THE LAW OF DEFAMATION – DEVELOPMENTS IN THE LAST YEAR
Bar Council CPD Conference
Saturday, 19 May 2012
Eoin McCullough SC
__________________________________________________________
1.
One feature of the law of defamation is that it often seems to annoy judges. There were
some memorable expressions of this during the year. In Bradley v Independent Star
[2011] IESC 17, Hardiman J., speaking of defamation actions, said:-
“At present they are sometimes quite simply competitions in ingenuity between
the advisers of the various parties. The plaintiff may exaggerate the defamation
or its consequences. The defendant often wants to say as much as possible that
is deleterious of the plaintiffs while not pleading justification. In order to do this,
an unfortunate obliquity creeps into the pleadings, unnecessary and irrelevant
issues are raised and every effort made to ensure that the result of the trial will
turn on something quite other than the factual issue between the parties.”
2.
In Lait v. Evening Standard Limited [2011] 1 WLR 2973, Laws L.J made the following
kinder comment at paragraph 27:-
“Indeed, more generally, it is almost a commonplace that the law of defamation
has become marred in technicality (see for example Diplock L.J. rueful reference
to ‘this protracted exercise in logical positivism’ in Slim v. Daily Telegraph Limited
[1968] 2QB 157,171E); and that is no service to litigants or to the general public.
However, in justice to practitioners in the field, (and with respect, the judges who
have developed the law), this is an area where there are bound to be subtle
distinctions. The reasoning is that…..the foundation of the law of defamation is
the concept of meaning; and the idea of meaning has over the centuries
scratched the heads of the philosophers, never mind the lawyers. But it was the
philosopher Ludwig Wittgenstein who said that everything that can be said, can
be said clearly (though he comprehensively broke his own rule); and we owe a
duty to get this chapter of the common law, as much as any other, as clear as it
can be made.”
The Defamation Act 2009
3.
The Defamation Act 2009 came into operation on the 1st January 2010. Because the Act
does not affect causes of action accruing before its commencement1, and because the
availability of trial by judge and jury militates against the production of written judgments,
very few of its provisions have as yet been the subject matter of authoritative
determination.
It is nevertheless possible to point to some emerging trends in practice.
The Act did not set out to achieve significant change in the substantive law of defamation,
and it is therefore not surprising that such developments as have occurred have largely
been procedural in nature.
Offer of amends procedure
4.
The offer of amends procedure for which section 22 of the Act provides has turned out to
be more important than many anticipated. It was intended to replace the rules relating to
unintentional defamation for which section 21 of the Defamation Act 1961 provided, but it
is far more useful for defendants than that provision ever was. The crucial considerations
for a practitioner in respect of the offer of amends procedure are the following:(a)
An offer to make amends must be made before delivery of the Defence2.
(b)
An offer to make amends means an offer to make a suitable correction and
apology, to publish that correction and apology in such a manner as is reasonable
and practical in the circumstances, and to pay to the plaintiff such sum in
compensation or damages (if any) and such costs as may be agreed by them or as
may be determined to be payable.3 The disadvantage from a defendant’s point of
view of making an offer of amends is that (if accepted) it involves in effect a
concession of liability, and an agreement to pay damages and to make and publish
a suitable correction and apology. 4
(c)
Although this has not been tested, in order to make a valid offer of amends it will
probably suffice simply to write a letter that repeats almost precisely the statutory
language. If that is so, then the plaintiff has to make up his mind whether to
accept the offer without knowing the details of what the defendant intends to
offer.
(d)
If the offer is accepted, then the parties can either agree the measures that should
be taken, or, in default of agreement between the parties, measures are in effect
determined by the court.5 It follows that from a plaintiff’s point of view, he may be
forced to make up his mind about the offer without knowing what precisely it is
1
Section 3(1) of the Act
Section 22(3)
3
Section 22(4)
4
Although an offer to make amends may be withdrawn before it is accepted - section 22(4)
2
that defendant has in mind to offer, but with the comfort of knowing that he is
entitled to damages, a correction and an apology, and that the court will
determine that matters in the absence of agreement.
Experience from England
suggests that a substantial discount on full value will be allowed by a court in the
assessment of damages on foot of an accepted offer of amends6, but it is not quite
clear whether that assessment in Ireland would take place with a jury or by a
judge alone7.
(e)
A person who makes an offer of amends is not required to plead it as a defence
(section 23(4)), although if he does plead it, it is then the only defence that may
be pleaded (section 23(5)).
