Irish Defamation Law and Bloggers
Gavin over at gavinsblog.com mentioned yesterday that it would be handy to have a synopsis of what Irish defamation means for bloggers. I felt it my civic duty to write a few lines and impart my modest interpretation of the law. Should anybody spot errors, please let me know.
What I have written is not intended to be the definitive or last word on the issue, therefore anyone who might be the subject of a libel action should not rely on my information as a reasonable defence. "But I read it on th'Internet your honour" won't wash.
One important point to note is that anything written in a blog is subject to the same rigours of the Defamation Act of 1961 as any other published material. The only grey area in my mind (boom boom) is in deciding whether or not the libel is in permanent form.
A few interesting facts
Libel is actionable -- person bringing the case doesn't need to prove that he has suffered any damage a result of the libellous statement
Libel can be a crime as well as a civil wrong
Libel is in permanent form -- this is an area that I'm not sure of when it comes to blogs. What if a blog has been completely deleted as well as all instances of it in search engine caches?
Libel cases are heard by a judge and jury. Jury decides damages. This might change in any new defamation legislation introduced by McDowell. Judges may be the sole deciders when awarding damages.
First off, there are three main questions that need to be answered in order to prove a case of libel
a) was the statement defamatory?
b) was the statement identifying a certain individual?
c) was the statement published to a third party?
No definition of defamation exists in Irish statute but the following was used in a high profile case ...
"Defamation is committed by the wrongful publication of a false statement about a person which tends to lower that person in the eyes of right-thinking members of society or tends to hold that person up to hatred, ridicule or contempt or causes that person to be shunned or avoided by right-thinking members of society."
Right. Salient part of the above statement is "which tends to lower that person in the eyes of right-thinking members of society ..."
Moving on the three questions (a, b and c) mentioned above .
a) Was the statement defamatory?
This can be answered by analysing the definition of defamation mentioned previously. Does the statement make the person look a fool in the eyes of right-thinking folk?
b) Was the statement referring to a certain individual?
If the statement identifies the person by name, question answered. However, if there is no name mentioned the Plaintiff in any libel action must prove that it indeed referred to him.
c) Was the statement published to a third party?
If you blogged it and it's live, then yes.
Innuendo
Some might think that skirting around an insult/defamatory statement is protection enough from the law. Not so.
A definition of innuendo "An innuendo is a defamatory imputation whereby the facts known to the reader import into the words some secondary meaning as an addition to, or alteration of, their ordinary meaning."
It may be a defence to claim not to have intentionally written the defamatory remark.
Damages
Damages can be mitigated when
- the plaintiff had a previously bad reputation
- an apology and retraction is offered
- the plaintiff had already received compensation in a similar case
Defences to defamation
3 main defences for bloggers (more defences available for lawyers, members of the Oireachtas, people reporting crimes to the Gardaí etc)
1. Consent
The person has consented to the publication of the statement. For example, an interviewee lets something slip in an interview
2. Justification
The defendant in a libel action may plead that the statement is substantially true. A person cannot claim that his good name has been tarnished if he didn't have a good name in the first place. Warning! If this defence is not successful, it can lead to punitive damages being awarded to the Plaintiff.
3. Fair Comment
An opinion based on fact. Would have to prove that the statement concerned a matter of public interest, was fair and made in good faith and that it was based on fact.
I would imagine that this was the defence taken by Gary Lineker in the recent Harry Kewell case.
It is therefore advisable to carefully monitor comments made on weblogs. Although you may not have made the statement yourself, you as the publisher are obliged to take whatever steps are necessary to avoid the publication of libellous remarks. The old argument that the editor of a newspaper cannot possibly read every article it publishes doesn't work. The buck has to stop somewhere.
The law in Ireland is plaintiff-friendly. A retraction will not save your bacon. Indeed, publishing a retraction can incriminate (as far as I know). A retraction may only mitigate damages.
Published by Colm.
What I have written is not intended to be the definitive or last word on the issue, therefore anyone who might be the subject of a libel action should not rely on my information as a reasonable defence. "But I read it on th'Internet your honour" won't wash.
One important point to note is that anything written in a blog is subject to the same rigours of the Defamation Act of 1961 as any other published material. The only grey area in my mind (boom boom) is in deciding whether or not the libel is in permanent form.
A few interesting facts
Libel is actionable -- person bringing the case doesn't need to prove that he has suffered any damage a result of the libellous statement
Libel can be a crime as well as a civil wrong
Libel is in permanent form -- this is an area that I'm not sure of when it comes to blogs. What if a blog has been completely deleted as well as all instances of it in search engine caches?
Libel cases are heard by a judge and jury. Jury decides damages. This might change in any new defamation legislation introduced by McDowell. Judges may be the sole deciders when awarding damages.
First off, there are three main questions that need to be answered in order to prove a case of libel
a) was the statement defamatory?
b) was the statement identifying a certain individual?
c) was the statement published to a third party?
No definition of defamation exists in Irish statute but the following was used in a high profile case ...
"Defamation is committed by the wrongful publication of a false statement about a person which tends to lower that person in the eyes of right-thinking members of society or tends to hold that person up to hatred, ridicule or contempt or causes that person to be shunned or avoided by right-thinking members of society."
Right. Salient part of the above statement is "which tends to lower that person in the eyes of right-thinking members of society ..."
Moving on the three questions (a, b and c) mentioned above .
a) Was the statement defamatory?
This can be answered by analysing the definition of defamation mentioned previously. Does the statement make the person look a fool in the eyes of right-thinking folk?
b) Was the statement referring to a certain individual?
If the statement identifies the person by name, question answered. However, if there is no name mentioned the Plaintiff in any libel action must prove that it indeed referred to him.
c) Was the statement published to a third party?
If you blogged it and it's live, then yes.
Innuendo
Some might think that skirting around an insult/defamatory statement is protection enough from the law. Not so.
A definition of innuendo "An innuendo is a defamatory imputation whereby the facts known to the reader import into the words some secondary meaning as an addition to, or alteration of, their ordinary meaning."
It may be a defence to claim not to have intentionally written the defamatory remark.
Damages
Damages can be mitigated when
- the plaintiff had a previously bad reputation
- an apology and retraction is offered
- the plaintiff had already received compensation in a similar case
Defences to defamation
3 main defences for bloggers (more defences available for lawyers, members of the Oireachtas, people reporting crimes to the Gardaí etc)
1. Consent
The person has consented to the publication of the statement. For example, an interviewee lets something slip in an interview
2. Justification
The defendant in a libel action may plead that the statement is substantially true. A person cannot claim that his good name has been tarnished if he didn't have a good name in the first place. Warning! If this defence is not successful, it can lead to punitive damages being awarded to the Plaintiff.
3. Fair Comment
An opinion based on fact. Would have to prove that the statement concerned a matter of public interest, was fair and made in good faith and that it was based on fact.
I would imagine that this was the defence taken by Gary Lineker in the recent Harry Kewell case.
It is therefore advisable to carefully monitor comments made on weblogs. Although you may not have made the statement yourself, you as the publisher are obliged to take whatever steps are necessary to avoid the publication of libellous remarks. The old argument that the editor of a newspaper cannot possibly read every article it publishes doesn't work. The buck has to stop somewhere.
The law in Ireland is plaintiff-friendly. A retraction will not save your bacon. Indeed, publishing a retraction can incriminate (as far as I know). A retraction may only mitigate damages.
Published by Colm.
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