THE LAW REFORM COMMISSION

AN COIMISIÚN UM ATHCHÓIRIÚ AN DLÍ

CONSULTATION PAPER

ON

THE CIVIL LAW OF DEFAMATION

March 1991

IRELAND

The Law Reform Commission

Ardilaun Centre, 111 St Stephen's Green, Dublin 2

© Copyright The Law Reform Commission 1991

First Published March 1991

INTRODUCTION

In January 1989 the Attorney General pursuant to section 4(2)(c) of the Law Reform Commission Act 1975 requested the Commission to undertake an examination of, and conduct research and formulate and submit to him proposals for reform of, the law of Defamation and Contempt of Court.

The subject matter of this request can be divided into three parts: Civil Defamation, Criminal Defamation and Contempt of Court. In turn, criminal defamation takes four forms: criminal libel, obscene libel, blasphemous libel and seditious libel.

The Commission decided to undertake firstly an examination of civil defamation, the most extensive of these categories. This Consultation Paper contains the results of that examination together with the provisional proposals of the Commission for reforms in the law. We will, in the near future, be publishing further Consultation Papers on the other subjects comprised in the Attorney General's request.

Before embarking on their study of the subject, the Commission published an advertisement in the national press inviting submissions from interested persons as to aspects of these branches of the law which they considered in need of change. We have received a number of written submissions in response to this request from members of the public, Radio Telefis Eireann, the National Newspapers of Ireland and The Irish Publishers' Association. Members of the Commission also met representatives of these bodies and visited newspaper offices in Dublin.

We have been conscious throughout our examination of this area of the law that one of its principal functions is to preserve a balance between two competing interests, that of individuals in their good name and that of the

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media in freedom of expression. We have in the result been concerned to familiarise ourselves, on as extensive a scale as possible, with the views of all those who are concerned with protecting these different interests.

The layout of the Consultation Paper is in general the same as in our previous papers and reports. We begin by setting out the present law and identifying the areas in which it is most clearly in need of reform. We consider models for change to be found in other jurisdictions or which have been put forward by commentators on the deficiencies of the present law, including the submissions made to the Commission in response to our advertisement. We have, however, departed from precedent in one way. A separate section is devoted to examining developments in the law during the past three decades in the United States of America. We considered that these developments merited detailed examination, since they raise fundamental issues as to the objectives which a defamation law should seek to attain in a modern democracy. We conclude by presenting our tentative recommendations for reform.

We emphasise again that the proposals for reform contained in this Consultation Paper are provisional in their nature. We invite written submissions in relation to any of these proposals and the material contained in this Consultation Paper. Any such submissions received by us will be assessed with great care before we present our final proposals to the Attorney General. We also hope to hold a Seminar which will enable a full discussion of the Consultation Paper to take place, details of which will be announced shortly.

PART I: THE PRESENT LAW

CHAPTER 1: GENERAL

Purpose of the Law of Defamation

1.

The law of tort seeks to redress two types of injury, namely, injury to the person and injury to property. Injuries to the person may be physical or non-physical. The core of the defamation action is one type of non-physical injury to the person, that is, injury to reputation. It can take two forms: libel, which is in written or permanent form and slander, which is in verbal form.

2.

Defamation law attempts to serve and strike a balance between two competing interests, protection of reputation and freedom of speech. There are provisions in the Constitution of Ireland which affect both these interests and to which reference must be made at the outset.

Article 40.3 says:

Article 40.6.1° says:

It will be noted that the Irish constitutional guarantee of free speech is a qualified one. This is in line with most theories of freedom of speech which recognise that freedom of expression requires some regulation.

3.

The action in defamation serves to prevent or provide redress for injury to a person's reputation caused by statements of defamatory effect.

The classic exposition of the basis of defamation law is provided by Cave J in Scott v Sampson²–“Speaking generally the law recognises in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit; and if such false statements are made without lawful excuse, and damage results to the person of whom they are made, he has a right of action”.

The Distinction between Libel and Slander

4.

The law of defamation divides defamatory statements into those which constitute libel and those which constitute slander.³

5.

The distinction between libel and slander has been said to be between an

oral and a written statement, the rationale being thought to be that a written statement reveals more design or malice. The more modern view is that the distinction is based on the permanency or transiency of the statement.

6.

There are two main differences between libel and slander. First, libel is always actionable per se, i.e. without proof of special damage. Slander may or may not require proof of special damage, depending on the nature of the words spoken. Secondly, libel is a crime as well as a tort. Slander is not in itself a crime, although certain spoken words may breach the criminal law for being seditious, treasonable, blasphemous or tending to breach the peace.

More modern descriptions of libel include the word “permanent”

Further support for this basis of distinction is found in the Defamation Act 1961, section 15 of which provides that broadcasting by means of wireless telegraphy shall be treated as publication in permanent form. Although section 15 does not state that such a broadcast is a libel, this is presumably the effect of deeming it to be a publication in permanent form.⁷

However as R.F.V. Heuston has pointed out in relation to the equivalent English provision,

7.

Most libels are both permanent and visible. Notably, gestures were slander at common law, and the 1961 Act includes gestures within its definition of “words” (section 14.2). However problems arose where there was a combination of oral delivery and permanency, compounded by modern electronic communication methods. These problems are now resolved by s15 of the Defamation Act 1961.

The reading aloud from a script was held to be the publication of a libel in Robinson v Chambers.⁹ In England, the Theatres Act 1968 treats the publication of words in a play as publication in permanent form, “play” being widely defined, although it excludes domestic performances, rehearsals, and performances to enable records, film, or broadcasts to be made. At common law and apart from statute, it would appear that while a broadcast from a written script is libel, an extemporary broadcast is slander.¹⁰ It was held in Youssoupoff v MGM¹¹ that the communication of defamatory matter by means of a film constituted a libel rather than a slander.

Such questions in relation to the electronic media are now settled by section 15 of the Defamation Act 1961 which provides that:

The Prima Facie Case

8.

The following conditions must be demonstrated by the plaintiff to have been fulfilled in order to establish a prima facie case of defamation:

In an action for libel, the plaintiff need not prove damage since damage is presumed. In an action for slander the plaintiff must in addition prove damage, except in four specific cases.¹²

Defamatory Effect

9.

The definition of defamatory effect is provided by a compilation of judicial statements. A defamatory effect is said to be produced where a statement tends to lower the person in the eyes of society,¹³or in the estimation of “right-thinking members of society generally”¹⁴or in the eyes of the “average right-thinking man”¹⁵or tends to hold that person up to ridicule, hatred or contempt,¹⁶or causes the person to be shunned or avoided.¹⁷

10.

The standard of a reasonable man is used to measure whether a statement is considered defamatory or not.

The issue of defamatory effect is left to the jury as representing the reasonable man. The ordinary man is presumed to be somewhere between the two extremes of unusually suspicious and unusually naive.

“In defamation, as in perhaps no other form of civil proceedings, the position of the jury is so uniquely important that, while it is for the judge to determine whether the words complained of are capable of defamatory meaning, the judge should not withhold the matter from the jury unless he is satisfied that it would be wholly unreasonable to attribute a libellous meaning to the words complained of”.¹⁸

As it is for the jury to determine whether the words were defamatory or not, the plaintiff or his witnesses may not be questioned as to the effect the words produced on them in the determination of this issue. RTE point out, however, that evidence of this kind can indirectly influence the 'libel or no libel' question in cases where actual damage is claimed, because questioning of this type will be admitted to establish actual damage. RTE claim that juries cannot be adequately warned that such evidence may not be used on the 'libel or no libel' question, and that evidence as to the effect of the statements on friends and family will heavily influence the jury towards the view that it is defamatory.¹⁹

The standard of the reasonable man may be seen as an average or aggregate view of society's opinion. The adoption of an objective standard encounters problems when the statement challenged touches on matter in relation to which there are sharply divided community viewpoints, whether political, social, religious or moral. The statement may be defamatory in the eyes of some sections of society and non-defamatory in the eyes of other sections of society. As McDonald states,

One such issue encountered by the courts is relatively straightforward. This is where the statement challenged alleges that the plaintiff in some way upheld the law. Undoubtedly this would lower the plaintiff in the eyes of a section of the community who felt that the law should not have been upheld. However the courts have refused to hold defamatory a statement which imputes that the plaintiff upheld the law. An older example of this is Mawe v Piggott,²¹ where a newspaper article reported the plaintiff, a parish priest, as saying, “I will watch them, I will denounce them to the tender mercies of the Croydons, the Talbots, the Barrys.” The innuendo alleged was that he would watch men who were ready to give up all for Ireland, and cause them to be prosecuted for a political offence. Lawson J said:

A more recent illustration of this principle is provided by Berry v Irish Times. The plaintiff, who was the Secretary of the Department of Justice, claimed to have been libelled by a placard, reproduced by a newspaper photograph, which bore the words:

It was held by the Supreme Court that the words were not capable of a defamatory meaning. O'Dalaigh CJ, delivering the majority judgment said:

Fitzgerald J, however, dissenting, identified a standard of opinion of which the law could approve and by which the statement could nonetheless be defamatory:

McLoughlin J, also dissenting, took a similar view:

In Mawe v Pigott, Lawson J considered the result to stem from the straightforward application of the “right thinking members of society” test. Right-thinking members of society could not consider the plaintiff's reputation injured if it was said of him that he upheld the law. However this view of such cases may be artificial. It is perhaps simpler to say that an allegation of upholding the law may never be defamatory, irrespective of the view of the average person. This rule therefore does not flow from the application of an average community standard but rather from the court's duty to uphold the rule of law. In this light the rule is a limited exception to the normal measure of defamatory effect. But the problem at least shows the law grappling to find a community standard by which defamatory allegations are to be measured. One American writer, examining this problem in relation to a similar American case, Connelly v McKay, notes that this exercise involves a slight shift in emphasis from the actual injury to reputation to enforcement of community standards.²⁶

The problems which are hinted at in the above type of case become more acute where the statement challenged concerns moral or political questions about which opinions are sharply divided. For example, is it defamatory to

say (1) that a person was raped, (2) that a person engaged in extra-marital sexual intercourse (not consisting of adultery), (3) that a person was a “scab”? In America, such problems have arisen in relation to statements alleging a person is a Communist, or is a Republican where he is in fact a Democrat. In relation to an allegation of rape, there are two judicial statements to the effect that such an imputation is defamatory. The first is in Youssoupoff v MGM,19 where such an allegation formed the basis of libel proceedings. The second is the following dictum of Walsh J in Quigley v Creation Ltd–

Walsh J appeared to be of the view that although this was undesirable, the allegation of rape would in fact lower the plaintiff's reputation. However whether a statement “in fact” injures reputation may be more difficult, as with the examples of the “scab” or the “Democrat-Republican” above. Members of society may differ in their reaction to a statement although they are all on “the right side” of the law. According to which reaction is the Court to assess the effect of the statement? Modern Irish cases have been sensitive to this problem and have on more than one occasion recognised that a statement may be defamatory if it lowers the plaintiff's reputation in a section of the community only. For example, Walsh J stated in Quigley v Creation Ltd that words are defamatory if they injure the plaintiff's reputation “in the eyes of a considerable and respectable class of the community, though not in the eyes of the community as a whole”. In Berry v Irish Times, McLoughlin J said with regard to the phrase “right-thinking people”, “it does not mean all such people but only some people, perhaps even only one, because if a plaintiff loses the respect for his reputation of some or even one right-thinking person he suffers some injury”.

11.

The determination of the defamatory effect of a statement does not take into account the intention of the speaker.

An objective test is used to determine the meaning of a statement i.e. how the ordinary reasonable man would understand the words. Accordingly, (a) a statement which the ordinary reader would understand as defamatory will be so, even if the speaker meant no harm, (b) a statement which the ordinary reader would not find defamatory will not be so, even if the speaker was

malicious. As Monahan CJ stated in 1856: “the question was not what the writer intended, but what effect (the words) were likely to produce on the person who read or heard them”.²⁸

This follows from the rationale underlying defamation, which emphasises the effect of a statement on a standard of opinion, represented by the jury;

12.

Mere vulgar abuse is not defamatory

The defence of vulgar abuse is probably entirely confined to cases of slander, since the context of a remark is much more significant in the case of slander. In the case of a written statement, one may expect a certain degree of deliberation. It is unlikely that a written statement would be protected on grounds of being mere vulgar abuse.

13.

Ridicule is defamatory

In the Dunlop case, the plaintiff sought an injunction to restrain the defendant company from distributing material in Ireland containing caricatures, in which he was depicted “in an exaggerated foppish manner” and in absurd attitudes. The issue was whether leave to serve out of the jurisdiction should be allowed, and therefore Powell J did not determine whether such representation of the plaintiff was in fact defamatory, but as he found that it was capable of being so, he refused to discharge the order giving leave to serve out.

Nonetheless, material to which the plaintiff objects as ridicule may be found by the court to be mere humour, and therefore not defamatory. In Emerson v Grimsby Times,³¹ the alleged libel consisted of a full 'account' in the local newspaper of the plaintiff's wedding, and a statement about the honeymoon,

which was published one day before the plaintiff's wedding actually took place. The plaintiff's claim was struck out as frivolous and vexatious.

It may be that forms of satire or comedy are increasingly being held to be defamatory. McDonald cites a Circuit Court case in 1977, Thorpe & Lee v Ames³² in which two barmen recovered damages for the following statement in a local newspaper:

RTE are of the view that there is a trend towards holding comical or satirical statements to be defamatory, and that this inhibits their presenting of comedy on television.³³

Burden of Proof and Defamatory Effect

14.

