Comprehensive Procedures Inolved In Taking Action Under Libel And Defamation Act 2009

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Question :

You are a team of Junior Legal Executives working for a vibrant law firm in Dublin. You have been asked to conduct a research on specific areas of the Defamation Act 2009 and collate this information in a presentation format which you will then present to your Policy and Resolution Manager.

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Answer :

Identification of the jurisdiction of the courts

The identification process under 2009 act is based on the questions that were brought up in Bradley V. Star Newspapers. Before that the rule of identification was based upon the Common Law that indicated that a person needs to be identified in a specific statement in which this is deemed to occur under the specific rules of section 10 that indicates defamation of a class of persons. In the mentioned case the plaintiffs sued on the basis of few allegations that were not mentioned clearly in the section and instead of the fact it referred to two criminals who were called as “fatheads”. As stated by the jury in the high Court the identification was not reasonable in this publication. The chief question associated with placing an appeal to the Supreme Court was whether the trial judge could have admitted in evidence a second article that was published after the first article in which the plaintiffs were addressed by their original names.

As per the section 14 of the act the court or the judge can dismiss the action if it relates to the determined imputation that has been pleaded by defendant. The cases namely Lewis v. Daily Telegraph and Griffin v. Sunday Newspapers bring forth two significant questions that are question of suspected involvement and the fact of guilt. 

As per the previous interpretation of Article 5 of the Brussels Regulations found in both European and Irish law, a action of defamation can be taken either in any state in EU where the publication has taken place and the damages are to be limited to compensation for the subsequent publication in that jurisdiction or in the state where the publisher was established and in this case compensation is to be awarded for the full extent. 

Some of the most important changes that were developed in 2009 was under the heading of procedural changes and it included the following:

  • Parties needs to accompany the pleadings along with a verification affidavit that indicates at the aversion of the truths related to the contents of the pleadings as mentioned under section 8 of the subsequent act.
  • Section 29 informs that the rules in association with lodging complaint against defamation cases have been effectively changed and the lodgement as per the revised version could be made without any admission to the liability.
  • The limitation period associated with defamation cases have been reduced to one year under section 38 of the act.

The act also codifies many essential elements of the tort associated with defamation and also made several amendments to the existing law. 

Available remedies

Section 15 of the act identifies that save for the defence of absolute privilege mentioned in section 18 and qualified privilege mentioned under section 17, the statutory statement of the defences are replaced by all defences that considered to be effective previously in the pleading of a defamation action. The statutory remedies of defence are consisted of the following:

  • Truth or justification

The defendant needs to prove the truth of the impugned statement in all tangible aspects.

  • Fair comment or honest opinion

For the availability of the defence the impugned statement needs to be either believed by the defendant or in case of the defendant not being the author then he or she needs to believe that the original author believed it to be true.

  • Apology

It helps in mitigating the possible damages.

  • Consent

The consent of the plaintiff works as a defence in the action of defamation.

  • Innocent publication
  • The defence of Fair and Reasonable publication (section 26)
  • Privilege under Statute and common law 
  • The act has also created a single against multiple publication rule and it has also abolished the crime of the defamatory libel. The most important aspects that need to be mentioned are as they have attracted the recent case law are the rules of identification and the new element that indicated that the judge is permitted under section 14 of 2009 Defamation act to give a ruling on the meanings regarding the pleadings of the plaintiff that are alleged to flow from any impugned statement.  

Status of apologies

As per section 24 of Defamation Act of 2009, in a defamation action the defendant is free to provide evidence in order to mitigate the damage that he or she 

  • Offered or made an apology to the plaintiff in association with the statement to which the statement relates.
  • Published the apology in a manner that ensures the fact that the apology is of similar prominence as given to the statement

In an action of defamation an apology that is made by the defendant or on behalf of the defendant in association  to a statement in relation to action-

  • Does not comprise of an expression or an implied admission of liability by the defendant
  • Or it is not relevant to the determination of the liability that is in action

It is important to note that the evidence related to the apology that is made by or made on behalf of  a person in respect to a action is not admissible in any civil proceedings as evidence of liability of the defendant in the case. The significant fact here is that an apology does not constitute of an admission of liability and can not be used in the civil proceedings.