CPD CONFERENCE GALWAY
Paper by John F. Kiely, B.L.
Friday 8th November 2013
UP DATE ON DEFAMATION ACT 2009
A previous paper delivered by me in early April 2012 dealt with the Defamation
Act 2009. Essentially the purpose of today’s discussion is to update
practitioners on the case law as it has developed in the past two years.
Before dealing with that however it is important perhaps to recount the
essential features of the Act in bullet point form so as to understand the
application of the Judgments that have been handed down:
 The Defamation Act of 2009 in essence makes a number of procedural
changes to the law of defamation and introduced a new range of
available remedies.
 The first important is that the Act came into operation the 1st January
2010 and it has no retrospective application and it abolished the
Defamation Act 1961 in its entirety.
 From a practitioners point of view a significant and practical
development is that in the Act the limitation period is reduced from
three years (for slander) and six years for libel to one year for the tort of
defamation (or in exceptional cases where the interest of justice so
require two years).1
 It is important to note the date of accrual of the cause of action is the
date in which the defamatory statement is first published and so as far
as the Plaintiff’s advisors are concerned it is essential to ensure that
proceedings are issued within one year of first publication.
 The tort of defamation survives the death of either the Plaintiff or the
Defendant.2
1
2
Section 38 of the 2009 Act
Section 39 of the 2009 Act
1
 There is no longer a separate cause of action in slander and libel. There
is instead one single cause of action known as a Tort of defamation
which consists of publication of a defamatory statement concerning a
person which tends to injure that person’s reputation in the eyes of
reasonable members of society. The tort of defamation is actionable
without proof of special damages.3
 The 2009 Act applies to Body Corporates in the same way as it applies to
a natural person.4
 Each party in a defamation action whose pleadings contain assertions or
allegations of fact must swear an Affidavit of Verification.5
 The Act provides that parties in a Jury trial may make submissions and
the Judge can give directions to the Jury in the matter of damages
thereby reversing a Supreme Court ruling in DeRossa v. Independent
Newspapers Plc. And O’Brien v.6 The Mirror Group Newspapers.7
 The Act provides that the Circuit Court jurisdiction and Defamation
Action is to be raised to €50,000.00.8
 The old common law defence of justification has been abolished and has
been reincarnated in the form of a Defence to be known as “the Defence
of Truth”. Under the Act the onus of proof still remains on the
Defendant to establish the truth of his statement.
 Absence of belief in the truth of a statement is irrelevant to the
applicability of the Defence.
 A pre-existing Defence of absolute privilege still exists and is now firmly
placed on a comprehensive statutory footing by Section 17 of
the 2009 Act. The categories for which Section 17 provides
statements made in:
o The executive and government context.
o The legislative and parliamentary context.
o The Judicial and quazzi juridical context.
3
Section 6 of the 2009 Act
Section 12 of the 2009 Act
5
Section 8 of the 2009 Act.
6
(1999) 41R 432
7
(2001) 11R1
8
Section 41 of the 2009 Act
4
2
 Courts have local and limited jurisdiction such as the Coroner’s Court the
conduct of which has available to it the defence of absolute privilege.
 Qualified privilege which existed under the old common law is restated
and placed on a statutory footing.
 The Section 20 of the 2009 Act creates the defence of honest opinion.
There is little difference between this new defence of hones opinion and
the old defence of fair comment.
 A fair reasonable publication of a matter of public interest. This defence
is designed to facilitate free discussion on topics of public importance
and enshrines in statute a defence similar to the judgment in the House
of Lords in the case of Reynolds v. The Irish Times Newspapers9.
 Section 22 provides that a Defendant who has published an alleged
defamatory statement may make an offer of amend which must be in
writing and it must state that it is an offer to make amends for the
purpose of the Section and must state whether it is in respect of the
entire statement or if it is a qualified offer.
 An offer of amends must be made before the delivery of the Defence.
 An apology as provided for in Section 24 restates the law and may give
evidence in mitigation of damage that he made and published an
apology however a new requirement is that the apology must be
published or that there must be an offer to publish an apology in a
manner to ensure that the apology is given the same or similar
prominence as was given to (defamatory) statement.
