The provisions of the Defamation Act 2009 include the following:
- by section 6, a statutory definition of the tort of defamation in terms which closely reflect the common modernises the law;
- by section 11, a person has only one cause of action in respect of a multiple publication of a defamatory statement, but may obtain the leave of the court to bring more than one defamation action;
- by section 15, all previous defences to defamation actions are abolished (note it has been suggested by Eoin o’Dell of Cearta.ie that this might be inconsistent with the Constitution and the Convention)
- by sections 16, 17, 18, 19 and 20 it provides for defences of “truth”, “absolute privilege”, “qualified privilege”, “honest opinion”,
- by section 22 it provides for an “offer of amends” procedure;
- by section 24 it provides that a defendant may lead evidence of an offer of an apology in mitigation of damage;
- by section 26 it provides for a new defence of “fair and reasonable publication” on a matter in the public interest (modelled on the English Reynolds defence);
- by section 27 it provides for a defence of “innocent publication”;
- by section 28, it provides for a new remedy of a declaratory order – that a statement is defamatory, there is no defence and an apology and correction have been refused – the remedies in sections 30 and 33 can then be ordered;
- by section 30, it provides that a court may make a “correction” order – directing the publication of a correction by a defendant;
- by section 31, it deals with damages, setting out the factors to be taken into account when assessing general damages and
- by section 32 it deals with aggravated and punitive damages – the latter being recoverable in cases where the defendant knew that the statement was untrue or was reckless as whether it was true or untrue;
- by section 44, it gives statutory recognition to the Press Council
These provisions reflect many developments in the English law over the past two decades and preserve many of the features of the common law of defamation. The excellent Cearta.ie blog has a post on the new act, with a self-explanatory title, “The Defamation Act is a welcome but imperfect reform for libel cases”. The blog has a number of other interesting posts on the Act – including this. The excellent blog Human Rights in Ireland also has a post about the Act here.
The Irish Act is not a radical measure but it shows that the common law can be “codified” and “clarified” in order to balance expression and reputational interests. We will keep readers informed about developments in the way in which the Act is interpreted in the Irish courts.