Partner - Gateley / Tweed
Defamation, Privacy and Data Protection
Contributor: Paul Tweed (Partner) Gateley / Tweed
The historical division of defamation into libel and slander has been abolished under the Defamation Act 2009, which introduced the all-encompassing tort of defamation. The tort of defamation now consists of the publication, by any means, to one or more than one person, of a defamatory statement, which “tends to injure a person’s reputation in the eyes of reasonable members of society”.
In the jurisdiction of the Republic of Ireland, defamation is governed by civil law only. There can be no criminal action taken in respect of defamation.
The law of defamation in the Republic of Ireland is governed by a combination of those legislative provisions within the Defamation Act 2009, constitutional provisions within Bunreacht na hÉireann, common law and European human rights law.
Article 40.3.2 of the Constitution of Ireland guarantees the personal rights of Irish citizens, “The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the… good name… of every citizen.” In Kennedy v Hearne  ILRM 52 or 1 IR 481, the High Court acknowledged the role played by the law of defamation in vindicating a citizen’s right to his good name.
Moreover, Article 10(2) of the European Convention on Human Rights, given effect within the Republic of Ireland under The European Convention on Human Rights Act 2003, guarantees the “protection of the reputation… of others.”
The time limitation period within which one must make a defamation claim in the jurisdiction of the Republic of Ireland is one year from the date of the accrual of the cause of action, i.e., the date when the statement is first published. Where the statement has been published online, the date of accrual is the date on which it is first accessible.
This can be extended to two years in exceptional circumstances by way of making an application to the Court.
Under the Defamation Act 2009, the tort of defamation consists of the publication, by any means, to one or more than one person, of a defamatory statement, which “tends to injure a person’s reputation in the eyes of reasonable members of society.”
The Defendant to a defamation action will be an individual or company as the publisher who made the defamatory statement.
In order to bring a defamation action, the Plaintiff must establish:
(i) Publication of the defamatory statement;
The 2009 Act defines publication as being the publication, by any means, of a defamatory statement concerning a person, to one or more persons, (other than the first-mentioned person), and that their opinion is lowered as a result.
(ii) That the defamatory statement refers to the Plaintiff;
The 2009 Act sets out a reasonableness threshold, wherein a statement concerns a person “if it could reasonably be understood as referring to him or her.” Therefore, the statement need not name the person, but could infer reference to them by mentioning other identifying factors.
(iii) That the statement is false.
Nonetheless, a statement will be presumed to be false until proved otherwise.
(iv) That the courts have jurisdiction.
For example, in Ryanair Ltd. v Fleming  IECA 265, the Court of Appeal upheld the earlier decision of the High Court that the Irish Courts did not have jurisdiction in a defamation case brought by an Irish company, against an Australian Defendant, for publication of a defamatory statement on a website with headquarters in the United States. In reaching this decision, Hogan J emphasised the factors to be taken into consideration, “there is no evidence of actual publication (in the sense of the post having been accessed or downloaded by a third party) of this post in Ireland.”
Finally, the 2009 Act sets out that the tort of defamation is actionable without proof of special damage.
Notice: It is common practice to put the Defendant on notice, usually by way issuing of pre-action correspondence to them, and then affording the Defendant adequate time to respond.
Issuing a Plenary Summons: A Plenary Summons can then be issued by the Defendant.
Entering an Appearance: The Defendant must Enter an Appearance within 8 days of receiving the Plenary Summons.
If the Plaintiff does not give Notice of Trial within 6 weeks after the close of the pleadings, or within such extended time as the Court may allow, the Defendant may give Notice of Trial or may apply to the Court to dismiss the action for want of prosecution.
Notice of Trial is given before Setting Down the action for Trial. If the action is not Set Down by either party within 14 days of Notice of Trial being served, the Notice of Trial will no longer be in force.
The law presumes any defamatory statement to be false. The burden of proof falls upon the Defendant to prove the truth of the statement or establish such other defences.
