THE LAW REFORM COMMISSION

AN COIMISIÚN UM ATHCHÓIRIÚ AN DLÍ



CONSULTATION PAPER

ON

THE CIVIL LAW OF DEFAMATION



March 1991

IRELAND

The Law Reform Commission

Ardilaun Centre, 111 St Stephen's Green, Dublin 2



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© Copyright The Law Reform Commission 1991

First Published March 1991



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CONTENTS

PAGES

INTRODUCTION

1–2

PART 1: THE PRESENT LAW

3–153

CHAPTER 1: GENERAL

3–42

Purpose of the Law of Defamation

3

The Distinction between Libel and Slander

4

The Prima Facie Case

6

Defamatory Effect

7

Burden of Proof and Defamatory Effect

12

The Meaning of Words:

12

(1) The innuendo

12

(2) Pleading Innuendos

14

Functions of Judge and Jury

19

Identification

22

Group Defamation

25

Publication

28

Innocent Dissemination and Distributors

32

Multiple Publication

36

Slander and Proof of Damage

36

CHAPTER 2: DEFENCES

43–107

Defences Generally

43

Justification

44

Partial Justification

48

Justification and Previous Convictions

52

Repetition and Justification

54

Justification and Aggravated Damages

54

The Defence of Fair Comment

56

Proof of the Supporting Facts

60

Fairness of Comment

67

Matters of Public Interest

71

Malice and Fair Comment

73

Absolute Privilege

75

The President

75

Parliamentary Proceedings

75

Administration of Justice

77

Quasi-Judicial Bodies

83


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CONTENTS

PAGES

Communications between Solicitor and Client

87

The Executive

87

Qualified Privilege

88

The Media

91

Fair and Accurate Reports of Judicial Proceedings

93

Statutory Provisions

94

Malice and Qualified Privilege

98

Relevance

102

Section 21 and Unintentional Defamation

104

CHAPTER 3: REMEDIES

108–134

Damages

108

Compensatory Damages

108

Aggravation of Damages

116

Mitigation of Damages

117

Punitive Damages

126

Injunctions

129

Interlocutory Injunctions

129

Ex Parte Injunctions and in camera proceedings

132

Perpetual Injunctions

133

Declarations

134

CHAPTER 4: MISCELLANEOUS

135–153

Payment Into Court

135

Limitation Periods

137

Malice and Joint Publishers – The Infectious Malice Rule

137

Corporate Bodies

143

Defamation of the Dead

148

Survival of the Defamation Action

148

Apology

149

Fault Issues in Defamation Law

149


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CONTENTS

PAGES

PART 2 – THE LAW IN THE UNITED STATES

154–193

CHAPTER 5: UNITED STATES CASE LAW

155–174

(a) Birth of the Public Official Doctrine

155

(b) Transition from Public Official to Public Figure

159

(c) The Public Interest Experiment

160

(d) Public Figures Restored: New Law for Private Figures

161

(e) The question of punitive damages

162

(f) The Category of Public Figures Narrows

163

(g) The Content of the Speech Re-enters the Equation

164

(h) The Final Step: Reversal of the presumption of falsity

165

(i) Reservations as to the modern case law

168

(j) The Status of Opinions in United States Law

170

CHAPTER 6: COMPARISON BETWEEN UNITED STATES AND IRISH DEFAMATION LAW

174–175

CHAPTER 7: THE COMMON LAW AND NEW YORK TIMES V SULLIVAN

176–178

CHAPTER 8: AN ANALYSIS OF THE MERITS OF UNITED STATES DEFAMATION LAW

179–193

PART 3 – PROPOSALS FOR REFORM

194–439

Introduction

194

CHAPTER 9: PRELIMINARY

196–214

A. The Distinction between Libel and Slander

196

B. Definition of Defamation

199

C. Meaning of Words

207

D. Payment Into Court

211


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CONTENTS

PAGES

E. Apology

213

F. Pleading the Words “Falsely and Maliciously”

215

II Privileged Statements

216–253

A. Absolute Privilege

216

(a) Utterances made in Parliamentary Committees

219

(b) Statements made by One State Official to Another

220

(c) Statements made in the Course of Judicial Proceedings

220

(i) By Judges

221

(ii) By Parties, Witnesses, Advocates

222

(d) Communications between Solicitor and Client

223

B. Qualified Privilege

224–253

1. Malice

224

(i) Proposals to clarify the common law element of Malice

225

(ii) Qualified Privilege and Joint Malice

227

(iii) Abolition of the Malice Element in the defence of qualified privilege

228

2. Common Law Categories of Qualified Privilege

230

3. Creating a Defence of Fair Report

241

4. Statutory Qualified Privilege

242

5. Fair and Accurate Reports of Judicial Proceedings

250

Recapitulation on Qualified Privilege

252

III – Statements of Opinion

254–292

Introduction

254


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CONTENTS

PAGES

A. Fair Comment

258

1. Title

259

2. Truth of Supporting Facts

259

3. Mangena v Wright

265

4. Malice

266

(i) Reform of the Malice Element

267

(a) Where the Defendant is the Author

267

(b) Malice where the publisher is not the Author

270

(ii) Abolition of the Malice Element

272

5. Fair Comment and Joint Malice

274

6. Fairness of Comment

275

7. Base and Dishonourable Motives

277

8. Rolled Up Plea

277

9. Aggravated Damages

278

10. Abolition of Action for Opinions

278

11. Matters of Public Interest

280

B. Distinction between Fact and Comment

281

C. The European Court of Human Rights and the Lingens Case

285

IV – Factual Statements

293–345

Introduction

293

A. Justification

294

1. Title

294

2. Substance or Sting

294

3. Section 22 and Partial Justification

295

4. Previous Convictions or Acquittals and Justification

298

5. Aggravated Damages

300

6. Reasonable Belief in Truth

301

B. Wider Defences for factual statements

304

1. The United States

304

2. The Faulks Committee

306

3. The New Zealand Committee

309

4. The National Newspapers of Ireland

313


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CONTENTS

PAGES

C. Defence of Reasonable Care

316–320

D. Presumption of Falsity

321

E. Section 21 and Unintentional Defamation

327

F. The Case for Protection of Sources

336

The Constitutional Problem

337

G. Statements of fact in the Context of Satire and Fiction

344

V – Remedies

346–364

A. Damages

364

1. Reforms of the present role of the jury in defamation cases

350

2. Statutory Guidance as to Factors which should affect damages

352

3. Abolition of Punitive Damages

359

4. Role of the Appellate Court

363

B. Injunctions

364

C. Proceedings for Declaratory Judgment

365

D. Correction Orders

374

E. Declaratory Judgment

376

F. Right of Reply

376

G. Publication of Judgment

383

VI – Juries in Actions for Defamation

384–391


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CONTENTS

PAGES

VII – Identity of Parties

392–422

A. Public Figure Plaintiffs

392

B. Group Plaintiffs

398

C. Defamation of the Dead

401

D. The Libel-Proof Plaintiff Doctrine

406

E. Corporate Bodies

411

F. Media Defendants

414

G. Distributors and Printers

417

VIII – Miscellaneous

423–439

A. Limitation Periods

423

B. Striking Out and Dismissal for Want of Prosecution

426

C. Survival of Actions

428

D. Multiple Publication

431

E. Civil Legal Aid

436

F. Privacy Law and Defamation Law

438

Summary of Provisional Recommendations

440–453

Appendix A – Some Observations on the Right to Privacy in Irish Law

454

Appendix B – A Comment on Rule 18 – Rules of the National Union of Journalists

460

List of Commission Publications

464–467


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INTRODUCTION

In January 1989 the Attorney General pursuant to section 4(2)(c) of the Law Reform Commission Act 1975 requested the Commission to undertake an examination of, and conduct research and formulate and submit to him proposals for reform of, the law of Defamation and Contempt of Court.

The subject matter of this request can be divided into three parts: Civil Defamation, Criminal Defamation and Contempt of Court. In turn, criminal defamation takes four forms: criminal libel, obscene libel, blasphemous libel and seditious libel.

The Commission decided to undertake firstly an examination of civil defamation, the most extensive of these categories. This Consultation Paper contains the results of that examination together with the provisional proposals of the Commission for reforms in the law. We will, in the near future, be publishing further Consultation Papers on the other subjects comprised in the Attorney General's request.

Before embarking on their study of the subject, the Commission published an advertisement in the national press inviting submissions from interested persons as to aspects of these branches of the law which they considered in need of change. We have received a number of written submissions in response to this request from members of the public, Radio Telefis Eireann, the National Newspapers of Ireland and The Irish Publishers' Association. Members of the Commission also met representatives of these bodies and visited newspaper offices in Dublin.

We have been conscious throughout our examination of this area of the law that one of its principal functions is to preserve a balance between two competing interests, that of individuals in their good name and that of the

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media in freedom of expression. We have in the result been concerned to familiarise ourselves, on as extensive a scale as possible, with the views of all those who are concerned with protecting these different interests.

The layout of the Consultation Paper is in general the same as in our previous papers and reports. We begin by setting out the present law and identifying the areas in which it is most clearly in need of reform. We consider models for change to be found in other jurisdictions or which have been put forward by commentators on the deficiencies of the present law, including the submissions made to the Commission in response to our advertisement. We have, however, departed from precedent in one way. A separate section is devoted to examining developments in the law during the past three decades in the United States of America. We considered that these developments merited detailed examination, since they raise fundamental issues as to the objectives which a defamation law should seek to attain in a modern democracy. We conclude by presenting our tentative recommendations for reform.

We emphasise again that the proposals for reform contained in this Consultation Paper are provisional in their nature. We invite written submissions in relation to any of these proposals and the material contained in this Consultation Paper. Any such submissions received by us will be assessed with great care before we present our final proposals to the Attorney General. We also hope to hold a Seminar which will enable a full discussion of the Consultation Paper to take place, details of which will be announced shortly.

We would be grateful if submissions on the Consultation Paper were sent to us at the Commission's Offices not later than May 22nd 1991.

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PART I: THE PRESENT LAW

CHAPTER 1: GENERAL

Purpose of the Law of Defamation

1.

The law of tort seeks to redress two types of injury, namely, injury to the person and injury to property. Injuries to the person may be physical or non-physical. The core of the defamation action is one type of non-physical injury to the person, that is, injury to reputation. It can take two forms: libel, which is in written or permanent form and slander, which is in verbal form.

2.

Defamation law attempts to serve and strike a balance between two competing interests, protection of reputation and freedom of speech. There are provisions in the Constitution of Ireland which affect both these interests and to which reference must be made at the outset.

Article 40.3 says:



The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.



The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.”

Article 40.6.1° says:

“The State guarantees liberty for the exercise of the following rights, subject to public order and morality:-


i


The right of the citizens to express freely their convictions and opinions.



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ii


The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.


iii


The publication or utterance of blasphemous, seditious or indecent matter is an offence which shall be punishable in accordance with law.”

It will be noted that the Irish constitutional guarantee of free speech is a qualified one. This is in line with most theories of freedom of speech which recognise that freedom of expression requires some regulation.

“[It] is a cardinal principle that some restraint upon liberty of action is necessarily implicit in the very concept of 'freedom'. Otherwise, you have the law of the jungle, under which no one is really free, except the largest predators. A common lawyer believes that the preservation of freedom of speech requires the recognition of clear rules which impose reasonable regulation upon what one person may say about another; limitations designed to accommodate, in the context of a civilised society, one person's activities and interests to the competing activities and interests of another.”1

3.

The action in defamation serves to prevent or provide redress for injury to a person's reputation caused by statements of defamatory effect.

The classic exposition of the basis of defamation law is provided by Cave J in Scott v Sampson2–“Speaking generally the law recognises in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit; and if such false statements are made without lawful excuse, and damage results to the person of whom they are made, he has a right of action”.

The Distinction between Libel and Slander

4.

The law of defamation divides defamatory statements into those which constitute libel and those which constitute slander.3

5.

The distinction between libel and slander has been said to be between an


1

Hughes, Defaming Public Figures, 59 Australian LJ 482, 483.

2

(1882) 8 QBD 491, 503.

3

The historical origins of this distinction are traced in Jones v Jones [1916] 2 AC 481, 489–90; McMahon & Binchy, Irish Law of Torts, 332–3; Winfield & Jolowicz on Tort, 12 ed, 301–2.



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oral and a written statement, the rationale being thought to be that a written statement reveals more design or malice. The more modern view is that the distinction is based on the permanency or transiency of the statement.

6.

There are two main differences between libel and slander. First, libel is always actionable per se, i.e. without proof of special damage. Slander may or may not require proof of special damage, depending on the nature of the words spoken. Secondly, libel is a crime as well as a tort. Slander is not in itself a crime, although certain spoken words may breach the criminal law for being seditious, treasonable, blasphemous or tending to breach the peace.

More modern descriptions of libel include the word “permanent”

“Libels are generally in writing or printing, but this is not necessary; the defamatory matter may be conveyed in some other permanent form. For instance, a statue, a caricature, an effigy, chalk marks on a wall, signs, or pictures may constitute a libel”.4

“In my view, this action (arising out of a film), as I have said, was properly framed in libel. There can be no doubt that, so far as the photographic part of the exhibition is concerned, that is a permanent matter to be seen by the eye and is the proper subject of an action for libel if defamatory ... I regard the spoken words here necessarily accompanying the exhibition of the picture as being part of the circumstances and surroundings in which the picture is exhibited and, therefore, properly part of the libel ...”5

“The position in Ireland nowadays seems to be that if the defamatory statement is made in permanent form it is libel, but if it is made in an impermanent or transient form it is slander”.6

Further support for this basis of distinction is found in the Defamation Act 1961, section 15 of which provides that broadcasting by means of wireless telegraphy shall be treated as publication in permanent form. Although section 15 does not state that such a broadcast is a libel, this is presumably the effect of deeming it to be a publication in permanent form.7

However as R.F.V. Heuston has pointed out in relation to the equivalent English provision,

“The draftsmen therefore clearly assumed that the true difference between libel and slander was not that slander was addressed to the ear and libel to the eye, but rather that libel was defamation crystallized


4

Per Lopes LJ, Monson v Tussauds Ltd [1894] 1 QB 671.

5

Per Slesser LJ, Youssoupoff v MGM (1933) 50 TLR 581, 587.

6

McMahon & Binchy, Irish Law of Torts, p 331.

7

This view is supported by the Explanatory Memorandum to the Defamation Act 1961.



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into some permanent form while slander is conveyed by some transient mode of expression. Now this assumption is no doubt correct, but there might well be difficulties if any court should subsequently hold that publication in permanent form is not the criterion of the distinction between libel and slander.”8

7.

Most libels are both permanent and visible. Notably, gestures were slander at common law, and the 1961 Act includes gestures within its definition of “words” (section 14.2). However problems arose where there was a combination of oral delivery and permanency, compounded by modern electronic communication methods. These problems are now resolved by s15 of the Defamation Act 1961.

The reading aloud from a script was held to be the publication of a libel in Robinson v Chambers.9 In England, the Theatres Act 1968 treats the publication of words in a play as publication in permanent form, “play” being widely defined, although it excludes domestic performances, rehearsals, and performances to enable records, film, or broadcasts to be made. At common law and apart from statute, it would appear that while a broadcast from a written script is libel, an extemporary broadcast is slander.10 It was held in Youssoupoff v MGM11 that the communication of defamatory matter by means of a film constituted a libel rather than a slander.

Such questions in relation to the electronic media are now settled by section 15 of the Defamation Act 1961 which provides that:

“for the purposes of the law of libel and slander, the broadcasting of words by means of wireless telegraphy shall be treated as publication in permanent form”.

The Prima Facie Case

8.

The following conditions must be demonstrated by the plaintiff to have been fulfilled in order to establish a prima facie case of defamation:


(a)


that the words complained of were published by the defendant or in circumstances in which the defendant is responsible for the publication;


(b)


that the words complained of were defamatory of the plaintiff.

In an action for libel, the plaintiff need not prove damage since damage is presumed. In an action for slander the plaintiff must in addition prove damage, except in four specific cases.12


8

“Recent Developments in the Law of Defamation”, RFV Heuston, (1966) IR Jur 247 at 249.

9

[1946] NI (No 2) 148.

10

Gatley on Libel and Slander, 8 Ed, p 146.

11

[1933] 50 TLR 581.

12

See below paras (39–52).



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Defamatory Effect

9.

The definition of defamatory effect is provided by a compilation of judicial statements. A defamatory effect is said to be produced where a statement tends to lower the person in the eyes of society,13or in the estimation of “right-thinking members of society generally”14or in the eyes of the “average right-thinking man”15or tends to hold that person up to ridicule, hatred or contempt,16or causes the person to be shunned or avoided.17

10.

The standard of a reasonable man is used to measure whether a statement is considered defamatory or not.

The issue of defamatory effect is left to the jury as representing the reasonable man. The ordinary man is presumed to be somewhere between the two extremes of unusually suspicious and unusually naive.

“In defamation, as in perhaps no other form of civil proceedings, the position of the jury is so uniquely important that, while it is for the judge to determine whether the words complained of are capable of defamatory meaning, the judge should not withhold the matter from the jury unless he is satisfied that it would be wholly unreasonable to attribute a libellous meaning to the words complained of”.18

As it is for the jury to determine whether the words were defamatory or not, the plaintiff or his witnesses may not be questioned as to the effect the words produced on them in the determination of this issue. RTE point out, however, that evidence of this kind can indirectly influence the 'libel or no libel' question in cases where actual damage is claimed, because questioning of this type will be admitted to establish actual damage. RTE claim that juries cannot be adequately warned that such evidence may not be used on the 'libel or no libel' question, and that evidence as to the effect of the statements on friends and family will heavily influence the jury towards the view that it is defamatory.19

The standard of the reasonable man may be seen as an average or aggregate view of society's opinion. The adoption of an objective standard encounters problems when the statement challenged touches on matter in relation to which there are sharply divided community viewpoints, whether political, social, religious or moral. The statement may be defamatory in the eyes of some sections of society and non-defamatory in the eyes of other sections of society. As McDonald states,


13

Mawe v Piggott (1869) IR 4 CL 54, 59.

14

Sim v Stetch [1936] 2 All ER 1237, per Lord Atkin at 1240.

15

Quigley v Creation Ltd [1971] IR 269, per Walsh J at 272.

16

Parmiter v Coupland (1840) 6 M & W 105, Mawe v Pigott, supra, footnote 13.

17

Youssoupoff v MGM (1934) 50 TLR 581.

18

Per Walsh J, Quigley v Creation Ltd [1971] IR 269, at 272.

19

Part of an RTE submission to this Commission.



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“in the many judicial references to the right-thinking person there has been an unspoken assumption by the courts that there is such a thing as a uniform set of values or priority in society.20

One such issue encountered by the courts is relatively straightforward. This is where the statement challenged alleges that the plaintiff in some way upheld the law. Undoubtedly this would lower the plaintiff in the eyes of a section of the community who felt that the law should not have been upheld. However the courts have refused to hold defamatory a statement which imputes that the plaintiff upheld the law. An older example of this is Mawe v Piggott,21 where a newspaper article reported the plaintiff, a parish priest, as saying, “I will watch them, I will denounce them to the tender mercies of the Croydons, the Talbots, the Barrys.” The innuendo alleged was that he would watch men who were ready to give up all for Ireland, and cause them to be prosecuted for a political offence. Lawson J said:

“[Counsel for the plaintiff] argued that amongst certain classes who were either themselves criminal, or who sympathised with crime, it would expose a person to great odium to represent him as an informer or a prosecutor, or otherwise aiding in the detection of crime; that is quite true, but we cannot be called upon to adopt that standard. The very circumstances which will make a person be regarded with disfavour by the criminal classes will raise his character in the estimation of right-thinking men. We can only regard the estimation in which a man is held by society generally.”22

A more recent illustration of this principle is provided by Berry v Irish Times. The plaintiff, who was the Secretary of the Department of Justice, claimed to have been libelled by a placard, reproduced by a newspaper photograph, which bore the words:

“Peter Berry – twentieth century felon setter – helped jail republicans in England.”

It was held by the Supreme Court that the words were not capable of a defamatory meaning. O'Dalaigh CJ, delivering the majority judgment said:

“It is perhaps surprising that the Supreme Court should be asked to hold, as a matter of law, that it is necessarily defamatory to say of one of the citizens of this country that he assisted in the bringing to justice in another country of a fellow countryman who broke the laws of that country and who was tried and convicted for that offence in the ordinary course of the administration of criminal justice. This court is bound to uphold the rule of law and its decisions must be conditioned


20

McDonald, Irish Law of Defamation, p16.

21

(1869) IR 4 CL 54.

22

Ibid, at 62.



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by this duty.”23

Fitzgerald J, however, dissenting, identified a standard of opinion of which the law could approve and by which the statement could nonetheless be defamatory:

“'Felon-setter' and 'Helped Jail Republicans in England' were not words in respect of which one has to have recourse to a dictionary to know what they meant to an Irishman; they were equivalent to calling him a traitor.”24

McLoughlin J, also dissenting, took a similar view:

“Put in other words, the suggestion is that this Irishman, the plaintiff, has acted as a spy and informer for the British police concerning republicans in England, [...] thus putting the plaintiff into the same category as the spies and informers of earlier centuries who were regarded with loathing and abomination by all decent people.”25

In Mawe v Pigott, Lawson J considered the result to stem from the straightforward application of the “right thinking members of society” test. Right-thinking members of society could not consider the plaintiff's reputation injured if it was said of him that he upheld the law. However this view of such cases may be artificial. It is perhaps simpler to say that an allegation of upholding the law may never be defamatory, irrespective of the view of the average person. This rule therefore does not flow from the application of an average community standard but rather from the court's duty to uphold the rule of law. In this light the rule is a limited exception to the normal measure of defamatory effect. But the problem at least shows the law grappling to find a community standard by which defamatory allegations are to be measured. One American writer, examining this problem in relation to a similar American case, Connelly v McKay, notes that this exercise involves a slight shift in emphasis from the actual injury to reputation to enforcement of community standards.26

The problems which are hinted at in the above type of case become more acute where the statement challenged concerns moral or political questions about which opinions are sharply divided. For example, is it defamatory to


23

Ibid, at 375.

24

Ibid, at 378.

25

Ibid, at p 379–80.

26

See Post, 74 Calif L Rev 691, at 714–5, discussing Connelly v McKay, 176 Misc. 685, 28 NYS 2d 327 (1941). In that case the plaintiff maintained a service station and rooming house primarily patronised by interstate truck drivers. The plaintiff brought a libel action in respect of an allegation that he was informing the authorities of the names of truck drivers who were violating interstate rules. The Court refused to allow an action where the allegation concerned the giving of information on violations of the law to the proper authorities.



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say (1) that a person was raped, (2) that a person engaged in extra-marital sexual intercourse (not consisting of adultery), (3) that a person was a “scab”? In America, such problems have arisen in relation to statements alleging a person is a Communist, or is a Republican where he is in fact a Democrat. In relation to an allegation of rape, there are two judicial statements to the effect that such an imputation is defamatory. The first is in Youssoupoff v MGM,19 where such an allegation formed the basis of libel proceedings. The second is the following dictum of Walsh J in Quigley v Creation Ltd

“In a community which places a high value on female chastity, to say untruthfully of a woman that she was the victim of a rape may well lower her in the eyes of the community by creating an undesirable interest in her or by leaving her exposed to the risk of being shunned or avoided – however irrational it may appear that a person who has been the victim of a criminal assault should as a result, through no fault of her own, be lowered in the eyes of ordinary reasonable persons in the community.”27

Walsh J appeared to be of the view that although this was undesirable, the allegation of rape would in fact lower the plaintiff's reputation. However whether a statement “in fact” injures reputation may be more difficult, as with the examples of the “scab” or the “Democrat-Republican” above. Members of society may differ in their reaction to a statement although they are all on “the right side” of the law. According to which reaction is the Court to assess the effect of the statement? Modern Irish cases have been sensitive to this problem and have on more than one occasion recognised that a statement may be defamatory if it lowers the plaintiff's reputation in a section of the community only. For example, Walsh J stated in Quigley v Creation Ltd that words are defamatory if they injure the plaintiff's reputation “in the eyes of a considerable and respectable class of the community, though not in the eyes of the community as a whole”. In Berry v Irish Times, McLoughlin J said with regard to the phrase “right-thinking people”, “it does not mean all such people but only some people, perhaps even only one, because if a plaintiff loses the respect for his reputation of some or even one right-thinking person he suffers some injury”.

11.

The determination of the defamatory effect of a statement does not take into account the intention of the speaker.

An objective test is used to determine the meaning of a statement i.e. how the ordinary reasonable man would understand the words. Accordingly, (a) a statement which the ordinary reader would understand as defamatory will be so, even if the speaker meant no harm, (b) a statement which the ordinary reader would not find defamatory will not be so, even if the speaker was


27

[1971] IR 269, at 272.



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malicious. As Monahan CJ stated in 1856: “the question was not what the writer intended, but what effect (the words) were likely to produce on the person who read or heard them”.28

This follows from the rationale underlying defamation, which emphasises the effect of a statement on a standard of opinion, represented by the jury;

“And the question is one particularly for the determination of the jury, to whom the matter is submitted. The question is not what the defendant, in his own mind, intended by such language, but what was the meaning and inference that would be naturally drawn by reasonable and intelligent persons ...”29

12.

Mere vulgar abuse is not defamatory

The defence of vulgar abuse is probably entirely confined to cases of slander, since the context of a remark is much more significant in the case of slander. In the case of a written statement, one may expect a certain degree of deliberation. It is unlikely that a written statement would be protected on grounds of being mere vulgar abuse.

13.

Ridicule is defamatory

“The publication of written matter, which includes any printed or any other permanent representation, or any picture, statue or effigy, may be defamatory if it appreciably injures a man's reputation, and the injury may be presumed from the nature of the publication if it disparages the plaintiff or tends to bring him into ridicule or contempt. This has been laid down in ancient times on authority entitled to the greatest respect”.30

In the Dunlop case, the plaintiff sought an injunction to restrain the defendant company from distributing material in Ireland containing caricatures, in which he was depicted “in an exaggerated foppish manner” and in absurd attitudes. The issue was whether leave to serve out of the jurisdiction should be allowed, and therefore Powell J did not determine whether such representation of the plaintiff was in fact defamatory, but as he found that it was capable of being so, he refused to discharge the order giving leave to serve out.

Nonetheless, material to which the plaintiff objects as ridicule may be found by the court to be mere humour, and therefore not defamatory. In Emerson v Grimsby Times,31 the alleged libel consisted of a full 'account' in the local newspaper of the plaintiff's wedding, and a statement about the honeymoon,


28

White v Tyrell (1856) 5 ICLR 477, 487.

29

Per May CJ, Bolton v O'Brien (1885) 16 LR Ir 97, 108.

30

Dunlop v Dunlop Rubber Co [1920] 1 IR 280, per Powell J at 291.

31

(1926) 42 TLR 238.



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which was published one day before the plaintiff's wedding actually took place. The plaintiff's claim was struck out as frivolous and vexatious.

It may be that forms of satire or comedy are increasingly being held to be defamatory. McDonald cites a Circuit Court case in 1977, Thorpe & Lee v Ames32 in which two barmen recovered damages for the following statement in a local newspaper:

“One of the barmen looked like Lazarus before he came out of retirement. The other fellow was the reverse: he looked like him when he went back again.”

RTE are of the view that there is a trend towards holding comical or satirical statements to be defamatory, and that this inhibits their presenting of comedy on television.33

Burden of Proof and Defamatory Effect

14.

The burden of proof lies on the plaintiff to establish that a defamatory imputation is conveyed.

The defamatory nature of a statement is not to be confused with its falsity. While the burden is on the plaintiff to show that the statement was of a defamatory nature, he is not obliged to prove its falsity. The law presumes the falsity of defamatory statements.34

The Meaning of Words

(a) The innuendo

15.

The terminology of defamation law refers to the different meanings that may be ascribed to words as (a) the “ordinary and natural meaning” and (b) the “innuendo”. In every day conversation, the word “innuendo” is used by people as referring to a statement made by way of hint or suggestion rather than directly. In the law of defamation, it has a different and rather artificial meaning.

The distinction in law between (a) the ordinary and natural meaning of words and (b) an “innuendo” is best illustrated by examples. If it is said of a man that he was seen frequently entering a brothel, the words are regarded by the law as capable of being defamatory in their ordinary and natural meaning. If the statement is simply to the effect that the person was seen frequently entering a named premises, the words would not be regarded as capable of being defamatory in their ordinary and natural meaning. If, however, the


32

Irish Times, 23 November 1977.

33

Part of an RTE submission to this Commission.

34

para 62.



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named premises was a brothel, the statement is capable of containing a defamatory implication to any one who knew that the house was a brothel but not to any one who did not.35 In this latter instance, the words, although not defamatory in their ordinary and natural meaning are capable of being defamatory by reason of an innuendo. The innuendo, it will be seen, depends upon the proof by the plaintiff of extrinsic facts which demonstrate that a statement innocent on its face is defamatory.

However, the expression “the ordinary and natural meaning” of words is deceptive, because it encompasses two things: the direct, literal meaning of the words and an inferential meaning inherent in those words. For example, the statement “McCarthy committed the murder” is plainly defamatory and requires no explanation. If, however, a lengthy article were to set out that McCarthy was in the vicinity of the crime, was found with the murder weapon and had a motive for killing the victim, it might not directly implicate McCarthy in the murder, but he could well argue that this meaning was to be inferred from the article. Understandably, the layman would regard this as a classic example of an “innuendo”, but the law does not: it treats that inferential meaning as part of the “ordinary and natural meaning” of the words and not as an innuendo.

The confusion frequently evidenced in this area has been compounded by an insistence in England on referring to the meaning which depends on the establishment of extrinsic facts as a “true” innuendo, as distinct from the “false” innuendo where the pleader is simply elaborating the ordinary and natural meaning of the words. It is time that this unhappily worded terminology was replaced by the clearer distinction suggested by Lord Devlin, i.e. that between the “legal innuendo” and the “popular innuendo”.36

One of the clearest examples of a legal innuendo is Tolley v Fry and Sons.37 The defendants, by way of advertisement for their chocolate product, issued a caricature of the plaintiff depicting him playing golf with a packet of their chocolate protruding from his pocket. Such a caricature was, of course, not defamatory per se: if the plaintiff was a professional golfer, there would have been nothing inconsistent with his status in his endorsing some one's products (by implication for reward). But the plaintiff was in fact an amateur golfer and the House of Lords held that the caricature was capable of bearing the meaning alleged in the legal innuendo, i.e. that the plaintiff had agreed to promote the defendant's products for reward and had thereby prostituted his reputation as an amateur golfer.

By contrast, in Irish People's Assurance Society v City of Dublin Assurance Company Limited38 the plaintiff company claimed that a reproduction of


35

Lewis v Daily Telegraph [1962] AC, per Lord Devlin at 278.

36

Lewis v Daily Telegraph [1964] AC 234 at 279–280.

37

[1931] AC 333.

38

[1929] IR 25.



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extracts from their balance sheet out of context implied that they were insolvent. This was clearly a “popular innuendo” as distinct from a “legal innuendo”, since it did not depend for its establishment on the proof of extrinsic facts. The confusion rife in this branch of the law is, however, demonstrated by the fact that both Fitzgibbon J and Murnaghan J in the Supreme Court referred to it without qualification as an “innuendo”.

(b) Pleading Innuendos

It might be thought that the distinction discussed in the preceding section is of academic importance only. This is to some extent true, but it has also a practical significance so far as the pleadings in defamation actions are concerned.

In the case of the legal innuendo, it might seem reasonable that, not merely the special meaning being attributed to the words should be pleaded, but also the extrinsic facts alleged to give rise to that meaning. It has always been, and still is, necessary to prove the supporting extrinsic facts at the trial and prior to the Common Law Procedure Amendment Act (Ireland) 1853, it was also necessary to plead the material extrinsic facts. The law was regarded as having been settled in this sense by the judgment of de Gray CJ, giving the unanimous decision of the judges in R v Horne39 in 1777. The Irish Act of 1853, like its English counterpart of the preceding year, however, did away with the necessity of pleading the material extrinsic facts. Thereafter, in both England and Ireland only the innuendo meaning had to be pleaded and not the supporting facts, although it remained the practice to plead those facts. In England, however, the law was changed in 1949 as a result of a recommendation of the Porter Committee who thought that ignorance of the extrinsic facts supporting a legal innuendo could surprise and prejudice a defendant. As a result, Order 19, Rule 6(2) (RSC) was introduced, providing that:

“In an action for libel or slander if the plaintiff alleges that the words or matters complained of were used in a defamatory sense other than their ordinary meaning, he shall give particulars of the facts and matters on which he relies in support of such sense.”

There was no corresponding change in Ireland and in Kavanagh v The Leader and Another,40 Lavery J said that the law still was that the extrinsic facts did not have to be pleaded. Since then, Order 19 Rule 5(1) of the Rules of the Superior Court 1986 has been introduced requiring particulars of the wrong alleged to be pleaded in the Statement of Claim. In the absence of any decision as to whether this general rule has altered the special position in defamation cases, the law remains to some degree uncertain. It is, however, customary in practice to plead the necessary extrinsic facts in the Statement


39

(1777) 2 Camp 680.

40

S Ct, unreported, 4 March 1955.



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of Claim.

The English Act of 1852 introduced another change which was not parallelled in Ireland. Thereafter, a legal innuendo – as distinct from a popular innuendo – gave rise to a separate cause of action. Hence if the words were defamatory in the ordinary and natural meaning and also by reason of a legal innuendo, the plaintiff was entitled to a separate verdict in respect of each alleged meaning and, if he succeeded, to damages in respect of each meaning. Moreover, if more than one legal innuendo were pleaded, he was entitled to a separate verdict in respect of each such legal innuendo. A further consequence of this in England was that, if the plaintiff failed to establish a legal innuendo, he could fall back on the ordinary and natural meaning of the words. Blackburn J stated in Watkin v Hall:

“Those latter words I cannot put any other meaning on, than the legislature enacted that a declaration containing one count for libel or slander, with an innuendo that the words were used in a particular meaning shall be taken as if there were two counts, one with the innuendo and one without the innuendo, and if the plaintiff prove either, it is sufficient.”

However, as the Irish Act of 1853 contained no equivalent provision, the Irish Courts continue to apply the former rule, that if an innuendo was pleaded and subsequently rejected, the plaintiff was not permitted to rely on the defamatory meaning of the words in their ordinary and natural sense. As was stated in Bolton v O'Brien41:

“It is a certain rule of law that when a libel is capable of several senses, and a plaintiff takes one sense in particular, he puts his case on that sense and if he fails to make out that sense, cannot reject it and fall back on some other sense, or upon the words themselves.”

The twofold rationale for this rule was adverted to by Johnson J in the Queens Bench division in Fisher v Nation Newspaper and Rooney.42 First, the plaintiff by pleading an innuendo is saying that the defendant spoke the words in an innuendo sense and, when the jury finds that they were not spoken in this sense, it is as though they were never spoken at all. Second, it would take the defendant by surprise to expect him to defend a meaning at trial which he did not expect. However, in Fisher's case, the Court of Appeal reversed the Queen's Bench Division and laid down a new rule that a plaintiff should be allowed to fall back on the natural meaning of the words even if they had not been specifically relied on in the pleadings. The major consideration influencing the Court appears to have been a desire to make the English and Irish systems identical:


41

(1885) 16 LR Ir 97.

42

[1901] 2 IR 465.



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“It seems therefore to me to be clear that the defendant is at liberty to defend himself by reference to the language he actually used in the sense which it will be determined by the jury it ought to bear and not in some artificial and fanciful sense invented by the pleader .... It follows that if this is the right of the defendant, a plaintiff may also claim to have the words complained of considered apart from the innuendo. This is the English practice and, if it is not yet definitely settled in this country, it is time that it should be.”

In Kavanagh v The Leader,43 Lavery J considered the decision in Fisher's case to be settled law.

So much for the legal innuendo. As for the popular innuendo, it was at one time the law in England, and may still be the law in Ireland, that there was no particular obligation on the plaintiff to specify in his meanings the popular innuendoes upon which he will rely. However in a series of decisions in the early 1970s, the Court of Appeal in England held that it was necessary for the plaintiff to set out the meaning alleged where the words were capable of more than one meaning. The Faulks Committee, examining the law in 1975, understood the effects of these decisions to be as follows:


(a)


The inferential meaning need not always be pleaded;


(b)


However, where there is any doubt as to the meaning, or a need to crystallise the meaning of a long article, such a meaning should be pleaded.

The Faulks Committee thought that the precise rules on pleading popular innuendoes were not settled and recommended clarification in this area.

The rules as to pleading innuendoes, whether legal or popular can, accordingly, be stated as follows:

16.

Where a legal innuendo is relied on, the extrinsic facts supporting it must be proved at the trial if the plaintiff is to succeed upon the innuendo. However, it would appear that it is not necessary in Ireland to plead the extrinsic facts in the Statement of Claim, although this appears to be the normal practice.

17.

Where one or more legal innuendoes are successfully pleaded, each gives rise to a separate cause of action, entitling the plaintiff to a separate verdict and award of damages in respect of each innuendo.

18.

Where a plaintiff pleads a defamatory meaning in the legal innuendo sense only and fails, he may fall back on the ordinary and natural meaning of the words.


43

Supra, footnote 40.



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19.

Where it is contended that words are defamatory in their ordinary and natural meaning, it is not necessary for the plaintiff to plead any more than the words themselves. Hence where the plaintiff relies on a popular innuendo, it is not necessary in general for him to plead such an innuendo. However, it is probably necessary to plead such an innuendo where


(a)


there is any doubt as to the meaning;


(b)


there is a need to crystallise the meaning of a long article.

20.

A defamatory meaning may be conveyed by publishing true and accurate matter in a misleading way or context.

In Irish People's Assurance Society v City of Dublin Assurance Company Limited, the alleged libel consisted of extracts from balance sheets. The plaintiff pleaded that the reproduction of these extracts out of context implied that the company was insolvent and that it was financially unsafe for policy holders to insure with them. The trial judge ruled that the document was true in substance and fact and directed that judgment be entered for the defendants. An appeal to the Supreme Court was allowed, on the ground that the jury should have determined whether the document as a whole conveyed an accurate impression of the society's financial position.

Fitzgibbon J stated:

“The figures and words may be correctly printed, but in my opinion if they are so arranged or excerpted as to convey an untrue impression of the financial condition of the company, and it is for a jury to decide whether they do so or not, the company is entitled to recover damages for the injury to its credit. It would be possible by judicial extraction to make almost any document convey the contrary of its real purport, and I hold that in such a case a jury is entitled to decide whether the statement of the extracts is true or not, and that mere accuracy of extraction is not per se conclusive of the truth of the statement made by the collected extracts.”

Similarly, in the earlier English case of Monson v Tussauds Ltd, Lord Halsbury said:

“It is not the mere words of a written statement being true, or the accuracy of fact in a model or scene represented which will render it justifiable. The circumstances of time or place may raise such inferences as will render either libellous, but the words may be true and the model exact.”

21.

The determination of the defamatory effect of a statement is a question for the jury. It is a general rule that a witness may not be asked what the

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effect of the statement was on him. This admits of one exception, viz. a witness may give evidence of defamatory meaning where a legal innuendo is involved.

In Kenny v Freeman's Journal44 the issue was whether a new trial should be granted on the basis that evidence was improperly received, such evidence including that of witnesses as to the effect produced on them upon seeing the cartoon which constituted the libel. Palles CB stated:

“When the libel is entirely expressed in language, the rule of law is that a witness cannot be asked what impression was produced on him by the words, because the jury are the proper tribunal, and the witnesses would be usurping their province by doing so. The one exception to the rule is that you may prove a special fact, the effect of which is to show that the words were used in a different sense from their ordinary meaning, having proved which you may then ask the witnesses how did you understand the words used.”45

A common example of such evidence being received is in the case of an ironic statement; it appears also to be the case in relation to pictures and cartoons. The basis for the rule and its exception appears to be that where the meaning is plain, the jury are capable of interpreting it alone, but witness evidence is admissible where the meaning is more complicated:

“The meaning of slang expressions, or words used in a foreign language, or words ironically used, all can be proved, which shows that where the libel is contained in something still further distant from the English language, not in words at all, but in a picture, something is required to translate it into words.”46

22.

All facts going to make up a libel must be known at the time of publication. Facts coming to the knowledge of a reader/hearer after this time are irrelevant.

In Grappelli v Derek Block (Holdings) Ltd,47 the defendants had made bookings for concerts by the plaintiff, a musician of international repute, without his consent, and these were cancelled. On the occasion of cancelling the venues, the defendants told the managers of the concert-halls that the plaintiff was seriously ill and would probably never tour again. This false explanation was passed on to members of the public. Subsequently, notices appeared in newspapers announcing forthcoming concerts by the plaintiff. The plaintiff brought an action alleging that the defendant's statement gave rise to an innuendo that he had previously given a reason for cancelling concerts which


44

(1892) 27 ILTR 8.

45

Ibid, p 8–9.

46

Ibid, at p 9.

47

[1981] 2 All ER 272.



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he knew to be false. It was held that, since the cause of action arose as soon as the words complained of were published, any extrinsic facts relied upon to support the innuendo had to be known to the audience at the time of publication. Accordingly, inferences put on the words as a result of facts coming to light after the publication did not make the words defamatory. (This might seem a somewhat harsh result, but it should be borne in mind that the plaintiff had a possible alternative remedy in injurious falsehood).

The Grapelli case was, however, distinguished in Hayward v Thompson48 where facts coming to the knowledge of the readers subsequent to the initial publication were held admissible as they pointed to the identity of the person defamed. In that case, the plaintiff was well-known for his support of many charitable causes in Great Britain, and between 1970–1975 he contributed over £200,000 to the Liberal Party. In 1978 an article appeared in a national newspaper stating that the names of several people connected with an alleged murder plot had been given to the police, one of them being a “wealthy benefactor of the Liberal Party”. A second article named the plaintiff in connection with the investigations. The plaintiff contended the articles meant that he was guilty or reasonably suspected of participating in or condoning the murder plot, and that the second article identified him as the person referred to in the first article. The jury awarded £50,000 damages. The Court of Appeal dismissed an appeal by the defendants, holding that although it is not possible to bring in a publication to make words defamatory which were not so in the initial publication, this does not apply were the words used in the first article are defamatory and the only question is one of identification.

Functions of Judge and Jury

23.

Determination of whether the statement was capable of being defamatory is a matter for the judge. Determination of whether the statement was in fact defamatory lies with the jury.

“[It] has been the course for a long time for a judge, in cases of libel, as in other cases of a criminal nature, first to give a legal definition of the offence, and then to leave it to the jury to say, whether the facts necessary to constitute that offence are proved to their satisfaction; and that, whether the libel is the subject of a criminal prosecution, or civil action.”49

A further authoritative statement as to the respective provinces of judge and jury in a defamation case is provided by Henchy J in Barrett v Independent Newspapers:

“In a libel action such as this where the defamatory nature of the words complained of is in issue, observance of the respective functions of the


48

[1981] 3 All ER 450.

49

Per Parke B in Parmiter v Coupland (1840) 6 M & W 105, 107.



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judge and jury is of crucial importance. It is for the judge in the first instance to decide the preliminary question whether the words complained of are reasonably capable of having the defamatory meaning alleged. If the judge answers that question in the negative, the case cannot go to the jury and the action must be dismissed. But if the judge rules that the words complained of are capable of bearing the defamatory meaning alleged, it is then for the jury to say whether the words do in fact carry that meaning. Because the community standard represented by the jury may differ radically from the individual standard of the judge in determining what is defamatory, it would be a usurpation of the jury's function in the matter if the judge were to take upon himself to rule exclusively that the words were defamatory.”50

24.

It is settled that the trial judge may withdraw the issue of libel or no libel from the jury on the ground that the words complained of are not capable of defamatory meaning. There has been more controversy as to whether the judge may withdraw the issue from the jury on the grounds that the jury would be perverse in holding that they were not defamatory, but the current Irish position is that he may not do so.

The role of the jury in defamation actions was stressed by Walsh J in Quigley v Creation Ltd,51:

“Basically, the question of libel or no libel is a matter of opinion and opinions may vary reasonably within very wide limits. When a jury has found that there has been a libel, this court would be more slow to set aside such a verdict than in other types of actions and it would only do so if it was of the opinion that the conclusions reached by the jury was one to which reasonable men could not or ought not to have come.

In defamation as in perhaps no other form of civil proceedings, the position of the jury is so uniquely important that, while it is for the judge to determine whether the words complained of are capable of a defamatory meaning, the judge should not withhold the matter from the jury unless he is satisfied that it would be wholly unreasonable to attribute a libellous meaning to the words complained of.”52

It has also been said that, in arriving at a conclusion as to whether the words are capable of defamatory meaning, unlikely and fanciful constructions should be avoided. The law was thus stated by Lord Morris of Borth-y-Gest giving


50

[1986] ILRM 601, 606.

51

[1971] IR 269, 272.

52

But the actual finding in that case – that to say of a well known Irish actor that he chose to work and live in London because the rewards and opportunities there were better than in Ireland was capable of a defamatory meaning – seems surprising. Can it really be defamatory to say of an artist that he prefers to work abroad because he can make more effective use of his talents in another country?.



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the advice of the Privy Council in Jones v Skelton:53

“It is well settled that the question whether the words which are complained of are capable of conveying a defamatory meaning is a question of law and is therefore one calling for a decision by the court. If the words are so capable then it is a question for the jury to decide whether the words do in fact convey a defamatory meaning. In deciding whether the words are capable of conveying a defamatory meaning the court will reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation.”

It also follows that a judge may withdraw a particular innuendo from the jury on the basis that the words were incapable of bearing that particular defamatory meaning.

In Barrett v Independent Newspaper,54 the converse situation arose. The trial judge held that the words complained of were defamatory as a matter of law, and left only the question of damages to the jury. The Supreme Court on appeal, by a majority of three to two, held that the judge had usurped the function of the jury in holding that the words were defamatory. As Henchy J noted,

“[the] law reports provide many examples of cases where the jury were held entitled to find that the words were not defamatory when the ruling of a judge on this point would have led to the opposite conclusion”.

However, McCarthy J, dissenting, was of the opinion that the words in their ordinary meaning were clearly defamatory, that a finding by the jury to the contrary would have been perverse, and that therefore the trial judge was correct in acting as he did. Finlay CJ was of the same view:

“There does not appear to me to be either logic or justice in a principle which would prevent a judge of trial satisfied that the words complained of could not possibly be understood otherwise than to be defamatory from so directing a jury.”55

It may be noted that the view of the dissentients in the Barrett case was foreshadowed by Fitzgerald and McLoughlin JJ in Berry v Irish Times.56 There, the jury had found that the publication of the words was not defamatory. The plaintiffs appeal, on the ground that this finding was perverse and the trial unsatisfactory, was dismissed by the Supreme Court. However the dissenting judges felt not only that the words were defamatory, but that they were so


53

[1963] 3 All ER 952 at p958.

54

[1986] ILRM 601.

55

Ibid at, p 603.

56

[1973] IR 368.



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clearly so that a new trial should be ordered and limited to the assessment of damages. In other words, they envisaged a new trial where the issue of defamatory effect would not be left to the jury, because the statement was incapable of innocent meaning.

However, the current Irish position on this point would appear to be represented by the majority view in the Barrett case. Accordingly, while the issue of libel or no libel may be withdrawn from the jury where the judge rules the words incapable of defamatory meaning, he may not do the same in respect of words he thinks incapable of innocent meaning.

Identification

25.

It is an essential element of the tort of defamation that the plaintiff was identified in the statement complained of. The plaintiff must satisfy the judge that he is reasonably capable of being identified from the statement. He must then satisfy the jury that he was in fact the person referred to. In most cases, the plaintiff is named; however, in others extrinsic evidence may be necessary.

In Berry v Irish Times,57 the placard complained of merely bore the plaintiff's name, but it was not contested that this referred to the plaintiff who was the Secretary to the Department of Justice at the time.

Extrinsic evidence was admitted in the Fullam case58 in order to identify the plaintiff, who was a renowned footballer. The defendants had stated in a newspaper article that the plaintiff used his right foot for balancing only and that the club managers had devised a scheme to improve his shooting by requiring him to wear a carpet slipper. (The article was published some 25 years after the end of the plaintiff's career). Objection was taken on behalf of the defendants to the admission of evidence of jeering by crowds and neighbours of the plaintiff. The evidence was held admissible for the purpose of identifying the plaintiff as the target of the libel.59 Similarly, in Morgan v Odhams Press Ltd60 and Jozwiak v Sadek61 extrinsic evidence was admitted to establish identification of the plaintiff.

The case of Sinclair v Gogarty62 involved an application for an injunction restraining the publication of a book entitled “As I Was Going Down Sackville Street”. One of the questions for the court was whether the passages


57

Ibid.

58

Fullam v Associated Newspapers Ltd [1953–54] Ir Jur Rep 79, [1955–56] Ir Jur Rep 45.

59

Furthermore, although such evidence is not admissible for the purpose of assessing the defamatory effect of a statement, if it is admitted for the purpose of identification, the jury need not be directed to exclude the evidence from their minds when considering the former issue.

60

[1971] 2 All ER 1156.

61

[1954] 1 All ER 3.

62

[1937] IR 377.



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complained of clearly referred to the plaintiff his brother and his grandfather. Hanna J accepted the uncontradicted evidence of Mr Samuel Beckett that the passages did refer to the plaintiff and that there were “sufficient indicia” in the passages to give readers the “necessary clue to their identity”. Not only does the case illustrate the admissibility of extrinsic evidence to establish identity: it also emphasises that a thin veneer of disguise will not protect an author from libelling identifiable people:

“The author, by giving their business place as Sackville Street instead of Grafton Street, or Nassau Street, and referring to the Jewish grandfather as a usurer instead of an art dealer, has only resorted to the usual devices of those who lampoon others and seek to escape liability.”63

26.

At common law the test of identification does not take into account the intention of the defamer.

The test of identification is whether the words would be understood by reasonable people to refer to the plaintiff. Therefore, the intent of the defendant is irrelevant in this context:

“Though the person who writes and publishes the libel may not intend to libel a particular person, and indeed, has never heard of that particular person, the plaintiff, yet, if evidence is produced that reasonable people knowing some of the circumstances, not necessarily all, would take the libel complained of to relate to the plaintiff, an action for libel will lie.”64

In Hulton v Jones,65 the defendants who were proprietors and publishers of a newspaper, published defamatory statements about a person whom the author and editor thought to be fictitious. Unknown to them, the name used was actually the name of the plaintiff. It was held that in an action for libel, it was no defence to say that the defendant did not intend to defame the plaintiff, if reasonable people would find the language to be defamatory of the plaintiff.66

The newspaper involved in Newstead v London Express Newspaper67 published an account of the bigamy trial of one “Harold Newstead, 30 year old


63

Ibid, per Hanna J at p 380.

64

Youssoupoff v Metro-Goldwyn-Meyer, (1933) 50 TLR 581, per Scrutton LJ at p 583.

65

[1910] AC 20.

66

It may be that the holding in that case was influenced by the fact that the plaintiff had previously worked for the newspaper in question, and that in some senses the defendant was reckless in failing to realise that the “fictitious” name could refer to a real person. However the strict rule emerging from that case was applied thereafter even where there was no recklessness involved on the part of the defendant.

67

[1940] 1 KB 371.



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Camberwell man”, which was true of a barman of that name, but not as regards a hair-dresser of the same name. It was held on appeal that the evidence would have justified a jury finding that reasonable persons would understand the words to refer to the plaintiff, and that the fact that they were true of another person than the plaintiff did not afford a good defence. A similar lack of detail was fatal to the defendant in Outram v Reid.68 The Glasgow Herald published a notice, abbreviated from the Edinburgh Gazette, noting the bankruptcy of a wine and spirit merchant, without citing the address. A wine and spirit merchant of the same name recovered damages. The strictness of the common law position exemplified by these cases is now affected by s21 of the Defamation Act 1961 and will be considered in more detail under Unintentional Defamation below.69

However, if the defendant does not avail of the statutory machinery, the common law rule on liability applies. A recent example of a case of mistaken identity is Charles Merrill v Sunday Newspapers Ltd.70 The plaintiff claimed that an article published in the Sunday World confused him with Charles Merrill-Mount, also an American living in Dublin, who was convicted of selling letters and documents from the US Congress Library. The plaintiff also claimed that the defendants published a photograph of himself with the caption, “Charles Merrill-Mount pictured in Dublin in 1972”. The defendants admitted that a mistake had been made and apologised to the plaintiff. The jury awarded £35,000 damages.

