Do I Have A Defamation Case? Five Key Questions
Defamation, libel and slander is not confined to the classic case of being defamed in a newspaper article or media broadcast. Defamation, libel or slander in Ireland can be much more localised and immediate e.g. being falsely accused of shoplifting, being wrongly detained or being improperly turned away from a night club. Defamation, libel or slander can take place in your work or local community.
Defamation, libel or slander arises when a person or a business is falsely accused of immoral, illegal or unethical conduct. If you feel you or your business has been defamed, libelled or slandered and a response is needed you will require sound legal advice.
What are the key issues to determine whether you have a defamation, libel or slander claim? While each case is different, this generally turns on how the following questions are answered:
1. Has there been a False Statement of Fact?
To be defamatory, libellous or slanderous a statement has to be factually untrue. This is not always as clear as it seems. Context is critical. What may be true in one set of circumstances may not be in another. What looks like a statement of opinion may turn out to be a statement of fact. Attempts to cloak fact as opinion are not unknown.
2. Was the Statement made ("published") to a third party?
A statement, no matter how false, cannot constitute defamation if it is made only to the person the subject of the statement.
3. Does the Statement Refer to You?
If you are named or pictured this may be obvious. In other cases identification can be by implication. Under the Defamation Act 2009 the key question is can the offending statement be reasonably understood as referring to you.
4. Does the Statement Lower You in the Minds of Reasonable People?
This usually boils down to whether it accuses you of immoral, illegal or unethical conduct.
5. Is the Statement Privileged?
Some statements, in some circumstances, can attract privilege or immunity in defamation. Privilege can be “absolute” or “qualified.” The most common example of privilege is legal professional privilege which protects communications between a solicitor and his or her clients.
How the five questions above are dealt with will usually determine whether you are entitled to a legal remedy.
Compensation, Damages & Other Remedies
If you have been the subject of defamation, libel or slander apart from damages or compensation a range of other legal remedies may be available. These are particularly appropriate where money alone is not sufficient to correct the wrong and may include:
1. A “Declaratory Order” declaring that the statement was defamatory,
2. An order forcing the offending party to publish a correction, and/or
3. A “Prohibition Order” prohibiting further publications.
It is important to act quickly and to contact your solicitor immediately. Generally you only have one year from the date of first publication to bring a claim. In some circumstances this one year period can be extended to two years. Acting speedily can have the added benefit of preventing further publication.
Author Bio: Thomas Barry is a Partner in Thomas Barry & Company, a legal practice based in Dublin. He has over 30 years experience. He regularly writes on legal issues