Libel Laws In Ireland
January 6th, 2006
Freedom of Speech is a noble idea – but it is not an absolute right. One such situation where the right is limited is where a false statement about a person is published. Journalists and celebrities alike are well aware of the law when it comes to defamation, but the online community often forgets the legal boundaries placed on Free Speech.
This pamphlet is intended to give an outline of Defamation Law as it applies to online publications, but is not intended as a comprehensive guide. More detailed information is available in leading textbooks on the Law of Torts; in the Defamation Act, 1961; and in the European Communities (Directive 2000/31/EC) Regulations, 2003. This guide is not intended as a substitute for legal advice, and if you think you need to go further than the issues here, you probably need to speak to a lawyer about your own personal circumstances.
What is Defamation?
• Defamation occurs where a false statement is published about a person which tends to lower that person in the eyes of right-thinking members of society. Defamation is a generic term – slander is defamation in a transient form, while libel is defamation in written or permanent (or equivalent) form.
• Defamatory statements include accusations of professional incompetence, or of unethical, illegal or immoral behaviour. Some examples from the Irish Courts include:
- Imputations of sexual impropriety (Sinclair v. Gogarty)
- Wrongly accuse a person of being a sympathiser with terrorism (McDonagh v. Newsgroup)
- Wrongly accuse someone of cheating in a horse race (Green v. Blake)
- Suggest a person tolerated serious crime (DeRossa v. Independent Newspapers)
- Suggest a nightclub proprietor tolerated the sale of drugs on his premises and was a “gay bachelor” (Reynolds v. Malocco)
• It is not necessary for a plaintiff to show that he was in fact lowered in the eyes of others and suffered loss as a result, only that the statement was of a type which tended to do so. This is not a comprehensive list of all possible defamatory statements, but gives a flavour of the range of the defamation definition.
What are the Defences?
Justification
• In a libel action, justification, the truth of the statement, is a full defence. However, it is for the defendant to prove the truth of the statement; all defamatory statements are presumed to be false.
Therefore, if Michael posts his genuinely held belief that, for example, Sarah is incompetent at her job has, prima facie, defamed her, and is required to prove such incompetence in order to use justification as a defence. In practice this is quite difficult. Given that libel actions, alone amongst civil proceedings, are heard in front of a jury, such a defence is high-risk and unpredictable at best. An unsuccessful defence of justification may attract an award of aggravated damages.
Fair Comment
• An alternative defence is the “Fair Comment” defence, although this applies only to matters of public interest. So, for example, while criticism of a Minister for Education would probably have the benefit of the Fair Comment defence, it is uncertain as to whether criticism of an individual teacher would obtain this benefit.
• This defence covers only comment or opinion; not statements of fact.
• Public interest includes comments relating to artistic matters. Legitimate criticism of a work of art is therefore covered by this defence, though personal allegations regarding the artist may not be.
• This defence applies only to comment related to a matter of public interest. Any personal or abusive comments about, for example, a politician would not be considered to be comment on matters of public interest, notwithstanding that the defamed person is in a position bearing on the public interest.
Who is Liable?
Authors
• The primary person who is liable for a defamatory statement is the author. Unless you can avail of one of the defences, you should think very carefully before making that posting.
• Remember that the internet does not afford absolute anonymity and that if you post under a pseudonym or anonymously, you can still be identified via your ISP.
Editors & Publishers
• If you run a site which accepts submissions from authors, by accepting a submission and posting it, you have assumed the position of editor or publisher, and have therefore assumed liability for that posting.
• Likewise, if you run a message board, or a blog with a comment box, you are liable for the content of postings – both yours, and those of others. If you cannot regularly monitor your blog, to ensure that defamatory statements are removed, it may be best not have a comments facility at all. This will depend, of course, on how contentious the subject of your board or blog is
ISPs
Since the coming into effect of the European Communities (Directive 2000/31/EC) Regulations, 2003 a distinction is made between three types of internet provision:
• “Mere conduit” essentially means providing no more than a telephonic network. A service provider who falls within the definition of a “mere conduit” is given immunity and will not be liable for damages or for any criminal sanction as a result of any transmission of information.
