Section 27 of the Defamation Act 2009 introduced a statutory defence of innocent dissemination. In a recent case the Court of Appeal has considered to what extent someone who fears that a book that may be defamatory of them is legally entitled to communicate that fact to a distributor and seller.
In Jones v Coolmore Stud,1 the plaintiff worked for the defendant, a prominent stud farm, for a number of years. After he resigned he wrote a book about his experience there and privately published it. The stud farm’s solicitors wrote to distributors and booksellers to warn them about disseminating the book on the basis that it was defamatory and that legal action would ensue.
The plaintiff sought an injunction to prevent the defendant from adopting measures to prevent or restrict dissemination of the book. He argued that the defendant was not entitled to contact these third parties when there had not been any determination of libel. He also wanted the court to declare that his book was not defamatory of the defendant.
In the High Court, Costello J held that the defendant was entitled to protect its interests and it was legally permissible to write to distributors and sellers with a view to closing those avenues of dissemination. Also, the court could not make the declaration of non-defamation sought by the plaintiff at the interlocutory stage of proceedings. The plaintiff appealed.
On appeal, Ryan P noted that s27 provides a statutory defence of innocent publication. The defendant had legitimately put potential distributors and retailers on notice of its claim of defamation so as to make it clear to them that they could not rely on that defence if it brought proceedings for defamation. This was a legitimate legal step and the plaintiff was not entitled to an injunction to prevent it. The fact that it had not been established in a court that the publication was defamatory was irrelevant.
In relation to the plaintiff’s complaint that he had been bypassed by the defendant, the court held that a party was not obliged to sue any particular person, such as the author of allegedly libellous material, before taking steps in relation to other persons to protect its reputation. Also, the defendant was free to choose between persons having liability and proceed against one or more and not against others. An author could not insist that a person claiming to be defamed in his work had to sue him as well as others, or instead of others. The High Court was also correct to say that it could not make a declaration of non-defamation sought by the plaintiff at this early point in the proceedings.
The defendant’s action did not interfere with the plaintiff’s constitutional right of freedom of expression. The plaintiff was free to express his views and to publish them, subject to the law of defamation and other lawful inhibitions on expression. The fact that he was unable to insist on distribution in a particular manner was not a restriction on his freedom. It was also the case that other parties were entitled to their rights including their reputations and they could legitimately take steps to vindicate those rights or to inhibit attacks on them.
The reputational protection afforded to a complainant would be seriously reduced if he could not head-off publication or distribution by informing such persons of his allegations about the material.