The burden of proof lies on the plaintiff to establish that a defamatory imputation is conveyed.

The defamatory nature of a statement is not to be confused with its falsity. While the burden is on the plaintiff to show that the statement was of a defamatory nature, he is not obliged to prove its falsity. The law presumes the falsity of defamatory statements.³⁴

The Meaning of Words

(a) The innuendo

15.

The terminology of defamation law refers to the different meanings that may be ascribed to words as (a) the “ordinary and natural meaning” and (b) the “innuendo”. In every day conversation, the word “innuendo” is used by people as referring to a statement made by way of hint or suggestion rather than directly. In the law of defamation, it has a different and rather artificial meaning.

The distinction in law between (a) the ordinary and natural meaning of words and (b) an “innuendo” is best illustrated by examples. If it is said of a man that he was seen frequently entering a brothel, the words are regarded by the law as capable of being defamatory in their ordinary and natural meaning. If the statement is simply to the effect that the person was seen frequently entering a named premises, the words would not be regarded as capable of being defamatory in their ordinary and natural meaning. If, however, the

named premises was a brothel, the statement is capable of containing a defamatory implication to any one who knew that the house was a brothel but not to any one who did not.³⁵ In this latter instance, the words, although not defamatory in their ordinary and natural meaning are capable of being defamatory by reason of an innuendo. The innuendo, it will be seen, depends upon the proof by the plaintiff of extrinsic facts which demonstrate that a statement innocent on its face is defamatory.

However, the expression “the ordinary and natural meaning” of words is deceptive, because it encompasses two things: the direct, literal meaning of the words and an inferential meaning inherent in those words. For example, the statement “McCarthy committed the murder” is plainly defamatory and requires no explanation. If, however, a lengthy article were to set out that McCarthy was in the vicinity of the crime, was found with the murder weapon and had a motive for killing the victim, it might not directly implicate McCarthy in the murder, but he could well argue that this meaning was to be inferred from the article. Understandably, the layman would regard this as a classic example of an “innuendo”, but the law does not: it treats that inferential meaning as part of the “ordinary and natural meaning” of the words and not as an innuendo.

The confusion frequently evidenced in this area has been compounded by an insistence in England on referring to the meaning which depends on the establishment of extrinsic facts as a “true” innuendo, as distinct from the “false” innuendo where the pleader is simply elaborating the ordinary and natural meaning of the words. It is time that this unhappily worded terminology was replaced by the clearer distinction suggested by Lord Devlin, i.e. that between the “legal innuendo” and the “popular innuendo”.³⁶

One of the clearest examples of a legal innuendo is Tolley v Fry and Sons.³⁷ The defendants, by way of advertisement for their chocolate product, issued a caricature of the plaintiff depicting him playing golf with a packet of their chocolate protruding from his pocket. Such a caricature was, of course, not defamatory per se: if the plaintiff was a professional golfer, there would have been nothing inconsistent with his status in his endorsing some one's products (by implication for reward). But the plaintiff was in fact an amateur golfer and the House of Lords held that the caricature was capable of bearing the meaning alleged in the legal innuendo, i.e. that the plaintiff had agreed to promote the defendant's products for reward and had thereby prostituted his reputation as an amateur golfer.

By contrast, in Irish People's Assurance Society v City of Dublin Assurance Company Limited³⁸ the plaintiff company claimed that a reproduction of

extracts from their balance sheet out of context implied that they were insolvent. This was clearly a “popular innuendo” as distinct from a “legal innuendo”, since it did not depend for its establishment on the proof of extrinsic facts. The confusion rife in this branch of the law is, however, demonstrated by the fact that both Fitzgibbon J and Murnaghan J in the Supreme Court referred to it without qualification as an “innuendo”.

(b) Pleading Innuendos

It might be thought that the distinction discussed in the preceding section is of academic importance only. This is to some extent true, but it has also a practical significance so far as the pleadings in defamation actions are concerned.

In the case of the legal innuendo, it might seem reasonable that, not merely the special meaning being attributed to the words should be pleaded, but also the extrinsic facts alleged to give rise to that meaning. It has always been, and still is, necessary to prove the supporting extrinsic facts at the trial and prior to the Common Law Procedure Amendment Act (Ireland) 1853, it was also necessary to plead the material extrinsic facts. The law was regarded as having been settled in this sense by the judgment of de Gray CJ, giving the unanimous decision of the judges in R v Horne³⁹ in 1777. The Irish Act of 1853, like its English counterpart of the preceding year, however, did away with the necessity of pleading the material extrinsic facts. Thereafter, in both England and Ireland only the innuendo meaning had to be pleaded and not the supporting facts, although it remained the practice to plead those facts. In England, however, the law was changed in 1949 as a result of a recommendation of the Porter Committee who thought that ignorance of the extrinsic facts supporting a legal innuendo could surprise and prejudice a defendant. As a result, Order 19, Rule 6(2) (RSC) was introduced, providing that:

There was no corresponding change in Ireland and in Kavanagh v The Leader and Another,⁴⁰ Lavery J said that the law still was that the extrinsic facts did not have to be pleaded. Since then, Order 19 Rule 5(1) of the Rules of the Superior Court 1986 has been introduced requiring particulars of the wrong alleged to be pleaded in the Statement of Claim. In the absence of any decision as to whether this general rule has altered the special position in defamation cases, the law remains to some degree uncertain. It is, however, customary in practice to plead the necessary extrinsic facts in the Statement

of Claim.

The English Act of 1852 introduced another change which was not parallelled in Ireland. Thereafter, a legal innuendo – as distinct from a popular innuendo – gave rise to a separate cause of action. Hence if the words were defamatory in the ordinary and natural meaning and also by reason of a legal innuendo, the plaintiff was entitled to a separate verdict in respect of each alleged meaning and, if he succeeded, to damages in respect of each meaning. Moreover, if more than one legal innuendo were pleaded, he was entitled to a separate verdict in respect of each such legal innuendo. A further consequence of this in England was that, if the plaintiff failed to establish a legal innuendo, he could fall back on the ordinary and natural meaning of the words. Blackburn J stated in Watkin v Hall:

However, as the Irish Act of 1853 contained no equivalent provision, the Irish Courts continue to apply the former rule, that if an innuendo was pleaded and subsequently rejected, the plaintiff was not permitted to rely on the defamatory meaning of the words in their ordinary and natural sense. As was stated in Bolton v O'Brien⁴¹:

The twofold rationale for this rule was adverted to by Johnson J in the Queens Bench division in Fisher v Nation Newspaper and Rooney.⁴² First, the plaintiff by pleading an innuendo is saying that the defendant spoke the words in an innuendo sense and, when the jury finds that they were not spoken in this sense, it is as though they were never spoken at all. Second, it would take the defendant by surprise to expect him to defend a meaning at trial which he did not expect. However, in Fisher's case, the Court of Appeal reversed the Queen's Bench Division and laid down a new rule that a plaintiff should be allowed to fall back on the natural meaning of the words even if they had not been specifically relied on in the pleadings. The major consideration influencing the Court appears to have been a desire to make the English and Irish systems identical:

In Kavanagh v The Leader,⁴³ Lavery J considered the decision in Fisher's case to be settled law.

So much for the legal innuendo. As for the popular innuendo, it was at one time the law in England, and may still be the law in Ireland, that there was no particular obligation on the plaintiff to specify in his meanings the popular innuendoes upon which he will rely. However in a series of decisions in the early 1970s, the Court of Appeal in England held that it was necessary for the plaintiff to set out the meaning alleged where the words were capable of more than one meaning. The Faulks Committee, examining the law in 1975, understood the effects of these decisions to be as follows:

The Faulks Committee thought that the precise rules on pleading popular innuendoes were not settled and recommended clarification in this area.

The rules as to pleading innuendoes, whether legal or popular can, accordingly, be stated as follows:

16.

Where a legal innuendo is relied on, the extrinsic facts supporting it must be proved at the trial if the plaintiff is to succeed upon the innuendo. However, it would appear that it is not necessary in Ireland to plead the extrinsic facts in the Statement of Claim, although this appears to be the normal practice.

17.

Where one or more legal innuendoes are successfully pleaded, each gives rise to a separate cause of action, entitling the plaintiff to a separate verdict and award of damages in respect of each innuendo.

18.

Where a plaintiff pleads a defamatory meaning in the legal innuendo sense only and fails, he may fall back on the ordinary and natural meaning of the words.

19.

Where it is contended that words are defamatory in their ordinary and natural meaning, it is not necessary for the plaintiff to plead any more than the words themselves. Hence where the plaintiff relies on a popular innuendo, it is not necessary in general for him to plead such an innuendo. However, it is probably necessary to plead such an innuendo where

20.

A defamatory meaning may be conveyed by publishing true and accurate matter in a misleading way or context.

In Irish People's Assurance Society v City of Dublin Assurance Company Limited, the alleged libel consisted of extracts from balance sheets. The plaintiff pleaded that the reproduction of these extracts out of context implied that the company was insolvent and that it was financially unsafe for policy holders to insure with them. The trial judge ruled that the document was true in substance and fact and directed that judgment be entered for the defendants. An appeal to the Supreme Court was allowed, on the ground that the jury should have determined whether the document as a whole conveyed an accurate impression of the society's financial position.

Fitzgibbon J stated:

Similarly, in the earlier English case of Monson v Tussauds Ltd, Lord Halsbury said:

21.

The determination of the defamatory effect of a statement is a question for the jury. It is a general rule that a witness may not be asked what the

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effect of the statement was on him. This admits of one exception, viz. a witness may give evidence of defamatory meaning where a legal innuendo is involved.

In Kenny v Freeman's Journal⁴⁴ the issue was whether a new trial should be granted on the basis that evidence was improperly received, such evidence including that of witnesses as to the effect produced on them upon seeing the cartoon which constituted the libel. Palles CB stated:

A common example of such evidence being received is in the case of an ironic statement; it appears also to be the case in relation to pictures and cartoons. The basis for the rule and its exception appears to be that where the meaning is plain, the jury are capable of interpreting it alone, but witness evidence is admissible where the meaning is more complicated:

22.

All facts going to make up a libel must be known at the time of publication. Facts coming to the knowledge of a reader/hearer after this time are irrelevant.

In Grappelli v Derek Block (Holdings) Ltd,⁴⁷ the defendants had made bookings for concerts by the plaintiff, a musician of international repute, without his consent, and these were cancelled. On the occasion of cancelling the venues, the defendants told the managers of the concert-halls that the plaintiff was seriously ill and would probably never tour again. This false explanation was passed on to members of the public. Subsequently, notices appeared in newspapers announcing forthcoming concerts by the plaintiff. The plaintiff brought an action alleging that the defendant's statement gave rise to an innuendo that he had previously given a reason for cancelling concerts which

he knew to be false. It was held that, since the cause of action arose as soon as the words complained of were published, any extrinsic facts relied upon to support the innuendo had to be known to the audience at the time of publication. Accordingly, inferences put on the words as a result of facts coming to light after the publication did not make the words defamatory. (This might seem a somewhat harsh result, but it should be borne in mind that the plaintiff had a possible alternative remedy in injurious falsehood).

The Grapelli case was, however, distinguished in Hayward v Thompson⁴⁸ where facts coming to the knowledge of the readers subsequent to the initial publication were held admissible as they pointed to the identity of the person defamed. In that case, the plaintiff was well-known for his support of many charitable causes in Great Britain, and between 1970–1975 he contributed over £200,000 to the Liberal Party. In 1978 an article appeared in a national newspaper stating that the names of several people connected with an alleged murder plot had been given to the police, one of them being a “wealthy benefactor of the Liberal Party”. A second article named the plaintiff in connection with the investigations. The plaintiff contended the articles meant that he was guilty or reasonably suspected of participating in or condoning the murder plot, and that the second article identified him as the person referred to in the first article. The jury awarded £50,000 damages. The Court of Appeal dismissed an appeal by the defendants, holding that although it is not possible to bring in a publication to make words defamatory which were not so in the initial publication, this does not apply were the words used in the first article are defamatory and the only question is one of identification.

Functions of Judge and Jury

23.

Determination of whether the statement was capable of being defamatory is a matter for the judge. Determination of whether the statement was in fact defamatory lies with the jury.

A further authoritative statement as to the respective provinces of judge and jury in a defamation case is provided by Henchy J in Barrett v Independent Newspapers:

24.

It is settled that the trial judge may withdraw the issue of libel or no libel from the jury on the ground that the words complained of are not capable of defamatory meaning. There has been more controversy as to whether the judge may withdraw the issue from the jury on the grounds that the jury would be perverse in holding that they were not defamatory, but the current Irish position is that he may not do so.

The role of the jury in defamation actions was stressed by Walsh J in Quigley v Creation Ltd,⁵¹:

It has also been said that, in arriving at a conclusion as to whether the words are capable of defamatory meaning, unlikely and fanciful constructions should be avoided. The law was thus stated by Lord Morris of Borth-y-Gest giving

the advice of the Privy Council in Jones v Skelton:⁵³

It also follows that a judge may withdraw a particular innuendo from the jury on the basis that the words were incapable of bearing that particular defamatory meaning.

