Key laws
What key legislation and case law serve as the basis for defamation claims in your jurisdiction?
The Defamation Act 2009 (the 2009 Act) is the key legislation for defamation claims in Ireland.
Key case law includes:
- Higgins v The Irish Aviation Authority [2022] IESC 13, where the Supreme Court addressed the issue of quantum of damages in defamation cases.
- Kinsella v Kenmare Resources plc & Anor [2019] IECA 54, where the Court of Appeal gave detailed consideration to damages in defamation cases. It reduced an award of €9 million (compensatory damages) and €1 million (aggravated damages) and substituted an award of €250,000.
- Lidl Ireland GmbH v Irish Farmers Association, Cullinan and Rushe [2021] IEHC 381, which concerned the court’s jurisdiction under section 33 of the 2009 Act.
- McDonagh v Sunday Newspapers Ltd [2017] IESC 59, which demonstrates the Supreme Court’s readiness to intervene should it find that a jury award is disproportionate.
- Leech v Independent Newspapers [2014] IESC 79, where a jury award of damages of €1.8 million was substituted by the Supreme Court for an award of €1.25 million, as the former amount was deemed excessive.
Legal tests
What is the test to determine whether words published are defamatory? Must the claimant show actual harm or loss?
Section 2 of the 2009 Act defines ‘defamatory statement’ as ‘a statement that tends to injure a person’s reputation in the eyes of reasonable members of society’.
A claimant is not required to show actual harm or loss.Libel and slander
Does your jurisdiction distinguish between libel and slander?
No. The torts of libel and slander are collectively described as the ‘tort of defamation’.Standing
Who can sue in defamation and must the claimant be named in the publication in order to bring a claim? Are there any key differences between litigation involving individual and corporate claimants?
Natural persons and bodies corporate can sue in defamation.
It is not necessary for the claimant to be named in the publication to bring a claim.
There are no key differences between litigation involving individual and corporate claimants. A corporate claimant can bring a defamation action. It does not have to show any past or prospective financial loss to succeed.Defences
What key defences are available to a claim in defamation?
The key defences available to a claim in defamation are:
- truth;
- absolute privilege;
- qualified privilege;
- honest opinion;
- consent to publish;
- fair and reasonable publication on a matter of public interest; and
- innocent publication.
Jurisdiction
How do the courts approach questions of jurisdiction, for example in relation to online content that may be accessed by readers and viewers in multiple jurisdictions?
Where cases involve parties domiciled in member states of the European Union, jurisdiction is determined by reference to the Brussels I (Recast) Regulation (Regulation No. 1215/2012) (Brussels Recast). The general rule is that a person domiciled in a member state of the European Union shall be sued in the courts of that member state. However, there are rules of special jurisdiction that can displace the general rule. Under article 7(2), in matters relating to tort, a person can be sued in the place where the harmful event occurred.
Where Brussels Recast and the Lugano Convention (which governs jurisdictional matters regarding the recognition and enforcement of judgments in civil and commercial matters in the EU, Norway, Switzerland and Iceland) do not apply, jurisdiction under Irish law is determined by the common law doctrine of forum non conveniens, whereby a court may refuse jurisdiction on the basis that there is another more suitable and competent jurisdiction. In doing so, the court will consider whether the parties have significantly closer connections with that other jurisdiction.
Under Irish defamation law, the 2009 Act requires proof of publication of the defamatory statement, so the plaintiff must prove more than accessibility; in other words, the plaintiff must prove that the statement was accessed. Under the Brussels Recast, as interpreted by the Court of Justice of the European Union (CJEU), it appears that proof of accessibility is sufficient, see for example Case C-509/09 Martinez [2011] ECR I-10269, and Grovit v Jensen [2020] IEHC 501.
In Ryanair v Fleming [2016] 2 IR 254, [2016] IECA, the Court of Appeal held that to establish jurisdiction, the plaintiff must establish publication, accessibility and access in Ireland in relation to the online post in question. This case did not concern the Brussels Recast and therefore the question of jurisdiction was determined under the common law doctrine of forum non conveniens.
