Is it defamatory to call someone gay?

Wolfe Tone

I was reading up today on defamation and came accross this case, Reynolds v Malocco, t/a Patrick [1999] 1 I.L.R.M. 289. where (I havent read it all, there was just a paragraph on it) an article was published which said the plaintiff was a "gay bachelor"

Is calling someone that really defamatory?

"Defamation is the wrongful publication of a false statement which tends to lower that person in the eyes of right thinking members of society or tends to hold them up to hatred, ridicule or contempt or cause them to be shunned by right thinking members of society"- Walsh J.

Is claiming someone is gay a defamatory statement these days? Im sure it depends on the circumstances, but claiming someone is gay will rarely result in them being held in contempt, hated, ridiculed etc, certainly not by right thinking members of society.

Would it be similar to Berry v Irish Times Ltd [1973] I.R. 368. (The defendant published something which implied the plaintiff was an informant) Where they decided that(viewed in an objective way) being accused of informing on "terrorists" could not be defamatory. Surely being accused of being a homosexual can't be defamatory then?

Hogzy

A defamatory statement must be false.

If one is a practicing homosexual and you call them gay then that is a true statement.
The term gay can also mean happy but if the statement was said to offend then it possibly could be defamatory if not true.

Inmyownworld

Hogzy wrote: »

A defamatory statement must be false.

I didn't think it had to be false, it COULD be true unless the person making it claims truth as a defence to the claim.

A defamatory statment must lower the persons reputation in the eyes of ordinary members of society.
-I think?

I think in that case they alleged they meant it in the context of "happy" but it wasn't believed.

Wolfe Tone

In the first case I spoke of the defendant said they meant gay as in "happy" Kelly J said you would have to "be a resident on the moon" to not know it meant homosexual.

Tom Young

The new test is in the 2009 Act. www.irishstatutebook.ie ... that really codifies what has emerged in the cases cited above.

murrayp4

I think the crux of the issue in Reynolds v Malocco was not that calling a person gay was defamatory per se. It was the implication that the person was living a lie by being dishonest about his sexuality (the applicant said he was heterosexual)

MagicSean

If calling someone gay was found to be defamation then the i think the courts would be declaring that being gay would lower your standing in some way. I cant see this happening.

alejandro1977

k_mac wrote: »

If calling someone gay was found to be defamation then the i think the courts would be declaring that being gay would lower your standing in some way. I cant see this happening.

Jason Donovan might disagree.

http://en.wikipedia.org/wiki/Jason_Donovan#1991.E2.80.931993:_Joseph_and_.22The_Face.22

I think the point is that if one considers oneself hetrosexual and denies being gay then one essentially being called a hypocrite or liar by the person making the gay assertion

FreudianSlippers

alejandro1977 wrote: »

Jason Donovan might disagree.

http://en.wikipedia.org/wiki/Jason_Donovan#1991.E2.80.931993:_Joseph_and_.22The_Face.22

I think the point is that if one considers oneself hetrosexual and denies being gay then one essentially being called a hypocrite or liar by the person making the gay assertion

It still all depends on whether that assumption that one was gay would lower a person in the eyes of right-thinking members of society. I'd have to argue that in this day and age, homosexuality would not effect a person's standing in society.

Arguable though in certain groups/classes, yes.

Wolfe Tone

FreudianSlippers wrote: »

It still all depends on whether that assumption that one was gay would lower a person in the eyes of right-thinking members of society. I'd have to argue that in this day and age, homosexuality would not effect a person's standing in society.

Arguable though in certain groups/classes, yes.

Thats what I was thinking myself.

alejandro1977

FreudianSlippers wrote: »

It still all depends on whether that assumption that one was gay would lower a person in the eyes of right-thinking members of society. I'd have to argue that in this day and age, homosexuality would not effect a person's standing in society.

Arguable though in certain groups/classes, yes.

Not necessarily, Individuals have a right to assert their own sexuality.

In that case to assert something to the contrary is to insinuate dishonesty.

In Jason Donovan's case the assertion was that he was in denial, i.e. a hypocrite and a liar. No evidence of homosexual activities was offered.

Gays used the right to privacy in their struggle for equal rights, it's ironic that this is now being turned around.

