplicity of actions. (Para 501)

Corporate Bodies (Paras 507–510)

62.

Subject to recommendation no. 63, we decline to recommend any change in the law relating to corporate and quasi-corporate bodies.

63.

We invite views on the broad immunity from tortious liability conferred on trade unions by virtue of s4 of the Trade Disputes Act 1906.

Distributors and Printers

64.

We recommend that distributors and printers should be immune from defamation actions. (Para 520)

MISCELLANEOUS

Limitation Periods

65.

Consistent with our recommendation on the abolition of the distinction between libel and slander and the introduction of a new cause of action

in defamation, we believe a single limitation period should apply to both forms of defamation.

66.

We recommend that a limitation period of three years should apply to this cause of action. (Para 524)

Striking Out and Dismissal for Want of Prosecution

67.

We recommend a provision stating (i) that where no step has been taken in a defamation action by the plaintiff within one year, the defendant should be entitled to have the proceedings dismissed for want of prosecution, unless the court orders otherwise, and (ii) that if such proceedings have been struck out or dismissed, no further proceedings in respect of the same cause of action should be issued without leave of the court. (Para 529)

Survival of Actions

68.

We recommend that a provision be enacted allowing the cause of action in defamation to survive the death of the defamer after publication. We favour the view that compensatory damages, special damages and costs, but not punitive damages would be awarded in such a case, but invite views on this point. (Para 529)

69.

We recommend that a statutory provision be enacted allowing the cause of action in defamation to survive the death of the victim any time after publication, whether or not proceedings were pending at the time of his death. We would exclude compensatory damages in this case but invite views on the remedy to be provided. (Para 531)

70.

Consistent with the foregoing recommendations we recommend the deletion of the words “or for defamation” in section 6 of the Civil Liability Act 1961 which would remove defamation from the list of causes of action which die with the wrongdoer or the victim by virtue of the combined effect of section 6 and section 8 of the Act. (Para 531)

Multiple Publication (Paras 532–537)

71.

We recommend a provision stating that as a general rule a person shall have a single cause of action in respect of a multiple publication by the same person, but that the court may permit a second action at its discretion. We define multiple publication as the publication by a particular person of the same or substantially the same matter in the same or substantially the same form to two or more recipients.

72.

We recommend a provision stating that (a) where proceedings have been commenced against a defendant in respect of defamatory matter,

an action may be commenced in relation to the same or substantially the same matter published by another defendant only within thirty days of the first action, (b) where a second action is commenced within thirty days of the first action, the plaintiff shall notify all the defendant's involved of the existence of each action, (c) the court may in its discretion extend the time limit in paragraph (a) to the time of the setting down of the first action for trial. (Para 537)

Civil Legal Aid

73.

We recommend that civil legal aid be available to the victims of defamatory statements. (Para 538)

 

 

APPENDIX A

SOME OBSERVATIONS ON THE RIGHT TO PRIVACY IN IRISH LAW¹

Reference has been made in this Consultation Paper to the Irish law on privacy and its state of relative uncertainty. It was relevant in particular to the discussion as to whether a “public benefit” limb should attach to the defences of justification and fair comment.² It is therefore considered relevant and useful to set out a summary of the legal developments in the privacy arena in Ireland to date.

If there is a general right to privacy under Irish law, it stems from the Constitution. There is no such right at common law. To the extent that a right of privacy exists, it is one of the unspecified personal rights under Article 40.3.1.

The first step towards a general right of privacy was taken in McGee v Attorney General,³ where the constitutionality of a section of the Criminal Law Amendment Act 1935 was challenged. The effect of this provision was to deprive the plaintiff, a married women, of access to a contraceptive preparation. The plaintiff had had four children, and had received the medical opinion that another pregnancy would put her life at risk. A majority of the Supreme Court held that the provision in question violated the plaintiff's right to marital privacy, and reversed the decision in the High Court. Budd J stated in the Supreme Court:

1 We wish to express our gratitude to Mr R Humphreys who kindly allowed us to use his LLM thesis on Covert State Surveillance for views on the Irish law of privacy.   2 See Section IX, Defamation Law and Privacy Law.   3 [1974] IR 284.

