DEFAMATION – QUALIFIED OR ABSOLUTE PRIVILEGE

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

Brophy Solicitors

DEFAMATION – ACT QUICKLY, MOVE DECISIVELY, SETTLE REASONABLY

We were recently involved in a high profile defamation action where we were able to achieve a very rapid and satisfactory settlement for journalist John Waters and others in an action against RTE.

RTE have been criticised for the handling of this case and one of the criticisms has been that they settled the case too quickly. That is one of the issues I want to address in this email.

If a person is defamed it means that a statement has been made which injures that person’s reputation in the eyes of reasonable members of society. 

The law covering defamation is now set out in one comprehensive document, the Defamation Act, 2009. Previously you had to issue your proceedings within either three years or six years depending on the type of defamation but the position now is that proceedings must issue within 12 months. 

This makes sense because if you are claiming that your reputation has been damaged and you do nothing about it for 2½ or 5½ years, it will be very hard to say that you were upset that your reputation was damaged when you took no action to deal with the matter. 

In the John Waters case, we moved very quickly and we first of all simply sought an apology. That was all our client wanted. Our client had to move quickly because his reputation is a very precious thing and the allegation that he was homophobic was clearly defamatory. We strongly advised him to seek damages as a mark of the seriousness of the issue and we vigorously pressed RTE to settle this case quickly because if the matter went on, the damage to our client’s reputation could only get worse. RTE accepted this and ultimately we were able to compromise the matter and it settled within two weeks of the publication of the offending comments on the Saturday Night Show. 

Many people have said that they thought the case settled extraordinarily quickly. It did, but that is only as it should be. 

We were happy to achieve a good settlement for our client in that case and we were happy that RTE accepted that this was an extremely serious issue and one that should be addressed as a matter of urgency. They knew they could not succeed with any Defence of the case and they settled it quickly and in doing so saved the tax payer a very substantial sum of money.

The lesson to be learned is that if you are defamed, you have to move immediately. You cannot argue that your reputation was damaged and you were enormously upset that your reputation was damaged and then sit back and do nothing. Even a delay of weeks could be extremely damaging. If you move quickly, it emphasises how seriously you take the matter and it will encourage the other side to settle the case quickly if the claim is clear and undeniable. Even if it is not, you will at least ensure that the case moves along quickly as it is in nobody’s interest to drag out litigation any longer than it is absolutely necessary. 

Move quickly, act decisively and settle reasonably.

Kevin Brophy,

Brophy Solcitors

HOW TO DEFAME SOMEONE AND GET AWAY WITH IT?

In recent blogs I referred to the fact that it is relatively easy these days to seriously attempt to destroy a person’s reputation and get away with it. What you do is you post some utterly untrue and scurrilous remarks on Facebook or on TripAdvisor or on Twitter and if possible you hide your identity. If the injured party tries to chase any of these social media sites, they will be faced with an impenetrable wall of legal protections, which will make it extremely difficult to succeed in an action against any of these social media sites. 

Here is something else you can do if you feel like defaming somebody a little closer to home. 

The Irish Times website contains a facility that allows you to comment on articles appearing in their newspaper. The website says that these comments are carefully monitored and if they are in any way objectionable, they can be removed without notice. Unfortunately however these are just words and it doesn't happen. I have acted for injured parties who have been seriously defamed by members of the public who make up fictitious names and then say the most outrageous things on these comment pages. You can pursue the Irish Times or any other newspaper that has comment facilities like this but this is always after the event and in my experience, most clients who are defamed in this manner would rather not be defamed in the first place rather than have to pursue a newspaper or anybody else. The big problem in these cases always is that I can make up an entirely fictitious name, defame whoever I like on one of these comment sites and I get away scot-free. 

That’s the bad news, here is the good news. At least you have a substantial organisation like the Irish Times or Independent Newspapers who you can pursue and obtain damages from. You can also press these bodies to reveal the identity of the person who is making the comments. As we all know, you can hide on the internet, but not forever. On paper, it might be very difficult to pursue these individuals, who hide under a cloak of anonymity but if a solicitor is determined enough and has the contacts and knowledge necessary to uncover this cloak of anonymity, then the person making these defamatory comments can be tracked down and orders can be obtained.

Kevin Brophy

Brophy Solicitors