Reloc8

I think this is still the case on point in Ireland. Its a bit more nuanced towards the view that being called gay is defamatory per se, especially on the basis of the english case quoted below which was more or less approved of by Kelly J :-

Reynolds v Malocco (1999) 2 IR 203 (Kelly J)

"Throughout the article the plaintiff is referred to on a number of occasions as a " gay bachelor". He says that in its natural and ordinary meaning, the word gay is nowadays taken as meaning homosexual. He says that that is clearly defamatory of and concerning him and on this aspect of the matter it is to be noted that the defendants disavow any intention to plead justification. On the contrary they accept that the plaintiff is not homosexual but say that they never alleged that he was. In support of this contention they make a number of arguments which I will deal with in turn.

First, they say that the term " gay" is an adjective used to describe a person's demeanour as in "lively, cheerful, vivacious, light-hearted, fond of pleasure and gaiety".
Had this argument been made thirty years ago it would probably have succeeded. But it is an absurd proposition to put to the court in 1998.
Language is a living thing and words can change their meaning over the years. Sometimes the primary meaning of a word will undergo subtle or even profound changes. On other occasions the word may acquire a secondary meaning which it did not formerly have. The word " gay" falls into the second category. Over the last 30 years or so it has come to be synonymous with homosexuals and homosexual activity. One would have to be resident on the moon not to be aware of this. Not merely has it acquired this secondary meaning but it has in fact eclipsed the primary meaning so that nowadays one rarely hears the term used other than a denoting homosexuals or homosexual activity. I reject the defendants' contention that the word is confined to the meanings asserted by them which I have reproduced in parenthesis above.
The next contention is that the use of the word " gay", (as an adjective) qualifying the noun " bachelor", is a term in common use to refer to men who are happily unmarried. The defendants contend that when the term " gay bachelor" is used it never indicates that the person is a homosexual. Again it seems to me that this argument could be made with telling force had this case occurred in 1968 rather than 1998. It is true that
the term " gay bachelor" or " bachelor gay" may still be used with slightly more frequency than the word " gay" in its original meaning. Nonetheless it seems to me that nowadays the term has practically fallen out of use largely because of the secondary meaning of the word " gay".I therefore reject the contention made by the defendants that this term could not be defamatory.
The next contention made by the first defendant is to the effect that even if he is wrong in these contentions to allege of a person that he or she is " gay" is not harmful to reputation. The first defendant says "homosexuality is an accepted part of Irish life and the days are long gone when homosexuals were simply tolerated; they are now accepted and integrated into the fabric of Irish life like other minorities and this magazine fully endorses that reality".Counsel for the plaintiff says that this argument holds no water. He says that an allegation of being gay is an allegation of deviant sexual practice which many people in Irish society find repellent. He therefore argues that it is clearly defamatory."

And then later :

"...it does not appear to me to be sound to suggest that merely because an activity is no longer prohibited by the criminal law an allegation of engaging in such activity cannot be defamatory. The commission of adultery is not a criminal offence but nobody could seriously suggest that an allegation of adultery could not be defamatory. Similarly, to lie is not a criminal offence, but again can it be seriously suggested that to call a person a liar is not defamatory?
I reject the defendants' contentions in this regard."

That is having cited Reg v Bishop (1975) 1 QB 274 and the following passage in particular :

"Mr. Bate submitted that in these progressive (or permissive) days it was no longer an imputation on a man's character to say of him that he was a homosexual or that he practised homosexuality. Since 1967, when section 1 of the Sexual Offences Act 1967 became law, it was no longer an offence to commit a homosexual act with another man of full age in private. No reasonable person would now think the worse of a man who committed such acts; he might not wish to associate with him but he would not condemn him. We think that this argument goes too far and that the gap between what is declared by Parliament to be illegal and punishable and what the common man or woman still regards as immoral or wrong is not wide enough to support it. We respectfully agree with the opinion of Lord Reid in Reg. v. Knuller (Publishing, Printing and Promotions) Ltd. [1973] A.C. 435, 457 that 'there is a material difference between merely exempting certain conduct from criminal penalties and making it lawful in the full sense', and with him we read the Act of 1967 as saying that even though homosexual acts between consenting adults in private may be corrupting, if people choose to corrupt themselves in this way, that is their affair and the law will not interfere. If Mr. Price were to sue the defendant in respect of his allegation if repeated outside a court of law, we venture to think that a submission that the words were incapable of a defamatory meaning would be bound to fail and a jury would generally be likely to find them defamatory."