27.

Indirect Identification: In some cases, the plaintiff may establish that he was indirectly identified and defamed, although he was not referred to in any sense in the alleged libel.

The most commonly cited example of this is Cassidy v Daily Mirror Newspapers Ltd,71 where a photograph of one Mr C and a Miss X was published together with the words; “Mr C, the racehorse owner, and Miss X, whose engagement has been announced”. In fact, Mr C was married to the plaintiff who was not referred to in any sense in the photograph. Nonetheless, it was held that she was entitled to recover damages for libel and that a meaning defamatory of her had been conveyed, namely, that she “was an immoral woman who had cohabited with Corrigan without being married to him”. Scrutton LJ said the following:

“Now the alleged libel does not mention the plaintiff, but I think it is clear that words published about A may indirectly be defamatory of B. For instance, 'A is illegitimate'. To persons who know the parents those words may be defamatory of the parents. Or again, 'A has given


68

(1852) 14 D. 577, cited by Walker, Delict, p 751.

69

At para 116 below.

70

Reported Irish Times, 9 and 10 June 1989.

71

[1929] 2 KB 331.



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way to drink; it is unfortunately hereditary'. To persons who know A's parents these words may be defamatory. Or 'A holds a D.Litt. degree of the University of X, the only one awarded'. To persons who know B, who habitually describes himself (and rightly so) as 'D.Litt. of X', these words may be capable of a defamatory meaning. Similarly to say that A is a single man or a bachelor may be capable of a defamatory meaning if published to persons who know a lady who passes as Mrs A and whom A visits.”72

A similar mistake of identity occurred in Hough v London Express Newspapers Ltd.73 The libel consisted of the following statement:

“Frank Hough's curly headed wife sees every fight. 'I should be in more suspense at home', she says. 'I always get nervous when he gets in the ring, although I know he won't get hurt. Nothing puts him off his food. He always eats a cooked meal at night, however late it is when he gets in'.”

The plaintiff, Mrs Hough, who was not “curly headed”, successfully relied on the innuendo that the words implied that she was a dishonest woman falsely representing to be Hough's wife.

Again in Morgan v Odhams Press Ltd,74 the article complained of did not directly refer to the plaintiff. The article concerned a dog-doping gang and a girl who had helped a reporter and police in connection with their arrest and was headed; “Dog-doping girl goes into hiding”. It stated that the girl had been kidnapped by members of the gang and kept in a house in Finchley. In fact, the girl in question had been under the charge of the plaintiff reporter for some time, had stayed at lodgings and at his flat, and had been seen with him by other people. The plaintiff successfully contended that the article was defamatory of him, in that it suggested that he was connected with the dog-doping and kidnapping activities.

28.

Group Defamation

No member of a group or class can bring an action in respect of defamatory statements made about the group unless he can establish that he was specifically referred to. The circumstances or words of the statement may indicate a reference to the plaintiff. Furthermore, where the reference is to a limited group, the plaintiff may be able to maintain an action. It is a matter of law for the Judge as to whether the words are capable of referring to the plaintiff who must then satisfy the jury that he was identified as a matter of fact.


72

Ibid, at p 338–9.

73

[1940] 2 KB 507.

74

[1971] 1 WLR 1239.



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The general rule is illustrated by a 1913 Irish case, O'Brien v Eason & Son.75 In this case, an individual member of the Ancient Order of Hibernians brought an action in respect of comments made about this organisation in a weekly journal printed in England and circulated in Ireland. It was held that he could not maintain an action in respect of reflections upon a class or association, merely by virtue of his being one of its members. Commenting on the lack of sufficient identification, Cherry LJ said:

“How could anybody suspect, how could it be suggested to a jury that a general statement that crimes had been committed in these countries by so-called 'Molly Maguires' pointed to a certain individual carrying on a business as a saddler in Abbey Street, Dublin?”76

Lack of precise identification was again the rationale for the dismissal of the plaintiff's action in Gallagher & Shatter v Independent Newspapers.77 A letter to the Evening Herald referred to a case in which the plaintiffs had acted as solicitor, involving the banning of a booklet on family planning, and described it as one of the examples of behind-the-scenes scheming and plotting against the Constitution and Catholic life by a handful of solicitors and judges. The jury found that the words complained of did not refer to the two plaintiffs. This seems unduly restrictive since many people would have known exactly who the acting solicitors were.

The circumstances or the wording of the article may disclose a reference to the plaintiff. An example of this is Le Fanu v Malcolmson,78 in which the article complained of suggested that cruelties were practised upon employees in certain Irish factories. Although this appeared to be a class defamation, certain other statements in the article, including a reference to Waterford, constituted sufficient evidence for a jury to identify the plaintiff's factory as the one primarily attacked.

The size of the class referred to may have a bearing on whether the plaintiff may maintain an action. As Willes J expressed the matter in Eastwood v Holmes:79

“If a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there is something to point to the particular individual.”

Yet if a man wrote that all lawyers in town X were thieves, and there were only two lawyers in that town, there would be sufficient identification of these two individuals.80 This is illustrated by Browne v DC Thomson & Co,81 where


75

(1913) 47 ILTR 266.

76

Ibid, at 268.

77

Reported in the Irish Times, 10 May 1980.

78

(1946) 8 ILR 418; (1948) 1 HLC 637.

79

1 F & F 347, 349.

80

This principle seems difficult to reconcile with the application of the law by the jury in the Gallagher and Shatter case.



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a newspaper article stated that in Queenstown “the Roman Catholic religious authorities” had abused their influence. The seven pursuers showed that they were the sole persons who exercised Roman Catholic authority in Queenstown, and were held entitled to sue in libel as individually defamed. Lord Kinnear stated:

“It is a question of fact for the jury whether, holding the article to be libellous, it applies to the persons now complaining. That is a question of fact, and each of the pursuers must satisfy the jury that he is hit by the language of which they all complain. It might very well be that one might succeed and another might fail, but the question is one of fact.”

An authorative exposition of the rule in this context emerges from Knuppfer v London Express Newspapers Ltd.82 Viscount Simon LC stated:

“Where the plaintiff is not named, the test which decides whether the words used refer to him is the question whether the words are such as would reasonably lead persons acquainted with the plaintiff to believe that he was the person referred to. There are cases used in which the language used in reference to a limited class may be reasonably understood to refer to every member of the class, in which case every member may have a cause of action.”83

The crucial question is reference to the plaintiff, and not the size of the class:

“It will be as well for the future for lawyers to concentrate on the question whether the words were published of the plaintiff rather than on the question whether they were spoken of a class.”

Duncan & Neill84 put forward the following statement on the law relating to group defamation:

“It is submitted, though there is no satisfactory modern English authority on the matter, that the right approach is that even a general derogatory reference to a group may affect the reputation of every member, and that the court would adopt as its test the intensity of the suspicion cast upon the plaintiff.

“Where therefore allegations are made against members of a class the question for consideration is whether, having regard to the size of the class, the gravity of the imputation, the number of members of the class against whom the allegation is made and any other relevant circumstance, reasonable persons would understand that the plaintiff


81

[1912] SC 359.

82

[1944] AC 116.

83

Ibid, at 199.

84

Duncan & Neill, Defamation (1978), para 6.13, p 30. Footnote omitted.



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himself had actually done the act alleged or (as the case may be) was reasonably suspected of having done it. Furthermore, there may be cases where the allegation in the words complained of implicates directly only some of the members of a class but the words may nevertheless bear a further inferential meaning (which would involve all the members of the class) that the remainder were, for example, associates of criminals, or were persons who had not made sufficient inquiry as to the character of their business associates. Indeed the problems presented by class libels underline the importance in every case of deciding what the words in their context would be reasonably understood to mean.”

Publication

29.

For a defamatory statement to be actionable, it must have been published to someone other than the plaintiff himself. This is because defamation serves to protect reputation in the eyes of others, and not merely hurt pride on the part of the plaintiff.

“What is the meaning of publication? The making known of defamatory matter after it has been written to some person other than the person of whom it is written. If the statement is sent straight to the person of whom it is written, there is no publication; for you cannot publish a libel of a man to himself”.85 Accordingly, the sending of a letter or the stating of defamatory matter to the individual concerned will not of itself constitute publication.

In Berry v Irish Times,86 McLoughlin J defined defamation as a publication which tends to injure reputation in the minds of right-thinking people and continued: “It does not mean all such people but only some such people, perhaps even only one, because if a plaintiff loses the respect for his reputation of some or even one right-thinking person he suffers some injury”.

One American writer has referred to the “defamation triangle” because of the necessity of third party involvement:

“The logic of defamation creates a tangled web because it necessarily involves at least three parties – the plaintiff, the defendant, and a third party – who interact in a wide array of circumstances. Often the cast of characters contains a far more extensive list of individuals, as when a newspaper (and its staff) makes false statements about a group (and each member) to its readership (of thousands, if not millions). The tripartite division of the tort largely dictates the elements of the standard defamation action.”87


85

Per Lord Esher MR, Pullman v Hill, [1891] 1 QB 514, 517.

86

[1973] IR 368.

87

Epstein, Was New York Times v Sullivan Wrong? 53 U Chicago L Rev 782, 785.



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30.

In some situations, there may be a handing over of defamatory matter to someone other than the plaintiff, but there is no publication in law. Where a typist hands back material to an employer, or a printer to the author, there is no publication. However, the initial passing of the material to the typist or printer will constitute publication.

As Andrews LCJ stated in Eglantine Inn v Smith:

“Were the law otherwise a clerk or typist to whom a defamatory statement was handed by his or her employer to be copied would be liable to damages in an action of libel when he handed it back to the employer, on the ground that he or she had published the words complained of 'to some person other than the plaintiff'. No case has been cited to me, nor am I aware of any, in which such an unjust and, as it appears to me, absurd conclusion was ever arrived at ....”88

Nonetheless, although there is no publication, a printer may be held liable as a concurrent wrongdoer with the publisher. In the Eglantine case, an official of a trade union composed a handbill defamatory of the plaintiffs, which was printed by the defendant printers in the ordinary course of business and subsequently distributed by agents of the trade union. Andrews LCJ stated:

“[Plaintiff's counsel] submits that all persons concerned in the publishing of a libel are jointly liable as tortfeasors89; and that a printer who sends forth a libel is liable as its publisher. It appears to me that there is much to be said in support of this view if once it be established as a fact, either from his being so informed or by reason of the nature of the document itself, that the printer knew or must be taken to have known that it was going to be published, and that he was performing a necessary act in or an essential part towards such publication.”

The implications of this decision may be far-reaching. Presumably the position of a typist would not be affected, since it could seem unfair that a typist who has no choice but to follow orders would be held jointly liable for a libel published by his or her employer. A printer might be said to be in a different position in that they have a choice whether to accept the publication for printing or not. This point will be returned to when considering defences in respect of printers.

“Malicious” Publications

31.

It is normally said that the words must be published “maliciously”. The older cases say that malice is the gist of defamation. However, malice in this context refers to the wrongful intent which the law presumes from the making


88

[1948] NI 29, 33.

89

The phrase “joint tortfeasor” has been replaced in Irish law by “concurrent wrongdoer” since the enactment of the Civil Liability Act 1961.



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of a defamatory statement and is known as “malice in law”. Accordingly, the word “maliciously” is a formality which is normally inserted in the statement of claim. “Malice in fact” may, however, be relevant to certain defences.

32.

Incidental Publication: If the defendant communicates defamatory matter to the plaintiff and a third party becomes aware of it, the defendant is liable for the publication to the third party only if he could reasonably have anticipated the third party intervention.

If the defendant leaves his correspondence about, or puts letters in wrong envelopes, or speaks too loudly, he will be liable because he could have anticipated that a third party would become aware of the defamatory material. However if the third party becomes aware of the material through an unauthorised act, the defendant will not be liable. Lord Esher MR, speaking in 1891, stated:

“And, if the writer of a letter locks it up in his own desk, and a thief comes and breaks open the desk and takes away the letter and makes its contents known, I should say that would not be a publication.”90

Similarly, in Huth v Huth,91 there was held to be no publication by the defendant where the posted communication had been taken out of its envelope and read by a butler, in breach of his duty and out of curiosity.

It will depend largely on the facts of each case whether the defendant should have foreseen the possibility of third party intervention. In Paul v Holt,92 the defendant sent a letter to a “Mr Paul, Ardavoyle, Meigh, Newry”. The plaintiff had a brother by the same name, living in the same district. The letter was read by the brother, his wife and the plaintiff's wife. On appeal, it was held that the case should have gone to the jury because there was no want of publication. The defendant should have proved that he did not know of the existence of the plaintiff's brother. Conversely, in Keogh v Incorporated Dental Hospital93 where the letter complained of was opened by the plaintiff's assistant, who was authorised to open letters in his absence, it was held that there was no publication. The defendants did not know, nor ought they have known, that the plaintiff had a clerk who was authorised to open his letters. In the Paul case, the defendant should have anticipated that the plaintiff might have a brother of the same name in the same district; in the Keogh case, the defendants need not have anticipated that a clerk might open a letter sent to a business address. From these two cases, it is perhaps questionable whether a sufficiently uniform standard of foreseeability is applied to defendants. It is possible that the bare facts of the Keogh case are coloured by the context in which the letter was written, namely, “a communication sent by the


90

Pullman v Hill, [1891] 1 QB 524, 527.

91

[1915] 3 KB 32.

92

69 ILTR 157 (1935).

93

[1910] 2 IR 166, 577.



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defendants, at his own request to the plaintiff, to the address given by him, though in fact opened by an assistant of the plaintiff, of whose existence or duties it is not proved the defendants had any knowledge”.94

Postcards

There is a legal presumption that the sending of a postcard is a publication.95 Theoretically, this is justified because the law may assume in such a case that the sender should have anticipated the possibility of communication to a third party. However, the presumption has more to do with the practicalities of proof:

“It has been laid down – I think rightly – that the court will take judicial notice of the nature of the document i.e. that it is a postcard, and will presume, in the absence of evidence to the contrary, that others besides the person to whom it is addressed will read and have in fact read what is written thereon. That is a presumption of fact that arises as a matter of law. If, even in such a case as that, the defendant could establish that the postcard never was read by a single person although it is very difficult to conceive that the proof could be given – he would, notwithstanding the presumption, succeed in the action because he would have proved that there was no publication. The fact that it is practically impossible to prove that any third person read it is the reason why the law takes judicial notice of the nature of the document, and says that the mere fact that the words are written on a post-card which is posted must be taken as some evidence that a third person will read it, or has read it”.96

Swinfen Eady LJ re-affirmed the foreseeability principle in the Huth case:

“When the authorities which are referred to are considered it will be seen that, in each of those cases, the defendant – who must be dealt with upon the footing that he intended the natural consequences of his act in the circumstances of the case – intended the publication which in fact took place.”97

Husband and Wife

A communication between spouses is not a publication. Although this was formerly rationalised on the basis of the marriage unit in law, it now appears to be based on an argument of practicality. In Wennhak v Morgan,98 Manisty


94

Per Dodd J, Keogh v Incorporated Dental Hospital [1910] 2 IR 166, 577 at p 589.

95

Robinson v Jones (1879) 4 LR Ir 391.

96

Huth v Huth, [1915] 3 KB 32, per Lord Reading CJ at 39. In that case, the Court refused to extend the presumption of publication to unsealed envelopes.

97

[1915] 3 KB 32, 43.

98

(1888) 20 QBD 635, 639.



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J stated:

“...would it be well for us to lay down now that any defamation communicated by a husband to a wife was actionable? To do so might lead to results disastrous to social life and I for one would be no party to making new law to support such actions.”

A situation distinct from this is where a third party makes a defamatory communication to one spouse concerning the other. In such a case there is publication. In Theaker v Richardson,99 the defendant, who was a rival candidate to the plaintiff in an imminent election for a local district council, wrote a letter addressed to the plaintiff and delivered it to her home. The plaintiff's husband opened it, thinking it was an election address. The jury found that it was a natural and probable consequence of the defendant's delivery of the letter that someone other than the plaintiff would open it, and it was held on appeal that the jury findings should not be disturbed.

A number of comments as to this case may be made. First, it does not lay down the proposition that judicial notice is taken of the fact that spouses read each other's letters. It confirms that the question of publication depends on the state of the defendant's knowledge, proved or inferred, as to the conditions likely to prevail at the destination of the letter. Commonsense, however, dictates that while the normal foreseeability test is applied, the reading of a letter by a spouse is an act which a jury will usually find to be capable of being anticipated by the defendant. Secondly, the case confirms that the communication of defamatory matter by a third party to a spouse does constitute publication.

There is no decision of which we are aware as to whether this principle extends to unmarried persons who are cohabiting or to those whose marriages outside the State are not recognised in this jurisdiction.

Innocent Dissemination and Distributors

33.

Each time a person becomes aware of a defamatory statement there is an actionable publication. Technically, therefore, a libel on a television show would be a publication to every person who saw the show. Every person who repeats a libel is liable for its publication.

34.

However, a distinction is drawn between those who take an active part in the publication and mere distributors. Prima facie the distributor is liable for publication. However, he may escape liability by showing:


(i)


that he had no knowledge of the libel contained in the material distributed,


99

[1962] 1 WLR 151.



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(ii)


that there was nothing in the material or its surrounding circumstances to lead him to suppose that it contained a libel, and


(iii)


that there was no negligence on his part in failing to know that it contained a libel.

The burden of proof is on the defendant-distributor to displace the prima facie presumption of publication.

The rule that a news vendor could escape liability on this basis was laid down in Emmens v Pottle,100 and affirmed in Vizetelly v Mudie's Select Library.101 The principles in this area were clearly explained by Romer LJ:

“The result of the cases is I think that, as regards a person who is not the printer or the first or main publisher of a work which contains a libel, but has only taken what I may call a subordinate part in disseminating it, in considering whether there has been publication of it by him, the particular circumstances under which he disseminated the work must be considered. If he did it in the ordinary way of his business, the nature of the business and the way in which it was conducted must be looked at; and if he succeeds in showing (i) that he was innocent of any knowledge of the libel contained in the work disseminated by him, (ii) that there was nothing in the work or the circumstances under which it came to him or was disseminated by him which ought to have led him to suppose that it contained a libel, and (iii) that, when the work was disseminated by him, it was not by any negligence on his part that he did not know that it contained the libel, then, although the dissemination of the work by him was prima facie publication of it, he may nevertheless, on proof of the beforementioned facts, be held not to have published it. But the onus of proving such facts lies on him, and the question of publication or non-publication is in such a case one for the jury.”102

The rule in Emmens v Pottle was recognised in three Irish cases concerning Easons and Son; FitzGibbon v Eason & Son,103Ross v Eason & Son,104McDermot v Eason & Son.105

What sort of circumstances might alert a distributor to the fact that a newspaper might contain a libel? One answer is the nature of the material itself:


100

(1885) 16 QBD 354.

101

[1900] 2 QB 170.

102

Ibid, at 180.

103

(1910) 45 ILTR 91.

104

(1911) 45 ILTR 89.

105

(1914) 48 ILTR 1.



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“This depends to a great extent upon its character or reputation. I would name newspapers that once flourished, but have now ceased to exist, whose circulation depended on the fact that they were to a considerable extent composed of matter that was prima facie libellous. A news vendor who sold such papers cannot, in my opinion, excuse himself on the grounds that he has exercised reasonable care. If he desires to be safe he ought not to sell them at all.”106

Another answer is the context of the publication. In McDermott v Eason & Son,107 a previous action concerning comments relating to the same subject matter was brought against the defendant news vendors, but proceedings were discontinued. Subsequently a second writ was issued against Eason and another defendant, Smith. The defendant Eason moved that all further proceedings be stayed as the action was frivolous and vexatious. The Court made an order staying all further proceedings against Eason. The plaintiff then obtained an order that Smith be struck out and that the plaintiff be at liberty to proceed against Eason alone. Subsequently the writ with which the present case was concerned was issued claiming damages against Eason alone. Prior to the distribution of the material which was the subject matter of the present action, the newspaper proprietors sent handbills, posters and circulars to the defendants promising an article “of keen local interest” and of a “sensational character”. It was held that in view of these facts, the plaintiff was entitled to have a question left to the jury as to whether the defendants were guilty of negligence.

Another factor influencing the court as to whether the defendant was negligent as to the contents of the material distributed may be his system of checking the material. This was fatal to the defence in the Vizetelly case. The defendants were the proprietors of a library which circulated a book without knowing that it contained a libel on the plaintiff. One of the directors gave evidence that he and the co-director alone exercised supervision over the books and that the books were too numerous to be examined for libels. They did not employ readers because it was cheaper for them to run the risk of being sued for libel than to do so. It was held that the defendants had failed to discharge the prima facie presumption of publication.

The fact that a distributor is presumptively liable may lead him to refuse to distribute material. Thus, in Goldsmith v Sperrings,108 the plaintiff, an international company chairman and director, considered himself to be the victim of a sustained campaign of libel in a fortnightly paper. In addition to bringing a civil action against the publishers, the editor and the main distributors, he issued 74 writs against 37 secondary wholesale and retail distributors. 16 of the distributors reached settlements with the plaintiff on terms that he discontinued the actions if they ceased to handle the paper.


106

Per Samuel Walker, Bart, LC, Ross v Eason & Son, (1911) 45 ILTR 89, at p 93.

107

(1914) 48 ILTR 1.

108

[1977] 1 WLR, 478.



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It is to be noted that 17 of the distributors continued to handle the paper, having being given an indemnity by the publishers against any legal costs or damages that would be incurred, while the remaining distributors applied for an order that the actions be stayed or dismissed as an abuse of court process, in that the plaintiff's purpose was not to protect his reputation but to destroy the paper by cutting off its retail outlets. A majority of the Court of Appeal held that the action should not be stayed at the interlocutory stage unless there was strong evidence to support the allegation that the plaintiff's purpose was collateral; and, further, that the settlements did not constitute unlawful agreements so as to taint the actions being continued against the remaining distributors.

Thus a distributor may, on his own initiative, cease to handle a journal which he suspects may contain defamatory material or may cease to handle it as the result of negotiations with the plaintiff. Bridge LJ, for the majority, rejected the proposition that this was a serious threat to the freedom of the press:

“There is no question whatever here of the publication of Private Eye being restrained. It is only the circulation of the magazine which is curtailed by the fact that some newsagents have agreed not to handle it. If Private Eye is engaged in the courageous exposure of public evils, no action taken by the plaintiff will in any way impede that righteous crusade. If it is, on the other hand, given to publishing what is improper, mischievous or illegal, the main defendants are likewise free to continue on that course but must, as Blackstone says, take the consequence of their own temerity.

“What they cannot do is to complain because some independent wholesale and retail newsagents, confronted with the possibility of taking the same consequence, should have decided neither to show the same temerity nor to participate in any righteous crusade, if such it is.”

Lord Denning MR, dissenting, considered that the view of the majority could lead to a dangerous form of self-censorship:

“Even though a publication may be contentious and controversial – even though it may be scurrilous and given offence to many – it is not to be banned on that account. After all, who is to be the censor? Who is to assess its work? Who is to enquire how many libel writs have been issued against it? And whether the words were true or become unfair? No distributor can be expected to do that .... At any rate, no private individual should be allowed to stifle it (the paper) on his own estimate of its worthlessness – or the estimate of his friends and those about him. And he would stifle it – as this case shows if he was allowed to sue the distributors for libel simply for distributing it and thus making them afraid to handle it anymore. The freedom of the Press, depends



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on the channels of distribution been kept open.”109

35.

The above defence which is open to distributors is not available to printers.

This leaves printers in an even more precarious position. They may succeed in extracting an indemnity from the publishers, but they are not protected by defamation law. This difficulty is exacerbated by modern technology: the printers may never even see the hard copy of material which comes on to screens from external sources and is simply tansferred to plates for publication.

Multiple Publication

36.

At present, a plaintiff may take different actions against different defendants for publishing the same statement. This follows from the proposition that each person who repeats a libel is liable for it.

Slander and Proof of Damage

37.

Unlike cases of libel where damage is presumed from the publication of the defamatory matter, the plaintiff in a slander action must prove actual damage in order to succeed. To this, there are four exceptions, i.e. cases in which the damage is presumed from the nature of the slander and there is no need for the plaintiff to prove special damage.

“Before considering whether the present slander falls within this category, it is pertinent to consider what is meant by saying that in the four special categories, damage is presumed. What is so meant would seem to be that these exceptional slanders are either so obviously damaging to the financial position of the victim that pecuniary loss is almost certain, or so intrinsically outrageous that they ought to be actionable even if no pecuniary loss results.”110

38.

The courts will not extend the categories of slander actionable per se.

“The action for slander has been evolved by the Courts of Common Law in a fashion different from that which obtains elsewhere. As one of the consequences the scope of the remedy is in an unusual degree confined by exactness of precedent. It is not for reasons of mere timidity that the Courts have shown themselves indisposed to widen that scope, nor do I think your Lordships are free to regard the question in


109

The dissenting judgment of Lord Denning MR was criticised in unusually forthright language by Bridge LJ on the ground that it rested on legal propositions and authorities produced by the Master of the Rolls as a result of private research with which counsel for the plaintiff had never been given an opportunity of dealing.

110

Per Asquith J, Kerr v Kennedy [1942] 1 KB at p 411.



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this case as one in which a clear principal may be freely extended. Lord Herschell, in his judgment in Alexander v Jenkins,111 remarked of this very point that

'when you are dealing with some legal decisions which all rest on a certain principle, you may extend the area of those decisions to meet cases which fall within the same principles; but where we are dealing with such an artificial law as this law of slander, which rests on the most artificial distinctions, all you can do is, I think, to say that if the action is to be extended to a class of cases in which it has not hitherto been held to lie, it is the Legislature that must make the extension and not the Court'”.112

39.

The four categories of slander actionable per se are as follows:


(1)


Words imputing the commission of an offence which is punishable by imprisonment.


(2)


Words imputing the possession of a contagious disease likely to cause others to avoid the plaintiff.


(3)


Words tending to cause injury in the way of the plaintiff's office, profession, calling, trade or business.


(4)


Words imputing adultery or unchastity to a woman or girl.

40.

The first two categories have developed purely at common law. The third category is now provided for in section 19 of the Defamation Act 1961, amending the common law position. The fourth category was created by the Slander of Women Act 1891, and is re-enacted in section 16 of the Defamation Act 1961.

41.

Words Imputing the Commission of an Offence Punishable by Imprisonment: The offence imputed must carry with it the possibility of imprisonment. It does not include an offence punishable by fine, even where imprisonment may be imposed in default of paying such fine.

Examples of such offences include stealing,113 obtaining money by false pretences,114 perjury,115 and blackmail.116 In many of these cases, the fact that the slander was actionable per se is assumed rather than discussed, and the


111

[1892] 1 QB 797, 801.

112

Per Viscount Haldane, Jones v Jones, [1916] 2 AC 481, 489.

113

McFadden v Lynch (1883) 17 ILTR 93; Ede v Scott (1858) 7 ICLR 607; Wallace v Carroll (1860) 11 ICLR 485; Corcoran v W & R Jacob Ltd [1945] IR 446.

114

Kirkwood – Hackett v Tierney [1952] IR 158.

115

Keanan v Wallace, (1916) 51 ILTR 19.

116

Hartery v Welltrade, High Court, unreported 15 March 1978.



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case is then decided on grounds of privilege. For example, in Corcoran v W & R Jacob Ltd, an allegation of larceny was made to an employee of the defendants by another employee of the defendants, who was a commissionaire, in the course of his report on the plaintiff. The occasion was held to have been privileged and the Supreme Court set aside the jury finding of malice, so that the action for slander was dismissed.

42.

The imputation must be that the plaintiff actually committed the offence, and not merely that he is under suspicion of having done so.

43.

The rationale for rendering this category of slander actionable per se may be either, (a) the fact that it threatens the plaintiff's freedom or (b) the fact that he may be socially ostracised as a result.

In Gray v Jones111 the basis of this category of slander was stated to be the fact that it would cause the person to be shunned or avoided, and not because it put him in danger of a criminal prosecution. Winfield & Jolowicz support this view:

“But there is authority for the proposition that the basis of the rule, that imputation of a criminal offence is actionable per se, is the probability of social ostracism of the plaintiff and not his jeopardy of imprisonment.”118

McMahon and Binchy recognise that the rationale is not clear but submit that the policy promoted relates to the plaintiff's liberty.

44.

Statements Imputing Possession of a Contagious Disease: There is uncertainty as to what diseases are included in this category as no modern cases deal with this type of slander.

In the older cases, imputations of French Pox,119 leprosy120 and venereal disease121 were held to be actionable per se. This category takes on more significance in the light of the spread of AIDS today.

45.

The basis for rendering this category of statements actionable per se may be either, (a) social ostracism through fear of infection, (b) reflection on the moral character of the plaintiff, or (c) imputation of personal uncleanliness.122

In Crittal v Horner123 where the slander consisted in an imputation of having French Pox, the slander was said to lie not in the “wicked means of getting”


117

[1939] 1 All ER 798.

118

Tort, 11 ed, p 280.

119

Crittal v Horner, (1614) Hobart 219; Grimes v Lovell (1699) 1 Ld Ray 446.

120

Taylor v Perkins 79 ER 126 (1607).

121

Bloodworth v Grey (1844) 7 N Gr 334.

122

McDonald, Irish Law of Defamation, p 86.

123

(1614) Hobart 219.



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the disease but in the “odiousness of the infection, as a leper”– in other words, rationale (a) rather than (b). Similarly, in Villers v Monsley, the rationale appears to have been the social ostracism of the plaintiff: “nobody will eat, drink, or have intercourse with the person who has the itch ...”124

46.

Words Tending to Cause Injury in the Way of Office, Profession, Calling, Trade or Business: At common law, the plaintiff is required to satisfy the double burden of showing (a) that the words were spoken of him in the way of his office, profession, calling, trade or business, and (b) that the words were likely to injure him in that position.

This proved to be a difficult test to meet in practice, as the first limb was strictly interpreted. In McMullen v Mulhall & Farrell125 the defendants said to the plaintiff's employer: “McMullen is not a member of any union, and you must dismiss him”. The employer had an understanding with the unions that he would not hire non-union men if union-men were available to work, and dismissed the plaintiff. In fact, the plaintiff was a union member. The Supreme Court held that the words were not defamatory because there was no evidence that “non-membership of a trade union imports any want of skill, incapacity or unfitness to exercise the calling of a painter”.126 Kennedy CJ defined words touching a person in his trade as words which related to

“the conduct of his business, discharge of his duties, fulfilment of his obligations, or doing of his work in his profession, calling or office as by imputing incapacity or unfitness, disparaging his vocational skill or ability, or otherwise damaging his vocational reputation or prejudicing him in the exercise or practice of his calling”.

In Ayre v Craven,127 Lord Denman CJ noted that some of the cases in this context had produced “surprising” results, due to the limitation of the first limb of the double hurdle. Examples cited were that of a clergyman who failed to obtain redress for an imputation of adultery and a school mistress who failed despite a charge of prostitution. The words complained of did not technically refer to the plaintiffs in their respective callings.

The case of Bennett v Quane,128 is an illustration of a plaintiff succeeding under the common law rule. The defendant, referring to the plaintiff's solicitor, said: “He brought an action in the Circuit Court instead of the District Court to get more costs for himself”. It was held that these words had a natural tendency to injure the plaintiff's reputation as a solicitor. Again in Curneen v Sweeney,129 it was accepted that an imputation of dishonesty


124

95 ER 886, 887 (1769).

125

[1929] IR 470.

126

Ibid, per Kennedy CJ at p 476.

127

(1834) 2 Ad and E 2, 111 ER 1; cited in Bennett v Qu ane, (1947)IJR 28.

128

(1947) IJR 28.

129

(1969) 103 ILTR 29.



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touched the solicitor plaintiff in the way of his profession.

47.

The common law position is now altered by section 19 of the Defamation Act, 1961, which requires that the plaintiff prove only the second part of the double hurdle, i.e. that the words tend to disparage him in his calling, trade, or profession.

Thus, although an accusation of prostitution made against a schoolteacher would not refer to her in her occupation as a schoolteacher, they would certainly tend to disparage or injure her in that occupation.

48.

Offices of Profit and Offices of Honour: As regards the third category of slanders actionable per se, the common law drew a further distinction between offices of profit and offices of honour. An office of profit is one which carries with it a salary or other emolument, the loss of which necessarily entails pecuniary damage. An office of honour is one to which no salary is attached. The common law rule was that an imputation of misconduct, but not unfitness, was actionable per se, if spoken about the holder of an office of honour. However, imputations of both misconduct and unfitness were actionable per se, if spoken about the holder of an office for profit.

McDonald suggests that a stricter test may have been applied in Ireland, namely, that an honorary office-holder was required to show likelihood of temporal loss before the words were actionable per se.130 This would not cover the likelihood of removal from office.

In any event, it is unclear whether the distinction between the two types of office has survived the Defamation Act, 1961. McMahon & Binchy state:

“A distinction which the common law made, however, between offices for profit and offices of honour has seemingly survived section 19 of the 1961 Act.”131

Gatley also states that the distinction appears to have survived the equivalent English provision, section 2 of the Defamation Act, 1952;132 whereas Winfield and Jolowicz observe that section 2 of the English Act appears wide enough to put an end to the distinction.133

49.

Words Imputing Unchastity or Adultery to a Girl or Woman: This category of slander actionable per se was introduced by the Slander of Women Act, 1891 and finds current expression in section 16 of the Defamation Act, 1961.


130

Irish Law of Defamation, p 88.

131

Irish Law of Torts, p 335.

132

Libel and Slander, 8 ed, at para 174.

133

Tort, 12ed, p 301.



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Notably this category applies to females only. The Judge must decide whether the act in question is “unchaste”134 or constitutes adultery.135

An interesting issue arises in relation to an imputation of rape. In Youssoupoff v MGM,136 it was held that an imputation of rape was defamatory of the plaintiff, but the case concerned a libel by film, not a slander. Walsh J in Quigley v Creation Ltd,137 agreed that an allegation of rape would be defamatory, saying that although society should not think less of a woman because she has been raped, regrettably this is the reality and the estimation of the plaintiff would be lowered. It seems likely that an allegation of rape would be regarded as an imputation of unchastity so as to make such a slander actionable.

The rationale for making this category of statements actionable per se is set out by Asquith J in Kerr v Kennedy.138 Having stated that damages are presumed with regard to certain slanders because either pecuniary loss is almost certain, or the statement is intrinsically outrageous,139 he continued –

“The false imputation of unchastity, in whatever sense of the term, to a woman falls within both of these classes since it is calculated both to bring her into social disfavour and, as the phrase runs, to damage her prospects in the marriage market and thereby her finances.”

It is unlikely that the justification advanced in these cases for treating an allegation of rape as defamatory would command much support to-day. If the provisional recommendation made at a later stage in this paper were adopted, i.e. to abolish the distinction between libel and slander, the point would to that extent become academic. However, it would remain of possible relevance in the general law of defamation.

50.

With regard to slanders falling outside the four categories, special damage must be proved by the plaintiff.

51.

The term “special damage” signifies that no damages are recoverable merely for loss of reputation, despite this being the basis of the tort. Winfield and Jolowicz define special damage as “loss of money or of some temporal


134

Lesbianism has been held to be an unchaste act in this context –Kerr v Kennedy, [1942] 1 KB 409. In Devine v Keane, (1926) 61 ILTR 118, the charge was less specific, the slander consisting of the following words –

“Had I taken the ruffian as short as he took me and reported him for his gross misconduct with my servant girl he would not be wearing the jacket which he is wearing today.”

135

Tait v Beggs [1905] 2 IR 525.

136

(1933) 50 TLR 581.

137

[1971] IR 269, at 272.

138

[1942] 1 KB at 411.

139

See above, para 41.



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or material damage estimable in money”.140

McDonald describes special damage as “peculiarly and narrowly” defined.141 The loss of the material benefits of hospitality is special damage, whereas the loss of mere society is not.142 The loss of a tangible business advantage is special damage, whereas the loss of general business reputation is not.143 The loss of the material needs of a member of a religious community who is expelled as a result of the slander is special damage.144 The loss of a client145 or the loss of customers is special damage.146

52.

The special damage must be the natural and probable consequence of the slander.147

Thus there is no special damage where the damage complained of by the plaintiff is not deemed to be the natural consequence of the slander, although it was in fact the result of the slander.


140

Tort, 12 ed p 298.

141

Irish Law of Defamation, p 92.

142

Per Harrison J, Dwyer v Meehan (1886) 18 LR Ir 138, 154, contrasting the “loss of substantial hospitality, which had been a permanent addition to a person's income” with “mere loss of the society of acquaintances”.

143

Storey v Challands, 173 ER 475 (1937) – here it was held that if A says of B, a commission agent, that he is an unprincipled man and borrowed money with repaying it, this is not actionable per se; but if A says this to C, who was preparing to deal with B, and C does not do so as a consequence of the slander, this constitutes a special damage.

144

Dwyer v Meehan (1886) 18 LR Ir 138. However in Roberts v Roberts (1864) 5 B & S 384 where loss of membership of a religious society did not result in material loss, the action failed.

145

King v Watts (1838) 8 C&P 614.

146

Bateman v Lyall (1860) 7 CB (NS) 638.

147

See Halsbury's Laws of England, vol 28, para 18.



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CHAPTER 2: DEFENCES

Defences Generally

53.

The following are the defences possible in an action for defamation:


(1)


That the defendant did not publish the words complained of;


(2)


That the words complained of did not refer to the plaintiff;


(3)


That the words complained of did not bear any meaning defamatory of the plaintiff;


(4)


That the words complained of were true in substance and fact (Justification);


(5)


That the words complained of were published on an occasion of absolute privilege;


(6)


That the words complained of were published on an occasion of qualified privilege;


(7)


That the words complained of were fair comment on a matter of public interest;


(8)


That the words complained of were published innocently and that an offer of amends was made (Unintentional Defamation);


(9)


That the defendant was an innocent disseminator;


(10)


That the words complained of were published with the consent of the plaintiff;



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(11)


Accord and Satisfaction;


(12)


Res Judicata;


(13)


Release;


(14)


Lapse of time (under the Limitation Act 1957);


(15)


In actions for slander, (a) that the words complained of were mere words of anger or vulgar abuse, (b) that the words complained of were not actionable without proof of special damage and that no special damage is alleged or the special damage alleged is too remote in law.

Defences (1) – (3) are dealt with above under Publication and Identification.

Defences (9) – (13) apply to torts generally. Defence (14) is dealt with above under Distinction between Libel and Slander. The main common law defences peculiar to the tort of defamation are, accordingly, Justification, Fair Comment, Absolute Privilege and Qualified Privilege.

“The law of defamation must strike a fair balance between the protection of reputation and the protection of free speech, for it asserts that a statement is not actionable, in spite of the fact that it is defamatory, if it constitutes the truth or is privileged, or is a fair comment on a matter of public interest, expressed without malice by the publisher. These defences are of crucial importance in the law of defamation because of the low level of the threshold which a statement must pass in order to be defamatory.”1

In addition to these common law defences there is a statutory defence of Unintentional Defamation. Before proceeding to consider in detail the defences of justification, fair comment, privilege and unintentional defamation, it is worth noting the figures offered by the Boyle-McGonagle Report (commissioned by the National Newspapers of Ireland) as to the use of the individual defences by national newspapers, who represent 55% of defendants in libel actions in the High Court. According to the High Court records in the period 1980–1985, justification was pleaded in only 5% of cases. Fair comment was pleaded in a healthier 41% of cases, and privilege in 12%. Most interestingly, the offer of amends in section 21 of the Defamation Act was not availed of at all. The most common form of defence, in 78% of cases, was denial of some form i.e. denial of defamatory meaning, denial of reference to the plaintiff or denial of damage.2

JUSTIFICATION

54.

The defence of justification is that the words complained of were true


1

Per Dickson J, Chemeskey v Armadale Publishers [1979] 90 DLR (3rd) 321, 342.

2

Report on Press Freedom and Libel, para 614, Table H, p 44.



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in substance and in fact.

“[T]ruth is an answer to the action not because it negatives the charge of malice .... but because it shows that the plaintiff is not entitled to recover damages. For the law will not permit a man to recover damages in respect of an injury to a character which he either does not, or ought not, to possess.”3

55.

Truth alone constitutes the defence of justification. There is no requirement that the defendant show that the statement was made for public benefit.

This is a major point of difference between the civil action in defamation and the crime of libel. The defence of truth is available to the crime of libel only where the public benefit is additionally involved.

Some jurisdictions require the test of public benefit to be met in civil defamation cases also. Whether such a requirement is additionally necessary depends on the state of the law on privacy. If a plaintiff can resort to principles of privacy to complain about true statements made about his private life, there is no need for defamation law to protect this interest. However if there is no separate protection of privacy, defamation law can be adjusted to protect plaintiffs from objectionable statements about their private lives, by requiring the defendant to show that not only was the statement true, but that it was within an acceptable area of comment, namely of public benefit or interest.4

A recent English case has held that although truth is a defence to a defamation action, the publication of a true statement may nonetheless be actionable on a different basis, namely if there is a conspiracy with the sole or dominant purpose of injuring the plaintiff.5 Publishers should therefore be wary of assuming that the publication of true material is sacrosanct. Although the publication of truth is indeed unimpeachable in terms of defamation law, it may be, for example, that a combined campaign by newspapers to smear a person's character, although the allegations are true, would be a conspiracy.

56.

Malice does not affect the defence of justification. If a statement is true, the intent of the defendant when making it is irrelevant.


3

Per Littledale J, in McPherson v Daniels (1829) 10 B & C 263, 272.

4

For full discussion, see below, Privacy Law and Defamation Law, p436.

5

Gulf Oil (GB) Ltd v Page [1987] 3 All ER 14. The authority of this decision is somewhat weakened by the fact that it was a ruling on a motion for an interlocutory injunction. While the principle as stated in the text above seems unexceptionable, the actual decision is somewhat surprising: it is curious to find an injunction being granted to restrain publication of a statement admitted to be true by the invocation of the somewhat anomalous tort of conspiracy.



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As a general principle, defamation law is preoccupied with injury to the plaintiff, rather than with the intention of the defendant. Moreover, in this instance, the state of mind of the defendant is irrelevant because there exists no injury at law. Similarly a belief in the truth of a statement on the part of the defendant does not constitute the defence of justification. It is the factual truth of the words that goes to make up the defence.

57.

Presumption of Falsity: As stated at paragraph 10 above, the burden of proof is on the plaintiff to show that the words complained of are defamatory. However, once this is shown, the law presumes the statement to be false. The plaintiff does not have to prove the falsity of the statement; rather, the defendant who raises the defence must establish its truth.

Accordingly, where the defendant pleads a defence other than justification, the issue of truth does not technically arise. The case proceeds on the legal assumption that the statement is false and the defendant attempts to establish that he published the words on an occasion which is protected (privilege), or that the statement is of a type that is protected (fair comment). However, evidence of the falsity of the statement will usually emerge from the plaintiff's case.

The presumption of falsity is a separate issue from that of fault. The common law rule in relation to truth is that liability is strict, so that the plaintiff does not have to prove that the defendant was at fault in failing to realise the statement was true. If the statement is actually false, the state of mind of the defendant is irrelevant. The presumption of falsity is a separate point and tilts the balance even more in favour of the plaintiff. Not only does the plaintiff not have to show fault, he does not have to show falsity.

It is possible to separate the two issues so that, for example, the statement is presumed false but the plaintiff has to prove fault. This was the position in the United States in the period following New York Times v Sullivan6 and Gertz v Welch7 until 1986. However, the United States position has now been altered so that both rules are the converse of the common law rules. The plaintiff must show falsity, and must then show fault on the part of the defendant.8

58.

Where the plaintiff relies on a legal innuendo, the defence of justification must meet the innuendo and not merely plead to the natural meaning of the words. Where he relies on a “popular” innuendo, the defence must similarly plead to the constructions sought to be put on the words complained of by the plaintiff in his pleadings.

As stated at number 15 above, the verbal accuracy of the statement published


6

(1964) 376 US 254.

7

(1974) 418 US 323.

8

See below, para 168.



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may not be sufficient to constitute justification if there is an innuendo involved. In Irish People's Assurance Society v City of Dublin Assurance Co Ltd,9 proof by the defendant that the extracts of the balance sheets reproduced were accurate was not sufficient to constitute justification, where the popular innuendo pleaded was that the parent company was insolvent and it was not safe for policy holders to insure with them. The defence must match the imputation and justify it. So here it would have been necessary for the defendants to prove that the plaintiff was in fact insolvent.

In Lewis v Daily Telegraph,10 two national newspapers published front page articles headed: “Inquiry on Firm by City Police”, and “Fraud Squad Probe Firm” respectively. It was stated in substance that the police were enquiring into the affairs of a company, of which the plaintiff was chairman. The defendants admitted that the words were defamatory in their ordinary and natural meaning, but pleaded justification i.e. that the police actually were investigating the company's affairs. The plaintiff relied also on an innuendo meaning, (pleaded as a legal innuendo, but held to be a popular innuendo) namely, that the plaintiff was guilty of fraud. However the House of Lords ruled that the words were incapable of bearing that meaning, and therefore the defendants were not required to justify the secondary meaning. If they had been capable of that meaning, the defendant would have had to show that the plaintiff had actually been guilty of fraud, since he would have to justify this secondary meaning.

59.

Inaccuracy of Detail: Even at common law it is sufficient if the defendant establishes the truth of the substance of the imputation in order to succeed in the defence of justification. The inaccuracy of minor details will not result in the failure of the defence, whereas material inaccuracy will. The cases often refer to extracting the “sting” of the statement. “Unless the discrepancy between the statement complained of and the matter justified is so great that a defence of justification ought to be struck out, the question of fact for the court is whether the defendant has substantially justified the libel”.11

Referring to the defence of justification, Lord Shaw stated in Sutherland v Stopes that:

“[A]ll that was required to affirm that plea was that the jury should be satisfied that the sting of the libel or, if there were more than one, the stings of the libel should be made out. To which I may add that there may be mistakes here and there in what has been said which would make no substantial difference to the quality of the alleged libel or any justification pleaded for it.”12


9

[1929] IR 25.

10

[1964] AC 234.

11

Halsbury's Laws of England, vol 28, para 84.

12

[1925] AC 47, 79.



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He illustrated this with the following example:

“If I write that the defendant on March 6th took a saddle from my stable and sold it the next day and pocketed all the money without notice to me, and that in my opinion he stole the saddle, and if the facts truly are found to be that the defendant did not take the saddle from the stable but from the harness-room, and that he did not sell it the next day but a week afterwards but nevertheless he did, without my knowledge or consent, sell my saddle so taken, and pocketed the proceeds, then the whole sting of the libel may be justifiably affirmed by jury notwithstanding those errors in detail.”

An example of such a case is Alexander v N E R'way.13 The defendants published at their stations a notice stating that the plaintiff had been convicted of riding in a train without a ticket and sentenced to a fine of £1 and the alternative of three weeks' imprisonment in default of payment. The fact that the term of imprisonment was two weeks did not prevent the defence of justification from succeeding, and it became a question for the jury whether the notice was substantially true.

PARTIAL JUSTIFICATION

60.

Where the defendant makes defamatory statements as to two or more independent matters, he must in general be prepared to prove the truth of each, in order to succeed in a defence of justification. However a defendant may justify a part of a defamatory statement as long as he does not attempt to argue that this is justification of the whole. It is only if the statements are severable that the defendant may achieve partial justification in this way.

“There can be no doubt that a defendant may justify part only of a libel containing several distinct charges ... but if he omits to justify a part which contains libelous matter, he is liable in damages for that which he has so omitted to justify.”14

“But a justification need not be to the whole, but may be to a part. If a man says that a certain neighbour of his was guilty of manslaughter and was also a thief, it is perfectly open to make a plea in justification of either charge only.”15

A plea of full justification was amended to one of partial justification in Goody v Odhams Press Ltd.16 Against the background of the Great Train Robbery, the plaintiff was sentenced to thirty years imprisonment for robbery, conspiring to stop the mail and being armed with an offensive weapon. One


13

(1865) 6 B & S 340.

14

Per Tindal CJ, Clarke v Taylor, 2 Bing NC 654, 664.

15

Per Lord Shaw, Sutherland v Stopes, [1925] AC 47, 78.

16

[1967] 1 QB 333.



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year later, a newspaper published an article headed, “A suburban housewife reveals how she was caught up in the great mail bag plot”, the article containing many references to the plaintiff. As the rule in Hollington v Hewthorn17 was then still being applied, to the effect that evidence of the plaintiff's conviction was inadmissible, the defendants amended their defence of full justification to one of partial justification. This consisted of the following:

“In so far as the words complained of alleged that the defendant is imprisoned for thirty years and his appeal disposed of they are true in substance and fact.”

61.

Order 22, Rule 1(3) Rules of the Superior Courts prohibits the payment into court of money in actions for libel and slander unless liability is admitted in the defence.18It is not clear that a partial admission of liability would be sufficient to allow payment into court.

62.

Distinguishable from partial justification of an imputation, is attempted justification by proof of a less serious form of imputation. A defendant may not justify a statement by proving that a less serious form of the wrong alleged was committed by the plaintiff.

In Morrow v McGaver,19 a plea of justification failed because the justification showed only acts of oppression and harshness on the part of the plaintiff, while the slander itself imputed commission of those acts for selfish and personal motives. In White v Tyrrell,20 proof that the plaintiff's father was guilty of one breach of contract did not constitute justification where the libel imputed fraudulent dealings to him.

63.

If the statements are clearly severable, a plaintiff may choose the statements on which he wishes to bring his action. In such a case the defendant may not bring in uncontested parts of the publication before the court.

A case which illustrates the operation of this rule is Plato Films v Speidel.21 The plaintiff had been the Supreme Commander of the Axis Land Forces in Central Europe, and brought an action claiming that he had been libelled in a film in which he had been depicted as being privy to the murders of King Alexander of Yugoslavia and M. Barthou in 1934, and as having betrayed Field-Marshal Rommel in 1944. The appeal to the House of Lords concerned issues of pleading in preparation for a trial which had not yet occurred.


17

See below at para 65.

18

See para 141 below.

19

(1951) 1 ICLR 579.

20

(1856) 5 ICLR 498.

21

[1961] AC 1090.



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The defendants sought to rely on the fact that the plaintiff chose to sue on certain parts of the film, and not on others which were also defamatory of the plaintiff, as a ground for mitigating damages. However, this course of action was vigorously rejected –

“[The defendants] plead that the respondent has been depicted in the film as having been 'guilty of the conduct hereinafter set out the truth of which the plaintiff .... does not deny'. It surprises me that it should be considered a proper matter for pleading that a plaintiff has not thought fit to include in his action every libellous statement made about him by a defendant. It is, in my opinion, wholly improper.”22

“If it is said that other parts of the entire film constitute 'circumstances in which the alleged libel was published' (in themselves a recognised head of mitigation), I think that is a highly artificial meaning to attribute to the phrase. The real purport of this portion of paragraph 5 of the defence seems to be to make the point that the plaintiff must be taken to have admitted the truth of such accompanying derogatory statements as he is not challenged in his libel claim. That is not a matter for pleading. If it amounts to anything at all, it is a matter for comment. As a proposition of law designed to set up some sort of estoppel, I think that it has no foundation.”23

However where the statements are not severable, the whole context may be examined. This is illustrated by S & K Holdings v Throgmorton Publicatioris,24 where the Plato case was distinguished. The defendants published an article on auditing matters relating to the plaintiff in a financial newspaper. The plaintiff brought an action in libel in respect of the entire article with one omission. This was paragraph 7, which referred to the plaintiff's involvement in certain “accounting controversies”. The defendants' replies to a request for particulars included four pages relating to paragraph 7, and the issue arose as to whether this should be struck out. The Court of Appeal held that the paragraph in question was not clearly severable from the rest of the article, and the particulars objected to were admissible and should not be struck out. The case was treated as one in which severance was not possible –“unless the parts are clearly severable, I do not think it is open to the plaintiff to pick and choose. He must take the publication as it is, with all the defamatory statements about him.”25 The Plato case was considered to be one in which the statements were “clearly severable into distinct parts as if they were different chapters”. This, however, was not a case in which severance was desirable:

“I must confess to having disliked the general approach of the plaintiffs


22

Ibid, per Viscount Simonds, p 1125.

