DEFAMATION (AMENDMENT) BILL 2014

The Defamation (Amendment) Bill 2014 (“the Bill”) has recently been published by the Oireachtas with the aim of limiting the damages certain public bodies may receive in defamation actions. This is to protect against public bodies using the resources of the State and the powers granted to them by the Defamation Act 2009, to influence comments by the media and public in general.

The recent draft of the Bill provides for amendments to three sections of the Defamation Act 2009 - those being sections 12, 13 and 31.

Section 12 of the Principal Act currently applies to a body corporate which may bring a defamation action under the Act in respect of a statement about it that it claims is defamatory. This is regardless of whether or not it has incurred or is likely to incur financial loss as a result of the publication of that statement.

The proposed amendment in the Bill provides that while a body corporate may still bring a defamation action as outlined in the 2009 Act, if the body corporate is a public body as defined under subsection (3), the court will not consider an award for general damages in a defamation action in excess of €1.

For the purposes of the Bill, a public body could be a state department, entities established or appointed by the Government or by a Minister amongst others.

In relation to appeals, Section 13(1) of the Bill now provides that the Supreme Court may (where the plaintiff is not a public body as defined) substitute for any amount of damages awarded to the plaintiff by the High Court such amount as it considers appropriate or where the plaintiff is a public body substitute for any amount of damages awarded to the plaintiff of up to €1 in addition to any other order that it deems appropriate to make.

Section 31 of the 2009 Act sets out the various guidelines the court will have regard to in respect of an award of damages . The Bill adds in an additional paragraph to this Section which provides for where the plaintiff is a public body and the limits which apply in such a case to general damages which attach to defamation proceedings taken by such public bodies.

We will keep watch on how this develops in the Oireachtas and the impact that it will have on the legislation which is currently in place.

Katie Nugent
Brophy Solicitors

DEFAMATION CLAIM ARISING FROM ACCUSATION OF SHOPLIFTING

Maria Kearns was accused of shoplifting after being closely followed by a security guard while she shopped for birthday present for her six year old child. Upon purchasing two items from The Early Learning Centre, the security guard vocalized publicly that she had stolen other items while shopping. She also claims that he spat in her direction, and when she asked to speak with the manager, she was told it was all “a misunderstanding”.

Ms Kearns, feeling vulnerable and depressed from her experience, decided to speak with her solicitor a week later about her possible claim. Now 2 years later, she has been awarded £20,000 in damages for defamation against both Mothercare Ireland and UK, trading as Early Leaning Centre in Dublin’s Henry Street, and a security firm. Presiding Judge Mahon says that the deciding factors in this case were the words actually stated, that the manager refused to be a witness, and that the words were defamatory in a very public and busy street during January sales.

A person’s right to keep a good name is constitutionally protected. The difficulty in these cases arises when a person’s good name is being tarnished by another’s right to freedom of expression, which is also protected. 

If you feel you have a defamation claim, these are some factors to consider and discuss with your solicitor: 

Know for sure what exactly was said and make a note of it.

If it was in a publication, consider how widely it was distributed, if it was vocalized, who heard the false statements and how was your reputation damaged

Know what was said was in fact, false.

A defamation claim should be brought as soon as possible. The claim will be statute-barred one year from the date the defamatory words first were published and/or spoken. To read more about defamation claims and the statute of limitations, see our previous post .


Olivia York
Brophy Solicitors

Judge asks lawyers to take defamation defence for free

Full text available at http://www.irishtimes.com/newspaper/ireland/2012/0706/1224319511398.html

A JUDGE yesterday appealed to lawyers to consider giving their services free to a woman traffic warden who is being sued by a Donegal county councillor.

The judge refused to go ahead with the defamation case because the defendant did not have legal representation. The judge said the woman’s rights were not being respected if she was refused legal aid in such a case.The judge said he believed Ms McCafferty, of Main Street, Bundoran, was being deprived of her human rights without legal representation.

Ms McCafferty was defending an accusation by Cllr Seán McEniff that she had defamed him in a letter sent to Donegal County Council on January 5th, 2009, which made serious criticisms of him.

When the case was called at Donegal Circuit Civil Court, Ms McCafferty, who represented herself, said her application for free legal aid had been rejected for the third time, despite the judge previously urging her to seek it.

Peter Nolan, counsel for Mr McEniff, who is also a member of Bundoran town council, said Ms McCafferty had not been denied free legal aid because of her means but because, under Irish law, free legal aid was not available for the defence of defamation.The judge said that seemed unfair to him and questioned whether the law was “in violation of the European Court of Human Rights”.

The Judge refused to allow the case to proceed. The Judge did not see how the defendant could take part in this case without legal aid as it put her at a serious disadvantage.

The judge noted that it was his duty to ensure the parties were on a level playing field.

The judge adjourned the case again, until the next Donegal town session, and advised Ms McCafferty to explore her options, including approaching a Free Legal Advice Centre or Citizens’ Information bureau.

He said another option was to approach a solicitor to take on the case pro bono in the interests of justice. He hoped some solicitors in the Donegal area might be willing to give her the benefit of their expertise.

Brophy Solicitors

06.07.12