Defamation & Privacy

Your good name is one of the most valuable assets you have. It is a fundamental right guaranteed by the Irish Constitution.

You are entitled to protect your reputation against unjust attack. Defamatory statements can be written or spoken and can be made in person, in print, on television, on radio, by text, tweet, email, blog, website or other form.

We have over 25 years’ experience assisting victims of defamation, slander or libel to vindicate their good names, helping clients with reputation management and in defending claims.*

A publication implied a business person had engaged in disreputable business practices. Initially the publication stood over its story. Continued pressure resulted in the piece’s withdrawal, an apology and compensation.

A student shopping in a store was pursued from the store and stopped on the street by security personnel. The student was brought back into the store, walked to a back office, made empty his bag and accused of taking an item without paying. He produced his receipt and was given a perfunctionary apology. Defamation and false imprisonment proceedings produced a settlement in our client’s favour.

A person sued a store security company claiming its operatives had falsely accused her of shoplifting in a public mall. While the operatives denied an encounter as alleged had taken place and suspected a set up, the claimant was supported by her companions and strongly pursued her claim. We resisted and the case was dropped when enquiries showed the claimant and her companions had criminal convictions they had tried to hide.

Under the Defamation Act there is usually a limitation period of one year within which defamation claims can be made. It is always advisable to seek our advice promptly. Even if you do not intend to make a claim it is still in your interest to have the facts recorded, to consult and be advised.

Memory fades. Stories and circumstances can change. If you feel you have been the subject of defamation, libel or slander it is critical that all essential evidence is protected and safely retained. Practical steps that frequently require to be taken include:

  • Make out a detailed history of the event.
  • Keep all digital records (e.g. of the culprit, offending documents and/or layout of premises) whether your own or made by friends, acquaintances or bystanders.
  • Have your solicitor take statements from witnesses while they are still traceable and have good recall.
  • Secure records held by others, especially the offending party, from destruction. These can include paper and electronic records. This can be done by emergency court application if necessary.
  • Source cctv footage.
  • Inspect premises.

Defamation cases differ to most other types of cases in that damages or compensation can be awarded not only for the actual loss suffered (“general damages”) and out of pocket expenses incurred (“special damages”) but can also be:

  • Aggravated – Where the offender is held to have aggravated the injury to the claimant in the conduct of the defence, or
  • Punitive – Where the offender is shown to have intended to publish the defamatory statement recklessly or knowing that the statement was untrue.

As well as seeking damages a victim of defamation can seek the following orders:

  • ‘Declaratory Order’.

An application may be made to the Circuit Court for a declaratory order that the statement is defamatory if the publisher has failed to respond to a request to publish an apology, correction or retraction. However, the applicant cannot then bring any other proceedings including a claim for damages. The court does not require proof that the statement is false only that it is defamatory and that there is no defence. If successful the applicant can request the court to make a correction order and an order prohibiting publication.

  • ‘Prohibition Order’.

The injured person may apply for an order prohibiting further publication of a defamatory statement. The plaintiff must show that the defendant has no defence that is reasonably likely to succeed. The media may report the order of the court provided that the reports do not include the statement to which the order relates.

A maker of a defamatory statement may make an offer of amends before a Defence is filed in court. Such an offer consists of an offer:

  • to make a suitable correction and sufficient apology,
  • to publish the correction and apology in a “reasonable and practicable” manner, and
  • to pay agreed compensation, damages and costs.

If the terms are agreed and the offer accepted the defamation claim is concluded. If not accepted the offer may be used by the defendant as its defence (i.e. that the injured party failed to accept an offer to make amends). In such an event the defendant cannot use any other defence.

A defendant will also mitigate damages by offering an apology and publishing it as soon as possible. The apology is not an admission of liability and cannot be used as evidence of guilt on the part of the publisher by the injured party at the hearing of the claim.

Without admitting liability, a maker of a statement may pay into court a sum of money in satisfaction of the claim provided prior notice in writing is given to the claimant who may accept the payment in full settlement of the action.

A party sued can ask a judge to dismiss a claim on the basis the statement is not reasonably capable of having a defamatory meaning.  Other possible defences are:

‘Truth’ – Where the party sued proves the statement was true in all material respects.