(f)
Crucially, if an offer is rejected and the offer is pleaded, then it is a defence to
defamation action to prove that the offer was made and was not accepted, unless
the plaintiff proves that the defendant knew or ought reasonably to have known at
the time of publication that it referred to the plaintiff or was likely to be
understood as referring to the plaintiff
and it was false and defamatory of the
plaintiff. It follows therefore that, if a plaintiff rejects an offer of amends, and the
defendant relies in its Defence upon the fact that the offer was made but not
accepted, the plaintiff will recover nothing in the action unless he can demonstrate
that the defendant knew or ought reasonably to have known that the statement
was false. That places quite a high burden on the plaintiff, and it may be a burden
that he cannot really know whether he can discharge at the time that he rejects
the offer.
5
Section 23(1)
See Gatley at paragraph 31.35
7
Probably by the judge alone. The relevant provision, section 23(1)(c), simply says that the matter shall be
determined “by The High Court”. The internal evidence is inconclusive. Other sections of the Act, including in
particular sections 14, 26, 30, 31, 32 and 34, state specifically whether particular applications are to be heard
with or without a jury. On the one hand, where the phrase “the High Court” is used in sections 30, 31 and 32,
there is specific reference to the possibility that the High Court may be “sitting with a jury”, which might appear to
suggest that the phrase “the High Court” on its own infers a court sitting without a jury. On the other hand,
sections 14 and 34 specifically provide that particular applications shall be determined “in the absence of the jury”
or shall not be determined “in the presence of a jury”, which might infer that an application in respect of which
such a provision is not made is automatically to be heard with a jury. Perhaps the determining factor is the
general law providing for the sort of cases for which trial by jury is available. Under section 94 of the Courts of
Justice Act 1924, trial by jury is available in all cases that could be tried by a jury prior to 1924. The 2009 Act
obviously operates on the assumption that the new tort of defamation created by the Act can be tried by a jury,
presumably on the basis that it is analogous to the torts of libel and slander that existed prior to 1924. However,
it may be inappropriate to make the same assumption about an assessment of damages pursuant to an accepted
offer to make amends. The provision in section 23(1)(c) that “….the court shall for those purposes have all such
powers as it would have if it were determining damages or costs in a defamation action….” may be thought to
point towards the availability of trial by jury, but the mode of trial for which the law provides in a particular court is
not really a “power” of that court.
6
5.
Thus, if a plaintiff fails at full trial to meet the necessary test to overcome the defence that
there was a valid offer of amends which was not accepted, he does not even get the
remedies to which he would have been entitled if he had accepted the offer. Rather he
gets nothing. It will be a brave plaintiff who will reject an offer of amends. This is a
powerful weapon in the hands of a defendant who thinks that the plaintiff is likely
ultimately to succeed, and who therefore wishes to apply pressure to bring the claim to an
early close.
Section 28 – the declaratory order
6.
Use has been made of the various preliminary applications for which the 2009 Act
provides. Section 28 provides for a new form of declaratory order, whereby a person who
claims to have been defamed may apply to the Circuit Court for an order that the
statement is false and defamatory of him or her.
If an application for a declaratory order
8
is made, no other proceedings may be brought. On an application for declaratory order,
damages are not available.9 Where a court makes a declaratory order, it may in addition
make a correction order under section 30, and an order prohibiting the publication or
further publication of the defamatory statement under section 33.10
While the Act
provides that an application shall be brought by motion on notice grounded on an
affidavit11, it also provides for the possibility of the court giving directions in relation to
pleadings.12
7.
Recent developments should lead one to entertain doubts about the usefulness of the
section 28 procedure from a plaintiff’s point of view. The plaintiff can succeed in a section
28 application only if he can demonstrate (inter alia) that:-
“the statement is defamatory of the applicant and the respondent has
no defence to the application ….” 13
The recent decision of Kearns P. in Lowry v. Smith (10th February 2012) throws light on
the meaning of this phrase. Although the decision is primarily about the nature of the
test to be met on an application for similar relief under section 34 of the Act, which is
8
Section 28(4).
Section 28(8).
10
Section 28(6).
11
Section 28(5)
12
Section 29(7).
13
Section 28(2). He must also establish under section 28(2) that he requested the respondent to make and
publish an apology, correction or retraction, and that the respondent did not do so, or did not give the apology,
correction or retraction the same or similar prominence as was given by the respondent to the original statement.
9
addressed below, Kearns P. also commented on the test to be met for the purpose of a
section 28 application. He said:-
“In summary therefore, it seems to this court that, where either party
seeks relief under s.34, a high threshold requires to first be met. In the
instant case, it can only mean that the plaintiff must satisfy the court that
the defendant has no arguable case to suggest that his defence might be
reasonably likely to succeed. While s.28 provides for relief where there
is “no defence” and s.34 provides for relief where the defendant has “no
defence which is likely to succeed”, I think in practical terms the test
under both sections is a high one, though that under s.28 must
necessarily be at the very highest, being that of no defence at all.” 14
It follows therefore that, in order successfully to resist an application for a declaratory
order under section 28, a defendant must merely show that he has an arguable case, and
indeed it may be that he does not even have to meet the relatively low hurdle set by this
test.
