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16-02-2007, 22:47   #1
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Are torts "illegal"?

Hi,

I was wondering about the technicalities of the term "illegal". Is it accurate to describe the comment "Hullaballoo is a Nazi" as illegal? Obviously one could sue for defamation, but is it "illegal"? By extension, can one say "it is illegal to falsely accuse someone of being a Nazi"? Does illegality include tortious behaviour?

Ibid
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16-02-2007, 22:52   #2
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it would have to be a detrimental statement to the persons character in the eyes of right minded members of society . If it was believeable that Hulla was a Nazi and you printed it in a paper and ran a story on it. Yeah he could sue

But then again freedom of association is a constatutional right so he can be a nazi if he wants.


"Hulla is a racist and marches against minorities" Thats a defamation case right there. (if he dosnt)
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16-02-2007, 22:55   #3
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Quote:
Originally Posted by Ibid
Are torts "illegal"?
Short answer: No.
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16-02-2007, 23:09   #4
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Originally Posted by Grimes
it would have to be a detrimental statement to the persons character in the eyes of right minded members of society
I know that, I used the Nazi reference in homage to Mike Godwin. I presume it would be considered defamatory in Irish courts. Actually, that could warrant another thread .

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Originally Posted by hullaballoo
Short answer: No.
Thanks.
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16-02-2007, 23:32   #5
dermot_sheehan
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Quote:
Originally Posted by Ibid
Hi,

I was wondering about the technicalities of the term "illegal". Is it accurate to describe the comment "Hullaballoo is a Nazi" as illegal? Obviously one could sue for defamation, but is it "illegal"? By extension, can one say "it is illegal to falsely accuse someone of being a Nazi"? Does illegality include tortious behaviour?

Ibid
Your asking more about english language usuage and what "illegal" means more then law. Torts are not illegal as in the sense criminal per se. Though the ingredients of many torts also happen to be the same as many criminal offences. There is a tort of assault and a tort of battery similary there's a criminal offence of battery that covers the two. Similarly there is the (extremely rarely prosecuted) criminal offence of criminal libel just as there is the tort of libel.

R v. Parnell holds that it is a criminal conspiracy for more then one person to agree to commit a tort (in this case a boycott). This case is much criticised and I can't think of any modern example where someone has been held criminally liable for conspiring to commit a tort.
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21-02-2007, 12:53   #6
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illegal: prohibited by law or by official or accepted rules;

So from an English language point of view, any tort [at the very least any tort that is prohibited by statute] is illegal.

If the question you are asking is whether they are criminal, then no - they are civil offences
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21-02-2007, 23:14   #7
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Some further comments:

Tort - Comes from the French word for a 'wrong' and is generally based upon either common law (cases) or statute (legislative intervention).

Proving a Tort - torts are proven on 'the balance of probabilities' generally understood to be scientifically above 51% certainty of a wrong being committed.

Torts are known as being firmly in the civil discipline of laws or the law.

Common torts (Ireland): Negligence, Passing off, Detinue, Defamation, Public or Private Nuisance, Control of Animals, Property Access, trespass etc. Euro Torts are now becoming more popular, examples: Breaches of rights to privacy, freedom of movement, institutional negligence etc.

Almost all torts are subject to the Statute of Limitations 1957, tied to a 7 year action period. PIAB has a reduced timescale to 2 years in some cases etc. Date of discovery will operate in many cases depending on the facts at question.

So to align with the law and simplest answer to the 'illegality question' is, no. They are legally recognised and operate legally to as to provide legal/civil recourse to persons who are wronged.

Aspects of Constitutional, Equity and Administrative law all play major parts in this query.
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22-02-2007, 21:19   #8
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Originally Posted by padser
If the question you are asking is whether they are criminal, then no - they are civil offences
Just to clarify, no this is not my query. As gabhain7 rightly noted, this is as much a linguistic question as a legal one.

It was sparked by someone stating, on Feedback if I'm not mistaken, that "[when untrue] calling me a racist is illegal." When I asked to clarify, they referred to "libel laws."

I'm aware that tortious behaviour is in general not criminal and that tortious behaviour may also be criminal.
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23-02-2007, 00:19   #9
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Quote:
Originally Posted by padser
illegal: prohibited by law or by official or accepted rules;

So from an English language point of view, any tort [at the very least any tort that is prohibited by statute] is illegal.

If the question you are asking is whether they are criminal, then no - they are civil offences
I agree with Padser (and thereby disagree with some of the other opinions on this page). Illegal in the strictest sense means against the rules. One common example is in the game of chess: if you are in check (but not checkmate) and you make a move that doesn't take your king out of check, this is commonly called an "illegal" move.

However, since your question relates to whether or not it is correct to say, in a forensic atmosphere, that tortuous activity is illegal, I believe it is.

For the purposes of what can be defined as illegal, it does not matter whether you refer to criminal law, civil law, constitutional law or company law, nor does it matter whether you refer to statute law or common law. Any breach of any law can be termed illegal, although I do accept that the most common connotation of illegal is criminal.

Most people would term a breach of the criminal law as illegal - murder is illegal. As an example in tort, in false imprisonment cases it is often pleaded that the defendant falsely and illegally imprisoned the plaintiff (especially when one is suing An Garda Siochana). An inquiry under Art 40.1 of the constitution is an inquiry into the legality or illegality of the detention of a person (the illegality here being the breach of their constitutional rights without lawful authority), and in company law, if a company acts ultra vires, it can accurately be described as acting illegally.

However, for completeness I should say that the terms illegal and unlawful are often considered to have different meanings. While this is a point more of style than of substance, illegal is often used to suggest a proven breach of the law, unlawful to be an assertion of illegality or a synonym for without legal authority. These terms are often used in criminal law, i.e. unlawful use of a computer (S9 Theft and Fraud, 2001) or the former (although technically never valid) unlawful carnal knowledge under S1 of the 1935 Offences against the Person act. Similarly, S2 of the Non Fatal Offences Act, 1997, includes "without lawful excuse" in the definition of assault.

There are several torts which involve illegality; detinue (illegal possession of another’s property), trespass to land (entering or being on another’s land without lawful authority), and I think that most people would accept that where an act is both tortuous and criminal it could definitely be termed illegal.

Therefore, it depends on your own idiomatic preferences. It is perfectly correct to call tortuous activity illegal. In my own vernacular, defamation is (from strongest and most formal to weakest and most casual): illegal, unlawful, tortuous, wrong, against the rules...

People often say that something is not legal, but not exactly illegal either, and while this would suggest that there is a grey area in between legal and illegal, I think that this applies to what people consider to be wrong but at the same time does not violate any positive law. A defamatory statement breaches tort law, and therefore is illegal.
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