Defamation is one of the most serious dangers facing journalists and publishers today. Eighty per cent of all defamation actions are brought against the media - and a libel action can bankrupt a small newspaper or radio station.
Balance Of Rights
Journalists may feel that they should have the right to say whatever they like. After all, Article 40.6.1.i of the Irish Constitution says that the State guarantees the right of citizens to express freely their convictions and opinions. But the right of freedom of expression in Ireland is not absolute.
The Article goes on to say that, because of the importance of educating public opinion, the State will try to ensure that the organs of public opinion such as the radio and the press (it doesn't mention television) keep their right to liberty of expression, but they shall not be used to undermine public order, morality or the authority of the State.
The right of freedom of speech is also guaranteed by Article 10 (1) of the European Human Rights Convention, which provides that: "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas, without interference by public authority and regardless of frontiers."
But Article 10 (2) subjects this freedom to such restrictions "as are necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary".
Of course, the Irish Constitution does not only guarantee freedom to the media. It also guarantees to respect the personal rights of citizens. Article 40.3.2 of the Constitution says "the State shall, in particular, by its laws, protect as best it may from unjust attack (and, in the case of injustice done, vindicate) the life, person, good name and property rights of every citizen."
In the 1988 case of Kennedy v Hearne, the Irish High Court specifically acknowledged the role played by the law of defamation in vindicating a citizen's right to his good name.
What Is Defamation?
The traditional definition of defamation was publication of a false statement which subjected a person to hatred, ridicule or contempt. That rather archaic definition has given way to a more modern one: a defamatory statement is one which tends to lower the reputation of the subject in the eyes of right-thinking people. (That means that a person cannot sue for having his reputation lowered in the eyes of, for example, other members of his criminal gang!)
Defamation is divided into two forms: libel and slander. Historically, libel was the written form of defamation, while slander was the spoken form.
The advent of modern technology has made those definitions obsolete. Even though broadcasting is, in one way, a more transient medium than newspapers, the invention of tape and video recorders means that a false statement can now be preserved in the same way as a newspaper cutting. So today, a defamatory statement broadcast on radio or television or the Internet would be regarded as libellous, rather than slanderous.
The essential practical difference between libel and slander nowadays is that, in a slander action, the plaintiff (that is the person bringing the action) has to prove that the words caused him actual damage, financial or otherwise.
There are, however, exceptions to this rule. If a spoken statement suggests that a woman has been unchaste, or slanders a person in his profession or calling, or suggests that a person has a criminal record or contagious disease, no proof of actual damage is necessary.
Defamation is what is known as a "strict liability" offence, which means that the state of mind of the offender is irrelevant. No intention to defame is required.
Everyone involved in the publication of a defamatory statement is liable to be sued - including the journalist, sub-editor, editor or producer, owner and distributor! Repetition of a defamatory remark may give rise to a separate action - and the complainant may sue everybody who repeats the libel.
An actionable defamatory statement has three ingredients:
it must be published,
it must refer to the complainant and
it must be false.
A defamatory statement is only actionable if it is published. In the 1840 case of Ahern v Maguire, Chief Baron Brady said that, if a letter "however slanderous, is received only by the person to whom it is addressed, and does not go beyond him, there is no publication of it in law to support an action for libel". (But a wrongly addressed...