23

Ibid, per Lord Radcliffe, at p 1127.

24

[1972] 1 WLR 1036.

25

Ibid, per Lord Denning MR at p 1039.



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in this matter. This is the first time in my experience that, in defamation proceedings, an entire article is complained of save a solitary paragraph. One knows that from time to time out of a long article only a sentence or two are complained of as being defamatory, but here everything in a fairly long article is complained of save this one paragraph. When it emerges that it is a paragraph which gravely assails the reputation of one of the plaintiffs in the present proceedings, one is moved to ask why it is that it is excised from the statement of claim and the case is presented as though it had never been published at all. Is it due to a manoeuvring for position which might simply serve to embarrass the defendants by invoking the rules of pleading and procedure which have been built up in this branch of the law, some of which appear to have the defect of excessive technicality?”26

A similar result was achieved in the recent case of Polly Peck (Holdings) plc v Trelford.27 The defendants published two articles concerning the plaintiffs' business affairs in their newspaper. The plaintiffs brought an action in libel, basing their complaint on some but not all of the articles' content. The defendant pleaded justification and fair comment. The plaintiffs sought to strike out certain particulars of the defence on the ground that they were irrelevant or that they were an attempt to justify matters which had not been complained of. It was held that where the plaintiff chose to complain of a part of a publication, the defendant was entitled to look at the whole of the publication in order to establish context. However, where the publication contained distinct and severable statements, the plaintiff was entitled to select some for complaint and the defendant was not entitled to assert the truth of the others by way of justification. In each case, it would be a question of fact whether the statements were severable. If the defamatory allegation had a common sting, they would not be regarded as separate and distinct allegations.

64.

The common law position on partial justification outlined at no. 60 above is now altered by s22 of the Defamation Act 1961. Section 22 provides:

“In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the remaining charges.”

The section applies only where the words complained of contain severable and distinct defamatory imputations. If some are proved true, a full defence will be established, provided the imputations not proved true do not add material injury to the plaintiff's reputation. The result is that a defence of partial


26

Ibid, at 1040 per Edmund Davies LJ.

27

[1986] 2 All ER 84.



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justification will in certain circumstances provide a complete defence.28

It seems that the section does not apply where the words complained of contain a single imputation. For example, if the defendant alleged the plaintiff was a murderer whereas the plaintiff had been convicted of manslaughter, the section would not apply and the common law rule prevents a defence of justification being established where the defendant succeeds only in showing that the plaintiff was guilty of a less serious form of offence.29

JUSTIFICATION AND PREVIOUS CONVICTIONS

65.

It may be that the alleged libel consists of an accusation of legal wrongdoing, and the defendant wishes to justify by adducing evidence of a previous conviction of the plaintiff for the offence. The Irish position on this has yet to be stated.

At common law the rule in Hollington v Hewthorn30 was that evidence of a prior criminal conviction was not admissible in subsequent civil proceedings where the same issue was raised for determination. The case was not a libel case, but concerned a civil action for damages in negligence arising out of a car collision, in which the plaintiff wished to admit evidence of a conviction of the defendant driver for careless driving. This was held to be inadmissible.

The impact of this rule on libel actions was that a defendant could not rely on a previous conviction to justify a statement such as, “X committed the murder”, or “X was guilty of the offence”. This is illustrated by Goody v Odhams Press.31 The most that defendant could do was to plead partial justification, i.e. that the words were true insofar as the plaintiff had received a prison sentence, or his appeal was disposed of.

The rule in Hollington v Hewthorn attracted criticism from the time of its adoption. In the Goody case Salmon LJ referred to it as a “strange rule” and hoped that it would be reconsidered;32 and Lord Denning MR expressed the view that it was wrong. The latter Judge reiterated this view and Diplock LJ spoke of the rule as “ripe for re-examination” in Barclays Bank v Cole,33 a case of curious facts. Here the defendant had received a fifteen year prison sentence for robbery of a bank, and his appeal was rejected. The bank sued to recover the money lost, alleging in its statement of claim that the defendant had wrongfully entered their branch and stolen their property, but were faced with the inadmissibility as evidence of the previous conviction.


28

See Duncan & Neill, (1978) para 11.09, p 57.

29

Duncan & Neill suggest that in such a case the conviction of the lesser offence would affect damages; and further that the defendant might be entitled to present the case as one of partial justification; para 11.10, p 57.

30

[1943] KB 587.

31

[1967] 1 QB 333. For facts, see above para 60.

32

Ibid, at p 342.

33

[1967] 2 QB 738, [1966] 3 All ER 948.



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In 1968, the English Civil Evidence Act was enacted, section 13 of which provides that in an action for libel or slander, in which the question whether a person committed a criminal offence is relevant, proof that he stands convicted of the offence is “conclusive evidence” that he committed it.34

The New Zealand courts similarly admit evidence of a conviction in this context, although it is not deemed “conclusive evidence” that the offence was committed, as in England. The test laid down in Jorgensen v News Media is that the previous conviction is “some evidence” of the plaintiff's guilt.35

66.

It seems unlikely that an Irish court would choose to apply the rule in Hollington v Hewthorn.

This statement is not based merely on the fact that English legislation has altered the rule in that jurisdiction, and that the New Zealand courts have declined to apply the rule. Common sense would seem to require that the previous conviction be given weight in a libel action. There may already be a basis in law for putting an end to plaintiffs action since the decision in Kelly v Ireland.36 In that case O'Hanlon J identified evidential estoppel and abuse of process as doctrines by which a person might be prevented from having issues retried which were determined in earlier proceedings.37

An English House of Lords case also supports the view that where a final decision has been made by a criminal court, it is a general rule of public policy that the use of the civil action to initiate a collateral attack on that decision is an abuse of court process. Therefore it may be that if a plaintiff wishes to bring an action in defamation in respect of matter which was already the subject of criminal proceedings, it will be considered an abuse of court process. This presumably depends on whether, on the facts, it is considered a collateral attack on the previous decision.38

If the courts are reluctant to retry issues determined in previous criminal


34

A person stands convicted of an offence if there subsists against him a conviction of that offence by or before a court in the United Kingdom or a court-martial there or elsewhere –Civil Evidence Act, s 13(3).

35

[1969] NZLR 961, per North P, at p 980, Turner J, at p 992, McCarthy J, at p 994.

36

[1986] ILRM 318. See also Breathnach v Ireland, unreported, Lardner J, judgment delivered 1990; McGrath v Commissioner of An Garda Siochana, Supreme Court, unreported, judgments delivered 17th July 1990.

37

McDonald, Irish Law of Defamation, p 107.

38

The House of Lords case referred to is Hunter v Chief Constable of West Midlands [1982] AC 529. The prior criminal conviction there was the life imprisonment of six people for the Birmingham Bombings in 1974. During the criminal trial, there was a trial within a trial (voir dire) in the absence of the jury, to determine the question whether the accused had been assaulted by police and whether their confessions were voluntary. The statements were admitted in evidence as voluntary. The subsequent civil action was not one for libel, but for assault, brought by the Six against various police members and against the Home Office in respect of assaults by prison officers and prisoners. The House of Lords dismissed the plaintiffs appeal, holding that it was a collateral attack upon the previous criminal conviction.



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cases, they may admit evidence of previous convictions in order to avoid this.

REPETITION AND JUSTIFICATION

67.

It is not a defence for the publisher of the statement complained of to claim that he was merely repeating what someone else had said. He must prove that the statement is true.

In Cleary v Lenihan, following an election for the mayoralty in which the plaintiff was successfully re-elected, the defendant published in a newspaper a statement that the unsuccessful candidate was about to lodge a petition in the court against the election on the ground that intimidation and undue influence was employed by the plaintiff and that the latter had plied a large number of voters with drink prior to the voting. In an action for libel in respect of these allegations, the defendant pleaded that the unsuccessful candidate caused a petition to be prepared containing the allegations set out and that it was the intention of the defeated candidate to lodge the petition in court. The plaintiff demurred to the defence on the ground that the defendant circulated matter which was contained in the petition but which was never presented and that since the defendant did not purport to prove true what was allegedly contained in the petition, the defence of justification failed. The question was therefore whether the defendant had to justify all the allegations or whether he could point to the fact that a petition containing the allegations had been prepared by another, in other words, make out a defence on the basis of repetition. It was held that the defence failed.39

JUSTIFICATION AND AGGRAVATED DAMAGES

68.

Where the defendant attempts to plead justification and fails, the jury may award aggravated damages. This follows from the fact that the jury are entitled to look at the conduct of the defendant from the time of publication down to the time a verdict is given.

“The adoption of this line of defence is a very serious step, and if they fail to justify their alleged libel they will be severely dealt with.”40

The rule stated by Gatley41 was described as “well settled” by Lord Denning MR in Associated Leisure Ltd v Associated Newspapers Ltd.42

“A defendant should never place a plea of justification on the record unless he has clear and sufficient evidence of the truth of the imputation, for failure to establish this defence at the trial may properly be taken in aggravation of damages.”


39

(1874) 8 ILTR 146.

40

Per Murnaghan J in Gallagher v Touhy, (1924) 58 ILTR 134, at 135.

41

Libel and Slander, 6 ed, p 462, para 1046.

42

[1970] 3 WLR 101, 105.



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69.

The original rationale for the aggravated damage rule in cases of unsuccessful pleas of justification was that the maintenance of the defence could be evidence of malice. However, persistence in a plea of justification may point more to the honesty and sincerity of the publisher, than to his malice.

As Sellers LJ stated in Broadway Approvals Ltd v Odhams Press, (No.2):

“The failure to apologise or retract and persistence in a plea of justification are in themselves not evidence of malice. They may be in certain circumstances but more frequently they would show sincerity and belief in which had been said and establish the best reason for the publication.”43

Another aspect of the rule was adverted to by Davies LJ in the Broadway Approvals case. If a failed plea of justification were held automatically to indicate malice, a defendant could never raise fair comment as a defence as well, because malice destroys the defence of fair comment –

“It may be that in some cases an unsuccessful plea of justification may be evidence of malice. But in many cases, such as in the present, so to hold would be to deprive a defendant of the right to raise a twofold defence of justification and fair comment, since to fail on justification would destroy his defence of fair comment; indeed, to plead justification may point more to honesty than to malice.”

70.

More recently the basis for the justification/aggravated damage rule has been identified as the increased circulation given to defamatory statements by the trial and media reports.

This rationale is supported by the comments of Lord Diplock in Cassell v Broome:44

“So long as its withdrawal is not communicated to all those whom it has reached it may continue to spread. I venture to think that this is the rationale of the undoubted rule that persistence by the defendant in a plea of justification or a repetition of the original libel by him at the trial can increase the damages. By doing so he prolongs the period in which the damage from the original publication continues to spread and by giving to it further publicity at the trial .... extends the quarters that the poison reaches. The defendant's conduct between the date of publication and the conclusion of the trial may thus increase the damages ....”


43

[1965] 1 WLR 805, 814.

44

[1972] AC 1027, at p 1125.



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In Kennedy v Hearne,45 the defendants not only persisted in a plea of justification but also attempted to establish that the defendant already had a bad reputation, the latter being a factor which may mitigate damages.46 The fact that the defendant's statements achieved greater circulation through the trial was clearly a factor influencing the Supreme Court in increasing the amount of aggravated damages:

“Having regard to what I would consider the very large difference between the seriousness of the original defamation and the much greater seriousness of the harm to the plaintiff's character and reputation as a solicitor arising from the conduct of the proceedings in the High Court, I conclude that the sum of £2,000 as aggravated damages was significantly inadequate to compensate a solicitor for being publicly accused in the city in which he practices, of being a cheat and having no reputation.”47

The proportion of aggravated damages in relation to the total award in that case illustrates how the aggravated damage rule is a real disincentive to pleading justification; of the £10,500 damages award, £10,000 consisted of aggravated damages.

71.

The aggravated damage rule is not absolute. Aggravated damages may or may not be awarded in the case of a failed plea of justification. However, judicial statements are not specific as to when the full rigour of the rule should be invoked.

In the Kennedy case48 the defendants accepted that aggravated damages were appropriate, but attempted to put forward a distinction between defendants on the basis of their fault. They argued that defendants who recklessly and without basis made an accusation which attracted aggravated damages should attract a higher level of aggravated damages than a person who made such an accusation with more basis to it. Finlay CJ refused to accept this submission.

THE DEFENCE OF FAIR COMMENT

72.

The defence of fair comment is available to defendants who make defamatory statements which consist of fair comments on matters of public interest.

“The reason why, once a plea of fair comment is established, there is no libel, is that it is in the public interest to have free discussion of matters of public interest. In the case of criticism in matters of art, whether music, painting, literature, or drama, where the private person


45

[1988] ILRM 531.

46

See para 128 below.

47

Ibid, per Finlay CJ at p 541.

48

[1986] ILRM 531.



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of a person criticised is not involved, the freer criticism is, the better it will be for the aesthetic welfare of the public.”49

In such cases, the criticism is often not a personal attack, but reflects on the subject's published work –

“In such a case the attack is not on the personal character of the person libelled, it is upon him as responsible for certain productions e.g. an article in the press, a book, a musical composition, or an artistic work.”50

73.

Several elements are combined to make up the defence –


(a)


the statement itself must consist of comment,


(b)


the comment must be supported by fact,


(c)


the subject matter must be one of public interest,


(d)


the comment must be “fair”.

The burden of proof is on the defendant to establish these matters.

74.

Notwithstanding the presence of all these elements, the defence will fail if malice on the part of the defendant is shown. The burden is on the plaintiff to establish malice in order to defeat the defence. Thus it is said that malice destroys the defence of fair comment.

The question of malice and the issue of fairness of comment are separate. The question of malice arises only where the ingredients of the defence have been established, including fairness of comment. “Fairness” and “malice” are therefore sequential issues in the defence, and are not merged into a single test. The test of fairness is objective, i.e. “Is the comment one that an honest, albeit prejudiced, person might make in the circumstances?”51 The test of malice is subjective –“whether the publisher himself was actuated by malice”.52 As Dickson J said in the Cherneskey case:

“In my view, the legal position is this; if a defendant raises the defence of fair comment, he has the burden of establishing that the facts on which it is based are true and that it is objectively fair; if he discharges this burden he will, nevertheless, lose the defence if the plaintiff proves


49

Per Scott, LJ in Lyon v Daily Telegraph, [1943] 2 All ER 316, 319.

50

Per Lord Porter, Kemsley v Foot, [1952] AC 345, at 355.

51

Per Dickson J, Cherneskey v Armadale Publishers, (1978) 90 DLR (3rd) 321, 345. Although Dickson J dissented in that case, his views on fairness and malice are the orthodox ones. See Halsbury's Laws of England, vol 28, paras 141 and 145.

52

Ibid.



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that the comment was published maliciously. It is this second stage of analysis which raises the subjective issue of the defendant's state of mind or motive.”53

75.

The defence of fair comment is not applicable in the case of an assertion of pure fact. However, the truth of the supporting facts is an essential element of the defence. This makes the defence more difficult to rely on than qualified privilege, where malice alone defeats the defence. The defence of fair comment originated out of the refusal of judges in the nineteenth century to extend qualified privilege to public comment, and offers a lesser protection to those who make comments on matters of public interest.

76.

Difficulties arise in relation to distinguishing comment from fact, and the court draws guidance from the circumstances and context of the statement. Just as a statement may be defamatory in one context, and non-defamatory in another, a statement may constitute a comment in one and a fact in another.

Some of the cases illustrate the difficulties of distinguishing between comment and fact. In Dakhyl v Labouchere,54 the plaintiff was described in a newspaper article as “a quack of the rankest species”. Was this a statement of fact, the truth of which had to be established, or was it a comment? The House of Lords ordered a re-trial, holding that it was capable of being a comment.

In Campbell v Irish Press55 the following statements about an exhibition of snooker were held by the trial judge to be statements of fact:


(1)


“The only thing that was missing was no table.”


(2)


“He failed to make a century break because the table told lies.”

On appeal, Kingsmill-Moore J held that the first statement could be regarded as an expression of opinion, namely, that the exhibition was being badly run. As to the second statement, he felt that its first part could be a comment on the ability of the player, while the second part could be a comment resulting from the fact that the ball had deviated, namely, that the table was uneven.

The manner in which the defendant conducts his case may be one of the circumstances which the court takes into account in deciding whether a statement is a fact or a comment. In London Artists v Littler,56 the defendant published a letter which suggested that the plaintiffs had taken part in what appeared to be a plot to force the end of the run of the play which the defendant was producing. The Court of Appeal held that the allegation of a


53

Ibid.

54

[1908] 2 KB 325.

55

(1955) 90 ILTR 105.

56

[1969] 2 QB 375.



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plot was an allegation of fact, which the defendant had failed to substantiate; alternatively, that the allegation of a plot was a comment without any basis of fact. One of the factors influencing the Court to the conclusion that the allegation was one of fact, was that the defendant had originally intended to plead justification, but withdrew this defence.57

Duncan & Neill suggest the following as guidelines for distinguishing statements of fact from comment:


(a)


A bare statement of fact without reference to any other fact on which it is based cannot be defended as a comment.


(b)


If the defendant sets out or refers to other facts, and makes it clear that the statement complained of is his inference from these facts, the statement may be defended as comment.


(c)


The use of phrases such as “in my opinion“ or “in other words” is not decisive. However, they are an indication that the succeeding words are comment.


(d)


The defendant must separate the comment from statements of fact. If the comment is so inextricably mixed up with statements of fact that the reader will be unable to distinguish the two, it cannot be defended by a defence of fair comment.58


(e)


Newspaper headlines will rarely be treated as comment.

77.

The Rolled Up Plea: Due to the difficulty of distinguishing facts from comment, there arose the practice of pleading what is known as the rolled up plea. Now it appears to be better practice to set out in the particulars which statements are comments and which are facts, and to state which facts are relied on to support the comment.

The original rolled up plea consisted of the following formula:

“Insofar as the words complained of consist of allegations of fact, they are true in substance and in fact, and insofar as they consist of opinion they are fair comments made in good faith and without malice upon the said facts, which are matters of public interest.”

The plea was developed to cater for comments the supporting facts of which were to be found elsewhere. The final part of the plea read:

“... and insofar as they consist of opinion they are fair comments made in good faith and without malice on a matter of public interest.”


57

Lord Denning MR, at p 392.

58

See Hunt v Star Newspaper Co Ltd [1908] 2 KB 309, Fletcher Moulton LJ at 319.



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For some time this gave rise to a confusion that the plea consisted of a rolled up plea of justification and fair comment. However, the House of Lords in Sutherland v Stopes59 put an end to this confusion by holding that the rolled up plea is a defence of fair comment only.

Recently, in Cooney v Browne,60 Hamilton J held that where the facts alleged to support the comment in the defence of fair comment are so numerous and unspecific that it would be unfair to expect the plaintiff to present his case without notice of their true range, the plaintiff is entitled to particulars of which of the words are alleged to be statements of fact, and of the facts relied on to support such factual statements. This judgment was affirmed by the Supreme Court.

A point which is sometimes overlooked is that the onus is on the defendant to prove the truth of the supporting facts. This parallels the onus of proof in relation to truth as it arises in relation to the defence of justification. The Boyle-McGonagle Report not only advocates a reversal of the presumption of falsity in the context of justification,61 but also in the context of fair comment.62

The Boyle-McGonagle Report refers to Cooney v Browne as tilting the balance against the defendant. It is submitted that the effect of Cooney v Browne is merely to clarify pleading procedure. If the balance is tilted against the defendant, this is inherent in the defence of fair comment as it exists at common law.

We will consider later in this Paper whether the present presumption of falsity should be retained. However, at this point a question may be simply posed but not answered, namely whether it is a logical necessity that the same presumption should exist in relation to justification and the factual elements of fair comment.

PROOF OF THE SUPPORTING FACTS

78.

One of the elements of the defence of fair comment is that the comment must be based on facts which were either stated by the defendant or indicated by him so that the recipient may ascertain the matter on which the comment is based.

To say, for example, of AB that “he is unfit to hold public office since he has been convicted of embezzling” is clearly a comment based on stated facts. To say of AB that “he is unfit to hold public office, having regard to events in which he was involved in 1983” (where AB was convicted of embezzlement in


59

[1925] AC 47.

60

[1985] IR 185, (High Court) and 190 (Supreme Court).

61

Report on Press Freedom and Libel, para 5.16.

62

Ibid, para 5.21.



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that year) is a comment based on facts indicated by the defendant rather than stated expressly. The important feature is that, before the defence can be availed of, the facts must be either so stated or indicated. In the example chosen, if the defendant contented himself with saying “AB is unfit for public office” that would be treated as a statement of fact and the defence of fair comment could not arise.

As Palles CB stated in 1879:

“That a fair and bona fide comment on a matter of public interest is an excuse for what would otherwise be a defamatory publication is admitted. The very statement, however, of this rule assumes the matters of fact commented upon to be somehow or other ascertained. It does not mean that a man may invent facts, and comment on the facts so invented, in what would be a fair and bona fide manner on the supposition that the facts were true.”63

The same proposition was thus stated in the modern case of Kemsley v Foot64 where Lord Porter stated:

“The question, therefore, in all cases is whether there is a sufficient substratum of fact stated or indicated in the words which are the subject matter of the action ....”.65

If the defendant makes a statement and fails to identify facts on which it is based, it will be treated as a statement of fact which must be defended by justification or privilege:

“If the defendant accurately states what some public man has really done, and then asserts that 'such conduct is disgraceful' this is merely an expression of his opinion, his comment on the plaintiff's conduct. So, if without setting it out, he identifies the conduct on which he comments by a clear reference. In either case, the defendant enables his readers to judge for themselves how far his opinion is well founded; and therefore, what would otherwise be an allegation of fact becomes merely a comment. But if he asserts that the plaintiff has been guilty of disgraceful conduct, and does not state what the conduct was, this is an allegation of fact for which there is no defence but privilege or truth.”66

79.

Where a defendant set out the facts on which his comment was based,


63

Lefroy v Burnside (1879) 4 Lr Ir 556, 565. The case of Eglantine Inn v Smith, [1948] NI 29 is an example of a defence of fair comment failing because the defamatory document contained allegations of fact which were not truly stated.

64

[1952] AC 345.

65

Ibid, at 355.

66

Kemsley v Foot [1952] AC 345, per Lord Porter at 356.



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he was obliged at common law to prove all those facts to be true, however unimportant some of them might be. This was modified by s23 of the Defamation Act 1961 which provides that the defence of fair comment is not to fail because the truth of every allegation is not proved, if the expression of opinion is fair comment having regard to the facts which are proved.

“In a case where the facts are fully set out in the alleged libel, each fact must be justified and if the defendant fails to justify one, even if it be comparatively unimportant, he fails in his defence.”67

80.

An unsuccessful attempt to show the truth of supporting facts may result in a jury award of aggravated damages.

This proposition was affirmed by Kingsmill-Moore J in Campbell v Irish Press,68 in which he stated that where a defendant failed to show the truth of supporting facts, he “not only automatically failed in making good his plea of fair comment, but would leave it open to a jury, if they should think fit, to mark their opinion of his conduct by an increase in damages”.

This is part of the wider principle that any unsuccessful attempt to prove the truth of a statement may result in an award of aggravated damages for the defendant, which was seen in relation to justification.

81.

Where the facts on which the comment is based are not stated by the defendant but are indicated by him to be elsewhere, the common law appears to have applied a less rigid rule in relation to proving the truth of each fact. It seems that the proof of only some, or even one, of the facts by the defendant would support the comment.

That a less rigid rule was applied to the latter situation is supported by Kemsley v Foot. Lord Porter stated as follows:

“In a case where the facts are fully set out in the alleged libel, each fact must be justified and if the defendant fails to justify one, even it be comparatively unimportant, he fails in his defence. Does the same principle apply where the facts alleged are found not in the alleged libel but in particulars delivered in the course of the action? In my opinion it does not. Where the facts are set out in the alleged libel, those to whom it is published can read them and may regard them as facts derogatory of the plaintiff, but where, as here, they are contained only in particulars and are not published to the world at large, they are not the subject-matter of the comment, but facts alleged to justify that comment. In the present case, for instance, the substance of fact on which comment is based is that Lord Kemsley is the active proprietor of and responsible for the Kemsley Press. The criticism is that the


67

Kemsley v Foot [1952] AC 345, per Lord Porter at 357–8.

68

(1955) 90 ILTR 105.



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Press is a low one. As I hold, any facts sufficient to justify that statement would entitle the respondents to succeed on a plea of fair comment. Twenty facts might be given in the particulars and only one justified, yet if that one fact was sufficient to support the comment so as to make it fair, a failure to prove the other nineteen would not necessarily defeat the respondent's plea.”69

Lord Tucker stated:

“... where the facts relied on to justify the comment are contained only in the particulars it is not incumbent upon the defendant to prove the truth of every fact as stated in order to establish his plea of fair comment, but ... he must establish sufficient facts to support the comment to the satisfaction of the jury.”70

82.

The common law rule that where the facts are stated by the defendant each fact must be proved true has been modified by section 23 of theDefamation Act 1961.

Section 23 provides:

“In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved, if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved.”

There are three areas of doubt concerning the operation of this section. The first question raised is whether s23 modifies the common law rule relating to proof of (i) supporting facts contained within the material complained of only, or also (ii) supporting facts referred to in the material complained of but located elsewhere. The second question is whether s23 operates in a manner similar to s22 (justification), so that imputations have to be divided into major and minor facts. The third question is in relation to the standard of fairness envisaged by the section.

Question 1: Does s23 apply to facts stated in the defamatory material only, or does it also apply to facts located elsewhere?

The Irish s23 has its equivalent in the English Defamation Act 1952, which provision was based on a recommendation by the Porter Committee in 1948. The wording of the Porter Committee proposal is quite different from the legislative provision enacted and therefore references to that committee's intent are not a reliable guide to the meaning of s23 of our Act. The Porter


69

[1952] AC 345, at 358.

70

Ibid, at 362.



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Committee proposal would have confined the new rule to statements of fact “contained in the alleged libel”. McDonald is of the view that s23 is restricted in a similar way. However, we are of the opinion that s23 is ambiguous, since it refers to “facts alleged or referred to in the words complained of, which would seem to indicate the wider interpretation. It may be wondered whether it makes any difference whether facts merely referred to in the words complained of come within the section, because the old common law rule was that proof of any fact sufficient to support the comment would enable the defendant to succeed. Therefore the section merely makes the position identical for both cases. This is our view. However, there are two interpretations of s23 in relation to Question 2 which follows. Under one of these, the effect of s23 would not be to make the two cases identical. This is the interpretation adopted by McDonald, which would make the s23 rule stricter than the common law rule on proof of facts located outside the words complained of. On this view, it would become necessary to know whether s23 applies to facts located outside the defamatory material as well as facts located within it.

Question 2: How does s23 operate? In particular, what kind of facts may remain unproved?

There appears to be a conflict of opinion regarding the effect of section 23. The first view is that the defendant need not prove the truth of every fact stated, provided the facts not proved to be true are unimportant as regards further injury to reputation. The second view is that the defendant need not prove the truth of every fact stated, provided the expression of opinion is fair comment with regard to such of the facts as are proved true. There is no difference involved between these views where the unproved facts are unimportant. However, a difference of result does arise where the unproved facts are important. On the first view the defence would not succeed in such a case; whereas on the second view it would succeed. This is illustrated by the following examples.

Example 1:

Suppose the defendant made the following two statements of facts –“X is a murderer and X stole a cream bun”– and followed them with the comment “X is despicable”. It would seem that if he proved that X was a murderer, and the jury found that the comment was fair in relation to this fact, the defence would succeed even though X had not stolen a cream bun. However, at common law the falsity of one of the facts would apparently have destroyed the defence.

Example 2:

Suppose the defendant makes two statements of fact –“X was convicted of drunken driving and X is guilty of manslaughter”–followed by the comment, “X is despicable”. The defendant proves that X was convicted of drunken

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driving but fails to prove the allegation of manslaughter. On the first view of section 23, the defendant would not be entitled to avail of the section, because the allegation of manslaughter is significant. On the second view, the defendant may succeed under s 23 if the jury are of the opinion that the expression of opinion was fair comment in relation to the offence of drunken driving. However, it can be argued that a careful reading of section 23 allows only for the second interpretation advocated. This appears to be supported by Duncan & Neill.71 Furthermore, it would make identical the rules governing proof of facts indicated in the words complained of and proof of facts contained in the words complained of. However, the first interpretation is adopted by McDonald. It is submitted that this view is erroneous and results from two sources: (a) an incorrect comparison between proof of facts under s 23 (fair comment) and proof of facts under s 22 (justification), and (b) the wording of the original Porter Committee proposal.

McDonald argues that s23 operates only if the facts are divisible into major and minor facts, and that it preserves the defence only if the major facts are proved true and the minor ones are not, as in Example 1. This weighing of the gravity of allegations is phrased by McDonald in a similar way to his interpretation of s22, dealing with justification, although that section is worded in a different way. Curiously, the McDonald interpretation of s23 matches the original proposal of the Porter Committee, which was worded as follows:

“We accordingly recommend an amendment of the existing law analogous to that which we have recommended in relation to the defence of 'justification', namely, that a defence of 'fair comment upon a matter of public interest' should be entitled to succeed if (a) the defendant proves that so much of the defamatory statements of fact contained in the alleged libel is true as to justify the court in thinking that any remaining statement which has not been proved to be true does not add materially to the injury to the plaintiff's reputation, and (b) the court is also of opinion that the facts upon which the comment is based are matters of public interest and the comment contained in the alleged libel was honestly made by the defendant.”72

Although the Porter Committee proposal does indeed support the McDonald interpretation of s 23, it is submitted that a careful reading of the section will reveal that it does not give precise effect to the recommendation.

Question 3: What standard of fairness does s23 envisage?

The final question in relation to s 23 arises in connection with the use of the phrase “fair comment”. Does fairness in this context import the wide common law interpretation or does the section envisage a new statutory standard of fairness? If the latter solution is the correct one, the effect of the section is


71

Defamation, at para 12.10, p 65–66.

72

Porter Committee Report, para 90.



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to relax one common law rule while tightening another. However the section is silent on this point.

In conclusion, s 23 raises a number of questions: (1) in relation to its ambit, because of the doubts as to the location of the facts to which it applies, (2) because of the discrepancy between the Porter Committee recommendation and the wording of the section, and (3) because of the ambiguity of the word “fair” which has bedeviled this defence at common law. It requires a large measure of clarification.

However for the time being we accept the statement of Duncan & Neill as a correct analysis of the rules on proof of facts supporting a comment:


(a)


If the facts are stated by the commentator the question is: is the expression of opinion fair comment having regard to such of the facts stated in the words complained of as are true?


(b)


If the commentator merely indicates the conduct or matter on which he is commenting without stating the facts, the facts being set out for the first time in particulars of his defence in the action, the question is: is the expression of opinion fair comment having regard to such of the facts set out in the particulars as are proved?


(c)


If the commentator sets out some of the facts in the words complained of and also indicates that there are other matters to which the comment is directed the question is: is the expression of opinion fair comment having regard both to


(i)


such of the facts stated in the words complained of as are proved, and


(ii)


such of the additional facts set out in the particulars as are proved?”73

83.

There is one exception to the rule that the supporting facts must be true in order to succeed in the defence of fair comment. This arises where the facts pointed out are contained in a privileged document. This is known as the rule in Mangena v Wright from the case in which the proposition was laid down.

In Mangena v Wright,74 Phillimore J defined the exception as applying to facts contained in a “privileged document”, giving as examples a vote in Parliament, and a Judge giving reasons for judgment.


73

Duncan & Neill, Defamation, para 12.10, p66.

74

[1909] 2 KB 958.



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84.

The extent of the application of the rule of Mangena v Wright is unclear.

In Bailey v Truth & Sportsman75 Starke J referred to “findings of fact or conclusions of Parliament or of a Commission or other tribunal” as falling within the ambit of the rule. In Grech v Odhams Press,76 Jenkins LJ thought that the rule also applied to statements made by witnesses in judicial proceedings, provided they were fairly and accurately reported by the defendant.77

The most recent formulation of this rule is provided by Edmund Davies LJ in London Artists v Littler78 in more general terms:

“... fair comment is available as a defence only in relation to facts which are either (a) true, or (b) if untrue were published on a privileged occasion.”

FAIRNESS OF COMMENT

85.

It is usually stated that to avail of the defence, the defendant must show that the comment was fair.

86.

A fair comment is not necessarily one which the judge or jury would make themselves, or would consider reasonable. The essential point in this context is that fairness is not equated with reasonableness. Thus extravagance of language or violence of criticism does not render the comment unfair, as long as it is still within the parameters of opinion. The test of fairness is an objective one.

A test of fairness was enunciated by Lord Esher MR in 1887:

“Mere exaggeration, or even gross exaggeration, would not make the comment unfair. However wrong the opinion expressed may be in point of truth, or however prejudiced the writer, it may still be within the prescribed limit. The question which the jury must consider is – would any fair man, no matter how prejudiced he may be, however exaggerated, or obstinate his views, have said that which the criticism has said?”79

This test was approved by the House of Lords in Stopes v Sutherland, where Lord Hewart CJ said80:


75

(1938) 60 CLR 700.

76

[1958] 2 QB 275.

77

Jenkins LJ, at p 285.

78

[1969] 2 QB 375 at 395.

79

Per Lord Esher, MR, Merivale v Carson, (1887) 20 QBD 275.

80

[1925] AC 47, 375.



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“Could a fair-minded man, holding a strong view, holding perhaps an obstinate view, holding perhaps a prejudiced view – could a fair-minded man have been capable of writing this? – which, you observe, is a totally different question from the question, 'Do you agree with what he has said?'.”

The test of Lord Esher MR, adopted in Sutherland v Stopes, is ambiguous. One would expect a fair-minded man not to hold prejudiced or exaggerated views. Although the test clearly implies that the comment need not be reasonable, it is difficult to give the description “fair” a meaningful content. Halsbury recognises that a precise test is difficult to discern from the cases and states that the question is whether the comment is one that a man could honestly make on the facts proved.81 Thus fairness appears to be a misleading description, for a comment which might appear unfair to many will be considered “fair” in the specialised sense in which it is used in relation to the defence of fair comment. Duncan & Neill similarly state:

“The word 'fair' in the phrase 'fair comment' can be a source of difficulty because it suggests a test of reasonableness, whereas the defence will often cover comment which would strike many people as unfair.”82

Other reform bodies have considered the term “fair” in this defence to be devoid of meaning and have recommended dropping the word from the title.83

87.

Imputation of Base and Dishonourable Conduct or Motives: The law is uncertain as to the test to be applied where the comment contains allegations that the plaintiff has acted dishonestly or dishonourably or was inspired by base or sordid motives. The first view is that the defence of fair comment does not apply at all in this case and such allegations must be defended by justification. The second view is that the defence of fair comment does apply, but the defendant must show that the comment was reasonable. The third view is that the defence of fair comment applies and the ordinary test of fairness is used.

The singling out of this class of case occurred in Campbell v Spottiswoode84 where Cockburn CJ stated that:

“But then a line must be drawn between criticism upon public conduct and the imputation of motives by which that conduct may be supposed to be actuated; one man has no right to impute to another, whose conduct may be fairly open to ridicule or disapprobation, base, sordid, and wicked motives, unless there is so much ground for the imputation


81

Halsbury's Laws of England, vol 28 para 141.

82

Duncan & Neill, Defamation, para 12.01, footnote 1, p 62.

83

See below, paras 301–305.

84

(1963) 3 B & S 769.



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that a jury shall find, not only that he had an honest belief in the truth of his statements, but that his belief was not without foundation .... I think the fair position in which the law may be settled is this: that where the public conduct of a public man is open to animadversion and the writer who is commenting upon it makes imputations on his motives which arise fairly and legitimately out of his conduct so that a jury will say that the criticism was not only honest, but also well-founded, the action is not maintainable.”85

This ambiguous formulation led to the three interpretations set out above and detailed as follows:


(a)


The view that the defence of fair comment does not apply at all where there is an imputation of base and dishonourable motives is supported by a number of cases. In Joynt v Cycle Trade Publishing Co, Vaughan Williams LJ stated that in such a case where the imputation was “not warranted by the facts”, the defence of fair comment was of no application.86

In Hunt v Star Newspaper Co Ltd87 Fletcher Moulton LJ took a similar view:



“In other words, a libellous imputation is not warranted by the facts unless the jury hold that it is a conclusion which ought to be drawn from these facts. Any other interpretation would amount to saying that, where facts were only sufficient to raise a suspicion of a criminal or disgraceful motive, a writer might allege such motive as a fact and protect himself under the plea of fair comment. No such latitude is allowed by English law. To allege a criminal intention or a disreputable motive as actuating an individual is to make an allegation of fact which must be supported by adequate evidence.”

In Homing Pigeon Publishing Co v Racing Pigeon Publishing Co, Scrutton LJ averted to the choice of viewing imputations of base and sordid motives as (a) conclusions drawn from facts, and (b) statements reasonably supported by facts, but opted for the former interpretation because he felt bound by the decision in Hunt v Star Newspaper Co.88


(b)


The second view is that where there is an imputation of base and sordid motives, the expression of opinion should be reasonable having regard to the facts. This means that a stricter test of “fairness” is applied in relation to this type of case. This is supported by the statement of


85

Ibid, at 776–777.

86

[1904] 2 KB 292 at 298.

87

[1908] 2 KB 309, at 321.

88

(1913) 29 TLR 389 at 391.



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Lord Atkinson in Dakhyl v Labouchere:89



“A personal attack may form part of a fair comment upon given facts truly stated if it be warranted by the facts – in other words, in my view, if it be a reasonable inference from those facts.”

and by Cozens-Hardy MR in Hunt v Star Newspaper Co Ltd:90



“But there still remains the question whether if, and only if, the facts are substantially true, the comment made by the defendant, based upon those true facts, was fair and such as might, in the opinion of the jury, be reasonably made.”

Finally, the judgment of Buckley LJ in Peter Walker & Son Ltd v Hodgson supports this view:



“The defendant may nevertheless succeed upon his defence of fair comment, if he shows that that imputation of political bias, although defamatory, although not proved to have been founded in truth, yet was an imputation in a matter of public interest, made fairly and bona fide as the honest expression of the opinion which the defendant upon the facts truly stated, and was in the opinion of the jury, warranted by the facts, in the sense that a fair-minded man might upon those facts bona fide hold that opinion.”91


(c)


The ordinary test of fairness, without any notion of “reasonableness”, has been applied in Silkin v Beaverbrook Newspapers Ltd92 and Broadway Approvals Ltd v Odhams Press Ltd.93 In the latter case, Sellers LJ stated:



“An honest fair expression of opinion on a matter of public interest is not actionable even though it be untrue and fail at justification. It may be said in the appropriate circumstances that a man's conduct is discreditable and it may be a fair comment to make although a jury is not prepared to find that the substance of the comment was true.”94

Duncan & Neill suggest that in each case the statement should be examined in order to see whether it is an assertion of fact or an expression of opinion.95


89

[1908] 2 KB 325n.

90

[1908] 2 KB 309, 317.

91

[1909] 1 KB 239, 253.

92

[1958] 2 All ER 516.

93

[1965] 2 All ER 523.

94

Ibid, at 535.

95

Duncan & Neill, Defamation, para 12.30 p 77.



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It is quite possible that in some contexts the imputation of base and dishonourable motives is an assertion of fact which requires justification, while in others it is more in the nature of a comment. Once the statement is capable of being defended as a comment, there does not appear to be any special reason for imposing a special test of reasonableness upon it.

There appears to be only one Irish case dealing with allegations of base and sordid motives. This is Black v Northern Whig,96 where it was stated of the plaintiffs that they were “impelled by motives which they themselves emphasise unblushingly and propelled by anxious and apprehensive interests behind the scenes”. In the course of his judgment Brown J referred to Joynt v Cycle Trade Publishing Co and Hunt v Star Newspaper Co which, we have seen above, support the view that such allegations must be treated as allegations of fact and justified. Brown J stated “There is no evidence to support them as facts. If they are comment they are not warranted by any facts set out in the article”. Although Brown J did not expand on his understanding of what was required to “warrant” the comment, and he did not decide definitively whether the allegations were statements of fact or opinion, the case probably aligns itself with those other cases where the imputations of sordid motives was treated as a statement of fact.

MATTERS OF PUBLIC INTEREST

88.

The third element to be established by the defendant in the defence of fair comment is that the subject matter consists of a matter of public interest.

89.

Matters of public interest include a wide range of activities, including matters inherently of interest to the public and matters submitted to the public for their attention. Whether the material is a matter of public interest is for the judge to decide.

“There is no definition in the books as to what is a matter of public interest. All we are given is a list of examples, coupled with the statement that it is for the judge and not for the jury. I would not myself confine it within narrow limits. Whenever a matter is such as it will affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or others; then it is a matter of public interest on which everyone is entitled to make fair comment”.97

Gatley lists the following topics as matters of public interest:


(1)


The public conduct of any man who seeks or holds a public office or position of public trust,


96

(1942) 77 ILTR 5.

97

Per Lord Denning MR, London Artists v Littler [1969] 2 QB 375 at p 391.



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(2)


Political or state matters,


(3)


Church matters,


(4)


The administration of justice,


(5)


The management of public institutions,


(6)


The administration of local affairs,


(7)


Books, pictures, works of art, public performances,


(8)


Any place or species of public entertainment,


(9)


Anything which may be fairly said to invite comment.98

90.

The defence of fair comment on a matter of public interest does not protect a defendant in making comments on the private lives of public persons, except where this appears to be relevant to their involvement in public affairs.

91.

Although 'matters of public interest' open to comment include the administration of justice, a defendant must be careful not to overstep the boundaries of contempt of court. This includes (1) statements which “scandalize” the court, i.e. undermine confidence in or impute improper motives to the judiciary, (2) statements which seriously misrepresent judicial proceedings, (3) statements which are likely to prejudice a fair and unbiased trial, where proceedings are pending. In this latter category, where a judgment is under appeal, the likelihood of discussion prejudicing its outcome is greatly reduced, because no jury is involved.

This latter point is illustrated by Cullen v Toibin and Magill Publications.99 While the plaintiffs appeal to the Court of Criminal Appeal was pending, the defendants entered into a contract to publish the account of one Elizabeth Madden of her relationship with the plaintiff prior to and including the events which were the subject matter of the trial. The grounds of appeal related to the insufficiency of the uncorroborated evidence of an accomplice necessary to sustain a conviction for murder. The Supreme Court refused to grant an injunction to the plaintiff, holding that the publication of the article could not possibly prejudice the objective determination by the appellate court of pure issues of law:

“While I sympathise with the view that anybody reading the article might be affected by the article, that is not the issue. There is not any reason for suggesting prejudice or any form of contempt in relation to


98

Libel and Slander, 8ed, pp 315–324, paras 732–746.

99

[1984] ILRM 577.



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the hearing before the Court of Criminal Appeal”.100

92.

It is sometimes erroneously assumed that the issue of a writ in respect of a publication precludes further comment on the same matter. Plaintiffs have on occasion exploited this fear of defendants by issuing so-called “gagging writs”. However, the issue of a writ in itself does not put an end to further comment on the same subject-matter.

In Thomson v Times Newspapers Salmon LJ stated that:

“[I]t is a widely held fallacy that the issue of a writ automatically stifles further comment. There is no authority that I know of to support the view that further comment would amount to a contempt of court.”101

“The law says – and says emphatically – that the issue of a writ is not to be used so as to be a muzzle to prevent discussion”.102

Again in 1974, Lord Reid stated:

“There is no magic in the issue of a writ or in a charge being made against an accused person. Comment on a case which is imminent may be as objectionable as comment after it has begun; a 'gagging writ' ought to have no effect.”103

Thus in Irish Provident Association v Hastings,104 where proceedings were instituted against a newspaper proprietor in respect of articles published in his newspaper, mere republication of matter along the same lines did not in itself constitute a contempt of court.

Furthermore, the issue of a writ with the objective of stifling further comment may constitute malicious prosecution, in respect of which damages may be recovered. Such an action exists where the proceedings have been commenced or maintained without reasonable or probable cause and maliciously i.e. out of some improper and wrongful motive, which includes the use of the legal process for some other than its legally appointed and appropriate purpose.105

MALICE AND FAIR COMMENT

93.

A “fair” comment which is based on facts, and concerns a matter of public interest may nonetheless fall outside the defence of fair comment if it is shown that the defendant was actuated by malice.


100

Ibid, per O'Higgins CJ at p 582.

101

[1969] 1 WLR 1236, 1240.

102

Per Lord Denning MR, Wallersteiner v Moir [1974] 1 WLR 991, 1004–5.

103

Attorney General v Times Newspapers [1974] AC 273, at p 301.

104

(1904) 5 New Ir Jur Rep 10.

105

Doreen v Suedes (Ireland) [1982] ILRM 126.



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We discuss the legal concept of 'malice' in greater detail at a later stage. At this point, it is sufficient to note that the term as used in the law of defamation is not confined in its application to spite or ill-will. Malice in law is a wrong or improper motive or feeling existing in the mind of the defendant at the time of publishing and actuating that publication. That 'malice' in this sense may defeat a defence of fair comment was established in Thomas v Bradbury Agnew and Company Limited106 which concerned the publication of a review of a book, written by the plaintiff, in Punch. There was evidence of malice on the part of the defendant from the relations between the parties before the action, the special manner in which the article appeared in the magazine, the expression of the defendant, and his demeanour in the witness box. Collins MR stated:

“Proof of malice may take a criticism prima facie fair outside the right of fair comment, just as it takes a communication prima facie privileged outside the privilege.”107

“It is, of course, possible for a person to have a spite against another and yet to bring a perfectly dispassionate judgement to bear on his literary merits; but, given the existence of malice, it must be for the jury to say whether it has warped his judgement. Comment distorted by malice cannot in my opinion be fair on the part of the person who makes it.”108

Fairness and malice are separate enquiries. This is borne out by the language of Denning LJ in Adams v Sunday Pictorial Newspapers (1920) Ltd v Champion:

“[If] the defendant proves that the facts were true and that the comments, objectively considered, were fair, that is, if they were fair when considered without regard to the state of mind of the writer, I should not have thought that the plaintiff had much to complain about; nevertheless it has been held that the plaintiff can still succeed if he can prove that the comments, subjectively considered, were unfair because the writer was actuated by malice.”109

The concept of malice in relation to the defence of qualified privilege was examined thoroughly in Horrocks v Lowe.110 It has been suggested by Duncan and Neill that the criteria governing the malice element set out in that case apply equally to fair comment. Accordingly, the defence of fair comment will only be defeated if the plaintiff shows that the defendant had an improper


106

[1906] 2 KB 627.

107

Ibid at p 640.

108

Ibid at p 642.

109

[1951] 1 KB 354, at p 360. See also the comments of Scrutton LJ in Lyle-Samuel v Odhams, [1920] 1 KB 135, at 143.

110

[1974] 1 All ER 662.



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motive for publishing the words and that the improper motive was the sole or dominant motive. If the comment did not represent the honest opinion of the defendant this would constitute improper motive. Furthermore, even if the comment did represent the honest opinion of the defendant the plaintiff may still prove improper motive of another form e.g. spite, ill-will, or publication for personal gain.111

It may also be that the publication by a defendant of the opinion of another, with which it does not agree, will be indicative of actual malice. This is discussed at no. 148 below.

ABSOLUTE PRIVILEGE

94.

Absolute privilege protects statements in situations in which the law considers that absolute freedom of communication is so essential that no action in defamation should be allowed, regardless of the truth of the statement or the motive of the speaker.

In such cases, the speaker is totally immune from liability, even if he published the words with full knowledge of their falsity and with the express intention of injuring the plaintiff. Malice is therefore irrelevant to the defence of absolute liability. A study of the defence focuses on the occasions on which such privilege is said to exist.

THE PRESIDENT

95.

Article 13.8(i) of the Constitution provides that

the President shall not be answerable to either House of the Oireachtas or any court for the exercise and performance of the powers and functions of his office, or for any act done or purporting to be done by him in the exercise and performance of these powers and functions.

This immunity from liability would appear to be wide enough to encompass defamatory statements made by the President other than in his or her private capacity.

PARLIAMENTARY PROCEEDINGS

96.

Article 15.12 of the Constitution provides as follows:

All official reports and publications of the Oireachtas or of either House thereof and utterances made in either House wherever published shall be privileged.


111

See Duncan & Neill, Defamation, para 17.10, p 126.



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Although it is not specified, it is probable that such privilege is absolute.

Three types of statement enjoy absolute privilege due to Article 15.12; utterances in either House, reports of such utterances, and official reports and publications. The word “utterances” would seem to exclude written statements as well as signs and gestures. Reports of utterances are privileged regardless of whether they are official or unofficial, or made by a media or non-media publisher.

97.

Utterances in parliamentary committees are privileged by virtue of the Committees of the Houses of the Oireachtas (Privilege and Procedure) Act 1976. A “committee” is defined as a committee appointed by either House of the Oireachtas or jointly by both Houses. Section 2 of the 1976 Act provides:


(1)


A member of either House of the Oireachtas shall not, in respect of any utterance in or before a committee, be amenable to any court or any authority other than the House or the Houses of the Oireachtas by which the committee was appointed.


(2)



(a)


The documents of a committee and the documents of its members connected with the committee or its functions,


(b)


All official reports and publications of a committee, and


(c)


The utterances in a committee of the members, advisors, officials and agents of the committee, wherever published

shall be privileged.

Again the nature of the privilege is not specified, but is probably absolute.

A doubt continues to exist whether the privilege attaches to witnesses summoned to give evidence before a committee.112 McDonald submits that such witness statements are nonetheless absolutely privileged at common law.113 However, if the cases cited by the author, dealing with the proceedings of parliamentary committees, do not appear to have definitively settled the common law position with regard to utterances of members of the committee,114 it is hard to see how they are any more authoritive on the


112

At least, with respect to a committee other than the Public Accounts Committee, since witness statements to that committee are given the same immunities and privileges as a witness before the High Court under s.3(2) of the Committee of Public Accounts of Dail Eireann (Privilege and Procedure) Act 1970.

113

See McDonald, Irish Law of Defamation, p 124–5.

114

See John Kelly TD, Dail Debates, vol 289, col 322.



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statements of witnesses.

ADMINISTRATION OF JUSTICE

98.

At common law, the general principle is that anything said in the course of judicial proceedings is absolutely privileged.

This principle is usually stated in absolute terms. Gatley, for example, says:

“No action will lie for defamatory statement, whether oral or written, made in the course of judicial proceedings before a court of justice or a tribunal exercising functions equivalent to those of an established court of justice.”115

Winfied & Jolowicz also state the immunity in absolute terms:

“Whatever is stated, whether orally or in documentary form, in a judicial proceeding is absolutely privileged. It does not matter how false or malicious the statement may be, and does not matter who makes it – the judge, the jury, the parties, the advocates or the witnesses”.116

Halsbury also adopts a concise formulation:

“No action lies, whether against judges, counsel, jury, witnesses or parties, for words spoken in the ordinary course of proceedings before any court or tribunal recognised by law. The evidence of all witnesses or parties speaking with reference to the matter before the court is privileged, whether oral or written, relevant or irrelevant, malicious or not. The privilege extends to documents, properly used and regularly prepared for use in the proceedings ... Advocates, judges, and juries are covered by this privilege.”117

McDonald, however, states that the general principle fragments, according to whether relevant or irrelevant statements are involved, and secondly, according to whether a judge, party, witness or advocate makes a statement.118

99.

Judicial Privilege; Surprisingly, there is no direct Constitutional provision dealing with judicial privilege. It may be implicit in Article 35.2, which provides that all judges shall be independent in the exercise of their judicial functions, subject only to the Constitution and the law. At common law, a Judge of Record is absolutely privileged for liability in respect of any


115

Gatley, Libel and Slander, 8 ed, p 159, para 383. Footnotes omitted.

116

Winfield & Jolowicz, Tort, 12 ed, p 333–4. Footnotes omitted.

117

Halsbury's Laws of England, vol 28, para 98.

118

McDonald, Irish Law of Defamation, p127.