 Section 25 of the Act puts on a statutory footing that the consent by the
Plaintiff to publication is a defence to the action for defamation in
respect of that publication.
Innocent publication
 Section 27 creates a defence of innocent publication for a Defendant
who is not the author or editor or publisher of the statement and who
9
1999 4 ALL ER 609
3
took reasonable care in relation to the publication and neither knew not
had reason to believe that he caused or contributed to the defamation
publication.
Damages
 Section 34(1) of the 2009 Act sets out eleven factors to which the jury
will have regard to assessing damages.
Other Remedies Available under the Defamation Act of 2009
 Section 30 Correction Order.
 Section 33 Prohibition Order
 Section 34 Summary Disposal of the Act.
Limitation Periods
 By virtue of s. 11(2)(c) of the Statute of Limitations 1957 (as substituted
by s. 38(1) of the Defamation Act 2009), the limitation period for a
defamation action is one year from the date of accrual, or such longer
period (up to two years from the date of accrual) as the Court may
direct. Due to the news. 11(3A) of the 1957 Act (inserted by s. 38(1)(b) of
the 2009 Act), the Court cannot make such a direction:
….unless it is satisfied that—
(a) the interests of justice require the giving of the direction,
(b) the prejudice that the plaintiff would suffer if the direction were not given would
significantly outweigh the prejudice that the defendant would suffer if the direction
were given,
and the court shall, in deciding whether to give such a direction, have regard to the
reason for the failure to bring the action within the period [of one year from the date
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of accrual] and the extent to which any evidence relevant to the matter is by virtue
of the delay no longer capable of being adduced.
Curiously, there is no ‘and’ or ‘or’ between sub-paras. (a) and (b) above so it is not
yet clear whether it is necessary to satisfy both criteria or only one. Given the
sentence structure, the presence of an ‘and’ at the beginning of the part of the subsection immediately following sub-para. (b) does not definitively resolve this
question and there is no available written decision on the question yet. However, in
Byrne & Binchy, Annual Review of Irish Law 2009 at p. 742 and in McMahon and
Binchy, Law of Torts (4th ed, 2013) at para. 46.162, the section is summarised in
terms suggesting that both sub-paras. (a) and (b) must be satisfied, which would
seem to be the better view.
The date of accrual of the cause of action is the date on which the defamatory
statement is first published and, where the statement is published through the
internet, the date on which it is first capable of being viewed or listened to online: s.
11(3B) of the 1957 Act as inserted by s. 38(1) of the 2009 Act.
It is interesting to note that in Tansey v. Gill [2012] 1 IR 380 proceedings were
instituted on 3rd August 2011. An application to extend time under s. 11(2) of the
Statute of Limitations 1957 (as amended by s. 38 of the 2009 Act) was successfully
brought on 22nd July 2011, prior to the proceedings themselves being instituted.
CCR O. 5C r. 4(3) and RSC O. 1B r. 3(2) allow the application to be made before
proceedings are instituted. Both provide:
Where a defamation action has not been brought before the Court in respect of the
statement in question, an application to the Court for a direction [extending time]
under section 11(2)(c) of the Statute of Limitations 1957 shall be brought by
originating notice of motion, in which the intending plaintiff shall be named as
applicant and the intended defendant as respondent. The application shall be
grounded upon an affidavit sworn by or on behalf of the moving party.
Where such an application is made by originating notice of motion as
provided for above in the Circuit Court, the Court can make a variety of
directions to assist it in determining the application: CCR O. 5C r. 8.
In Murray v. Sheridan [2013] IEHC 303 the plaintiff instituted
proceedings for, inter alia, defamation, in October 2012 in respect of
incidents in 2001 and in March/April 2010. The defendants, without
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having delivered a Defence, applied to the Court to dismiss the claim,
inter alia on the ground that it was statute-barred. Applying the old
limitation periods in respect of the incident in 2001, O’Malley J held that
the claim in relation to that incident was statute-barred. This indicates
(as would also seem clear from s. 3(1) of the Act) that the former
limitation periods (three years for slander and six years for libel) apply to
defamation actions where the cause of action accrued before 1st
January 2010. She then considered the limitation position in relation to
the incident during an earlier Court hearing in 2010. She concluded at
paras. 52-53:
The plaintiff argues that it can be assumed that the Garda memorandum had
been published to others in the years preceding the court hearing. He may
very well be right, but the insuperable problem that arises is that the Act
does not, on the face of it, allow for any extension of time in a case where a
plaintiff was unaware of the fact of publication of a defamatory statement,
such as where it is published to a specially limited audience of which the
plaintiff is not part.
