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Defences (Defamation) Notes

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Defences Defamation Bill 2006 s. 14 (1) It shall be a defence (to be known and in this Act referred to as the defence of 'Truth') to a defamation action for the defendant to show that the statement in respect of which which the claim is brought is true in all material respects. (2) In a defamation action in respect of a statement containing 2 or more distinct allegations against the plaintiff, the defence of truth shall not fail by reason only of the defence of every allegation not being proved, if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining allegations. s.18 (1) It shall be a defence (to be known and in this section referred to as the "defence of honest opinion") to a defamation action for the defendant to prove that, in the case of a statement consisting of an opinion, the opinion was honestly held. (2) Subject to sub-section 3 an opinion is honestly held, for the purposes of this section, if a) at the time of the publication of the statement, the defendant believed in the truth of the opinion or, the defendant was not the author of the opinion, believed that the author believed it to be true, b) the opinion was based on allegations of fact specified in the statement containing the opinion or referred to in the statement, that were known, or might reasonably have been known, by the persons to whom the statement was published or the opinion was based on allegations of fact to which the defence of absolute privilege or the defence of qualified privilege would apply if a defamation action were brought in respect of such allegations and c) the opinion related to a matter of public interest. (3) a) The defence of honest opinion shall fail if the opinion concerned is based on allegations of fact to which sub-section 2 (b) (i) applies, unless i) the defendant proves the truth of those allegations or ii) where the defendant does not prove the truth of all of those allegations, the opinion is honestly held having regard to the allegations of fact, the truth of which the defendant did prove. b) The defence of honest opinion will fail if the opinion concerned is based on allegations of fact to which 2 (b) (ii) applies unless (i) the defendant proves the truth of those allegations or (ii) where the defendant does not prove the truth of those allegations (I) the opinion could not reasonably be understood as implying that those allegations were true and (II) at the time of the publication of the opinion, the defendant did not know or could not reasonably have been expected to know that those allegations were untrue s.19 The matters to which a court in a defamation action shall have regard, for the purposes of distinguishing between a statement consisting of allegations of fact and a statement consisting of opinion, shall include the following:- A) the extent to which the opinion is capable of being proved, B) the extent to which the opinion was made in circumstances in which it was likely to have been reasonably understood as a statement of opinion rather than a statement consisting of fact and C) the words used in the statement and the extent to which the statement was subject to a qualification or disclaimer or was accompanied by cautionary words. s.20 (1) A person who makes a statement which is alleged to be defamatory of someone may make an offer of amends. (5) In this section an offer of amends means an offer A) to make a suitable correction of the statement concerned and a sufficient apology to the person to whom the statement refers or is alleged to refer, B) to publish that correction and apology in a manner that is reasonable and practicable in all the circumstances and C) to pay that person such a sum in compensation or damages (if any) or such costs as may be agreed by them or determined to be payable. s.21 (1) If an offer to make amends under section 20 is accepted, the following provisions shall apply:- D) no defamation action shall be brought, or if already brought, proceeded with against another person in respect of a statement to which the offer of amends applies unless the court decides that in all the circumstances of the case it is just and proper to do so. (2) Subject to sub-