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statement made by him in the performance of his office.119This does not apply in two situations: first, where the judge acts ministerially120as opposed to judicially, and secondly, if the judge acts in excess of jurisdiction.121

The general principle was stated by Lord Mansfield as follows:

“By the law of England if an action is brought against a Judge of Record for an act done by him in his judicial capacity he may plead that he did so as a Judge of Record, and that will be a complete justification.”122

Its importance was reiterated in Ward v Freeman:

“It is a principle of law, established from the early times, that the acts of a Judge of Court of Record, if within the limits of his jurisdiction, are not to be reviewed or questioned in an action brought against him. This principle is most important, as regards not only the Judge, but the general interests of justice, and ought not to be impaired or frittered away on light or subtle grounds or distinctions.”123

In Tughan v Craig, the judge sued in a defamation action had said of the plaintiff's solicitor in an earlier case:

“He was addressing the jury in a case here last night, and he told them that he could twist black and make it white, and even if he liked, he would twist white again and make it black ... I suppose it was the vanity of the man who is not only brazen-faced enough to make a defence by twisting black into white and white into black, but was boasting how clever he was.”

Dodd J held that the action was not maintainable against the defendant judge. He stated:

“If a judge can sit upon a judge, where is it to end? This is what Mr Justice Fletcher meant by 'infinite'. Can I review the Lord Chancellor? The Chief Justice? Would it tend to decency or decorum, that even while I was restraining another judge I was preparing material for some other judge to restrain me?”124


119

See Tughan v Craig, [1918] 1 IR 245, where Dodd J reviewed the earlier authorities such as Taafe v Downes, (1813) 3 Moore PC 36n, Ward v Freeman, (1842) 2 ICLR 460, Money v Leach, 1 WBL 560 and Mostyn v Fabrigas, Cowp 172.

120

Ferguson v Kinnoull, (1852) 9 CL & Fin 251; Ward v Freeman, (1842) 2 ICLR 460, 469, 513.

121

O'Keefe v Cullen, (1873) IR 7 CL 319, 411; Houlden v Smith, (1850) 14 QB 841; Sirros v Moore, (1975) QB 118, 140.

122

Mostyn v Fabrigas, Cowp 172.

123

(1852) 2 ICLR 460, per Greene B at p 467.

124

[1918] 2 IR 245.



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In Macauley & Co Ltd v Wyse-Power,125 Maguire J held that an action against a Circuit Court judge for slander was not maintainable, where the matter complained of was uttered in the course of his performance of judicial duties. It was better, he said, that an individual should suffer than that the Court of Justice be hindered by apprehensions on the part of judges that their words may become the subject of an action. He described the privilege as the privilege of the People:

“The People were entitled to have the opinion of the Judge without the fear of his words being challenged elsewhere. It was a salutary and beneficial privilege.”

The first exception to the judicial immunity rule is that the privilege does not attach to words spoken by a judge when acting ministerially. This was recognised implicitly in Ward v Freeman,126 where the central issue was whether the act in question, the refusal of an appeal, constituted a judicial or a ministerial act. The essence of a ministerial act appears to be an absence of discretion. This will most frequently arise in the District Court where, for example, the District Justice is obliged to grant a particular licence if certain conditions are met and exercises no judicial discretion.

The second exception to the principle of judicial immunity is where the judge acts in excess of jurisdiction. In O'Keeffe v Cullen, Whiteside CJ recognised the privilege of judges:

“If an alleged defamatory statement were pronounced or if comments were made by a Judge of the Superior Courts or by a County Court Judge while sitting in Court and trying a case in which the plaintiff was a party, and if an action of libel were brought, it would a sufficient defence to say: 'I was a Judge, duly appointed to administer the law; I had full jurisdiction to try the cause; I am protected in all I uttered for the benefit of the public and for the sake of the jurisdiction entrusted to me, and I am responsible only to public opinion and Parliament'.”127

However he added:

“Even a Judge of a Court of Record, whose acts and language are challenged, is bound to show that what he did or said was in the exercise of jurisdiction lawfully committed to him. If he transgresses


125

(1943) 77 ILTR 61.

126

Supra, footnote 123.

127

(1873) IR 7 CL 319, 410.



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the bounds of that jurisdiction he is responsible for his acts.”128

In the recent case of Sirros v Moore & Others,129 the Court of Appeal held that although a judge will be liable for acts in excess of jurisdiction, he must additionally be aware that he was acting outside his jurisdiction. In the course of his judgment, Lord Denning MR stated:

“So long as he does his work in the honest belief that it is within his jurisdiction, then he is not liable to an action. He may be mistaken in fact. He may be ignorant in law. What he does may be outside his jurisdiction – in fact or in law – but so long as he honestly believes it to be within his jurisdiction, he should not be liable... nothing will make him liable except it be shown that he was not acting judicially, knowing that he had no jurisdiction to do it.”

Buckley LJ said:

“In my judgement, it should now be taken as settled both on authority and on principle that a judge of the High Court is absolutely immune from personal liability in respect of any judicial act which he does in his capacity as a judge of that court. He enjoys no such immunity, however, in respect of any act not done in his capacity as a judge. This does not mean that if a High Court judge, or indeed a judge of the Court of Appeal, purports to do something demonstrably outside his jurisdiction, he will be entitled to immunity. He must have acted reasonably and in good faith in the belief that the act was within his powers.”

100.

Parties and Witnesses: Parties and witnesses enjoy absolute liability in respect of defamatory statements made in the course of the administration of justice.

The privilege which attaches to witness statements is based on policy reasons:

“The immunity of witnesses in the High Court does not exist for the benefit of witnesses, but for that of the public and the advancement of the administration of justice and to prevent witnesses from being deterred, by the fear of having actions brought against them, from coming forward and testifying to the truth. The interest of the individual is subordinated by the law to the higher interest, viz, that of


128

Ibid, at 411. Houlden v Smith 14 QB 852 and Beaurain v Scott, 3 Camp. 388, illustrate instances of judges acting in excess of jurisdiction. In the former case the defendant judge had no jurisdiction to commit the plaintiff to jail, nor even to summon him to show cause for non-payment of a debt; in the second case, the defendant, a member of the Ecclesiastical Court, was held liable in damages to the plaintiff for unlawfully excommunicating him because the plaintiff had refused to obey an order the Court had no power to make.

129

[1975] QB 118.



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public justice, for the administration of which it is necessary that witnesses should be free to give their evidence without fear of consequences.”130

101.

It is clear that this privilege protects statements properly and lawfully made in the due course of judicial proceedings; however a doubt exists as to whether irrelevance or malice defeats the privilege.

In Kennedy v Hilliard,131 it was held that no action lies against a party for a statement in an affidavit made by him as a witness, even if the statement was irrelevant and was expunged from the affidavit by an order of the competent court. This case was approved in McCabe v Joynt, where Palles CB stated:

“In the first place, it is clear that this protection is not limited to words spoken or written in due and regular course of justice: Kennedy v Hilliard, 10 ICLR 195, Henderson v Broomhead, 4 H & N 569. So, too, is it settled by the same cases, and by the numerous old authorities elaborately considered in the judgment in the former case, that it is not sufficient, to take words out of the protection, that they are false and malicious.”132

The same judge quoted with approval the policy considerations outlined by Pigot CB in Kennedy v Hilliard for the view that false malicious witness statements are covered by the privilege:

“I take this to be a rule of law, not founded (as is the protection in other cases of privileged statements) on the absence of malice in the party sued, but founded on public policy, which requires that a Judge, in dealing with the matter before him, a party in preferring or resisting legal proceedings, and a witness in giving evidence, oral or written, in a Court of Justice, shall do so with his mind uninfluenced by the fear of an action for defamation or a prosecution for libel ... It is of far less importance that occasional mischief should be done by slander under such circumstances, than that the whole Court of Justice should be enfeebled and impeded ... But if parties and their witnesses ... were exposed to actions of this nature, not only would the cases be innumerable in which such actions will be brought ... But, in every case, the party and the witness will be fettered in seeking or in aiding justice by his own fears more or less influencing him, according to his strength or the weakness of his individual character, his positional circumstances in life, and the known wealth, obstinacy or malevolency of the party offended.”133


130

Per O'Dalaigh CJ, In Re Haughey [1971] IR 217, 264.

131

(1859) 10 ICLR 195.

132

[1901] 2 IR 115, 126.

133

Supra, footnote 132, at 128, at 209–210.



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Later, in explaining why both material and non-material matter in the affidavit should be protected, Pigot CB said that:

“[The] purpose is, to give him the courage to resort as a party to the legal tribunals for justice, or, as a witness, to give his evidence before these tribunals, undeterred by the fear of a prosecution or an action. It is impossible that he can be free from that fear, if his immunity must depend on his not mistaking what is not material for what is, and upon his rightly distinguishing what is from what is not libel or actionable slander.”134

Despite this authority, McDonald135 says that the position is not totally settled and argues that the authorities prior to Kennedy v Hilliard went both ways, but on the whole tended to the view that irrelevant statements were not protected. Furthermore, O'Dalaigh CJ in Re Haughey136 expressed the view that an irrelevant statement loses the witness his privilege and he may be sued in defamation. Walsh and Budd JJ agreed with the judgment of O'Dalaigh CJ. However it is diluted by the fact that it was obiter dictum and stated without reference to authority.

In conclusion, the view that irrelevant or malicious statements made by a witness or party are within the privilege is supported by two decisions, one in 1859 and one in 1901. On the other hand, there are a number of older authorities tending to the opposite view and a recent Supreme Court obiter dictum supported by two other members of the court, stating that irrelevancy destroys the privilege.

102.

Advocates' Privilege: Advocates include barristers, solicitors, and parties appearing on their own behalf. Such persons have an absolute privilege in relation to relevant statements they make in the course of the administration of justice.

103.

It is unclear whether this privilege extends to irrelevant or malicious statements. The current Irish position appears to be that such statements are not privileged.

In the Irish 19th century case of The Queen v Kiernan,137 Crampton J cited an earlier English case, Hodgson v Scarlett,138 as laying down two propositions:

“The first is, that a Counsel, in the discharge of his duty, is not in an action answerable for words spoken by him in a case where those words were pertinent or relevant to the issue, however strong or severe they


134

Ibid, at 211.

135

Irish Law of Defamation, p 133.

136

[1971] IR 217, at 264.

137

(1885) 5 ICLR 171.

138

1 B & A 232.



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may have been. The second position is, that if it be proved that the injurious words were not spoken bona fide, or if express malice be shown, there the words may be actionable.”

Another Irish case of the same period supports this view. In the Queen v Hutchins,139 the defendant, conducting his own case at Quarter Sessions, made slanderous statements concerning the plaintiff at the conclusion of the case. Lefroy CJ made absolute a conditional order for leave to file a criminal information against the defendant, on the basis that the advocate's privilege is lost when the terms used are calculated to produce a breach of the peace:

“The order must be made absolute, if for no other purpose than to put an end to any such idea of privilege existing in such cases. It is a violation of the very decorum of the court ... and it is aggravated by the fact that the cause was then at an end; even pending the cause such language cannot be tolerated.”

Although the loss of the privilege was because the words tended to breach the peace and not because of irrelevancy, the case supports the view that the privilege may be lost if the words are not pertinent to the proceedings.

In conclusion it would appear that the Irish position is that all statements made by an advocate do not automatically enjoy privilege. The English position, however, has been altered since the decision in Munster v Lamb.140 In this case, the Court of Appeal held that no action would lie against an advocate for defamatory words spoken in the course of judicial proceedings, even though they were uttered maliciously and with no object of supporting the client, and without justification, lawful excuse or personal ill will towards the plaintiff arising out of a previously existing cause, and the statements are irrelevant to every issue of fact before the tribunal. McDonald doubts the correctness of this decision.141 However Gatley142 notes that Munster v Lamb was cited with approval in Rondel v Worsley143 and that the rule in Munster v Lamb has been held as binding on the New Zealand courts.144

QUASI-JUDICIAL BODIES

104.

There is English authority in support of the view that the doctrine of absolute liability existing in respect of statements made in the course of proceedings before a Court of Justice equally applies to tribunals which


139

(1857) 7 ICLR 425.

140

(1883) 11 QBD 588.

141

Irish Law of Defamation, p136.

142

Libel and Slander, 8ed, p 166, footnote 72.

143

[1969] 1 AC at pp 229, 252, 266–7, 271.

144

Richardson v Harley (1911) 31 NZLR 464.



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exercise judicial functions.145

This would presumably apply to bodies exercising limited functions and powers of a judicial nature under Article 37 of our Constitution.

In Royal Aquarium v Parkinson, Lord Esher MR stated:

“It is true that, in respect of statements made in the course of proceedings before a Court of Justice, whether by judge, or counsel, or witnesses, there is an absolute immunity from liability to an action. The ground of that rule is public policy. It is applicable to all kinds of courts of justice; but the doctrine has been carried further; and it seems that this immunity applies whenever there is an authorised inquiry which, though not before a Court of Justice, is before a tribunal which has similar attributes.”146

Similarly, in O'Connor v Waldron,147 Lord Atkin stated:

“The law as to judicial privilege has in the process of time developed. Originally it was intended for the protection of judges sitting in recognised courts of justice established as such. The object no doubt was that judges might exercise their functions free from any danger that they might be called to account for any words spoken as judges. The doctrine has been extended to tribunals exercising functions equivalent to those of an established court of justice.”148

The doctrine has been held to apply to the proceedings of a number of bodies in England; a Justice of the Peace,149 a Commission issued by the bishop of a diocese,150 the Disciplinary Committee constituted under the Solicitors Act,151 the Benchers of an Inn of Court152 and a local military tribunal.153

It is a difficult task to draw a precise line between judicial and non-judicial functions. English case law provides guidance as to how to identify judicial functions for the purpose of applying the doctrine of absolute privilege. Irish case law provides guidelines identifying limited judicial functions for the purposes of Article 37.


145

See Gatley, Libel and Slander, 8ed, p 173, para 409; Duncan & Neill, Defamation, para 13.11, p 85; Royal Aquarium v Parkinson [1892] 1 QB 431; O'Connor v Waldron [1935] AC 76.

146

[1892] 1 QB 431, 442.

147

[1935] AC 76.

148

Ibid, at 81.

149

Hodson v Pare [1899] 1 QB 455.

150

Barratt v Kearns, [1905] 1 KB 504.

151

Addis v Crocker, [1961] 1 QB 11.

152

Lincoln v Daniels [1962] 1 QB 237.

153

Copartnership Farms v Harvey Smith [1918] 2 KB 405.



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Gatley154 identifies a number of elements that go to make up an administration of justice:


(1)


The nature of the question to be determined; or example, whether the decision affects the status of a person or the power is exercised for public benefit.


(2)


Powers and procedure; the more closely the procedure of the body in question resembles that of a court of justice, the more likely it will be held that its powers are judicial. An important power leaning to the judicial side is the power to compel witnesses.


(3)


The consequences of the decision; for example, if the decision is an essential step towards an effective decision, or has a major influence upon a final decision which is binding in law. By contrast, where the enquiry merely consists of a preliminary investigation, its proceedings will not attract absolute privilege.

In the Irish context, the doctrine that absolute liability protects statements made in the course of quasi-judicial proceedings would presumably apply to bodies exercising limited judicial functions under Article 37 of our Constitution. The exercise by a body of non-limited judicial powers would be an unconstitutional usurpation of the sphere of the courts. In this respect, the Irish case law on drawing the boundaries of “limited” judicial powers is relevant to ascertaining the bodies to which the doctrine of absolute privilege would apply.

In Re Solicitor's Act 1954,155 the power to strike a solicitor off the roll exercised by the Disciplinary Committee of the Incorporated Law Society was held to be a sanction of such severity that its exercise amounted to an administration of justice which was not limited. In a later case, Re Solicitor's Act 1954 and D, a Solicitor,156 it was held that the power to deny a solicitor of a practising certificate for a year was not so final a decision as to amount to an administration of justice. In Cowan v Attorney General,157 a test based on a statement of the Supreme Court in the first Solicitor's Act case was formulated by Haugh J:

“... findings by the Court that could well affect, in the most profound and far reaching way, the lives, liberties, fortunes or reputations of those against whom they are exercised.”


154

Libel and Slander, 8ed, p 167–170, paras 404–406.

155

[1960] IR 239.

156

95 ILTR 60.

157

[1961] IR 411.



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A body acting in such a way would not be exercising limited judicial functions. A similar test was adopted in McDonald v Bord na gCon, (No 2)158 by Kenny J in the High Court.

A recent English case specifically examines the issue of determining whether a body is quasi-judicial for the purpose of absolute privilege. In Hasselblad (GB) Ltd v Orbinson,159 the body in question was the European Commission. In the course of an investigation into alleged anti-competition practices by the plaintiff, the Commission received a letter from the defendant stating that the plaintiffs had refused to repair a camera purchased by him on the ground that although it was manufactured by the plaintiff's parent company, it had not been purchased from an authorised dealer. As required under its procedure, the Commission sent a copy of this letter to the plaintiff in order to afford an opportunity of reply. The plaintiff denied the allegations and threatened the defendant with defamation proceedings. When the defendant refused to apologise or retract, the plaintiff commenced defamation proceedings on the basis of the letter.

The Court of Appeal held that the letter was sufficiently connected with the process of giving evidence as to come within the privilege, if any, afforded to written or oral evidence given directly to or before the Commission. Accordingly, it was necessary to decide whether the Commission was a quasi-judicial tribunal to which the rule of absolute privilege applied. The court considered (a) the authority under which the Commission acted, (b) the nature of the question into which it was its duty to inquire, (c) the legal consequences of its decision, and (d) the procedure adopted by the Commission. It held that although the Commission's duties required it to investigate infringements of the anti-competition principles and to take appropriate measures to bring these to an end, and although its decisions were enforceable by the High Court, the procedure adopted by the Commission indicated that it acted in a manner dissimilar to a court of justice. In particular, the Court of Appeal noted the fact that its decisions were reached by Commissioners who had not attended the hearing on the basis of the advice of Member States who were not directly concerned. Accordingly, the Commission and its procedures were administrative rather than judicial or quasi-judicial in character, and evidence given to it did not attract absolute privilege.

However, although the Court of Appeal held that the letter given to the Commission did not attract absolute privilege, it refused to allow the letter to form the basis of defamation proceedings on a different ground. The public interest in having libellous allegations investigated and redressed by the law had to be balanced against the public interest in ensuring that the Commission would not be frustrated in its duties under the Treaty. On balance, the court held, the public interest in favour of assisting the


158

[1965] IR 217, 100 ILTR 89.

159

[1985] 1 All ER 173.



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Commission in carrying out its duties required the court to refuse to allow the letter to be produced in a libel action.

This public interest argument leaves room for expansion. On this view, if a body and its functions are held to be administrative rather than judicial or quasi-judicial, the battle is not over. It may be that there is such a public interest in assisting the functions of the body in question that evidence given to it may not be used to ground defamation proceedings. The Ombudsman, for example, would probably not be a judicial or quasi-judicial entity. However, there is no doubt that to allow defamation proceedings to be brought on the basis of a complaint made to him would greatly hamper his functions and duties. It is surprising, however, that the Court of Appeal in the Hasselblad case did not hold the occasion to be one of qualified privilege. It might easily have been found that the defendant had an interest to make the statement and that the Commission had a duty to receive it. Complaints made to the proper authorities attract qualified privilege at common law, as is clear from Hynes-O'Sullivan v Driscoll.160

COMMUNICATIONS BETWEEN SOLICITOR AND CLIENT

105.

It has been held that communications between solicitor and client are absolutely privileged.

This was held by the Court of Appeal in More v Weaver,161 although the correctness of the decision was doubted by Lord Atkin in Minter v Priest.162 It is clear, however, that they attract at least qualified privilege.

THE EXECUTIVE

106.

Statements made by certain public officials concerning matters of State in the course of their official duties are absolutely privileged at common law.

There is little Irish authority in this area and this statement represents the generally accepted position at common law as laid down in a number of


160

Unreported, Supreme Court, 21 July 1988.

161

[1928] 2 KB 570.

162

[1930] AC 588.



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English, Australian and United States decisions.163 While the cases support the view that it would extend to communications made by Government Ministers to each other or to their subordinate officials, it is not clear how far beyond these categories it extends. It is thought, however, that McDonald is correct in stating that the limitations recently recognised by Irish decisions164 on claims of executive privilege in relation to the production of documents in civil or criminal proceedings do not affect the privilege now under consideration. At a later point in this paper, we consider the desirability of clarifying the extent of this absolute privilege.

QUALIFIED PRIVILEGE

107.

The law affords protection on certain occasions to a person acting in good faith and without improper motive who makes a statement which is untrue and defamatory.

“The public interest that the law should provide an effective means whereby a man can vindicate his reputation against calumny has nevertheless to be accommodated to the competing public interest in permitting men to communicate frankly and freely with one another about matters with respect to which the law recognises that they have a duty to perform or an interest to protect in doing so. What is published in good faith on matters of these kinds is published on a privileged occasion.”165

108.

There are a number of occasions which attract qualified privilege:


(a)


Statements made pursuant to a legal, social or moral duty to a person who has a corresponding duty or interest to receive the statement;


(b)


Statements made for the protection of an interest to a person who has a duty or interest to receive the statement;


163

Dawkins v Lord Paulet, (1869) LR 5 QB 95; Chatterton v Secretary of State for India in Council [1895] 2 QB 198. Isaacs & Sons Ltd v Cook [1925] 2 KB 391. See Halsbury's Laws of England, vol 28, para 107. In a recent English case, the issue of executive privilege was raised but the case was disposed of on other grounds. The subject-matter of the proceedings in Fayed v Al-Tajir [1987] 2 All ER 396 was an inter-departmental memorandum prepared in a foreign embassy in London, which criticized the plaintiff and was seen by embassy officials and members of the foreign government. The trial judge held that the memorandum was privileged because it was a communication by one officer of state to another related to a matter of state. However, the Court of Appeal dealt with the case on the basis of international comity, holding that the court would refrain from enquiring into the merits of an internal document of a foreign embassy, in the same way as it would expect a foreign court to behave in similar circumstances.

164

Murphy v Dublin Corporation; [1972] IR 215.

165

Horrocks v Lowe [1974] 1 All ER 662, per Lord Diplock at 668–9.



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(c)


Fair and accurate reports of judicial proceedings, howsoever published or whether or not published contemporaneously with the proceedings;166


(d)


Reports which are privileged by virtue of section 24 and the Second Schedule of the Defamation Act 1961;


(i)


Without explanation or contradiction, as listed in Part I of the Schedule;


(ii)


Subject to explanation or contradiction, as listed in Part II of the Schedule.

109.

Malice defeats the defence of qualified privilege.

“[T]he privilege is not absolute but qualified. It is lost if the occasion which gives rise to it is misused. For in all cases of qualified privilege there is some special reason of public policy why the law accords immunity from suit – the existence of some public or private duty, whether legal or moral, on the part of the maker of the defamatory statement which justifies his communicating it or of some interest of his own which he is entitled to protect by doing so. If he uses the occasion for some other reason he loses the protection of the privilege.”167

110.

Statements made pursuant to a legal, social or moral duty to a person who has a corresponding interest to receive the statement:

The fact that a person to whom defamatory matter is published had an obvious interest in receiving the matter is not sufficient to establish a privileged occasion. The person making the statement must also have a legal, social or moral duty to make it. This element of reciprocity was recognised in Watt v Longsdon.168 The test of “duty” advanced in that case was as follows:

“Would the great mass of right-minded men in the position of the defendant have considered it their duty, under the circumstances, to make the communication?”169

Examples of such duty and interest are provided by Lawless v Anglo-Egyptian Cotton & Oil Co,170Kirkwood-Hackett v Tierney171 and Hartery v Welltrade.172 In the first case, the defamatory material was contained in the auditors' report


166

(a) (b) and (c) attract qualified privilege at common law.

167

Horrocks v Lowe [1974] 1 All ER 662, per Lord Diplock at 669.

168

[1930] 1 KB 130.

169

Ibid, per Greer LJ, p 153.

170

(1869) LR 4 QB 262.

171

[1952] IR 185.

172

High Court, Unreported, 15 March 1978.



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of a company which had been circulated to the company share-holders after a resolution of an ordinary general meeting. It was held that the occasion was privileged because the directors had a duty to communicate the report to the shareholders, and it was in the interest of all the shareholders to be informed of its contents. In the second case, the defamatory statement was made by the President of University College Dublin to a student in the presence of the College Secretary, in the course of an enquiry into a money draft allegedly wrongly paid to the student. The occasion was privileged because the speaker had a duty to make a full enquiry into the matter. In the third case listed, it was held to be a privileged occasion where the author of the statement had made a complaint to the Garda Siochana and a request that a criminal offence be investigated, since the statement was made pursuant to a legal duty.

The duty may also be of a more social or moral character, such as where an employer writes a character reference in respect of an employee, or a father speaks to a son or daughter about his/her intended spouse, or an employer warns an employee about their associates. It also encompasses those cases where the maker of a statement has spoken to the proper authority in order to redress a public grievance.173

An example of the failure of the defence due to a want of duty and interest is provided by Sevenoaks v Latimer.174 One L, a postmaster, was instructed to make inquiries by the Post Office authorities with regard to the misappropriation of a postal order. The defendant stated his belief to one M that the plaintiff was guilty of the crime under investigation. It was held that, as the defendant had no duty to make the statement, and M had no duty or interest to receive it, there was no occasion of qualified privilege.

Reciprocity of interest means that the person receiving the statement must actually have an interest in its receipt. It has recently been held by the Supreme Court in Hynes – O'Sullivan v O'Driscoll175 that it is not sufficient if the maker of the statement honestly and reasonably believed that the recipient had an interest to receive it, if the recipient did not actually have such an interest.

In England, there appears to be one exception to this reciprocity rule. In London Association v Greenlands Ltd176 it was held that where an enquiry is made of a person as to the financial circumstances and credit of a trader, that person is deemed to be giving the information on an occasion of qualified privilege if (a) he bona fide believes in the truth of the information and (b) bona fide believes that the person making the enquiry has an interest which


173

McMahon & Binchy, Irish Law of Torts, p 363, Gatley, Libel and Slander, 8ed p 221, para 522, Hynes-O'Sullivan v O'Driscoll, Unreported, Supreme Court, 21 July 1988.

174

54 ILTR 11.

175

Unreported Supreme Court 21 July 1988.

176

[1916] 2 AC 15.



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justifies the enquiry. This decision does not appear to have been considered by any Irish Court.

A distinction is made in relation to bodies which make statements as to the credit of other commercial bodies in answer to specific enquiries. If the body giving the information does so for profit, at common law it does not attract privilege; but if it does not do so for profit, it does attract privilege.177

111.

Statements made for the protection of an interest to a person who has a duty or interest to receive the statement.

The interest protected may be the property or the person of the speaker himself,178 the interest of a third party,179 or the interest of a group.180

Examples of such occasions of privilege include a decision by the Stewards of the Jockey Club published in the Racing Calendar to an audience which is interested in horse racing,181 a statement made to parishioners about their priest,182 and a statement made in answer to a request by an interested party as to the plaintiff's commercial standing or credit.183 Furthermore, when a person is threatened with legal proceedings for libel or is a defendant in such proceedings, the publication by him of an apology in the newspaper in which the alleged libel appeared is an occasion of privilege.184

The Media

The courts have consistently refused to recognise an interest or duty on the part of the press to report matters of public interest to the public sufficient to constitute an occasion of privilege. There is therefore no media qualified


177

London Association for Protection of Trade v Greenlands Ltd, Ibid, and Macintosh v Dun [1908] AC 390 (Privy Council).

178

McMahon & Binchy, Irish Law of Torts, p.364, McDonald, Irish Law of Torts, p.146–150.

179

McDonald, p 150–6; here, however, factors such as the relationship between the speaker and the person protected, and the risk posed by the person defamed to the person protected, come into play.

180

McDonald, p 156–161, including proceedings of domestic tribunals.

181

Chapman v Ellesmere [1932] 2 KB 431.

182

O'Keeffe v Cullen, (1873) IR 7 CL 319.

183

Davis v Reeves (1855) 5 ICLR 79, Fitzsimmons v Duncan & Kemp & Co [1908] 2 IR 43.

184

Willis v Irish Press Ltd 72 ILTR 238.



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privilege as such.185 In London Artists v Littler,186 a theatrical producer published a letter in the national press suggesting that the plaintiffs had taken part in a plot to force the end of the run of a play produced by him. The defence of qualified privilege, inter alia, was pleaded. The Court of Appeal felt that a duty to communicate information to the public arose where it was in the interest of the public that such publication be made, but that such a duty did not arise simply because the information appeared to be of legitimate public interest.

The same result was reached in the more recent case of Blackshaw v Lord.187 In that case, the defendant journalist attended a press conference where it was stated that it had emerged from committee investigations that there had been irregularities in the management of a government department scheme to provide finance for companies developing oil and gas resources in the North Sea, and that a senior official had been dismissed. The defendant subsequently attempted to glean more information from the press officer of the relevant department. In the course of a telephone conversation, the press officer denied that anyone in the department had been dismissed, but stated that the plaintiff had held the post of under-secretary at the relevant time and was in charge of the division operating the scheme, that the plaintiff had subsequently left the division for a position of equal rank in a different division, and had then resigned for personal reasons, mainly to pursue a writing career. The defendant wrote an account of the information obtained from the press conference and the press officer, stating that the plaintiff had resigned, but omitted to state that he had done so for personal reasons. In the libel action brought by the plaintiff, the defendant pleaded, inter alia, qualified privilege. However, the Court of Appeal held that it was not sufficient that the report was of general interest to the public. The public would have to have a legitimate interest in receiving the information and the publisher would require a corresponding duty to publish the report to the public at large. The question whether this interest and duty existed would depend on the particular circumstances of each case, and on the facts, did not exist in the present case. Similarly in the New Zealand case, of Truth (New


185

However it may be that matter published in a media organ attracts qualified privilege for other reasons. In Nevin v Roddy & Carty [1935] IR 397 the plaintiff brought a libel action against C, the writer of the letter complained of, and R, the proprietor of the newspaper in which it was published. The jury found the letter to be defamatory of the plaintiff. However the defendant argued that the letter was a response to the action of the plaintiff and another in making defamatory statements concerning the defendant at an open Corporation meeting, with the intention that they should be published in the press. On appeal, the Supreme Court held that the occasion of C's reply was privileged and that he had lawful justification for resorting to the newspaper in which the plaintiff's charges appeared. There was nothing in the defendant's letter which was not sufficiently connected with the indication of his character to ground an objection of irrelevancy. The jury finding that there was no malice on the defendant's part should not be disturbed, and the judgment entered for the defendant should stand.

186

[1968] 1 WLR 607.

187

[1983] 2 All ER 311.



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Zealand) Ltd v Holloway,188 it was held that the defence of privilege could not be claimed by a newspaper simply because the topic covered was of public interest.

No court in this jurisdiction has ruled on this specific point, but the Northern Ireland decision in Doyle v The Economist189 is in conformity with the English and New Zealand position. In that case the defendant published an article concerning the appointment of the plaintiff and two others as County Court judges, which allegedly implied that the plaintiff's appointment was not made on merit. The author of the article said that its content was based on interviews with senior Bar members and other eminent persons, but refused to give these sources in a witness box. It was held that although the matter was undoubtedly of public interest, it could not be said that there was any kind of duty on the defendant to pass on views to the public which were exposed in private and confidential discussion by unidentified persons, and untested for reliability and motive.

112.

Fair and Accurate Reports of Judicial Proceedings

The rule was stated by Lord Esher MR in 1893 as follows:

“The rule of law is that, where there are judicial proceedings before a properly constituted tribunal exercising its jurisdiction in open Court, then the publication, without malice, of a fair and accurate report of what takes place before that tribunal is privileged. Under certain circumstances, that publication may be very hard on the person to whom it is made to apply, but public policy requires that some hardship must be suffered by individuals rather then that judicial proceedings should be held in secret.”190

The rationale of this common law privilege is clearly explained by Salmon LJ in Burnett & Hallamshire Fuel Ltd v Sheffield Telegraph and Star Ltd:

“Not only should justice be done, but it must manifestly be seen to be done. Justice is not a cloistered and secluded virtue. Behind closed doors, justice withers and dies, that is why in this country the doors of our courts are open to every member of the public so that the public may walk into court and see justice being done ... and a principle has grown up which is merely an extension of the principle which I have indicated to you, that the press has the freedom to report any proceedings in open court, providing that the report is fair and accurate, so that justice is seen to be done not only by the few members of the public who can spare the time to come to court, but


188

[1960] NZLR 69.

189

[1980] NI 171.

190

Kimber v Press Association Ltd [1893] 1 QB 65, 68.



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by the whole, vast public which is reached by our press.”191

An example of such a report failing for lack of accuracy is in Mitchell v Hirst, Kidd & Rennie Ltd.192 The plaintiffs had been charged with theft and taking a car without the owner's consent against road traffic legislation. The charges of theft were dropped at the police court. Nonetheless, newspaper reports appeared subsequently with the headings “Stolen Motor Car” and “Motor Car Theft”. The reporters at the police court had not heard the withdrawal of the charge of theft, and this was found to be due to their inattention. The lack of accuracy was fatal to the privilege, and the plaintiffs recovered damages for libel.

Section 18 of our Defamation Act sets out a privilege in relation to the reporting of judicial decisions. It is not clear whether this privilege is absolute or qualified. However, it differs from the common law privilege under discussion in a number of other respects. First, the statutory privilege is confined to the media, whereas the common law privilege is not. Secondly the statutory privilege is conditional upon the report being “contemporaneous with” the proceedings reported, whereas there is no such time restraint upon the common law privilege. Thirdly, the statutory defence may be wider than the common law privilege in its geographical aspect, for it covers reports of court proceedings in Northern Ireland as well as the Republic of Ireland. The common law privilege appears to attach to proceedings in the domestic country only, and is extended to foreign court proceedings only reluctantly. However, where the foreign court proceedings are tied in closely with the administration of justice in the domestic country, the reporting of such proceedings may attract privilege at common law.193

113.

Reports Privileged by Virtue of s24 of the Defamation Act

The Second Schedule to the Defamation Act 1961 sets out a lengthy list of matters the reports of which attract qualified privilege. Section 24 of the Act provides that in respect of the matter listed in Part II of the Schedule, the defence of qualified privilege shall fail if it is proved that the defendant was requested by the plaintiff to publish a reasonable statement by way of explanation or contradiction and refused or neglected to do so, or has done so in a manner not adequate or reasonable in the circumstances. The matter listed in Part I is not made subject to this condition.

As with all the occasions of qualified privilege, malice destroys the defence.194 As malice is not defined in the Act, its interpretation appears to be left to the common law. Section 24(3) adds that the defence does not attach to publications which are prohibited by law, or to the publication of matter


191

[1960] 1 WLR 502, at p 504.

192

[1936] 3 All ER 872.

193

Webb v Times Publishing Co. [1960] 2 QB 535.

194

Defamation Act 1961, S24(1).



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which is neither of public concern nor of public benefit.

It should be borne in mind that the cases of common law privilege already discussed remain part of the law: the cases set out in the Second Schedule supplement rather than replace them.

The list of matters contained in the Second Schedule is as follows:

PART I
Statements privileged without Explanation or Contradiction


1.


A fair and accurate report of any proceedings in public of a house of any legislature (including subordinate or federal legislatures) of any foreign sovereign State or any body which is part of such legislature or any body duly appointed by or under the legislature or executive of such State to hold a public inquiry on a matter of public importance.


2.


A fair and accurate report of any proceedings in public of an international organization of which the State or the Government is a member or of any international conference to which the Government sends a representative.


3.


A fair and accurate report of any proceedings in public of the International Court of Justice and any other judicial or arbitral tribunal deciding matters in dispute between States.


4.


A fair and accurate report of any proceedings before a court (including a courtmartial) exercising jurisdiction under the law of any legislature (including subordinate or federal legislatures) of any foreign sovereign State.


5.


A fair and accurate copy of or extract from any register kept in pursuance of any law which is open to inspection by the public or of any other document which is required by law to be open to inspection by the public.


6.


Any notice or advertisement published by or on the authority of any court in the State or in Northern Ireland or any Judge or officer of such a court.



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PART II
Statements privileged subject to Explanation or Contradiction


1.


A fair and accurate report of the findings or decision of any of the following associations, whether formed in the State or Northern Ireland, or of any committee or governing body thereof, that is to say:


(a)


an association for the purpose of promoting or encouraging the exercise of or interest in any art, science, religion or learning, and empowered by its constitution to exercise control over or adjudicate upon matters of interest or concern to the association or the actions or conduct of any persons subject to such control or adjudication;


(b)


an association for the purpose of promoting or safeguarding the interests of any trade, business, industry or profession or of the persons carrying on or engaging in any trade, business, industry or profession and empowered by its constitution to exercise control over or adjudicate upon matters connected with the trade, business, industry or profession or the actions or conduct of those persons;


(c)


an association for the purpose of promoting or safeguarding the interests of any game, sport or pastime, to the playing or exercise of which members of the public are invited or admitted, and empowered by its constitution to exercise control over or adjudicate upon persons connected with or taking part in the game, sport or pastime;

being a finding or decision relating to a person who is a member of or is subject by virtue of any contract to the control of the association.


2.


A fair and accurate report of the proceedings at any public meeting held in the State or Northern Ireland, being a meeting bona fide and lawfully held for a lawful purpose and for the furtherance or discussion of any matter of public concern whether the admission to the meeting is general or restricted.


3.


A fair and accurate report of the proceedings at any meeting or sitting of –


(a)


any local authority, or committee of a local authority or local authorities, and any corresponding authority, or committee thereof, in Northern Ireland;


(b)


any Judge or Justice acting otherwise than as a court exercising



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judicial authority and any corresponding person so acting in Northern Ireland;


(c)


any commission, tribunal, committee or person appointed, whether in the State or Northern Ireland, for the purposes of any inquiry under statutory authority;


(d)


any person appointed by a local authority to hold a local inquiry in pursuance of an Act of the Oireachtas and any person appointed by a corresponding authority in Northern Ireland to hold a local inquiry in pursuance of statutory authority;


(e)


any other tribunal, board, committee or body constituted by or under, and exercising functions under, statutory authority, whether in the State or Northern Ireland;

not being a meeting or sitting admission to which is not allowed to representatives of the press and other members of the public.


4.


A fair and accurate report of the proceedings at a general meeting, whether in the State or Northern Ireland, of any company or association constituted, registered or certified by or under statutory authority or incorporated by charter, not being, in the case of a company in the State, a private company within the meaning of the Companies Acts, 1908 to 1959 and 1963 to 1990,195 or, in the case of a company in Northern Ireland, a private company within the meaning of the statutes relating to companies for the time being in force therein.


5.


A copy or fair and accurate report or summary of any notice or other matter issued for the information of the public by or on behalf of any Government department, local authority or the Commissioner of the Garda Siochana or by or on behalf of a corresponding department, authority or officer in Northern Ireland.

The sum of these matters constitutes the range of subjects of which the media are entitled to make fair and accurate reports. There is consequently no protection for reporting statements by public figures such as politicians, judges acting unofficially, the Attorney General, the DPP or the Ombudsman. If a media organ were to report a statement by such a figure which was defamatory of an individual, it would have to avail itself of the other defences in defamation law, since it is as liable as the original author of the statement.


195

The 1961 Act refers to the Companies Acts 1908–59, which code has been replaced by the Companies Acts 1963–90. Section 4 of the Companies Act 1963 provides that references in any Act to a company formed and registered, or registered, under the Companies (Consolidation) Act 1908 shall be construed as references to a company formed and registered, or registered, under that Act or the 1963 Act.



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114.

Malice and Qualified Privilege

Malice destroys the defence of qualified privilege. If an occasion of privilege has been shown by the defendant to exist, the onus is on the plaintiff to establish malice on the part of the defendant.

The occasion which is privileged is so for a reason and the defendant must use the occasion for that reason. “He is not entitled to the protection if he uses the occasion for some indirect and wrong motive. If he uses the occasion to ratify his anger or his malice, he uses the occasion not for the reason which makes the occasion privileged, but for an indirect or wrong motive ....”196

The use of the term “malice” has not been without ambiguity and the comments of Duncan and Neill are helpful:

“The term 'express malice' has been the source of some confusion because the word 'malice' as a word in general use connotes spite or ill-will whereas the express malice which can defeat a defence of fair comment or qualified privilege can include within its ambit not only spitefulness but also a state of mind which is not 'malicious' in the ordinary sense of the word. Furthermore, in cases where the express malice relied on does in fact involve evidence of ill-will between the parties the jury may find it difficult fully to appreciate that proof of the existence of bad feeling is not equivalent to proof that the defendant was actuated by malice at the time of publication.”197

Malice has been described in various ways; a “wrong or improper motive or feeling existing in the mind of the defendant at the time of publishing and actuating that publication”, or “want of good faith”198“feelings not accounted for by the exigencies of the occasion ... but male fide, and in order to injure the complainant”199“an improper purpose i.e. a purpose inconsistent with the social policy which it is the policy of the law to secure by the technical device of privilege”.200

In some cases personal spite or ill-will may indicate wrong motive. In others, a belief in the falsity of the statement or a reckless disregard as to its truth may constitute malice. McMahon & Binchy state that on some occasions, however, the making of a statement by a person who does not believe in its truth would not defeat the privilege, as where a person making a character reference draws attention to the fact that an offence was suspected of the plaintiff, although the referee does not himself believe it.201


196

Per Brett LJ, Clarke v Molyneaux, 3 QBD 246–247 (1877).

197

Duncan & Neill, Defamation, para 17.04, p 121.

198

Kirkwood – Hackett v Tierney [1952] IR 185, 203 and 199 respectively.

199

Jacob v Lawrence (1879) 4 LR Ir 579, 582.

200

McMahon & Binchy, Irish Law of Torts, p 369, quoting I Harper & James, 452.

201

McMahon & Binchy, Irish Law of Torts, 369.



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McDonald also mentions this exception:

“A man may believe a statement to be untrue and yet may be perfectly justified in publishing it to the persons with whom he is in communication and with whom it may be his duty to communicate freely on the subject of the information he has received.”202

However McDonald voices a number of objections to this exception. Firstly, the authority in support of this exception is scarce, and is mostly obiter or academic. Secondly, it is wrong in principle because it facilitates the telling of falsehoods with knowledge of their falsity. McDonald suggests that if such an exception were sanctioned, it should at least be made conditional upon the informer additionally communicating his knowledge that the statement is untrue.203

Where the author of the statement is an expert, and the statement is untrue, this does not of itself indicate malice which would defeat the defence of qualified privilege. In Denvir v Taylor204 an engineering expert supervising an electrical plant made certain allegations in a letter concerning an electrician employed in connection with the plant. The occasion was admitted to be privileged, but the jury found malice. On appeal it was held that the fact that the defendant was an expert making unfounded allegations did not of itself indicate malice, and as there was no other evidence of express malice the plaintiff could not succeed.

In England, there is now an authoritative statement as to the malice element in relation to the defence of qualified privilege. This is provided by the House of Lords in Horrocks v Lowe.205 Lord Diplock, with whom three of the law Lords concurred, stated as follows:

“So, the motive with which the defendant on a privileged occasion made a statement defamatory of the plaintiff becomes crucial. The protection might, however, be illusory if the onus lay on him to prove that he was actuated solely by a sense of the relevant duty or a desire to protect the relevant interest. So he is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved. 'Express malice' is a term of art descriptive of such a motive. Broadly speaking, it means malice in the popular sense of a desire to injure the person who is defamed and this is generally the motive which the plaintiff sets out to prove. But to destroy the privilege the desire to injure must be the dominant motive for the defamatory publication; knowledge that it will have that effect is not enough if the defendant


202

McDonald, Irish Law of Defamation, p 206, quoting from Butterill v Whytehead (1879) 41 LT 588, 590.

203

McDonald, Irish Law of Defamation p206.

204

[1936] Ir Jur Rep 4.

205

[1974] 1 All ER 662.



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is nevertheless acting in accordance with a sense of duty or in bona fide protection of his own legitimate interests.

The motive with which a person published defamatory matter can only be inferred from what he did or said or knew. If it be proved that he did not believe that what he published was true this is generally conclusive evidence of express malice, for no sense of duty or desire to protect his own legitimate interests can justify a man in telling deliberate and injurious falsehoods about another, save in the exceptional case where a person may be under a duty to pass on, without endorsing, defamatory reports made by some other person.

Apart from those exceptional cases, what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologically termed, 'honest belief'. If he publishes untrue defamatory matter, recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false.

But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men. In affording to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them. In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in lesser degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognize the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfections of the mental process by which the belief is arrived at it may still be 'honest' i.e. a positive belief that the conclusions they have reached are true. The law demands no more.

Even a positive belief in the truth of what is published on a privileged occasion – which is presumed unless the contrary is proved – may not be sufficient to negative express malice if it can be proved that the defendant misused the occasion for some purpose other than that for which the privilege is accorded by law. The commonest case is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill-will towards the person he defames. If this be proved, then even positive belief in the truth of what is

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published will not enable the defamer to avail himself of the protection of the privilege to which he would otherwise have been entitled. There may be instances of improper motives which destroy the privilege apart from personal spite. A defendant's dominant motive may have been to obtain some private advantage unconnected with the duty or the interest which constitutes the reason for the privilege. If so, he loses the benefit of the privilege despite his positive belief that what he said or wrote was true.

Judges and juries should, however, be very slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of the privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsity. The motives with which human beings act are mixed. They find it difficult to hate the sin but love the sinner. Qualified privilege would be illusory, and the public interest that it is meant to serve defeated, if the protection which it affords were lost merely because a person, although acting in compliance with a duty or in protection of a legitimate interest, disliked the person whom he defamed or was indignant at what he believed to be that person's conduct and welcomed the opportunity of exposing it. It is only where his desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motives for publishing what he believes to be true that 'express malice' can properly be found.”

The guiding principles in English law as regards malice may therefore be stated as follows:


(1)


In order to defeat a defence of qualified privilege, the onus is on the plaintiff to show that the defendant was actuated by an improper motive when making the publication.


(2)


The plaintiff must show that the improper motive was the defendant's dominant motive in making the publication.


(3)


As a general rule, improper motive will be established by showing that the defendant did not believe the matter to be true.


(4)


Exceptionally, it seems that the privilege will not be lost where the defendant did not believe the matter to be true, provided (a) he had a duty to pass on the report and (b) he did not endorse the report.


(5)


Improper motive will not be established by showing that the defendant arrived at a belief that the matter was true through impulsiveness, irrationality or carelessness.


(6)


Improper motive will be established by showing that the defendant was reckless or indifferent to the truth.



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(7)


A lack of honest belief in the truth of the matter is not the only type of improper motive. Speaking or writing out of spite or ill-will, or for personal gain, would establish improper motive. However, the court should be reluctant to find malice in such cases. A conclusion of malice should only be reached where it was found that the relevant duty or interest played no significant part in motivating the defendant to publish.

As these principles clarify the existing law on malice, it is likely that they would be persuasive in an Irish case.

Relevance

115.

Irrelevance and Qualified Privilege: If the defendant makes statements which are irrelevant to the occasion of privilege, the defence may be lost.

For example, in McKeogh v O'Brien Moran206 the plaintiff doctor wrote a report to a local Government Department complaining of the way a Mrs N, midwife, conducted her cases. The Department referred the matter to the county council and the report was published in the local press. The defendant solicitor wrote to the county council on behalf of Mrs. N, denying the contents of the report and adding: “She will be able to prove when the time comes that there was greater reason for complaint against Dr. McKeogh in his treatment of his patients than there was against her”. It was held that this statement was irrelevant to and unconnected with the purpose of the letter, which conferred privilege on the other sections of the letter. The irrelevant statement destroyed the defence of privilege.

It is not clear whether irrelevant matter is treated as falling outside the privilege or whether it should be seen merely as evidence from which malice may be inferred. In Horrocks v Lowe Lord Diplock took the view that irrelevant material should be taken as evidence of malice. Otherwise the court might be tempted to apply an objective standard of relevancy which would detract in a large measure from the protection afforded by the privilege:

“Logically it might be said that such irrelevant matter falls outside the privilege altogether. But if this were so it would involve the application by the court of an objective test of relevance to every part of the defamatory matter published on the privileged occasion; whereas, as everyone knows, ordinary human beings vary in their ability to distinguish that which is logically relevant from that which is not and few, apart from lawyers, have had any training which qualifies them to do so. So the protection afforded by the privilege would be illusory if it were lost in respect of any defamatory matter which on logical


206

[1957] IR 348.



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analysis could be shown to be irrelevant to the fulfilment of the duty or the protection of the right on which the privilege was founded. As Lord Dunedin pointed out in Adam v Ward207 the proper rule as respects irrelevant defamatory matter incorporated in a statement made on a privileged occasion is to treat it as one of the factors to be taken into consideration in deciding whether, in all the circumstances, an inference that the defendant was actuated by express malice can properly be drawn. As regards irrelevant matter the test is not whether it is logically relevant but whether, in all the circumstances, it can be inferred that the defendant either did not believe it to be true or, though believing it to be true, realised that it had nothing to do with the particular duty or interest on which the privilege was based, but nevertheless seized the opportunity to drag in irrelevant defamatory matter to vent his personal spite, or for some other improper motive. Here, too, judges and juries should be slow to draw this inference.”

Again, as the cases are English they are not binding on the Irish courts but it is to be expected that they would be of persuasive influence. Accordingly, it is helpful to set out the principles submitted by Duncan & Neill as representing the current English position:


(a)


Any matter which is in any way relevant to or connected with the subject matter which is protected by privilege will prima facie be covered by the privilege.


(b)


If the defendant includes matter which is only marginally relevant such inclusion may provide evidence of malice as showing that the defendant was using the privileged occasion for some improper purpose.


(c)


The court or jury should not apply any strict standard in determining relevance and should be slow to find malice merely because something has been included which logically is not relevant.


(d)


A defamatory statement which is wholly unconnected with the subject matter which is protected by privilege will not be covered. The inclusion of this 'foreign matter' may also provide evidence that the relevant material was published with malice.”208

According to this analysis irrelevance may defeat the defence in two ways. Firstly, if material is grossly irrelevant it may destroy the privilege by itself. Secondly, if material is irrelevant, it may provide evidence of malice which destroys the defence.


207

(1877) 3 QBD 237.

208

Duncan & Neill, Defamation, para 17.09, p 125.



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SECTION 21 AND UNINTENTIONAL DEFAMATION

116.

At common law, the intent of the defamer is not relevant to (a) the determination of the defamatory effect of the statement, and (b) the issue of identification.209 Section 21 of the Defamation Act 1961 was introduced as an attempt to allow the defendant to establish a defence where (a) the defamatory effect of the statement was unanticipated, or (b) the defendant was unaware that the plaintiff would be identified from the statement.

Central to the defence is the element of fault. The section may only be availed of if the defendant exercised reasonable care prior to the publication. The crucial step in the procedure of the section is the offer of amends. Provided the defendant makes an offer of amends and complies with all the terms of the section, no proceedings may subsequently be taken against him.

Section 21 reads as follows:


(1)


A person who has published words alleged to be defamatory of another person may, if he claims that the words were published by him innocently in relation to that other person, make an offer of amends under this section, and in any such case –


(a)


if the offer is accepted by the party aggrieved and is duly performed, no proceedings for libel or slander shall be taken or continued by that party against the person making the offer in respect of the publication in question (but without prejudice to any cause of action against any other person jointly responsible for that publication);


(b)


if the offer is not accepted by the party aggrieved, then, except as otherwise provided by this section, it shall be a defence, in any proceedings by him for libel or slander against the person making the offer in respect of the publication in question, to prove that the words complained of were published by the defendant innocently in relation to the plaintiff and that the offer was made as soon as practicable after the defendant received notice that they were or might be defamatory of the plaintiff, and has not been withdrawn.


(2)


An offer of amends under this section must be expressed to be made for the purposes of this section, and must be accompanied by an affidavit specifying the facts relied on by the person making it to show that the words in question were published by him innocently in relation to the party aggrieved;


209

See para 26 above; Hulton v Jones, [1910] AC 20; Newstead v London Express Newspapers, [1940] 1 KB 371; Cassidy v Daily Mirror Newspapers Ltd, [1929] 2 KB 331.



