The Defamation Act 2009 came into effect on 1 January 2010 and has introduced some significant changes to defamation law in Ireland.
This long awaited Act has abolished the distinction between libel and slander and introduced a new tort of defamation, with a limitation period of one year. The Act, however, is not retrospective and, as such, complainants still have six years to instigate proceedings in relation to an article published prior to January of this year.
The Act amends existing practice whereby the court could not order a defendant to apologise, correct a false statement or even admit they were wrong. The court can now summarily dispose of a claim pre-trial, and issue Corrective and Prohibition Orders as well as Declaratory Orders in the Circuit Court.
A defendant can now make a lodgement without an admission of liability. If the plaintiff is successful in his claim, but the damages awarded are not more than the sum lodged, the defendant will be entitled to his costs against the plaintiff from the date of the lodgement. This can act as an incentive to settle the case before trial. Previously, the lodgement procedure was not widely utilised in the High Court as defendants had to admit liability.
The jurisdiction of the Circuit Court for defamation matters has been increased to €50,000, which should ensure more matters are instigated in the Circuit Court and will reduce the potential legal costs of claims.
The Act has overhauled the potential defences available, with the most significant changes being the introduction of the defence of fair and reasonable publication and the offer to make amends. In order to rely on the defence of fair and reasonable publication a newspaper will need to show that it acted in good faith on a matter of public interest and that the extent of the publication did not exceed what was necessary. The offer to make amends must be made before the defence is delivered and can constitute a full defence to a claim. The offer must be to make and publish a suitable correction and a sufficient apology and pay damages and costs. However, some other “new” defences are simply a restatement of old ones. For example, the defence of justification is now known as the defence of truth and the defence of fair comment has been renamed the defence of honest opinion.
The Act places the Press Council of Ireland on a statutory footing. The Press Council cannot award compensation, impose a financial penalty or oblige a newspaper to discharge a complainant’s costs; however, it can force a newspaper to publish a correction or any determination made by it.
The introduction of the offer to make amends procedure and lodgements without an admission of liability should ensure that more matters can be disposed of pre-trial. The provisions of the Act are as yet untested and it will be interesting to see how some of the more novel aspects of the new regime evolve in the courts.