If this is so, it greatly lessens the utility of section 28 for a plaintiff. Bearing in
mind that the plaintiff has no remedy once he has brought and failed in a section 28
application, he would have to be very certain indeed of his ground before making the
application.
8.
It is clear from Lowry that the “arguable defence” that a defendant is obliged to
demonstrate
15
can include a defence based not just on truth, but also on meaning.
In
Lowry itself, the arguable defence put forward was that the words were not reasonably
capable of bearing the defamatory meanings contended for by the plaintiff. The argument
succeeded because Kearns P. accepted the principle set out in Lewis v. Daily Telegraph
[1964] AC 234, in which it was determined that reference to an investigation into alleged
criminal acts could not reasonably be read as imputing guilt as contrasted with reasonable
suspicion of guilt. This was a point also made by Kearns P. in Griffin v. Sunday
Newspapers [2011] IEHC 331, to which further reference will be made below.
9.
Finally, in Lowry, Kearns P. pointed to one of the very considerable oddities of the Act.
Section 26 provides for the new defence of fair and reasonable publication on a matter of
public interest, intended to replace or perhaps replicate Reynolds type privilege.
26(1) provides that the new defence is available in a “defamation action”.
Section
However,
section 26(3) provides that “defamation action” for the purpose of the section does not
include an application for a declaratory order. Thus, as pointed out by Kearns P.,16 the
14
Page 18.
Remembering that, according to Kearns P., this is the very height of the test to be met by a defendant.
16
Page 14
15
section 26 defence does not appear to be available on an application for a declaratory
order under section 28. Why that should be so is something of a mystery.
Section 34 – summary disposal
10.
Section 34 of the Act provides for either party to make an application for summary
disposal of the action. In the case of a plaintiff, the court may grant summary relief if it is
satisfied that (a) the statement in respect of which the action was brought is defamatory,
and (b) the defendant has no defence to the action and is reasonably likely to succeed. In
the case of a defendant, the court may grant the application if it is satisfied that the
statement in respect of which the action was brought is not reasonably capable of being
found to have a defamatory meaning. Thus, a defendant cannot succeed in an application
for summary relief under section 34 merely by showing that it is overwhelmingly likely that
the article was true, or that a privilege claim must succeed17. Rather, he can succeed only
if his can demonstrate that the words simply did not have a defamatory meaning.
11.
As set out above, Kearns P. in Lowry v. Smith examined the nature of the test that a
plaintiff must meet under section 34 in order to demonstrate that the defendant has “no
defence to the action that is reasonably likely to succeed”. He determined that this meant
that the plaintiff must satisfy the court that the defendant has no arguable case to suggest
that a defence might be reasonably likely to succeed. While this is of course a high hurdle
for a plaintiff to meet, a plaintiff ought nevertheless to be less concerned about an
application under section 34 than about an application under section 28. If a plaintiff
brings an application under section 34 but fails, then the matter simply proceeds to full
trial in the usual way.18
Section 14 – rulings on meaning
12.
Section 14 of the Act provides for the court to give rulings on meaning.
Where it
determines that a statement in respect of which the action was brought is not reasonably
capable of bearing the imputation pleaded by the plaintiff, or that any imputation so
pleaded is not reasonably capable of bearing a defamatory meaning, the court dismisses
17
Although it is possible that the defendant could apply on grounds such as this for an order dismissing the
action as being bound to fail, pursuant to the inherent jurisdiction recognised in Barry v Buckley [1981] IR 306
and Sun Fat Chan v Osseous Ltd [1992] 1 IR 425
18
Section 34 does not in fact state that this is the consequence of a failed application for summary disposal, but it
must inevitably follow.
the action insofar only as it relates to the imputation concerned.19 The application is
determined by the judge alone and may be brought at any time.20
13.
Section 14 and section 34 cover much of the same ground, although section 14 is
applicable when a defendant wishes to take some but not all of the meanings pleaded by
the plaintiff out of the case. This can obviously be useful from the point of view of a
defendant where the plaintiff has pleaded a range of meanings, some of which are
doubtful.
14.
In Griffin v. Sunday Newspapers Limited [2011] IEHC 331, another decision of Kearns P.,
the article had raised a number of allegations about the plaintiff, but (it was argued) did
not go so far as to say that there was any truth in the allegations. Adopting the approach
of the House of Lords in Lewis v. Daily Telegraph already discussed above, Kearns P.
dismissing the plaintiff’s claim insofar as it related to the pleaded imputations that he was
guilty of wrongdoing. The plaintiff was entitled to go forward to trial on the balance of his
pleaded meanings.
15.