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and for the purposes of a defence under paragraph (b) of subsection (1) of this section no evidence, other than evidence of facts specified in the affidavit, shall be admissible on behalf of that person to prove that the words were so published.


(3)


An offer of amends under this section shall be understood to mean an offer –


(a)


in any case, to publish or join in the publication of a suitable correction of the words complained of, and a sufficient apology to the parties aggrieved in respect of those words;


(b)


where copies of a document or record containing the said words have been distributed by or with the knowledge of the person making the offer, to take such steps which are reasonably practicable on his part for notifying persons to whom copies have been so distributed that the words are alleged to be defamatory of the party aggrieved.


(4)


Where an offer of amends under the section is accepted by the person aggrieved:


(a)


any question as to the steps taken in fulfilment of the offer as so accepted shall, in default of agreement between the parties, be referred to and determined by the High Court or, if proceedings in respect of the publication in question have been taken in the Circuit Court, by the Circuit Court, and the decisions of such Court thereon shall be final;


(b)


the power of the court to make orders as to costs in proceedings by the party aggrieved against the person making the offer in respect of the publication in question, or in proceedings in respect of the offer under paragraph (a) of this sub-section, shall include power to order the payment by the person making the offer to the party aggrieved of costs on an indemnity basis and any expenses reasonably incurred or to be incurred by that party in consequence of the publication in question;

and if no such proceedings as aforesaid are taken, the High Court may, upon application by the party aggrieved, make any such order for the payment of such costs and expenses as aforesaid as could be made in such proceedings.



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(5)


For the purposes of this section words shall be treated as published by one person (in this subsection referred to as the publisher) innocently in relation to any other person if, and only if, the following conditions are satisfied, that is to say:


(a)


that the publisher did not intend to publish them of and concerning that other person, and did not know of circumstances by virtue of which they might be understood to refer to him; or


(b)


that the words were not defamatory on the face of them, and the publisher did not know of circumstances by virtue of which they might be understood to be defamatory of that other person,

and in either case that the publisher exercised all reasonable care in relation to the publication; and any reference in this subsection to the publisher shall be construed as including a reference to any servant or agent of the publisher who was concerned with the contents of the publication.


(6)


Paragraph (b) of subsection (1) of this section shall not apply where the party aggrieved proves that he has suffered special damage.


(7)


Paragraph (b) of subsection (1) of this section shall not apply in relation to the publication by any person of words of which he is not the author unless he proves that the words were written by the author without malice.”

The section has been criticised by McDonald as ineffective for three main reasons:


(1)


The difficulty and expense of preparing the affidavit on time,210


(2)


The prohibition on the use of facts, other than those stated in the affidavit, in a subsequent action,


(3)


The necessity of proving that the author acted without malice, where the publisher is not the author.211

RTE complain that the definition of innocent defamation is too narrow and unduly restricts the type of mistakes that may gain protection.


210

Part of an RTE submission to this Commission.

211

McDonald MD, Irish Law of Defamation, p 231.



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The Boyle-McGonagle Report212 additionally criticises the following aspects of the section –


(1)


If the section is effective, it should not be limited to victims of unintentional defamation.


(2)


Alternatively, the section is not effective enough, because the requirement of “reasonable care” limits its use excessively.


(3)


The section is unavailable where the party shows special damage,213 a distinction which appears arbitrary.

Perhaps the strongest criticism of the section is the statistic offered by the Boyle-McGonagle Report. In the period 1980–85, the High Court records show that the national newspapers did not once avail of the section.214


212

Report on Press Freedom and Libel, para 5.5 – 5.9.

213

Under S 21(b). Defamation Act 1961.

214

Remembering that national newspapers represent 55% of defendants in High Court libel actions.



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CHAPTER 3: REMEDIES

Three remedies exist in Ireland at present for the plaintiff in a defamation action. The principal remedy consists of damages. The second type of remedy is the injunction, which may be an injunction awarded after verdict for the plaintiff (in addition to or instead of damages), or an interlocutory injunction awarded prior to the hearing in order to prevent publication pending the hearing. The final remedy is the declaratory judgment, which is not, however, availed of in practice.

DAMAGES

117.

Damages may be of four different types. Compensatory damages are awarded for injury to reputation and hurt feelings.1 Nominal damages are awarded where the plaintiff has a proper case and wishes only to vindicate his character . Contemptuous damages are awarded as a mark of disapproval by the jury of the plaintiff having brought the action, although he has nonetheless established some damage to his reputation. Punitive damages are awarded in order to punish the defendant.

COMPENSATORY DAMAGES

118.

Compensatory damages are of two types, general and special. General damages are the sum awarded in respect of the loss of reputation which the law presumes to follow from the publication of all libels and of slanders


1

“In a case such as this in which there is no question of punitive, exemplary or aggravated damages, it is the duty of the judge to direct the jury that the damages must be confined to such sum of money as will fairly and reasonably compensate the plaintiff for his injured feelings and for, any diminution in his standing among right thinking people as a result of the words complained of ...” per Henchy J, Barrett case [1986] ILRM 601.



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actionable per se. Evidence of such loss is not necessary, but the plaintiff may produce it if he wishes.2 Special damages consist of the sum awarded in respect of the special damage which must be proved in cases of slanders actionable only on proof of special damage.

119.

A judge sitting alone determines the amount of damages. Where there is a jury, the jury sets the sum to be awarded. Damages are said to be “at large” i.e. the award is not limited to pecuniary loss that can be proved.

120.

Assessment of General Damages: The jury award of damages is discretionary. As Palles CB stated in Harris v Arnott:

“[C]ases are of little or no value in reference to the question of amount, as distinguished from that of principle. Each case must depend emphatically upon its own peculiar circumstances ...”3

Nonetheless the courts have considered certain factors to be relevant in considering the extent of damage.

In Barrett v Independent Newspapers, Henchy J listed as relevant considerations in the assessment of damages: “the nature of the libel, the standing of the plaintiff, the extent of the publication, the conduct of the defendant at all stages of the case”.4 Griffin J listed similar factors and added, “any social disadvantage which may result or be thought likely to result from the wrong which has been done to the plaintiff, and the injury to his feelings”.5 Notably a factor held not to be relevant is the fact that a plaintiff agrees to donate all damages to a named charity.

In Uren v John Fairfax, Windeyer J explained the variety of factors that may be taken into account in assessing compensatory damages as follows:

“It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation for damages operates in two ways – as a vindication of the plaintiff to the public and as a consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money. The variety of matters which, it has been held, may be considered in assessing damages for defamation must in many cases mean that the amount of a verdict is a product of inextricable considerations. One


2

In Campbell v Irish Press, (1955) ILTR 105, the Supreme Court found erroneous a direction of the trial judge that gave the impression that special damage was required to be shown in a libel action.

3

(1890) 26 LR Ir 55, 67–68.

4

[1986]I LRM 601, 608.

5

Ibid, at p614.



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of these is the conduct of and the intentions of the defendant, in particular whether he was actuated by express malice. Yet in the abstract the harm that a plaintiff suffers cannot be measured by, nor does it necessarily depend at all upon, the motive from which the defendant acted or upon his knowledge or intentions. These, however, have always been regarded as important in assessing damages.”6

Despite the wide variety of relevant factors emerging from these quotations, it is clear that these judges envisaged injury to reputation as the primary wrong to be redressed, while hurt feelings would be a side issue. RTE, however, complain that in practice counsel are allowed by trial judges to base their line of presentation on the emotional distress inflicted on the plaintiff, which is not the core of the tort, in theory at least.7 They ask the Commission to address this problem.

RTE's criticism is supported by the decision in an English case, Fielding v Variety Incorporated8 where the injury to reputation was negligible but the court held that the plaintiff was entitled to compensation for feelings of “anxiety and annoyance”.9 The plaintiff was a theatre impresario and the defendants published in their journal an article which falsely stated that his latest London production was a flop. The court considered that the fact of the play's success would speak for itself and if American producers read the article they would know its falsity, and therefore no material injury to reputation had been caused. If compensation for injured feelings may be awarded not merely in addition to, but instead of, injury to reputation, this raises questions as to the direction which defamation actions are taking. It may be that it is desirable to allow recovery for such injury. However, it is unfair to impose rules relating to reputational injury upon defendants and expect them to defend an action, the gist of which is something quite different.

121.

Assessment of Special Damages: Special damages are awarded to the plaintiff for quantifiable loss suffered as a natural result of the publication on the basis of principles of causation and remoteness applicable to any other tort.10“The special damage must be the natural and reasonable result of the defendant's words”.11


6

(1966) 117 CLR at p150.

7

Part of an RTE submission to this Commission.

8

[1967] 2 QB 841.

9

Ibid, per Salmon LJ at 856.

10

Halsbury's Laws of England, vol. 28, para. 18.

11

Gatley, Libel and Slander, 8ed, p97 para. 209. For example in Lynch v Knight (1861) 9 HLC 577, the loss of consortium by a wife after a slander imputing that she had been seduced was held to be damage too remote to be actionable; the husband's reaction was not the reasonable consequence of the words uttered.



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Although the tort of defamation serves to protect reputation, injury to reputation is the one thing that does not constitute special damage.12 The principal types of special damage are pecuniary or material loss, such as loss of a contract, or employment, or membership of a club, or a spouse. The question of remoteness of damage arises in this area because the pecuniary loss depends to a large extent on the act of a third party, and it may be raised in argument that the third party's act is an intervening act which relieves the defendant from liability.

Where the damage is directly attributable to the independent act of a third party, the defendant will not be liable unless (a) he intended that as a consequence of his publications a third party would act as he did, or (b) it was a natural and probable consequence of his words that the third party would act as he did.

In the case of Vicars v Wilcocks,13 it was held that damage was too remote where B was wrongfully dismissed by C after A slandered B. Now, however, it seems that such damage would not necessarily be too remote:

“It is submitted that the true test of liability for damage occasioned by the act of a third party is not whether the act was legal or illegal, but whether the act, legal or illegal, was the natural and probable result of the defendant's words.14

“In other words, if A does an unlawful act to B, the chain of causation may possibly be severed by the unlawful act of C, but it does not follow that it must necessarily be severed thereby.”15

Further authority for the view that Vicars v Wilcocks no longer represents the law is found in McGregor on Damages.16 That author argues that the decision in Vicars case was based on a previous decision, Morriss v Longdale17 where Lord Eldon LC expressed the view that if a third party refused to complete his contract with the plaintiff, the plaintiff could not sue the slanderer because the plaintiff could sue the third party instead.

However, this line of reasoning was discredited in relation to another tort in the later case of Lumley v Gye.18

Where the termination of contract was lawful, the courts have been more willing to allow recovery to the plaintiff from the slanderer.19


12

See McGregor on Damages, 15ed, para. 1639–1641.

13

(1806) 8 East 1.

14

Gatley, Libel and Slander, 8ed, p98, para. 211.

15

Winfield and Jolovicz on Tort, 12ed, p299.

16

See paras 1648–9.

17

(1800) 2 B and P 284.

18

(1853) 2 E and B 216.

19

Longdon-Griffiths v Smith [1950] 2 All ER 662.



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Where A slanders B to C, and C repeats it to D, who then refuses to deal with B, this was held in Ward v Weeks20 to be damage too remote for B to recover from A. The spontaneous and unauthorised communication by C to D was not considered the necessary consequence of A's original statement to C. The decision has been criticised on the grounds that, taking account of human nature, the repetition of the slander to someone who is in a position to injure the victim is a foreseeable event. However, liability for repetition was held to exist in four types of case in Speight v Gosnay:21


(1)


if the slanderer authorised the repetition,


(2)


if the repetition was the natural consequence,


(3)


if the slanderer intended the repetition,


(4)


if there was a moral duty to repeat on the part of the person to whom it was uttered.

Although the general principles of remoteness apply, there appears to be one peculiarity in relation to defamation. In the case of slanders not actionable per se, illness arising from mental worry is too remote, whereas in relation to slanders actionable per se, libel and other torts, such injury is actionable, provided the damage amounts to nervous shock.

122.

Reputation and Damages: The law presumes a man to have a good reputation and it is not necessary for the plaintiff to adduce evidence of his good reputation. However, for a number of reasons it may be advisable for a plaintiff to do so. First, the standing of the plaintiff in the community will affect the measure of damages. Secondly, the plaintiff may have been cross-examined as to credibility and evidence of his good reputation will serve to counteract any bad impression left by such cross-examination. Thirdly, the defendant may intend to produce evidence of bad reputation in relation to the imputation in question in order to mitigate damages.22

123.

An appeal lies against a jury award of damages where there is no proper proportion between what was actually awarded and what could reasonably have been awarded. However, an appellate court will be very reluctant to overturn a jury verdict. The appellate court does not merely substitute its own view of what should have been awarded, but rather looks to see whether there was any basis for the sum awarded.

This reluctance to interfere with jury verdicts on damages is illustrated by the following examples of judicial statement:


20

(1830) 7 Bing. 211.

21

(1890) 60 LJQB 231.

22

See paras 128–129 below.



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“We are cautious in meddling with verdicts of juries on matters of fact, or on the ground of excessive damages ...”23

“I am not called on to say what sum, if I had been in he place of the jury, I should have given. In this class of action damages are peculiarly for the jury, and the Court cannot interfere with them unless it can come to the conclusion that the damages are unreasonably large.”24

“... [W]hile the assessment by a jury of damages for defamation is not sacrosanct, in the sense that it can never be disturbed upon appeal, it certainly has a very unusual and emphatic sanctity in that the decisions clearly establish that appellate courts have been extremely slow to interfere with such assessments, either on the basis of excess or inadequacy”.25

124.

Where the Supreme Court is of the opinion that the jury's award of damages was unreasonable, it appears that it can substitute its own figure without ordering a re-trial.

This was affirmed by a majority of the Supreme Court in the recent case of Holohan v Donohue26 in 1986. The specific question raised on appeal to the Supreme Court was whether it had jurisdiction under Article 34.4.3° of the Constitution to substitute its own figure for the jury award in the High court in a civil case, or whether a restriction was imposed on its appellate jurisdiction in this context by s96 of the Courts of Justice Act 1924.

Article 34.4.3° provides that the Supreme Court shall have appellate jurisdiction from “all decisions of the High Court”, subject to such exceptions and regulations as may be prescribed by law. S 94 of the Courts of Justice Act 1924 provides that nothing in the 1924 Act “shall take away or prejudice the right of any party to an action in the High Court ... to have questions of fact tried by a jury in such cases as he might heretofore of right have so required in the Supreme court of Judicature in Ireland”, subject to certain exceptions of which the Holohan case was not one. S 96 of the 1924 Act provides that every appeal from a judgment in the High Court in an action tried by judge and jury shall be made by way of motion to the Supreme Court for a new trial and that, in any appeal to which the section applies, “the appellate tribunal may, in lieu of ordering a new trial, set aside the verdict, findings and judgment appealed against and enter such judgment as the court considers proper”.

The plaintiff in the Holohan case had been awarded over £94,000 for personal injuries and loss caused by the negligence of the defendant in a road traffic


23

Per Whiteside CJ, Cosgrave v Trade Auxilary (1874) IR 8 CL 349, 358.

24

Per Johnson J, Bolton v O'Brien (1885) 16 LR Ir 97, 131.

25

Per Finlay CJ, Barret v Independent Newspapers, [1986] ILRM 601.

26

[1986] ILRM 250.



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accident. The defendant appealed the award of general damages, which consisted of £30,000 for pain and suffering to date, and £55,000 for future pain and suffering. All the members of the Supreme Court agreed that this award of general damages was excessive. A majority of the Supreme Court (Finlay CJ, Hederman, Henchy and Griffin JJ) held that the Court had jurisdiction to substitute its own figure of damages. McCarthy J, dissenting, was of the view that it had jurisdiction only to order a re-trial.

Finlay CJ, with whom Hederman J concurred, rejected the first submission of the respondent, that the reference in s96 of the right of the appellate tribunal to set aside the “verdict, findings and judgment” appealed against, as opposed to the power of the appellate court to enter a “judgment”, meant that where a re-trial was not ordered, the only alternative was a reversal of the entire judgment of the High Court. The Chief Justice also rejected the submission of the respondent to the effect that to exercise a power of substitution would be, in effect, to deprive him of the right to have questions of fact involved in the assessment of damages tried by a jury. While s94 dealt with the right of trial in the High Court, it did not purport to deal with the right of appeal to the Supreme Court. He noted that his chief difference of opinion from McCarthy J was that he was not of the view that the measurement or assessment of damages was a finding of fact.

Henchy J reached the same conclusion. He noted the only Supreme Court decision dealing with the power to assess damages as an alternative to ordering a re-trial was Gahan v Engineering Products Ltd.27 In that case a jury award of damages was held to be so excessive as to require the court's intervention and re-assessment. In the Gahan case, O'Dalaigh CJ stated:

“At the conclusion of the argument, enquiry was made of counsel as to whether, in the event of the damages being considered excessive, the parties were agreeable to this Court re-assessing the damages in lieu of ordering a re-trial. Agreement has not been forthcoming. The parties were reminded that, independent of the agreement between the parties, the court has jurisdiction to exercise that function. The jurisdiction is expressly conferred by s96 of the Courts of Justice Act 1924.”

The Supreme Court proceeded to assess damages itself and the question of the jurisdiction itself was not argued before it. For over fifteen years, the Court acted on that ruling, and the jurisdiction to do so was not challenged until the Holohan case.

Henchy J said that although the conclusion in the Gahan case was correct, it was based on an incorrect assumption:


27

[1971] IR 30.



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“It would appear that the decision of this Court in Gahan v Engineering Products Ltd rested on the assumption that the jurisdiction of this Court to assess damages, rather than order that they be re-assessed by a jury in the High Court, derived from s96 of the 1924 Act. Such an assumption was not properly founded and was probably due to the fact that the point being decided by the court was not argued before it. The true position is that the court's jurisdiction to make such an order has a constitutional and not a statutory basis. As was stated by Walsh J in The People v Conmey, [1975] IR 341 the appellate jurisdiction of this court from decisions of the High Court flows directly from the Constitution.”28

The question then became whether s96 of the 1924 Act constituted a restriction on this constitutionally granted appellate jurisdiction. Henchy J answered as follows:

“In my opinion, s96 could not, by any stretch of interpretation, be said to be so clear and unambiguous in its scope as to deprive this Court of jurisdiction to make such order as it deems necessary for the purpose of doing justice in the disposition of the appeal, and in particular, to assess damages rather than order a new trial on the issue of damages”.

McCarthy J was of the opinion that the Supreme Court has jurisdiction only to order a re-trial on the issue of damages. He observed that the majority holding would logically extend to all other civil cases involving a jury, including defamation actions. Thus, although a re-trial would always be an alternative, in an appropriate case, the Supreme Court would have the power to substitute damages in defamation actions, although such assessment was normally stated to be “peculiarly the province of the jury”. The majority judgments do not refer to defamation actions. However, as the power was found to have a constitutional basis, it is unlikely that defamation actions would be treated any differently, in the absence of specific legislation. McCarthy J was clearly of the opinion that the majority result affected defamation actions.

The present Irish position following the Holohan case is that the Supreme Court may substitute its own award of damages in a case on appeal from a High Court civil action involving a jury. However, the power to order a re-trial is always an alternative. The decision as to which course to adopt depends on the circumstances of the case and not on the wishes of the parties, although their wishes would be “an important factor”.29 The Chief Justice stated that if the respondent expressed a strong desire to have a new trial, the appellant would have to advance “very compelling and strong reasons” as to why the court should not do that. Furthermore, if the transcript of the trial did not contain a “sufficiently clear and concrete set of facts” which would


28

[1986] IR 250, 259–60.

29

Ibid, at 254, per Finlay CJ, see also Henchy J at 261.



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allow the Supreme Court to assess damages, it should order a re-trial. However, a substitution of damages was made in the Holohan case because there was no conflict of medical evidence and there was no reason why the Court could not make its own assessment. The defendant was anxious to have the case disposed of as it was eight years since the accident had occurred. These factors combined to make it an appropriate case for the exercise of this aspect of the Court's appellate jurisdiction.

AGGRAVATION OF DAMAGES

125.

A plaintiff may obtain aggravated compensatory damages. They are not a separate award but are still within the “compensatory damages” award. They are awarded as a response to particularly offensive conduct by the defendant. In theory they are distinct from punitive damages. However the case law has not always upheld this distinction.

One type of conduct which will justify a jury award of aggravated damages is where the defendant persists in a plea of justification which fails,30 or where he unsuccessfully insists on the truth of the supporting facts in a defence of fair comment.31

Other examples of aggravating circumstances include the lack of a full and proper apology,32 although a lack of apology is not automatically an aggravating factor; the publication of felonious charges at the time of the withdrawal of the defamatory statement;33 and the extent of circulation.34 The aggravating conduct of the defendant may be peculiar to the individual case.

In Higgins v Monaghan & O'Reilly,35 the libel consisted of a false charge of personation at an election, followed by an arrest at the instance of the personation agent. The plaintiff was detained in a voting-booth for about an hour and then marched publicly to barracks where she was held for a further two hours before being charged. The plaintiff was heavily pregnant at the time and alleged that as a result of this ordeal she gave birth to a still-born child. These factors were presumably the basis for the aggravated damages awarded by the court.

Malice will also inflate damages. According to McGregor, this is merely part of a principle that the whole conduct of the defendant at all times may be


30

Bell v Parke (1860) 11 ICLR 413, 423; Gallagher v Tuohy (1924) 58 ILTR 134, 135; Associated Leisure Ltd v Associated Newspapers Ltd, [1970] 3 WLR 101, 105; Cassell v Broome [1972] AC 1027, 1125. See para 68 above.

31

Campbell v Irish Press (1955) ILTR 105 24 per Kingsmill-Moore J. See para 84 above.

32

Harriss v Arnott (1889) 26 LR Ir 55. Halsbury is of the view that an apology is a mitigating factor only in certain circumstances – see Halsbury's Laws of England, vol 28 para 240.

33

Bolton v O'Brien (1885) 16 LR Ir 97, 112.

34

See Halsbury's Laws of England, vol 28, para 237.

35

(1940) 74 ILTR 56.



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examined. “The practical effect is that damages will fluctuate up or down with the degree of culpability of the defendants behaviour”.36 Indeed, McGregor includes persistence in a plea of justification, and a lack of apology as instances of malice on the part of the defendant.

Damages may also be aggravated where the defendant unsuccessfully attempts to mitigate damages by adducing evidence of the plaintiff's bad reputation.37

Mitigation of Damages

126.

The defendant may lead evidence in mitigation of damages as follows:


(a)


Evidence that the plaintiff had a general bad reputation prior to the publication of the defamation.


(b)


Under s26 of the Defamation Act, evidence that the plaintiff has recovered damages, or has brought actions for damages, for libel or slander in respect of the publication of words to the same effect as the words on which the action is founded, or has received or agreed to receive compensation in respect of any such publication.


(c)


Under s17 of the Defamation Act, evidence that the defendant made or offered an apology to the plaintiff before the commencement of the action or as soon afterwards as he had an opportunity of doing so, in case the action was commenced before there was an opportunity for making or offering such apology.


(d)


Evidence of retractions or corrections by the defendant, or the offer of a right of reply.


(e)


Evidence of the conduct of the plaintiff.38


(f)


Evidence of the circulation of the libel.


(g)


Repetition and disclosure of source.

127.

Order 36, R 36 RSC (1986) provides the following requirements of notice in relation to mitigation of damages:

“In actions for libel and slander, in which the defendant does not by his defence assert the truth of the statement complained of, the defendant shall not be entitled on the trial to give evidence in chief,


36

McGregor on Damages, 15ed, para 1665.

37

Kennedy v Hearne [1988] ILRM 531.

38

[1986] ILRM 601, e.g. Barrett v Independent Newspapers where the plaintiff wrote a moderate letter to the defendant concerning the defamation and failed to request even an apology.



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with a view to mitigation of damages, as to the circumstances under which the libel or slander was published, or as to the character of the plaintiff, without the leave of the judge, unless seven days at least before trial he furnished particulars to the plaintiff of the matters as to which he intends giving evidence.”

Notably, the notice requirement may be dispensed with by the judge. Furthermore the rule is of no application where the defence of justification is raised.

128.

Evidence of the plaintiff's bad reputation may serve to mitigate damages.

“First, is it to be permissible to call evidence of character at all by way of mitigation? There is much to be said against allowing it, because, if it is allowed, there comes in all the difficulties of limitation and possible unfairness of which we have been made conscious in the arguments in this case. On the other hand, there is, I think the preponderating consideration in favour of this head of evidence that it would be outrageous that a person should recover damages for injury to a character that he is generally known not to possess, or, to put it another way, to a reputation that is not his.”39

129.

There are three types of evidence by which reputation can be proved;


(1)


evidence of general reputation in relation to the imputation in question,


(2)


evidence of specific acts of misconduct by the plaintiff,


(3)


evidence of rumours of misconduct.

In England, evidence of the first type only is admissible. In Ireland, in at least one case, evidence of the second type was admitted.

The leading authority for the English position is Scott v Sampson.40 It is worth setting out a portion of the judgment of Cave J in this case at length, as it represents the English position in this area:

“From this review of the authorities it will be seen that there is a considerable conflict of opinion, but before discussing them further it seems desirable to consider the principles underlying them. Speaking


39

Per Lord Radcliffe, Plato Films v Speidel [1961] AC 1090 at p1128. See also the remarks of Pigot CB in Bell v Parke (1860) 11 ICLR 413, at p425 where he contrasts the case of an individual about whom a general suspicion of his having committed a murder exists, and an individual who is a person of “unblemished fame, upon whose character the breath of slander has never been blown”.

40

(1882) 8 QBD 491.



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generally the law recognises in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit; and if such false statements are made without lawful excuse, and damage results to the person of whom they are made, he has a right of action. The damage, however, which he has sustained must depend almost entirely on the estimation in which he was previously held. He complains of an injury to his reputation and seeks to recover damages for that injury; and it seems most material that the jury who have to award these damages should know if the fact is so that he is a man of no reputation.”

He proceeded to quote from Starkie on Evidence:

“To deny this would be to decide that a man of the worst character is entitled to the same measure of damages with one of unsullied and unblemished reputation. A reputed thief would be placed on the same footing with the most honourable merchant, a virtuous woman with the most abandoned prostitute. To enable the jury to estimate the probable quantum of injuries sustained a knowledge of the party's previous character is not only material but seems to be absolutely essential.”

With regard to the first category of evidence he said:

“On principle, therefore, it would seem that general evidence of reputation should be admitted, and on turning to the authorities previously cited it will be found that it has been admitted in a great majority of cases ...”

With regard to the second category of evidence he said:

“As to ... evidence of facts and circumstances tending to show the disposition of the plaintiff, both principle and authorities seem equally against its admission. At the most it tends to prove not that the plaintiff has not, but that he ought not to have, a good reputation, and to admit evidence of this kind is in effect as was said in Jones v Stephen, 11 Price 235, to throw upon the plaintiff the difficulty of showing a uniform propriety of conduct during his whole life. It would give rise to interminable issues which would have but a very remote bearing on the question in dispute, which is to what extent the reputation which he actually possesses has been damaged by the defamatory matter complained of.”

On the third category of evidence he said –

“As to ... evidence of rumours and suspicions to the same effect as the defamatory matter complained of, it would seem that on principle such evidence is not admissible as only indirectly tending to affect the plaintiff's reputation. If these rumours and suspicions have, in fact,

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affected the plaintiff's reputation, that may be proved by general evidence of reputation. If they have not affected it they are not relevant to the issue. To admit evidence of rumours and suspicions is to give anyone who knows nothing whatever of the plaintiff, or who may even have a grudge against him, an opportunity of spreading through the means of the publicity attending judicial proceedings what he may have picked from the most disreputable sources, and what no man of sense, who knows the plaintiff's character, would for a moment believe in. Unlike evidence of general reputation, it is particularly difficult for the plaintiff to meet and rebut such evidence; for all that those who know him best can say is that they have not heard anything of these rumours. Moreover, it may be that it is the defendant himself who has started them.”

This was accepted as an accurate statement of the law in Hobbs v Tinling,41 and in Plato Films v Speidel42 the House of Lords refused to review the decision in Scott v Sampson. Viscount Simonds admitted the difficulty of drawing the boundaries between the types of evidence in certain cases:

“It is, no doubt, true that in practice it may be difficult to define exactly either the border line between evidence of general bad reputation and that of specific conduct which has lead to it or the area of conduct which the general bad reputation is to cover. That is only to say that a libel action is an imperfect instrument for doing justice in every case. There may, in the result, be cases in which a rogue survives both evidence of bad reputation and, where he has gone into the witness box, a severe cross-examination, nominally directed to credit, and recovers more damages than he should. But I would rather have it so than that the law should permit the injustice, and, indeed, the cruelty of an attack upon the plaintiff for offences real or imaginary which, if they ever were committed, may have been known to few and by then have been forgotten. It says nothing more of the inconvenience of having one or more trials within the original trial. The main issue has been determined when the defendant has failed in his plea as justification. How many other trials of the offences pleaded in mitigation are to be admitted?”43

A predominant consideration in limiting evidence of reputation is to prevent the trial becoming unduly lengthy and complicated:

“If in a quest to discover or to assess the true character and disposition of a plaintiff a defendant could assert and seek to prove certain deeds which were discreditable to the plaintiff, the latter could hardly be denied the right to counterbalance them by asserting and seeking to


41

[1929] 2 KB 1, see in particular Scrutton LJ at p17–18.

42

[1961] AC 1090.

43

Ibid, at 1124–5.



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prove deeds which rebounded to his credit. The limits of roving enquiry would be hard to control. There would be trials within a trial.”44

It may be noted that the holding in the Plato case was not unanimously supported. Lord Radcliffe dissented vigorously:

“These considerations lead me to the opinion that it would be wrong to hold that general evidence of reputation, which must mean reputation in that sector of a plaintiff's life that is relevant to the libel complained of, cannot include evidence citing particular incidents, if they are of sufficient notoriety to be likely to contribute to his current reputation. Such incidents are, after all, the basic material upon which the reputation rests, and I cannot see the advantage to anyone of excluding the better form of evidence in favour of the worse. It remains true that the issue is not whether the incidents actually happened but whether it is common report that they did. If it is, that seems to me to be the best available evidence of the plaintiff's reputation. I find it difficult to combine an aversion from rumour with an indulgence for general evidence of reputation which, unvouched, is virtually the same thing.”45

Resistance to the decision in Plato was also evidenced in Goody v Odhams Press.46 The defendants sought to introduce evidence tending to show bad reputation of two types: (a) evidence of a general bad reputation as a thief and robber given to violence, and (b) evidence of previous convictions for such offences. The first type of evidence was clearly admissible as coming within the first category. However, a strict reading of the second category might have equated previous convictions with specific acts of misconduct. But, Lord Denning MR held that evidence of previous convictions was essentially different from “previous instances of misconduct” because the latter “had not been tried out or resulted in convictions or come before a court of law”. Salmon LJ distinguished the Plato case on the grounds that the latter case excluded evidence of facts “tending to prove that the plaintiff ought not to have a good reputation”, whereas in the case before him the evidence was that the plaintiff in fact had a bad reputation. The rule that evidence of specific acts of misconduct are inadmissible to mitigate damages therefore admits of an exception. Where the specific acts of misconduct have resulted in convictions, they may properly be admitted in evidence to mitigate damages.

A further inroad into the “specific acts” rule appears to have been made in the recent English case of Pamplin v Express Newspapers Ltd (No 2).47 There the plaintiff had devised a scheme for avoiding the payment of parking fines


44

Ibid, at p1144, per Lord Harriss.

45

Ibid at p111.

46

[1967] 1 QB 333.

47

[1988] 1 All ER 282.



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and television licence fees by registering his car and television set in the name of his son, who was too young to be prosecuted for a criminal offence. A national newspaper commenting on this scheme described the plaintiff as a “slippery, unscrupulous spiv”. In an action in defamation brought by the plaintiff, the defendants pleaded fair comment and justification. At trial, the plaintiff admitted some of his behaviour could be described as “slippery” and “unscrupulous”, and this was treated as admitted partial justification. The judge directed the jury that even if the defendant's plea of justification was unsuccessful the jury could take into account the acts of misconduct in relation to mitigation of damages, where the specific acts of misconduct are relied on in support of the plea of justification. The jury awarded the plaintiff a sum of one halfpenny, and the judge ordered him to pay costs. The plaintiff appealed contending, inter alia, that the judge had misdirected the jury on the matters that could properly be taken into account in mitigation of damages. The Court of Appeal dismissed the appeal, holding that although a defendant when adducing evidence of bad reputation was not allowed to introduce specific acts of misconduct, the defendant was entitled to rely in mitigation of damages on any evidence properly before the jury, including evidence of specific acts of misconduct or other evidence adduced in support of an unsuccessful plea of justification.

Following this decision, the English rule may be re-stated as follows: The defendant may not adduce evidence in mitigation of damages of specific acts of misconduct on the part of the plaintiff, excepting previous convictions of the plaintiff; but the jury may consider evidence of specific acts of misconduct in mitigation of damages if this evidence was already before the court on some other issue.

Scott v Sampson was accepted as settled law in the Irish case of Kavanagh v The Leader in 1955.48 However, McDonald observes that in the older Irish case of Bolton v O'Brien49 specific instances of conduct related to the libel were admitted not only in relation to cross-examination as to credit but also with a view to reducing damages.50 No modern Irish case appears to deal specifically with this point and it is accordingly unclear to what extent the rule in Scott v Sampson, and its exceptions, apply in Ireland.

130.

The circulation of the libel may mitigate damages.

This is supported by Gathercole v Miall51 where it was stated:

“[In] order to show the extent of the mischief that may have been done to the plaintiff by a libel in a newspaper, you have a right to give evidence of any place where any copy of that libel has appeared, for


48

Unreported, Supreme Court, 4 March 1955.

49

(1885) 16 LR Ir 97.

50

McDonald, Irish Law of Defamation, p249.

51

(1846) 15 M and W 319, 153 ER 872.



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the purpose of showing the extent of the circulation.”

In the straightforward case, the circulation of the libel will match the circulation of the publication. However, in some cases, paradoxically, the circulation of the libel may be small although the circulation of the newspaper is large. This may occur where, for example, no direct reference is made to the plaintiff, but defamatory matter is understood to refer to him by a small number of people who know of certain circumstances.

In Morgan v Odhams Press Ltd52 a House of Lords decision, a new trial was ordered on the ground that damages were inordinately large and that the jury had not been warned that the article complained of would be understood as referring to the plaintiff only by a small circle of friends and neighbours. Lord Reid stated:

“Although 'The Sun' has a very large circulation only a very few of its readers could have read this article as referring to the appellant – only those who knew the special facts proved in evidence. It was for the jury to decide how many that might be. No doubt there would be a few more than the six who gave evidence. But the jury ought to have been warned that it was only publication to these few that could have in any way damaged the appellant's reputation and that they should bear that in mind when assessing damages. Failure to give that warning may well have caused the jury to assess damages on too wide a basis.”53

Lord Guest said:

“This was not an ordinary libel by a newspaper where the plaintiff was named in the article and where publication would consequently be to all the readers of the newspaper. The appellant could only be identified by those persons who knew the special facts which enabled them to identify him with the article. There was, therefore, a very limited publication including, and not far beyond, if at all, the witnesses who gave evidence of identification. The jury were not told in the summing up that the damages must accordingly be limited by reasons of those considerations. This was, in my view, a serious misdirection.”54

This principle would presumably also apply in a case where the words are innocent on their face but have a defamatory effect because of special circumstances known only to some of the recipients of the statement. For example, if a newspaper article stated that Mrs X had a child in 1942, but it was known to some readers that Mrs X was unmarried until 1946, the circulation of the libel would not be the extent of the newspaper's circulation, but rather measured according to an approximation of the number of people


52

[1971] 1 WLR 1239.

53

Ibid, at 1247.

54

Ibid, at 1262. See also Halsbury's Laws of England, vol 28, para 237.



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who would be aware of the marriage date and for whom the statement would take on a defamatory meaning.

This could reduce the damaging circulation of the libel from a national one to a small locality or district. This basis for mitigating damages is therefore significant, although it appears to be frequently overlooked by textbooks and litigants alike.

It should, however, be borne in mind that the gravity of the defamation is not necessarily co-extensive with the size of its audience. A letter to a person such as an employer, or to a circle of friends, could be as damaging as the same material published to the world at large. While the assessment of damages would benefit from consideration of this factor i.e. the circulation of the libel to measure damages, it should enter the equation as one and not the dominant factor.

131.

It is not clear whether the defendant's state of mind may mitigate damages under the present law.

The recent case of Lynch v Irish Press Ltd55 supports the view that a lack of culpability on the defendant's part will not reduce damages. In that case, Mr Justice O'Hanlon directed the jury that if they found that the reporter had reasonable grounds for believing in the truth of the statement, this would be a factor affecting damages. However, he recalled the jury and altered his direction after counsel objected that there was no basis in law for this direction. (We should point out that there is no formal report of O'Hanlon J's charge and our summary is based on newspaper reports).

There is also authority to the contrary. Gatley states as follows:

“Although it is no defence that the defendant did not intend to refer to the plaintiff, or intend the words to be understood in any defamatory sense, the defendant can give such fact in evidence of mitigation of damages 'as negativing express malice on his part', provided he has complied with the rule. So the defendant may urge in mitigation any fact which goes to show that he honestly believed or had reasonable grounds for believing that what he said or wrote was true ... he can, for example, prove that he received such information from others as induced him to believe that the charge was true ...”56

McDonald takes a similar view:


55

Unreported. See Sunday Tribune, 12 February 1989.

56

Gatley, Libel and Slander, 8ed, p585, para 1431. The reference to “the rule” is to a rule of court requiring notice of matters to be pleaded in mitigation of damages. Our equivalent is Order 36, r 36 RSC.



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“A defendant is entitled to produce in evidence matter which shows that the actual damage caused to the plaintiff's reputation by his publication was not as great as it might have been, and also matter, which while not showing that he had not done wrong, shows that he was not responsible as he might otherwise have been.”57

An old Irish case also supports this view. In Harris v Arnott, Barry LJ stated the position in very strong terms:

“But the question of malice enters into consideration in actions for libel in another point of view, namely, as bearing on the amount of damages to be awarded to the plaintiff by the jury. Mr Healy, indeed, was very severe on newspapers, and suggested, indeed I may say argued, that the proprietors or editors of such [publications] containing libellous matter are entitled to no consideration, and that the only measure of damages is the degree of pain or injury inflicted on the plaintiff, irrespective of the circumstances of the publication. That view has been suggested before now and if the learned counsel were in another place, advocating an alteration in the law, he doubtless would find much to say in its favour; but such is not the law at present. It is quite settled that, whilst, of course, the plaintiff is entitled to reasonable compensation for the injury he has sustained, the defendant, whether a journalist or other person, may show in mitigation of damages that the injury was unintentional, or was committed under a sense of duty, or through some honest mistake, or that the defendant acted in good faith, and with honesty of purpose, and not maliciously.58

Duncan & Neill state –

“Though the honest belief by the defendant in the truth of what he published does not by itself provide any defence to an action for defamation it may be a relevant factor in the assessment of damages. The defendant may therefore wish to rely on his own bona fides (for example, he might have received the information from a reliable source and have made such checks as he could), or on other circumstances, to reduce the damages which would otherwise be appropriate.”59

Indeed, in one of the most important cases establishing that an innocent state of mind on the part of the defendant is not a defence, it was stated that this factor could nonetheless affect damages. In Hulton v Jones, Farwell LJ said in the Court of Appeals –

“And in my opinion he [the defendant] cannot now be heard to say that he did not intend the true meaning of his words as interpreted


57

McDonald, Irish Law of Defamation, p251.

58

(1889) 26 LR IR 55, 75–6, italics supplied.

59

Duncan and Neill Defamation, para 18.21, p141.



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by relevant surrounding circumstances on the issue of publication of the plaintiff, although such evidence would be admissible in mitigation of damages as negativing express malice.60

132.

The defendant may mitigate damages by showing that he repeated the material from another source and disclosed that source in the publication. The defendant must fulfil both of these requirements; it is not sufficient to show one or the other.61

PUNITIVE DAMAGES

133.

Punitive damages are awarded to mark the jury's sense of outrage at the defendant's conduct. The object of such an award is to teach the defendant that tort does not pay, to deter him and others from similar conduct in the future and to punish the defendants for the conduct in question.

134.

A number of criticisms have been directed at the use of punitive damages in civil actions:


(1)


the incompatibility of a punitive element with compensatory proceedings,


(2)


the absence of procedural safeguards in a civil action which would be available to the defendant in criminal action,


(3)


the absence of fixed limits on such awards, and therefore the risk of self censorship by the press through undue caution,


(4)


the fact that in the High Court juries and not judges make the award, and


(5)


the fact that the additional sum imposed to punish the defendant goes into the pocket of a private individual.

135.

In England, the House of Lords limited the occasions on which punitive damages may be awarded to three categories in the celebrated case ofRookes v Barnard.62 These are set out as follows in the speech of Lord Devlin, who delivered the opinion of the court:


(1)


in cases of oppressive, arbitrary or unconstitutional acts by Government servants,


(2)


where the defendant's conduct had been calculated by him to make a profit for himself which might well exceed the compensation payable


60

[1909] 2 KB at 479. (Emphasis added).

61

Halsbury's Laws of England, vol 28, para 250, McGregor on Damages, 15ed, para 1676.

62

[1964] AC 1129.



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to the plaintiff,


(3)


in cases expressly authorised by statute.

Lord Devlin specifically envisaged the second category as covering certain libel cases:

“It is a factor also that is taken into account for damages in libel; one man should not be allowed to sell another man's reputation for profit. Where a defendant with a cynical disregard for a plaintiff's rights has calculated that the money to make out of his wrongdoing will probably exceed the damages at risk, it is necessary for the law to show that it cannot be broken with impunity.63

With reference also to this second category, Lord Diplock stated in Cassell v Broome:

“While, of course, it is not necessary to prove that the defendant made an arithmetical calculation of the pecuniary profit he would make from the tortious act and of the compensatory damages and costs to which he would render himself liable, with appropriate discount for the chances that he might get away with it without being sued or might settle the action for some lower figure, it must be a reasonable inference from the evidence that he did direct his mind to the material advantages to be gained by committing the tort and came to the conclusion that they were worth the risk of having to compensate the plaintiff if he should bring an action.”64

However, the mere fact that a defendant will profit from the article would not of itself point to exemplary damages, since newspapers are in the business for profit. The failure of the trial judge to point this out to the jury and to emphasise that such an award was rare and unusual was one of the grounds for ordering a re-trial on the issue of damages in Riches v News Group Newspapers Ltd.65

The requisites in England for an award of punitive damages in a defamation action are therefore (a) knowledge that what is to be done is against the law or a reckless disregard whether what is to be done is illegal, and (b) a decision to continue with the publication because the material advantages outweigh the prospects of material loss.66


63

Ibid, at p1227.

64

[1972] AC 1027 at p1130.

65

[1985] 2 AII ER 845.

66

Halsbury's Laws of England, vol 28, para 18.



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The decision in Rookes was a major curtailment of the law on punitive damages. Indeed, the English Court of Appeal in Cassell v Broome67 refused to follow the categories set out in Rookes v Bernard, Lord Denning MR observing, “Lord Devlin threw over all that we ever knew about exemplary damages. He knocked down the common law as it had existed for centuries.” However the House of Lords rejected the Court of Appeal contention that Rookes had been decided per incuriam, and by a majority of five to two, it re-instated the authority of Lord Devlin's judgment,68 which accordingly now represents the English position on punitive damages.

The High Court of Australia refused to follow the categories set out in Rookes v Barnard in Uren v John Fairfax,69 and this was upheld by the Privy Council in Australian Consolidated Press v Uren.70 The Canadian Courts71 and the New Zealand Courts72 likewise preferred to maintain the old position on punitive damages, i.e. that they can be awarded in any case where the court considers the conduct of the defendant to be such that damages should not be by way of compensation only, but should also punish the defendant, help to deter others from acting likewise and reflect the detestation of the court for the conduct in question.

It would appear that in Ireland the categories of cases in which punitive damages may be awarded are not confined to those laid down in Rookes v Barnard. In Dillon v Dunnes Stores (Georges Street) Ltd,73 O'Dalaigh CJ stated that it was not open to question that the jury could award punitive damages in an action for false imprisonment. Similarly, in another post-Rookes case, McWilliam J accepted in McDonald v Galvin74 that exemplary damages could be given in the case before him, which concerned an action for assault and battery resulting in pain, shock and humiliation i.e. one falling outside the Devlin categories. In Garvey v Ireland75 the same judge held exemplary damages to be recoverable, on facts, however, that fell within Lord Devlin's first category.

Punitive damages were mentioned by Hamilton P in the recent case of Kennedy and Arnold v Ireland.76 In that case he held that punitive damages so called were inappropriate because the Minister for Justice who took up office after the occurrence of the wrong in question, telephone tapping, had publicly vindicated the good name of the plaintiffs. However he noted Lord Devlin's first category of exemplary damages and continued:


67

[1971] 2 QB 354.

68

[1972] AC 1027.

69

(1966) 117 CLR 118.

70

(1966) 117 CLR 221.

71

Paragon Properties Ltd v Magna Investments (1972) 24 DLR (3d) 156.

72

Fogg v McKnight [1968] NZLR 330, Taylor v Beere [1982] 1 NZLR 81.

73

Unreported, Supreme Court, 20 December, 1968.

74

Unreported, High Court, 23 February 1976.

75

Unreported, High Court, 19 December 1979.

76

[1988] ILRM 472, 478.



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“The action of the executive in this case in tapping the telephones of the plaintiffs without any lawful justification, and interfering with and intruding upon the privacy of the plaintiffs constituted an attack on their dignity and freedom as individuals and as journalists and cannot be tolerated in a democratic society such as ours is and our Constitution requires it to be and the injury done to the plaintiffs has been aggravated by the fact that it has been done by an organ of the state which is under a Constitutional obligation to respect, vindicate and defend their rights.

The plaintiffs are in my opinion entitled to substantial damages and it is, in the circumstances of this case, irrelevant whether they be described as 'aggravated' or as 'exemplary' damages.”77

It is as least arguable that “aggravated” and “exemplary” damages are two distinct heads of damage and that such dicta do not encourage careful awards by juries.

It appears from the award of exemplary damages in the recent INTO case, reported in the Irish Times, Friday 15 February 1991, that the Supreme Court has refused to follow the categories set out in Rookes v Barnard. The award appears to have been based on infringement of the constitutional right to primary education.

INJUNCTIONS

136.

An injunction to restrain the publication or republication of a defamatory statement may be granted during, before or after a hearing. The Judicature (Ireland) Act 1877 conferred jurisdiction on the High Court to grant injunctions in all cases where it appears just and convenient to do so, and on such terms as the court sees fit. Order 50 Rule 6 RSC authorises the grant of interlocutory injunctions.

INTERLOCUTORY INJUNCTIONS

137.

A plaintiff in a defamation case seeking to obtain an interlocutory injunction will be met with more stringent standards than a plaintiff in any other tort case.78 In the ordinary case, the court considers whether the plaintiff has raised a fair or serious question, whether damages would adequately compensate the plaintiff and whether the balance of convenience favours the granting of the interlocutory injunction. The defamation plaintiff must show, however, that it is highly unlikely that the defendant will succeed in the main action. An interlocutory injunction will not be granted if


(a)


there is any doubt that the words are defamatory, or


77

Ibid.

78

See Halsbury's Laws of England, vol. 38, para 167.



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(b)


the defendant intends to plead justification or, probably, any other recognised defence.

In Sinclair v Gogarty,79 Sullivan CJ delivering the judgment of the Supreme Court commented on the jurisdiction of the court in this area as being “a jurisdiction of a delicate nature”. Applying the principle stated by Lord Esher in Coulson v Coulson,80 Sullivan CJ stated:

“The principle is this, that an interlocutory injunction should only be granted in the clearest cases where any jury would say that the matter complained of was libellous, and where if the jury did not so find the court would set aside the verdict as unreasonable.”

The rule in Bonnard v Perryman81 is that where a defendant in a libel action intends to plead justification, a court will not grant an interlocutory injunction to restrain publication of the statement complained of. This principle probably applies to any other defence raised. Halsbury states the law to be as follows:

“It is well settled that no injunction will be granted if the defendant states his intention of pleading a recognised defence, unless the plaintiff can satisfy the court that the defence will fail. This principle applies not only to the defence of justification, but also to the defence of privilege, fair comment, consent, and probably any other defence.”82

More recently, the English Court of Appeal has held that the principle that no injunction will issue if the defendant intends to plead justification extends to allegations which cannot be proved but which are inseparable from other allegations the sting of which the defendant intends to justify. In Khashoggi v IPC Magazines Ltd83 the defendants published an article associating the plaintiff with a number of men, including a foreign head of state. The plaintiff brought an action in respect of her alleged affair with the head of state and obtained an interlocutory injunction. The defendants applied for the injunction to be discharged on the ground that although they were unable to prove the particular allegation complained of, this allegation was inseparable from the other allegations the common sting of which was general promiscuity, and which they intended to justify. The court of Appeal discharged the injunction.

In Monson v Tussauds Ltd,84 the plaintiff sought an interlocutory injunction to restrain the exhibition of a model representing him in an exhibition of wax


79

[1937] IR 377.

80

(1887) 3 TLR 846.

81

[1891] 2 CH 269.

82

Halsbury's Laws of England, 4ed, vol. 28, para 168, footnotes omitted.

83

[1986] 3 All ER 577.

84

[1894] 1 QB 671.



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figures by the defendants, complaining that it portrayed him as guilty of a murder for which he had been tried and acquitted. Initially the defendants intended to plead merely that the exhibition was not libellous and the Queens Bench Division granted an interlocutory injunction. On appeal, it appeared from further affidavits that there would be a question at trial as to whether the plaintiff had consented to the exhibition. The Court of Appeal held unanimously that, under the rule in Bonnard v Perryman, an interlocutory injunction should not be granted.

The three judges differed as to the nature of the rule in Bonnard v Perryman. Lord Halsbury felt that the rule was not absolute and did not automatically preclude a court from granting the interlocutory injunction: “If I were to understand the tests suggested to be applicable to all cases, so that it practically excluded actions of libel from the operation of the Judicature Acts with regard to granting interlocutory injunctions, it would be to overrule the legislature – a power which is not possessed either by this or any other Court”. Lopes and Davy LJJ held that the rule was an absolute rule of practice with regard to the circumstances in which an interlocutory injunction may be granted in libel cases. However, the apparent difference between the two views may be reconciled. Lord Halsbury resisted the conclusion that the raising of a defence (such as justification of a consent) would necessarily entail the refusal of an interlocutory injunction. However, the same result may be achieved by simply applying the rule in Bonnard v Perryman, bearing in mind that the rule is qualified by the phrase “save in the clearest of cases”. In the clearest of cases, i.e. where the matter is unarguably defamatory and the defence will also obviously fail, an interlocutory injunction will issue. In other cases, an interlocutory injunction will not be granted. It appears sufficient if the defendant raises “a case for consideration by the jury”.85

How is a court to determine whether a case for a jury arises, or whether a defence such as justification has been raised merely to prevent the granting of an interlocutory injunction? The simple solution is to examine the affidavits in order to see whether the plea of justification has any substance. However, it appears that this is not always the practice and that a rigid approach refusing the injunction categorically where the defence is raised may be applied.

The case of Cullen v Stanley86 illustrates what is arguably the better course for a court to adopt in deciding whether to grant an interlocutory injunction in this context.87 The plaintiff was a baker who had been selected by the Labour Party to stand for election. He sought an interlocutory injunction to restrain the publication of statements by the defendants to the effect that he had acted as “scab” on an occasion of a baker's strike. The plaintiff deposed that the statements were absolutely false and that he believed the publication


85

Per Davy LJ at p697.

86

[1926] IR 73.

87

See McDonald, Irish Law of Defamation, p261.