In Barrett v Independent Newspaper,⁵⁴ the converse situation arose. The trial judge held that the words complained of were defamatory as a matter of law, and left only the question of damages to the jury. The Supreme Court on appeal, by a majority of three to two, held that the judge had usurped the function of the jury in holding that the words were defamatory. As Henchy J noted,

However, McCarthy J, dissenting, was of the opinion that the words in their ordinary meaning were clearly defamatory, that a finding by the jury to the contrary would have been perverse, and that therefore the trial judge was correct in acting as he did. Finlay CJ was of the same view:

It may be noted that the view of the dissentients in the Barrett case was foreshadowed by Fitzgerald and McLoughlin JJ in Berry v Irish Times.⁵⁶ There, the jury had found that the publication of the words was not defamatory. The plaintiffs appeal, on the ground that this finding was perverse and the trial unsatisfactory, was dismissed by the Supreme Court. However the dissenting judges felt not only that the words were defamatory, but that they were so

clearly so that a new trial should be ordered and limited to the assessment of damages. In other words, they envisaged a new trial where the issue of defamatory effect would not be left to the jury, because the statement was incapable of innocent meaning.

However, the current Irish position on this point would appear to be represented by the majority view in the Barrett case. Accordingly, while the issue of libel or no libel may be withdrawn from the jury where the judge rules the words incapable of defamatory meaning, he may not do the same in respect of words he thinks incapable of innocent meaning.

Identification

25.

It is an essential element of the tort of defamation that the plaintiff was identified in the statement complained of. The plaintiff must satisfy the judge that he is reasonably capable of being identified from the statement. He must then satisfy the jury that he was in fact the person referred to. In most cases, the plaintiff is named; however, in others extrinsic evidence may be necessary.

In Berry v Irish Times,⁵⁷ the placard complained of merely bore the plaintiff's name, but it was not contested that this referred to the plaintiff who was the Secretary to the Department of Justice at the time.

Extrinsic evidence was admitted in the Fullam case⁵⁸ in order to identify the plaintiff, who was a renowned footballer. The defendants had stated in a newspaper article that the plaintiff used his right foot for balancing only and that the club managers had devised a scheme to improve his shooting by requiring him to wear a carpet slipper. (The article was published some 25 years after the end of the plaintiff's career). Objection was taken on behalf of the defendants to the admission of evidence of jeering by crowds and neighbours of the plaintiff. The evidence was held admissible for the purpose of identifying the plaintiff as the target of the libel.⁵⁹ Similarly, in Morgan v Odhams Press Ltd⁶⁰ and Jozwiak v Sadek⁶¹ extrinsic evidence was admitted to establish identification of the plaintiff.

The case of Sinclair v Gogarty⁶² involved an application for an injunction restraining the publication of a book entitled “As I Was Going Down Sackville Street”. One of the questions for the court was whether the passages

complained of clearly referred to the plaintiff his brother and his grandfather. Hanna J accepted the uncontradicted evidence of Mr Samuel Beckett that the passages did refer to the plaintiff and that there were “sufficient indicia” in the passages to give readers the “necessary clue to their identity”. Not only does the case illustrate the admissibility of extrinsic evidence to establish identity: it also emphasises that a thin veneer of disguise will not protect an author from libelling identifiable people:

26.

At common law the test of identification does not take into account the intention of the defamer.

The test of identification is whether the words would be understood by reasonable people to refer to the plaintiff. Therefore, the intent of the defendant is irrelevant in this context:

In Hulton v Jones,⁶⁵ the defendants who were proprietors and publishers of a newspaper, published defamatory statements about a person whom the author and editor thought to be fictitious. Unknown to them, the name used was actually the name of the plaintiff. It was held that in an action for libel, it was no defence to say that the defendant did not intend to defame the plaintiff, if reasonable people would find the language to be defamatory of the plaintiff.⁶⁶

The newspaper involved in Newstead v London Express Newspaper⁶⁷ published an account of the bigamy trial of one “Harold Newstead, 30 year old

Camberwell man”, which was true of a barman of that name, but not as regards a hair-dresser of the same name. It was held on appeal that the evidence would have justified a jury finding that reasonable persons would understand the words to refer to the plaintiff, and that the fact that they were true of another person than the plaintiff did not afford a good defence. A similar lack of detail was fatal to the defendant in Outram v Reid.⁶⁸ The Glasgow Herald published a notice, abbreviated from the Edinburgh Gazette, noting the bankruptcy of a wine and spirit merchant, without citing the address. A wine and spirit merchant of the same name recovered damages. The strictness of the common law position exemplified by these cases is now affected by s21 of the Defamation Act 1961 and will be considered in more detail under Unintentional Defamation below.⁶⁹

However, if the defendant does not avail of the statutory machinery, the common law rule on liability applies. A recent example of a case of mistaken identity is Charles Merrill v Sunday Newspapers Ltd.⁷⁰ The plaintiff claimed that an article published in the Sunday World confused him with Charles Merrill-Mount, also an American living in Dublin, who was convicted of selling letters and documents from the US Congress Library. The plaintiff also claimed that the defendants published a photograph of himself with the caption, “Charles Merrill-Mount pictured in Dublin in 1972”. The defendants admitted that a mistake had been made and apologised to the plaintiff. The jury awarded £35,000 damages.

27.

Indirect Identification: In some cases, the plaintiff may establish that he was indirectly identified and defamed, although he was not referred to in any sense in the alleged libel.

The most commonly cited example of this is Cassidy v Daily Mirror Newspapers Ltd,⁷¹ where a photograph of one Mr C and a Miss X was published together with the words; “Mr C, the racehorse owner, and Miss X, whose engagement has been announced”. In fact, Mr C was married to the plaintiff who was not referred to in any sense in the photograph. Nonetheless, it was held that she was entitled to recover damages for libel and that a meaning defamatory of her had been conveyed, namely, that she “was an immoral woman who had cohabited with Corrigan without being married to him”. Scrutton LJ said the following:

A similar mistake of identity occurred in Hough v London Express Newspapers Ltd.⁷³ The libel consisted of the following statement:

The plaintiff, Mrs Hough, who was not “curly headed”, successfully relied on the innuendo that the words implied that she was a dishonest woman falsely representing to be Hough's wife.

Again in Morgan v Odhams Press Ltd,⁷⁴ the article complained of did not directly refer to the plaintiff. The article concerned a dog-doping gang and a girl who had helped a reporter and police in connection with their arrest and was headed; “Dog-doping girl goes into hiding”. It stated that the girl had been kidnapped by members of the gang and kept in a house in Finchley. In fact, the girl in question had been under the charge of the plaintiff reporter for some time, had stayed at lodgings and at his flat, and had been seen with him by other people. The plaintiff successfully contended that the article was defamatory of him, in that it suggested that he was connected with the dog-doping and kidnapping activities.

28.

Group Defamation

No member of a group or class can bring an action in respect of defamatory statements made about the group unless he can establish that he was specifically referred to. The circumstances or words of the statement may indicate a reference to the plaintiff. Furthermore, where the reference is to a limited group, the plaintiff may be able to maintain an action. It is a matter of law for the Judge as to whether the words are capable of referring to the plaintiff who must then satisfy the jury that he was identified as a matter of fact.

The general rule is illustrated by a 1913 Irish case, O'Brien v Eason & Son.⁷⁵ In this case, an individual member of the Ancient Order of Hibernians brought an action in respect of comments made about this organisation in a weekly journal printed in England and circulated in Ireland. It was held that he could not maintain an action in respect of reflections upon a class or association, merely by virtue of his being one of its members. Commenting on the lack of sufficient identification, Cherry LJ said:

Lack of precise identification was again the rationale for the dismissal of the plaintiff's action in Gallagher & Shatter v Independent Newspapers.⁷⁷ A letter to the Evening Herald referred to a case in which the plaintiffs had acted as solicitor, involving the banning of a booklet on family planning, and described it as one of the examples of behind-the-scenes scheming and plotting against the Constitution and Catholic life by a handful of solicitors and judges. The jury found that the words complained of did not refer to the two plaintiffs. This seems unduly restrictive since many people would have known exactly who the acting solicitors were.

The circumstances or the wording of the article may disclose a reference to the plaintiff. An example of this is Le Fanu v Malcolmson,⁷⁸ in which the article complained of suggested that cruelties were practised upon employees in certain Irish factories. Although this appeared to be a class defamation, certain other statements in the article, including a reference to Waterford, constituted sufficient evidence for a jury to identify the plaintiff's factory as the one primarily attacked.

The size of the class referred to may have a bearing on whether the plaintiff may maintain an action. As Willes J expressed the matter in Eastwood v Holmes:⁷⁹

Yet if a man wrote that all lawyers in town X were thieves, and there were only two lawyers in that town, there would be sufficient identification of these two individuals.⁸⁰ This is illustrated by Browne v DC Thomson & Co,⁸¹ where

a newspaper article stated that in Queenstown “the Roman Catholic religious authorities” had abused their influence. The seven pursuers showed that they were the sole persons who exercised Roman Catholic authority in Queenstown, and were held entitled to sue in libel as individually defamed. Lord Kinnear stated:

An authorative exposition of the rule in this context emerges from Knuppfer v London Express Newspapers Ltd.⁸² Viscount Simon LC stated:

The crucial question is reference to the plaintiff, and not the size of the class:

Duncan & Neill⁸⁴ put forward the following statement on the law relating to group defamation:

Publication

29.

For a defamatory statement to be actionable, it must have been published to someone other than the plaintiff himself. This is because defamation serves to protect reputation in the eyes of others, and not merely hurt pride on the part of the plaintiff.

“What is the meaning of publication? The making known of defamatory matter after it has been written to some person other than the person of whom it is written. If the statement is sent straight to the person of whom it is written, there is no publication; for you cannot publish a libel of a man to himself”.⁸⁵ Accordingly, the sending of a letter or the stating of defamatory matter to the individual concerned will not of itself constitute publication.

In Berry v Irish Times,⁸⁶ McLoughlin J defined defamation as a publication which tends to injure reputation in the minds of right-thinking people and continued: “It does not mean all such people but only some such people, perhaps even only one, because if a plaintiff loses the respect for his reputation of some or even one right-thinking person he suffers some injury”.

One American writer has referred to the “defamation triangle” because of the necessity of third party involvement:

30.

In some situations, there may be a handing over of defamatory matter to someone other than the plaintiff, but there is no publication in law. Where a typist hands back material to an employer, or a printer to the author, there is no publication. However, the initial passing of the material to the typist or printer will constitute publication.

As Andrews LCJ stated in Eglantine Inn v Smith:

Nonetheless, although there is no publication, a printer may be held liable as a concurrent wrongdoer with the publisher. In the Eglantine case, an official of a trade union composed a handbill defamatory of the plaintiffs, which was printed by the defendant printers in the ordinary course of business and subsequently distributed by agents of the trade union. Andrews LCJ stated:

The implications of this decision may be far-reaching. Presumably the position of a typist would not be affected, since it could seem unfair that a typist who has no choice but to follow orders would be held jointly liable for a libel published by his or her employer. A printer might be said to be in a different position in that they have a choice whether to accept the publication for printing or not. This point will be returned to when considering defences in respect of printers.

“Malicious” Publications

31.

It is normally said that the words must be published “maliciously”. The older cases say that malice is the gist of defamation. However, malice in this context refers to the wrongful intent which the law presumes from the making

of a defamatory statement and is known as “malice in law”. Accordingly, the word “maliciously” is a formality which is normally inserted in the statement of claim. “Malice in fact” may, however, be relevant to certain defences.

32.

Incidental Publication: If the defendant communicates defamatory matter to the plaintiff and a third party becomes aware of it, the defendant is liable for the publication to the third party only if he could reasonably have anticipated the third party intervention.

If the defendant leaves his correspondence about, or puts letters in wrong envelopes, or speaks too loudly, he will be liable because he could have anticipated that a third party would become aware of the defamatory material. However if the third party becomes aware of the material through an unauthorised act, the defendant will not be liable. Lord Esher MR, speaking in 1891, stated:

Similarly, in Huth v Huth,⁹¹ there was held to be no publication by the defendant where the posted communication had been taken out of its envelope and read by a butler, in breach of his duty and out of curiosity.

It will depend largely on the facts of each case whether the defendant should have foreseen the possibility of third party intervention. In Paul v Holt,⁹² the defendant sent a letter to a “Mr Paul, Ardavoyle, Meigh, Newry”. The plaintiff had a brother by the same name, living in the same district. The letter was read by the brother, his wife and the plaintiff's wife. On appeal, it was held that the case should have gone to the jury because there was no want of publication. The defendant should have proved that he did not know of the existence of the plaintiff's brother. Conversely, in Keogh v Incorporated Dental Hospital⁹³ where the letter complained of was opened by the plaintiff's assistant, who was authorised to open letters in his absence, it was held that there was no publication. The defendants did not know, nor ought they have known, that the plaintiff had a clerk who was authorised to open his letters. In the Paul case, the defendant should have anticipated that the plaintiff might have a brother of the same name in the same district; in the Keogh case, the defendants need not have anticipated that a clerk might open a letter sent to a business address. From these two cases, it is perhaps questionable whether a sufficiently uniform standard of foreseeability is applied to defendants. It is possible that the bare facts of the Keogh case are coloured by the context in which the letter was written, namely, “a communication sent by the

defendants, at his own request to the plaintiff, to the address given by him, though in fact opened by an assistant of the plaintiff, of whose existence or duties it is not proved the defendants had any knowledge”.⁹⁴

Postcards

There is a legal presumption that the sending of a postcard is a publication.⁹⁵ Theoretically, this is justified because the law may assume in such a case that the sender should have anticipated the possibility of communication to a third party. However, the presumption has more to do with the practicalities of proof:

Swinfen Eady LJ re-affirmed the foreseeability principle in the Huth case:

Husband and Wife

A communication between spouses is not a publication. Although this was formerly rationalised on the basis of the marriage unit in law, it now appears to be based on an argument of practicality. In Wennhak v Morgan,⁹⁸ Manisty

J stated:

A situation distinct from this is where a third party makes a defamatory communication to one spouse concerning the other. In such a case there is publication. In Theaker v Richardson,⁹⁹ the defendant, who was a rival candidate to the plaintiff in an imminent election for a local district council, wrote a letter addressed to the plaintiff and delivered it to her home. The plaintiff's husband opened it, thinking it was an election address. The jury found that it was a natural and probable consequence of the defendant's delivery of the letter that someone other than the plaintiff would open it, and it was held on appeal that the jury findings should not be disturbed.

