Ryanair Ltd v Van Zwol
 IEHC 728
THE HIGH COURT
[2013 No. 11363 P]
Defamation – S. 20 and s.21 of the Defamation Act, 2009 – Defence of honest opinion – Matter of public interest – Subject matter of complaint
Facts: The plaintiffs sought an order for the striking out of plea of honest opinion contained in the defence of the defendants. The plaintiffs alleged that the opinions particularized in relation to the plea of honest opinion were not the subject matter of the plaintiffs' complaint before the Court. The defendants contended that their opinion was based on true facts confined to a matter of public interest.
Mr. Justice Bernard J Barton made an order for striking out the plea of honest opinion from the defence of the defendants. The Court held that it was satisfied that the words complained of did not contain defamatory meanings as asserted by the plaintiffs but conveyed a sting about which no complaint was made. The Court observed that plea of honest opinion was made by the defendants in relation to a piece of information in the subject article for which the plaintiffs made no complaint; and therefore, such plea should be struck off.
These are fully contested defamation proceedings which arise from the publication of an article, described as a “pilot update”, sent by the Defendants to Ryanair pilots on the 12th September 2013 and headed ‘What the markets are saying about Ryanair’. The Defendants pleaded, inter alia, that the “pilot update” had been issued by a Dutch foundation with legal personality, known as a “Stichting”, for which they had no responsibility or liability in law.
A number of applications were made on behalf of the Plaintiffs at the commencement of the hearing. The first, an application to call a Dutch legal expert to prove Dutch law, arose out of the plea that the Defendants were not liable for the publication of the “pilot update” by the Stichting. That application was refused on a number of grounds amongst which (a) No prior notice of intention to make such an application had been given to the Defendants who were taken by surprise and thus not prepared to deal with the subject matter at the time, and (b) the factual matrix in which Dutch law might arise had not yet been established. In the event the Defendants subsequently abandoned the plea.
I will return later in this judgement to the practice of waiting until the commencement of the trial in defamation proceedings before making applications which might properly be brought way of pre-trial motion, which brings me to the Plaintiff's second application, which was to strike out two pleas in the Defence.
The first, a plea of truth that the words complained of in their natural and ordinary meaning, but not in the meanings alleged by the Plaintiffs, were true in all material respects; the second, a plea of honest opinion that insofar as any of the words about which the Plaintiff's complain are capable of bearing any defamatory meaning, they were statements of opinion honestly held by the Defendants on matters of public interest.
In the course of legal argument on the plea of truth, it was indicated on behalf of the Defendants that they no longer sought to rely on the plea and that it was not in issue between the parties. With regard to the plea of honest opinion, it was submitted on behalf of the Plaintiffs that, subject to certain necessary qualifications, the same reasoning and grounds which governed reliance on the first plea were applicable to the second, accordingly, that too stood be struck out, a contention which the Defendants strenuously disagreed.
The Defence of honest opinion, as it is described in the Defamation Act, 2009, (the Act), is governed by the provisions of ss 20 and 21, both of which are material to the application; the relevant provisions of s. 20, which establishes the defence, are:
‘20. — (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 subsection (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, where the defendant is not the author of the opinion, believed that the author believed it to be true,
(b) (i) the opinion was based on allegations of fact—
(I) specified in the statement containing the opinion, or
(II) referred to in that statement, that were known, or might
reasonably be expected to have been known, by the persons
to whom the statement was published, or
(ii) the opinion was based on allegations of fact to which
(I) the defence of absolute privilege, or
(II) the defence of qualified privilege,
would apply if a defamation action were brought in respect of such allegations,
(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 subsection (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 are proved.’
Section 21 of the Act is concerned with the matters to which a court is required to have regard for the purposes of distinguishing between statements consisting of allegations of fact and statements consisting of opinion, including the following matters:
‘(a) the extent to which the statement is capable of being proved;
(b) the extent to which the statement 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 an allegation of fact; and
(c) the words used in the statement and the extent to which the statement was subject to a qualification or a disclaimer or was accompanied by cautionary words.’
The rational for the common law defence of fair comment, abolished by s.15 of the Act, was founded upon the balance which is required to be struck between the right to one's good name and the right to liberty of expression, rights respectively enshrined in Articles 40.3.2 and 40.6.1 (i) of the Constitution. And so, it is, as it was with the defence of fair comment, that the defence of honest opinion gives legal recognition to the right of the citizen or body corporate (see s.12 of the Act) honestly to express a genuine opinion, however wrong or prejudiced that opinion maybe, provided it is based on true facts relating to a matter public interest or concern. See also the judgement of Lord Acker in .
As there was some debate on the point in the course of legal argument, I should add that if the facts upon which the opinion or comments are based are themselves defamatory then the truth of those facts has to be proved before the defence can be availed off. See s. 20 (3) (a) of the Act. Simply put, the protection afforded by the defence of honest opinion is confined to untrue comments or expressions of opinion relating to matters of public interest based on true facts contained in or discernable from the statement in question.
It was submitted on behalf of the Plaintiff's, having regard to the provisions of s.20 (2), (b) (i), that identifying the nature of the statements about which they complain is material to the availability of the defence which they contend is confined to opinions based on allegations of fact (a) specified in the statement containing the opinion, or (b) allegations of fact referred to in that statement, that were known, or might reasonably be expected to be known, by the persons to whom the statement was published, and, (c) the opinion related to a matter of public interest.
It follows that two essential points arise from the Plaintiff's submissions concerning the nature of the statements about which they complain. Firstly, it is said that the words are statements of fact, which can be proved, rather than statements or expressions of opinion; the defence being available only to protect defamatory opinions. Secondly, even if the words are capable of being construed as statements consisting of opinion or statements consisting of fact and opinion, the Defendants do not contend that such bear or are capable of bearing the defamatory meanings attributed by the Plaintiffs.
The Defence is pleaded at paragraphs 7 and 8 in the following terms:
7. Further and in the alternative and...
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