Introduction
The tort of defamation, often known as the civil wrong of defamation, is concerned with defending an individual’s (or, in some cases, a business entity’s) reputation against unjust attacks. The right to a good name is protected by the Constitution, and the state is responsible for protecting and enforcing it. A person’s reputation can be tarnished in a variety of ways. Traditionally, libel was used to describe unjust attacks on a person’s reputation that were written down, and slander was used to describe defamatory words made in a spoken or another temporary form. That distinction has subsequently been erased, and both types of defamation now fall under the same umbrella.
Individuals’ rights to their good name and reputation, as well as the fundamental right to freedom of expression, are fiercely protected. Defamation litigation is brought about when these two rights clash. This is most typically seen when media outlets publish stories that are damaging to an individual’s reputation. However, the courts will not consider all content to be defamatory, no matter how insulting it is to the party involved.
The goal of defamation laws is to safeguard people’s reputations from harm. Defamation remedies, including monetary damages, must always be appropriate to the harm done to one’s reputation. A defamatory statement is a false or untrue statement of fact that damages a live person’s reputation or good name. This may also apply in unusual circumstances to a firm or other legal entity, but a commercial reputation does not have the same moral component as an individual reputation. Defamation rules should only be used on the deceased in extreme cases. Defamation laws should not be used to defend (state) emblems, flags, anthems, or other such items.
Politicians (including heads of state and government, as well as members of the government), public officials, and public figures (including business people and even celebrities) must tolerate more criticism than the general public. They knowingly expose themselves to close examination of their words and deeds by electing to enter public life. While they are entitled to reputational protection even when they are not working in a private capacity, the need for such protection must be evaluated against the benefits of open political debate.
Everyone who utilizes their right to freedom of expression bears specific responsibilities and duties, the scope of which vary depending on the situation. Journalists and the media must not breach certain borders, particularly when it comes to other people’s reputations and rights. In general, they are required to act in good faith in order to provide the public with accurate and reliable information in accordance with journalistic ethics.
Facts and views or value judgments are not the same things: the presence of facts can be proven, while the veracity of opinions or value judgments cannot be proven. The right to freedom of expression is infringed by a demand to substantiate the veracity of a value judgment. A value judgment, on the other hand, should have a sufficient factual basis, as even a value judgment with no factual basis may be excessive.
It is critical that defamation laws provide a variety of defenses that protect the right to free speech. Journalists and the media are bound by deadlines, and because news is a perishable commodity, delaying its dissemination, even for a short time, risks losing all of its value and appeal. In legal proceedings involving alleged defamatory statements, they must be able to use a variety of defenses, such as the existence of a strong public interest in the topics they are discussing, the truth or accuracy of their statements, their good faith in publishing the statements; that their statements are fair comments; and that they have acted in accordance with their duties and responsibilities.
Different actors, using diverse mediums and in different ways, might contribute to public discourse. The right to freedom of expression involves the ability to choose, edit, and display information and ideas in whichever way journalists and the media see fit. This means they can utilize exaggeration, provocation, irony, satire, or other styles or approaches as long as they are not gratuitously offensive in their communication. Journalists, the media, and online intermediaries should not be held accountable for defamatory statements made by third parties unless extraordinary circumstances exist. When analyzing the proportionality of interferences with the right to freedom of expression, these freedoms are crucial.
Specific Concerns
Following the presentation of the European Court of Human Rights’ general principles and guidance, a shortlist of specific concerns arising in the context of the Irish Defamation Act will be flagged for further consideration as part of the review process: defamation of a corporation; changing technologies and forms of communication; and decriminalization of defamation. The European Court of Human Rights has often recognized the public interest in commercial practices, as well as the importance of being able to scrutinize them, for example, through (critical) media reportage. It believes that “large public companies inevitably and knowingly lay open to close scrutiny of their acts” and that “the limits of acceptable criticism are wider in the case of such companies,” as was mentioned in the case of Steel and Morris v United Kingdom. Just as they are in the case of the businessmen and women who manage them or are actively involved in their affairs. While a firm has an undeniable right to defend itself against defamatory charges, there is a distinction to be made between a company’s commercial reputational interests and an individual’s social status reputation.
Costs
In the case of defamation, the issue of fees is quite important. Defamation cases that have been unsuccessfully defended in recent years have resulted in expensive monetary awards to libeled parties. In November 2010, an Irish court awarded businessman Donal Kinsella €10 million in a defamation case, the biggest judgment ever issued by an Irish court in a defamation case. Prior to the Kinsella case, the greatest libel award was €1.9 million to Monica Leech, a public relations specialist, for a series of articles published in the Evening Herald newspaper in 2004, falsely implying that she had an affair with a government politician. However, under the 2009 Act, the Circuit Court’s defamation authority was expanded to €50,000, which should theoretically result in more cases being filed in the Circuit Court, lowering the prospective legal expenses of claims. Furthermore, the 2009 Act empowers a judge sitting with a jury in a defamation case to give the jury instructions on the question of damages.
What Must Be Proven?
In most cases, it is not simple to prove that a particular statement is defamatory. A plaintiff should overcome several hurdles to establish the statement as defamatory. It must be proved that the comment has been published to a third party in order to bring a defamation lawsuit. If the public is unaware of the defamatory comment, there can be no reputational harm. Publication to just one other person, on the other hand, is adequate if the publication to the third party was intended and reasonably foreseeable. Second, the words must have the potential to be defamatory. A defamation act, according to Section 2 of the Defamation Act 2009, is a statement that tends to injure a person’s reputation in the eyes of reasonable members of society.’ Words will be given their ordinary, natural meaning for determining whether or not a remark is defamatory. However, the courts will consider innuendo, in which comments that are not directly critical of the subject but infer or insinuate anything about him or her may constitute defamation.
Finally, the alleged injured person must show that the material complained of has identified or is capable of identifying them. ‘A defamatory statement concerns a person if it could be reasonably be understood as referring to him or her,’ says section 3(6) of the Defamation Act 2009. It should be highlighted that in order to confirm identity, an individual does not have to be identified. All that is required is that they can be identified using the information provided. Furthermore, members of a class or group may bring a defamation action if they are not in large numbers and the statement is published in such a way that it could fairly be believed to refer, in particular, to the member in question.
Defenses to an Action
Because freedom of expression is a basic right in every democracy, a defamation lawsuit can be defended in nine different ways. A perfect defense to a defamation claim is always the truth. That is, if the truth of the statement can be proven, the purported harmed party cannot launch a defamation action. It’s worth noting that there’s a presumption of untruth, which means the court will assume the claims in question are untrue. It is up to the other side to prove the statement’s veracity.
When public policy demands that the recipient’s right to know takes precedence over the individual’s right to a good name, the law will offer immunity to the maker of a statement from a defamation case. Thus, a comment made, for example, in either House of the Oireachtas by a member of either House of the Oireachtas, or any statement made by a judge or other person executing a judicial role, cannot give rise to a defamation case. Section 17 of the 2009 Defamation Act contains a complete list of the areas covered by absolute privilege.
This defense is especially relevant to the media, and it can be used when the law recognizes that a person may have an obligation to talk to those who have a reciprocal interest in receiving the information. It should be remembered, however, that malice revokes this privilege. In a defamation case, the defense of honest opinion will be upheld if it can be demonstrated that the statement was made with an honest opinion in mind. When this defense is presented, the courts will distinguish between assertions of truth and expressions of opinion. This defense is especially significant to the media, and it will apply where it can be demonstrated that the statement was made in good faith on a topic of public concern for the public’s benefit. The statement must be fair and reasonable in all circumstances.
A person who publishes a defamatory statement may make a written offer of restitution. They may choose to offer a payment to the affected party or publish a correction or apology. An apology can be used as a partial defense in the sense that it can help mitigate damages. A defamation case cannot be brought based on a statement that the complainant agreed to be published. This defense is especially important for publishers because making a defamatory statement more than once qualifies as a distinct act of defamation. A person who is not the creator of the defamatory remark in question, who used reasonable care in publishing it, and who had no reason to think that he or she caused or contributed to the defamatory publication will not be held liable for defamation. Defamation is a complex area of the law. If one believes he/she has been defamed, they should contact a skilled counsel as soon as possible since they only have one year from the date of publication to file a claim.
Conclusion
In conclusion, a defamation action is one that “tends to injure a person’s reputation in the eyes of reasonable members of society,” as defined under S2 of the Defamation Act 2009. However, in order to defend the defamation act, many lawsuit peculiarities should be taken into account. One should provide enough evidence in order to prove that there was defamation and a threat to their reputation.
Reference
Steel and Morris v. the United Kingdom, [2005], no. 68416/01, § 94.