 

 

This robust statement on the right to privacy clearly reflected a view of privacy as a right more wide-ranging in ambit than merely marital relations. However the other members of the Supreme Court evidenced a more limited view of the privacy right, Henchy and Griffin JJ referring to a right of marital privacy, and Walsh J. basing his decision upon Article 41 and the guarantee in respect of the family. However the statement of

Budd J quoted above at least allowed for the possibility of recognising privacy rights quite distinct from those relating to marital affairs.

In Norris v Attorney General⁴ the plaintiff sought to build on the McGee decision to find a more generalised right of privacy. His contention was that legislation penalising homosexual acts between consenting adults in private was unconstitutional.⁵ He asserted that the State had no right to legislate in the field of private morality and that to legislate in relation to the private sexual conduct of consenting adults was in excess of the State's legitimate interference with the privacy of the individual.

The Supreme Court appears to have accepted that a wider right of privacy is recognised by the Constitution; the two dissenting judges expressed this view in strong terms and the majority judges did not deny its existence. The majority, however, rejected the contention that such a right had been violated in the circumstances before them.

Henchy J, dissenting, stated that a right of privacy inhered in each citizen as one of the unspecified rights under Article 40.3 and consisted of “a complex of rights varying in nature, purpose and range, each necessarily a facet of the citizen's core of individuality within the constitutional order”. He gave as examples of this right to privacy the guarantee in Article 16.19 of voting by secret ballot and the right to marital privacy recognised in the McGee case. He continued:

4 [1984] IR 36.   5 The legislation challenged was sections 61 and 62 of the Offences Against the Person Act 1861, and s11 of the Criminal Law Amendment Act 1885.

 

 

McCarthy J referred to the United States Supreme Court definition of the privacy right as the “right to be let alone” but declined to delimit the area of Constitutional State intervention. The complexity of drawing such lines between legitimate State restriction on privacy is illustrated by the comments of Henchy J:

Like the judgment of Budd J in the McGee case, the comments of the dissenting judges in the Norris case are significant in that they recognise a wide-ranging right of privacy with much potential for development. However the specific holding was that a right of privacy did not exist in this particular context. The legislation challenged in the Norris case has since been held to be a violation of Article 8 of the Convention of Human Rights and the specific right of privacy advocated by Mr Norris was recognised by the European Court of Human Rights.⁸

Infringements on the right of privacy were alleged in two cases involving taxation legislative provisions. In the first of these cases, Murphy v Attorney General⁹, the plaintiffs challenged, inter alia, section 192 of the Income Tax Act 1967. This section provided that a woman's income chargeable to income tax should, so far as it is income for a year of assessment during which she is a married woman living with her husband, be deemed for income tax to be his income and not hers. The result of this provision was to compel one spouse to declare particulars of her income to the other. In the High Court, Hamilton J rejected the contention that such enforced disclosure constituted a violation of the spouse's right of privacy, dealing with the issue in two paragraphs:

6 Ibid, per Henchy J at 71–72.   7 Ibid, at 78–79.   8 Norris v Ireland ECHR Decision of 26 October 1988 Series A No. 142.   9 [1982] IR 241.

 

 

The privacy point was not discussed in the Supreme Court as the Court reversed the decision of Hamilton J on a separate issue, holding that the statutory provision of a joint tax-free personal allowance to a married couple smaller than that provided in respect of an identical combined income enjoyed by two single persons living together constituted a breach of the guarantee in Article 41.3 of guarding with special care the institution of marriage and to protect it against attack. The treatment of the privacy issue is therefore confined to the comments of Hamilton J above, which make clear that the right did not arise in the particular case without illuminating the circumstances in which it might arise.

The second tax case in which the issue of privacy was raised was Madigan v Attorney General.¹¹ In this case a provision in the Finance Act 1983 was challenged. This provision did not mandate disclosure of income, but instead allowed relief to be given if dependants' incomes were below certain levels. To come within the section, the dependant would have to disclose his or her income to the family member claiming relief, and this, it was alleged involved a violation of the dependant's privacy. In the High Court, O'Hanlon J held that the absence of mandatory disclosure meant that there was no invasion of privacy. However, he went further than this, adding that even if there were mandatory disclosure of information where this was necessary to determine the tax liability of another person, it was doubtful if any constitutional guarantee would be infringed. As in the Murphy case, the privacy issue was not discussed in the Supreme Court.