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was for the purpose of prejudicing his position as a candidate. One of the defendants submitted an affidavit simply stating that all the allegations were true, and that he would prove this at trial. The Supreme Court held that the plaintiff was entitled to the interlocutory injunction. O'Connor J referred to the argument of the defendant that the rule in Bonnard v Perryman automatically precluded the grant of an interlocutory injunction once the defence of justification was raised, and continued:

“I do not think that the Court of Appeal intended to lay down a rule which should be rigidly applied to every case, because the judgment of Coleridge CJ wound up with the observation that, on the whole, the Court thought that it was wiser in that case, as it generally, and in all but exceptional cases, must be, to abstain from interference until the trial of the plea of justification.”88

The judge then proceeded to examine the detailed affidavit of the plaintiff, which he contrasted with the “baldest affidavit” of the defendant, and held that on the evidence before the court, there was nothing to support the plea of justification.89

An example of the more rigid type of approach is Gallagher v Tuohy,90 where the matter complained of consisted of a circular containing defamatory statements concerning the plaintiff in his business capacity. Murnaghan J stated:

“The question I have to decide is whether an order should be made restraining the defendants from repeating statements which they allege to be true and provable. Against the granting of such an order the authority of Bonnard v Perryman has been cited to me, and that authority has not been controverted by the plaintiff. The effect of that decision seems to be reasonably clear. The Court should not readily restrain the publication of any matter which is not obviously a libel. I would have no difficulty at all in deciding that the statement was defamatory but for the plea of justification. That plea having been raised, it seems to me that I cannot prejudge the issue decided, and decide that the plea of justification is erroneous. That would be the effect of the injunction sought.”

Ex parte injunctions and in camera proceedings

138.

A recent Irish decision in which the ACC sought an injunction has attracted criticism as to the ambit of the judicial power to order proceedings


88

[1926] IR at 85–85.

89

Kennedy CJ at p83 also observed the detail of the plaintiff's affidavit as compared with that of the defendant.

90

(1924) 58 ILTR 134.



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to be held in camera.91

In August 1985, the Agricultural Credit Corporation sought an injunction to restrain the publication of an article in the magazine Irish Business concerning the business affairs of the ACC. On August 1, O'Hanlon J granted an ex parte injunction to ACC at a special sitting at his home. The Irish Times reported that the original terms of the injunction prohibited not only a report of the proceedings but also of the fact that they had taken place.92 However, Casey suggests that it is not clear that the judge did actually so rule, and that such a ruling might not be competent.93 The relevant part of s45 of the Courts (Supplemental Provisions) Act 1961 merely states that justice shall be administered other than in public in cases involving applications of an urgent nature for relief by way of an injunction. This would seem to prohibit public attendance at the proceedings without prohibiting media coverage of the decision. In any case, whether the ban was the result of a prohibition or a misunderstanding, on Saturday 3 August O'Hanlon J made an order clearly allowing the fact of the injunction to be reported.

A few days later, ACC's application for an interlocutory injunction was heard. Irish Business undertook not to publish the original article, but said that they intended to publish a substitute article. ACC sought to enjoin this also on the ground that it was based on documents belonging to them and the publication of which would be a breach of confidence and/or copyright. Lardner J granted the injunction to restrain such breach of confidence, Irish Business having conceded ACC's property in the documents. The judge reserved the question as to whether the author of the article should be compelled to disclose the source of the documents.

It is not entirely clear that O'Hanlon J in making his first order imposed a ban on the reporting of the fact of the injunction, or, if he did, that such a power was inherent in s45, but the decision has caused concern and attracted criticism.94 Accordingly, the ambit of s45 in the context of defamation law requires some clarification.

Perpetual Injunctions

139.

The court may award a perpetual injunction to the plaintiff at the hearing where it is established that there is a likelihood of repetition. In general, this will reduce the amount of compensatory damages because the injunction prevents future damage to reputation.


91

Reported in the Irish Times, 5–9 August 1985.

92

Irish Times, 5 August 1985, p1.

93

Casey, Constitutional Law in Ireland, p455.

94

See Irish Times, 7 August 1985; Report on Press Freedom and Libel, p28.



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DECLARATIONS

140.

Under Order 19, Rule 29 of the Rules of the Superior courts there is a general power in the court to make a declaratory judgment or order whether or not consequential relief is claimed. However, in practice this remedy does not appear to be availed of in defamation actions.

Order 19, rule 29 RSC provides:

“No action or pleading shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may, if it thinks fit, make binding declarations of right whether any consequential relief is or could be claimed or not.”



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CHAPTER 4: MISCELLANEOUS

Payment into Court

141.

Order 22 of the Rules of the Superior Courts contains the Irish rules on the payment into court procedure. The most controversial aspect of these rules in the context of defamation law is that the defendant in a defamation action, unlike other actions, may only make a payment into court if liability is admitted in the defence.

The payment into court procedure encourages the parties to settle without proceeding to trial. The defendant pays a sum of money into court in satisfaction of the claim and, if this is accepted by the plaintiff, further proceedings are stayed. There is a disincentive to the plaintiff to proceed to trial because if the sum awarded at trial is less than the sum paid into court, the plaintiff will incur costs. This is the result of Order 22, rule 6(4) which provides, in the event of the sum awarded being less than the sum paid in, that the plaintiff is entitled to the costs incurred up to the point of payment into court while the defendant is entitled to costs after this act. As the costs prior to the payment into court will always be trivial as compared with those incurred thereafter, the net result is that the plaintiff will be liable for most of the costs where the sum awarded at trial is less than the amount paid in.

For no apparent reason a distinction is drawn in Order 22 between actions for death, damages or concerning admiralty on the one hand, and actions for libel or slander, inter alia, on the other. Whereas the defendant may make a payment into court irrespective of whether liability is admitted in the first set of cases, he may only do so in libel or slander actions if he admits liability.1 This distinction has been widely criticised.2


1

Order 22, rule 1(3).

2

See, for example, Report on Press Freedom and Libel, 3.43.



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Curiously, the Libel Act 1843 contained a provision allowing for payment into court, provided (1) the defendant was a newspaper or other periodical, (2) the defendant pleaded that the libel was inserted without actual malice and without gross negligence and, as soon afterwards as possible, a full apology was inserted in the newspaper or other periodical.

Apart from the fact that it is limited to the press, the proision is altogether different as regards liability. To plead that there was no malice and no gross negligence comes close to saying that there was no liability.

By contrast, Order 22 allows payment into court only when there is admission of liability. However, the 1843 Act was repealed by the Defamation Act 1961, and no similar provision has been re-enacted.

It appears that the Rules of the Superior Courts and the Circuit Court Rules are not in harmony in this area. Order 12, rule 9 of the Circuit Court Rules provides –

“Any defendant may with his defence lodge in Court an amount which he alleges is sufficient to satisfy the plaintiff's claim, and such lodgement may be made with an admission or denial of liability. Where there is more than one claim or cause of action the defendant shall state in respect of which of them such lodgement is made”.

There is no exception to the rule that the defendant may make a payment into court with a denial of liability, and it would appear that this course of action is open to a defendant in a defamation action. An argument might be made that Order 59, rule 14 of the Circuit Court rules would import the High Court rule disallowing payment into court by a defamation defendant unless liability is admitted, since it provides –

“Where there is no Rule provided by these rules to govern practice or procedure, the practice and procedure in the High Court may be followed”.

However since this is less a case of “no Rule provided” and more a case of a “Rule which differs” from a High Court Rule, it is more likely that Order 59, rule 14 is inapplicable. It appears that the present Circuit and Superior Court Rules are different in that the former allow a defamation defendant to pay a sum into court while denying liability whereas the latter do not.

A defendant may also increase the amount paid into court under Order 22 Rule 1(2). This states that a defendant may “at once, without leave, and upon notice to the plaintiff, pay into Court an additional sum of money as an increase in a payment made under paragraph (1) hereof” and that notice must be given and payment made at least three months before the date on which the action is first listed for hearing. An action for libel or slander where liability is admitted comes within the class of actions in which payment into

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court may be made under paragraph (1), and therefore the rule on increased payment into court applies to such actions.

LIMITATION PERIODS

142.

Under section 11(2)(a) of the Statute of Limitations 1957, an action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued. This six year limitation period encompasses actions for libel. Under section 11(2)(c), the limitation period for actions for slander is three years from the date on which the cause of action accrued. In cases of libel, the cause of action accrues when the publication is made. In cases of slanders actionable per se, the cause of action accrues when the words are spoken, and in cases of slanders actionable on proof of special damage, the cause of action accrues when the special damage occurs.3

MALICE AND JOINT PUBLISHERS – THE INFECTIOUS MALICE RULE

143.

The defences of privilege and fair comment are defeated by a showing of malice on the part of the defendant. If A is sued as being responsible for the publication of a defamatory statement by B, the question arises whether malice on the part of B destroys a defence of privilege or fair comment for A. In Irish law, the answer is provided by section 11(4) of the Civil Liability Act, 1961, which provides:

“Where there is a joint libel in circumstances normally protected by the defences of qualified privilege or fair comment on a matter of public interest, the malice of one person shall not defeat the defence for the other, unless that other is vicariously liable for the malice of the first.”

Vicarious liability is therefore the deciding criterion. If A is vicariously liable for B, B's malice will destroy A's defence. If A is not vicariously liable for B, it will not.

Section 11(4) applies only to libels. Therefore, in relation to slander, the old position governs whereby all defendants responsible may be infected by the malice of one.4

The typical case of infectious malice through vicarious liability is illustrated by Fitzsimmons v Duncan and Kemp & Co.5 The defendants were a company carrying on the business of mercantile inquiry agents. Their clients filled out forms and the defendants supplied the answers to their queries after obtaining


3

McDonald, Irish Law of Defamation, p238.

4

McDonald, Irish Law of Defamation, p270. However the decision in Egger v Viscount Chelmsford [1965] 1 QB 248 (discussed below) may alter the common law position in relation to slanders as well as libels.

5

[1908] 2 IR 483.



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reports from their local correspondent in the district where the person enquired about carried on business. In this case, an unfavourable report was made by a local correspondent about the plaintiff, which was sent to the local manager, then to the defendants and ultimately to the client. The occasion was held to be privileged, but the defendants were held liable on the basis of malice on the part of the local correspondent. Fitzgibbon LJ described the law as settled that

“the corporate employer who takes his profit must answer for the wrong or default of the servant who does the work. Negligence, fraud and malice are all in the same footing in this respect, so long as what the servant does is within the scope of his employment, and of the employer's business, and the wrong is not some personal act of the individual, outside that business. If the libel here conveys the purport of [the agent's] information, and is defamatory, his malice is fatal to the Company's privilege”.6

Later, he said:

“In our view the case is the same as any other in which a principal contracts to make or prepare and supply an article for a customer, and employs more than one servant to do the work. If one assistant prepares or weighs out drugs, and another compounds them; or if one set of workmen are employed to prepare materials, and to construct the parts of a machine, and another to put them together, the employer's liability for defective work is the same whether it has arisen from the fault of one servant or the other.”7

There is no English statutory provision equivalent to our section 11(4), but a similar position exists there since the decision in Egger v Viscount Chelmsford.8 The Egger case illustrates the converse situation to the Fitzsimmons case i.e. where there is no vicarious liability involved. The plaintiff in the Egger case was a judge of Alsatian dogs whose name was kept on a list by the Kennel Club. A Miss R, arranging a dog show, wrote to the Kennel Club asking that the plaintiff be approved for the show. The Club responded by a letter to the effect that they did not approve. The action was brought against the assistant secretary and ten members of the sub-committee of the Club. The defendants pleaded inter alia, an occasion of qualified privilege, but the plaintiffs argued that the malice of some members of the sub-committee ousted the privilege for all the defendants. The Court of Appeal allowed the appeal by the secretary and the three committee members found at the trial to be innocent of malice. Each of these was held to have an independent and individual privilege in relation to the publication, which could not be defeated by malice on the part of others. Explaining the


6

Ibid, p513.

7

Ibid, p514.

8

[1965] 1 QB 248.



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rationale behind this holding, Lord Denning MR said:

“All I would say is that the defence of qualified privilege is a defence for the individual who is sued and not a defence for the publication. It is quite erroneous to say that it is attached to the publication as distinct from the individual.”9

Later he stated what is the current English position, akin to the Irish one:

“If the plaintiff seeks to rely on malice to aggravate damages, or to rebut a defence of qualified privilege, or to cause a comment, otherwise fair comment to become unfair, then he must prove malice against each person he charges with it. A defendant is only affected by express malice if he himself is actuated by it; or if his servant or agent concerned with the publication was actuated by malice in the course of his employment.”10

144.

It is necessary to know when a person is vicariously liable for the acts of another. Employers are clearly responsible for their employees, and principals for their agents. Less clear is whether a publisher of a journal or broadcast is liable for unpaid contributors to his paper or programme. If a paper is liable for such persons, and therefore infected by their malice, this would pose threats to press efficacy.11

145.

Infectious malice becomes a relevant enquiry in relation to another defence, namely, the offer of amends under s21 of the Defamation Act 1961. Section 21(7) provides that, in relation to the defence of unintentional defamation under that section, where a newspaper wishes to rely on the defence in respect of a defamatory statement made by a contributor, it must actually prove that the author acted without malice. Thus, if the newspaper fails to establish lack of malice, it will be infected by it and lose the defence.

146.

The publication of a contributor's letter may also lose the newspaper the defence of fair comment or privilege on the grounds of malice, on the basis of actual, not infectious, malice. Up to now, we have been considering the case where the malice of the unpaid contributor may infect the publisher. However, it may also be that the view expressed by the unpaid contributor will result in an imputation of actual malice to the publisher. This is because the publisher might disagree with the view expressed, or might express differing views elsewhere in the paper, and the plaintiff may plead that this shows a lack of honesty, and therefore malice, in the statement. The media position


9

Ibid at p259.

10

Ibid at p265.

11

This point is made by RTE in their submission to the Law Reform Commission. The comments of Dickson J in Chemeskey v Armadale Publishers, 1979 90 DLR (3rd) 321, in relation to press freedom are relevant to this point, although they were spoken in the context of actual, not infectious, malice – see para 149 below.



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here is delicate and would require to be clarified.

The real problem in this area arises where the newspaper holds or publishes an opinion different from that voiced in the contributor's letter. Where the newspaper shares the views expressed in the letter, there is no real problem as is shown by Lyon v Daily Telegraph.12 In that case, the letter published in the correspondence columns of the defendant newspaper was purportedly written from a vicarage by one A. Winslow, but in fact the address given was fictitious and there was no clergyman named A. Winslow existing. The letter was defamatory in that it referred to a radio programme, in which the plaintiffs were the principal artists, as costly, vulgar and unworthy. The defendants pleaded fair comment. The Court of Appeal held that the defence was open to the defendants because the letter itself did not exceed the limits of fair comment and there was no evidence of malice. It is important to note that the fact that the paper shared the views contained in the letter was relevant to the question of malice –

“There is no question but that the comments contained in the letter represent the honest opinion of the Daily Telegraph; and at the trial no doubt was cast upon the complete belief of the newspaper that they were publishing a letter in which the writer was making a fair comment on a matter of public interest.”13

The plaintiffs attempted to argue that the failure of the paper to make enquiries as to the identification of the author rendered the comment unfair, but Scott LJ replied:

“The answer to this is that fairness and carefulness are different moral and legal qualities; and that, whilst malice or indirect motive may destroy the fairness of an apparently fair comment, negligence does not. I hold, accordingly, that the letter itself in no way exceeded the bounds of fair comment on a matter which was obviously one of public interest, and that, on the facts in evidence, there was nothing to destroy the defendant newspaper's plea of fair comment.”14

He felt that a general rule of law requiring a newspaper to verify the signature and address of every letter would result in “a burden so deterrent in practice as very much to reduce the valuable contribution to public discussion which results from a free publication of correspondence in the press”. Although the Court of Appeal did not have to consider the case where a newspaper publishes conflicting opinions and whether this establishes actual malice on its part, the tenor of the judgment of Lord Justice Scott was much in favour of full and free discussion in the newspapers –


12

[1943] 2 All ER 316.

13

Ibid, per Scott LJ at p318.

14

Ibid at p319.



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“[The right of fair comment] is one of the fundamental rights of free speech and writing, which are so dear to the British nation, and it is of vital importance to the rule of law upon which we depend for our personal freedom, that the courts should preserve the right of 'fair comment' undiminished and unimpaired.”

The Supreme Court of Canada faced a more difficult problem in Cherneskey v Armadale Publishers Ltd.15 The defendants had published an article in their newspaper concerning a meeting of the city council, at which the plaintiff, lawyer and city alderman, was present. They subsequently published a letter in response to this article, in which the writers accused the plaintiff of taking a “racist” position on the matter before the council. The evidence established that the honest opinion of the newspaper differed from that expressed in the letter. The issue, therefore, was squarely before the court as to whether actual malice is shown from the fact that the newspaper itself holds different views from those expressed in its letter columns.

A majority of the Supreme Court held that in this situation actual malice is imputed to the newspaper defendant. They held that it was a constituent part of the defence of fair comment that the defendant show that the opinion was an honest expression of his views. The same considerations, they held, applied to each publisher of the comment –“each publisher in relying on the defence of fair comment is in exactly the same position as the original writer. When there is no evidence as to the honest belief of the writers of the letter, and the newspaper and its publisher have disavowed any such belief on their part, the defence of fair comment cannot be sustained”. However, in that case a vigorous dissent was led by Dickson J.16 The objections of Dickson J may be analysed as two-fold, legal and practical. From the legal point of view, Dickson J felt that the majority had lost sight of the fact that the defence of fair comment involved a double hurdle i.e. first, the objective test as to whether the comment is fair, and secondly, the subjective test involving the state of mind of the defendant. One could merge the two tests and ask whether the statement was the publisher's real opinion, and while “this works passably well when the defendant is the writer ... it does not work at all if he is not”. In relation to the second, subjective test, Dickson J said:

“Malice includes any indirect motive or ulterior purpose, and will be established if the plaintiff can prove that the defendant was not acting honestly when he published the comment. This will depend on all the circumstances of the case. Where the defendant is the writer or commentator himself, proof that the comment is not the honest expression of his real opinion would be evidence of malice. If the defendant is not the writer or commentator himself, but a subsequent publisher, this is an inappropriate test of malice. Other criteria will be relevant to determine whether he published the comment from spite or


15

1979 90 DLR (3d) 321.

16

Spencer and Estey JJ concurred in the opinion of Dickson J.



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ill-will, or from any other indirect and dishonest motive.”17

“Confusion arises because the writer is the most common defendant, and the need to keep clear the distinction between the sequential tests of 'fair comment' and 'malice' is not so great. Where the publisher is not the writer, the need is imperative ... It is readily apparent that newspapers need not be in any different position from the rest of the population. Once a comment which is defamatory ... is shown to be objectively fair, the only question is whether it was published with malice. This will depend on whether there is appropriate evidence of malice, which will be different depending on whether the newspaper, or its staff, writes the comment, or whether the newspaper publishes comments written by others.”18

From a practical point of view, Dickson J analysed the impact of the majority holding on press freedom. If there were a rule denying the newspaper the defence of fair comment unless it could show that it honestly believed in the views expressed, the effect on press freedom would be extremely negative:

“An editor receiving a letter containing matter which might be defamatory would have the defence if he shared the views expressed, but defenceless if he did not hold those views. As the columns devoted to letters to the editor are intended to stimulate uninhibited debate on every public issue, the editor's task would be an unenviable one if he were limited to publishing only those letters with which he agreed. He would be engaged in a sort of censorship, antithetical to a free press. One can readily draw a distinction between editorial comment or articles, which may be taken to represent the paper's point of view, and letters to the editor in which the personal opinion of the paper is, or should be, irrelevant. No one believes that a newspaper shares the view of every hostile reader who takes it to task in a letter to the editor for error of omission of commission, or that it yields assent to the views of every person who feels impelled to make his feelings known in a letter to the editor. Newspapers do not adopt as their own the opinions voiced in such letters, nor should they be expected to.”19

“Newspapers will not be able to provide a forum for dissemination of ideas if they are limited to publishing opinions with which they agree. If editors are faced with the choice of publishing only those letters which espouse their own particular ideology, or being without defence if sued for defamation, democratic dialogue will be stilted. Healthy debate will likely be replaced by monotonous repetition of majoritarian ideas and conformity to accepted taste. In one-newspaper towns, of which there are many, competing ideas will no longer gain access.


17

Ibid at 346.

18

Ibid at 348.

19

Ibid at 343.



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Readers will be exposed to a single political, economic and social point of view. In a public controversy, the tendency will be to suppress those letters with which the editor is not in agreement. This runs directly counter to the increasing tendency of north American newspapers generally to become less devoted to the publisher's opinions and to print, without fear or favour, the widest possible range of opinions on matters of public interest. The integrity of a newspaper rests not on the publication of letters with which it is in agreement, but rather on the publication of letters expressing ideas to which it is violently opposed.”20

No Irish case appears to have dealt with the problem of contributors' comments or letters. The resulting doubt in this area places organs of the media in a precarious position when publishing such statements. The disadvantages of forcing a newspaper to publish only the views with which it agrees have been eloquently set out by Dickson J in the Cherneskey case. However, RTE may be in an even more difficult position, as its obligation of impartiality under the Broadcasting Act precludes it from ever adopting a contributor's viewpoint as its own. Accordingly, RTE argue, since it cannot adopt a contributor's comment as its own opinion (something which would be necessary to enable it to deny malice) it cannot, in the event of such comment containing defamatory material, avail of the defence of fair comment.21

CORPORATE BODIES

147.

Trading Corporations: It appears that a trading corporation may sue in respect of defamatory statements concerning its trading capacity or business activities, and defamatory statements concerning its more general activities, such as treatment of employees or sponsorship of public events. No proof of special damage is required. There are naturally some allegations in respect of which a trading corporation may not sue, such as murder, incest or adultery.

In South Hetton Coal Co. Ltd. v North Eastern News Association Ltd.22 where the cause of action at the suit of an incorporated trading company was recognised, Lord Esher MR explained the doctrine as follows –

“I have considered the cause, and I have come to the conclusion that the law of libel is one and the same as for all plaintiffs; and that, in every action of libel, whether the statement is, or is not, a libel, depends on the same question – viz., whether the jury are of the opinion that what has been published with regard to the plaintiff would tend in the minds of people of ordinary sense to bring the plaintiff into contempt, hatred or ridicule, or to injure his character. The question


20

Ibid at 344.

21

Part of an RTE submission to this Commission.

22

[1894] 1 QB 133.



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is really the same by whomsoever the action is brought – whether by a person, a firm, or a company. But though the law is the same, the application of it is, no doubt, different with regard to different kinds of plaintiffs ... For instance, it might be stated of a person that his manners were contrary to all sense of decency or comity, and such that, if the statement were true, they would render him deserving in the minds of persons of ordinary sense of contempt, hatred, or ridicule; but if the same thing were said with regard to a firm, or company, it would be impossible that it should have the same effect, because a firm or company as such cannot have indecent or vulgar manners.”23

However Lord Esher went on to draw an analogy between defamatory statements concerning a person in the way of his business and defamatory statements reflecting on a company's mode of carrying on business, both of which could be actionable, but declined to attempt definition of an exhaustive rule of all statements which would be libellous of a company.24

In the same case Lopes LJ echoed Lord Esher's comments about statements which are not capable of being defamatory of a company –

“A corporation or company could not sue in respect of a charge of murder, or incest, or adultery, because it could not commit these crimes. Nor could it sue in respect of a charge of corruption or of an assault, because a corporation cannot be guilty of corruption or of an assault, although the individuals composing it may be. The words complained of must attack the corporation or company in the method of conducting its affairs, must accuse it of fraud or mismanagement, or must attack its financial position”.25

Leaving aside allegations such as murder, incest and adultery, of which presumably no one would be foolish enough to accuse a company in the first place, the language used by both of the judges considered allows for considerable latitude in relation to the statements upon which a company may sue. In the words of Lopes LJ, “method(s) of conducting its affairs” would arguably include allegations of bad treatment of employees, negative statements concerning sponsorship of public events, or more importantly in a modern context, allegations that the company is not environmentally conscious or fails to observe safety standards. It may be noted however that the third judge, Kay LJ, expressed the right of the company in narrower terms, stating that “a trading corporation may sue for a libel calculated to injure them in respect of their business”.

It was specifically held in the South Hetton case that no specific damage must be proved by the company where the statement is defamatory of it. However


23

Ibid at 138.

24

Ibid, 139.

25

Ibid, 141.



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a competing view is that a company should have to show financial loss, or at least that the allegation was likely to cause it financial loss. Such a view is expressed by Lord Reid in Lewis v Daily Telegraph26

“A company cannot be injured in its feelings, it can only be injured in its pocket. Its reputation can be injured by a libel but that injury must be found in money. The injury need not necessarily be confined to loss of income. Its goodwill may be injured.”

These comments do not make clear whether Lord Reid would require the company to show financial loss, or show that the statement would tend to cause financial loss. However, he certainly envisaged that even where the effect of the allegation was to injure the company's goodwill, financial implications would have to be involved for the statement to be actionable.

Surprisingly, two cases more in line with this view were cited to the Court in the South Hetton Coal case and do not seem to have influenced the more wide-ranging view of actionable allegations which was arguably evidenced by Lord Esher MR and Lopes LJ in that case. Lord Esher did not refer to the cases at all in his judgment, while Lopes LJ approved the decisions in Metropolitan Saloon Omnibus Co. v Hawkins27 and Mayor of Manchester v Williams28 but arguably did not adopt the reasoning of those cases. In the Hawkins case, Pollock LB stated that “a corporation at common law may maintain an action for a libel by which its property would be injured”. This would seem to be a good deal narrower than the view of Lopes LJ that allegations in respect of “methods of conducting its affairs” would be actionable. Again in the Williams case, Day J stated that “[the] limits of a corporation's right of action are those suggested by Pollock, CB in the case which has been referred to. A corporation may sue for a libel affecting property, not for one merely affecting personal reputation”. In the Williams case, the statement of claim complained that the plaintiffs had been charged with corrupt practices and contained no allegation that the plaintiff had suffered any special pecuniary damage in consequence of such publication. It is difficult to resist the conclusion that Day LJ would have required not only an allegation affecting the plaintiff's property, but indeed specific damage to be illustrated.

Such decisions do not make for clarity and it is difficult, in the apparent absence of Irish authority on this point, to know the extent of a trading corporation's right to sue in defamation, if any, in Ireland.29


26

[1964] AC 234, 262.

27

4 H & N 87.

28

[1891] 1 QB 94.

29

In Eglantine Inn v Smith [1948] NI 29, the plaintiffs who were inn proprietors were held entitled to recover in respect of allegations concerning the plaintiff's treatment of employees. However, the right of action was assumed without being discussed.



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148.

Non-Trading Corporations: It appears that non-trading Corporations may sue in respect of defamatory statements concerning their necessarily non-profit making activities.

The important case here is Bognor Regis UDC v Campion30 where it was held that a local government corporation had a “governing” reputation which could be protected from defamatory allegations by recourse to an action in defamation.

It was seen above that there was some confusion as to whether a trading corporation could sue in respect of defamatory allegations not reflecting on the property or business itself, but that the South Hetton Coal case appeared to have settled that such allegations would be actionable, without expressly overruling the Williams case. Since non-trading corporations are not in the business of making profit, it was natural that the question would be raised in a case concerning such a body. The Williams case was again cited to the court in Bognor Regis UDC v Campion, where Browne LJ disposed of it on three grounds. He distinguished the Williams case on the basis that a different type of body was here in question and that no allegation of corruption was here involved. However, he questioned the more general view of Day J in the Williams case that a corporation may sue only in respect of a libel affecting property and not one affecting personal reputation:

“If this was ever right, it has in my view been overruled by South Hetton Coal Co. v North Eastern Association Ltd. ... and by National Union of General and Municipal Workers v William”.

He also questioned the view of Day J that a charge of corruption cannot ever be actionable at the suit of a corporation, noting that this view had been severely criticised by Spencer Bower, Fraser, and Oliver J in the case of Willis v Brookes.31 Furthermore the libel found actionable in National Union of General and Municipal Workers v William closely resembled a charge of corruption.

Again the absence of Irish authority renders it difficult to point a conclusive picture in relation to the capacity of non-trading bodies to sue in defamation.

149.

Unincorporated Associations: The general rule is that unincorporated associations cannot sue or be sued in their own name. The two exceptions to this rule are trade unions and partnerships.

150.

Trade Unions: The position of trade unions as plaintiffs in libel suits in Ireland is unclear. Trade unions are however immune from tortious liability by virtue of s4 of the Trade Disputes Act 1906 and may therefore not be sued in defamation. The constitutionality of this broad immunity has been


30

[1971] 2QB 109.

31

[1947] 1 All ER 191.



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questioned.

In England, the right of trade unions to maintain an action in tort, specifically including libel, was recognised in National Union of General and Municipal Workers v William.32 Sufficient personality in the eyes of the law was attributed to trade unions by an examination of the legislation governing these bodies, and once this was found, it was a short step to confer actionability in respect of defamation. Uthwatt J stated as follows –

“It is well established that in certain cases a trading corporation may bring a suit in respect of an imputation on its trading reputation, and I see no reason why a non-trading corporation should not have the same rights as respects imputations on the conduct by it of its activities.

A trade union to my mind stands in the same position. Why should it not be protected? The social duty so to conduct the affairs of the union so as not to invite well-founded criticism is hardly forwarded by a denial of the right to seek redress for an unjustified disparagement of its activities”.

However in 1971 the English Trade Union and Labour Relations Act was passed which provided in section 2(1) that a trade union should not be, or be treated as if it were, a body corporate. It was held in EETPU v Times Newspapers33 that accordingly a trade union (not being a special register body) could not maintain an action in its own name for damages in relation to reputation. Nonetheless Gatley is of the view that a trade union can still sue in libel notwithstanding the EETPU case. There has since been a 1974 Trade Union and Labour Relations Act which although it also provides that a trade union shall not be, or be treated as if it were, a body corporate, confers a capacity on a trade union to sue in “proceedings relating to property or founded on contract or tort or any other cause of action whatsoever”. These are the same as the relevant provisions in the 1971 Act and the comments of Gatley continue to apply.34 Duncan and Neill also take the view that a trade union can sue in respect of libel under the new legislation.35

If there is no Irish case-law on trade unions as libel plaintiffs, there is at least statutory provision for trade unions as tort defendants. Section 4 of the Trade Disputes Act 1906 provides that a trade union is immune from liability “in respect of any tortious act alleged to have been committed by or on behalf of the union”. The equivalent immunity in England was held to include actions in respect of libel.36


32

[1946] KB 81.

33

[1980] QB 585.

34

See Gatley, Libel and Slander, 8ed, para 970.

35

See Duncan and Neill, Defamation, para 9.11.

36

Vacher and Son v London Society of Compositors [1913] AC 107.



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The immunity of trade unions is, however, confined by s11 of the Trade Union Act 1941 to authorised trade unions, their members or officials which or who for the time being are holders of negotiating licences under that legislation.

151.

Partnerships: An unincorporated partnership possesses sufficient legal personality to sue or be sued in its own name,37 and if sued, the partners are jointly and severally liable for the wrong committed.38

DEFAMATION OF THE DEAD

152.

An action in defamation may not be brought in respect of a statement which is defamatory of a person who was dead at the time of publication.39

153.

However if the defamatory statement about a dead person also has the effect of defaming a living person, an action lies in respect of the latter injury.

SURVIVAL OF THE DEFAMATION ACTION

154.

Death of the wrongdoer: Unlike most civil actions, the cause of action in defamation does not survive the death of the wrongdoer.

Section 6 of the Civil Liability Act 1961 defines an “excepted cause of action” to include defamation, and section 8(1) provides:

“On the death of a person on or after the date of the passing of this Act, all causes of action (other than excepted causes of action) subsisting against him shall survive against his estate.”

It appears that this special exemption for the defamation cause of action, among others, is because the absence of the wrongdoer could prejudice the defences that might be raised by his personal representatives, especially those which may be rebutted by malice.

However the death of a wrongdoer after the verdict or judgment would not affect the plaintiff's rights, nor would his death between verdict and judgment.40

155.

Death of the person defamed: The right of action in defamation does not survive the death of the defamed person.

Section 7(1) of the Civil Liability Act 1961 provides:


37

Le Fanu v Malcolmson (1846) 8 ILR 410, Meekins v Henson [1846] 1 QB 472.

38

Sections 10 and 12, Partnership Act 1890.

39

Halsbury's Laws of England, vol 28, para 6; McDonald, Irish Law of Defamation, p281.

40

Order 17, Rule 1, RSC.



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“On the death of a person on or after the date of the passing of this Act all causes of action (other than excepted causes of action) vested in him shall survive for the benefit of his estate.”

One of the excepted causes of action is defamation.

APOLOGY

156.

Apology: An apology is not a defence to a defamation action. Under section 17 of the Defamation Act 1961 evidence that the defendant made or offered an apology to the plaintiff before the commencement of the action or as soon afterwards as he had an opportunity of doing so may mitigate damages.

The fact that an apology will mitigate damages under section 17 appears to suggest that the making of an apology is an admission of liability. The Boyle-McGonagle Report records that defendants are unwilling to offer an apology for this reason and suggests that the section should be re-formulated so that the publication of an apology should be seen as a matter of courtesy rather than an admission of liability.41

FAULT ISSUES IN DEFAMATION LAW

157.

Relevance of the Defendant's State of Mind.

It is usually stated that liability in defamation law is strict. “Liability for libel does not depend on the intention of the defamer; but on the fact of defamation”.42 This position of strict liability has been rationalised as follows:

“The general tendency in defamation cases has always been for a powerful rule of strict liability. I think this result rests upon commendable moral instincts here as it does with physical injuries. Defamation is made to a third person about the plaintiff, so that prima facie the plaintiff is in no way responsible for the commission of the wrong and typically could do very little, if anything, to protect himself. As the defendant is prima facie the sole actor, the rule that places powerful incentives against his misconduct will be one which tends to deter the abuse that will otherwise take place.43

However, as the tort of defamation is a composite one, the issue of fault arises in many different aspects of the case.

The plaintiff must show, as part of his case, a number of things;


41

Report on Press Freedom and Libel, paras 5.30–5.31.

42

Cassidy v Daily Mirror Newspaper (1929) 2 KB 331, per Russell LJ.

43

Epstein, Was New York Times v Sullivan Wrong?, 53 U Chicago L Rev 782, 797.



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(a)


that the defendant published the statement complained of;


(b)


that the statement was defamatory;


(c)


that the statement referred to the plaintiff.

In a typical case, the defendant (a) realised the statement was defamatory, (b) intended to refer to the plaintiff, and (c) intended to publish it. However, in any given case, any one or several of these elements might be lacking e.g. the defendant may not have intended to refer to the plaintiff, or he may not have intended to publish.

The issue of fault may arise in a number of different ways:


(a)


Was the defendant at fault in failing to anticipate publication?


(b)


Was the defendant at fault in failing to realise that an innocent statement might become defamatory?


(c)


Was the defendant at fault in failing to realise that a statement which did not overtly refer to the plaintiff might be understood to refer to him?


(d)


Was the defendant at fault in his failure to realise that the plain meaning of his words was defamatory?


(e)


Was the defendant at fault in failing to realise that the statement was false?


(f)


Can an innocent state of mind mitigate damages?


(g)


Can a malicious state of mind destroy a defence?

We believe that the statements 'Liability in defamation law is strict' and that 'The defendant's state of mind is not relevant' are too broad to be helpful. The answers to (a)–(g) above are not a uniform 'yes' or 'no'. The response varies according to the question. Most of the solutions have emerged in previous discussion. It is proposed to draw attention briefly to the answer to each question.44

A. Where the State of Mind is Relevant
1. The Defendant Who Does Not Intend to Publish

In order for a defamatory statement to become actionable, the statement must


44

In two cases, the answer is that strict liability does or does not apply, depending on whether a statutory provision is availed of. This is in relation to the defence provided in s21 of the Defamation Act 1961.



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have been published to someone other than the plaintiff himself. However, the mere fact of publication will not always render the statement actionable. The law has developed a defence of unintentional publication in the following circumstances. If the defendant communicates defamatory matter to the plaintiff and it becomes known to a third party, he will be liable for the publication only if he should reasonably have foreseen that there might be publication to a third party. However, if the law considers that the defendant could not have reasonably foreseen the possibility of communication to a third party, he will not be liable.45

The test is therefore one of reasonable foreseeability; the defendant may escape liability if he shows that he published the statement to the plaintiff in circumstances in which he could not have reasonably foreseen its publication to someone other than the plaintiff. The defence applies only where the defendant communicated the matter to the plaintiff and a third party intervened.

2. The Defendant Who Makes an Innocent Statement Which Becomes Defamatory by Virtue of Circumstances Unknown to Him

An example of this situation is Cassidy v Daily Mirror Newspaper.46 An announcement by a newspaper of a couple's engagement is an innocent statement on its face. However, the circumstance unknown to the publisher here was that one of the persons in the photograph was already married. Because of this fact, the statement was defamatory of the person's spouse. At common law, the defendant was liable in such a situation.

It was considered that the common law position was too harsh in this respect and an attempt was made to alleviate the position of such a defendant by means of s21 of the Defamation Act 1961. This provided certain types of defendant with an opportunity to make an offer of amends which, if accepted, would preclude an action being brought. One of the types of defendant envisaged was precisely the defendant in Cassidy's case since innocent publication in the section was defined to include the situation where “the words were not defamatory on the face of them, and the publisher did not know of circumstances by virtue of which they might be understood to be defamatory of that other person”.47 Whereas the common law position in this context was one of strict liability, under s21 of the Defamation Act 1961 the fault criterion is “reasonable care”. In order to come within the section, the publisher must prove he exercised all reasonable care in relation to the publication.

Accordingly, the current legal position as to a defendant who makes an innocent statement which becomes defamatory by virtue of circumstances


45

See para 32 above.

46

[1929] 2 KB 331. For facts, see para 27 above.

47

Section 21(5)(b).



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unknown to him is that a statutory standard of reasonable care has replaced the common law strict liability rule. The standard of reasonable care is combined with the different remedy, i.e. the offer of amends. However, if the defendant does not avail of s21, the common law rule of strict liability applies.

3. The Defendant Who Does Not Intend to Refer to the Plaintiff and is Unaware of the Circumstances Which Have the Effect of Making the Publication Refer to the Plaintiff

An example of such a case is Hulton v Jones,48 where a newspaper published an article depicting the life of a fictitious individual, but his name coincided with that of a real person. The article was understood by those who knew the plaintiff to refer to him. At common law, the defendant is liable.

Again, the Defamation Act 1961 attempts to alleviate the position of such a defendant by means of s21 and the offer of amends. Innocent publication is defined to include the case where “the publisher did not intend to publish them [the words] of and concerning that other person, and did not know of circumstances by virtue of which they might be understood to refer to him”.49 The use of the section is conditional upon the publisher having exercised reasonable care in relation to the publication.

Accordingly, the current legal position as to a defendant who does not intend to refer to the plaintiff and is unaware of the circumstances which have the effect of making the publication refer to the plaintiff, is that a standard of reasonable care has replaced the common law strict liability rule. However, if the defendant does not avail of s21, the common law rule of strict liability applies.

4. Can a Malicious State of Mind Destroy a Defence? – Fair Comment and Qualified Privilege

With regard to fair comment and qualified privilege, it is for the defendant to establish each of the elements which go to make up the defence in question. However, if the plaintiffs thereafter succeed in establishing malice on the part of the defendant, this will defeat the defence. The state of mind of the defendant while making the publication is a highly relevant factor; it may be a point on which the defence stands or falls.

5. Can an Innocent State of Mind Mitigate Damages?

It was argued at para 131 above that the authority prior to Lynch v Irish Press Ltd tended to the view that the defendant's state of mind may reduce damages. However, the view was accepted by O'Hanlon J in the Lynch case (as reported by the press) that there was no authority to support this


48

[1910] AC 20. See para 26 above for facts.

49

Section 21(5)(a).



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proposition. On balance, it seems that the point remains open as the question does not appear to have been fully argued before O'Hanlon J.50

B. Where the State of Mind is Not Relevant

158.

The defendant's state of mind is not relevant to the determination as to whether a statement is defamatory. This is measured according to a community standard, represented by the jury.

159.

The defendant's state of mind is not relevant to the issue of falsity. If a statement of fact is false, it is no defence for the defendant to say that he has reasonable grounds for believing in its truth. Where the defendant cannot prove the truth of a defamatory statement, the only defence available is privilege.


50

See Sunday Tribune, 12 February 1989.



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PART 2: THE LAW IN THE UNITED STATES

160.

In the discussion of Irish defamation law which the publication of the Law Reform Commission's Consultation Paper will produce, references to United States law will most certainly be made. This is for a number of reasons. First, American jurisprudence on defamation has undergone a radical transformation in the last 25 years and has rejected much of the common law framework in this area. Secondly, the changes effected were achieved under the guidance of a Constitutional guarantee of free speech. The parallel with Ireland is obvious. Thirdly, many cases emerging over that period were dealt with by the United States Supreme Court, thus providing a unique opportunity to see continuous treatment of a single topic by the final court of appeal in that jurisdiction. Already a number of defences drawing inspiration from United States law have been proposed to the Commission and are discussed at a later point. We therefore feel that a thorough examination of United States law is vital, and have set out the case law in detail together with a discussion of the merits of the American system in both its theoretical and practical aspects.



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CHAPTER 5: UNITED STATES CASE LAW

(a) The Birth of the Public Official Doctrine

161.

The leading American case in the context of modern defamation law is New York Times v Sullivan, a decision of the United States Supreme Court in 1964.1 This is the case which set the Supreme Court upon its path of the public figure/private figure dichotomy in defamation law. However, in some senses, the stage was set for a major reform in the area of defamation in a 1931 decision, Near v Minnesota.2 In that case, the Supreme Court interpreted the First Amendment of the Constitution and its guarantee of free speech as prohibiting prior restraints on freedom of speech in all but a few cases. The majority opinion, delivered by Chief Justice Hughes, justified the removal of prior restraint by pointing to the availability of the action in defamation after publication:

“Public officers, whose character and conduct remain open to debate and free discussion in the press find their remedies for false accusation in actions under libel law as providing for redress and punishment, and not in proceedings to restrain the publication of newspapers and periodicals.”3

The fact that the First Amendment had an effect on prior restraints of speech clearly had implications for restrictions on or punishments for speech once published. As one writer puts it:

“As understood in Near, prior restraint and common law actions were substitutes for one another. The injunction can be removed from the


1

(1964) 376 US 254.

2

283 US 697.

3

283 US 697, at 718–9, per Hughes, CJ.



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plaintiff's legal arsenal precisely because the common law action remains. Yet once the two are recognised as substitute forms of social control, it becomes hard to say that one mode of control is subject to constitutional restraint while the other remains wholly beyond constitutional review.”4

That opportunity to review the common law rules on defamation arose in New York Times v Sullivan. The dispute arose out of the publication in the New York Times of a page advertisement alleging violation of black civil rights in Alabama. Although the plaintiff was not specifically referred to, he claimed to have been defamed in his capacity as supervisor of the police department. The local jury awarded $500,000 damages and the Supreme Court of Alabama affirmed.

There was arguably a number of ways in which the plaintiff's appeal to the United States Supreme Court could have been disposed of.5 However, the Supreme Court chose to carve out a whole new standard for the law of defamation. It singled out public officials as a special category of plaintiff and replaced the common law rule of strict liability with a narrowly defined fault criterion:

“The Constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice', that is with knowledge that it was false or with reckless disregard of whether it was false or not.”6

Henceforward a defendant could make false defamatory statements about a public official without fear of a defamation action, unless the plaintiff could show the defendant actually knew the statement was false or was reckless as to its falsity. It is crucial to note that the Supreme Court's definition of malice is an entity quite distinct from malice at common law. It has since been held that proof of actual malice must be “clear and convincing”. In Bose Corp v Consumers Union of United States7 the court held that the plaintiff must “demonstrate with clear and convincing evidence that the defendant realised that his statement was false or that he subjectively entertained serious doubts as to the truth of the statement.”8

Pausing for a moment, it is worth recalling that the facts giving rise to this innovation involved high-level official conduct in relation to a fiercely controversial issue, namely the civil rights debate. Epstein writes:


4

Epstein, Was New York Times v Sullivan Wrong? 53 U Chicago L Rev 782, 789.

5

See below, p184.

6

376 US 254, at p.279–80, per Brennan, J.

7

466 US 485 (1984).

8

Ibid at 511, n 30.



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“[T]he great principle of New York Times was that there was no such thing as seditious libel. Criticism of the government was to be regarded as protected from both criminal punishment and private defamation suits, while false statements of fact about public officials received a qualified privilege rendering them actionable only in cases of 'actual malice' carefully circumscribed in New York Times to cover only statements published 'with knowledge that it was false or with reckless disregard of whether it was false or not'.

“and

“[At] the time the decision was, if anything, viewed more as a victory for the civil rights movement .... The desire to reach the right result in New York Times had as much to do with the clear and overpowering sense of equities arising from the confrontation over racial questions as it did with any strong sense of the fine points of the law of defamation. The source of many of the modern problems with the law of defamation is that the New York Times decision was influenced too heavily by the dramatic facts of the underlying dispute that gave the doctrine its birth.”9

From another viewpoint the New York Times decision was an attempt to use the substantive rules of law to curb high damages awards –

“When the inflationary increase in tort verdicts produced a libel judgment of half a million dollars, the Supreme court in New York Times v Sullivan responded by imposing constitutional constraints on the damage action. The New York Times decision rested on concern that truthful, socially desirable speech would be debarred by the threat of libel judgments virtually unlimited in amount ... Rather than reduce this chilling effect by directly limiting the damage amounts recoverable in libel actions, however, the Court instead chose an indirect means: it engrafted a new substantive element onto the existing common law elements of the plaintiff's case, holding that plaintiffs could recover damages only if they proved that the defendant acted with a culpable state of mind”.10

A crucial point about New York Times v Sullivan is that it concerned false statements of fact. The correct analogy is therefore with our defence of justification, and not the defence of fair comment. It is sometimes stated that New York Times opened up the way for “criticism” of public officials. This is misleading. In cases of real comment or opinion, the common law defence of fair comment would have applied. Indeed, opinion statements have become


9

Epstein, Was New York Times v Sullivan Wrong? 53 U Chicago L Rev 782, at 782 respectively.

10

Barrett, Symposium: New Perspectives in the Law of Defamation: Declaratory Judgments for Libel: A Better Alternative, 74 Calif L Rev 847, 854.



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non-actionable in the United States.11 However, it is inaccurate to think of New York Times as applying to expressions of opinion; it applies to statements of fact.

The range of plaintiffs coming within the New York Times innovation were public officials. It was inevitable that further definition of this concept would be required. A number of decisions followed in which it was necessary for the Supreme Court to decide whether a specific plaintiff was a 'public official' for this purpose. In Rosenblatt v Baer12 the plaintiff was a supervisor of a county-owned ski recreation centre. Was he a public official, and if so, why? The Supreme Court answered as follows:

“[A person is a public official if] the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees .... the employee's position must be one which would invite public scrutiny and discussion of the person holding it, entirely apart from the scrutiny and discussion occasioned by the particular charges in controversy.”

Moreover, the statements complained of must consist of statements reflecting on the person in their capacity as that public official. Statements about fitness for office would therefore clearly come within the New York Times protection. As a result, the Supreme Court was asked to decide whether particular charges touched on fitness for office, and whether long forgotten charges would come within the New York Times protection. In Garrison v Louisiana13, the Supreme Court held that charges of laziness and inefficiency in relation to judges were charges touching on fitness for office. Accordingly, they came within the New York Times protection and the statements were actionable only on proof of malice. In Monitor Patriot Company v Roselle A Roy14 it held that charges involving illegal conduct some forty years previously were not too remote to come within the protection, because a charge of criminal conduct would always be relevant to fitness for office. It will be remembered that none of these charges would be actionable unless the plaintiff could show that the defendant actually knew the statement was false, or was reckless as to its falsity. Otherwise, the truth of the statement would not be at issue.

This could lead to some curious results, as shown by Ocala Star-Banner v Damron.15 A Leonard Damron was running for election as county tax assessor. A reporter telephoned a story to his newspaper that James Damron (Leonard's brother) had been indicted for perjury by a grand jury. The editor had never heard of James Damron, and the newspaper reported that Leonard


11

See below, p177 et seq.

12

383 US 75.

13

379 US 64.

14

401 US 265.

15

401 US 295.



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Damron had been charged in a Federal Court with perjury in a civil rights suit. The jury awarded compensatory damages to the plaintiff and the Florida District Court of Appeal affirmed. On certiorari, the United States Supreme Court reversed and remanded, holding that a charge of criminal conduct is never irrelevant to an official's fitness for office. Accordingly the plaintiff could not maintain an action in defamation. The case illustrates the extent of the New York Times protection where the plaintiff is unable to prove malice.

(b) Transition from Public Official to Public Figure

162.

Meanwhile, in 1967 the Supreme Court had embarked on an extension to the New York Times protection by widening it to cover statements made about a greater range of plaintiffs. The category of “public officials” who would have to overcome the New York Times hurdle in a defamation action was expanded to include “public figures” generally. This was the result of two cases decided together;16Curtis Publishing Company v Butts and Associated Press v Walker. In the Butts case, the defamatory matter consisted of a Saturday Evening Post article claiming that the athletic coach of the University of Georgia had “fixed” a football game. The plaintiff in the Walker case was a retired General challenging a report that he had led a violent crowd in opposition to a desegregation decree at the University of Mississippi. Chief Justice Warren stated:

“[D]ifferentiation between 'public figures' and 'public officials', and adoption of separate standards of proof for each have no basis in law, logic, or First Amendment policy. Increasingly in this country, the distinction between governmental and private sectors are blurred. It is plain that although they are not subject to the restraints of the political process, 'public figures', like 'public officials', often play an influential role in ordering society. And surely as a class these 'public figures' have as ready access as 'public officials' to mass media, to influence policy and to counter criticism of their views and activities. Our citizenry has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate about their involvement in public issues and events is as crucial as it is in the case of 'public officials'.”

As a result, the public figure was to be equated with the public official for the purposes of the New York Times rule. The 'public figure' was defined in the Butts case as including persons “ultimately involved in the resolution of important public questions or (who), by reason of their fame, shape events in areas of concern to society at large”.17 This definition therefore included figures who drew public attention through no desire of their own. In Time


16

At 388 US 130.

17

Ibid, p164.



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Incorporated v Hill18 the plaintiff and his family had attracted the public's attention because they were held hostage in their home by some escaped convicts. They subsequently discouraged publicity efforts about the incident, which had caused extensive involuntary notoriety. A novel, and then a play, about a hostage incident later appeared, and the magazine Life published an account of the play relating it to the Hill incident. The plaintiff sued for damages under a New York statute providing a cause of action to a person whose name or picture is used by another without consent for the purposes of trade or advertising. The Supreme Court held that the New York Times standard applied to the New York statute and held that the trial court's failure to direct the jury accordingly constituted reversible error. The essential point, however, although it was not a defamation action, is that the New York Times standard was held to apply to the plaintiff despite active efforts on his part to resist publicity.

At this point, the momentum of the Supreme Court was towards expanding the New York Times rule. It reached a certain point, as will be seen below, and began to constrict again. This wide definition of public figure would be cut down in time. However, before that development, another innovation was taking place.

(c) The Public Interest Experiment

163.

The Supreme Court had moved from “public officials” to “public figures”, and had defined the latter in a manner emphasizing the nature of the person's activities and influence. As if looking for a peg on which to hang the New York Times rule, it seized on this aspect of the “public figure” category to formulate a new concept on which to base the rule, namely “public interest”. If the real reason for allowing debate about public officials and public figures was because of the activities in question, it seemed logical to base the rule on the public nature of these activities. The focus was therefore shifted from the status of the plaintiff to the content of the publication.

This was the holding of the plurality opinion in Rosenbloom v Metro Media19 where the split in views evidenced the problems posed by the major reshaping of defamation law. A magazine distributor had been described in a radio broadcast as a “smut merchant”. One judge, Mr Justice Black, took his by now customary absolutist view, holding that the First Amendment gave the press complete immunity from libel actions. Mr Justice White thought that there should be a complete immunity except where malice was present. The three dissenting judges argued that a fault concept should replace strict liability in public interest cases and that only actual damages should be allowed. The plurality opinion, however, held that the New York Times rule applied because the subject matter was one of public interest. Mr Justice Brennan expressed the plurality opinion as follows:


18

385 US 374.

19

403 US 29.



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“If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not 'voluntarily' choose to become involved. The public's primary interest is in the event; the public focus is on the conduct of the participant and the content, effect, and significance of the conduct, not the participant's prior anonymity or notoriety. [We] honour the commitment to robust debate on public issues [by] extending constitutional protection to all discussion and communication involving matters of public or general concern without regard to whether the persons involved are famous or anonymous.”