• “Caching”. ISPs often keep temporary copies of web pages on their servers so that users can access them more quickly. This kind of “automatic, immediate and temporary storage of information … for the sole purpose of making more efficient onward transmission of the information” will not render an ISP liable for defamatory statements contained in the cached pages. However, such immunity is lost where the ISP does not act quickly to remove a copy of a page when they are aware that the original page has been removed or that its removal has been ordered by a court.
• “Hosting” is the storage of information provided by subscribers. Large companies and organizations are their own hosts, but the sites of small to medium sized organizations and personal web-pages, blogs and discussion board sites will tend to be hosted by an ISP. Under the regulations, hosts are given an immunity from libel liability, which can be lost where a host is aware of defamatory content and fails to act expeditiously to remove or block the offending content.
Best Practice
• While a web host may, having received a complaint, examine the site and decide that the statement is not defamatory, most err on the side of caution and merely remove all content subject to complaint. Unless you are sure you can avail of one of the above defences, it is best to err on the side of caution in this way.
• A web host may receive a letter which holds itself out as being from a solicitor’s firm on behalf of their client. It is a fast and inexpensive precaution to contact the solicitor’s firm at the number on their headed paper and confirm that they are representing the client as the letter purports. Do not discuss the details of the case with the other side if they confirm that they are. It is best to obtain legal representation of your own in this case. Do tell the firm that you have received a letter on their headed paper, if they deny having sent it. Legal practices take misuse of their headed paper very seriously, and will want to take strenuous steps to prevent such misuse.
• In the past a small number of web hosts have received false papers, purporting to be legal summons etc. If you are in receipt of legal papers, demanding an appearance to be entered within a certain number of days at a court office, it is very important to contact a solicitor, who will ascertain their authenticity and give advice on your options.
Misuse of the Defamation Action
Libel is also prone to misuse by those who seek to restrict the dissemination of information. Referred to as a “strategic lawsuit against public participation” (SLAPP), it is not unknown for individuals or companies with significant resources to threaten legal action against a small entity unless they desist from engaging in particular activities. Often the activities engaged in are criticism of a particular company’s product or services, and the legal action threatened is libel.
This issue was considered by the European Court of Human Rights in early 2005. Often referred to as the McLibel case, the facts in McDonald’s Restaurants v Morris & Steel stretch back to 1990 when a number of Greenpeace activists were offered the stark choice by McDonalds to either apologise for distributing leaflets critical of McDonalds or face a libel action. The latter option was chosen, and McDonalds succeeded in the English Court of Appeal and were awarded £60,0000.
An appeal to the House of Lords was not granted, however the defendants filed a case with the European Court of Human Rights on the basis they had not received a fair trial due to the absence of civil legal aid. It was accepted by the Court that the two unemployed activists had neither received a fair trial, nor had their right to Freedom of Expression vindicated.
32 Comments Add your own
1. Tuppenceworth.ie blog &ra&hellip | January 6th, 2006 at 3:10 pm
[...] I would also read the Digital Rights Ireland pamphlet on Libel Laws in Ireland. And give a copy to his other contributors. [...]
2. Libel Online&hellip | January 8th, 2006 at 11:43 pm
[...] Hugh, or at least his company, may have been subject to libel by a publication this weekend. If you are unsure about what libel, slander or defamation are exactly then the short guide from Digital Rights Ireland may be helpful. [...]
3. Karlin Lillington | January 10th, 2006 at 2:11 pm
Thanks for providing this extremely useful summary! I’m posting the link across a number of the boards I admin or moderate. It can be hard to explain these issues to a board membership and why you can’t just say whatever you want in a public forum.
