As you may be aware, the Minister for Justice, Equality and Law Reform published a Ministerial Order (SI 517/2009) commencing all of the provisions of the Defamation Act 2009 with effect from 1 January 2010.

A summary of the key provisions of the Defamation Act 2009 is below for your reference.

DEFAMATION ACT 2009

SUMMARY OF KEY PROVISIONS

Statutory Definition of a Defamatory Statement: “…a statement that tends to injure a person’s reputation in the eyes of reasonable members of society…”.

Dual System: The Defamation Act 2009 will not affect a cause of action in existence before the commencement of this new legislation.

Increased Circuit Court Jurisdiction: where the amount of the claim does not exceed €50,000. Costs implications if a plaintiff does not exceed this amount in a High Court defamation action.

Period of Limitation: a defamation action shall not be brought after 1 year, or such longer period as the court may direct not exceeding 2 years, from the date on which the cause of action accrued.

Defamation of a Class of Persons: a member of a class (allegedly defamed) may issue proceedings if the statement could reasonably be understood to refer to him/her by reason of the number of persons in the class or by virtue of the circumstances of publication.

Body Corporate: a company may be defamed. It may bring a defamation action whether or not it has incurred or is likely to incur financial loss.

Multiple Publication Rule: a person has one cause of action in respect of a “multiple publication” unless a court permits a plaintiff to issue more than one defamation action (in respect of a “multiple publication”).

Verifying Affidavit Requirement: each party to a defamation action must swear in an Affidavit that assertions or allegations of fact in any pleading are correct. Deponents may be cross examined. It is a criminal offence to swear a false or misleading Affidavit.

Preliminary Application - Meaning: can now be made by a defendant for a determination as to whether the statement (the subject of the proceedings) is reasonably capable of bearing the imputation and defamatory meaning pleaded by a plaintiff. This can lead to a court dismissing a plaintiff’s action (in so far as it relates to the imputation concerned) where that plaintiff fails to so satisfy the court.

Defence of Truth: “…the statement in respect of which the action is brought is true in all material respects”.

Duty/Interest Defence: defence to a defamation action that (a) the person(s) receiving the information contained in the statement had a duty/interest to receive it (or believed so on reasonable ground) and (b) the defendant had a corresponding duty/interest to communicate the information to such person(s).

Honest Opinion Defence: replaces the defence of fair comment. The opinion must be both based on fact specified or referred to in the opinion and in respect of a matter of public interest which the defendant believed to be true.

Offer to Make Amends: must be made in writing before the delivery of the Defence. It means an offer to make and publish a suitable correction and sufficient apology and an offer to pay compensation and costs. In certain circumstances, this will operate as a defence to a defamation action (where a plaintiff rejects the offer). A defendant may also make a ‘qualified offer’ to make amends.

Fair and Reasonable Publication on a matter of Public Interest: new media defence. The statement must have been published in good faith in the public interest and for the public benefit. The manner and extent of publication must not exceed that which was reasonably sufficient. The court has significant discretion in terms of accepting this defence – “…in all the circumstances of the case, it was fair and reasonable to publish the statement”.

Defence of Consent: it shall be a defence to a defamation action to prove that a plaintiff consented to publication of the defamatory statement.

Apology: by a defendant is no longer an admission of liability or relevant to the determination of liability. An apology can be used in evidence by a defendant in mitigation of damage but must be made “as soon as practicable”.

Lodgement: by a defendant no longer requires an admission of liability.

Declaratory Order: new remedy. Circuit Court application for an order that the statement is false and defamatory of the plaintiff. Once the application is made, a plaintiff cannot issue further proceedings in relation to the statement in dispute. The Circuit Court has no jurisdiction to award monetary compensation.

Summary Disposal: A court may grant summary relief (defined as a correction order or a prohibition order) to a plaintiff if it is satisfied that the statement in dispute is defamatory and the defendant has no defence that is reasonable likely to succeed. A defendant can apply to have a defamation action dismissed by way of a summary application on the basis that the statement in dispute is not reasonably capable of being found to have a defamatory meaning.

Correction Order: new remedy. A court can order a defendant to publish a correction of a defamatory statement. Form, content, manner, extent and date of publication of the correction order to be determined by the court.

Prohibition Order: new remedy. A court may grant a plaintiff who has issued defamation proceedings an interim, interlocutory or permanent order prohibiting publication (or further publication) of a defamatory statement if it is satisfied that the statement is defamatory and the defendant has no defence to the action that is reasonably likely to succeed.

Damages: judges can and shall give directions to juries on an award of general damages. The court shall have regard to “all the circumstances of the case” and to eleven criteria when making an award of general damages. Parties to defamation action may make submissions to the court in relation to the matter of damages.

Aggravated and Punitive Damages: may be ordered by the court where the conduct of the defendant’s defence aggravated the injury caused to the plaintiff’s reputation by the defamatory statement (aggravated damages). Punitive damages may also be awarded to a plaintiff subject to proof of the defendant’s state of knowledge in respect of publication of the defamatory statement.

Blasphemy: It is a criminal offence to utter or publish “blasphemous matter”. It shall be a defence to prove that a reasonable person would find genuine literary, artistic, political, scientific or academic value in the matter to which the offence relates.