The 2009 Act sets out the following defences which can be relied upon by the Defendant to absolve liability in defamation actions, namely:
Furthermore, whilst an Internet Service Provider is a publisher pursuant to Section 18 of the European Communities (Directive 2000/31/EC) Regulations 2003 S.I. No. 68/2003, an ISP is not liable if they do not have actual knowledge or awareness of the unlawful activity concerned, or, if, upon obtaining such knowledge or awareness, it acts expeditiously to remove or disable access to the content.
Defamation cases are generally held in open court, due to the constitutional imperative that justice must be done in public under Article 34.1. This fundamental principle has been reinstated by the Courts, with O’Donnell J affirming, “the presence of the public is not just unavoidable, but is necessary and welcome”. There are, however, some exceptions where a court hearing for a defamation Trial may be made in private, with no publicity except for the jury verdict.
Pursuant to the 2009 Act, a person who has published a statement that is alleged to be defamatory of another person may make an offer to make amends in writing.
The offeror may, with the leave of the Court make a correction and apology by means of a statement before the court in such terms as may be approved by the court and give an undertaking as to the manner of their publication.
Indeed, if the parties do not agree as to the damages or costs that should be paid by the offeror, these matters shall be determined by the Court and shall take into account the adequacy of any measures already taken to ensure compliance with the terms of the offer by the person who made the offer.
There is presently no cap on the damages which may be offered in a defamation action.
Damages are the usual remedy for defamation. There may be cases, however, where damages are not appropriate and, in such cases, an injunction may be granted. In very exceptional circumstances, an injunction may be issued to prevent an anticipated publication.
When the 2009 Act came into force in Ireland on 1 January 2010, it provided that the Minister for Justice was required to complete a review of its operation within one year of the Act’s commencement. While efforts have been made over the past ten years to progress that review, it has never actually been completed.
The government’s Justice Plan published in 2021 indicated that the aim of the review is to “ensure a balanced approach to the right to freedom of expression, the right to protection of good name and reputation, and the right of access to justice”.
The General Data Protection Regulation (EU) (2016/679) (“GDPR”) has applied in all EU Member States since 25 May 2018.
In Ireland, the GDPR is primarily implemented through the Data Protection Act 2018. The majority of the provisions of the Data Protection Act 2018 came into force on 25 May 2018. The Data Protection Act 2018 includes certain derogations (discussed further below), provides for the establishment of a new Data Protection Commission, implements the Law Enforcement Directive and otherwise addresses procedural aspects of the enforcement of data protection in Ireland.
The previous data protection legislation in Ireland, the Data Protection Acts 1988 to 2003, were largely repealed by the 2018 Act, however, those Acts continue to apply in relation to certain limited purposes including national security and defence. Additionally, the previous legislation continues to apply in relation to complaints or infringements which occurred prior to 25 May 2018 as well as to investigations commenced (but not completed) prior to that date.
The GDPR does not apply to law enforcement activities which are instead subject to the Law Enforcement Directive. The GDPR also does not apply to areas of law that are outside the scope of Union law, such as national security, and does not apply to purely personal or household activity.
The Data Protection Act 2018 includes certain derogations, such as from specified data subject rights. It also provides broad ministerial powers to restrict organisations’ obligations and individuals’ rights via statutory regulations, in so far as is necessary to safeguard important objectives of general public interest.
The right to privacy in Ireland is guaranteed both by the Constitution of Ireland and at a European level.
Article 40.3.1. of the Constitution of Ireland states ‘The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.’
Article 8 of the European Convention on Human Rights (hereafter referred to as the ‘ECHR’) is entitled “Right to respect for personal and family life” and it states that everyone has the right to respect for his private and family life, his home and his correspondence. It provides that there shall be no interference by a public authority with the exercise of this right, except in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The ECHR became part of Ireland’s domestic law on the commencement of the European Convention on Human Rights Act 2003. Section 2(1) of the Act provides:
‘in interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions’.
Contributor: Paul Tweed
4-10 Donegall Square East
Northern Ireland BT1 5HD
The material in this Guide is for general information only and does not constitute legal advice.
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