A number of comments as to this case may be made. First, it does not lay down the proposition that judicial notice is taken of the fact that spouses read each other's letters. It confirms that the question of publication depends on the state of the defendant's knowledge, proved or inferred, as to the conditions likely to prevail at the destination of the letter. Commonsense, however, dictates that while the normal foreseeability test is applied, the reading of a letter by a spouse is an act which a jury will usually find to be capable of being anticipated by the defendant. Secondly, the case confirms that the communication of defamatory matter by a third party to a spouse does constitute publication.

There is no decision of which we are aware as to whether this principle extends to unmarried persons who are cohabiting or to those whose marriages outside the State are not recognised in this jurisdiction.

Innocent Dissemination and Distributors

33.

Each time a person becomes aware of a defamatory statement there is an actionable publication. Technically, therefore, a libel on a television show would be a publication to every person who saw the show. Every person who repeats a libel is liable for its publication.

34.

However, a distinction is drawn between those who take an active part in the publication and mere distributors. Prima facie the distributor is liable for publication. However, he may escape liability by showing:

The burden of proof is on the defendant-distributor to displace the prima facie presumption of publication.

The rule that a news vendor could escape liability on this basis was laid down in Emmens v Pottle,¹⁰⁰ and affirmed in Vizetelly v Mudie's Select Library.¹⁰¹ The principles in this area were clearly explained by Romer LJ:

The rule in Emmens v Pottle was recognised in three Irish cases concerning Easons and Son; FitzGibbon v Eason & Son,¹⁰³Ross v Eason & Son,¹⁰⁴McDermot v Eason & Son.¹⁰⁵

What sort of circumstances might alert a distributor to the fact that a newspaper might contain a libel? One answer is the nature of the material itself:

Another answer is the context of the publication. In McDermott v Eason & Son,¹⁰⁷ a previous action concerning comments relating to the same subject matter was brought against the defendant news vendors, but proceedings were discontinued. Subsequently a second writ was issued against Eason and another defendant, Smith. The defendant Eason moved that all further proceedings be stayed as the action was frivolous and vexatious. The Court made an order staying all further proceedings against Eason. The plaintiff then obtained an order that Smith be struck out and that the plaintiff be at liberty to proceed against Eason alone. Subsequently the writ with which the present case was concerned was issued claiming damages against Eason alone. Prior to the distribution of the material which was the subject matter of the present action, the newspaper proprietors sent handbills, posters and circulars to the defendants promising an article “of keen local interest” and of a “sensational character”. It was held that in view of these facts, the plaintiff was entitled to have a question left to the jury as to whether the defendants were guilty of negligence.

Another factor influencing the court as to whether the defendant was negligent as to the contents of the material distributed may be his system of checking the material. This was fatal to the defence in the Vizetelly case. The defendants were the proprietors of a library which circulated a book without knowing that it contained a libel on the plaintiff. One of the directors gave evidence that he and the co-director alone exercised supervision over the books and that the books were too numerous to be examined for libels. They did not employ readers because it was cheaper for them to run the risk of being sued for libel than to do so. It was held that the defendants had failed to discharge the prima facie presumption of publication.

The fact that a distributor is presumptively liable may lead him to refuse to distribute material. Thus, in Goldsmith v Sperrings,¹⁰⁸ the plaintiff, an international company chairman and director, considered himself to be the victim of a sustained campaign of libel in a fortnightly paper. In addition to bringing a civil action against the publishers, the editor and the main distributors, he issued 74 writs against 37 secondary wholesale and retail distributors. 16 of the distributors reached settlements with the plaintiff on terms that he discontinued the actions if they ceased to handle the paper.

It is to be noted that 17 of the distributors continued to handle the paper, having being given an indemnity by the publishers against any legal costs or damages that would be incurred, while the remaining distributors applied for an order that the actions be stayed or dismissed as an abuse of court process, in that the plaintiff's purpose was not to protect his reputation but to destroy the paper by cutting off its retail outlets. A majority of the Court of Appeal held that the action should not be stayed at the interlocutory stage unless there was strong evidence to support the allegation that the plaintiff's purpose was collateral; and, further, that the settlements did not constitute unlawful agreements so as to taint the actions being continued against the remaining distributors.

Thus a distributor may, on his own initiative, cease to handle a journal which he suspects may contain defamatory material or may cease to handle it as the result of negotiations with the plaintiff. Bridge LJ, for the majority, rejected the proposition that this was a serious threat to the freedom of the press:

Lord Denning MR, dissenting, considered that the view of the majority could lead to a dangerous form of self-censorship:

35.

The above defence which is open to distributors is not available to printers.

This leaves printers in an even more precarious position. They may succeed in extracting an indemnity from the publishers, but they are not protected by defamation law. This difficulty is exacerbated by modern technology: the printers may never even see the hard copy of material which comes on to screens from external sources and is simply tansferred to plates for publication.

Multiple Publication

36.

At present, a plaintiff may take different actions against different defendants for publishing the same statement. This follows from the proposition that each person who repeats a libel is liable for it.

Slander and Proof of Damage

37.

Unlike cases of libel where damage is presumed from the publication of the defamatory matter, the plaintiff in a slander action must prove actual damage in order to succeed. To this, there are four exceptions, i.e. cases in which the damage is presumed from the nature of the slander and there is no need for the plaintiff to prove special damage.

38.

The courts will not extend the categories of slander actionable per se.

this case as one in which a clear principal may be freely extended. Lord Herschell, in his judgment in Alexander v Jenkins,¹¹¹ remarked of this very point that

39.

The four categories of slander actionable per se are as follows:

40.

The first two categories have developed purely at common law. The third category is now provided for in section 19 of the Defamation Act 1961, amending the common law position. The fourth category was created by the Slander of Women Act 1891, and is re-enacted in section 16 of the Defamation Act 1961.

41.

Words Imputing the Commission of an Offence Punishable by Imprisonment: The offence imputed must carry with it the possibility of imprisonment. It does not include an offence punishable by fine, even where imprisonment may be imposed in default of paying such fine.

Examples of such offences include stealing,¹¹³ obtaining money by false pretences,¹¹⁴ perjury,¹¹⁵ and blackmail.¹¹⁶ In many of these cases, the fact that the slander was actionable per se is assumed rather than discussed, and the

case is then decided on grounds of privilege. For example, in Corcoran v W & R Jacob Ltd, an allegation of larceny was made to an employee of the defendants by another employee of the defendants, who was a commissionaire, in the course of his report on the plaintiff. The occasion was held to have been privileged and the Supreme Court set aside the jury finding of malice, so that the action for slander was dismissed.

42.

The imputation must be that the plaintiff actually committed the offence, and not merely that he is under suspicion of having done so.

43.

The rationale for rendering this category of slander actionable per se may be either, (a) the fact that it threatens the plaintiff's freedom or (b) the fact that he may be socially ostracised as a result.

In Gray v Jones¹¹¹ the basis of this category of slander was stated to be the fact that it would cause the person to be shunned or avoided, and not because it put him in danger of a criminal prosecution. Winfield & Jolowicz support this view:

McMahon and Binchy recognise that the rationale is not clear but submit that the policy promoted relates to the plaintiff's liberty.

44.

Statements Imputing Possession of a Contagious Disease: There is uncertainty as to what diseases are included in this category as no modern cases deal with this type of slander.

In the older cases, imputations of French Pox,¹¹⁹ leprosy¹²⁰ and venereal disease¹²¹ were held to be actionable per se. This category takes on more significance in the light of the spread of AIDS today.

45.

The basis for rendering this category of statements actionable per se may be either, (a) social ostracism through fear of infection, (b) reflection on the moral character of the plaintiff, or (c) imputation of personal uncleanliness.¹²²

In Crittal v Horner¹²³ where the slander consisted in an imputation of having French Pox, the slander was said to lie not in the “wicked means of getting”

the disease but in the “odiousness of the infection, as a leper”– in other words, rationale (a) rather than (b). Similarly, in Villers v Monsley, the rationale appears to have been the social ostracism of the plaintiff: “nobody will eat, drink, or have intercourse with the person who has the itch ...”¹²⁴

46.

Words Tending to Cause Injury in the Way of Office, Profession, Calling, Trade or Business: At common law, the plaintiff is required to satisfy the double burden of showing (a) that the words were spoken of him in the way of his office, profession, calling, trade or business, and (b) that the words were likely to injure him in that position.

This proved to be a difficult test to meet in practice, as the first limb was strictly interpreted. In McMullen v Mulhall & Farrell¹²⁵ the defendants said to the plaintiff's employer: “McMullen is not a member of any union, and you must dismiss him”. The employer had an understanding with the unions that he would not hire non-union men if union-men were available to work, and dismissed the plaintiff. In fact, the plaintiff was a union member. The Supreme Court held that the words were not defamatory because there was no evidence that “non-membership of a trade union imports any want of skill, incapacity or unfitness to exercise the calling of a painter”.¹²⁶ Kennedy CJ defined words touching a person in his trade as words which related to

In Ayre v Craven,¹²⁷ Lord Denman CJ noted that some of the cases in this context had produced “surprising” results, due to the limitation of the first limb of the double hurdle. Examples cited were that of a clergyman who failed to obtain redress for an imputation of adultery and a school mistress who failed despite a charge of prostitution. The words complained of did not technically refer to the plaintiffs in their respective callings.

The case of Bennett v Quane,¹²⁸ is an illustration of a plaintiff succeeding under the common law rule. The defendant, referring to the plaintiff's solicitor, said: “He brought an action in the Circuit Court instead of the District Court to get more costs for himself”. It was held that these words had a natural tendency to injure the plaintiff's reputation as a solicitor. Again in Curneen v Sweeney,¹²⁹ it was accepted that an imputation of dishonesty

touched the solicitor plaintiff in the way of his profession.

47.

The common law position is now altered by section 19 of the Defamation Act, 1961, which requires that the plaintiff prove only the second part of the double hurdle, i.e. that the words tend to disparage him in his calling, trade, or profession.

Thus, although an accusation of prostitution made against a schoolteacher would not refer to her in her occupation as a schoolteacher, they would certainly tend to disparage or injure her in that occupation.

48.

Offices of Profit and Offices of Honour: As regards the third category of slanders actionable per se, the common law drew a further distinction between offices of profit and offices of honour. An office of profit is one which carries with it a salary or other emolument, the loss of which necessarily entails pecuniary damage. An office of honour is one to which no salary is attached. The common law rule was that an imputation of misconduct, but not unfitness, was actionable per se, if spoken about the holder of an office of honour. However, imputations of both misconduct and unfitness were actionable per se, if spoken about the holder of an office for profit.

McDonald suggests that a stricter test may have been applied in Ireland, namely, that an honorary office-holder was required to show likelihood of temporal loss before the words were actionable per se.¹³⁰ This would not cover the likelihood of removal from office.

In any event, it is unclear whether the distinction between the two types of office has survived the Defamation Act, 1961. McMahon & Binchy state:

Gatley also states that the distinction appears to have survived the equivalent English provision, section 2 of the Defamation Act, 1952;¹³² whereas Winfield and Jolowicz observe that section 2 of the English Act appears wide enough to put an end to the distinction.¹³³

49.

Words Imputing Unchastity or Adultery to a Girl or Woman: This category of slander actionable per se was introduced by the Slander of Women Act, 1891 and finds current expression in section 16 of the Defamation Act, 1961.

Notably this category applies to females only. The Judge must decide whether the act in question is “unchaste”¹³⁴ or constitutes adultery.¹³⁵

An interesting issue arises in relation to an imputation of rape. In Youssoupoff v MGM,¹³⁶ it was held that an imputation of rape was defamatory of the plaintiff, but the case concerned a libel by film, not a slander. Walsh J in Quigley v Creation Ltd,¹³⁷ agreed that an allegation of rape would be defamatory, saying that although society should not think less of a woman because she has been raped, regrettably this is the reality and the estimation of the plaintiff would be lowered. It seems likely that an allegation of rape would be regarded as an imputation of unchastity so as to make such a slander actionable.

The rationale for making this category of statements actionable per se is set out by Asquith J in Kerr v Kennedy.¹³⁸ Having stated that damages are presumed with regard to certain slanders because either pecuniary loss is almost certain, or the statement is intrinsically outrageous,¹³⁹ he continued –

It is unlikely that the justification advanced in these cases for treating an allegation of rape as defamatory would command much support to-day. If the provisional recommendation made at a later stage in this paper were adopted, i.e. to abolish the distinction between libel and slander, the point would to that extent become academic. However, it would remain of possible relevance in the general law of defamation.

50.

With regard to slanders falling outside the four categories, special damage must be proved by the plaintiff.

51.