By way of contrast, in Travers v. Sunday Newspapers Limited (15th May 1012) Hedigan J.
dealt with another section 14 application to strike out some of the meanings pleaded by
the plaintiff. It was argued that the article was not reasonably capable of meaning that the
plaintiff was actually involved in a bank robbery, given (inter alia) the presence of phrases
attributable to him which claimed his innocence. Hedigan J. refused the application. He
referred to the decision of the Supreme Court in Quigley v. Creation Limited [1971] IR
269, in which the Supreme Court had said that a judge should not withdraw a question of
meaning form the jury unless satisfied that it would be “wholly unreasonable” to attribute
a defamatory meaning to the words.
In its terms, section 14 provides that the ruling to
be given by the court is that of whether the words were reasonably capable of bearing the
imputation pleaded by the plaintiff. Hedigan J. determined, having regard to Quigley, that
an order should not be granted under section 14 unless the judge was satisfied that it
would be wholly unreasonable to leave the matter to the jury. He emphasised also the
necessity for the court to take into account the unique role of the jury in determining
questions of meaning, mentioning in that regard the decision of McKechnie J. in Magee v.
MGN Limited [2003] IEHC 87.
Section 29 - lodgements
19
20
Section 14(2).
Section 14(3) and (4).
16.
Section 29 of the 2009 Act provides for the defendant to be able to make a lodgement,
whereas previously a lodgement in a defamation action could be made only in the event of
liability being admitted.21 It is expressly provided that it is no longer necessary to admit
liability in a defamation action when making a lodgement.22 While section 29 clearly des
not have any application to any cause of action that arose before the 1st January 201023,
the abolition of the previous rule and its replacement by a new rule in the RSC may
accidentally have had the effect of permitting lodgements to be made in cases where the
cause of action arose before the 1st January 2010. While the amendment to the RSC is
stated to come into operation on the 1st January 2010, it is not stated whether applies to
causes of action arising before that date.
17.
There is one difference in the manner in which the lodgement provisions apply to
defamation actions as opposed to all other actions: section 29(3) provides that a
lodgement may be accepted not only in the normal way, but also by the plaintiff informing
the court on notice to the defendant of his acceptance of the lodgement in full settlement
of the action. This is no doubt intended to give the plaintiff the opportunity of obtaining
some public vindication, albeit that the making of a lodgement does not necessarily carry
with it an acceptance of liability.
Jurisdiction
18.
The most important decision in practical terms in the course of the year was that of the
ECJ in the linked cases of eDate Advertising GmbH v. X (C 509/09) and Martinez v. Societe
MGN Limited (C 161/10) (“Martinez”) on the 25th October 2011, relating to jurisdiction in
cases of internet publication.
Previously, the expression “place where the harmful event
occurred” in Article 5(3) of the Brussels Regulation had been held to cover both the place
where the damage occurred and the place of the event giving rise to it. It had been held
to follow that, in the case of defamation by means of a newspaper article distributed in
several contracting states, the victim could bring an action for damages against the
publisher, either before the courts of the contracting state of the place where the publisher
of the defamatory publication was established (which have jurisdiction to award damages
for all of the harm caused by the defamation), or before the courts of each contracting
state in which the publication was distributed and where the victim claims to have suffered
injury to his reputation (which have jurisdiction to rule solely in respect of the harm caused
21
Order 22 Rule 1(3) of the Rules of the Superior Courts, now replaced by a new Order 22 Rule 1(1A) by Rules
of the Superior Courts (Defamation) 2009 (SI No. 511 of 2009).
22
Section 29(4).
23
Section 3 of the 2009 Act.
in the state of the court seised).24 In Martinez, the ECJ noted that the internet reduces
the usefulness of the criteria in relation to distribution, as the scope of the distribution of
content placed on line is in principle universal.
Moreover, it is not always possible, on a
technical level, to quantify that distribution with certainty and accuracy in relation to a
particular member state, or, therefore to assess the damage caused exclusively within that
member state.
25
The court continued:-
“48.
The connecting criteria referred to in paragraph 42 of the present
judgment must therefore be adapted in such a way that a person who has
suffered an infringement of a personality right by means of the internet
may bring an action in one form in respect of all of the damage caused,
depending upon the place in which the damage caused in the European
Union by the infringement occurred.
Given that the impact which
material placed on line is liable to have on an individual’s personality rights
might best be assessed by the court of the place where the alleged victim
has a centre of interest, the attribution of jurisdiction to that court
corresponds to the objective of the sound administration of justice
referred to in paragraph 40 above.
49.
The place where a person has the centre of his interest corresponds in
general to his habitual residence. However, a person may also have the
centre of his interest in a member state in which he does not habitually
reside, insofar as other factors, such as the pursuit of a professional
activity, may establish the existence of a particularly close link with that
State.”