More modern jurisprudence would suggest that an assertion of homosexual conduct on the part of a person who denies same, if the assertion is false, is defamatory as it attacks their honesty/integrity as opposed to on the basis that to be referred to as homosexual is inherently a defamation.

edwinkane

alejandro1977 wrote: »

Gays used the right to privacy in their struggle for equal rights, it's ironic that this is now being turned around.

I don't understand your point. The right to privacy, which was initially sought, was the right for two consenting adults to have sex in private, without the threat of the constabulary breaking in and arresting them, and charging them with an illegal act.

In what way do you think that is now being "turned around" ?

There was an excellent article on this point in the Bar Review just before Christmas I think. Exactly on this point.

seamus

FreudianSlippers wrote: »

Arguable though in certain groups/classes, yes.

Is there any provision in such cases? I'm thinking, for example, of a male doctor in a small rural village. Being accused of being gay could ruin his practice as clients refuse to go to him.

So although the defamation may not technically lower his reputation it may still materially affect his business and livelihood.

seamus

seamus wrote: »

Is there any provision in such cases? I'm thinking, for example, of a male doctor in a small rural village. Being accused of being gay could ruin his practice as clients refuse to go to him.

So although the defamation may not technically lower his reputation it may still materially affect his business and livelihood.

That's malicious falsehood rather than defamation.

edwinkane

seamus wrote: »

Is there any provision in such cases? I'm thinking, for example, of a male doctor in a small rural village. Being accused of being gay could ruin his practice as clients refuse to go to him.

So although the defamation may not technically lower his reputation it may still materially affect his business and livelihood.

I don't think small rural villages have doctor anymore. most small villages couldn't support a doctor in 2011, and most have to travel to towns to attend a surgery.

But your point is none the less valid, and if someone can demonstrate loss as an effect of being incorrectly labelled "gay" then they might have grounds for recompense.

kdogkeith

Im studying Journalism and the test for defamation is if the statement lowers the person in the eyes of right thinking members of society.
Apparently calling someone gay doesnmt count as right thinking membners of society woulod think no less of them

edwinkane

kdogkeith wrote: »

Im studying Journalism and the test for defamation is if the statement lowers the person in the eyes of right thinking members of society.
Apparently calling someone gay doesnmt count as right thinking membners of society woulod think no less of them

In many ways what other may or may not think is not really relevant, it is if the individual suffers loss as a result which is more to the point.

old hippy

kdogkeith wrote: »

Im studying Journalism and the test for defamation is if the statement lowers the person in the eyes of right thinking members of society.
Apparently calling someone gay doesnmt count as right thinking membners of society woulod think no less of them

What are "right thinking members of society", exactly?

edwinkane

old hippy wrote: »

What are "right thinking members of society", exactly?

That depends on your viewpoint. I think what it means is the generally accepted view of the majority of society, as far as it can be discerned.

alejandro1977

edwinkane wrote: »

I don't understand your point. The right to privacy, which was initially sought, was the right for two consenting adults to have sex in private, without the threat of the constabulary breaking in and arresting them, and charging them with an illegal act.

In what way do you think that is now being "turned around" ?

Privacy may not be the right word, I'd be annoyed if someone went around telling everyone that I was gay when I'm not. I decide if I'm gay or not it's none of your business if I am. If you respected me you'd take my word for it (hypothetically speaking, not directed at Edwinkane)

The fact is that people are in the closet for a reason. Homosexuality is not completely accepted.

Answer this: why did Liam Neeson and his late wife get huge damages when it was claimed by newspapers that they were divorcing? (not malicious, she was spotted leaving a building that also happened to house a divorce lawyer) If you are so right on that you claim not to care if someone says you're gay that's fine. I bet You'd be annoyed if someone claimed you were getting divorced (obviously assuming you're happily married) even though it's not abhorrent to right thinking people.

edwinkane

alejandro1977 wrote: »

Privacy may not be the right word, I'd be annoyed if someone went around telling everyone that I was gay when I'm not. I decide if I'm gay or not it's none of your business if I am. If you respected me you'd take my word for it (hypothetically speaking, not directed at Edwinkane)

The fact is that people are in the closet for a reason. Homosexuality is not completely accepted.