The term “special damage” signifies that no damages are recoverable merely for loss of reputation, despite this being the basis of the tort. Winfield and Jolowicz define special damage as “loss of money or of some temporal

or material damage estimable in money”.¹⁴⁰

McDonald describes special damage as “peculiarly and narrowly” defined.¹⁴¹ The loss of the material benefits of hospitality is special damage, whereas the loss of mere society is not.¹⁴² The loss of a tangible business advantage is special damage, whereas the loss of general business reputation is not.¹⁴³ The loss of the material needs of a member of a religious community who is expelled as a result of the slander is special damage.¹⁴⁴ The loss of a client¹⁴⁵ or the loss of customers is special damage.¹⁴⁶

52.

The special damage must be the natural and probable consequence of the slander.¹⁴⁷

Thus there is no special damage where the damage complained of by the plaintiff is not deemed to be the natural consequence of the slander, although it was in fact the result of the slander.

CHAPTER 2: DEFENCES

Defences Generally

53.

The following are the defences possible in an action for defamation:

Defences (1) – (3) are dealt with above under Publication and Identification.

Defences (9) – (13) apply to torts generally. Defence (14) is dealt with above under Distinction between Libel and Slander. The main common law defences peculiar to the tort of defamation are, accordingly, Justification, Fair Comment, Absolute Privilege and Qualified Privilege.

In addition to these common law defences there is a statutory defence of Unintentional Defamation. Before proceeding to consider in detail the defences of justification, fair comment, privilege and unintentional defamation, it is worth noting the figures offered by the Boyle-McGonagle Report (commissioned by the National Newspapers of Ireland) as to the use of the individual defences by national newspapers, who represent 55% of defendants in libel actions in the High Court. According to the High Court records in the period 1980–1985, justification was pleaded in only 5% of cases. Fair comment was pleaded in a healthier 41% of cases, and privilege in 12%. Most interestingly, the offer of amends in section 21 of the Defamation Act was not availed of at all. The most common form of defence, in 78% of cases, was denial of some form i.e. denial of defamatory meaning, denial of reference to the plaintiff or denial of damage.²

JUSTIFICATION

54.

The defence of justification is that the words complained of were true

in substance and in fact.

55.

Truth alone constitutes the defence of justification. There is no requirement that the defendant show that the statement was made for public benefit.

This is a major point of difference between the civil action in defamation and the crime of libel. The defence of truth is available to the crime of libel only where the public benefit is additionally involved.

Some jurisdictions require the test of public benefit to be met in civil defamation cases also. Whether such a requirement is additionally necessary depends on the state of the law on privacy. If a plaintiff can resort to principles of privacy to complain about true statements made about his private life, there is no need for defamation law to protect this interest. However if there is no separate protection of privacy, defamation law can be adjusted to protect plaintiffs from objectionable statements about their private lives, by requiring the defendant to show that not only was the statement true, but that it was within an acceptable area of comment, namely of public benefit or interest.⁴

A recent English case has held that although truth is a defence to a defamation action, the publication of a true statement may nonetheless be actionable on a different basis, namely if there is a conspiracy with the sole or dominant purpose of injuring the plaintiff.⁵ Publishers should therefore be wary of assuming that the publication of true material is sacrosanct. Although the publication of truth is indeed unimpeachable in terms of defamation law, it may be, for example, that a combined campaign by newspapers to smear a person's character, although the allegations are true, would be a conspiracy.

56.

Malice does not affect the defence of justification. If a statement is true, the intent of the defendant when making it is irrelevant.

As a general principle, defamation law is preoccupied with injury to the plaintiff, rather than with the intention of the defendant. Moreover, in this instance, the state of mind of the defendant is irrelevant because there exists no injury at law. Similarly a belief in the truth of a statement on the part of the defendant does not constitute the defence of justification. It is the factual truth of the words that goes to make up the defence.

57.

Presumption of Falsity: As stated at paragraph 10 above, the burden of proof is on the plaintiff to show that the words complained of are defamatory. However, once this is shown, the law presumes the statement to be false. The plaintiff does not have to prove the falsity of the statement; rather, the defendant who raises the defence must establish its truth.

Accordingly, where the defendant pleads a defence other than justification, the issue of truth does not technically arise. The case proceeds on the legal assumption that the statement is false and the defendant attempts to establish that he published the words on an occasion which is protected (privilege), or that the statement is of a type that is protected (fair comment). However, evidence of the falsity of the statement will usually emerge from the plaintiff's case.

The presumption of falsity is a separate issue from that of fault. The common law rule in relation to truth is that liability is strict, so that the plaintiff does not have to prove that the defendant was at fault in failing to realise the statement was true. If the statement is actually false, the state of mind of the defendant is irrelevant. The presumption of falsity is a separate point and tilts the balance even more in favour of the plaintiff. Not only does the plaintiff not have to show fault, he does not have to show falsity.

It is possible to separate the two issues so that, for example, the statement is presumed false but the plaintiff has to prove fault. This was the position in the United States in the period following New York Times v Sullivan⁶ and Gertz v Welch⁷ until 1986. However, the United States position has now been altered so that both rules are the converse of the common law rules. The plaintiff must show falsity, and must then show fault on the part of the defendant.⁸

58.

Where the plaintiff relies on a legal innuendo, the defence of justification must meet the innuendo and not merely plead to the natural meaning of the words. Where he relies on a “popular” innuendo, the defence must similarly plead to the constructions sought to be put on the words complained of by the plaintiff in his pleadings.

As stated at number 15 above, the verbal accuracy of the statement published

may not be sufficient to constitute justification if there is an innuendo involved. In Irish People's Assurance Society v City of Dublin Assurance Co Ltd,⁹ proof by the defendant that the extracts of the balance sheets reproduced were accurate was not sufficient to constitute justification, where the popular innuendo pleaded was that the parent company was insolvent and it was not safe for policy holders to insure with them. The defence must match the imputation and justify it. So here it would have been necessary for the defendants to prove that the plaintiff was in fact insolvent.

In Lewis v Daily Telegraph,¹⁰ two national newspapers published front page articles headed: “Inquiry on Firm by City Police”, and “Fraud Squad Probe Firm” respectively. It was stated in substance that the police were enquiring into the affairs of a company, of which the plaintiff was chairman. The defendants admitted that the words were defamatory in their ordinary and natural meaning, but pleaded justification i.e. that the police actually were investigating the company's affairs. The plaintiff relied also on an innuendo meaning, (pleaded as a legal innuendo, but held to be a popular innuendo) namely, that the plaintiff was guilty of fraud. However the House of Lords ruled that the words were incapable of bearing that meaning, and therefore the defendants were not required to justify the secondary meaning. If they had been capable of that meaning, the defendant would have had to show that the plaintiff had actually been guilty of fraud, since he would have to justify this secondary meaning.

59.

Inaccuracy of Detail: Even at common law it is sufficient if the defendant establishes the truth of the substance of the imputation in order to succeed in the defence of justification. The inaccuracy of minor details will not result in the failure of the defence, whereas material inaccuracy will. The cases often refer to extracting the “sting” of the statement. “Unless the discrepancy between the statement complained of and the matter justified is so great that a defence of justification ought to be struck out, the question of fact for the court is whether the defendant has substantially justified the libel”.¹¹

Referring to the defence of justification, Lord Shaw stated in Sutherland v Stopes that:

He illustrated this with the following example:

An example of such a case is Alexander v N E R'way.¹³ The defendants published at their stations a notice stating that the plaintiff had been convicted of riding in a train without a ticket and sentenced to a fine of £1 and the alternative of three weeks' imprisonment in default of payment. The fact that the term of imprisonment was two weeks did not prevent the defence of justification from succeeding, and it became a question for the jury whether the notice was substantially true.

PARTIAL JUSTIFICATION

60.

Where the defendant makes defamatory statements as to two or more independent matters, he must in general be prepared to prove the truth of each, in order to succeed in a defence of justification. However a defendant may justify a part of a defamatory statement as long as he does not attempt to argue that this is justification of the whole. It is only if the statements are severable that the defendant may achieve partial justification in this way.

A plea of full justification was amended to one of partial justification in Goody v Odhams Press Ltd.¹⁶ Against the background of the Great Train Robbery, the plaintiff was sentenced to thirty years imprisonment for robbery, conspiring to stop the mail and being armed with an offensive weapon. One

year later, a newspaper published an article headed, “A suburban housewife reveals how she was caught up in the great mail bag plot”, the article containing many references to the plaintiff. As the rule in Hollington v Hewthorn¹⁷ was then still being applied, to the effect that evidence of the plaintiff's conviction was inadmissible, the defendants amended their defence of full justification to one of partial justification. This consisted of the following:

61.

Order 22, Rule 1(3) Rules of the Superior Courts prohibits the payment into court of money in actions for libel and slander unless liability is admitted in the defence.¹⁸It is not clear that a partial admission of liability would be sufficient to allow payment into court.

62.

Distinguishable from partial justification of an imputation, is attempted justification by proof of a less serious form of imputation. A defendant may not justify a statement by proving that a less serious form of the wrong alleged was committed by the plaintiff.

In Morrow v McGaver,¹⁹ a plea of justification failed because the justification showed only acts of oppression and harshness on the part of the plaintiff, while the slander itself imputed commission of those acts for selfish and personal motives. In White v Tyrrell,²⁰ proof that the plaintiff's father was guilty of one breach of contract did not constitute justification where the libel imputed fraudulent dealings to him.

63.

If the statements are clearly severable, a plaintiff may choose the statements on which he wishes to bring his action. In such a case the defendant may not bring in uncontested parts of the publication before the court.

A case which illustrates the operation of this rule is Plato Films v Speidel.²¹ The plaintiff had been the Supreme Commander of the Axis Land Forces in Central Europe, and brought an action claiming that he had been libelled in a film in which he had been depicted as being privy to the murders of King Alexander of Yugoslavia and M. Barthou in 1934, and as having betrayed Field-Marshal Rommel in 1944. The appeal to the House of Lords concerned issues of pleading in preparation for a trial which had not yet occurred.

The defendants sought to rely on the fact that the plaintiff chose to sue on certain parts of the film, and not on others which were also defamatory of the plaintiff, as a ground for mitigating damages. However, this course of action was vigorously rejected –

However where the statements are not severable, the whole context may be examined. This is illustrated by S & K Holdings v Throgmorton Publicatioris,²⁴ where the Plato case was distinguished. The defendants published an article on auditing matters relating to the plaintiff in a financial newspaper. The plaintiff brought an action in libel in respect of the entire article with one omission. This was paragraph 7, which referred to the plaintiff's involvement in certain “accounting controversies”. The defendants' replies to a request for particulars included four pages relating to paragraph 7, and the issue arose as to whether this should be struck out. The Court of Appeal held that the paragraph in question was not clearly severable from the rest of the article, and the particulars objected to were admissible and should not be struck out. The case was treated as one in which severance was not possible –“unless the parts are clearly severable, I do not think it is open to the plaintiff to pick and choose. He must take the publication as it is, with all the defamatory statements about him.”²⁵ The Plato case was considered to be one in which the statements were “clearly severable into distinct parts as if they were different chapters”. This, however, was not a case in which severance was desirable:

A similar result was achieved in the recent case of Polly Peck (Holdings) plc v Trelford.²⁷ The defendants published two articles concerning the plaintiffs' business affairs in their newspaper. The plaintiffs brought an action in libel, basing their complaint on some but not all of the articles' content. The defendant pleaded justification and fair comment. The plaintiffs sought to strike out certain particulars of the defence on the ground that they were irrelevant or that they were an attempt to justify matters which had not been complained of. It was held that where the plaintiff chose to complain of a part of a publication, the defendant was entitled to look at the whole of the publication in order to establish context. However, where the publication contained distinct and severable statements, the plaintiff was entitled to select some for complaint and the defendant was not entitled to assert the truth of the others by way of justification. In each case, it would be a question of fact whether the statements were severable. If the defamatory allegation had a common sting, they would not be regarded as separate and distinct allegations.

64.

The common law position on partial justification outlined at no. 60 above is now altered by s22 of the Defamation Act 1961. Section 22 provides:

The section applies only where the words complained of contain severable and distinct defamatory imputations. If some are proved true, a full defence will be established, provided the imputations not proved true do not add material injury to the plaintiff's reputation. The result is that a defence of partial

justification will in certain circumstances provide a complete defence.²⁸

It seems that the section does not apply where the words complained of contain a single imputation. For example, if the defendant alleged the plaintiff was a murderer whereas the plaintiff had been convicted of manslaughter, the section would not apply and the common law rule prevents a defence of justification being established where the defendant succeeds only in showing that the plaintiff was guilty of a less serious form of offence.²⁹

JUSTIFICATION AND PREVIOUS CONVICTIONS

65.

It may be that the alleged libel consists of an accusation of legal wrongdoing, and the defendant wishes to justify by adducing evidence of a previous conviction of the plaintiff for the offence. The Irish position on this has yet to be stated.

At common law the rule in Hollington v Hewthorn³⁰ was that evidence of a prior criminal conviction was not admissible in subsequent civil proceedings where the same issue was raised for determination. The case was not a libel case, but concerned a civil action for damages in negligence arising out of a car collision, in which the plaintiff wished to admit evidence of a conviction of the defendant driver for careless driving. This was held to be inadmissible.

The impact of this rule on libel actions was that a defendant could not rely on a previous conviction to justify a statement such as, “X committed the murder”, or “X was guilty of the offence”. This is illustrated by Goody v Odhams Press.³¹ The most that defendant could do was to plead partial justification, i.e. that the words were true insofar as the plaintiff had received a prison sentence, or his appeal was disposed of.

