#5420 - Identification (Defamation) - Irish Tort Law

Identification

Defamation Bill 2006

s.5 (3) A defamatory statement concerns a person if it could reasonably be understood as referring to him or her.

s.9 Where a person publishes a defamatory statement concerning a class of persons, a member of that class shall have a cause of action under this Act against that person, if a) by reason of the number of persons who are members of that class or b) by virtue of the circumstances in which that statement is published the statement could reasonably be understood to refer, in particular, to the member concerned.

Sinclair v Gogarty (SC 1937)

Facts

1. The defendant published a book which contained libellous statements about two anonymous individuals.

2. The plaintiffs claimed that it could reasonably be understood to refer to them.

Issue

• Identification – Probative Evidence

Judgment (Hanna J)

• The evidence of the plaintiff and, in particular, of a third party is a strong indication that the parties can reasonably be identified from the book.

• It is also clear that there are enough hints in the book to indicate to anyone familiar with the family that it is they who are being portrayed in the book.

Gallagher & Shatter v Independent Newspapers

• The plaintiffs complained of a letter in the Evening Herald, claiming that its reference to “a handful of solicitors and judges, who in each others company have conspired to adopt the sub-human norms of the foreign Irish Family Planning Association” was a reference to them.

• No evidence, other than the plaintiffs' own impressions, was adduced and the jury found that the words complained of would not be understood by the readers' of the article as referring to them.

Le Fanu v Malcomson (HoL 1848)

Facts

1. The defendants published a article which made defamatory statements about a company which owned a factory in Waterford.

Issue

• Identification of multiple parties

Judgment

1. Lord Chancellor

   • As the plaintiffs are bringing this suit as proprietors of the factory, they must be able to point to some damage they have suffered as proprietors and not as individuals.

   • The article in this case is defamatory in its references to the management of the factory which they own – as this effects them as proprietors, they may succeed.

2. Lord Campbell

   • Where a class of people is defamed, it may well be that the defamation refers to a single individual and a single individual can bring a suit in respect of that defamation.

   • This is because the practice of defaming a class of people may bring a single individual of that class into contempt among those who read the defamation.

Murphy v Times Newspapers (SC 1996)

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 plaintiffs were brothers whose family was known as the 'Slab Murphys'

Issue

• Identification – Multiple parties

Judgment

1. Hamilton CJ (concurring)

2. O'Flaherty J (concurring)

3. Barrington J

   • Both men may be identified as the man described in the report.

Duffy v News Group Newspapers (SC 1991)

Facts

1. The plaintiff was the chairman of a GAA club which the defendants alleged in their newspaper to have links with IRA.

2. A number of the members sued the newspaper, but the plaintiff wanted to keep his action separate from the other actions, claiming that he had been libelled as an individual.

Issue

• Indentification – Defamation of class of people

Judgment (McCarthy J)

• Whilst ordinarily, no particular member of a body or class can maintain an action where the words complained of reflect on a body or class of persons generally, there are situations where a goup defamation can refer to a particular individual or individuals – this will only arise where a) the circumstances or words of the statement may indicate a reference to the plaintiff or b) the reference is to a limited group.

• The question of whether the article refers to the plaintiff is a separate issue in each case, thus the actions may be heard separately.

E. Hulton & Co v Jones (HoL 1909)

Facts

1. The appelants published an defamatory article of a named person, whom they believed was a fictional character.

2. The character had the same name as the respondent, whose friends testified that they believed him to be the person described.

Issue

• Accidental/unintentional reference

Judgment

1. Lord Loreburn LC

   • Whether or not the appellant intended to defame the respondent is irrelevant – the tortious act consists only of using language which others knowing the circumstances would reasonably think to be defamatory of the person complaining of it.

   • If the writers intention as to the truth or defamatory nature of the article is irrelevant, there is no reason why its relation to the injured party need to be conscious either.

2. Lord Atkinson (concurred)

3. Lord Gorell (concurred)

4. Lord Shaw of Dunfermline (concurred)

Newstead v London Express Newspapers (CA 1939)

Facts

1. The defendants' newspaper published an account of a bigamy trial which they described as being conducted in respect of “Harold Newstead, a thirty year old Camberwell man”

2. This was a reasonable description of the plaintiff in this case, despite the fact that he was not the defendant in the trial.

Issue

• Unintentional reference

Judgment

1. Sir Wilfred Greene MR (concurring)

   • Merely because certain defamatory words are true of A, does not exclude their being applicable to B.

   • It is not unreasonable to expect persons making descriptions of somebody that would be defamatory if applied to another, to describe that person with sufficient precision so that the...