Defamation in Ireland can arise through a statement which tends to lower the reputation of an individual in the eyes of right-thinking members of society.
Recently, an Australian Federal Court ruled that Oscar winning actor Geoffrey Rush had been defamed by the Daily Telegraph, when it pushed allegations of sexual harassment made about him by a former colleague.
The Daily Telegraph reported alleged inappropriate behavior by Rush, while he was starring in the Sydney Theatre Company’s production of King Lear in 2015 and 2016.
The complainant, Ms. Eryn Jean Norvill, played Cordelia, the daughter of Rush’s King Lear. She told the court: “He was stroking, gesturing up and down my torso [and] groping above my breasts … and kind of raising his eyebrows, bulging his eyes, smiling, licking his lips.”
Ms. Norvill also said Rush “traced across” her breast with his hand on a different day, put his hand under her shirt on her lower back – also on a different day – and sent her a text that said he thought of her “more than is socially appropriate”.
Justice Michael Wigney dismissed the allegations and harshly criticized the reporting methods of the newspaper in ruling in favor of Rush.
The case against the Daily Telegraph speaks to the wider implications for those alleging incidents of sexual abuse, or abuse of any sort, in the workplace.
The Defamation Act
What is Defamation?
Section 2 of the Defamation Act 2009 (the “Act”) defines a defamatory statement as one that “tends to injure a person’s reputation in the eyes of reasonable members of society.” The defamatory statement must also be untrue, since the Act provides that truth is a defence to a defamation claim.
Defining a Defamatory Statement
The Act defines a “statement” to include:
- (a) a statement made orally or in writing,
- (b) visual images, sounds, gestures and any other method of signifying meaning,
- (c) a statement-
- (i) broadcast on the radio or television, or
- (ii) published on the internet, and
- (d) an electronic communication
Publication of Defamatory Statement
Section 6(2) of the Act provides that defamation consists of the publication, by any means, of a defamatory statement concerning a person to one or more than one person, other than the first-mentioned person. The Act reflects well-established case law that no act of defamation has occurred until it is published to someone other than the victim.
To be defamatory, the publication must have a meaning that can undermine the plaintiff’s reputation. Defamation does not occur simply because the subject of the publication does not like how they are portrayed; there must be harm to the reputation of the plaintiff. Therefore, if a publicised statement is proven to be false, this does not necessarily mean that it will be defamatory.
Defamation in the Workplace
Justice Wigney, with reference to the Geoffrey Rush case, noted that:
“This is a sad and unfortunate case. It plainly would have been better for all concerned if the issues that arose in the saga that played out in this courtroom in October and November last year had been allowed to be dealt with in a different way, and in a different place to the harsh adversarial world of a defamation proceeding. But they were not. And so it comes to this.”
The implication of these words is that this matter could, and should, have been dealt with via the criminal courts or through a workplace commission forum.
In general, statements made as expressions of pure opinion, rather than allegations of fact, are not defamatory. In addition, allegations of fact usually must not be true to be considered defamation. Proving that statements are true is usually a complete bar to recovery for defamation by the subject of those statements. If the information communicated as a fact is false, and the speaker has no reasonable basis to believe that it was true, then the employee injured by these statements may be able to sue for defamation of character.
Defenses to a Claim of Defamation
Defamation per se occurs when an employer or colleague, purposefully share misleading information about an employee, which cannot be understood in any other way other than the fraudulent manner intended for it to be comprehended. Employers or colleagues deliberately making defamatory statements, about an employee, that have only one, egregious interpretation is known as, “defamation per se.”
In a press conference held last December, Mr. Rush said: “The Daily Telegraph has made false, pejorative and demeaning claims, splattering them with unrelenting bombast on its front pages. This has created irreparable damage to my reputation, has been extremely hurtful to my wife, my daughter and my son, and to my extended family as well as to many colleagues in the film, television and theatre industry.”
Truth will always be the best defense to a claim of defamation. However, the common law established other public policy exceptions to basic defamation actions, for areas in which the importance of the information outweighed the risk of damaging an individual’s reputation, one of which has traditionally applied to the free-flow of information within the workplace, including the raising of a legitimate grievance or complaint, against an employer and/or a fellow employee.
The courts have reasoned that, were it not for particular safeguards, allowing employees to raise genuine concerns, information that should be given or received, would not be communicated because of the fear of persons capable of giving it that they would be held liable in an action of defamation, if their grievance or complaint went unfounded.
In essence, for an employee to benefit from such a defense, that individual had to establish that the occasion deriving the statement was privileged, that the words used did not transcend the scope of the privilege, and that the words were used in good faith, without actual malice. The facts and circumstances leading up to and surrounding the use of the alleged defamatory words determine if the elements are established.
It is important to remember that the Australian Courts found against the Daily Telegraph, and not Ms. Norvill. Had Ms. Norvill raised her complaints with her employer, the police or a workplace commission, it is unlikely she would, or could ever be, the respondent to subsequent defamation proceedings.
“I never wanted these issues dealt with by a court,” Ms. Norvill, who stands by her evidence, said outside of court. “This case has caused hurt for everyone. There are no winners, only losers.”
“We need to make genuine, cultural change in our professions and industries,” she added. “We can do it, but only if we acknowledge and confront with honesty the problems and the complexities of the power imbalances in our workplaces.”
As our society has become more litigious, defamation actions arising from incidents in the workplace have become increasingly commonplace. Liability looms in everything written or spoken by an employer about an employee, or colleagues themselves. Yet the need for sharing certain information, between employers and employers, remains a central consideration for the courts, which is why the right to raise legitimate complaints in the workplace, should never be overshadowed, by the threat of defamation proceedings.