‘Privilege’ – A statement made in any of the following circumstances has the protection of absolute privilege:

(a) statement made in either House of the Oireachtas by a TD or Senator,
(b) report of a statement by a TD or Senator produced by authority of either House,
(c) statement made in the European Parliament by an MEP,
(d) report of a statement by an MEP produced by authority of the European Parliament,
(e) statement made in a court judgment,
(f) statement made by a person performing a judicial function,
(g) statement made by a party, witness, lawyer or juror during judicial proceedings,
(h) statement made during and connected with proceedings involving limited functions of a judicial nature (such as the Employment Appeals Tribunal),
(i) fair and accurate report of public proceedings or a decision of any court in the Republic or Northern Ireland,
(j) fair and accurate report of certain family law proceedings,
(k) fair and accurate report of proceedings of courts including the Court of Justice of the European Union, the Court of First Instance of the European Union, the European Court of Human Rights and the International Court of Justice,
(l) statement made in proceedings before a committee appointed by either or both Houses of the Oireachtas,
(m) statement made in proceedings before a committee of the European Parliament,
(n) statement made during and connected with proceedings before a Tribunal of Inquiry,
(o) statement in a tribunal report,
(p) statement made during and connected with proceedings before a commission of investigation,
(q) statement in a commission report,
(r) statement made during a coroner’s inquest or in a decision or verdict at an inquest,
(s) statement made during an inquiry conducted by authority of the government, a minister, the Dáil or Seanad or a court,
(t) statement made during an inquiry in Northern Ireland on the authority of the British government, Northern assembly, minister or court,
(u) statement in a report of such inquiries,
(v) statement made during and connected with proceedings before an arbitral tribunal, or
(w) statement made in accordance with a court order in the Republic of Ireland.

‘Qualified Privilege’ – Where the party sued has a legal, moral or a social duty to communicate the information and the recipient has a similar duty to receive it. This defence is lost if the statement is malicious.

‘Consent’ – Where the injured party consented to publication.

‘Innocent publication’ – Where the defendant can show he took reasonable care in relation to the publication (the extent of his conduct and his previous record and character are taken into account) and he did not know, and had no reason to believe, that his actions would lead to defamation proceedings or he was not the author, editor or publisher of the statement e.g. (he may have been only the printer or distributor etc).

‘Honest Opinion’ – Honestly-held opinions are defendible as long as at the time of publication, the defendant believed in the truth of the opinion; the opinion was based on proven (or honestly believed) allegations of fact that were known to those to whom the statement was published, or the opinion was based on proven (or reasonably likely) allegations of fact which were privileged and the opinion related to a matter of public interest.

‘Fair and reasonable publication on a matter of public interest’ – Where the party sued can prove that a statement was (a) published in good faith and during (or for the purpose of) discussion of a subject of public interest for the public benefit (b) the extent of the publication was reasonably sufficient and (c) it was fair and reasonable to publish the statement.

Definitions of The Right to Privacy

US Justice Louis Brandeis once described the right to privacy as “the right to be left alone”. A more modern formulation says:
“The right to privacy is our right to keep a domain around us, which includes all those things that are part of us, such as our body, home, property, thoughts, feelings, secrets and identity. The right to privacy gives us the ability to choose which parts in this domain can be accessed by others, and to control the extent, manner and timing of the use of those parts we choose to disclose.”

No Precise Legal Definition of The Right to Privacy in Ireland

Irish law provides a constitutional right to privacy but does not expressly define it. The right to privacy is qualified and counter balanced against competing rights such as the right to freedom of expression.

Examples of Breaches of The Right to Privacy

While Irish law does not provide an express legal definition of what constitutes the right to privacy over the years precedent has categorised breaches of the right to privacy into four main types:

1. Intrusion of Solitude (e.g. secretly eavesdropping on telephone conversations, peeping or secretly photographing or filming without the victim’s knowledge or consent),
2. Appropriation of Name or Likeness (e.g. falsely claiming someone has endorsed a product or service),
3. Public Disclosure of Private Facts (e.g. disclosing that a person has a particular disease or had an affair), and
4. “False Light” (e.g. publicising false information that someone was arrested or said something inflammatory).

These may be a little outmoded in the 21st century (social media era) but they still provide a reasonable template.

Remedies for Invasions of Privacy

While protecting the right to privacy can involve elements of defending one’s good name not all invasions of privacy are defamatory. Nowadays it is necessary for the privacy lawyer to take a very lateral view when assessing cases. This can take him or her into many disparate areas including:

  • Statute (e.g. Data Protection, Broadcasting, Employment, Copyright, Non-Fatal Offences Against the Person and a wide range of other Acts),
  • Torts such as trespass, nuisance and breach of confidence,
  • The Irish Constitution, and
  • The European Convention on Human Rights.

These were established in 2007 to ensure the protection of freedom of expression of the press, protect the public interest by ensuring ethical, accurate and truthful reporting by the press, maintain minimum ethical and professional standards among the press and ensure that people’s privacy and dignity is protected. On upholding a complaint, the Ombudsman may direct the publication of an apology.

* In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.

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Since 1991, Thomas Barry & Company Solicitors, Dublin have continued to expand and develop our legal services. We will use our experience and expertise to provide advice, guidance and legal representation in relation to your legal issues. We can provide both commercial and private clients with a tailored and effective service to help them reach a successful conclusion.

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