#5422 - Publication (Defamation) - Irish Tort Law

Minimal Publication, Repetition/Seeking out of Publication

Defamation Act, 1961 – s.14(2)

• Any reference to words in this part of the act shall be construed as including a reference to visual images, gestures and other methods of signifying meaning

Defamation Bill – s.5 (2)

• The Tort of defamation consists of the publication, by any means, of a defamatory statement

• (s.2) 'statement' includes

  • any statement made orally or in writing

  • visual images, sounds, gestures and any other method of signifying meaning

  • a statement

    • broadcast on radio or television

    • published on the internet

  • an electronic communication

Berry v Irish Times (SC 1972)

Facts

1. The plaintiff claimed that he had been defamed when the defendants published a photograph of a person carrying a sign with allegedly defamatory material printed on it.

Issue

• Publication

Judgment

1. Ó Dálaigh CJ

   • The photograph constituted publication.

2. Walsh J (concurred)

3. Budd J (concurred)

4. Fitzgerald J

5. McLoughlin J

Jameel v Dow Jones (CA 2005)

Facts

1. The defendants' website contained a link which directed readers to a list of people it alleged supported al Qaeda, one of whom was the plaintiff.

2. The defendants adduced evidence to the effect that only five subscribers to its website clicked on the link.

Issue

• Minimal Publication – Whether actionable

Judgment (Philips LJ MR)

• The English law on the subject is that the presumption of damage to the plaintiff in a defamation case is irrebuttable, hence the number of people to whom the publication is made is irrelevant.

  • This law should not be rejected – the situations where a plaintiff launches a defamation suit having suffered no damage will be rare, owing to the costs of such suits, hence the law does not have a chilling effect on journalism and does not infringe Article 10 ECHR.

• However where a plaintiff takes a defamation action in circumstances where his reputation has suffered little or no damage, the court may award costs against him or alternatively strike out the case as an abuse of process.

• In this case, the plaintiff had reason to believe the publication was much larger than it turned out to be – however his claim should still be struck out.

• It is unlikely that Duke of Brunswick's Case would today have survived an application to strike out for abuse of process as his action was of such a technical nature.

• As a result of the minimal publication, and the fact that a considerable number of those who clicked on the link were agents of the plaintiff, this case should be struck out for abuse of process.

Stern v Piper (CA 1996)

Facts

1. The defendants published defamatory comments about the plaintiff that were quoted from an affirmation made against him in a pending court case

Issue

• Repetition of Publication – Whether Actionable

Judgment

1. Hirst LJ

   • The repetition of a statement constitutes a new publication.

   • This rule applies even to repetitions of affirmations made in court.

2. Simon Brown LJ

   • The repetition rule exists to prevent juries coming to the conclusion that a publication that conveys rumour, hearsay, repetition etc is true or bears a less defamatory meaning than the original statement.

3. Sir Ralph Gibson (concurred)

Irish People's Assurance v Dublin City Assurance (SC 1928)

Facts

1. The plaintiffs claimed that the publication of a certain document by the defendants carried the defamatory meaning that they were insolvent.

2. The defendants claimed that one of the publications complained of, i.e. to the plaintiffs' agent, was not actionable as it was brought about by the plaintiffs themselves in a deceptive manner.

Issue

• Seeking out publication – whether actionable

Judgment

1. Kennedy CJ (concurring – agreed with Fitzgibbon J)

2. Fitzgibbon J (concurring)

   • If the defendants' contention were law, it would be impossible in many cases to prove publication at all.

   • The case law on the subject states that this sort of publication is sufficient to establish liability on its own and not a ground to reduce damages

3. Murnaghan J (dissenting)

Duke of Brunswick v Harmer (QB 1849)

Facts

1. The plaintiff was suing over a defamatory statement made about him seventeen years before the bringing of the claim, which the defendants claimed was statute barred.

2. The plaintiff adduced evidence that his agent had purchased a copy of the libellous material within the time limit set down in the statute of limitations.