4. Damien Mulley » Blo&hellip | February 9th, 2006 at 12:03 pm
[...] Until I get a confirmation, I won’t say which radio station I’ll be on but I will be on-air talking about blogs and the blog awards. Seems though it is the usual theme of “wikipedia and blogs are too free. People can make up facts that are not substantiated. They need to be regulated.” We always fear something we don’t understand I guess. For Irish bloggers we still come under the very restrictive libel laws. Bernard from Running With Bulls knows all about that. Digital Rights Ireland’s summary of Libel laws gives a good grounding on how the accused really has a large mountain to climb to defend what they say. Far easier to captitulate and recant. [...]
5. Damien Mulley » Blo&hellip | April 2nd, 2006 at 4:47 pm
[...] I think it is good that bloggers can be taken to task for what they say on their blog and I also think that if we want more people to give official recognition to blogging (Christ I sound like a SFer) then like the Digital Rights Ireland libel document created for bloggers and web publishers, then perhaps us bloggers should also have a document created for those that have been hurt and damaged by comments on blogs. A guide on how to have defaming remarks removed from blogs and websites. Why should we hide this information from the general population? [...]
6. Administrator | April 5th, 2006 at 12:42 pm
Fergal Crehan gave a talk on Internet liability generally at the 2005 HEANet Conference which covers defamation issues in some detail. Video of the talk is available here.
7. Tuppenceworth.ie blog &ra&hellip | July 27th, 2006 at 2:48 pm
[...] I think it would be worthwhile to link to the article on defamation by Fergal Crehan BL of this parish and to the Digital Rights Ireland pamphlet on libel. [...]
8. Rich Manning | August 16th, 2006 at 8:44 pm
Defamation of Character and slander is difficult to determine at least in the court for when gathering witnesses if you are seeking someone who has witnessed the slander it is very difficult to prove that you were slandered for slander is untrue of you and is difficult to prove that it was infact you they were slandering if they slandered at all. May God and peace be with you!
9. mediaforum » Q: Tes&hellip | October 9th, 2006 at 12:51 pm
[...] Digital Rights Ireland (a body devoted to defending Civil, Human and Legal rights in a digital age) have an excellent overview of the current online libel sitaution in Ireland. [...]
10. Tuppenceworth.ie blog &ra&hellip | October 13th, 2006 at 7:32 pm
[...] Bernie and Co have credited me with a professional qualification I haven’t fully achieved. It is painful to hear your own verbal tics frozen for eternity. The length of the podcast is a horrible 5o something minutes. I was a bit feeble voiced by the end of the question and answer session. They have kindly edited out my final stage comment- ‘I’m tired, can I go now?’ The talk was intended to be an overview, and an introduction, to the laws of defamation aimed at people without a background in law. I would like to say that for a better, more focused, guide the reader would gain more information in a shorter time by reading the Digital Rights Ireland Libel Pamphlet. Similarly for an expert view of the Defamation Bill from the point of view of online publishers, see TJ McIntyre’s article from the Commercial Law Practitioner Defamation Reform: the Impact on Internet Publications. My appearance seems to have sparked a comparison with Jimmy Carr. I shall be cutting my hair to avoid this in future. irishblogcon» irishblogcon1» mcgarrsolicitors» [...]
11. Clare Hannigan | November 14th, 2006 at 10:14 am
If someone sends emails using your name is there anything you can do about it
12. amanda | February 1st, 2007 at 2:59 pm
what are the consequenses?
13. Hummingbird Mentality :: &hellip | April 29th, 2007 at 9:55 pm
[...] Defamation and liable laws are also much stricter in this country, with both the hosting company, and the owner of a blog liable, not merely for a blogs content, but for the defamatory content of its comments. This host liability is regularly misused by aggrieved companies who have for example received a negative review of their products, to have entire websites preemptively removed with a solicitors letter. A practice described by TJ McIntyre, in the Sunday Business Post, as ‘a form of privatised and cheap censorship that’s quicker than going to court’. A ‘liable’ can consist of merely repeating published allegations. Just as I am repeating the allegations regarding the alleged threats to Kathy Sierra, in this very article. [...]