The result of this would be that wherever a defamatory statement of fact were made about a person which involved a matter of public interest, that person would have no redress unless he could prove that the defendant knew of, or was reckless as to, the falsity of the statement. However the “public interest” experiment was soon to be abandoned.

(d) Public Figures Restored: New Law for Private Figures

164.

The second leading case in American defamation law is Gertz v Welch.20 The plaintiff was a lawyer who had been retained by a family in a civil suit against a policeman who had been convicted of murder. A magazine called 'American Opinion' accused Gertz of being the architect of a frame-up of the policeman in the murder trial, and called him a “Communist-fronter”. The District Court entered judgment for the defendant on the basis that the plaintiff was a public figure and had failed to prove malice on the part of the defendant. However the United States Supreme Court allowed the appeal, holding that Gertz was not a “public figure”. The test of public interest was dropped. The court affirmed the public/private figure dichotomy and set out the guiding considerations for each category.

(i) Public Figures– These were defined as governmental officers and those who by reason of the notoriety of their achievements, or the vigour and success with which they sought the public's attention, were properly classed as public figures. The New York Times test was retained for these plaintiffs. A plaintiff falling into this category would therefore have an action in defamation only if he could prove that the statement was made with knowledge of its falsity or reckless disregard of its truth. The justification for this harsher rule was (i) that such persons would usually enjoy a greater access to channels of communication and have an opportunity to correct false statements, and (ii) that such persons would have voluntarily exposed themselves to the risk of defamatory falsehood, unlike a private individual.

(ii) Private Figures– The test of the dissentients in Rosenbloom was adopted. Such individuals could recover damages in respect of defamatory falsehood provided fault on the part of the defendant was shown. Although this was a


20

418 US 323 (1974).



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less harsh rule than the public figure rule, it still represented a departure from the common law strict liability position:

“We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehoods injurious to a private individual. This approach provides a more equitable boundary between the competing interests involved here. It recognises the strength of the legitimate State interest in compensating private individuals for wrongful injury to reputation, yet shields the press and broadcast media from the rigours of strict liability for defamation.”

The essential difference between public and private figure plaintiffs was therefore that negligent statements of fact could be made about public figures, but not about private individuals.

(e) The question of punitive damages

165.

The Court in Gertz v Welch went on to set out guidelines for damages. Actual damages only could be recovered, unless there was knowledge of falsity or reckless indifference to truth. It would seem that the statement of Powell J. allows room for punitive damages where such knowledge or recklessness is present, and therefore in all cases where a public figure has overcome the New York Times actionability hurdle:

“[W]e hold that the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.”

That this leaves the way open for an award of punitive damages where actual malice is supported by the statement by O'Connor, J in the later case of Hepps v Philadelphia Newspapers:

“In addition, the Court in Gertz expressly held that, although a showing of simple fault sufficed to allow recovery for actual damages, even a private-figure plaintiff was required to show actual malice in order to recover presumed or punitive damages.”21

A later case, Dun & Bradstreet Inc v Greenmoss Builders Inc22 limited the above holdings to cases where the speech was of public concern. In that case, there was a private figure plaintiff and speech of purely private concern. The court held that in such a case, punitive damages could be recovered without a showing of actual malice.


21

475 US 767, 774.

22

472 US 749.



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The result would seem to be as follows:

In cases where the speech is of public concern;


(a)


Where the private figure shows that the defendant was at fault, he may recover actual damages.


(b)


Where the private figure shows that the defendant was not only at fault, but actually knew of the falsity of the statement or was reckless as to its truth, he may recover punitive damages.


(c)


The public figure will have difficulty bringing an action in the first place, because he will have to show actual knowledge or reckless disregard for truth. However, if he succeeds in overcoming this hurdle, he is apparently entitled to punitive damages.

In cases where the speech is of purely private concern,


(d)


The private figure plaintiff may recover punitive damages without a showing of actual malice.

An important point to note is that “actual damage” was widely defined. Unlike “special damage” at common law, it is not equated with financial loss. Mr Justice Powell stated specifically that it was “not limited to out-of-pocket loss” and that “the more customary types of actual harm inflicted by defamatory falsehood included impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering”.

This would appear to be similar to our compensatory damages. Perhaps the difference is that evidence of such damage must be adduced by the plaintiff, and is not presumed by the court. However, one writer has stated as follows:

“The Gertz 'limitation' of recovery under the negligence standard to 'actual injury' has proven illusory. The Gertz court defined 'actual injury' to include personal humiliation, and mental anguish and suffering, 418 US at 350; the court later held that this could mean emotional injury alone. See Time Inc. and Firestone, 424, US 448, 458–61 (1976). Thus, the court kept the door open for virtually unlimited awards for 'actual' mental suffering.”23

(f) The Category of Public Figures Narrows

166.

The holding in Gertz that the plaintiff was not a public figure, and the emphasis of the court that a public figure must have voluntarily placed himself in that position, started a trend in reading the public figure category restrictively. Mr Justice Powell cautioned against finding the person to be a


23

Barrett, Supra footnote 10 at p. 854 n. 45.



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public figure too readily:

“We would not lightly assume that a citizen whose participation in community and professional affairs rendered him a public figure for all purposes. Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life. It is preferable to reduce the public figure question to a more meaningful context by looking at the nature and extent of an individual's participation in the particular controversy giving rise to the defamation.”

In Time Incorporated v Firestone24 the plaintiff had been involved in a sensational divorce case and the defendants argued that she had become a public figure by virtue of this publicity and press interviews given by her. The Court refused to hold that the plaintiff was a public figure on the basis that she had been involuntarily drawn into the public forum. In Hutchinson v Proxmire25 the plaintiff was a scientist whose federally funded research had been described by the defendant Senator as an example of wasteful government spending. Again the court held that the failure of the plaintiff to throw himself into public controversy prevented him from being a public figure. And in 1979, the plaintiff in Wolston v Readers Digest Association Inc26 brought an action in defamation because a book had listed him as a Soviet Agent. In 1958, this person had been briefly in the public eye after his failure to appear before a grand jury investigating Soviet espionage, which resulted in a criminal conviction for contempt. The mere fact of his being cited for contempt was held to be insufficient reason to render him a public figure in the context of statements about Soviet espionage. Thus, while the New York Times standard continues to apply to “public figure” plaintiffs, it seems that this category is restrictively construed.

(g) The content of the speech re-enters the equation

167.

It was pointed out at (c) that the Supreme Court in Rosenbloom v Metro Media27 flirted with the idea of replacing the “public figure” concept with a “public interest” criterion. This was discarded in Gertz v Welch28. However, following Dun & Bradstreet, the content of the speech would seem to have re-entered the equation, but this time as an additional, rather than an alternative, requirement. In that case, the court held that where the speech did not concern matters of public interest, awards of presumed and punitive damages could be made under standards less stringent than New York Times and Gertz:


24

424 US 488.

25

443 US 111 (1979).

26

443 US 157 (1979).

27

Supra, fn.

28

Supra, fn.



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“In light of the reduced constitutional value of speech involving no matters of public concern, we hold that the State interest adequately supports awards of presumed and punitive damages – even absent a showing of actual malice”.29

Following the Greenmoss case, we may conclude that the appropriate level of protection for speech in United States law depends on the configuration of the case, with three variables involved:

“The Court has discussed three factors in dividing defamation cases into various categories, which receive different levels of constitutional protection. The factors are whether the plaintiff is a public official, public figure, or private figure, whether the defendant is a member of the media and, finally, whether the subject-matter of the alleged defamatory speech is public or private. The permutations of these variables lead to a large number of categories, each with its own set of applicable standards”.30

It may be noted that only the issue of damages was before the court in Dun and Bradstreet. It leaves open the question whether the Gertz fault standards are also swept away where the speech is of private concern and the plaintiff is a private individual.

(h) The Final Step: Reversal of the presumption of falsity

168.

In New York Times and Gertz, the primary issue was fault in relation to truth. The public figure plaintiff would have to show that the defendant knew of or was reckless as to the falsity of the statement. The private figure plaintiff would have to show some less stringent standard of fault in relation to falsity. However, these cases left undisturbed the common law presumption of falsity, which places the burden of proof of truth on the defendant. The sequence of trial would therefore be as follows: (1) The plaintiff shows the statement is defamatory; (2) the Court presumes the falsity of the statement; (3) the plaintiff shows the defendant is at fault (private plaintiff) or acted with malice (public plaintiff). It might have been thought that a part of the plaintiff's case in showing fault would be a showing of falsity. However, the Supreme Court in 1986 chose to reverse this presumption so that (2) above would read as follows: “The plaintiff shows the falsity of the statement”.

This reversal was effected in Hepps v Philadelphia Newspapers.31 The newspaper


29

Ibid, at 761. Interestingly, the false “fact” asserted in that case consisted of an inaccurate credit report stating that a building contractor had filed a voluntary petition for bankruptcy. The holding that this was a matter of private concern has been criticised on the basis that the bankruptcy announcement of a local company is information of great concern to residents of the community in which the company is located; See Kellerman, 54 U Cin L Rev 1375, 1392.

30

Kalm, 62 NYUL Rev, 812, 813.

31

(1986) 475 US 767.



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had published a series of articles alleging that the plaintiff corporation had links with organised crime and had used these to influence the State's governmental processes. The trial court, a Pennsylvania State court, instructed the jury that the burden of proving falsity was on the plaintiff. The Pennsylvania Supreme Court remanded the case for a new trial, holding that a showing of fault did not require a showing of falsity, and that the burden of proving truth was on the defendant.

In the United States Supreme Court, O'Connor J, delivering the opinion of the Court, stated:

“We believe that the common law's rule on falsity – that the defendant must bear the burden of proving truth – must similarly fall here to a constitutional requirement that the plaintiff bear the burden of showing falsity, as well as fault, before recovering damages.”32

O'Connor J justified this rule on the basis that a presumption either way would be of significance only in cases of doubt or ambiguity, and that in areas of public concern, the presumption should operate in favour of free speech –

“Because the burden of proof is the deciding factor only when the evidence is ambiguous, we cannot know how much of the speech affected by the allocation of the burden of proof is true and how much is false. In a case presenting a configuration of speech and plaintiff like the one we face here, we believe that the Constitution requires us to tip them in favour of protecting true speech. To ensure that true speech on matters of public concern is not deterred, we hold that the common-law presumption that defamatory speech is false cannot stand when a plaintiff seeks damages against a media defendant for speech of public concern.”33

O'Connor J thought that in most cases this reversal would be of little practical significance for the plaintiff:

“We note that our decision adds only marginally to the burdens that the plaintiff must already bear as a result of our earlier decisions in the law of defamation. The plaintiff must show fault. A jury is obviously more likely to accept a plaintiff's contention that the defendant was at fault in publishing the statements at issue if convinced that the relevant statements were false. As a practical matter, then, evidence offered by the plaintiffs on the publisher's fault in investigating the truth of the published statements will generally encompass evidence of the falsity of the matters asserted.”34


32

Ibid, at 776.

33

Ibid, at 776–7.

34

Ibid, at 778.



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It is crucial to note that this reversal of presumption was effected only in cases where the speech is of public concern. It is this factor which tips the presumption in favour of speech. Presumably, in a case where the speech is of private concern, the common law rule continues to apply. More worrying, however, is O'Connor J's reference to “media” defendants. In practice, the defendant is more than likely to be a media defendant. It may be, however, that a new theoretical distinction was introduced. Strictly speaking, the new presumption operates where the speech is of public concern and the defendant is a media organ. Brennan J wrote a separate concurring opinion in which he adverted to this point:

“I write separately only to note that, while the Court reserves the question whether the rule it announces applies to non media defendants ...., I adhere to my view that such a distinction is irreconcilable with the fundamental First Amendment principle that the inherent worth of .... speech in terms of its capacity for informing the public does not depend upon the identity of the source, whether corporation, association, union, or individual.”35

A vigorous dissent in the Hepps case was written by Stevens J, with whom Burger CJ, White and Rehnquist JJ agreed. He argued that the new presumption would undoubtedly benefit defendants, but only unmeritorious defendants:

“The issue the Court resolves today will make a difference in only one category of case – those in which a private individual can prove that he was libelled by a defendant who was at least negligent. For unless such a plaintiff can overcome the burden imposed by Gertz v Robert Welch Inc 418 US 323, 347 (1974) he cannot recover regardless of how the burden of proof on the issue of truth or falsity is allocated. By definition, therefore, the only litigants –and the only publishers – who will benefit from today's decision are those who act negligently or maliciously.”

Accepting that a risk would have to be borne by either the plaintiff or the defendant, Stevens J disagreed with the majority that the plaintiff should be required to bear the risk, in light of the fact that the defendant had made the statement “either with a mind toward assassinating his good name or with careless indifference to that possibility”.

Stevens J also accepted the view of the majority that the reversal of the presumption would make little practical difference in most cases. However, he observed –

“That allocation of the burden of proof is inconsequential in many cases provides no answer to cases in which it is determinative”.


35

Ibid, at 779.



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He noted also that proof of fault would not necessarily entail proving falsity. A plaintiff could show negligence in the way in which the material was gathered, regardless of truth or falsity. Stevens J thought that in a case where the plaintiff could show the defendant was at fault in the reckless way he collected the material, the presumption advocated by the majority would achieve an unjust and unconstitutional result:

“To appreciate the thrust of the Court's holding, we must assume that a private-figure libel plaintiff can prove that a story was published with 'actual malice' – that is, without the publisher caring in the slightest whether it was false or not. Indeed, in order to comprehend the full ramifications of today's decision, we should assume that the publisher knew that it would be impossible for a court to verify or discredit the story and that it was published for no other purpose than to destroy the reputation of the plaintiff. Even if the plaintiff has overwhelming proof of malice .... the Court today seems to believe that the character assassin has a constitutional licence to defame. In my opinion deliberate, malicious character assassination is not protected by the First Amendment to the United States Constitution.”

However, the result of the majority holding in Hepps is that where speech is of public concern, the plaintiff must show falsity as a prior matter to showing malice (in the case of a public figure plaintiff) or fault (in the case of a private plaintiff).

(i) Reservations as to the modern caselaw

169.

All of these developments were, as we have seen, emphatically grounded on the First Amendment guarantee. At its most extreme, this viewpoint is to be found in the view of Jefferson which was cited by Douglas J in Gertz v Welch;

“Libels, falsehoods and defamation, equally with heresy and false religion, are withheld from the congnizance of federal tribunals”.

Thus, in New York Times, Black J stated the majority view in its starkest form:

“In my opinion, the Federal Constitution has dealt with the deadly danger to the press in the only way possible – without leaving the free press open to destruction – by granting the press an absolute immunity for criticism of the way public officials do their public duty”.

But dissentient views emerged at a relatively early stage in the court. Thus, Stuart J in Rosenblatt v Baer gave early expression to unease at the new developments:

“The protection of private personality, like the protection of life itself, is left primarily to the individual States under the 9th and 10th



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Amendments. But this does not mean that the right (to the protection of the individual's good name) is entitled to any less recognition by this court as a basic of our constitutional system”.

It is interesting to note that some of the most cogent restatements of the orthodox law are to be found in the dissenting opinions of White J in recent cases: interesting because White J had joined the majority opinion in New York Times. Thus, he had this to say in Gertz v Welch:

“I doubt that jurisprudential resistance to liability without fault is sufficient ground for employing the First Amendment to revolutionise the law of libel and, in my view, that body of rules poses no realistic threat, to the press and its service to the public. The press today is vigorous and robust. To me, it is quite incredible to suggest that threats of libel suits from private citizens are causing the press to refrain from publishing the truth. I know of no hard facts to support that proposition and the court furnishes none.”

“The communications industry has increasingly become concentrated in a few powerful hands operating very lucrative businesses reaching across the nation into every home. Neither the industry as a whole nor its individual components are easily intimidated and we are fortunate they are not. Requiring to pay for the occasional damage they do to private reputation will play no substantial part in their future performance or their existence”.

In Dun & Bradstreet v Greenmoss, the same Justice made explicit his reservations about the view which he had previously held as a member of the majority in New York Times:

“I have also become convinced that the court struck an improvident balance in the New York Times case between the public's interest in being fully informed about public officials and public affairs and the competing interest of those who have been defamed in vindicating their reputation”.

He went on to associate himself, to some extent at least, with those who criticised the New York Times decision on the ground that it needlessly jettisoned the common law standard of liability in defamation and summed up his view as follows:

“I suspect that the press will be no worse off financially if the common law rules were to apply if the judiciary was careful to insist that damages awards be kept within bounds. A legislative solution to the damages problem would also be appropriate”.

Even stronger criticism of the majority decisions in New York Times and its progeny can be found in such remarks as those of Stewart J in Rosenblatt v



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Baer:

“Surely if the 1950s taught us anything, they taught us that the poisonous atmosphere of the easy lie can infect and degrade a whole society.”

And, to the same effect, Stevens J, dissenting, said in Hepps v Philadelphia Newspapers:

“By attaching no weight to the States' interest in protecting the private individual's good name, the court has reached a pernicious result”.

(j) The Status of Opinions in United States Law

170.

New York Times and its successors concerned defamatory statements of fact. This raises the question of how opinion statements are dealt with under the First Amendment. The prevailing view appears to be that opinion statements have been rendered non-actionable following the celebrated statement of Powell J. in Gertz v Welch:

“Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas”.36

However, unlike New York Times this turning point was not followed up by a succession of Supreme Court decisions. Unfortunately the two Supreme Court cases in which opinion statements have been at issue, the actionability of opinions is not faced squarely as an issue. The first of the two cases usually cited actually preceded Gertz v Welch. This is Greenbelt Publishing Assoc v Bresler37 where the Court held that the use of the word “blackmail” to describe the plaintiff developer's use of bargaining power did not amount to libel as a matter of law. However, it has been suggested that the holding of the court is open to a number of interpretations:38


(1)


The statement was protected because it was part of a fair report; the court characterised the story as an accurate and truthful report of what had been said at a public meeting and said that the newspaper was performing a legitimate community function in publishing the report.


(2)


The statement was protected because the use of the word “blackmail” in a rhetorical way negated the defamatory impact of the statement. On such a view, the court's holding was the result of the straightforward application of principles concerning defamatory effects and did not


36

418 US 323, at 339.

37

398 US 6.

38

Thomas, Statements of Fact, Statements of Opinion, and the First Amendment, 74 Calif. L. Rev. 1001.



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concern the First Amendment.


(3)


The statement was protected because it could not be considered an accusation of crime (i.e. a fact) in the context, since it was clear that the term had been employed as “rhetorical hyperbole, a vituperous epithet”. On this view the statement was protected precisely because it was an opinion.

The second case, Letter Carriers v Austin,39 was decided on the same day as Gertz. The subject matter consisted of trade union literature containing an abusive and insulting definition of a “scab”. Justice Marshall writing for the majority noted that federal labour policy required more protection for a union involved in a labour dispute than State law, and reasoned that the right to persuade others to join a union should not be easily stifled by threats of defamation. However he first cited Gertz as authority for the proposition that there must be a statement of fact to ground a libel action. It was held that even the most pejorative opinion would be protected under labour law. Despite this more limited holding, the court did recognise the legitimacy of the reasoning in Gertz. It is also noteworthy that it interpreted Greenbelt as authority for the opinion privilege i.e. interpretation 3 suggested above.

The result of this scanty case law is that the opinion doctrine is subject to some controversy. One commentator states the doctrine is not yet settled.40 On the other hand, the recent Annenburg Washington Report assumes that opinion statements are not actionable:

“[S]tatements of opinion are never actionable in a cause of action for defamation. This principle is now entrenched in federal constitutional law”.41

Another writer states that most federal and state courts have interpreted Gertz as providing absolute constitutional protection for opinions, but admits that there is confusion as to how the distinction between fact and opinion is to be drawn and the exact contours of the privilege.42 We adopt the following statement as the most concise analysis of the situation:

“Nearly every jurisdiction in the United States cites the Gertz dictum as binding constitutional authority. Although the Supreme Court has not yet directly ruled on the issue, one recent Supreme Court opinion has implicitly accepted the lower courts recognition of a constitutional privilege for statement of opinion.43 On the other hand, some members of the court have questioned the validity of this view. It remains to be


39

418 US 264.

40

Elder, Defamation and Freedom of Expression, 35 ICLQ 891, 921.

41

Report, p.20.

42

See Berritt, The Fact Opinion Distinction in Libel Law, 52 Brooklyn L. Rev. 879.

43

Base Corp. v Consumers Union Inc. 104 S.Ct. 1949, 1961 (1984).



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determined whether the common-law predecessor of the constitutional privilege for opinions, the fair comment privilege, has become obsolete.”44

It is interesting to note that if the lower courts have seized upon the Gertz dictum to abolish the law on fair comment, this may not have been the result intended by the court in that case. Justice Rehnquist, who joined in Powell J's opinion in Gertz, subsequently stated:

“At the time I joined the opinion in Gertz, I regarded this statement as an exposition of the classical views of Thomas Jefferson and Oliver Wendell Holmes that there is no such thing as a false 'idea' in the political sense, and that the test for truth for political ideas is indeed the market place and not the courtroom. I continue to believe that is the correct meaning of the quoted passage. But it is apparent from the cases cited by petitioner that lower courts have seized upon the word 'opinion' in the second sentence to solve with a meat axe a very subtle and difficult question, totally oblivious of the rich and complex history of the struggle of the common law to deal with this problem”.45

While the lower courts appear to be implementing the 'non-actionability for opinion' doctrine, there appears to be a lack of uniformity in their method of application. One writer discerns two approaches currently being used.46 The first approach categorically prohibits actionability in respect of any type of opinion, once a statement has been characterised as such. Accordingly it becomes crucial to distinguish between fact and opinion and various tests are used to this end – the verifiability test, the totality of circumstances test, or combination of these two.

The second approach is based on the Restatement (Second) of Torts (1977). Section 566 provides –

“A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion”.

The section thereby retains actionability for “mixed” as opposed to “pure” statements of opinion. A “pure opinion” is one which sets out the facts on which it is based, or refers to facts already known to the general public. A “mixed” opinion is one that is apparently based on facts which are neither stated or implied. We find the terminology of “pure” and “mixed” opinions misleading and prefer the terms “supported opinion” and “unsupported


44

Thomas, supra footnote 38, at p1008.

45

Justice Rehnquist dissenting on the Court's denial of certiorari in Ollman v Evans 105 S Ct 2662 (1985).

46

Thomas, supra footnote 28.



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opinion”. The following examples illustrate the different types of opinion under the restatement test:


1.


An article sets out certain facts and says “X is dishonourable”.


2.


An article discusses a TV station and concludes “It is a low-quality station”.


3.


An article states that the behaviour of X was dishonourable.

Example 1 would be “pure” (supported) opinion because the facts supporting the conclusion are set out. Example 2 is also pure (supported) opinion because the facts on which the conclusion is based, the content of the TV station's broadcasting, are a matter of public knowledge. Example 3 is a “mixed” or (unsupported) opinion since no facts are in any way pointed to as foundation for the opinion.

The rationale for differentiating between the two types of statement was given by the Eight Circuit as follows:

“This stricture on publication of opinion rests on the assumption that, given all the facts of a situation, the public can independently evaluate the merits of even the most outrageous opinion and discredit those that are unfounded. On the other hand, when an opinion held out for belief is stated so that the average listener could infer that the speaker had an undisclosed factual basis for holding the opinion, the listener does not have the tools necessary to independently evaluate the opinion and may rely on unfounded opinion that defames an individual.”47

It does not appear that there is any requirement that the facts to support a “pure opinion” be proved true. If this is correct, then this test only superficially resembles the common law requirement that the comment must be based on fact to avail of the defence of fair comment, for the common law imposes the additional requirement that such facts be proved true.


47

Lauderback v American Broadcasting Co. 741 F.2d. 193, 195–96 (8th Cir. 1984).



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CHAPTER 6: COMPARISON BETWEEN UNITED STATES AND IRISH DEFAMATION LAW

171.

For purposes of clarity, the following is a brief summary of the essential differences between current United States and Irish law on defamation.


1.


United States law is built on a public figure/private figure dichotomy. In our law, there is no such distinction. All plaintiffs are subjected to the same standards. Distinctions are made on the basis of the content of the speech. Thus, if a statement is one of fact, the defendant must either justify or point to an occasion of privilege, irrespective of the identity of the plaintiff. If the statement is one of opinion, the defendant may avail of the defence of fair comment, irrespective of the identity of the plaintiff.


2.


In the United States, a public figure can bring an action in respect of a defamatory statement of fact only if he shows the publisher had knowledge of the falsity of the statement, or was reckless as to its truth. In Ireland, public and private figures alike can bring actions in respect of defamatory statements of fact without having to show any fault on the part of the defendant. On the issue of truth, the Irish position is one of strict liability.


3.


In the United States, a private figure can bring an action in respect of a defamatory statement of fact only if he shows fault on the part of the publisher. The appropriate fault criterion is left to the individual States, but it must at least consist of negligence. In Ireland, as stated above, the plaintiff need not show fault in relation to falsity.


4.


In the United States, where the speech is of purely private concern, the same standards appear to apply as in Ireland. In Ireland, defamation law does not distinguish between actions for defamatory statements of



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fact on the basis of whether the speech is of public or private concern. The truth of the statement continues to be the decisive criterion. However, a remedy under privacy law may be available to the plaintiff if the speech is of purely private concern. In the case of defamatory comments, there is a distinction between speech of public interest or speech of private interest. The defence of fair comment will fail unless the subject-matter of the comment is one of public interest. Therefore, there is no defence for defamatory comments on matters private to the plaintiff. Furthermore, the plaintiff may have an action under privacy law for comments of any kind on his private life.


5.


In the United States, the general view is that no person can bring an action in respect of defamatory statements of opinion although the contours of this privilege are uncertain.

In Ireland, a plaintiff may bring an action in respect of defamatory statements of opinion, but the defendant may resort to the defence of fair comment. This allows a defence for a wide range of comment provided the supporting facts are true, although it may be defeated by a showing of malice on the part of the defendant.


6.


In the United States, where the speech is of public interest damages are confined to actual damages, unless there is a showing of knowledge of falsity or reckless disregard for truth. In such a case, it would seem that punitive damages may be awarded. Where the speech is of private concern, punitive damages may be awarded without a showing of actual malice. In Ireland, general damages are presumed, and it is probable that punitive damages may still be awarded under present law. However, there is no distinction based on the type of speech or the element of fault, at least in theory. The difference between “actual” and “presumed” damages may be narrowed when it is recalled that “actual” damage is not confined to pecuniary loss.


7.


In the United States, the plaintiff in a defamation action involving speech of public concern must show falsity as a prior matter to showing malice or fault. To date this has been applied only where the defendant is a media organ. In Ireland there is a presumption of falsity in all cases, so that the onus is on the defendant to show truth.



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CHAPTER 7: THE COMMON LAW AND NEW YORK TIMES v SULLIVAN

172.

The modern United States law on defamation has its origins in the case of New York Times v Sullivan. The decision was hailed as a victory for freedom of speech and the removal of the fetters imposed on such freedom by the common law. In the discussion of the decision and its aftermath, an important point has often been overlooked. Could the proper application of the common law itself have reached a satisfactory result in the New York Times case? It is usually assumed that the common law rules would have allowed the plaintiff in that case to recover damages, an assumption which is fortified by the award of $500,000 by the Alabama jury. Yet most would agree that the plaintiff was not meritorious and such a result would have been unsatisfactory. The common law was deficient, the argument goes, and therefore something radical had to be done.

It is submitted that this assumption is incorrect. It is thought that the Supreme Court in New York Times could have reached a satisfactory conclusion without departing from common law principles, or at most, by refining those common law principles in a constitutional light. The award of $500,000 by the Alabama jury was not due to the application of common law principles; rather, it was due to their misapplication. This conclusion is supported by the comment of Epstein:

“My sense is that tried anywhere outside the deep South, the plaintiff would have been sent home packing. The common law was sound; its application was not.”1

If it is true that common law principles could have satisfactorily resolved the


1

Epstein, Was New York Times v Sullivan Wrong? 53 U chicago L Rev 782, 790.



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New York Times dispute, it seems that the United States Supreme Court turned its back on the easier course of applying and, where necessary, developing the common law and embarked on the arduous task of building up an entirely new body of defamation law fraught with its own difficulties. It is a reassuring lesson of caution for those of us who have not yet turned our backs on a body of law which has been built up over centuries.

173.

The following are ways in which it is suggested that the Supreme Court in New York Times could have dismissed the plaintiff's case by means of the application, or reform, of common law principles.


1.


Identification of the Plaintiff– The plaintiff was not specifically referred to in the article. This, at the very least, weakened his case. In the recent Irish case of Cole v RTE2 a jury found that an article in which the plaintiff was not named was not defamatory of the plaintiff. Alternatively, if the defendant argued that the article would have been understood by some people to refer to him, the jury could have been instructed that damages should only be awarded in respect of this smaller circulation of the libel. In Morgan v Odhams Press3 a new trial was ordered by the House of Lords precisely because the judge had failed to make a similar direction to the jury in a case of this kind.

One American judge has specifically adverted to this point:



“The Supreme Court could have vacated the award of damages to this plaintiff [i.e. Sullivan] on narrower, more traditional grounds, without having to create new constitutional doctrine. In fact, the Court expressly ruled as an alternative ground for reversal that the Times advertisement did not refer sufficiently to the plaintiff to support a libel judgement.”4


2


Damages– The Supreme Court could easily have held that the damages were excessive. The lack of precise identification of the plaintiff and the small local circulation of the publication would have weighed heavily against the plaintiff. Furthermore, the Supreme Court could have clarified the law as to when, if ever, punitive damages could be awarded. There would seem to be a very strong flavour of punishment about the award in the New York Times case which was probably not merited.


3.


Justification– A number of details in the defamatory article were incorrect. Under s22 of our Defamation Act, a defendant may justify even though he fails to prove the truth of all the statements contained in the Article, provided the unproved statements do not materially


2

Reported Irish Times, 5 May 1989.

3

[1971] 1 WLR 1239.

4

Leval, Commentary: The No-Money, No-Fault Libel Suit: Keeping Sullivan in its proper place, 101 Harv L Rev 1287, 1289.



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injure the plaintiff's reputation having regard to those proved true. Because of this provision, it is probable that the defendant in New York Times would have been able to justify and avoid liability completely. Here, the Supreme Court could have achieved a similar result by bringing the law into conformity with s22.

At least one American writer has criticised the manner in which the Court in New York Times approached the common law principles:

“[There was no reason to presume that] the common law rules crafted over many centuries struck the wrong balance between speech and reputation. There may be ample reasons for federal constitutional review of common law principles, but it need not follow that there is any parallel presumption for constitutional rejection of state common law principles .... If there is any presumption, it should be in favour of the constitutional permissibility of the common law rules.”

“Once it is recognised that the Alabama decision in New York Times was a common law abberation, the right Supreme Court strategy should have been to colonize as little as possible of the common law tort in its initial foray.”5


5

Epstein, supra, footnote 1, pp791–2.



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CHAPTER 8: AN ANALYSIS OF THE MERITS OF UNITED STATES DEFAMATION LAW

174.

(i) Arguments in favour of United States position

1.

The New York Times rule which applies to public figures has the undoubted advantage that it opens up discussion of the public activities of central figures in society. The media are no longer confined to the defence of justification in relation to false statements of fact. The Irish media say that they cannot get their sources to testify in open court with the result that they cannot avail of the defence of justification in many cases. (It is thought that, in any event, some of the sources would not survive cross-examination). Unless the statement comes within an occasion of privilege, they claim that they are effectively left without a defence. They argue that, under the New York Times test, they may publish statements of fact concerning public figures freely and without fear of having to exercise self censorship.

2.

New York Times has been criticised on the grounds that it did not go far enough and that it should have rendered statements concerning public figures entirely nonactionable. One writer rationalises this on the basis that “truth” in a political context is illusory:

“The stuff of government decisions cannot be subject to a legal test of truth in our constitutional system. One man's truth is not another's. That is the central meaning of the first amendment: the right to differ about political truth, the right to criticise those who govern us without being held to a standard of temperateness or truth.

New York Times v Sullivan rested on that proposition. But the Court shied away from its own logic when it said in the end that critical statements about public officials could be penalized



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if they were knowingly or recklessly false.”1

Another writer rationalises the view that Sullivan did not go far enough on the basis that the justification for the rule was the content of the speech in question and that the motive of the speaker was irrelevant to this issue:

“The double criterion of deliberate falsehood and reckless disregard for truth or falsity focuses on the intention of the speaker or writer; the important question, however, is the content of what was said or written. According to the tradition of common law libel, the question is whether the publisher, reporter, or author is trying to hurt another person by damaging his reputation. In first amendment cases, however, that is not determinative. Rather what must be asked is: Does this expression provide information relevant to the process of the public's self-government in the face of the 'exigencies of that period'? The argument that the deliberate lie or the negligent or reckless report corrupts public discussion rests upon a confusion between the state of mind of the writer or speaker and the objective situation written about. Indeed, for all we know, a deliberate liar may hit the truth in spite of himself, and a reckless gossip may throw unintended light on an area of popular interest. They may often do otherwise. But the first amendment's premise is that the public is able to receive and appraise the reporting of genuinely free press.”2

3.

The introduction of a fault standard in defamation cases involving private individuals represents a fairer balance between individual reputation and free speech than does strict liability.

175.

(ii) Arguments against the United States position

1. Benefit to Unmeritorious Defendants

The very argument that is cited in favour of the New York Times rule may be used against it. It was said that the rule opened up public discussion on the public activities of public figures, which it does. Unfortunately, however, the defence is so wide that it allows unmeritorious as well as meritorious defendants to avail of it. A defendant may be sloppy, careless or negligent; he may make large and unjustified mistakes; however, the plaintiff cannot bring an action unless he shows that the defendant actually knew of, or was reckless as to, the


1

Lewis, New York Times v Sullivan Reconsidered, 83 Columbia L Rev 603, 620 (1983).

2

Meiklejohn, Speech and the First Amendment; Public Speech and Libel Litigation: Are They Compatible? 14 Hofstra L Rev 547, 557. Meiklejohn advocates an absolute privilege for the press when speaking on matters of public concern, provided there is a statutory right of reply.



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falsity of the statement. The Damron case discussed above shows how it may be difficult to meet this test of actual knowledge or recklessness.

This argument would probably be met if the 'malice' element in New York Times were widened to include negligence. Thus public and private figures alike could bring actions if they proved that the defendant knew of the falsity or was reckless or negligent as to the falsity.

2. Truth

The American public/private figure dichotomy moves away from the issue of truth. If we picture all statements of facts as a set, the common law divides it into two sub-sets on the basis of truth or falsity, the latter only being actionable. New York Times divides it on the basis of the status of the plaintiff and his involvement in public affairs. The logical result of this would be that all statements of fact about a public figure would be non-actionable. However, the court shied away from this absolutist position and added the gloss that the public figure could recover damages if he showed the defendant knew or was reckless as to the issue of truth. There seems to be an underlying unease about permitting false statements of fact to go unpunished.

It is submitted that in the case of statements of fact, truth should, as far as possible, be the main criterion. Suppose X were to say that Y is a thief. The average onlooker is asked whether Y should be allowed recovery. The natural response of the observer is to ask whether the statement is true. Yet in most of the United States cases cited since New York Times, we do not know whether the statement at issue was true or false. Were the judges in Garrison v Louisiana lazy and unfit for office? Did Butts 'fix' the football game? Did Walker lead a violent crowd? Was Rosenbloom a “smut” merchant? We simply do not know because truth was never a central factor. In the one case where we do know the statement was false, the Damron case, the plaintiff lost and yet our sympathies are clearly with the plaintiff. The less the law focuses on truth, the greater is the sense of dissatisfaction by the parties involved and the public:

“The greatest cost of the present system is that it makes no provision for determining truth. When a defendant wins a case on actual malice, there is no correction of past errors, and no sense of vindication for the plaintiff who can complain bitterly that he lost on a technicality that was of no concern to him. Indeed it is not surprising that the plaintiff's level of frustration is so great in defamation cases precisely because of the frequency with which the defendant avoids the only issue that matters to the plaintiff – falsehood, which would allow rehabilitation of the plaintiff's reputation. The public, too, is



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a loser because the present system faces systematic roadblocks against the correction of error. If it is important for the public to know that Jones has been a faithless public official, it is equally important for the public to know that Jones has been a diligent public official falsely accused by the press. The centrality of truth is of critical importance to any overall assessment of the system.”3

“By requiring plaintiffs to prove fault, the New York Times and Gertz rules shifted the focus of libel suits away from the question of falsehood and to the constitutionally mandated question of the defendant's state of mind. As the Iowa Libel Project has now demonstrated, the libel action, theoretically intended to vindicate the plaintiff's reputation, has become an 'action for enforcement of press responsibility'. Since seven out of eight libel suits are now decided on constitutional privilege grounds – that is, the defendant's state of mind – 'as a practical matter, the truth or the falsity of the challenged statement is no longer pertinent'.”4

If defamation law is to allow sufficient latitude to freedom of speech to allow for vigorous exposure of official misconduct, it must also be careful not to allow for false accusations of official misconduct. If the public interest is extremely high in relation to official actions, it is equally high in having false accusations in this area corrected. In this respect, the American position arguably fails to serve the public interest –

“Under the current system, when the issue is a public one and the interest of the public in exposing false facts is at its highest, a false fact will remain unexposed unless the plaintiff shows not only that the fact was false, but that the publisher acted either negligently or recklessly, depending on whether the plaintiff was a public or private figure. Those latter concerns are irrelevant to whether the public should be allowed to perceive the false fact as true. Thus, many false facts are allowed to remain unexposed simply because the plaintiff could not prove that the defendant acted with the requisite mental element”.5

On the other hand, it is strongly arguable that the common law does not make truth the central enquiry. While it renders truthful


3

Epstein, Was New York Times v Sullivan Wrong?

4

Barrett, supra, page 158, footnote 10, at 859. The phrases within single quotation marks are from Bezanson, Libel Law and the Realities of Litigation: Setting the Record Straight, 71 Iowa L. Rev. 226.

5

Mathews, American Defamation Law: From Sullivan, Through Greenmoss, and Beyond, 48 Ohio St. L.J. 513, 530.



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statements non-actionable in theory, by means of the defence of justification, the reality is that truth is not litigated at all. This is due to the combined result of the presumption of falsity and the difficulties of justifying, so that falsity may not be contested by the defendant. Again neither party is the victor; the plaintiff will maintain that the statement is false and that the defendant won on a technicality (that is, if the defendant succeeds in another defence).

If neither the United States nor the common law position is a system which adequately makes provision for the determination of truth, other ways of bringing this issue to the forefront of libel actions must be addressed e.g. declaratory actions, correction orders, a reversal of the presumption of falsity.

3. Balancing of Interests

Defamation law attempts to strike a balance between the competing interests of free speech and individual reputation. It is arguable that the American public figure rule abandons one interest virtually to the exclusion of the other. This may be the result of having a constitutional guarantee of free speech without having its constitutional counterpart, the guarantee of protection of reputation. However, in Ireland there are constitutional guarantees of both these interests. If the American position represents a bias rather than a compromise, it may not be a position open to Ireland.6

4. Flexibility of Remedy

The American position does nothing to alleviate the all/or nothing damages situation. It does not attempt to introduce any flexibility into the law of defamation by means of new remedies. It merely swings from a pro-plaintiff to a pro-defendant position, in the name of free speech. Where the plaintiff cannot overcome the New York Times hurdle, he is without redress despite actual injury to his reputation. Where he does overcome the hurdle, it seems that not only is he entitled to damages, but also to punitive damages.

“From the view point of the plaintiff, whose primary aim is to set the record straight, state of mind is at best an irrelevancy and at worst an insurmountable barrier. The plaintiff suffers the same ill effects and has the same need for redress whether


6

One American writer has specifically examined the competing interest of reputation and analysed its components and how they affect common law doctrine. He stresses that First Amendment decisions have failed to address overtly this countervailing interest in great detail and that the clarity of the Supreme Court's reasoning has suffered as a result; See Post, Symposium: New Perspectives in the Law of Defamation: The Social Foundations of Defamation Law: Reputation and the Constitution, 74 Calif L Rev 691.



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a falsehood was a calculated lie or merely resulted from sloppy typesetting. Yet the present system forces a plaintiff to undertake discovery and trial of negligence or actual malice and to expend money and energy to prove facts that are wholly tangential to the primary goal of vindication. If the plaintiff cannot prove the requisite state of mind, he or she has no remedy whatsoever.”7

Indeed, the position may even be worse than that. The recent Annenburg Washington Program Report on Libel points out that many expensive and complex suits end in an inconclusive way, with millions spent and neither party the winner. The following is a set of examples set out in their Report:

In Carol Burnett's suit against the National Enquirer, the tabloid erroneously reported that Burnett had been drinking heavily and had made a spectacle of herself at a Washington restaurant. The Enquirer printed a retraction, but it was held to be legally insufficient under California law. After years of legal proceedings and at a cost of millions in attorneys' fees, the suit finally ended with a settlement; its terms were not publicly disclosed.

In General William Westmoreland's libel suit against CBS, both sides spent millions of dollars in an enormously complex trial that came to focus on the historical record of the Vietnam War. After months of trial, the suit was terminated just before the case was sent to the jury, with a joint statement by the general and the network.

Israeli General Ariel Sharon's suit against Time ended in a technical victory for the newsmagazine, but with both sides claiming that the jury had vindicated their reputations.

In a case involving the Alton Telegraph, a small newspaper in downstate Illinois, the costs of appealing a multi-million-dollar jury award were so high that the paper was forced into bankruptcy and was eventually sold.

When William Tavoulareas, President of Mobil Oil, sued the Washington Post for reporting that he had improperly set up his son in business, the jury's award of $2 million merely covered Tavoulareas' attorneys' fees. But after several rounds of appeals, the award was finally reversed by an appellate court – with each side claiming the court had vindicated its position.8


7

Barrett, supra page 158, fn 10, at 856. Footnotes omitted.

8

AWP Report at p.9.



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Dichotomy between Public and Private Figures

Is a distinction between public and private individuals desirable, given that the defence applies to false statements of fact? The defence of fair comment in our law protects a wide range of opinions and, with reforms, could protect an even wider range. Public expression of opinions about public figures is therefore protected. There may be no need, or desirability, for a defence which protects the false statements of facts about such persons. A politician certainly “consents” to being in the public eye; however, he does not necessarily “consent” to being the subject of false statements of fact. Such a rule might well be a disincentive to persons to enter the public arena. Apart from the injustice to the plaintiff, the rule does not benefit the public. The public no longer knows whether statements about public figures are true or false, except in the rare case where the plaintiff can go into court and prove the defendant knew that the statement was false or was reckless as to its falsity.

Definition of Public Figures

There are practical difficulties with the public figure concept. As has emerged from the United States cases, a number of questions fall to be determined: do all Government officials come within the New York Times rule, or only high level officials?9 Where is the cut-off point? What is conduct touching on fitness for office? How remote in time can the charge be? Who is a public figure? Is a person a public figure for the purposes of the test if has voluntarily thrust himself into the public arena but cannot be said to have ready access to channels of communication? What happens where a person has access to the channels of communication only for a limited period?

It could be said that these are only the difficulties of circumscribing the limits of the rule, as occurs with any rule of law. A body of case-law might answer some of these questions, but the difficulty of adopting an appropriate category may well be insurmountable.

Application

Even if the New York Times rule were considered to be a good balance between freedom of speech and individual reputation, it is not clear that the safeguards built in to the rule will be understood and applied by the jury. One American author writes:


9

For example, whether public school teachers are faced with the New York Times hurdle is a question of some controversy. Some state courts have held teachers to be public officials, others have held them to be public figures, and others again have held that they are neither. One writer explores this dilemma and suggests that teachers must be held to the New York Times Standard – see Cane, Defamation of Teachers, Behind the Times? 56 Fordham L Rev 1191.



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“When a case goes to a jury, the Sullivan rule means little or nothing. All those phrases designed by the Supreme Court to protect freedom of speech and press may not in fact be applied.”10

Another writer observes:

“In defamation cases, most jury verdicts in favour of libel plaintiffs are overturned on appeal ... The most common rationale for reversal is that the jury improperly applied the 'actual malice' rule established in New York Times v Sullivan.”11

This argument should not be pressed too far. If the jury's dislike for the media is so strong that it will misapply the law, this will be true for any rule of law, not merely the New York Times rule. If anything, it argues more towards a New York Times type rule where the media is given a wider margin of error than is theoretically necessary. This is a point adverted to by Epstein:

“We can assume, I think, that the error rate in litigation is high so that private decisions on publication are, consequently, clouded. The theory of New York Times is that a malice rule reduces the level of false positives (ie cases in which liability is found where none should be imposed) to a level that satisfies the First Amendment. That it increases the number of false negatives (ie cases in which no liability is found when some should be imposed) simply becomes a cost to be borne for making good the constitutional commitment to freedom of speech.”12

In other words, while a theoretical rule would allow the plaintiff to recover if he could show negligence, recklessness or actual knowledge of falsity, the error rate in litigation requires a stricter practical rule that only allows the plaintiff to recover if he can show recklessness or actual knowledge of falsity. If this was indeed the reasoning of the Supreme Court in New York Times, it gives the rule a sophistication which its critics do not normally accord it. It is a point which should be seriously considered.

8. Difficulties of Proving Malice

When the defendant consists of more than one person, it is very difficult for the plaintiff to prove malice on its part. It involves


10

Lewis, New York Times v Sullivan Reconsidered, 83 Columbia, L. Rev. 603, 613.

11

Plave, Tavoulareas v Piro; An Extensive Exercise of Independent judgment, 56 Geo. Wash. L. Rev. 854.

12

Epstein, supra, footnote 1, at 802.



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investigations into the internal workings of, for example, a media organ. Allied to this difficulty of proof is the cost of proof, which is discussed below.

The above arguments have been from a theoretical point of view, and, sometimes, from the plaintiff's point of view. The next three arguments are in some ways even more powerful because they work on the premise that the New York Times rule does not, in fact, benefit the defendant. The basic argument is that while the defendant believes that he is better off under the New York Times rule, the truth is that he is incurring more costs, paying more damages, and losing credibility.

9. Cost of Proving Malice

Once malice is essential to liability, as under the New York Times rule, costs are increased. Under Irish law, the question of liability turns largely on external facts. The element of malice shifts the enquiry to the defendant's internal state of mind, which in the case of a media defendant may be the internal state of mind of many people. Discovery then has the potential to become an enormous process. As one writer puts it:

“The reckless-disregard standard serves as the foundation for dragnet-style discovery demands. Who knows what scrap of conversation or paper will reveal the stone left unturned that proves reckless disregard of truth?”13

This view is widely supported:

“The post-New York Times focus on state of mind has raised the stakes in libel actions so high that the chilling effect – the original target of the state of mind defenses – has remained a serious problem, notwithstanding defendants' impressive success rate. Even if the defendant avoids damage liability, it must incur the enormous expense of litigating state of mind and may find that the exposure of questionable reporting practices stings almost as much as an adverse judgement.”14

“The most obvious social cost of libel damage awards is the chilling effect on the press, which leads to reduced investigative reporting and reduced coverage of controversial issues and personalities.”15


13

Shapiro, Symposium: New Perspectives in the Law of Defamation, Libel Regulatory Analysis, 74 Calif L Rev 883, 886.

14

Barrett, supra page 158, n 10, at 855–6. Footnotes omitted.

15

Ibid, at 861.



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Sullivan, for reasons that need not detain us here, seems not to have provided in full measure the protection for the marketplace of ideas that it was designed to do. Instead, in the past few years a remarkable upsurge in libel actions, accompanied by a startling inflation of damage awards, has threatened to impose a self-censorship on the press which can as effectively inhibit debate and criticism as would overt governmental regulation that the First Amendment most certainly would not permit.”16

“This continuing threat has several causes. First, defending a libel suit is both economically and psychologically expensive. Even where a statement is privileged under New York Times or its progeny, it may take hundreds or thousands of hours of discovery to prove that a publisher did not know of the falsity of the statement and was not reckless. In addition to the costs of legal fees for discovery, editors and writers bear the psychological costs of spending many hours answering probing and personal questions about their mental processes during publication. If a case goes to trial, the legal fees may be hundreds of thousands or even millions of dollars.

For example, the recent Westmoreland case, which was not appealed, cost CBS an estimated three to six million dollars. It is hardly surprising that the press avoids publishing statements that might give rise to litigation.”17

It may be noted that in the early years following New York Times, public-figure libel cases were quickly disposed of by summary judgment on the malice issue. Usually the motion for summary judgment by the defence was based on affidavits of the reporter and editor describing the reporting process and asserting that the responsible person had no knowledge of the falsity. If the plaintiff merely repeated in an affidavit that there was actual malice without supporting facts, the defendant was entitled to summary judgment. However plaintiffs' lawyers gradually realized that they could avoid summary judgment by taking discovery on the state of mind issue and in Herbert v Lando18 the Supreme Court expressly authorised inquiries into the editorial process in order to facilitate proof of actual malice. The costs of libel actions rose accordingly.


16

Ollman v Evans, 750 F 2d 970, 996 (DC Cir 1984) Bork J.

17

Thomas, Statements of Fact, Statements of Opinion, and the First Amendment, 74 Calif L Rev 1001, at 1026–7, footnotes omitted.

18

441 US 153 (1979).



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10. Damages

It is difficult to assess whether the overall damages incurred by the press have increased since New York Times, or whether that rule has curbed their levels. One American writer is of the view that if damages awards have not increased both in number and in content, there is certainly no indication that they have been reduced since New York Times v Sullivan.19 Barrett, however, is of the view that the New York Times rule has resulted in a reduction of damages for defendants:

“Two decades of experience with New York Times and Gertz demonstrate that the Court anticipated that fault-based rules would reduce the incidence of damage recoveries. In recent years, damage awards have been upheld in only five to ten per cent of all libel suits”.20

Furthermore, Professor Bezanson, who was involved in the Iowa Libel Research Project states as follows:

“Most plaintiffs lost in court. Even for those who won, the terms of judicial victory were disappointing. Successful litigants obtained an average of £80,000 in damage awards. Excluding two large awards, however, the average recovery was only £20,600, a sizeable portion of which went to fees and costs. Plaintiffs who settled their claims obtained an average of £7,000, which also must be reduced for fees and costs. By most standards, plaintiffs' financial victories were of modest proportions.”21

11. Social Cost

The preceding two arguments showed that the New York Times rule is probably detrimental to the finances of defendants, due to costs and damages. The following argument against the New York Times rule is that it is detrimental to the defendant's credibility.

This is similar to argument number 7 above. Once defamation law moves away from the issue of truth, the public no longer know who to believe.

“In addition to direct transaction costs, libel suits today generate large social costs in the form of increased public cynicism. Because truth has become almost irrelevant in libel actions, the press has lost credibility; political leaders and public figures


19

Epstein, supra footnote 1.

20

Barrett, supra, page 158, footnote 10, at 855. Footnotes omitted.

21

Bezanson, Symposium etc. The Libel Suit in Retrospect: What Plaintiffs Want and What Plaintiffs Get, 74 Calif L Rev 789, 790–1. Footnotes omitted.



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have lost respect; and the legal system is viewed as having elevated technicality over principle. The public has no way of discerning whether news stories that become subjects of libel suits are true or false.”22

Epstein draws analogy between the strict liability rules on defamation and the law on consumer warranties. Sellers are often eager to have a strict liability rule in relation to their products. The strict liability rule binds the defendant to his product while it encourages the buyer to purchase the product even where he lacks precise information about the seller or the manufacturing process. If the law shifted away from this position, sellers would have to devise other ways of convincing buyers of the quality of their product, and the public would lose because it would have to incur search and inspection costs in trying to find quality products.