Issue

• Seeking out publication – Whether actionable

Judgment (Coleridge J)

• Where a stranger to the defendant is supplied with defamatory material concerning the plaintiff, it counts as a publication to the stranger, even if the stranger is acting on the plaintiff's behest.

• This is because the agent's opinion of the plaintiff is as susceptible to being lowered as if her were a stranger.

• Neither is there any reason for the jury to give lower damages in a case such as this than had the person who procured the statement not been an agent of the plaintiff.

Internet Publication, Multiple Publication, Secondary Publication

Defamation Bill, 2006

s. 10 (2) – A court may grant leave to a person to bring more than one defamation in respect of a multiple where it considers that the interest of justice so requires.

s.25 (1) – It shall be a defence (known as the defence of innocent publication) to a defamation actions, for the defendant to prove that a) he or she was not the editor, author or publisher of the statement to which the action relates b) he or she took reasonable care in relation to its publication and c) he or she did not know, and had no reason to believe that what he or she did caused or contributed to the publication of a statement that would give rise to a cause of action in defamation.

(2) A person for the purposes of this section shall not be considered an author, editor or publisher of a statement if a) in relation to the printed material containing the material, he or she was responsible for printing, production, distribution or selling only of the printed material, b) in relation to a film or sound recording containing the statement, he or she processing, copying, distribution, exhibiting or selling only of the film or sound recording, c) in relation to any electronic medium where the statement was recorded or stored, he or she is responsible for the processing, copying, distribution or selling only of the electronic medium or was responsible for the operation or provision only of any equipment, system or service by means of which the statement would be capable of being retrieved, copied, distributed or made available.

(3) The court shall for the purposes of determining whether a person took reasonable care or had reason to believe that what he or she did cause or contributed to the publication of a statement that would give rise to an action in defamation, have regard to a) the extent of the person's responsibility for the content of the statement or the decision to publish it, b) the nature or circumstances of the publication and c) the previous conduct or character of the person.

Godfrey v Demon Internet (QB 1999)

Facts

1. The defendants held on their ISP a news article, published by an unknown person, that was defamatory of the plaintiff.

2. The plaintiff requested that they take it down, which they refused to do and they sued him.

Issue

• Internet Publication

Judgment (Morland J)

• Whenever the defendants transmit and whenever there is a transmission from their server of the defamatory article there is a publication.

• The defendants were not merely owners of an electronic device through which postings were transmitted – they chose to store the information and failed to delete it.

• Thus the defendant's contention that they were not publishers fails.

Berezovsky v Michaels (HoL 2000)

Facts

1. The plaintiffs were defamed in the defendant's magazine which had a circulation of over a thousand in England.

2. The defendants claimed that England was not the appropriate venue for the case.

Issue

• Multiple publications

Judgment

1. Lord Steyn (concurring)

   • In order to establish jurisdiction, the tort committed must be a real and substantial one – this is to mitigate the strictness of the English rules (each publication gives rise to a new libel, publication takes place where the words are seen or read and defamation is actionable without proof of special damage)

2. Lord Nolan (concurring – agreed with Lord Steyn)

3. Lord Hoffman (dissenting)

   • The application of the Brunswick v Harmer rule has been described by some commentators as potentially disastrous in modern circumstancs – however in this case, where the plaintiffs are treating the action as a global tort a discussion of this rule is irrelevant.

4. Lord Hope of Craighead (dissenting)

   • The English law is that each communication of defamatory subject matter is a new libel and this is applicable to jurisdictional disputes.

   • However under the rules of court the case is not a proper one for service in the jurisdiction.

5. Lord Hobhouse of Woodborough (concurring – agreed with Lord Steyn)

Loutchansky v Times Newspapers – No.2 (CA 2001)

Facts

1. The defendants, a national newspaper, published defamatory statements about the plaintiff.

2. A number of publications had been on the internet and the defendants claimed that the only actionable publication in the case of an internet publication occured when the article was first posted on the internet.

Issue

• Internet Publication

Judgment

• Archive material is stale news and its publication does not...