The rule in Hollington v Hewthorn attracted criticism from the time of its adoption. In the Goody case Salmon LJ referred to it as a “strange rule” and hoped that it would be reconsidered;³² and Lord Denning MR expressed the view that it was wrong. The latter Judge reiterated this view and Diplock LJ spoke of the rule as “ripe for re-examination” in Barclays Bank v Cole,³³ a case of curious facts. Here the defendant had received a fifteen year prison sentence for robbery of a bank, and his appeal was rejected. The bank sued to recover the money lost, alleging in its statement of claim that the defendant had wrongfully entered their branch and stolen their property, but were faced with the inadmissibility as evidence of the previous conviction.

In 1968, the English Civil Evidence Act was enacted, section 13 of which provides that in an action for libel or slander, in which the question whether a person committed a criminal offence is relevant, proof that he stands convicted of the offence is “conclusive evidence” that he committed it.³⁴

The New Zealand courts similarly admit evidence of a conviction in this context, although it is not deemed “conclusive evidence” that the offence was committed, as in England. The test laid down in Jorgensen v News Media is that the previous conviction is “some evidence” of the plaintiff's guilt.³⁵

66.

It seems unlikely that an Irish court would choose to apply the rule in Hollington v Hewthorn.

This statement is not based merely on the fact that English legislation has altered the rule in that jurisdiction, and that the New Zealand courts have declined to apply the rule. Common sense would seem to require that the previous conviction be given weight in a libel action. There may already be a basis in law for putting an end to plaintiffs action since the decision in Kelly v Ireland.³⁶ In that case O'Hanlon J identified evidential estoppel and abuse of process as doctrines by which a person might be prevented from having issues retried which were determined in earlier proceedings.³⁷

An English House of Lords case also supports the view that where a final decision has been made by a criminal court, it is a general rule of public policy that the use of the civil action to initiate a collateral attack on that decision is an abuse of court process. Therefore it may be that if a plaintiff wishes to bring an action in defamation in respect of matter which was already the subject of criminal proceedings, it will be considered an abuse of court process. This presumably depends on whether, on the facts, it is considered a collateral attack on the previous decision.³⁸

If the courts are reluctant to retry issues determined in previous criminal

cases, they may admit evidence of previous convictions in order to avoid this.

REPETITION AND JUSTIFICATION

67.

It is not a defence for the publisher of the statement complained of to claim that he was merely repeating what someone else had said. He must prove that the statement is true.

In Cleary v Lenihan, following an election for the mayoralty in which the plaintiff was successfully re-elected, the defendant published in a newspaper a statement that the unsuccessful candidate was about to lodge a petition in the court against the election on the ground that intimidation and undue influence was employed by the plaintiff and that the latter had plied a large number of voters with drink prior to the voting. In an action for libel in respect of these allegations, the defendant pleaded that the unsuccessful candidate caused a petition to be prepared containing the allegations set out and that it was the intention of the defeated candidate to lodge the petition in court. The plaintiff demurred to the defence on the ground that the defendant circulated matter which was contained in the petition but which was never presented and that since the defendant did not purport to prove true what was allegedly contained in the petition, the defence of justification failed. The question was therefore whether the defendant had to justify all the allegations or whether he could point to the fact that a petition containing the allegations had been prepared by another, in other words, make out a defence on the basis of repetition. It was held that the defence failed.³⁹

JUSTIFICATION AND AGGRAVATED DAMAGES

68.

Where the defendant attempts to plead justification and fails, the jury may award aggravated damages. This follows from the fact that the jury are entitled to look at the conduct of the defendant from the time of publication down to the time a verdict is given.

The rule stated by Gatley⁴¹ was described as “well settled” by Lord Denning MR in Associated Leisure Ltd v Associated Newspapers Ltd.⁴²–

69.

The original rationale for the aggravated damage rule in cases of unsuccessful pleas of justification was that the maintenance of the defence could be evidence of malice. However, persistence in a plea of justification may point more to the honesty and sincerity of the publisher, than to his malice.

As Sellers LJ stated in Broadway Approvals Ltd v Odhams Press, (No.2):

Another aspect of the rule was adverted to by Davies LJ in the Broadway Approvals case. If a failed plea of justification were held automatically to indicate malice, a defendant could never raise fair comment as a defence as well, because malice destroys the defence of fair comment –

70.

More recently the basis for the justification/aggravated damage rule has been identified as the increased circulation given to defamatory statements by the trial and media reports.

This rationale is supported by the comments of Lord Diplock in Cassell v Broome:⁴⁴

In Kennedy v Hearne,⁴⁵ the defendants not only persisted in a plea of justification but also attempted to establish that the defendant already had a bad reputation, the latter being a factor which may mitigate damages.⁴⁶ The fact that the defendant's statements achieved greater circulation through the trial was clearly a factor influencing the Supreme Court in increasing the amount of aggravated damages:

The proportion of aggravated damages in relation to the total award in that case illustrates how the aggravated damage rule is a real disincentive to pleading justification; of the £10,500 damages award, £10,000 consisted of aggravated damages.

71.

The aggravated damage rule is not absolute. Aggravated damages may or may not be awarded in the case of a failed plea of justification. However, judicial statements are not specific as to when the full rigour of the rule should be invoked.

In the Kennedy case⁴⁸ the defendants accepted that aggravated damages were appropriate, but attempted to put forward a distinction between defendants on the basis of their fault. They argued that defendants who recklessly and without basis made an accusation which attracted aggravated damages should attract a higher level of aggravated damages than a person who made such an accusation with more basis to it. Finlay CJ refused to accept this submission.

THE DEFENCE OF FAIR COMMENT

72.

The defence of fair comment is available to defendants who make defamatory statements which consist of fair comments on matters of public interest.

In such cases, the criticism is often not a personal attack, but reflects on the subject's published work –

73.

Several elements are combined to make up the defence –

The burden of proof is on the defendant to establish these matters.

74.

Notwithstanding the presence of all these elements, the defence will fail if malice on the part of the defendant is shown. The burden is on the plaintiff to establish malice in order to defeat the defence. Thus it is said that malice destroys the defence of fair comment.

The question of malice and the issue of fairness of comment are separate. The question of malice arises only where the ingredients of the defence have been established, including fairness of comment. “Fairness” and “malice” are therefore sequential issues in the defence, and are not merged into a single test. The test of fairness is objective, i.e. “Is the comment one that an honest, albeit prejudiced, person might make in the circumstances?”⁵¹ The test of malice is subjective –“whether the publisher himself was actuated by malice”.⁵² As Dickson J said in the Cherneskey case:

75.

The defence of fair comment is not applicable in the case of an assertion of pure fact. However, the truth of the supporting facts is an essential element of the defence. This makes the defence more difficult to rely on than qualified privilege, where malice alone defeats the defence. The defence of fair comment originated out of the refusal of judges in the nineteenth century to extend qualified privilege to public comment, and offers a lesser protection to those who make comments on matters of public interest.

76.

Difficulties arise in relation to distinguishing comment from fact, and the court draws guidance from the circumstances and context of the statement. Just as a statement may be defamatory in one context, and non-defamatory in another, a statement may constitute a comment in one and a fact in another.

Some of the cases illustrate the difficulties of distinguishing between comment and fact. In Dakhyl v Labouchere,⁵⁴ the plaintiff was described in a newspaper article as “a quack of the rankest species”. Was this a statement of fact, the truth of which had to be established, or was it a comment? The House of Lords ordered a re-trial, holding that it was capable of being a comment.

In Campbell v Irish Press⁵⁵ the following statements about an exhibition of snooker were held by the trial judge to be statements of fact:

On appeal, Kingsmill-Moore J held that the first statement could be regarded as an expression of opinion, namely, that the exhibition was being badly run. As to the second statement, he felt that its first part could be a comment on the ability of the player, while the second part could be a comment resulting from the fact that the ball had deviated, namely, that the table was uneven.

The manner in which the defendant conducts his case may be one of the circumstances which the court takes into account in deciding whether a statement is a fact or a comment. In London Artists v Littler,⁵⁶ the defendant published a letter which suggested that the plaintiffs had taken part in what appeared to be a plot to force the end of the run of the play which the defendant was producing. The Court of Appeal held that the allegation of a

plot was an allegation of fact, which the defendant had failed to substantiate; alternatively, that the allegation of a plot was a comment without any basis of fact. One of the factors influencing the Court to the conclusion that the allegation was one of fact, was that the defendant had originally intended to plead justification, but withdrew this defence.⁵⁷

Duncan & Neill suggest the following as guidelines for distinguishing statements of fact from comment:

77.

The Rolled Up Plea: Due to the difficulty of distinguishing facts from comment, there arose the practice of pleading what is known as the rolled up plea. Now it appears to be better practice to set out in the particulars which statements are comments and which are facts, and to state which facts are relied on to support the comment.

The original rolled up plea consisted of the following formula:

The plea was developed to cater for comments the supporting facts of which were to be found elsewhere. The final part of the plea read:

For some time this gave rise to a confusion that the plea consisted of a rolled up plea of justification and fair comment. However, the House of Lords in Sutherland v Stopes⁵⁹ put an end to this confusion by holding that the rolled up plea is a defence of fair comment only.

Recently, in Cooney v Browne,⁶⁰ Hamilton J held that where the facts alleged to support the comment in the defence of fair comment are so numerous and unspecific that it would be unfair to expect the plaintiff to present his case without notice of their true range, the plaintiff is entitled to particulars of which of the words are alleged to be statements of fact, and of the facts relied on to support such factual statements. This judgment was affirmed by the Supreme Court.

A point which is sometimes overlooked is that the onus is on the defendant to prove the truth of the supporting facts. This parallels the onus of proof in relation to truth as it arises in relation to the defence of justification. The Boyle-McGonagle Report not only advocates a reversal of the presumption of falsity in the context of justification,⁶¹ but also in the context of fair comment.⁶²

The Boyle-McGonagle Report refers to Cooney v Browne as tilting the balance against the defendant. It is submitted that the effect of Cooney v Browne is merely to clarify pleading procedure. If the balance is tilted against the defendant, this is inherent in the defence of fair comment as it exists at common law.

We will consider later in this Paper whether the present presumption of falsity should be retained. However, at this point a question may be simply posed but not answered, namely whether it is a logical necessity that the same presumption should exist in relation to justification and the factual elements of fair comment.

PROOF OF THE SUPPORTING FACTS

78.

One of the elements of the defence of fair comment is that the comment must be based on facts which were either stated by the defendant or indicated by him so that the recipient may ascertain the matter on which the comment is based.

To say, for example, of AB that “he is unfit to hold public office since he has been convicted of embezzling” is clearly a comment based on stated facts. To say of AB that “he is unfit to hold public office, having regard to events in which he was involved in 1983” (where AB was convicted of embezzlement in

that year) is a comment based on facts indicated by the defendant rather than stated expressly. The important feature is that, before the defence can be availed of, the facts must be either so stated or indicated. In the example chosen, if the defendant contented himself with saying “AB is unfit for public office” that would be treated as a statement of fact and the defence of fair comment could not arise.

As Palles CB stated in 1879:

The same proposition was thus stated in the modern case of Kemsley v Foot⁶⁴ where Lord Porter stated:

If the defendant makes a statement and fails to identify facts on which it is based, it will be treated as a statement of fact which must be defended by justification or privilege:

79.

Where a defendant set out the facts on which his comment was based,

he was obliged at common law to prove all those facts to be true, however unimportant some of them might be. This was modified by s23 of the Defamation Act 1961 which provides that the defence of fair comment is not to fail because the truth of every allegation is not proved, if the expression of opinion is fair comment having regard to the facts which are proved.

80.

An unsuccessful attempt to show the truth of supporting facts may result in a jury award of aggravated damages.

This proposition was affirmed by Kingsmill-Moore J in Campbell v Irish Press,⁶⁸ in which he stated that where a defendant failed to show the truth of supporting facts, he “not only automatically failed in making good his plea of fair comment, but would leave it open to a jury, if they should think fit, to mark their opinion of his conduct by an increase in damages”.

This is part of the wider principle that any unsuccessful attempt to prove the truth of a statement may result in an award of aggravated damages for the defendant, which was seen in relation to justification.

81.

Where the facts on which the comment is based are not stated by the defendant but are indicated by him to be elsewhere, the common law appears to have applied a less rigid rule in relation to proving the truth of each fact. It seems that the proof of only some, or even one, of the facts by the defendant would support the comment.

That a less rigid rule was applied to the latter situation is supported by Kemsley v Foot. Lord Porter stated as follows:

Lord Tucker stated:

82.

The common law rule that where the facts are stated by the defendant each fact must be proved true has been modified by section 23 of theDefamation Act 1961.

Section 23 provides:

There are three areas of doubt concerning the operation of this section. The first question raised is whether s23 modifies the common law rule relating to proof of (i) supporting facts contained within the material complained of only, or also (ii) supporting facts referred to in the material complained of but located elsewhere. The second question is whether s23 operates in a manner similar to s22 (justification), so that imputations have to be divided into major and minor facts. The third question is in relation to the standard of fairness envisaged by the section.

Question 1: Does s23 apply to facts stated in the defamatory material only, or does it also apply to facts located elsewhere?