The two final cases in which a privacy issue was raised concerned this right in a non-marital, non-sexual context. In the first of these cases, Kennedy and Arnold v Ireland and the Attorney General,¹² the right claimed was recognised

10 Ibid, 266.   11 [1986] ILRM 136.   12 [1988] ILRM 472.

 

 

in the High Court by Hamilton P. In 1982, the then Minister for Justice had authorised the tapping of the plaintiffs' telephones by issuing a warrant under s56 of the Post Office Act 1908. The plaintiffs claimed that the warrants and the tapping were, inter alia, a breach of their constitutional rights. Hamilton P noted that under the Constitution, “a right of privacy is not spelt out”, but added that a number of specific rights in the Constitution were “different facets of the right of privacy”.¹³ The judge then rejected the United States formulation of the privacy right – the right “to be let alone”– because “the very definition begs the question. The right to privacy is not in issue, the issue is the extent of that right ...”. He described this right of privacy in the following terms:

13 The rights referred to were as follows: The right of privacy in voting under Article 16.1.4; a limited right of privacy given to certain litigants under laws made under Article 34; the limited freedom from arrest and detention under Article 40.4; the inviolability of the dwelling under Article 40.5; the rights of citizens to express convictions, to assemble peacefully and to form associations, under Article 40.6.1; the rights of the family under Article 41; the rights of the family with regard to eduction under Article 42; the right to property under Article 43; and freedom of conscience and practice of religion under Article 44.   14 [1988] ILRM at 476–7.

 

 

Hamilton P held that the plaintiffs' right to privacy had been violated.

The privacy question was also referred to in the Kane case.¹⁵ The applicant was arrested in 1987 pursuant to s30 of the Offences against the State Act 1939 and released after 48 hours. The Garda Siochana were informed that the applicant had escaped from the Maze prison in Northern Ireland in 1983. For the next five hours the applicant was subjected to surveillance and was then re-arrested. The plaintiff challenged the surveillance (i) as breach of his constitutional rights to liberty and privacy and (ii) as criminal under s7 of the Conspiracy and Protection of Property Act 1875. He also challenged the second arrest as a “colourable device” for his detention. These arguments were rejected in both the High and Supreme Court.

Of relevance to this discussion are the observations made by Chief Justice Finlay:

As in the Norris case, although the particular right of privacy in the context was rejected, the language of at least one member of the Supreme Court indicated that there could be rights of privacy wider than those explicitly recognised by the Court to date, and existing apart from marital and family relations, or in the context of the dwelling-place.

It may be concluded that Supreme Court jurisprudence privacy in Irish law is both recent and sparse. To date, the Supreme Court has recognised a right of privacy concretely only in the marital area (McGee case) and in respect of interceptions of telecommunications, (Kennedy case) although certain dicta have indicated that a more general right of privacy may exist (Norris case, Kane case). However arguments that particular aspects of the right have been infringed were rejected in a number of cases (Norris case, Kane case, Murphy case, Madigan case). The right to privacy in Irish law is as yet in undeveloped form and in the absence of legislation will develop only in such detail and coherence as particular cases presenting themselves will require.

15 Kane v Governor of Mountjoy Prison Unreported Sup. Ct. 11 May 1988.

 

 

APPENDIX B

A COMMENT ON RULE 18 – RULES OF THE NATIONAL UNION OF JOURNALISTS

It is of interest to any study of libel law that there is a procedure prescribed by rule 18 of the NUJ Rules under which a member of the public may lodge a complaint about a journalist in relation to a breach of the code of professional conduct. Many of the standards set out in the code of conduct are similar to standards obtaining in the law of libel. Therefore a member of the public who has suffered from an inaccurate statement about himself could make a complaint about the author in question instead of pursuing an action in defamation. If the ultimate National Executive Council (NEC) decision is against the journalist, he may be subject to penalties of suspension, fines up to £1,000 or expulsion. The obvious difference between this and a libel action is that no compensation for the person defamed is forthcoming as the proceedings are not designed to protect reputation but rather to punish breaches of journalistic code and practice. However it is clearly a quick and cheap way of contesting an assertion made about an individual. We will therefore set out some details of this procedure.