There is therefore a new rule in respect of jurisdiction for internet publication alleged to
give rise to defamation or breach of privacy or any other “infringement of personality
rights”. In such a case, the plaintiff has the option of bringing an action, in respect of all
the damage caused, either before the courts of the member state in which the publisher
of the internet content is established, or before the courts of the member state in which
the centre of the plaintiff’s interests is based.
The plaintiff may also, instead of an
action in respect of all the damage caused, bring his action before the courts of each
member state in the territory for which content placed on line is or has been accessible:
those courts have jurisdiction only in respect of the damage caused in the territory of the
member state of the court seised.26 This is an important development in respect of
jurisdiction over internet publication. In practical terms, it means for instance that an
Irish plaintiff can sue in Ireland in a defamation or breach of privacy action arising from
internet publication, in respect of all of the damage caused to him, caused by a publisher
in another member state. In order to establish jurisdiction, there is apparently no need
24
Sheville v. Presse Alliance [1995] ECR 1 415, paragraphs 20 and 21.
See paragraph 46 of the judgment.
26
See paragraph 52 of the judgment.
25
for such a person even to prove that any material was ever published or read in
Ireland27. He simply has to show that the centre of his interests is based in Ireland.
19.
Martinez was mentioned briefly in the Supreme Court decision of Coleman v. MGN Limited
[2012] IESC 20. In that case, the Supreme Court held that the courts of Ireland had no
jurisdiction over an article published over the English edition of a newspaper that did not
circulate in Ireland.
The court held that the plaintiff could not rely on Martinez, because
he had not pleaded internet publication, and had no evidence of any such publication.
Bradley v Independent Star
20.
The only significant decision of the Supreme Court in relation to defamation over the past
12 months was Bradley v. Independent Star Limited [2011] IESC 17. While a number of
issues arose, there are two central issues of principle that are of interest for present
purposes. First, there was the nature and status of reputation evidence in mitigation of
damages, and secondly there was a question as to whether and in what circumstances two
consecutive publications can be combined together so as to identify a plaintiff when he
might not be identified by one publication.
21.
As to the first point, Hardiman J. emphasised the limited entitlement of a defendant to
give evidence of bad reputation. He said :-
“Although, as stated elsewhere in this judgment, the defendant is
entitled, if he can, to bring evidence of the plaintiff’s general bad
reputation with a view to mitigating damages, this entitles him only to
bring general evidence of reputation. In the present case, the evidence
went far beyond that and one of the defence witnesses, in particular, was
allowed to make statements of fact about the plaintiff which are quite
inadmissible under this heading. Where evidence of this kind is sought
to be led, it must be tightly controlled, confined to the relevant area of
the plaintiff’s life, rigidly exclude hearsay and avoid statements of fact,
unless, of course, cross examination opens the way to their introduction.”
27
Although, as a matter of Irish law, he would still have to demonstrate that defamation occurred, so that he
would have to establish (inter alia) publication: section 6(2). It is established in England that there is no
presumption that an article placed on an internet website open to general access will have been published (AlAmoudi v Brissard [2007] 1 WLR 113), although equally an inference of substantial publication may well be
available on the facts (Steinberg v Pritchard Englefield [2005] EWCA Civ 288). It follows that a plaintiff in an
internet defamation action would still be well advised to call as a witness at least one person who can say that he
or she read the article. It is hard to know where the decision in Martinez fits with the rule, now well established in
England, that there must be a “real and substantial tort” in order to demonstrate jurisdiction, so it will not
necessarily suffice for a plaintiff to establish a single act of publication within the jurisdiction, and that he must
demonstrate (whether by inference or otherwise) publication of the words complained of to a substantial number
of people within the jurisdiction. In Jameel v Dow Jones [2005] QB 946, for instance, the Court of Appeal struck
out as an abuse an action in which no more than five persons could be shown to have accessed the words
complained of, two of whom did not know the claimant and had no recollection of reading his name, while the
other three were all ‘members of the claimant's camp’. It was held that the extent of the publication was minimal
and did not amount to a real and substantial tort.
Fennelly J. dealt with the matter in more detail. First, he emphasised that the evidence
must be evidence of reputation, and not evidence of character.
28
This is a subtle
distinction, but the main point is that reputation evidence should not be allowed to stray
over into referring to specific misdeeds on the part of the plaintiff on the one hand29.
As Fennelly J. acknowledged30:-
“As might be expected and as is clear from experience, it is inevitably
exceptionally difficult in practice to draw the line between evidence of
reputation in the strict sense and evidence of rumour or hearsay, which
may, to use the phrase of Barrington J., ‘creep in’. Equally, it will be
difficult to prevent witnesses, without appreciation of fine legal
distinctions, to resist referring to specific instances. The present case
illustrates the problem of framing suitable questions inviting witnesses to
give evidence of a person’s reputation.
The task of cross examining a
witness as to the bad reputation of the plaintiff will be hazardous and
may be impossible.