The Irish s23 has its equivalent in the English Defamation Act 1952, which provision was based on a recommendation by the Porter Committee in 1948. The wording of the Porter Committee proposal is quite different from the legislative provision enacted and therefore references to that committee's intent are not a reliable guide to the meaning of s23 of our Act. The Porter

Committee proposal would have confined the new rule to statements of fact “contained in the alleged libel”. McDonald is of the view that s23 is restricted in a similar way. However, we are of the opinion that s23 is ambiguous, since it refers to “facts alleged or referred to in the words complained of, which would seem to indicate the wider interpretation. It may be wondered whether it makes any difference whether facts merely referred to in the words complained of come within the section, because the old common law rule was that proof of any fact sufficient to support the comment would enable the defendant to succeed. Therefore the section merely makes the position identical for both cases. This is our view. However, there are two interpretations of s23 in relation to Question 2 which follows. Under one of these, the effect of s23 would not be to make the two cases identical. This is the interpretation adopted by McDonald, which would make the s23 rule stricter than the common law rule on proof of facts located outside the words complained of. On this view, it would become necessary to know whether s23 applies to facts located outside the defamatory material as well as facts located within it.

Question 2: How does s23 operate? In particular, what kind of facts may remain unproved?

There appears to be a conflict of opinion regarding the effect of section 23. The first view is that the defendant need not prove the truth of every fact stated, provided the facts not proved to be true are unimportant as regards further injury to reputation. The second view is that the defendant need not prove the truth of every fact stated, provided the expression of opinion is fair comment with regard to such of the facts as are proved true. There is no difference involved between these views where the unproved facts are unimportant. However, a difference of result does arise where the unproved facts are important. On the first view the defence would not succeed in such a case; whereas on the second view it would succeed. This is illustrated by the following examples.

Example 1:

Suppose the defendant made the following two statements of facts –“X is a murderer and X stole a cream bun”– and followed them with the comment “X is despicable”. It would seem that if he proved that X was a murderer, and the jury found that the comment was fair in relation to this fact, the defence would succeed even though X had not stolen a cream bun. However, at common law the falsity of one of the facts would apparently have destroyed the defence.

Example 2:

Suppose the defendant makes two statements of fact –“X was convicted of drunken driving and X is guilty of manslaughter”–followed by the comment, “X is despicable”. The defendant proves that X was convicted of drunken

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driving but fails to prove the allegation of manslaughter. On the first view of section 23, the defendant would not be entitled to avail of the section, because the allegation of manslaughter is significant. On the second view, the defendant may succeed under s 23 if the jury are of the opinion that the expression of opinion was fair comment in relation to the offence of drunken driving. However, it can be argued that a careful reading of section 23 allows only for the second interpretation advocated. This appears to be supported by Duncan & Neill.⁷¹ Furthermore, it would make identical the rules governing proof of facts indicated in the words complained of and proof of facts contained in the words complained of. However, the first interpretation is adopted by McDonald. It is submitted that this view is erroneous and results from two sources: (a) an incorrect comparison between proof of facts under s 23 (fair comment) and proof of facts under s 22 (justification), and (b) the wording of the original Porter Committee proposal.

McDonald argues that s23 operates only if the facts are divisible into major and minor facts, and that it preserves the defence only if the major facts are proved true and the minor ones are not, as in Example 1. This weighing of the gravity of allegations is phrased by McDonald in a similar way to his interpretation of s22, dealing with justification, although that section is worded in a different way. Curiously, the McDonald interpretation of s23 matches the original proposal of the Porter Committee, which was worded as follows:

Although the Porter Committee proposal does indeed support the McDonald interpretation of s 23, it is submitted that a careful reading of the section will reveal that it does not give precise effect to the recommendation.

Question 3: What standard of fairness does s23 envisage?

The final question in relation to s 23 arises in connection with the use of the phrase “fair comment”. Does fairness in this context import the wide common law interpretation or does the section envisage a new statutory standard of fairness? If the latter solution is the correct one, the effect of the section is

to relax one common law rule while tightening another. However the section is silent on this point.

In conclusion, s 23 raises a number of questions: (1) in relation to its ambit, because of the doubts as to the location of the facts to which it applies, (2) because of the discrepancy between the Porter Committee recommendation and the wording of the section, and (3) because of the ambiguity of the word “fair” which has bedeviled this defence at common law. It requires a large measure of clarification.

However for the time being we accept the statement of Duncan & Neill as a correct analysis of the rules on proof of facts supporting a comment:

83.

There is one exception to the rule that the supporting facts must be true in order to succeed in the defence of fair comment. This arises where the facts pointed out are contained in a privileged document. This is known as the rule in Mangena v Wright from the case in which the proposition was laid down.

In Mangena v Wright,⁷⁴ Phillimore J defined the exception as applying to facts contained in a “privileged document”, giving as examples a vote in Parliament, and a Judge giving reasons for judgment.

84.

The extent of the application of the rule of Mangena v Wright is unclear.

In Bailey v Truth & Sportsman⁷⁵ Starke J referred to “findings of fact or conclusions of Parliament or of a Commission or other tribunal” as falling within the ambit of the rule. In Grech v Odhams Press,⁷⁶ Jenkins LJ thought that the rule also applied to statements made by witnesses in judicial proceedings, provided they were fairly and accurately reported by the defendant.⁷⁷

The most recent formulation of this rule is provided by Edmund Davies LJ in London Artists v Littler⁷⁸ in more general terms:

FAIRNESS OF COMMENT

85.

It is usually stated that to avail of the defence, the defendant must show that the comment was fair.

86.

A fair comment is not necessarily one which the judge or jury would make themselves, or would consider reasonable. The essential point in this context is that fairness is not equated with reasonableness. Thus extravagance of language or violence of criticism does not render the comment unfair, as long as it is still within the parameters of opinion. The test of fairness is an objective one.

A test of fairness was enunciated by Lord Esher MR in 1887:

This test was approved by the House of Lords in Stopes v Sutherland, where Lord Hewart CJ said⁸⁰:

The test of Lord Esher MR, adopted in Sutherland v Stopes, is ambiguous. One would expect a fair-minded man not to hold prejudiced or exaggerated views. Although the test clearly implies that the comment need not be reasonable, it is difficult to give the description “fair” a meaningful content. Halsbury recognises that a precise test is difficult to discern from the cases and states that the question is whether the comment is one that a man could honestly make on the facts proved.⁸¹ Thus fairness appears to be a misleading description, for a comment which might appear unfair to many will be considered “fair” in the specialised sense in which it is used in relation to the defence of fair comment. Duncan & Neill similarly state:

Other reform bodies have considered the term “fair” in this defence to be devoid of meaning and have recommended dropping the word from the title.⁸³

87.

Imputation of Base and Dishonourable Conduct or Motives: The law is uncertain as to the test to be applied where the comment contains allegations that the plaintiff has acted dishonestly or dishonourably or was inspired by base or sordid motives. The first view is that the defence of fair comment does not apply at all in this case and such allegations must be defended by justification. The second view is that the defence of fair comment does apply, but the defendant must show that the comment was reasonable. The third view is that the defence of fair comment applies and the ordinary test of fairness is used.

The singling out of this class of case occurred in Campbell v Spottiswoode⁸⁴ where Cockburn CJ stated that:

This ambiguous formulation led to the three interpretations set out above and detailed as follows:

Duncan & Neill suggest that in each case the statement should be examined in order to see whether it is an assertion of fact or an expression of opinion.⁹⁵

It is quite possible that in some contexts the imputation of base and dishonourable motives is an assertion of fact which requires justification, while in others it is more in the nature of a comment. Once the statement is capable of being defended as a comment, there does not appear to be any special reason for imposing a special test of reasonableness upon it.

There appears to be only one Irish case dealing with allegations of base and sordid motives. This is Black v Northern Whig,⁹⁶ where it was stated of the plaintiffs that they were “impelled by motives which they themselves emphasise unblushingly and propelled by anxious and apprehensive interests behind the scenes”. In the course of his judgment Brown J referred to Joynt v Cycle Trade Publishing Co and Hunt v Star Newspaper Co which, we have seen above, support the view that such allegations must be treated as allegations of fact and justified. Brown J stated “There is no evidence to support them as facts. If they are comment they are not warranted by any facts set out in the article”. Although Brown J did not expand on his understanding of what was required to “warrant” the comment, and he did not decide definitively whether the allegations were statements of fact or opinion, the case probably aligns itself with those other cases where the imputations of sordid motives was treated as a statement of fact.

MATTERS OF PUBLIC INTEREST

88.

The third element to be established by the defendant in the defence of fair comment is that the subject matter consists of a matter of public interest.

89.

Matters of public interest include a wide range of activities, including matters inherently of interest to the public and matters submitted to the public for their attention. Whether the material is a matter of public interest is for the judge to decide.

Gatley lists the following topics as matters of public interest:

90.

The defence of fair comment on a matter of public interest does not protect a defendant in making comments on the private lives of public persons, except where this appears to be relevant to their involvement in public affairs.

91.

Although 'matters of public interest' open to comment include the administration of justice, a defendant must be careful not to overstep the boundaries of contempt of court. This includes (1) statements which “scandalize” the court, i.e. undermine confidence in or impute improper motives to the judiciary, (2) statements which seriously misrepresent judicial proceedings, (3) statements which are likely to prejudice a fair and unbiased trial, where proceedings are pending. In this latter category, where a judgment is under appeal, the likelihood of discussion prejudicing its outcome is greatly reduced, because no jury is involved.

This latter point is illustrated by Cullen v Toibin and Magill Publications.⁹⁹ While the plaintiffs appeal to the Court of Criminal Appeal was pending, the defendants entered into a contract to publish the account of one Elizabeth Madden of her relationship with the plaintiff prior to and including the events which were the subject matter of the trial. The grounds of appeal related to the insufficiency of the uncorroborated evidence of an accomplice necessary to sustain a conviction for murder. The Supreme Court refused to grant an injunction to the plaintiff, holding that the publication of the article could not possibly prejudice the objective determination by the appellate court of pure issues of law:

92.

It is sometimes erroneously assumed that the issue of a writ in respect of a publication precludes further comment on the same matter. Plaintiffs have on occasion exploited this fear of defendants by issuing so-called “gagging writs”. However, the issue of a writ in itself does not put an end to further comment on the same subject-matter.

In Thomson v Times Newspapers Salmon LJ stated that:

“The law says – and says emphatically – that the issue of a writ is not to be used so as to be a muzzle to prevent discussion”.¹⁰²

Again in 1974, Lord Reid stated:

Thus in Irish Provident Association v Hastings,¹⁰⁴ where proceedings were instituted against a newspaper proprietor in respect of articles published in his newspaper, mere republication of matter along the same lines did not in itself constitute a contempt of court.

Furthermore, the issue of a writ with the objective of stifling further comment may constitute malicious prosecution, in respect of which damages may be recovered. Such an action exists where the proceedings have been commenced or maintained without reasonable or probable cause and maliciously i.e. out of some improper and wrongful motive, which includes the use of the legal process for some other than its legally appointed and appropriate purpose.¹⁰⁵

MALICE AND FAIR COMMENT

93.

A “fair” comment which is based on facts, and concerns a matter of public interest may nonetheless fall outside the defence of fair comment if it is shown that the defendant was actuated by malice.

We discuss the legal concept of 'malice' in greater detail at a later stage. At this point, it is sufficient to note that the term as used in the law of defamation is not confined in its application to spite or ill-will. Malice in law is a wrong or improper motive or feeling existing in the mind of the defendant at the time of publishing and actuating that publication. That 'malice' in this sense may defeat a defence of fair comment was established in Thomas v Bradbury Agnew and Company Limited¹⁰⁶ which concerned the publication of a review of a book, written by the plaintiff, in Punch. There was evidence of malice on the part of the defendant from the relations between the parties before the action, the special manner in which the article appeared in the magazine, the expression of the defendant, and his demeanour in the witness box. Collins MR stated:

Fairness and malice are separate enquiries. This is borne out by the language of Denning LJ in Adams v Sunday Pictorial Newspapers (1920) Ltd v Champion:

The concept of malice in relation to the defence of qualified privilege was examined thoroughly in Horrocks v Lowe.¹¹⁰ It has been suggested by Duncan and Neill that the criteria governing the malice element set out in that case apply equally to fair comment. Accordingly, the defence of fair comment will only be defeated if the plaintiff shows that the defendant had an improper

motive for publishing the words and that the improper motive was the sole or dominant motive. If the comment did not represent the honest opinion of the defendant this would constitute improper motive. Furthermore, even if the comment did represent the honest opinion of the defendant the plaintiff may still prove improper motive of another form e.g. spite, ill-will, or publication for personal gain.¹¹¹

It may also be that the publication by a defendant of the opinion of another, with which it does not agree, will be indicative of actual malice. This is discussed at no. 148 below.

ABSOLUTE PRIVILEGE

94.

Absolute privilege protects statements in situations in which the law considers that absolute freedom of communication is so essential that no action in defamation should be allowed, regardless of the truth of the statement or the motive of the speaker.

In such cases, the speaker is totally immune from liability, even if he published the words with full knowledge of their falsity and with the express intention of injuring the plaintiff. Malice is therefore irrelevant to the defence of absolute liability. A study of the defence focuses on the occasions on which such privilege is said to exist.

THE PRESIDENT

95.

Article 13.8(i) of the Constitution provides that

This immunity from liability would appear to be wide enough to encompass defamatory statements made by the President other than in his or her private capacity.

PARLIAMENTARY PROCEEDINGS

96.

Article 15.12 of the Constitution provides as follows:

Although it is not specified, it is probable that such privilege is absolute.