section 3 it shall be a defence to a defamation action for a person to prove that he or she made an offer to make amends under section 20 and it was not accepted, unless the plaintiff proves that the defendant knew or ought reasonably to have known at the time of publication that A) it referred to the plaintiff or was likely to be understood as referring to the plaintiff and B) it was false and defamatory of the plaintiff. (4) A person who makes an offer to make amends is not required to plead it as a defence in a defamation action (5) If a defendant in a defamation action pleads the defence under this section, he or she shall not be able to plead any other defence in the action. s.22 (1) In a defamation action the defendant may give evidence, in mitigation of damage, that he or she made or offered an apology to the plaintiff in respect of a statement to which the action relates either A) before the bringing of the action or B) as soon as practical thereafter, in circumstances where the action was commenced before there was an opportunity to make an apology. (3) In a defamation action, an apology made by or on behalf of a defendant in respect of a statement to which the action relates A) does not constitute an express or implied admission of liability by the defendant and B) is not relevant to the determination of liability in that action. (4) Evidence of an apology made by or on behalf of a person in respect of a statement to which the action relates is not admissible in any civil proceedings as evidence of liability of the defendant. s.23 In a defamation action it shall be a defence, to be known as the "defence of consent", for the defendant to prove that the plaintiff consented to the publication in respect of which the action was brought. s. 29 (4) Without prejudice to the generality of sub-section 3, the court in a defamation action shall, in making an award of damages, consider (i) if the defence of truth is pleaded and the defendant proves the truth of part but not the whole of defamatory statement, the extent to which that defence is successfully pleaded in relation to that statement. Defamation Act 1961 s.17 - In any action for defamation, it shall be lawful for the defendant (after notice in writing of his intention to do so, duly given to the plaintiff at the time of filing or delivering the plea in the action) to give in evidence, in mitigation of damage, that he made or offered an apology to the plaintiff for such defamation before the commencement of the action or as soon as afterwards 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 an apology. s. 21 (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. s. 23 In an action for libel or slander consisting partly of allegations of fact and partly of allegations 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 proved.

Murphy v Times Newspapers (SC 2000) Facts

1. The defendants published an article whereby a 'farmer in the Republic' known as 'Slab Murphy' was the Operations Commander for the IRA in Northern Ireland

2. The defendants were sued by two plaintiffs and the first action was dismissed as the jury found that the plaintiff was a member of the IRA.

3. The defendants pleaded the defence of partial justification and the plaintiff in the second action contended that they could not claim that the article was true in respect of both plaintiffs when the article was written about a single person. IssuePartial Justification

Judgment

1. Keane J (concurring)
? The tort of defamation occurs independently of the intentions of its perpetrators.
? Thus the if the defendants are in the position that two plaintiffs can satisfy the jury that they were identified in the publication, they are entitled to rely on whatever defences are available to them at law, including a defence that, although it was never intended that the words would refer to the particular plaintiff, they are true concerning him in all material respects.
? Partial justification may be pleaded even in a case where there is only one broad charge brought by the plaintiff, i.e. that the plaintiff was Operations Commander for the IRA - this is permitted by the Defamation Act 1961.

2. Barron J (concurring)
? The onus is on the defendant to establish the truth of a defamatory statement.

Branson v Bower (CA 2001) Facts

1. The plaintiff had made a successful bid to run the British National Lottery.

2. The defendant ran an opinion piece which was severely critical of the plaintiff's intentions in making the bid. IssueFair Comment

Judgment

1. Latham LJ (concurring)
? If the defendant can show that his statements are comment rather than fact, he is not required to show that the words are objectively true - he can rely on the defence of fair comment.
? A comment is something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation etc.
? If the defendant proves that he has published comments rather than facts he must show A) that the facts upon which his opinion is based is true and B) the opinion is one which a reasonable person could hold in light of the facts established as true.

2. Sir Philip Otton (concurring)

McGarth v Independent Newspapers (HC 2004) Facts

1. The plaintiff was a CIE employee and trade union shop steward.

2. He claimed that a photo of him above a newspaper article headed "businessman Pat McGarth stands to lose thousands after investing in eircom" was defamatory and sought an apology from the defendants.

3. The defendants refused to apologise, but printed a retraction stating that the plaintiff had borrowed money to invest in the shares (which was true) next to an article headed "big business linked to family of terrorist. IssueApology

Judgment (Gilligan J)
? The defendants claim that there was a concluded agreement between the parties which settled the issue does not stand - the plaintiff sought an apology, while the defendants believed he sought redress.
? The retraction in the form it was in did not constitute an apology and thus the parties were not ad idem.

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