In any event, no argument in relation to discoverability could avail the
plaintiff on the facts of this case. This document was produced in court, to
the knowledge of the plaintiff, on one of the hearing dates in the High Court
in March or April of 2010. The plenary summons was not issued until the 17th
October, 2012. There is no power to extend time in those circumstances.
The above observation as to the absence of a discoverability provision in
the Act appears to have been made in reference to the 2009 Act. Finally,
she also held (and the same conclusion would also seem to follow from
s. 38 of the 2009 Act, which uses the “shall not be brought” form of
words typical of s. 11 of the 1957 Act) that, as with most causes of
action, the expiration of the statutory period did not prevent an action
from being brought but only gave the defendant a defence. In that
regard she held at para. 54:
It is well-established law that a limitation period operates as defence, rather
than extinguishing a cause of action, and I have therefore considered
whether it should be required that a defence be filed before an application of
this sort be brought. However, in the circumstances it seems to me that there
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can be no doubt as to the intention of the defendants to rely upon the
Statute, given the contents of [the grounding] affidavit. Equally, there can be
no doubt but that the defence would have to succeed. It seems to me,
therefore, absolutely clear that the plaintiff has no chance of success in
relation to his defamation claims and that his action must be dismissed on
the basis that it is bound to fail.
Monetary and Geographic Jurisdiction
The Circuit Court has jurisdiction in defamation actions where the
amount of the claim does not exceed €50,000. That jurisdiction is to be
exercised, at the election of the plaintiff, by the Judge of the Circuit
where the tort is alleged to have been committed or the Judge of the
Circuit where the defendant (or one of the defendants) resides or carries
on any business: s. 22 of, and the Third Schedule to, the Courts
(Supplemental Provisions) Act 1961 as amended and s. 41 of the 2009
Act. When s. 17 of the Courts and Civil Law (Miscellaneous Provisions)
Act 2013 enters into force the upper limit on damages for defamation
actions in the Circuit Court will be increased to €75,000.
Defamatory Meaning
A Court may, on application by Notice of Motion, make a ruling as to
whether the statement in respect of which a defamation action is
brought is capable of bearing the imputation pleaded by the plaintiff
and, if so, whether that imputation is reasonably capable of bearing a
defamatory meaning: s. 14(1) and (3). Where the Court rules against the
plaintiff on either of those two issues, it must dismiss the action insofar
only as it relates to the imputation concerned: s. 14(2). CCR O. 5C r. 4(2)
and RSC O. 1B r. 3(3) require that such applications be grounded on an
affidavit sworn by or on behalf of the applicant.
In Travers v. Sunday Newspapers Ltd. [2012] IEHC 185 the defendant
applied under s. 14 for a ruling that the article complained of was not
reasonably capable of bearing three of the five imputations pleaded by
the plaintiff in his Statement of Claim and an order under that section
dismissing the plaintiff’s claim insofar as it related to those three
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imputations. The article allegedly suggested that the plaintiff may have
been involved in and profited from a bank robbery. Hedigan J refused
the defendant’s application, saying at p. 15 of his judgment:
It is well established that a judge should not withdraw a question of meaning
from the jury unless satisfied that it would be "wholly unreasonable" to leave
that question to the jury. The test laid down by the Supreme Court in Quigley
v. Creation Ltd. [1971] IR 269 where Walsh J. stated as follows at 272:"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 libelous meaning to the words
complained of. In determining this matter, the judge will construe the words
in accordance with a fair and natural meaning such as would be given to
them by reasonable persons of ordinary intelligence in our own
community…"
He held that the same principles apply in determining an application pursuant to s.
14 and concluded at p. 16:
Written words must be construed in the context in which they appear. The
hypothetical reasonable man that is referred to in Jeynes v. News Magazines
Limited…whilst not overly suspicious can read between the lines and
determine what is actually meant by the article. There may well be phrases
present that are attributable to the plaintiff which claim his innocence,
however it seems to me that the fact that the article sets out the plaintiff's
denial of involvement in the bank robbery does not preclude the plaintiff
from alleging the meanings for which he contends. The article includes
captions such as "high life" beside a photograph of the plaintiff standing in
front of a Ferrari. It is plain that some meaning must be adduced by the
reasonable reader from the presence of such a photograph. The high life
Ferrari style is not normally associated with the life style of a bank clerk. By
juxtaposing the photo with the text, the defendant has it seems to me very
arguably suggested the plaintiff is not to be believed. Whether this is so is a
matter for the jury. It seems to me that the article when viewed objectively
from the viewpoint of the hypothetical "reasonable reader" is capable of
giving rise to the meanings contended for at paragraphs 7(i) 7(ii) and 7(v) of
the statement of claim. I am satisfied therefore that it would be unfairly
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prejudicial to the plaintiff to prevent the [three imputations] contended
for…from being put before the jury at the trial of the action….
Defences
The old defences to libel and slander actions are (to a large extent but
not entirely) abolished by the Act: s. 15. Broadly speaking they are
replaced by the defences provided for in Part 3 of the Act. These are
truth (which replaces the justification defence); absolute privilege;
qualified privilege; honest opinion (which replaces fair comment);
consent by the plaintiff to publication; fair and reasonable publication
on a matter of public interest; innocent publication; an offer to make
amends; and apology. Where truth is not pleaded in a defamation
action, the defendant is restricted in relation to giving evidence-in-chief
of certain matters without sufficient advance notice to the plaintiff: CCR
O. 5C r. 11; RSC O. 1B r. 10.
With regard to the offer to make amends, it is important to note the
requirements regarding matters such as timing and content of such
offers and the consequences of same regarding pleadings in ss. 22 and
23. CCR O. 5C r. 2 requires the plaintiff in a Circuit Court defamation
action to include in his indorsement of claim a statement that no offer to
make amends under s. 22 by a person who has published the statement
has been accepted or that such an offer to make amends has been
accepted and, in that case, the indorsement should include particulars of
the order made under s. 23(1)(d) permitting the bringing of the
proceeding. There is a similar requirement in the High Court as per RSC
Appendix B Part II as amended by SI 511/2009. CCR O. 5C rr. 5 to 7 and
RSC O. 1B rr. 4 to 8 are relevant where an offer to make amends is
accepted.
As to the apology defence, the defendant can give evidence in mitigation
of damage of the making or offering of an apology that conforms with
the requirements of s. 24(1) as to manner and timing. The plaintiff must
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be notified at the appropriate time of the intention to give such
evidence: see s. 24(2). The defendant may provide such notification by
including a statement of such intention in his Defence: CCR O. 5C r. 9;
RSC O. 1B r. 9. In a defamation action, an apology regarding the
statement in question is irrelevant to liability and evidence of such an
apology is not admissible as evidence of liability: s. 24(3) and (4).
The defence of absolute privilege is provided for in s. 17. In Murray v.
Sheridan [2013] IEHC 303 O’Malley J observed at para. 41:
At common law, words spoken in the ordinary course of proceedings in court,
whether by judges, counsel, jury, witnesses or parties, were absolutely
privileged….This position is currently continued by s. 17 of the [2009 Act].
In JO’N v. SMcD [2013] IEHC 135 Birmingham J said at paras. 23 and 35:
The immunity [under s. 17(2)] is a wide one extending to words spoken by an
advocate in court, to statements contained in pleadings or other documents
incidental to the action, including inter [partes] correspondence.
In an action for damages for defamation the defendant may, on giving
notice in writing to the plaintiff, pay a sum of money into court in
satisfaction of the action when filing his or her Defence: s. 29(1). The
defendant need not admit liability when making such a payment: s.
29(4). Section 29(3) makes provision regarding the plaintiff’s option to
accept the payment.
Discovery
In Walsh v. News Group Newspapers Ltd. [2012] IEHC 353 the plaintiff took a
defamation action against the defendant for publishing an article regarding a
falsely alleged sexual assault by the plaintiff that had been reported to the
gardaí. The plaintiff sought discovery of documents regarding the defendant’s
investigation of that allegation and the publication of the article and various
categories of documents relevant to the plaintiff’s assertion that the defendant
10
had induced and offered to pay the complainant to make a complaint to the
gardaí (on the basis of which assertion he sought aggravated and exemplary
damages). O’Neill J said at para. 11:
It is accepted by the defendants that all of the categories of documents sought, apart
from Category 7 relating to contracts between the defendants and members of An
Garda Síochána are relevant to the contested issues in the action. I am quite satisfied
from the nature of the documents sought by the plaintiff that discovery of these
documents could be of considerable advantage to the plaintiff in advancing his case,
particularly for aggravated and/or exemplary damages and also in attacking the
defendants' defence, both in respect of reasonable publication pursuant to s. 26 of
the Defamation Act and the defence to the plaintiff's claim for aggravated and/or
exemplary damages.
The defendant relied on journalistic privilege as to journalists’ sources in
respect of all documents. The hearing of the motion for discovery was also
treated as the hearing of the claim to privilege. The issues for the Court to
determine were whether journalistic
privilege applied to the documents and whether the documents in Category 7
were relevant. O’Neill J went on to say at para. 20:
I would readily agree with [counsel for the defendant] that the interest
which is identified as protected by journalistic privilege is the proper
functioning of journalism, namely, that there is a free flow of
information from the public to journalists which is not inhibited or
"chilled" by the prospect that the source will be disclosed. Implicit in all
of this is that the risk to the proper functioning of journalism is
disclosure or identification of the person supplying the information.
Ordinarily, information supplied will end up published; thus, per se, it
could not be said that the content of the information enjoyed privilege
from disclosure. If, however, the content of the information which,
necessarily, was not published, could lead to the identification of the
source, then it would seem to me that it too must enjoy the privilege
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from disclosure, as otherwise, the overall purpose of the privilege would
fail.
He concluded that journalistic privilege did not apply in the circumstances to
communications between the complainant and the defendant even
independently of any question of financial inducements being offered to the
complainant. It was therefore unnecessary to consider the effect the alleged
inducements might have on the application of journalistic privilege to the
defendant’s communications with him. O’Neill J also held that discovery should
be made in respect of communications between the complainant and the
defendant, unless the defendant could assert privilege on the basis that those
communications would disclose another source. He concluded that the
documents in Category 7 were relevant to the claim for aggravated damages
and to the defence of fair and reasonable publication under s. 26. He also held
that disclosure by gardaí to the media of a complaint by a victim of sexual
assault where the alleged assailant was a person of high public profile would
be an offence under s. 62(2)(g) of the Garda Síochána Act 2005. He therefore
held that journalistic privilege could not apply to the disclosures by gardaí. He
also held at para. 29:
Communications between the defendants' journalists and persons other
than [the complainant] and members of An Garda Síochána concerning
the publication the subject matter of these proceedings, would, in my
opinion, be protected from disclosure by journalistic privilege.
Injunctive Relief
The High Court, or where a defamation action has been brought, the
court in which it was brought, may, on the application of the plaintiff,
make an order (interim, interlocutory or permanent) prohibiting the
publication or further publication of the statement in question if in its
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opinion the statement is defamatory and the defendant has no defence
to the action that is reasonably likely to succeed: s. 33(1) and (3).
Reporting of the making of that order should not include publication of
the statement in question: s. 33(2). If the application is for an
interlocutory order under s. 33, CCR O. 5C r. 4(2) and RSC O. 1B r. 3(3)
require that it be by motion on notice grounded on an affidavit sworn or
on behalf of the plaintiff. Where no defamation action has been brought
in relation to the statement in question and an application is made to
the High Court under s. 33, special procedural requirements set out in
RSC O. 1B r. 3(4) and (5) apply to the application.
In Mercury Engineering v. McCool Controls and Engineering Ltd. [2011]
IEHC 424 the plaintiffs sought interlocutory injunctions to restrain the
defendants from defaming them in relation to their business relations. It
alleged that the defendants had done so to a considerable extent
already. The defendants denied defamation and claimed that the
statements they had made were true. Both parties referred to pre-2009
Act authorities regarding prior restraint of publication of allegedly
defamatory statements and the plaintiff referred in addition to s. 33 of
the 2009 Act. Murphy J considered pre-2009 Act authorities that posited
a strict test for the grant of prior injunctive relief to restrain alleged
defamation. He effectively accepted that there was a sufficient
possibility of the successful invocation of a defence of truth to mandate
the refusal of the interlocutory injunction sought. Given the reliance
placed on pre-2009 Act authorities in the judgment, it appears that
Murphy J did not regard the 2009 Act as having brought about any
change in the test to be applied where an interlocutory injunction is
sought to restrain publication of allegedly defamatory statements.
Tansey v. Gill [2012] 1 IR 380 indicates a greater willingness to grant
interlocutory injunctions in internet defamation cases. There the plaintiff
solicitor alleged that statements (some of which had been made
anonymously) about him on www.rate-your-solicitor.com meant that he
had engaged in criminal, dishonest, corrupt, unprofessional and
incompetent conduct. The first defendant ran the website and had
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approached the plaintiff to act for him against other solicitors. A few
days after their consultation, the plaintiff had informed the first
defendant that he could not take on his case, but the first defendant
claimed that this was a breach of an alleged undertaking by the plaintiff
to act for him. The third defendant hosted the website and had
registered the name of the site, but did not enter an appearance and
judgment in default was granted against it.
The plaintiff sought orders to restrain continued publication of
defamatory statements. The defendant alleged that a number of
persons were available to give evidence in support of the allegations of
misconduct against the plaintiff. Peart J considered Reynolds v. Malocco
[1999] 2 IR 203, where Kelly J had held that a mere expression of
intention to plead justification was insufficient to oust the Court’s
jurisdiction to grant an interlocutory injunction and that the Court could
examine the evidence in support of the justification plea to ascertain
whether it had any substance or prospect of success. Peart J went on to
note at paras. 20-24:
….Kelly J. had regard to the unlikely prospect on the evidence that the
successful plaintiff would be able to recover any damages which might be
awarded. In the present case…if an award of damages is made it would be
substantial….I have no doubt that neither [the first defendant] nor the fourth
defendant would be a mark for any such damages.
….It can truly be said, in the words of Kelly J…, that this site has become "a
happy hunting ground for unscrupulous defamers". It provides a facility
whereby persons who have a grievance against a solicitor with whose
services they are dissatisfied for whatever reason can publish that grievance
and say whatever they wish about that solicitor, even anonymously or under
a pseudonym, thereby making it almost impossible for any solicitor who feels
defamed from seeking any redress against them. Laws exist whereby a
person who is named on a site and is the subject of allegedly defamatory
material may communicate with the host or operator of the site and request
that the material be taken down. In the present case those attempts were
unsuccessful prior to the commencement of these proceedings, and even
prior to the application coming on for hearing….I certainly have no
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knowledge that [the site] has been terminated in a permanent way. In
addition, unless restrained, there is no reason why a similar site would not be
registered for a similar purpose.
…I am completely satisfied that…the plea of justification which may be put
forward at any trial of this action has no prospects of success. The evidence
put forward is nowhere near substantiating any wrongdoing of the nature
alleged….
Such accusations are very serious indeed for any person. It is particularly so
for any professional person such as the plaintiff to be subjected to this sort of
unbridled accusation of criminal activity in relation to his occupation as a
solicitor. The material, unless removed and restrained is publicly available for
all to see, and is…available worldwide….
….Life has changed…since the arrival of the internet, as this case
demonstrates clearly, and it seems to me that whatever judicial hesitation
has existed in the matter of granting an interlocutory injunction to restrain
publication pending trial should be eased in order to provide an effective
remedy for any person in this State who is subjected to unscrupulous,
unbridled, scurrilous and defamatory material published on a website which
can, without any editorial control by the host of the website, seriously
damage him or her either in his or her private or business life. In my view, the
ready availability of such a means of defaming a person by any person who
for any reason wishes to do so has such a capacity to cause insult and
immediate and permanent damage to reputation means that the courts
should more readily move to restrain such activity at an interlocutory stage of
the proceedings in these types of proceedings, particularly where an award
of damages is considered likely to provide an empty remedy.
He commented further on the ease with which persons can be defamed
on the internet and the extent of the potential damage which can be
done in that manner and expressed the view that the Oireachtas should
be asked to consider the creation of an appropriate criminal offence
with a penalty sufficient to act as a real deterrent. He went on to refer to
the test laid down in s. 33(1) of the 2009 Act and concluded that it was
satisfied. He granted orders prohibiting the publication or further
publication of the defamatory material; requiring the first and fourth
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defendants to remove from the internet any defamatory material
concerning the plaintiff and restraining them from publishing further
defamatory material concerning him; and requiring them to terminate
the operation of the website. He indicated that he was also prepared to
grant the application for an order against them directing them to give
the plaintiff the names and addresses of all persons involved and
concerned in the publication of defamatory material concerning him, but
said that he would hear counsel for the plaintiff as to whether such an
order was still required.
Disclosure of Identities of Defendants, Reporting of Defamation Proceedings and Anonymity
of Plaintiff
In McKeogh v. Doe 1 and others [2012] IEHC 95 the plaintiff had been
wrongly identified by the first defendant as being the man seen running
from a taxi without paying in a video on YouTube. Peart J made a
number of ex parte orders to secure the removal of defamatory material
about the plaintiff from YouTube and other websites and to require
some of the defendants to provide the plaintiff with the identity of the
web users who had defamed him via their websites in order to enable
him to take steps against them to protect his good name. Peart J also
made an ex parte order restraining the defendants and other parties
with notice of the making of the orders from publishing material
defamatory of the plaintiff on the internet or otherwise. Subsequently,
the plaintiff contended that a number of newspaper companies had
notice of the making of those orders, had named him in their reporting
of the Court proceedings, had reported on the nature of the defamatory
material and had in some cases failed to record his denial that the fare
evader was him and the Court’s finding that it could not have been him
as he was abroad at the time. The plaintiff contended that the
newspaper reporting had in that manner perpetuated the defamation in
breach of the Court’s order. He applied for injunctions aimed at
preventing the perpetuation of the defamation and/or identification of
the plaintiff as the subject of the defamation pending trial. It was alleged
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that his rights to privacy and to a good name required the Court to grant
such orders. Peart J said at p. 5 of his judgment:
One can readily understand what motivates the plaintiff to try and put a
stop to [the nasty comments being directed at him by people online].
However, this court does not have a magic wand. The damage has
already been done, and it is impossible to 'unring' the bell that has
sounded so loudly.
On the basis of a number of pre-2009 Act authorities, Peart J accepted
the submission that a litigant had no right to anonymity in relation to
Court proceedings as justice must be administered in public under the
Constitution. He added at p. 12:
I note also that when the Oireachtas enacted the Defamation Act, 2009
it did not include any provision conferring a discretion on the courts to
hear such proceedings other than in public. It clearly could have done so.
He refused the injunctions sought, holding that the facts were not “so
exceptional as to entitle this Court not to follow the law as it has been
pronounced at the highest level in this country.” He therefore appears to have
contemplated that there might possibly be some highly exceptional cases in
which anonymity would be permitted. He concluded at pp. 12-13:
The parties to whom this motion is directed are firstly not parties to
whom the order in question was directed….Their reporting of the
proceedings as such is not in any event a breach of the order in
question. That is not to say that any newspaper is immune from suit if
they publish material which is defamatory of the plaintiff, but the mere
reporting of proceedings in which the plaintiff claims against others that
he has been defamed does not of itself constitute a repetition of that
defamation, provided that it is fair and accurate, and in the event that a
newspaper was to infringe that requirement, the plaintiff would have a
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cause of action in which he could again seek redress in the ordinary way.
I am completely satisfied that they were and are entitled to name the
plaintiff in their reporting of the proceedings….
CONCLUSION
The Rules of the Circuit Court and Superior Court
The recently decided case law and the Rules of the Superior Order 1 (b)
Statutory Instrument No. 511 of 2009 together with the Circuit Court Rules
Order 5 (c) Statutory Instrument 486 of 2009 help practitioners significantly in
adopting the correct pleadings whether act for Plaintiff or Defendant such that
the full benefit of the reliefs as are provided for in the Act can be utilised on
behalf of your clients.
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