Counsel must be particularly careful about the
questions asked both in examination in chief and in cross-examination.
All this calls for a high level of vigilance from the trial judge.”
Fennelly J. then returned to some particular points. First, he said first that there is no
requirement that the witness as to reputation should know the plaintiff personally.
It
suffices if the witness knows the plaintiff by reputation, which postulates a sufficient
degree of connection with the area, in which the plaintiff lives, is known and
operates.31 Secondly, while emphasising that hearsay is excluded, he also pointed out
that in the final analysis evidence of general reputation is necessarily founded on what
people in the community think about the plaintiff. Thirdly, he emphasised the necessity
that the reputation evidence must relate to the plaintiff’s reputation in the area of
character with which the allegedly defamatory publication was concerned. He said:-
“For example, if a publication accused a person of dishonest dealing or of
marital infidelity, it would hardly be permissible to call evidence that he
was an excessive drinker or that he was notoriously inefficient in his
work.” 32
Finally, he said that he did not believe that there was any principle that the evidence of
reputation should necessarily refer to the period of time of the publication of which
complaint was made. He said:-
“The underlying principle is that a person should not be compensated for
loss of a reputation he does not have, a principle which would appear to
28
At paragraph 80 of his judgment
Known as the rule in Scott v Sampson
30
At paragraph 85.
31
Paragraph 87 of the judgment
32
Paragraph 90 of the judgment.
29
be applicable just as much to the time of trial as to time of publication.”
33
This is an extremely difficult area of practice. Evidence of reputation is, at least in
principle, admissible. Reputation is said to consist of what people in the community think
about the plaintiff. At least in theory, that is a different thing from any specific misdeeds
that the plaintiff had committed or is believed in the community to have committed, and
is a different thing again from rumours or hearsay about the plaintiff. It can be very hard
indeed to see the differences, and harder again to persuade a witness to do so.
22.
The second main issue discussed in Bradley is the somewhat obscure one of whether, in
an action where a plaintiff sues on an article which does not name him or otherwise clearly
identify him, he may rely for the purpose of identification on a second article published by
the same defendant which both names and identifies him. The plaintiffs had sued on an
article that did not name them. A short time later, the same newspaper had published
another article, naming the plaintiffs, and making it clear that they were the persons to
whom the first article referred.
The issue had led to conflicting judicial decisions in a
number of common law countries. Hardiman J., having reviewed those authorities, said
that in general intention was irrelevant in defamation. He continued however
34
:-
“This does not mean, however, that evidence of the same author and
publisher have published a subsequent article linking the plaintiffs by
name to the allegations previously made of two unnamed brothers the
same age as the plaintiffs , who are also brothers of the stated ages, is
inadmissible and must be excluded from consideration in an action based
on the first article. To do so would be highly unrealistic, in the sense that
it would exclude from the juries consideration material which every person
of normal intelligence would consider relevant to the question, who was
the first article published about? It is one thing to say that intention is
neither necessary nor sufficient to constitute a libel: it is quite another to
say that a specific article undoubtedly published in the same newspaper by
the same journalist by an employee of the same defendant, must be
excluded from consideration on the question of identification.”
Fennelly J., while once again emphasising the principle that intention is irrelevant on the
issue of identification, nevertheless said that in this case the second article was admissible
as evidence on the issue of identification in a claim based on the first article, largely
because it is constituted a more or less explicit republication and reference back to the
first article. While it is hard to tell, it may be that, at least in the ordinary course of
events, this decision means that a plaintiff would not be entitled to rely upon
subsequently published material as an aid to identification. It may be that this would be
33
34
Paragraph 91 of the judgment.
At page 37
permissible only where there is a very explicit and direct connection between the first and
the second material.
23.
Bradley concerned a publication taking place before the 1st January 2010. The most
relevant question for present purposes is that of whether, and the extent to which, any of
these principles survive the passage of the 2009 Act.
24.
As to evidence in mitigation of damages, section 31 of the 2009 Act provides that the
court, in making an award of general damages, is to have regard inter alia to “evidence
given concerning the reputation of the plaintiff…”
35
More specifically, it is provided at
section 31(6)(a) that the defendant may, for the purpose of mitigating damages, give
evidence:-
“with the leave of the court, of any matter that would have a bearing
upon the reputation of the plaintiff, provided that it relates to matters
connected with the defamatory statement….”
Two features of this should be noted.
First, at least on the face of it, it is intended to
widen the scope of the material that may be led as evidence in mitigation of damages.
In Bradley, the court re-affirmed the rule in Scott v. Sampson, whereby it is permissible
in mitigation of damages to lead evidence of general reputation but not of specific
misdeeds. Section 31 of the 2009 Act may have altered this, because such evidence
could clearly be a matter “that would have a bearing upon the reputation of the plaintiff,”
subject only to the requirement that it should relate to matters connected with the
defamatory statement. Secondly, for unexplained reasons, reputation evidence may only
be led “with the leave of the court.” In contrast to the pre-2009 Act position, therefore,
the defendant does not have an automatic right to lead reputation.