Three types of statement enjoy absolute privilege due to Article 15.12; utterances in either House, reports of such utterances, and official reports and publications. The word “utterances” would seem to exclude written statements as well as signs and gestures. Reports of utterances are privileged regardless of whether they are official or unofficial, or made by a media or non-media publisher.

97.

Utterances in parliamentary committees are privileged by virtue of the Committees of the Houses of the Oireachtas (Privilege and Procedure) Act 1976. A “committee” is defined as a committee appointed by either House of the Oireachtas or jointly by both Houses. Section 2 of the 1976 Act provides:

Again the nature of the privilege is not specified, but is probably absolute.

A doubt continues to exist whether the privilege attaches to witnesses summoned to give evidence before a committee.¹¹² McDonald submits that such witness statements are nonetheless absolutely privileged at common law.¹¹³ However, if the cases cited by the author, dealing with the proceedings of parliamentary committees, do not appear to have definitively settled the common law position with regard to utterances of members of the committee,¹¹⁴ it is hard to see how they are any more authoritive on the

statements of witnesses.

ADMINISTRATION OF JUSTICE

98.

At common law, the general principle is that anything said in the course of judicial proceedings is absolutely privileged.

This principle is usually stated in absolute terms. Gatley, for example, says:

Winfied & Jolowicz also state the immunity in absolute terms:

Halsbury also adopts a concise formulation:

McDonald, however, states that the general principle fragments, according to whether relevant or irrelevant statements are involved, and secondly, according to whether a judge, party, witness or advocate makes a statement.¹¹⁸

99.

Judicial Privilege; Surprisingly, there is no direct Constitutional provision dealing with judicial privilege. It may be implicit in Article 35.2, which provides that all judges shall be independent in the exercise of their judicial functions, subject only to the Constitution and the law. At common law, a Judge of Record is absolutely privileged for liability in respect of any

statement made by him in the performance of his office.¹¹⁹This does not apply in two situations: first, where the judge acts ministerially¹²⁰as opposed to judicially, and secondly, if the judge acts in excess of jurisdiction.¹²¹

The general principle was stated by Lord Mansfield as follows:

Its importance was reiterated in Ward v Freeman:

In Tughan v Craig, the judge sued in a defamation action had said of the plaintiff's solicitor in an earlier case:

Dodd J held that the action was not maintainable against the defendant judge. He stated:

In Macauley & Co Ltd v Wyse-Power,¹²⁵ Maguire J held that an action against a Circuit Court judge for slander was not maintainable, where the matter complained of was uttered in the course of his performance of judicial duties. It was better, he said, that an individual should suffer than that the Court of Justice be hindered by apprehensions on the part of judges that their words may become the subject of an action. He described the privilege as the privilege of the People:

The first exception to the judicial immunity rule is that the privilege does not attach to words spoken by a judge when acting ministerially. This was recognised implicitly in Ward v Freeman,¹²⁶ where the central issue was whether the act in question, the refusal of an appeal, constituted a judicial or a ministerial act. The essence of a ministerial act appears to be an absence of discretion. This will most frequently arise in the District Court where, for example, the District Justice is obliged to grant a particular licence if certain conditions are met and exercises no judicial discretion.

The second exception to the principle of judicial immunity is where the judge acts in excess of jurisdiction. In O'Keeffe v Cullen, Whiteside CJ recognised the privilege of judges:

However he added:

In the recent case of Sirros v Moore & Others,¹²⁹ the Court of Appeal held that although a judge will be liable for acts in excess of jurisdiction, he must additionally be aware that he was acting outside his jurisdiction. In the course of his judgment, Lord Denning MR stated:

Buckley LJ said:

100.

Parties and Witnesses: Parties and witnesses enjoy absolute liability in respect of defamatory statements made in the course of the administration of justice.

The privilege which attaches to witness statements is based on policy reasons:

101.

It is clear that this privilege protects statements properly and lawfully made in the due course of judicial proceedings; however a doubt exists as to whether irrelevance or malice defeats the privilege.

In Kennedy v Hilliard,¹³¹ it was held that no action lies against a party for a statement in an affidavit made by him as a witness, even if the statement was irrelevant and was expunged from the affidavit by an order of the competent court. This case was approved in McCabe v Joynt, where Palles CB stated:

The same judge quoted with approval the policy considerations outlined by Pigot CB in Kennedy v Hilliard for the view that false malicious witness statements are covered by the privilege:

Later, in explaining why both material and non-material matter in the affidavit should be protected, Pigot CB said that:

Despite this authority, McDonald¹³⁵ says that the position is not totally settled and argues that the authorities prior to Kennedy v Hilliard went both ways, but on the whole tended to the view that irrelevant statements were not protected. Furthermore, O'Dalaigh CJ in Re Haughey¹³⁶ expressed the view that an irrelevant statement loses the witness his privilege and he may be sued in defamation. Walsh and Budd JJ agreed with the judgment of O'Dalaigh CJ. However it is diluted by the fact that it was obiter dictum and stated without reference to authority.

In conclusion, the view that irrelevant or malicious statements made by a witness or party are within the privilege is supported by two decisions, one in 1859 and one in 1901. On the other hand, there are a number of older authorities tending to the opposite view and a recent Supreme Court obiter dictum supported by two other members of the court, stating that irrelevancy destroys the privilege.

102.

Advocates' Privilege: Advocates include barristers, solicitors, and parties appearing on their own behalf. Such persons have an absolute privilege in relation to relevant statements they make in the course of the administration of justice.

103.

It is unclear whether this privilege extends to irrelevant or malicious statements. The current Irish position appears to be that such statements are not privileged.

In the Irish 19th century case of The Queen v Kiernan,¹³⁷ Crampton J cited an earlier English case, Hodgson v Scarlett,¹³⁸ as laying down two propositions:

Another Irish case of the same period supports this view. In the Queen v Hutchins,¹³⁹ the defendant, conducting his own case at Quarter Sessions, made slanderous statements concerning the plaintiff at the conclusion of the case. Lefroy CJ made absolute a conditional order for leave to file a criminal information against the defendant, on the basis that the advocate's privilege is lost when the terms used are calculated to produce a breach of the peace:

Although the loss of the privilege was because the words tended to breach the peace and not because of irrelevancy, the case supports the view that the privilege may be lost if the words are not pertinent to the proceedings.

In conclusion it would appear that the Irish position is that all statements made by an advocate do not automatically enjoy privilege. The English position, however, has been altered since the decision in Munster v Lamb.¹⁴⁰ In this case, the Court of Appeal held that no action would lie against an advocate for defamatory words spoken in the course of judicial proceedings, even though they were uttered maliciously and with no object of supporting the client, and without justification, lawful excuse or personal ill will towards the plaintiff arising out of a previously existing cause, and the statements are irrelevant to every issue of fact before the tribunal. McDonald doubts the correctness of this decision.¹⁴¹ However Gatley¹⁴² notes that Munster v Lamb was cited with approval in Rondel v Worsley¹⁴³ and that the rule in Munster v Lamb has been held as binding on the New Zealand courts.¹⁴⁴

QUASI-JUDICIAL BODIES

104.

There is English authority in support of the view that the doctrine of absolute liability existing in respect of statements made in the course of proceedings before a Court of Justice equally applies to tribunals which

exercise judicial functions.¹⁴⁵

This would presumably apply to bodies exercising limited functions and powers of a judicial nature under Article 37 of our Constitution.

In Royal Aquarium v Parkinson, Lord Esher MR stated:

Similarly, in O'Connor v Waldron,¹⁴⁷ Lord Atkin stated:

The doctrine has been held to apply to the proceedings of a number of bodies in England; a Justice of the Peace,¹⁴⁹ a Commission issued by the bishop of a diocese,¹⁵⁰ the Disciplinary Committee constituted under the Solicitors Act,¹⁵¹ the Benchers of an Inn of Court¹⁵² and a local military tribunal.¹⁵³

It is a difficult task to draw a precise line between judicial and non-judicial functions. English case law provides guidance as to how to identify judicial functions for the purpose of applying the doctrine of absolute privilege. Irish case law provides guidelines identifying limited judicial functions for the purposes of Article 37.

Gatley¹⁵⁴ identifies a number of elements that go to make up an administration of justice:

In the Irish context, the doctrine that absolute liability protects statements made in the course of quasi-judicial proceedings would presumably apply to bodies exercising limited judicial functions under Article 37 of our Constitution. The exercise by a body of non-limited judicial powers would be an unconstitutional usurpation of the sphere of the courts. In this respect, the Irish case law on drawing the boundaries of “limited” judicial powers is relevant to ascertaining the bodies to which the doctrine of absolute privilege would apply.

In Re Solicitor's Act 1954,¹⁵⁵ the power to strike a solicitor off the roll exercised by the Disciplinary Committee of the Incorporated Law Society was held to be a sanction of such severity that its exercise amounted to an administration of justice which was not limited. In a later case, Re Solicitor's Act 1954 and D, a Solicitor,¹⁵⁶ it was held that the power to deny a solicitor of a practising certificate for a year was not so final a decision as to amount to an administration of justice. In Cowan v Attorney General,¹⁵⁷ a test based on a statement of the Supreme Court in the first Solicitor's Act case was formulated by Haugh J:

A body acting in such a way would not be exercising limited judicial functions. A similar test was adopted in McDonald v Bord na gCon, (No 2)¹⁵⁸ by Kenny J in the High Court.

A recent English case specifically examines the issue of determining whether a body is quasi-judicial for the purpose of absolute privilege. In Hasselblad (GB) Ltd v Orbinson,¹⁵⁹ the body in question was the European Commission. In the course of an investigation into alleged anti-competition practices by the plaintiff, the Commission received a letter from the defendant stating that the plaintiffs had refused to repair a camera purchased by him on the ground that although it was manufactured by the plaintiff's parent company, it had not been purchased from an authorised dealer. As required under its procedure, the Commission sent a copy of this letter to the plaintiff in order to afford an opportunity of reply. The plaintiff denied the allegations and threatened the defendant with defamation proceedings. When the defendant refused to apologise or retract, the plaintiff commenced defamation proceedings on the basis of the letter.

The Court of Appeal held that the letter was sufficiently connected with the process of giving evidence as to come within the privilege, if any, afforded to written or oral evidence given directly to or before the Commission. Accordingly, it was necessary to decide whether the Commission was a quasi-judicial tribunal to which the rule of absolute privilege applied. The court considered (a) the authority under which the Commission acted, (b) the nature of the question into which it was its duty to inquire, (c) the legal consequences of its decision, and (d) the procedure adopted by the Commission. It held that although the Commission's duties required it to investigate infringements of the anti-competition principles and to take appropriate measures to bring these to an end, and although its decisions were enforceable by the High Court, the procedure adopted by the Commission indicated that it acted in a manner dissimilar to a court of justice. In particular, the Court of Appeal noted the fact that its decisions were reached by Commissioners who had not attended the hearing on the basis of the advice of Member States who were not directly concerned. Accordingly, the Commission and its procedures were administrative rather than judicial or quasi-judicial in character, and evidence given to it did not attract absolute privilege.

However, although the Court of Appeal held that the letter given to the Commission did not attract absolute privilege, it refused to allow the letter to form the basis of defamation proceedings on a different ground. The public interest in having libellous allegations investigated and redressed by the law had to be balanced against the public interest in ensuring that the Commission would not be frustrated in its duties under the Treaty. On balance, the court held, the public interest in favour of assisting the

Commission in carrying out its duties required the court to refuse to allow the letter to be produced in a libel action.

This public interest argument leaves room for expansion. On this view, if a body and its functions are held to be administrative rather than judicial or quasi-judicial, the battle is not over. It may be that there is such a public interest in assisting the functions of the body in question that evidence given to it may not be used to ground defamation proceedings. The Ombudsman, for example, would probably not be a judicial or quasi-judicial entity. However, there is no doubt that to allow defamation proceedings to be brought on the basis of a complaint made to him would greatly hamper his functions and duties. It is surprising, however, that the Court of Appeal in the Hasselblad case did not hold the occasion to be one of qualified privilege. It might easily have been found that the defendant had an interest to make the statement and that the Commission had a duty to receive it. Complaints made to the proper authorities attract qualified privilege at common law, as is clear from Hynes-O'Sullivan v Driscoll.¹⁶⁰

COMMUNICATIONS BETWEEN SOLICITOR AND CLIENT

105.

It has been held that communications between solicitor and client are absolutely privileged.

This was held by the Court of Appeal in More v Weaver,¹⁶¹ although the correctness of the decision was doubted by Lord Atkin in Minter v Priest.¹⁶² It is clear, however, that they attract at least qualified privilege.

THE EXECUTIVE

106.

Statements made by certain public officials concerning matters of State in the course of their official duties are absolutely privileged at common law.

There is little Irish authority in this area and this statement represents the generally accepted position at common law as laid down in a number of

English, Australian and United States decisions.¹⁶³ While the cases support the view that it would extend to communications made by Government Ministers to each other or to their subordinate officials, it is not clear how far beyond these categories it extends. It is thought, however, that McDonald is correct in stating that the limitations recently recognised by Irish decisions¹⁶⁴ on claims of executive privilege in relation to the production of documents in civil or criminal proceedings do not affect the privilege now under consideration. At a later point in this paper, we consider the desirability of clarifying the extent of this absolute privilege.

QUALIFIED PRIVILEGE

107.

The law affords protection on certain occasions to a person acting in good faith and without improper motive who makes a statement which is untrue and defamatory.

108.

There are a number of occasions which attract qualified privilege: