You defame somebody if you make a false allegation about them and that allegation has been made known to third parties. There are however certain defences open to the person who made the defamatory statements. One of the defences is that of privilege.
Privilege can be absolute privilege, which generally refers to comments made in the Dail or Seanad or in a court of law.
In this post however I want to discuss the defence of qualified privilege. The defence of qualified privilege may apply where a statement is published to a person who had a legal, moral or social duty to receive the information and where the defendant reasonably believes this to be the case and that he had a corresponding duty to pass on this information. For instance, an employee can approach an employer and make an allegation that they saw somebody stealing company money. That allegation will be defamatory if it is not true but if the allegation was made in good faith then that person could rely on the defence of qualified privilege if it turns out that the allegation was untrue. In many cases however, that defence is lost where malice exists. If for instance the employee approached their employer and make an allegation that they saw somebody stealing company money when they absolutely knew that had not happened or that they knew there was an innocent explanation, then they will not be able to rely on the defence of qualified privilege. Malice defeats qualified privilege.
Newspapers and other organisations can also rely on the defence of “honest opinion”, however, it is not sufficient simply to say that I believe you are a thief if that honest opinion is not based on anything substantial. The honest belief has to be a reasonable belief.
A comprehensive list of statements that attract qualified privilege is set out in the Defamation Act of 2009, schedule 1 part 1 and part 2.
Kevin Brophy
Privilege can be absolute privilege, which generally refers to comments made in the Dail or Seanad or in a court of law.
In this post however I want to discuss the defence of qualified privilege. The defence of qualified privilege may apply where a statement is published to a person who had a legal, moral or social duty to receive the information and where the defendant reasonably believes this to be the case and that he had a corresponding duty to pass on this information. For instance, an employee can approach an employer and make an allegation that they saw somebody stealing company money. That allegation will be defamatory if it is not true but if the allegation was made in good faith then that person could rely on the defence of qualified privilege if it turns out that the allegation was untrue. In many cases however, that defence is lost where malice exists. If for instance the employee approached their employer and make an allegation that they saw somebody stealing company money when they absolutely knew that had not happened or that they knew there was an innocent explanation, then they will not be able to rely on the defence of qualified privilege. Malice defeats qualified privilege.
Newspapers and other organisations can also rely on the defence of “honest opinion”, however, it is not sufficient simply to say that I believe you are a thief if that honest opinion is not based on anything substantial. The honest belief has to be a reasonable belief.
A comprehensive list of statements that attract qualified privilege is set out in the Defamation Act of 2009, schedule 1 part 1 and part 2.
Kevin Brophy
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