14. Alex cornivus | August 23rd, 2007 at 4:04 am
Fundamental to any libel law reform is the existence of an acceptable press complaints mechanism. Ideally, the organisation structures and terms of reference of such a mechanism should come from the press itself.
15. Cleombrotus | September 26th, 2007 at 3:29 am
If someone on a forum makes reference to rumours they have heard about a politician, but does not mention the the who the politician is, but does mention they’re party, can that still be considered libel?
16. sahan | November 28th, 2007 at 9:05 pm
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17. youtube | March 10th, 2008 at 1:23 pm
It can be hard to explain these issues to a board membership and why you can’t just say whatever you want in a public forum.
18. confused | June 30th, 2008 at 4:40 pm
So who decides if comments on a forum or blog are slanderous, for example in the case of a review site. if people give their opinion on a place/product and the business owner is not happy and threatens legal action?
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20. Michael Kelly | July 31st, 2008 at 11:21 am
I have broke up with my girlfriend of 16 years and we have 3 children.
She is looking for a transfer close by ( She is only living 3 doors away from me at the moment which I like as I see my kids everyday).
The thing is it has been said back to me that the person, she is looking for the transfer with has been told, she needs to have the transfer as I beat my kids on a regular base’s.
Please help is there something I can do ( legal action, or order??)
whats needed.
21. Marshmallow Ladyboy Jesus&hellip | May 31st, 2009 at 2:01 pm
[...] Ireland has suffered gravely from it’s existing Defamation legislation’s delimitations of free speech. Arguably, the deafening journalistic silence during periods of [...]
22. Clare Hannigan | June 22nd, 2009 at 7:55 pm
See you this evening, trish
23. Clare Hannigan | June 22nd, 2009 at 7:55 pm
where are we to meet
24. Vigrx Plus | June 22nd, 2009 at 8:31 pm
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25. Size Genetics | June 23rd, 2009 at 5:34 pm
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26. debs | March 24th, 2010 at 11:40 am
as a professional worker a member of the public wrote a letter of complaint to my employer stating i was not professional and made false accusations against me and claimed there were many witnesses which there were not its just a page of lies that makes me look incompedent.i have put it in writing to my employer that i find the allegations hurtful and distressing.should i seek legal advice as i am not at all happy plus i dont think my employer will stand by me. and i dont wish to be targeted as incompedent in my job as i am a very professional caring person at all times.
27. Sarah | April 19th, 2010 at 9:16 am
Please provide email for contact.
28. One Law Center | June 8th, 2010 at 8:54 pm
#
[...] I would also read the Digital Rights Ireland pamphlet on Libel Laws in Ireland. And give a copy to his other contributors. [...]
#
2. Libel Online… | January 8th, 2006 at 11:43 pm
[...] Hugh, or at least his company, may have been subject to libel by a publication this weekend. If you are unsure about what libel, slander or defamation are exactly then the short guide from Digital Rights Ireland may be helpful. [...]
One Law Center
29. ProSolution Natural Enhan&hellip | August 1st, 2010 at 11:11 am
[...] libel laws in ireland – freedom of speech is a noble idea – but it is not an absolute right. one such situation where the right is limited is where a false statement about a person is published. journalists and celebrities alike are well aware of the law when … [...]
30. gabrielle | May 18th, 2011 at 1:19 pm
i have been accused of murdering my mother, who passed away from cancer , in November last year .. my sister has posted this on a scocial nework site but has also text this to my daughter ihave copies of what she has said is there any way of stopping her as she is destroying our whole family
31. Jonathan McCrea » H&hellip | June 12th, 2011 at 3:06 pm
[...] to prove it). There are a few get out clauses though, and a basic guide to the laws can be found here at the Digital Rights Ireland website (applicable in theory to both Ireland and the UK). There are changes on the way though in the UK [...]
32. A Murrey | April 9th, 2012 at 10:22 am
If you live in the Republic and post something about a person in the UK what is true and can be proven would I be breaking Irish Law or UK Law?
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