Epstein argues that the common law defamation rules operate as a means of binding the defendants to the public. They know that if a statement is false, the injured person will have a means of redress. Therefore they gain confidence in what is published and not challenged, and believe that it is true. The introduction of an actual malice rule upsets this balance. “The actual malice rule, in effect, is a rule that the law regards bad information as favourably as good information so long as it was only produced with gross negligence. It is tantamount to a rule that a merchant can escape the consequences of selling contaminated goods so long as he does not mean to hurt his customers. Ex ante, consumers as a class tend to lose, as do producers.“23

Another American writer advocates this approach of viewing newspaper activity in particular from the industrial viewpoint:

“The much heralded and denounced “explosion” of tort law, whether seen as a greater propensity to sue or a propensity to award higher damages, has taught all of us that tort law is not purely private law that governs only the relations between private persons. It is also public law, an integral part of the regime of government regulation of private enterprise. Thus we may treat libel law as a problem of government regulation of industry and, for the moment, the media as an industry and journalism as a profession. If we do that, we can see why there is so much concern with libel. We live in an era of extensive government regulation of industry. The media are a large industry so we grapple for law to regulate that industry.”24


22

Barrett, supra page 158 n 10, at 862.

23

Epstein, supra, footnote 1, at 811.

24

Shapiro, Symposium: New Perspectives in the Law of Defamation, Libel Regulatory Process, 74 Calif L Rev 883.



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If the New York Times rule is seen as a regulatory code for a professional and industrial sector, it is arguably a bad standard because it fails to encourage quality product –

“Let me focus upon the reckless disregard standard of New York Times v Sullivan. This standard would fail to provide a satisfactory regulatory framework because it creates perverse incentives. It provides incentives to the regulated industry to perform as badly as possible. If a newspaper is liable only if it has engaged in reckless disregard, a standard measured by normal journalistic practice, then there is a strong incentive, in an industry that already has other incentives in that direction, to do the worst possible work. The worst work you do, the less it can be shown that what you do on any given day is in reckless disregard. A standard that moves an industry toward bad practice is a bad regulatory standard. Thus leaving aside any question of freedom of the press, a regulatory analysis suggests reform of this standard”.25

The net result is that the wide protection afforded by the New York Times rule damages the public confidence in the media and is of detriment to defendants because of the effect on their reputation.

12.

A final argument against the New York Times rule argues not for its abolition, but for its refinement. A number of amendments to the rule would meet many of the foregoing criticisms.

The first involves widening the definition of fault in relation to public figures so that negligence is included. This wider definition of fault would bring public figures in line with private figures. The essential difference between the two categories, following New York Times v Sullivan and Gertz v Welch, is that a defendant may negligently publish false statements about a public figure, but not about a private figure. A standard imposing liability where the defendant is negligent would also bring defamation in line with a larger bulk of tort law. An Australian writer favours this approach:

“[If] we cannot love our neighbour we should not unnecessarily injure him. It may be said that any injury is unnecessary if it can be avoided by the exercise of reasonable care. If that is a good principle, Sullivan is out of line with it. For while the majority in Sullivan implicitly recognized the need to interpret the first and fourteenth amendments in such a way as to impose some restriction upon a publishers freedom to speak or write about public officials, they declined to propound a criterion of


25

Ibid, 884–5.



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liability based upon a standard of reasonable care.”26

One American writer defends the New York Times position.

“This distinction between malicious and negligent speech is not arbitrary. A publisher of defamatory falsehoods may not necessarily know that the source of information is inaccurate. Rather than run the risk of being held liable for an inadvertent failure to exercise due care, the publisher may simply decide not to disseminate information pertaining to public officials or public figures, resulting in the self censorship the New York Times court feared. A publisher acting maliciously either knows that the defamatory statements are untrue, or is deemed to have acted maliciously because of conscious disregard of their falsehood. Knowingly publishing erroneous statements is not inevitable in free debate and therefore does not deserve the breathing space afforded by the Constitution to inaccuracies that are merely negligent”.27

We are not at present convinced of the merit of the assumption in this passage, namely that, in the situation where the publisher does not exercise reasonable care, allowing him to publish is better than forcing him to engage in self-censorship. It is at least arguable that where a publisher/writer has neglected to check his facts or exercise reasonable care, his best policy is silence. More importantly, no public good would appear to be served by publication of statements that are negligently prepared; the truth of such assertions would be a hit and miss affair.

The second amendment to the Sullivan rule would be to reverse the burden of proof. At present, the onus is on the plaintiff to show that the defendant was at fault. If the wider definition of fault above were adopted, it could then be required of the defendant that he meet a standard of reasonable care. The facts and documents surrounding the publication being in the defendant's possession, the difficulties and expense of discovery would thereby be avoided.

The third amendment would involve provision for the plaintiff to reply to or rebut the assertion made as a pre-requisite to invoking the defence. The final amendment would involve confining the category of defendants to whom the defence in respect of factual assertions applies to public officials and politicians and excluding public figures. If a wide latitude to factual assertions is necessitated, it must be on the basis of the role of a wide public debate in self-government. This rationale justifies the application of the defence where the speech concerns public


26

Hughes, Defaming Public Figures, 59 Aust LJ 482, 484.

27

Marder, Libel Proof Plaintiffs – Rabble Without a Cause, 67 BUL Rev 993, 1010. Footnotes omitted.



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officials and politicians. It does not justify its application to other public figures. The United States Supreme Court justified the application of this defence to public figures on two grounds: (a) the fact that they have access to the media and (b) the fact that they voluntarily undertook to become public figures. We are not convinced by these arguments.

Many public figures do not have access to the media or if they do, are not necessarily quoted at the length they would wish. Second, many public figures do not voluntarily undertake this position. However, even where they do, a reduced protection under the law of defamation might provide a disincentive to others to take part in public life. More importantly, is it strictly necessary for a public figure to become the target of false factual assertions and if so, what does it achieve?



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PART 3: PROPOSALS FOR REFORM

Introduction

176.

In most tort actions, the interests of two parties are competing for priority and the issue must be resolved in favour of either the plaintiff or the defendant. The interest of the public in having the matter resolved is implicated usually only to the extent of society's desire to see justice done. A defamation action is unusual in that there are three interested parties. The plaintiff who perceives himself to be a victim of an attack upon his reputation wishes to assert his constitutional right to protection of his good name. The defendant who has made the statement at issue is appealing to a countervailing constitutional guarantee of free speech. The delicate balancing exercise necessitated by attempting to reconcile these important interests is complicated by the fact that expression of any kind plays a vital role in democracy and there is therefore also a large public interest at stake. Throughout this Paper we have attempted to give full consideration to each of these interests.

We believe that current Irish defamation law fails to serve each of these interests satisfactorily in many areas. We believe that many problems stem from lack of clarity and lack of certainty. Accordingly we attempt to define new principles in simple language and avoid the use of negative formulations where possible. We also feel that certain rules which at present exist would benefit from being set out in clear statutory form so that jurisprudence in defamation will develop based on a new Act rather than interpretation of cases decided in other jurisdictions. Finally we believe that in certain areas Irish law fails to give adequate protection to particular interests, which is a failure to give due respect to Constitutional provisions. Accordingly we make a number of important substantive recommendations.

We should like to note at this point the classification adopted in relation to defences – Parts II–IV. Traditional classification of defamation defences is as

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follows: Justification, Fair Comment, Absolute Privilege, Qualified Privilege, Unintentional Defamation. In this part, we have chosen the different format of Privileged Statements, Opinion Statements, and Factual Statements for a number of reasons. First, we believe this classification emphasises the underlying rationale of the defences in each section. For example, privileged statements are deemed so because of the occasion on which they are uttered whereas opinion statements merit protection because of the nature of the statement. Second, particularly in the section on Factual Statements there are a number of defences to be considered and it makes for greater clarity to link these under a common heading of factual statements so as to emphasise the type of statement to which the defences are addressed. Finally, we have chosen the particular order of Parts II-IV in order to emphasise that the defences considered in part IV would apply exclusively to statements which are neither privileged nor constitute opinions. In order fully to appreciate the implications of the defences in Part IV it is necessary to think of these defences as “last resorts” in the sense that the failure or refusal to adopt the defence will result in the defendant being held liable.



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CHAPTER 9: PRELIMINARY

A. THE DISTINCTION BETWEEN LIBEL AND SLANDER

177.

Under existing law there is a division in defamation law based on the form in which the defamatory statement is communicated. The two types of defamatory statement are libel and slander. It was formerly said that libel consisted of a written statement while slander was oral, but this is inaccurate in the context of modern methods of communication. The more modern formulations of the distinction state that libel is in permanent form, while slander is transient.1

The practical difference is that all libels are actionable per se i.e. without proof of special damage. Slanders, subject to the four established exceptions, are actionable only on proof of special damage.

The distinction between libel and slander has been criticised for failing to take into account modern methods of communication. Attempts have been made to meet this problem. The Defamation Act 1961 provides that broadcasting by means of wireless telegraphy is treated as publication in permanent form.2 Although this does not specifically say that such broadcasts if defamatory are libels, this is the effect of the section if the correct view to-day is that permanent publications are libels.3 A more important criticism is based on the practical distinction between the two forms of defamation, which may lead to odd results. A person could carry on a deliberate and sustained campaign of verbal attacks on another, and if that other were unable to bring himself within any of the four excepted categories of slander, he would be without redress unless he could show special damage. The assumption that verbal communication is less damaging is not true in every case. Yet, if the person


1

See Part I.

2

Section 15, Defamation Act 1961.

3

This view is supported by the remarks in the Explanatory Memorandum to the 1961 Act.



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abused could show that he lost one dinner booking because of the campaign, he would have shown special damage and he could recover substantial and even punitive damages.

178.

The basis of the distinction appears to be purely historical. The reason for its maintenance appears to be a fear of opening the floodgates to a host of petty and trivial claims. As far back as 1843, a Report on the Law of Defamation issued by a Select Committee of the House of Lords recommended the abolition of the distinction. However, the Porter Committee favoured the retention of the distinction, because they felt that “scope for trivial but costly litigation might be enormously increased” and this would “be likely to encourage frivolous actions”. The Faulks Committee thought that the distinction between libel and slander was an area in which “the forms of the law continue to rule us from the grave”. It thought that it rendered this part of the law “unreasonably and unnecessarily complicated and refined, carrying a host of rules and exceptions, derived partly from precedent and partly from statute, which are illogical, difficult to learn, and in certain applications, it must be added, unjust”.4 It thought that the fear of a flood of new actions was unjustified in view of the fact that defamation actions played only a small part in English and Scottish litigation. Furthermore, even if such actions were commenced, there was no reason to suppose that they would not receive short shrift in the English courts. Firstly, by the defence that words were spoken by way of vulgar abuse or joke would remain. Secondly, the expense of litigation would deter all but the most serious plaintiff. Furthermore, it would be expected that would-be litigants would receive responsible legal advice, and that the judiciary would quickly develop a climate adverse to frivolous slander actions. (We should say that our impression is that in Ireland a significant proportion of potential defamation claims do not go beyond the first interview with a solicitor or the first opinion from counsel). The Faulks Committee therefore recommended the abolition of the distinction.

179.

The distinction between libel and slander was abolished in New Zealand by s4 of the Defamation Act 1954. The New Zealand Committee on Defamation's Report noted that the abolition of the distinction had not produced any problems since its enactment in 1954.

The distinction between libel and slander was adopted in New South Wales in the Injuries to Character Act 1847 and the abolition was preserved by virtue of s3(2) of the Defamation Act 1901 (NSW). However, the New South Wales Law Reform Commission recommended a return to the theoretical common law distinction, while insisting that the practical effects of the distinction should not be resurrected.5 S8 of the Defamation Act 1974 (NSW) resurrects the theoretical distinction without its practical effects, providing that –


4

Faulks Committee Report, Para 86.

5

NSW LRC, Report on Defamation, No. 11, (1971), App D, paras 33–34.



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“Slander is actionable without special damage in the same way and to the same extent as libel is actionable without special damage.”

The position obtaining in the Australian Code States is that both the theoretical and practical effects of the distinction have been done away with. The Australian Law Reform Commission felt that there was no advantage in maintaining any distinction between libel and slander, and recommended that it be abolished.

Similarly, the British Columbia Report on Defamation recommended the abolition of the distinction, stating that “whatever value there may be in distinguishing between libel and slander is outweighed by the disadvantages of maintaining an ancient distinction that no longer has any logical or rational justification”.6

180.

We provisionally recommend the abolition of the distinction between libel and slander. We further recommend that there be a new cause of action in “defamation” in which proof of special damage is not necessary. Following from this, we recommend the repeal of sections 15,716 and 19 of the Defamation Act 1961. We will later provisionally recommend that the method of publication should be taken into account in assessing damages.


6

British Columbia Report on Defamation, p.14.

7

The repeal of s15 will necessitate an amendment to s20(2) of the Defamation Act 1961.



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B. DEFINITION OF DEFAMATION8

181.

The Defamation Act 1961 contains no definition of a defamatory statement. Various definitions of defamation are found at common law:


1.


A statement which tends to lower the plaintiff in the estimation of right-thinking people generally –Sim v Stretch.9


2.


A false statement about a man to his discredit –Scott v Sampson.10


3.


A publication without justification which is calculated to injure the reputation of another by exposing him to hatred, contempt, or ridicule –Parmiter v Coupland.11


4.


A statement about a person which tends to make others shun and avoid him –Youssoupoff v MGM.12


5.


An imputation of conduct which would lower the plaintiff in the eyes of the average right-thinking man –Quigley v Creation Ltd.13

There is much to be said for a simple statutory definition which defines the subject-matter of defamation legislation and which defines the limits of defamation in modern phraseology. The press in Ireland feels that a statutory


8

Discussion by the reform bodies is located as follows – Australian Law Reform Commission Report, paras 77–84, New Zealand Committee Report, paras 58–67, Faulks Committee Report, paras 58–71.

9

(1936) 52 TLR 669, per Lord Atkin, p 671.

10

(1882) 8 QBD 491.

11

(1840) 6 M & W 105.

12

(1934) 50 TLR 581.

13

[1971] IR 269, per Walsh J at 272.



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definition is desirable.14

The Reform Bodies

182.

The New Zealand Committee refused to recommend a statutory definition. They felt that a statutory definition would face a number of difficulties:


(a)


A definition would have to embrace without extending all the existing definitions of defamatory statements at common law.


(b)


A statutory definition would introduce a rigidity into an area where flexibility was desired.


(c)


If the statutory definition tried to maintain the common law flexibility, it would have no advantage over judicial definitions.

The Faulks Committee thought that the tort of defamation was entitled to a statutory definition and decided to take and adapt the formulation of Lord Atkin in Sim v Stretch. However, it was felt that the word “right-thinking” could have a political flavour, and that “society” might have a social meaning as well as referring to an organisation of persons. Therefore, they adopted the following definition:

“Defamation shall consist of the publication to a third party of matter which in all the circumstances would be likely to affect a person adversely in the estimation of reasonable people generally.”

The New Zealand Committee criticised this formulation on two grounds. It felt that the phrase “likely to affect a person adversely” was too wide, since many statements could adversely affect a person without amounting to defamation under the present law. It also thought that the “estimation of reasonable persons generally” was a phrase capable of being vague and ambiguous.

183.

The Australian Law Reform Commission recommended a statutory definition in the following terms:

Defamatory matter is published matter concerning a person which tends:


(a)


to affect adversely the reputation of that person in the estimation of ordinary persons;


(b)


to deter ordinary persons from associating or dealing with that person;


14

Report on Press Freedom and Libel, para 5.2, National Newspapers of Ireland Submission.



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(c)


to injure that person in his occupation, trade, office or financial credit.

Paragraph (a) follows Lord Atkin's formulation in covering situations where reputation is detracted from, whether or not through hatred, contempt or ridicule. Paragraph (b) puts the old formula of “shunning and avoiding” into modern terms. Paragraph (c) is based on the protection afforded in the Australian Code States for plaintiffs who have been caused financial loss. If a person makes an untrue statement about another which causes financial loss, it seems that such person should bear the loss. Halsbury states that such imputations are defamatory at common law.15 This definition is favoured by the Boyle-McGonagle Roport and the submission to the Commission by the National Newspapers of Ireland.

The Annenburg Washington Programme

184.

The simplest definition of all is put forward by this Report. It is stated in the following terms:

“A statement is defamatory if, as reasonably construed, it tends to injure the plaintiff's reputation”.16

That Report also puts forward a definition of publication:

“Publication is the communication of defamatory matter, intentionally or by negligent act, to one other than the person defamed”.

It will be recalled that at common law if the defendant publishes defamatory matter to the plaintiff but it becomes available to a third party, the defendant is liable only if he could reasonably anticipate such third party intervention. The Annenburg definition encompasses this situation by providing that there is publication if the defendant negligently communicates the matter to a person other than the plaintiff.

United States Restatement

185.

The Restatement of Torts (Second) provides a definition of defamatory matter as follows:

“A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him”.


15

Halsbury's Laws of England, vol 28, para 42.

16

Annenburg Washington Programme Report, p.15, section 2(6) of the proposed Libel Reform Act.



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Proposals

186.

We suggest that a definition of defamation should encompass four matters:


(1)


publication to a third party;


(2)


the injury itself;


(3)


the standard by which injury or no injury is to be assessed and


(4)


identification of the plaintiff.

(1) Publication to a third party

187.

This part of the definition is relatively unproblematic. One possibility is simply to place this requirement in a longer sentence e.g. “Defamation shall consist of publication to a third party of ... etc.”. However since at common law a person is liable for an unintended publication only if he could reasonably foresee the possibility of publication to a third party, the Annenburg formulation is favoured. We suggest that the publication aspect of the definition be placed in a separate sentence: “Publication shall consist of the intentional or negligent communication of the defamatory matter to a person other than the plaintiff”.

(2) The injury itself

188.

We considered but rejected the Parmiter v Coupland definition because it instances one type of reputational injury only and is therefore too limited. A statement may be defamatory at common law without exposing a person to hatred, ridicule or contempt. We considered but rejected the Youssoupoff definition for the same reason.

We considered but rejected the Faulks Committee definition. The phrase “likely to affect a person adversely” has a potentially wider ambit than reputational injury. Furthermore we feel that the term “reputation” should be central to the definition. Moreover, the phrase “in all the circumstances” is felt to be superfluous. The internal rules of defamation determine to what extent context is relevant to a defamatory statement.

We found the Australian proposal attractive, but considered that on balance a simpler definition is to be preferred and that part (a) of that definition might well encompass (b) and (c) of the same definition. However this formulation was favoured by the Boyle-McGonagle Report and the NNI Submission.

We also found the United States Restatement definition attractive, but again felt that a simpler definition would capture the injury to reputation which is necessary to a defamation action.

We accordingly favoured the wording of (1) the Annenburg proposal (2) Sim v Stretch (3) Scott v Sampson and (4) Quigley v Creation Ltd. The following are the possibilities for this part of the definition –



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(a)


“Defamation shall consist of matter which lowers the plaintiff's reputation ...” etc.


(b)


“Defamation shall consist of matter which detracts from the plaintiff's reputation ...” etc.


(c)


“Defamation shall consist of matter which discredits the plaintiff ... etc.”


(d)


“Defamation shall consist of matter which tends to injure the plaintiff's reputation ...”.

At present we favour a definition which defines the injury as simply “injury to reputation”. We believe that this more general definition covers the more particular instances of injury described by the Australian proposal and the Restatement definition.

(3) The standard by which injury or no injury is to be assessed

189.

(i) Objective standards

The traditional common law standard by which injury is measured is an objective one, represented by the “reasonable man”, the “average person”, “public esteem”“right-thinking people” or some other such phrase. In Part I we saw that these phrases presupposed a uniform community reaction on a particular topic, and that in response to the fact that community reaction is often diverse, recent Irish cases conceded that a statement would be defamatory if it injured reputation in the eyes of a class of the community or even one member of the community.

We believe that if an objective standard is the one by which reputational injury is to be measured, it should take account of differing views in the community.

While it is perhaps naive to suppose, as the Faulks Committee appear to have done, that the formulation “right thinking people” suggests some political bias, it is unquestionably somewhat dated. We are, accordingly, inclined towards a formulation which sets out the standard by which injury is to be assessed as (injury) “in the eyes of the community or a section thereof”.

190.

(ii) Other standards

We considered the possibility of abandoning an objective community standard and looked at certain other standards.


(a)


We considered but rejected the possibility of basing the action on falsehood alone. Apart from the obvious wide ramifications for the whole nature of defamation law, this would pose initial problems where the plaintiff complained of a false statement which actually operated to



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his benefit.


(b)


We considered but rejected the possibility that the action could be based on “damaging falsehood”. It was felt that this begged the question as to which standard should be applied to decide whether the falsehood was “damaging”.


(c)


We considered but rejected the possibility that a subjective criterion be used. Under this the plaintiff could bring an action if “in his view” the statement caused injury. This would solve the problem where community response is split. However it would again cause doctrinal problems where the statement complained of actually benefitted the plaintiff.


(d)


We also considered a hybrid objective and subjective test. Under this a jury would be asked whether a reasonable plaintiff could have considered the statement to be injurious. The objective aspect of the test is represented by the jury's assessment of the “reasonable” plaintiff's reaction; however, it is subjective in that it allows room for statements to be actionable where community response is split. The jury can see that although everybody might not consider the plaintiff defamed, some people might, and the plaintiff is accordingly reasonable in supposing there has been injury.

We invite views on these alternative standards.

191.

(iii) Upholding the law

In the current law section we saw that a statement which imputes that the plaintiff upheld the law may not in law be considered defamatory. This does not flow from the application of a community standard but rather stems from the view that the law cannot condemn acts which are beneficial to it and therefore statements which impute the performance of such acts to an individual. We provisionally recommend that a provision be enacted stating that an allegation that the plaintiff upheld, complied with or assisted the law in any form shall not be considered defamatory.

The following examples illustrate the operation of each test:


(1)


An article states that X is a murderer. X is not in fact a murderer.


(2)


An article states that Y has vast experience in preparing gourmet meals in reputed restaurants. Y in fact has no such experience, but has recently applied for a job as a chef.


(3)


An article states that A crossed a union picket. A did not do so.


(4)


An article states that B reported breaches of TV licensing requirements to the relevant authorities. B did not do so.



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The statement in example (1) is both false and damaging to X. The statement in example (2) is false but not damaging to Y. If anything, his reputation will be enhanced. The statement in example (3) is false; it will damage A's reputation in some sections of society, and not in others. The statement in example (4) is false but is non-damaging as a matter of law.

We favour the adoption of the test in parts (i) and (iii), but invite views on the alternative tests in part (ii). For the present, we recommend that injury be assessed according to damage “in the eyes of the community or a section thereof”, and that an allegation that the plaintiff upheld, complied with or assisted the law in any form shall not be considered defamatory”.

(4) Identification of the plaintiff

192.

The fourth issue which may be included in the definition of defamation is the issue of identification. Most definitions say that the statement must have been “of and concerning” the plaintiff.

In this respect we found the Restatement definition useful –



Applicability of defamatory communication to plaintiff.



A defamatory communication is made concerning the person to whom its recipient correctly, or mistakenly but reasonably, understands that it was intended to refer.

We would adopt this formulation in the following terms:

“Concerning” defined: Defamatory matter concerns the plaintiff if its recipient correctly or reasonably understood it to refer to the plaintiff.17

We accordingly provisionally recommend the following definition of defamation. However, we welcome views on this matter.


(1)


Defamation consists of the publication by any means of defamatory matter concerning the plaintiff.


(2)


Defamatory matter defined: Defamatory matter consists of matter which tends to injure the plaintiff's reputation.


(3)


Publication defined: Publication consists of the intentional or negligent communication of defamatory matter to a person other than the plaintiff.


17

We deal with identification of the plaintiff who is a group member separately, see below Group Plaintiffs, p401 We deal with identification of the plaintiff in the context of fiction separately, see below p349.



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(4)


Standard by which injury is measured:


(a)


Matter shall be considered injurious to the plaintiff's reputation if it tends to injure his reputation in the eyes of the community or a section of the community.


(b)


Notwithstanding (a), matter shall not be considered injurious to the plaintiff's reputation where it consists of no more than a statement or implication that the plaintiff upheld, assisted or complied with the law.


(5)


Concerning defined: Defamatory matter concerns the plaintiff if its recipient would correctly or reasonably understand it to refer to the plaintiff.


(6)


Burden of Proof: The burden of proof is on the plaintiff to show that there was publication, that the matter contained in the publication was defamatory and that the defamatory matter concerned the plaintiff.



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C. THE MEANING OF WORDS

The Intention of the Author

193.

The issue of defamatory meaning, in actions in the High Court, is one for the jury, whose view is supposed to represent how the ordinary man would understand the words in question. The judge first rules whether the words are capable of defamatory effect and then leaves it to the jury to decide if the words did in fact bear a defamatory meaning. The intention of the publisher in this context is not relevant.18

The Faulks Committee considered whether the intention of the publisher should be relevant to the issue of defamatory effect but rejected this conclusion. This would not only introduce a further complication for the jury, but would be a factor of which the original recipient of the statement would not be aware. If the defendant fails to convey what he meant by the words used, he has only himself to blame. While the Committee accepted that the same words may be understood differently by individual people, they felt that any change in this area would be more disadvantageous than the present system.

We feel that these considerations are appropriate. The author of a statement may choose the words he wishes to use. It would import an element of undesirable complexity and a potential for abuse to allow such a person to plead that the words were understood to convey a meaning different from the one he intended. The existing position encourages a publisher to choose his words carefully, so that defamatory imputations may not be read into them. We would not recommend any change in the law which would make relevant the author's view as to whether the words were intended to be defamatory.


18

See Part I, paras 6 and 7.



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The Tribunal of Fact and the Defamatory Effect

194.

Since the issue of defamatory effect is for the tribunal of fact – the jury in the High Court, the judge in the Circuit Court – it is a general rule that the plaintiff or his witnesses may not be questioned as to their understanding of the words and the effect the words produced on them. However, in cases where special damage is claimed, questioning of this kind is permitted to establish actual damage. RTE complain that juries are not, and in their view cannot, be adequately warned that such questioning should not influence the “libel or no libel” question. They suggest, accordingly, that the jury be sent out to determine whether the statement was defamatory before the plaintiff starts to testify. Our provisional view, however, is against this proposal. If it were adopted, the jury in every case would be considering the “libel or no libel” issue in an artificial context. No doubt in relatively simple cases such a proposal would be practicable. In lengthier actions, however, one could not say with sufficient certainty that nothing which subsequently came to light could not legitimately weigh with the jury in considering the issue of “libel or no libel”. However, we invite views as to the merits of this proposal.

Composite Meanings

195.

The terms (a) natural and ordinary meaning, (b) popular innuendo and (c) legal innuendo were explained above.19 To recapitulate briefly, the ordinary and natural meaning of words is the direct, literal meaning of words. The popular innuendo is a meaning inherent in the words complained of which may require some explanation or clarification. The legal innuendo is the meaning which may be inferred from the words only with the aid of extrinsic facts.

Causes of Action

196.

A legal innuendo gives rise to a separate and distinct cause of action.20 Thus, where words are defamatory in both their ordinary and natural meaning and in a legal innuendo sense, the plaintiff has two distinct causes of action. Technically, in such a case a plaintiff is entitled to two awards of damages. In practice only a single combined award of damages is made. The Faulks Committee recommended that a claim in defamation based on a single publication with or without a plea of legal innuendo should constitute a single cause of action giving rise to one award of damages only. The New South Wales Law Reform Commission thought the plaintiff should have a cause of action for each defamatory imputation published of him, but with a single award of damages in respect of all imputations. However, the Australian Law Reform Commission pointed out that as long as the plaintiff is required to draft his pleadings with sufficient particularity to inform a defendant of the case he has to meet, and all imputations are dealt with simultaneously by the selected remedies, the question whether there should


19

See Part I, paras 11 et seq.

20

Part I, para 19.



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be one or more causes of action is not of great practical significance. That Commission recommended for the sake of simplicity that the law should provide that a single publication should give rise to one cause of action irrespective of the number of imputations contained therein. However, a statement containing numerous imputations could attract higher damages. We agree and provisionally recommend that a claim in defamation based on a single publication should give rise to a single cause of action, but invite views on this matter.

Pleading of Meanings

197.

Where the plaintiff intends to rely on a legal innuendo at trial, he must set out in his pleading the meaning which he attributes to the words. Usually, he will also set out the facts relied on to support this meaning. In England, this is a requirement of Order 82, rule 3(1) RSC. In Ireland, this appears to be a matter of practice. It is essential for him, however, to prove the extrinsic evidence at the trial.21

Where a popular innuendo is to be relied on at trial, it appears that in Ireland there is no obligation on the plaintiff to set out the meaning relied on. A series of cases in the Court of Appeal in England have altered the position there so that it appears to be necessary to set out such meaning if there is a doubt as to the meaning of which the plaintiff complains, or there is a need to crystallise the meaning in a long article.22 This is how the Faulks Committee understood the law as it stood in 1975.

In relation to the pleading of legal innuendos, the Faulks Committee noted that their Order 82 rule 3(1) did not require a plaintiff to specify the persons or class of persons to whom the extrinsic facts are alleged to be known. They felt that this should be made a requirement of the pleading. It would then be necessary for a plaintiff alleging that the words complained of were used in a defamatory sense other than their ordinary meaning, to give particulars of the facts and matter on which he relies in support of such sense and to give particulars of the persons or class of persons to whom these facts were known.

198.

We agree and provisionally recommend that there be a Rule of Court stating that where the plaintiff in a defamation action alleges that the words or matters complained of were used in a defamatory sense other than their ordinary meaning,


(i)


he must give particulars of the facts and matters on which he relies in support of such a sense and;


(ii)


he must specify the persons or class of persons to whom these facts are


21

See Part I, para 15.

22

See Part I, para 18.



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known.

199.

The Faulks Committee noted that the precise limitations which the pleading of a popular innuendo imposed on the plaintiff's case were not settled, and accordingly made proposals for clarification. They recommended that where a popular innuendo was involved, the pleading of such a meaning should not be mandatory but that in doubtful cases it should be pleaded.

They felt, however, that where a suitable case for pleading a popular innuendo arose, it should be carefully controlled, for a number of reasons. Firstly, the introduction of a popular innuendo into the proceedings necessarily added a new complexity as to the meaning of words, and it was undesirable and expensive to allow popular innuendos to become elaborate and verbose. Secondly, since the purpose of the popular innuendo was to explain and not extend the meaning of the words, it would be fair to both parties that the popular innuendo should be construed within the scope of the publication which it seeks to interpret. The provision recommended by the Faulks Committee reads as follows:23

“There should be a new rule of court providing that:


(1)


Whenever a plaintiff alleges that words or matter are defamatory in their natural and ordinary meaning –


(i)


he shall succinctly specify the meaning or meanings which he alleges the words or matter bear, unless such meaning or meanings are clearly apparent from the words themselves;


(ii)


such pleaded meaning shall explain but not extend the natural and ordinary meaning of the words or matter;


(iii)


the plaintiff should be tied to his pleaded meanings.”

200.

It is suggested that there be a new Irish Rule of Court incorporating the above recommendation with regard to popular innuendos.


23

Faulks Committee Report, para 119 (d).



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D. PAYMENT INTO COURT

Admission of liability

201.

There is a distinction drawn in Order 22 Rule 6 of the Rules of the Superior Courts between actions for death, damages or admiralty actions on the one hand, and actions for libel or slander, inter alia, on the other. In respect of the former, the defendant may make a payment into court whether or not liability is admitted. It must, however, be stated whether liability is admitted or denied.24 In respect of libel and slander actions, money may not be paid into court at all unless liability is admitted in the defence.25 There does not appear to be any obvious reason for this distinction.

When the Defamation Bill was being debated in the Dail, Deputy J.A. Costello expressed his approval of the rule –

“Personally, I think the High Court rules are right. I believe the defendant in a libel action should not be enabled to lodge money in court, without admitting the defamatory nature of the publication. This is my own personal view. I think it is a piece of manoeuvring to try and get away with the libel which is published. It is a manoeuvre because if a sum of money is lodged in court and the jury think the plaintiff has been libelled but that a smaller sum of money is adequate and that no special damages can be given, the defendant may get away with it. This is a piece of legal manoeuvring on the part of the person or newspaper which has published a defamatory statement and I think they should not be allowed to get away with it.”29

However this argument applies to all defendants, not merely those in libel


24

Order 22, rule 1(6).

25

Order 22, rule 1(3).



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actions and therefore Mr Costello's view would seem to be more in the nature of a criticism of the payment into court rules in general. The argument, with respect, does not justify the distinction drawn between libel and other actions. The Boyle-McGonagle Report attacks the distinction in the following terms:

“Why liability has to be admitted in defamation actions, though not, for example, in personal injury cases, is unclear. If payment into court is to have any real benefit for the defendant, the admission of liability requirement should be dropped. At present the plaintiff has nothing to lose in proceeding with the action because liability has been admitted and the only matter that has to be decided is the amount of damages. The defendant, because he has admitted liability, is very limited in what can be pleaded in mitigation. If he tries to mitigate by referring to the plaintiff's behaviour, he runs a risk of inflating damages. On the other hand, payment into court without an admission of liability as occurs in most other suits for damages would provide a fairer balance between the interests of the plaintiff and the defendant.”26

One may compare the English position. Originally, the rule on defamation actions was the same as the current Irish position. Under Order 22, rule 1, RSC 1883, there could similarly be no payment into court in a defamation action if the defence denied liability. This was substituted by RSC, (No.1) 1933 and amended by RSC (No.1) 1934; the new Order 22, rule 1(1) allowed payment with a denial of liability in all actions but in subsection (3) required that the notice of payment state where the liability was denied or admitted. This was omitted when Order 22, rule 1(3) was substituted by RSC (No 1) 1938 and does not appear in the modern RSC Order 22, rule 1(2).27 The current English position is therefore that money may be paid into court in actions for libel and slander regardless of whether liability is admitted or denied, and there is no requirement that the defendant state whether liability is admitted or denied.

202.

We provisionally recommend that the rules on payment into court should be identical for defamation and other tort actions.

203.

It was noted in Part I that the Circuit Court Rules appear to allow payment into court without admission of liability in all actions.28If the High Court rules are amended so as to allow payment into court with denial of liability in defamation actions, we recommend no change in the existing Circuit Court rules.


26

Report on Press Freedom and Libel, p 30, para 5.43.

27

Halsbury's Laws of England, vol 28, para 196, n 4.

28

Part I para 144.



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E. APOLOGY

204.

Section 17 of the Defamation Act 1961 provides that a defendant may give evidence in mitigation of damage that he made or offered an apology to the plaintiff before the commencement of the action or as soon afterwards as he had an opportunity of doing so. It has been repeatedly represented to us that this section has the effect of making apologies appear as admissions of liability. It is clear that an apology is quite distinct from a correction, retraction or any form of admission that the publisher was in error. It is simply a matter of courtesy and draws the reader's attention to the fact that matter concerning the plaintiff is somehow in dispute. We agree that it should not be regarded as constituting an admission of liability. We accordingly recommend the following provision to replace the existing s17.

Apology


(1)


In any action in defamation evidence that the defendant made or offered an apology to the plaintiff shall not be construed as an admission of liability and, where the issues of fact are being tried by a jury, they shall be directed accordingly.


(2)


Subject to sub-section (3), in any action in defamation, it shall be lawful for the defendant to give in evidence in mitigation of damage that he made or offered an apology to the plaintiff in respect of the matter complained of, prior to the commencement of the action or as soon afterwards as he had an opportunity of doing so, in case the action shall have been commenced before there was an opportunity of making or offering such apology.


(3)


The defendant must give notice in writing of his intention to give in



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evidence the fact of the apology to the plaintiff at the time of filing or delivering the plea in the action. Such notice shall not be construed as an admission of liability and when the issues of fact are being tried by a jury, they shall be directed accordingly.”



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F. PLEADING OF WORDS “FALSELY AND MALICIOUSLY”

205.

The Faulks Committee recommended that the practice of pleading in the Statement of Claim the words “falsely and maliciously” should be treated as obsolete. As Winfield and Jolowicz point out these words in the Statement of Claim are a mere formality and are ignored, unless there is actual malice which is relevant to certain defences. There would seem to be no reason for retaining the words “falsely and maliciously” in the Statement of Claim and we accordingly recommend that this practice be discontinued.



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CHAPTER 10: PRIVILEGED STATEMENTS

A. Absolute Privilege

206.

Absolute privilege is a protection afforded by law to statements made on certain occasions which the law considers to be so important that no action in defamation should be allowed in respect of them, regardless of the truth of the statement or the motives of the speaker. The categories of absolute privilege are set out above.

We propose to consider the policy arguments affecting the more important of these categories in detail, but before we do so, a fundamental question of principle must be addressed, namely, whether the concept of absolute privilege itself is justifiable. The conflicting arguments are most clearly illustrated when one takes the particular case of statements made in the course of judicial proceedings as contrasted with statements made during proceedings of quasi-judicial and administrative bodies.

In the first case, i.e. judicial proceedings, given certain conditions, the privilege under the present law is absolute. In the second, i.e. quasi-judicial or administrative proceedings, the position is less clear. Gatley takes the view that absolute privilege attaches to proceedings of quasi-judicial tribunals to the same extent as proceedings in courts. It could be argued, however, that the proceedings of a wider range of bodies should be protected. The Faulks Committee, for example, recommended the extension of the principle to the proceedings of formal hospital inquiries. This is merely one example of the range of proceedings that could potentially merit protection. But resolving the issue as to whether administrative bodies should attract absolute or qualified privilege necessitates a critical assessment of the concept of absolute privilege itself.

Let us see how the argument operates in relation to administrative bodies.



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207.

An absolute immunity is conferred upon statements made in the course of judicial proceedings. It is but a short step to extend that immunity, by analogy, to statements made in the course of quasi-judicial proceedings. These bodies, the argument runs, operate in a manner similar to courts and they should accordingly benefit from the same privileges. It is when an extension to cover administrative bodies is proposed that we must pause and reconsider the reasons for extension. On one view, the reason for including quasi-judicial bodies within the privilege is because they are “like courts”. On this view, no further extension should be made because administrative bodies are not “like courts”. However, a prior question should be asked, namely, why the immunity was conferred on the courts in the first place. It is submitted that the rationale behind judicial immunity is that proceedings would be impeded if parties were unable to speak freely. If this is the real reason for the privilege, it can quickly be seen that many bodies, not quasi-judicial bodies exclusively, require such a privilege in order to function effectively.

If we accept this argument provisionally, how are we to list the bodies covered by the privilege? How is one to distinguish between the bodies that require the privilege and those that do not? It is suggested that any proposed formulation should have at its core the purpose of the privilege. Even if a list of bodies is drawn up, there should be an additional general formula stating, for example, that all bodies come within the privilege whose proceedings would be impeded by a lack of privilege.

208.

The formula suggested is merely a crude version to show that the original purpose of the privilege should be central to the definition. There is little merit in moving gracefully from analogy to analogy if the original purpose of the privilege is not borne in mind. An example of such an exercise is provided by the Hasselblad case.1 The Court of Appeal examined the attributes of the European Commission and skilfully deduced that it was not a quasi-judicial body and it therefore did not fall within the principle of absolute immunity. However, it barred a defamation action in respect of a letter produced before that Commission because there was a “public interest” in assisting the Commission to carry out its duties. It is difficult to resist the conclusion that the Court of Appeal, having “analogised” the Commission out of the judicial sphere, was dissatisfied with the conclusion and wished to prevent defamation actions in some way because a lack of immunity would hamper the Commission in its duties. This supports the view that the purpose of the privilege should always be foremost in mind when considering extensions, and that a responsible statutory provision should make the purpose of the privilege apparent.

However, the matter does not end here. It must be remembered that while the extension seems logical, the privilege being extended is absolute. This should not be lightly undertaken. In an ordinary case of qualified privilege the speaker forfeits his privilege if he abuses the privilege. Why should a


1

Discussed at Part I, para 107.



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statement made before an administrative body continue to have an immunity even though there has been what the average onlooker would call an abuse of the privilege? Indeed, pursuing this argument, why should a person speaking before a court, or in Parliament, continue to have an immunity when the average onlooker would feel there was an abuse? In short, it could be said that a privilege is there for a purpose, but that it should always be lost when the privilege is abused. There is something inherently disquieting about the notion of an absolute privilege which can never be defeated.

Looking at privilege from this point of view, the decision whether to place hospital enquiries, (Faulks Committee) or other enquiries set up by law or executive authority (ALRC Report) into the absolute privilege or the qualified privilege camp becomes an arbitrary decision. This is arguably because the notion of absolute privilege is unsatisfactory and clear abuses of privilege should be accounted for, irrespective of the location of their utterance. To put it crudely, there is an unfairness in the present situation, where one person can defame another in Parliament by abusing his privilege, and cannot do so before a county council, although the subject matter of the statement is identical.

209.

So far, two arguments have been made. The first is that the same privilege should attach to all proceedings requiring a wide latitude of speech. The second is that this privilege should always be defeated if it is abused. From one point of view, absolute privilege should be reduced to a qualified privilege across the board i.e. in the Oireachtas, in court proceedings, between members of the Executive, before bodies exercising judicial and administrative functions. However, the theory runs into practical difficulties. The most likely place for defamatory accusations to be aired is in the Oireachtas, and with the advent of televised proceedings, the existence of an absolute privilige is possibly a cause for concern. But this privilege is the least assailable of the occasions of absolute privilege since it originates in the Constitution. The ideal might be a Constitutional amendment reducing the privilege accorded to statements made in either House of the Oireachtas, but this is an unlikely possibility. In any event, one should not lightly disregard the importance in a democracy of having at least one forum where freedom of speech is absolute.

Accepting then that this occasion of absolute privilege will remain, the options are


(a)


to reform the remaining instances of privilege so that they are all governed by clearly defined qualified privilege. This would result in a coherent law of privilege, parliamentary privilege remaining as an arguably anomalous exception.


(b)


to maintain the current distinction between absolute and qualified privilege, so that there is a coherence of treatment with regard to statements in the Oireachtas, before the Courts and in the Executive.



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If one were to accept the second option, it could only be on the basis that it was thought desirable to retain the concept of absolute privilege. Whichever option is adopted, one would have to determine where quasi-judicial and administrative bodies fit into the picture. If it is thought desirable to end the category of absolute privilege, save in the case of parliamentary privilege, leaving abusers of the various privileges to be dealt with under the law of defamation, it could be argued that the remedy of a correction order or a defamatory judgment might be more appropriate than damages.

Our present preference is for option (a), i.e. restricting absolute privilege to parliamentary proceedings and replacing it by privilege in the existing categories now attracting absolute privilege. We welcome views, however, on the general issue as to whether absolute privilege should be retained.

210.

We now proceed to examine the existing categories of absolute privilege which present special problems and we do so on the basis that our ultimate final recommendation may take the form of either option (a) or option (b).

(a) Utterances Made in Parliamentary Committees

Section 2(1) of the Committees of the House of the Oireachtas (Privilege and Procedure) Act 1976 provides that a member of either House of the Oireachtas shall not, in respect of any utterance, before a Committee be amenable to any court or authority other than the House of the Oireachtas by which the Committee was appointed. Section 2(2) goes on to establish a privilege in respect of the documents of a Committee, the documents of its members connected with the Committee or its functions, the official reports and publications of a Committee, and utterances in a Committee of members, advisers, officials and agents of the Committee. One notable exclusion from the section is witnesses Although McDonald2 argues that witness statements are already absolutely privileged at common law, it might be advisable to clarify the law, as the common law position may not be settled. Deputy John Kelly said in a Dail debate:

“The status and function of these committees are very unclear and every time a crisis or difficulty arises we all look a little foolish and a lot of time is wasted before we can discover exactly what are our entitlements ... There is a great deal to be said for the committees having clearly defined powers ...”

Although this statement was made prior to the large measure of clarification achieved by the 1976 Act, we believe that the comments of Deputy Kelly are still relevant to the position of witnesses, who were not included in the 1976 Act. We provisionally recommend that s2(2)(c) of the 1976 Act be amended by inserting the words “or witnesses before” after the words “agents”.


2

Irish Law of Defamation, p 124–5.



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(b) Statements made by one State Official to Another

211.

At present, these statements are said to be absolutely privileged at common law.3 It might be useful, however, to provide some guidance as to what communications are protected, and to what officials it extends. It may be noted that the Australian Law Reform Commission felt that such communications should attract qualified privilege only –

“Accepting that government officials should be encouraged to speak and write frankly on matters of mutual official interest, it is difficult to see that absolute privilege is necessary to ensure good and sound advice. The public interest in frankness among government officers does not differ from the public interest in the full and frank exchange of information between say, university officers, officers of a statutory Commission, or directors of a public company”.4

However it is interesting to note that the United States Restatement of Torts (Second) provides in section 591 that an absolute privilege exists in respect of communications made in the performance of official duties by (a) any executive or administrative officer of the United States or (b) a governor or other superior executive officer of a state.

212.

We provisionally recommend that there be a provision setting out the limits of executive privilege in respect of defamatory communications. We invite views as to whether this should be absolute or qualified, and to whom it should apply.

(c) Statements Made in the Course of Judicial Proceedings

213.

It is normally stated categorically that statements made in the course of judicial proceedings are absolutely privileged.5 However, it seems, firstly, that where a judge acts ministerially, absolute privilege does not apply.6 Nor does it apply where he acts in excess of jurisdiction and where the judge was aware that he was acting in access of jurisdiction.7

Secondly, it may be that irrelevancy or malice destroys the privilege of parties, witnesses and advocates.8Kennedy v Hilliard,9 and McCabe v Joynt,10 held that the malice does not defeat the privilege for witnesses. McDonald11 argues that that a number of older authorities which pointed the other way were ignored


3

Dawkins v Lord Paulet, (1869) LR 5 QB 95; Chatterton v Secretary of State for India in Council, [1895] 2 QB 198.

4

ALRC Report, para 136.

5

Gatley, Libel and Slander, 8ed, para 383; Winfield and Jolowicz, Tort, 11ed p 333–4; Faulks Committee Report para 183(a); New Zealand Report, para 167; Australian Law Reform Commission Report, para 132.

6

See Part 1, para 102.

7

Ibid.

8

See Part 1, paras 103–106.

9

(1859) 10 ICLR 195.

10

[1901] 2 IR 115.

11

Irish Law of Defamation, at p133.



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for policy reasons in Kennedy v Hilliard, and that a recent dictum of O'Dalaigh CJ in Re Haughey12 supports the view that irrelevancy destroys the privilege of a witness. As regards advocates, in The Queen v Kiernan13 the privilege was defined as with a lack of good faith or motivated by malice. In The Queen v Hutchins14 slanderous remarks made at the conclusion of a case were held to fall outside the privilege. However, the Court of Appeal in Munster v Lamb15 held that the privilege was absolute and this was adopted by the New Zealand courts in Richardson v Harley.16It would seem that some clarification in this area is necessary

Judges

214.

The Faulks Committee referred to the principle of judicial immunity without mentioning the exceptions set out above, namely acts in excess of jurisdiction or ministerial acts.19 They declined to propose any change to the existing law. It is unclear under this proposal whether the two exceptions are covered by the privilege or not. However it may be that ministerial acts and acts in excess of jurisdiction are not considered to be judicial statements at all so that the privilege does not apply to them. The Faulks Committee thought that in cases of abuse of the privilege, the judge in question could be satisfactorily dealt with by Parliament or the Lord Chancellor. They did, however, consider a proposal put forward by Mr LJ Blom-Cooper QC. This suggested that judicial privilege should be neither absolute nor qualified, but a generic privilege, which would be lost if there was express malice, proved clearly and conclusively. However, the Committee felt that the absence of complaints indicated that there was no real problem in this area and declined to adopt this proposal.

It would seem desirable that the law should make clear whether the principle of judicial immunity includes ministerial acts of the judge and acts in excess of jurisdiction. It is of interest to note that the United States second Re-Statement of Torts (1977) provides as follows in s585:-

“A judge or other officer performing a judicial function is absolutely privileged to publish defamatory matter in the performance of the function if the publication has some relation to the matter before him”.

We believe that a provision of this general nature would probably be declaratory of the common law. Accordingly, we provisionally recommend that there should be a provision that a judge or other officer performing a judicial function and who is not knowingly acting without jurisdiction or performing a purely ministerial function should be absolutely privileged to publish defamatory


12

[1971] IR 217, 264.

13

(1855) 5 ICLR 171.

14

(1857) 7 ICLR 425.

15

(1883) 11 QBD 588.

16

(1911) 31 NZLR 464.



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matter in the performance of that function if the publication has some relation to the matter before him.

(ii) Parties, Witnesses, Advocates

215.

The Faulks Committee considered whether the privilege of advocates should be withdrawn in cases of abuse of privilege. It decided that the rule of public policy “that advocates in appearing for a party in legal proceedings should do so with his mind uninfluenced by the fear of an action for defamation”17 was still valid and should not be modified.

As seen above, there is some doubt created by the cases as to whether absolute privilege attaches to all statements of a party, witness, or advocate in Ireland. If a similar view to the Faulks Committee were taken, i.e. that the privilege should have no exceptions, this would benefit from being set out in a statutory provision. However, the dictum of O'Dalaigh CJ in Re Haughey should be borne in mind.

“The immunity of witnesses in the High Court does not exist for the benefit of witnesses, but for that of the public and the advancement of the administration of justice and to prevent witnesses from being deterred, by the fear of having actions brought against them, from coming forward and testifying to the truth. The interest of the individual is subordinated by the law to the higher interest, viz., that of public justice, for the administration of which it is necessary that witnesses should be free to give their evidence without fear of consequences. It is salutary to bear in mind that even in the High Court, if a witness were to take advantage of his position to utter something defamatory having no reference to the cause or matter of enquiry but introduced maliciously for his own purpose, no privilege or immunity would attach and he might find himself sued in an action for defamation.”18

216.

If it is felt that this is the better view, it must be remembered that parties and witnesses will usually have little knowledge of what is relevant, or of the constraints of the law of defamation. Advocates might be expected to know somewhat more; on the other hand, a person might be representing himself. Perhaps the easiest way to deal with this would be to treat parties, witnesses and advocates all alike. The onus should be on the plaintiff alleging that defamatory words were spoken of him in the course of judicial proceedings to establish an abuse of the occasion. A defamation action should only be brought in clear cases.

It is noteworthy that the United States Restatement of Torts (Second) provides as follows in section 586 –


17

Faulks Committee Report, para 200.

18

[1971] IR 217, at 264. Emphasis added.



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“An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding”.

A similar provision in respect of “parties to judicial proceedings” is provided for in section 587, and for “jurors” in section 588. Accordingly the privilege would be forfeited if the publication bore no relation to the proceedings. However, malice would not defeat the privilege. We favour these proposals and therefore recommend that statements made by parties, witnesses, advocates and jurors should be absolutely privileged provided the matter bears some relation to the legal proceedings in question.

(d) Communications between Solicitor and Client

217.

We noted in our discussion of the present law that it has been held in England that such communications are absolutely privileged, but that the correctness of the decision has been doubted. The New Zealand Committee noted that only qualified privilege attaches to such communications in Scotland and recommended that this should also be the law in New Zealand.

218.

The law undoubtedly requires clarification in this area and our provisional recommendation is that there should be a provision that communications between solicitors and clients should attract qualified privilege only. It would also seem reasonable that the same should apply to communications between counsel and client.



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B. QUALIFIED PRIVILEGE

219.

The occasions which attract qualified privilege are set out in detail above. They may be broadly summarised as falling into three categories:


(a)


Statements made pursuant to a recognised duty or in furtherance or protection of a common interest;


(b)


fair and accurate reports of judicial and parliamentary proceedings;


(c)


reports of proceedings of or decisions by bodies specified in the Second Schedule of the Defamation Act 1961 (such as local authorities), which fall into two further sub-categories:–


(i)


reports privileged without explanation or contradiction


(ii)


reports privileged subject to explanation or contradiction

1. MALICE

220.

A showing by the plaintiff that the defendant was actuated by malice will destroy the privilege. This means malice in publishing the defamatory words of the plaintiff. It is not sufficient to show that bad relations existed between the parties, because the defendant may still have published the words believing them to be true or without any improper motive. It was submitted earlier in this Paper that the judgment of Lord Diplock in Horrocks v Lowe19 accurately sets out the common law criteria governing the malice element in the defence of qualified privilege. These were identified as follows:


(1)


The plaintiff must show that the defendant was actuated by improper motive when making the publication and that this motive was the


19

[1974] 1 All ER 662, discussed at para 117 Part I above.



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