Answer this: why did Liam Neeson and his late wife get huge damages when it was claimed by newspapers that they were divorcing? (not malicious, she was spotted leaving a building that also happened to house a divorce lawyer) If you are so right on that you claim not to care if someone says you're gay that's fine. I bet You'd be annoyed if someone claimed you were getting divorced (obviously assuming you're happily married) even though it's not abhorrent to right thinking people.

Of course, everyone has the right to privacy on one level. But if someone says you are gay, and you are, then while you may be upset about it, you have no legal redress.

alejandro1977

edwinkane wrote: »

Of course, everyone has the right to privacy on one level. But if someone says you are gay, and you are, then while you may be upset about it, you have no legal redress.

I thought this thread was about the case where someone is not gay. When I wrote "it's up to me to decide" I was speaking in the abstract and referring to the situation of a gossip/journalist refusing to accept my word.

I'm well aware that the truth cannot be defamatory.

Wolfe Tone

Deleted User wrote: »

There was an excellent article on this point in the Bar Review just before Christmas I think. Exactly on this point.

Last issue of 2010?

I will have to check the college library for it, thanks.

Wolfe Tone

Wolfe Tone wrote: »

Last issue of 2010?

I will have to check the college library for it, thanks.

November 2010 Edition page 106.

Pat J Barrett BL wrote the article. It's extremely well written in my opinion.

Wolfe Tone

Deleted User wrote: »

November 2010 Edition page 106.

Pat J Barrett BL wrote the article. It's extremely well written in my opinion.

Cheers, I will get my hands on that tomorrow, shame there doesnt seem to be online copies of it that I can access.

kdogkeith

edwinkane wrote: »

In many ways what other may or may not think is not really relevant, it is if the individual suffers loss as a result which is more to the point.

Fair enough, I supose its up to the courts to decide

kdogkeith

old hippy wrote: »

What are "right thinking members of society", exactly?

Well i couldnt give an exact definition but its people who are law abiding and non biased

FreudianSlippers

I think I have it somewhere on my desk. I can scan it in if I find it.

Wolfe Tone

FreudianSlippers wrote: »

I think I have it somewhere on my desk. I can scan it in if I find it.

Cheers mate that would be cool, stupid library didnt have it.

edwinkane

edwinkane wrote: »

In many ways what other may or may not think is not really relevant, it is if the individual suffers loss as a result which is more to the point.

No, it really isn't the point. Defamation requires other people (i.e right thinking members of society) to think less of you and no proof of special damage is necessary, even where the defamed party is a body corporate.

Malicious falsehood however requires you to suffer loss as a result of the statement.

Also, the truth can be defamatory but the fact it is the truth is still a defence to defamation. The words may be defamatory, that is lowering the person's standing in the eyes of right thinking members of society, notwithstanding that they are true. If you reveal a truth about a person that nobody knows and that reduces their standing that is defamatory per se although the truth of the words is also a consequent defence.

FreudianSlippers wrote: »

I think I have it somewhere on my desk. I can scan it in if I find it.

I definitely have it at home but am useless with a scanner (tech moron) so I'll leave Freud to sort you out.

FreudianSlippers

Deleted User wrote: »

I definitely have it at home but am useless with a scanner (tech moron) so I'll leave Freud to sort you out.

It was actually December 2010 I had on my desk, but I scanned it in the distillery library there a minute ago.

Enjoy!

FreudianSlippers

FreudianSlippers wrote: »

It was actually December 2010 I had on my desk, but I scanned it in the distillery library there a minute ago.