The relevant portions of the journalistic code are as follows:

It can therefore be seen that many of the statements that would be in breach of these standards would also constitute a libel, where the information concerns an individual e.g. distortion of truth, relay of information in an unfair and inaccurate way, presentation of conjecture as fact.

The procedure under Rule 18 is as follows. Proceedings under the Rule may be instituted by the NEC, or by a member making a complaint against another member. Since August 1981, it has been possible for members of the public to lay grievances about media coverage alleged to be in breach of the Code of Conduct. Such a complaint must be made by a member of the NUJ on behalf of the individual concerned. In this case, it is the duty of the complainant member's Branch to decide whether a case has been made out for examination by the NEC. The member's complaint must be submitted in writing to that member's Branch Secretary, who sends a copy thereof to the member complained against. The latter must also be given 14 days' notice of the hearing of the complaint by the Branch.

When the Branch hears the complaint, it must do so in such a manner as to allow both parties to present their case. However where the complaint has been made by a person outside the union i.e. a member of the public, although such person may take part in the hearing, he may not be legally represented. Part (d) of Rule 18 provides, inter alia, that every effort “shall be made to make the hearing as independently representative as possible in accord with the principles of natural justice”. The Branch decides whether a case for examination by the NEC has been made out. If this is the case, then the complaint and an account of the proceedings before the Branch must be forwarded to the General Secretary for investigation by the NEC, or a Complaints Committee under Rule 10(e). A complaint forwarded to the NEC must be done so within eight weeks of the receipt of the complaint by the Branch Secretary. If this time limit is not complied with, the complaint will lapse. Under part (h) of Rule 18, a member who is a party to a case may

appeal to the NEC against a finding by a Branch within 14 days of notification of the finding.

When the NEC receives a Branch decision, it takes such action as it “deems appropriate”. This includes attempts at conciliation, but if such attempts fail, the NEC may decide to hold a formal hearing.

If a Complaints Committee is set up by the NEC, details of the complaint and hearing must be given in writing to the member complained against. The parties to the complaint must give notice to the NEC of witnesses they intend to call. At the hearing of the complaint, the member may present the case himself or be represented by a party of his choice. Again where the complaint is brought on behalf of a non-union member, this person may take part but may not be legally represented. The recommendations of the Complaints Committee are reported to the NEC for confirmation or variation.

Under part (j) of Rule 18, a party against whom a decision of the NEC is made has a right of appeal to the Appeals Tribunal, the decision of which is final. The adjudication of the NEC of any complaint laid under Rule 18 must be made within six months of the decision of a Branch to forward the complaint to the NEC. If the NEC is of the opinion that a member has been guilty of conduct which is in breach of the Code of Conduct, it may impose a fine not exceeding £1,000, suspend the member for a period not exceeding 12 months, express its censure in such terms as it deems appropriate (or impose more than one of the penalties), or expel the member from the Union.

A recent addition to the disciplinary procedure is Rule 18(c), which is designed to assist members who do not immediately know the identity of the author of the publication complained of. The complaining member can write to his/her branch secretary detailing the article and requesting the branch secretary to discover the identity of the relevant person. The branch secretary must then write to the father or mother of the chapel of the publication (FoC/MoC) who must inform the branch of the member responsible for the material published, or satisfy the branch that he or she made adequate attempts to discover the information but has failed.¹

It may be noted that the recent Declaration and Code of Practice issued by the editors of Britain's national newspapers² merely reflects procedures and standards already adopted by the Irish press. For example it says that “a fair opportunity for reply will be given when reasonably called for”, “mistakes will be corrected promptly and with appropriate prominence”, and “irrelevant references to race, colour and religion will be avoided”. These standards form

1 A “chapel” is the smallest grouping of workers in the union, usually one to each newspaper. The FoC and MoC are basically shop stewards. “Branches” are a larger grouping and are decided on the basis of function or geographical location; there are four branches in Dublin and eight or more outside Dublin in the Republic.   2 See The Independent, 28 November 1989.

 

 

part of the Irish National Union of Journalists' Code of Conduct. Furthermore, the Declaration states that a system of readers' representatives will be established; most Irish newspapers do now have a readers' representative to handle complaints from the public.