The issue of accessibility was recently considered by the Irish High Court on an application to contest the Irish court’s jurisdiction under article 7(2) of the Brussels Recast, in Anthony Jay Robbins v Buzzfeed UK Ltd [2021] IEHC 433. In that application, the Court found that where online publication in Ireland was established, and confirmed by the defendant, it followed that jurisdiction under article 7(2) was established. On that basis, the Court rejected the argument that proof that the online content was accessed or downloaded in Ireland was also required for the purposes of article 7(2). The Court found that the Irish courts had jurisdiction to hear a claim by a US-domiciled plaintiff in respect of alleged defamatory material published by UK-domiciled defendants via a US online news site.Burden of proof
Who bears the burden of proof in defamation claims in your jurisdiction?
The claimant bears the burden of proof in defamation claims.Limitation period
What limitation period applies to claims in defamation?
A claim in defamation cannot be brought after the expiration of one year from the date on which the cause of action accrued. On application, the court may extend the one-year limitation period to a period not exceeding two years in certain circumstances.Evidence
What rules and procedures govern the collection, submission and admissibility of evidence in defamation trials? Is expert witness testimony allowed? What common evidential issues should claimants be aware of?
The normal rules and procedures governing the collection, submission and admissibility of evidence apply in defamation trials, including the normal rules of discovery and disclosure.
Expert witness testimony is allowed.
A common evidential issue that claimants should be aware of is an exception to the rule of hearsay, which permits an out-of-court statement to be admitted as evidence where its making is a fact in issue in a case. This allows a claimant to rely on the existence of a document to prove that an allegedly defamatory statement, contained in the document, was published, without relying on the truth of the document itself.Trial format and time frames
Are defamation cases decided by a judge or jury? How long does a case typically take to reach trial and a verdict or judgment?
Defamation cases in Ireland can be initiated before the Circuit Court or the High Court. Where the case proceeds in the Circuit Court, the case is decided by a judge sitting alone. In the High Court, there is a right to trial by jury, and, subject to any objections from the other party or parties, the claimant may elect trial by a judge instead.
The length of time a case typically takes to reach judgment can vary from 12 to 36 months.Case management and anti-SLAPP laws
What types of application or case management procedure are available to enable an early determination or dismissal of a claim? Does your jurisdiction have anti-SLAPP (strategic lawsuits against public participation) legislation?
There are no case management procedures available in a defamation action and there is no anti-SLAPP legislation. However, several applications are available to enable an early determination or dismissal of a claim:
- Where the court is satisfied that the statement was defamatory and the defendant has no defence to the action, a plaintiff may apply during the trial for a correction order directing the defendant to publish a correction of the defamatory statement.
- The court may grant summary relief where it is satisfied that the statement is defamatory and the defendant has no defence to the action that is reasonably likely to succeed.
- The court may dismiss an action where it is satisfied that the statement is not reasonably capable of bearing the imputation pleaded by the plaintiff, or that any imputation pleaded is not reasonably capable of bearing a defamatory meaning.
- A defendant may make an offer to make amends before the delivery of their defence. This is a statutory defence to a defamation claim whereby a defendant offers:
- to make a suitable correction of the statement and a sufficient apology;
- to publish that correction and apology in such manner as is reasonable and practicable; and
- to pay the claimant compensation or damages (if any) and such costs as agreed by them or determined by the court.
- A defendant may also make a lodgment in settlement of an action by paying a sum of money into court when filing his or her defence to the action, without any admission of liability.
Other causes of action
Does your jurisdiction recognise other causes of action that are separate from but related to defamation, such as malicious falsehood? If so, what are the main differences between these and defamation claims?
The tort of malicious falsehood is provided for in section 42 of the Defamation Act 2009. It includes slander of title, slander of goods and other false statements that have been maliciously published and refer to a claimant or their property, office, profession, calling, trade or business. Unlike defamation, a claimant is not required to show damage to reputation to prove malicious falsehood.Criminal defamation
Does your jurisdiction recognise any criminal offences for defamation? If so, what are the elements of these offences and how are they punished?
No.