Rather he must
apply for the permission of the court to do so. One must assume that the court will
operate on the basis of excluding material whose prejudicial value will outweigh its
probative effect, so that for instance it might exclude evidence that was only tangentially
relevant to reputation but that was nevertheless very damaging, or evidence of events
that occurred a long time in the past. Furthermore, the court might exclude evidence of
matters whose proof might involve significant prolongation of the trial, such as for
instance disputed past misdeeds. This is an area that remains to be explored.
25.
As to the second issue in Bradley, there is very little in the 2009 Act about identification.
Section 6(3) says that:-
35
Section 31(4)(h).
“A defamatory statement concerns a person if it could reasonably be
understood as referring to him or her.”
Section 10 deals with a different issue, that of defamation of a class of person. Thus,
one can expect that the determination of the Supreme Court as to the circumstances
under which evidence of a subsequent publication can be used in support of a claim that
a person was identified will be of assistance in the context of the 2009 Act.
UK developments
26.
The only significant case in the past year in defamation from the UK Supreme Court was
that of Flood v. Times Newspapers Limited [2012] 2 WLR 760. The plaintiff was a police
officer, and the article concerned allegations of corruption against him. It included
information in a press statement issued by the police, but in addition named the plaintiff
(who had not been identified in the statement) and included details of the allegations
made to the police against him. In the UKSC, it was conceded that the publication of the
police statement was protected by a form of statutory privilege,
but the issue was
whether the publication of the allegations attracted Reynolds type privilege.
27.
There were a number of issues, the first of which was that of whether the publication not
only of the fact of the allegation, but also of its details and of the name of the plaintiff,
could be said to be in the public interest.
It was determined that since the story, if true,
was of high public interest which lay not only in the fact of police corruption but also its
nature and in a concern that the allegations might not be properly investigated, and since
the allegations themselves were the whole story, it would have been impossible to publish
the article without identifying the plaintiff or publishing the facts supporting the allegation.
It was therefore in the public interest that both the accusation against the plaintiff and the
facts supporting it, including the plaintiff’s identity, should be published.
28.
In reaching this conclusion, perhaps the most important conclusion reached by the
Supreme Court was its express rejection of the following statement that had been made by
Moore-Bick L.J. in the Court of Appeal :-
“In my view responsible journalism requires recognition of the importance
of ensuring that persons against whom serious allegations of crime or
professional misconduct are made are not forced to respond to them
before an investigation has been properly carried out and charges have
been made. It is very easy for allegations of impropriety or criminal
conduct to be made, to the police, professional bodies and others who
may have a duty to investigate their truth, out of malice, an excess for
zeal or simply misunderstanding. If the details of such allegations are
made public, they are capable of causing a great deal of harm to the
individual concerned, since many people are inclined to assume that there
is ‘no smoke without fire’. Moreover, there is a serious risk that once the
allegations have been published the person against whom they are made
will feel obliged to respond to them publicly, thereby depriving himself of
the safeguard of the ordinary process and risking a measure of trial by
press.” 36
Lord Philips PSC said that, while matters such as these will often weigh conclusively
against publication of details that appear to support an accusation that has been made
against an individual of criminal conduct that is being investigated by the police, in the
end of the day, each case will turn on its own facts and the overriding test is that of
responsible journalism.37 This is an important point, because the detailed reporting of
allegations that have been made to the police is common currency in newspaper
reporting.
The decision demonstrates that a defendant will not necessarily lose the
benefit of Reynolds type privilege by going further than reporting the fact of the
allegation, and giving details of the allegation together with the name of the person
against whom the allegations are made.
29.
In reaching similar conclusions, some members of the Supreme Court stressed the
importance of respecting the choice made by journalists, when the court comes to
determine whether the article is one written on a subject matter of public interest.
Lord
Mance said:-
“The courts therefore give weight to the judgment of journalists and
editors not merely as to the nature and degree of the steps to be taken
before publishing material, but also as to the content of the material to be
published in the public interest. The courts have the last word in setting
the boundaries of what can properly be regarded as acceptable
journalism, but within these boundaries the judgment of responsible
journalists and editors’ merit respect. This is, in my view, of importance in
the present case.” 38
The question of whether the publication of material is in the public interest is one of law,
and it is not obvious why the subjective views of a journalist should be of relevance on
that issue. Nevertheless, it does seem that, in England at least, a margin of discretion will
be allowed to journalists on this issue.
36
Paragraph 104 in the Judgment of the Court of Appeal [2011] 1 WLR 153.