Enjoy!

looks like a page got left out. Sorry - not much interesting on that last page anyway :P

Wolfe Tone

FreudianSlippers wrote: »

looks like a page got left out. Sorry - not much interesting on that last page anyway :P

No problem mate, thanks very much for that

alejandro1977

if you are still interested in this

Among other changes are curbs on (rare) jury trials in libel cases. These are expensive and slow; if a plaintiff’s lawyer demands one, defendants can be intimidated. Some old barnacles will be removed from the legal system. It will no longer be slanderous to impute unchastity to a woman, or to say someone suffers from “venereal disease, leprosy or the plague”.

http://www.economist.com/node/18396275

FreudianSlippers

alejandro1977 wrote: »

if you are still interested in this



http://www.economist.com/node/18396275

I'm not sure how much weight English case law will hold in this jurisdiction now, following the Defamation Act. It is a rather draconian piece of legislation and distances us (IMO) from the English position.

Peregrinus

What is relevant is what community standards are, and not what we might think that they ought to be. It may be deplorable that there is any significant number of people who will think less of someone if they understand that he is gay, but I think that probably is still the case.

By the same token, it is still regarded as much more defamatory of a woman to accuse her of adultery or other sexual misconduct that it is of a man (in the sense that higher damages will be awarded to a woman so defamed than would be awarded to a man).

FreudianSlippers

Peregrinus wrote: »

What is relevant is what community standards are, and not what we might think that they ought to be. It may be deplorable that there is any significant number of people who will think less of someone if they understand that he is gay, but I think that probably is still the case.

By the same token, it is still regarded as much more defamatory of a woman to accuse her of adultery or other sexual misconduct that it is of a man (in the sense that higher damages will be awarded to a woman so defamed than would be awarded to a man).

Just playing devil's advocate, but in that light one could say that there is a much broader acceptance of homosexuality in England than there is in Ireland. So the "right-thinking member of society" would differ greatly between the jurisdictions.

Peregrinus

Peregrinus wrote: »

What is relevant is what community standards are, and not what we might think that they ought to be.

Neither of these is the case. What is relevant is what the particular arbiter of fact in a particular case believes community standards to be.

Peregrinus

Deleted User wrote: »

Neither of these is the case. What is relevant is what the particular arbiter of fact in a particular case believes community standards to be.

Which is why defamation cases are among the few civil actions which still go to a jury (if the plaintiff wishes). Jurors are thought to be more representative of community standards more accurately than judges.

(And, incidentally, "right-thinking" members of society doesn't mean members of society who are right-thinking in relationt to the question of, e.g., whether being gay is disgraceful or disreputable. It just means generally right-thinking members of society. So, although it may be deplorable that gays suffer from prejudice in Ireland, but if in fact gays do suffer from prejudice in Ireland then someone is injured - by being exposed to prejudice - if he is identified as gay. So if the identification is not true, then it is defamatory.)

FreudianSlippers

Peregrinus wrote: »

Which is why defamation cases are among the few civil actions which still go to a jury (if the plaintiff wishes). Jurors are thought to be more representative of community standards more accurately than judges.

(And, incidentally, "right-thinking" members of society doesn't mean members of society who are right-thinking in relationt to the question of, e.g., whether being gay is disgraceful or disreputable. It just means generally right-thinking members of society. So, although it may be deplorable that gays suffer from prejudice in Ireland, but if in fact gays do suffer from prejudice in Ireland then someone is injured - by being exposed to prejudice - if he is identified as gay. So if the identification is not true, then it is defamatory.)

I know that, but what I'm saying is that in circumstances in a country where that generally right-thinking member of society subscribes to certain morals and beliefs, means that it would be far more likely for a Judge to agree that calling someone gay is defamatory in Ireland than libellous/slanderous in England IMO.

I should add, that the point I'm making is simply that Reynolds v Malocco is good law and the current position of this jurisdiction until someone takes a case under the new legislation in this regard. I highly suggest reading the article I posted earlier. I'll try to get the last page scanned in today.

old hippy

FreudianSlippers wrote: »

Just playing devil's advocate, but in that light one could say that there is a much broader acceptance of homosexuality in England than there is in Ireland. So the "right-thinking member of society" would differ greatly between the jurisdictions.

To an extent but I've seen just as much prejudice over here too. There's plenty of places, in London anyways, where a gay couple can walk about holding hands unmolested but I've witnessed plenty of ugly scenes - en route to that bastion of tolerance; Amsterdam - that you suddenly wonder, what century are we in?

Can gay couples show affection in public back home? Outside of the pubs/clubs/social gatherings? I cannot remember...