Can an employee sue their employer, former employer or colleagues, for defamation of character in Ireland?
Questions often arise regarding whether the statements made by employers or colleagues are defamatory, and therefore actionable. What are the defences to such potential claims?
Defamation claims against former employers or colleagues are increasingly being included alongside traditional employment claims.
Defamation claims in Ireland have historically arisen on foot of the publication of a false statement, which caused a person to be subject to ridicule or contempt.
Over time, the definition of what constitutes defamation has transformed. Today, claims for defamation in Ireland can now arise through mere statements that may lower the reputation of the individual concerned, in the eyes of right-thinking members of society.
The Defamation Act 2009 (the “Act”) repealed the Defamation Act 1961 and codified and consolidated many existing common law principles on defamation.
Specifically, Section 2 of 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 also must be untrue, because the Act provides that truth is a defence to defamation claims.
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
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) and ‘defamation’ shall be construed accordingly.”
The Act also 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 alleged defamatory statement must undermine the employee’s reputation. Defamation does not occur simply because the subject of the publication dislikes the way he or she was portrayed, there must be clear harm to the employee’s reputation. Therefore, if a publicised statement is proven to be false, it does not necessarily mean that it will be defamatory.
The Act introduced the requirement that an employee’s reputation may be damaged “in the eyes of reasonable members of society.”
Another important requirement in determining defamation is whether the employee can be reasonably identified as the individual about whom the allegedly defamatory statement is made, and must be proven by the employee.
Section 6(3) of the Act provides that “a defamatory statement concerns a person if it could reasonably be understood as referring to him or her.” This applies an objective test to determine whether or not the employee is the person to which the statement refers. This objective test focuses on the response of a reasonable reader to the statement, not the employee himself or herself.
Defamation in the Workplace
A challenging aspect of clarifying whether defamation has occurred, will require an examination of the workplace culture, customs and practices. Examples of borderline behavior that could be confused with workplace defamation include things such as name-calling, trivial “water cooler” gossip, joking, and sincere personal perspective. However, there are clear thresholds.
Irish courts have traditionally acknowledged that the efficient transaction of business requires some degree of freedom to candidly speak without fear of liability. It also has been recognized that an employer has a duty to disclose to the affected employee the basis for evaluations of his or her work made during the employment term, and the reasons for the dismissal.
Generally, statements that are made as expressions of opinion, as opposed to allegations of fact, are not considered to be defamatory. Allegations of fact usually must be false to be considered defamation. Proving that statements are true is usually a bar to recovery for defamation by the subject of the statements. If the information communicated as a fact is false, and the source has no reasonable basis to believe the statement was true, then the employee injured by these statements may be able to sue for defamation of character.
Employers are generally immune for critiques provided during performance reviews because they are considered qualified privilege, however, there are exceptions for certain egregious conduct. For example, if an employer makes defamatory statements in a performance review that is motivated by malice, made in bad faith without a factual basis, heavily exaggerated, intended to harass, or other similar reasons, the individual making the comments may be liable for defamation. Some examples include unfounded allegations of theft, lying, incompetence, and other harmful or criminal assertions.
The common law had established public policy exceptions to basic defamation actions for areas in which the importance of the information outweighs the risk of damaging an individual’s reputation, one of which has traditionally applied to the free flow of information within the workplace.
Previous common law defenses are codified in the current Act, with certain earlier common law defenses abolished. The defense of truth, previously called “justification.” All defamatory statements are presumed false unless proven to the contrary, remain.
Honest opinion, fair and reasonable publication on matters of public interest, innocent publication and consent to publication are similar to defenses previously in force, but are made clearer and placed on a statutory footing under the Act.
Absolute and qualified privilege defenses continue to remain with some expansion in their application, and may apply with respect to the workplace environment.
Without changing the words already spoken, the law extends a privilege to communicators of essential information. Certain statements made by employers, advance social or commercial policies of greater importance than the vindication of a employee’s reputational interest, and that such statements fall within the common law qualified privilege. By doing so, the courts allow defendant employers to escape liability for otherwise actionable defamatory statements.
The reasoning by the courts was, were it not for this safeguard, 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 statements were not true.
Abuse of Privilege
Ultimately, for an employer or colleague to benefit from any of the employment-related defenses outlined above, an employee must 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 malice. Facts and circumstances leading up to and surrounding the use of the alleged defamatory statement will need to be established.
When employers or colleagues who deliberately make defamatory statements about an employee, which have only one, egregious interpretation, may be considered, “defamation per se.” Defamation per se occurs when an employer or colleague intentionally shares misleading information about an employee, which cannot be interpreted in any way other than the fraudulent manner intended for it to be understood.
When defamation has in fact occurred, the remedies should reflect damage to reputation, financial losses resulting from damages to reputation.
Aggravated damages may be awarded where an employer or colleague conducted the defence of the defamation action in a manner that aggravated the damage to the employee’s reputation.
Punitive damages may be awarded when the employer or employee maliciously or recklessly made the defamatory statement.
In summary, defamation in the workplace occurs when employers or colleagues publish or produce false statements of fact, without privilege to do so, which harms the reputation of an employee.
Negative employment references can prevent an employee from obtaining a new job, for example, and could amount to defamation if false, but employers may have ‘privilege’, or a defense to defamation claims, for employment references.
Privilege may also protect employers from verdicts for false and harmful references, as long as the employer did not act with malice when the false reference was made.
As society continues to become more litigious, employment defamation actions are becoming increasingly commonplace, leaving potential liability looming in nearly everything written or spoken by an employer about an employee. However, the need to share certain information will remain—both for the employee and employers.