See paragraph 68 of the Judgment. Lord Brown reached a similar conclusion at paragraph 118, and Lord
Dyson said expressly at paragraph 113 that there was no basis for a general rule in the uncompromising term
stated by Moore-Bick L.J.
38
At paragraph 137. Lord Dyson at paragraph 119 said that his conclusion that it was justifiable to include the
name of the individual was based not simply on the fact that it was impossible to publish the details of the article
without disclosing to those close to the plaintiff that he was the officer to whom it related, but also “…on the wider
basis that the court should be slow to interfere with an exercise of editorial judgment….”. Lord Clarke expressly
agreed with the decisions of Lord Mance and Lord Dyson.
37
30.
The second significant issue determined by the Supreme Court related to the extent of the
obligation to verify the allegations made.
39
context of reportage,
The Supreme Court held that outside the
and in a case where the public interest in the allegation lies in the
contents of the allegations and the fact that they might be true, a publisher will normally
be required to show that reasonable steps had been taken before publishing to verify that
the allegations were true, and that he reasonably believed that there were grounds for
believing that they were. He said that
“In such a case, the public interest in learning of the allegation lies in the fact that
it is, or may be, true. It is in this situation that the responsible journalist must give
consideration to the likelihood that the allegation is true.
Reynolds privilege
absolves the publisher from the need to justify his defamatory publication, but the
privilege will normally only be earned when the publisher has taken reasonable
steps to satisfy himself that the allegation is true before he publishes it.”
It follows that, in most cases at least, a defendant will not be able to rely on Reynolds type
privilege unless first he can show that he believed the allegations to be true, and secondly
that he took reasonable steps to verify them.
31.
Quite how all this fits into the Irish context remains to be seen. Two comments can be
made.
First, it is by no means clear whether the 2009 Act abolished Reynolds type
privilege or not.
That is so because section 15 of the 2009 Act abolished pre-existing
defences, but section 18 provided as an exception that it would be a defence for the
defendant to prove that the statement in respect of which the action was brought would, if
it had been made prior to the commencement of the Act, have been considered as having
been made on an occasion of qualified privilege. Thus, the question of whether Reynolds
type privilege continues or not in Ireland depends very much upon whether one sees it as
a type of qualified privilege, or as a new sui generis defence. That was not an issue upon
which the House of Lords in Jameel agreed, although it was noteworthy that Lord Philips in
Flood said that this was undoubtedly a sui generis privilege, which arises not simply
because of the circumstances in which the publication was made, but rather because of
the subject matter of the publication itself. If that is so, then the direct relevance of Flood,
and indeed any other English case on Reynolds type privilege, may be limited.
32.
Secondly, and perhaps more importantly, one can certainly expect developments in the
law relating to Reynolds privilege in England to have an influence upon the interpretation
of the new defence of fair and reasonable publication on a matter of public interest for
39
Described at paragraph 77 by Lord Philips as being a special, and relatively rare, form of privilege, which
“….arises where it is not the content of a reported allegation that is of public interest, but the fact that the
allegation has been made ….” which “protects he publisher if he has taken roper steps to verify the making of the
allegation and provided that he does not adopt it.”
which section 26 of the 2009 Act provides. Section 26 clearly provides for a separate
consideration of the public interest on the one hand and the question of whether it was
fair and reasonable to publish the statement on the other hand.40 There are no details
given as to the manner in which the former is to be determined.
While there is a list of
matters to be considered for the purpose of the latter issue, it is clear that they are
intended to be non-exhaustive. The points made in Flood as to how the publication of full
details might nevertheless sometime be in the public interest, the emphasis on paying
respect to the view of the press itself as to what is and is not a matter of public interest,
and the point made as to the necessity in most (but not all) cases to verify, are likely to be
influential in the interpretation of section 26.
33.
In Cambridge v. Makin [2012] EWCA Civ 85, the Court of Appeal held that an e-mail sent
by an unpaid director of a professional association (of interpreters) about another member
of that profession to a large number of members of the profession was not protected by
qualified privilege. In the High Court, the judge had placed some emphasis upon the
motive of the defendant.
The Court of Appeal held that, outside the confines of an
established relationship which plainly requires the flow of free and frank communications
in both directions, the question of whether there has been an adequate investigation of
the allegation may be relevant as one of the circumstances associated with the origin and
publication of the defamatory matter which bears on the question of whether the public
interest requires its publication to be protected, absent malice.41 One normally thinks of
motive as being relevant only to malice, and not to whether the occasion was one of
qualified privilege in the first place. The approach in Makin is novel, and may be of
relevance in Ireland.
ENDS
40
They are set out separately in a list of criteria to be met in section 26(1).
See paragraph 52 of the Judgment, section 18 of the 2009 Act preserved the pre-existing law in relation to this
species of qualified privilege, and furthermore recreated it in statutory form but in substantially the same way as
previously understood.
41