Defamation of Character

The more significant changes are set out below.

Section 7 provides a mechanism by which both parties to a defamation action are obliged to verify on affidavit the allegations of fact they are making in support of their case. The contents of the affidavit can then be used to cross-examine both the plaintiff and defendant who must make themselves available for such examination at trial.

Under existing law, as the burden of proof-of the truthfulness of any report rests upon the defendant, the plaintiff need not give evidence that what was said about him or her was untrue. This provision reverses that.

Section 10 provides for a general rule that only one cause of action can be taken in respect of multiple publications. This is to lessen the impact of the existing law which provides that each time a defamation is read, seen or heard, a new cause of action starts. This is viewed as particularly unfair given recent technological advances in areas such as the internet.

Section 11 provides that a company may bring a defamation action whether or not it is likely to incur financial loss as a result of the publication.

Section 22 provides that an offer of an apology by a defendant to a plaintiff is not to be construed as an admission of liability.

The media have long claimed that they are reluctant to apologise to claimants because judges and juries view this as an acceptance that damages should be payable to the wronged party. This provision seeks to offset that. It is unclear, however, whether the new provision would have quite the impact in practice as the press assert. Juries are likely still to see the correction of a false statement as, more likely than not, givinirise to an entitlement to compensation.

Section 24 introduces a new defamation defence into Irish law — the defence of fair and reasonable publication on a matter of public importance. In effect, this places the Reynolds defence (above) on a statutory footing.

Section 27 allows defendants in defamation actions to lodge in court with their defence a sum of money in satisfaction of the plaintiff's claim. At present, that is only allowed if the defendant admits that what was written or said was wrong and that the plaintiff is entitled to compensation. The new rule allows payment into court without an admission of liability.

It is costs, rather than damages, which cause greatest concerns to parties in defamation actions. While a procedural change, this provision is likely to have the greatest impact upon defamation practice. It should lead to more and earlier settlements and a considerable reduction in the number of cases going to trial. That, in turn, will ensure a speedier hearing for cases which cannot be settled.

Sections 26 and 28 provide for speedy remedies by which the courts can either declare that a statement is false or oblige a defendant to publish a correction of a defamatory statement.

The declaratory order is open to the plaintiff who does not seek damages.

It is, perhaps, a strange quirke of libel law that while the courts can award often very considerable sums of money to a plaintiff, it can not oblige a defendant to correct or apologise for false statements.

Section 29 provides that parties in a defamation action may make submissions to the court in relation to damages. Under existing law, neither the parties nor the Judge can outline to a Jury, even in broad terms, the range of a suitable award, should they determine that a statement is defamatory.

The limitation period for a libel and slander actions (presently six and three years respectively) will be reduced under Section 37 to one year. The court, however, has a discretion to extend the period to two years in exceptional circumstances.

At present, a plaintiff who commences a libel action and who dies while that claim is being taken cannot receive damages. Section 38 provides that a cause of action should survive such a death.

Section 43 provides for the establishment of a statutorily recognised, but otherwise independent, Press Council.

The conduct of a defendant before the Press Council can be taken into account when dealing with some defences, such as that of fair and reasonable publication.

This has been the most controversial of the Bill's provisions.

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