Libel law scenario

needsomehelp14

Lets say that i suffer from a mental illness such as schizophrenia.

In my example my schizophrenia causes me to hear voices telling me to libel someone-that is i suffer from auditory hallucinations.

If i then libel someone online does that make me responsible for the libelous comments i make or am i too ill to know what i am doing? Am i innocent or guilty?

NoQuarter

Guilty with a possible defence of honest opinion I would say.

needsomehelp14

NoQuarter wrote: »

Guilty with a possible defence of honest opinion I would say.

What does honest opinion mean?

Does the verdict of not guilty by reason of insanity (http://www.citizensinformation.ie/en/health/mental_health/criminal_insanity_and_mental_health.html) apply here for libel cases?

ResearchWill

needsomehelp14 wrote: »

What does honest opinion mean?

Does the verdict of not guilty by reason of insanity (http://www.citizensinformation.ie/en/health/mental_health/criminal_insanity_and_mental_health.html) apply here for libel cases?

That only applies to criminal cases, section 35 of the 2009 Act abolished criminal libel 35.— The common law offences of defamatory libel, seditious libel and obscene libel are abolished.

Honest opinion is what it is a person honest opinion as set out in section 20.

20.— (1) It shall be a defence (to be known, and in this section referred to, as the “defence of honest opinion”) to a defamation action for the defendant to prove that, in the case of a statement consisting of an opinion, the opinion was honestly held.

(2) Subject to subsection (3), an opinion is honestly held, for the purposes of this section, if—

(a) at the time of the publication of the statement, the defendant believed in the truth of the opinion or, where the defendant is not the author of the opinion, believed that the author believed it to be true,

(b) (i) the opinion was based on allegations of fact—

(I) specified in the statement containing the opinion, or

(II) referred to in that statement, that were known, or might reasonably be expected to have been known, by the persons to whom the statement was published,

or

(ii) the opinion was based on allegations of fact to which—

(I) the defence of absolute privilege, or

(II) the defence of qualified privilege,

would apply if a defamation action were brought in respect of such allegations,

and

(c) the opinion related to a matter of public interest.

(3) (a) The defence of honest opinion shall fail, if the opinion concerned is based on allegations of fact to which subsection (2) (b) (i) applies, unless—

(i) the defendant proves the truth of those allegations, or

(ii) where the defendant does not prove the truth of all of those allegations, the opinion is honestly held having regard to the allegations of fact the truth of which are proved.

(b) The defence of honest opinion shall fail, if the opinion concerned is based on allegations of fact to which subsection (2) (b) (ii) applies, unless—

(i) the defendant proves the truth of those allegations, or

(ii) where the defendant does not prove the truth of those allegations—

(I) the opinion could not reasonably be understood as implying that those allegations were true, and

(II) at the time of the publication of the opinion, the defendant did not know or could not reasonably have been expected to know that those allegations were untrue.

(4) Where a defamatory statement consisting of an opinion is published jointly by a person (“ first-mentioned person ”) and another person (“ joint publisher ”), the first-mentioned person shall not fail in pleading the defence of honest opinion in a subsequent defamation action brought in respect of that statement by reason only of that opinion not being honestly held by the joint publisher, unless the first-mentioned person was at the time of publication vicariously liable for the acts or omissions, from which the cause of action in respect of that statement accrued, of the joint publisher.

BTW if this is not some legal exercise, the person really needs to seek legal advice.

chunkylover4

Defamation is strict liability so no it's not a defence, the test is would the publication of information lower the plaintiffs standing in the eyes of the reasonable person in the community, it's entirely context based.

needsomehelp14

Ok so being mentally ill is no defence for libel? What if the only reason someone wrote these comments was due only to the schizophrenia they suffered from.

Would the judge/jury take this illness into account?

ResearchWill

chunkylover4 wrote: »

Defamation is strict liability so no it's not a defence, the test is would the publication of information lower the plaintiffs standing in the eyes of the reasonable person in the community, it's entirely context based.

There are a number of defences to defamation.sections 15 to 27 of the 2009 Act deal with them.

15. Abolition of certain defences.


16. Truth.


17. Absolute privilege.


18. Qualified privilege.


19. Loss of defence of qualified privilege.


20. Honest opinion.


21. Distinguishing between allegations of fact and opinion.


22. Offer to make amends.


23. Effect of offer to make amends.


24. Apology.


25. Consent to publish.


26. Fair and reasonable publication on a matter of public interest.


27. Innocent publication.

So for example a member of the Dail can stand up and utter a total untruth about any person his wishes and as long as he is in the Dail he is covered by Absolute Privilage. I could go on and on but to say it is a strick liablity offence is simply not true.

ResearchWill

needsomehelp14 wrote: »

Ok so being mentally ill is no defence for libel? What if the only reason someone wrote these comments was due only to the schizophrenia they suffered from.

Would the judge/jury take this illness into account?

Do you mean a Judge and Jury in a High Court Defamation action for damages or do you Mean a Judge and Jury in a Circuit Court Criminal Indictment.

needsomehelp14

ResearchWill wrote: »

Do you mean a Judge and Jury in a High Court Defamation action for damages or do you Mean a Judge and Jury in a Circuit Court Criminal Indictment.

I meant judge and jury in a high court defamation action for damages. If the person who wrote the liblelous comments was actually ill from mental illness surely that would be a mitigating factor no?

ResearchWill

needsomehelp14 wrote: »

I meant judge and jury in a high court defamation action for damages. If the person who wrote the liblelous comments was actually ill from mental illness surely that would be a mitigating factor no?

I would assume so, if the person was able to prove by way of medical evidence that they had no liablity for their actions. But to be honest if a person knew that the Defendant had such a condition it would be difficult to take a case. The Defendant would be advised to seek legal advice about being made a ward of court or some such other action.

needsomehelp14

ResearchWill wrote: »

I would assume so, if the person was able to prove by way of medical evidence that they had no liablity for their actions. But to be honest if a person knew that the Defendant had such a condition it would be difficult to take a case. The Defendant would be advised to seek legal advice about being made a ward of court or some such other action.

By 'person' do you mean the plaintiff?

In this case lets say that the defendent is actually ill from schizophrenia and has the relevant documentation from doctors as evidence to prove of his/her illness. Would this remove liability from the defendant is this case?

ResearchWill

needsomehelp14 wrote: »

By 'person' do you mean the plaintiff?

In this case lets say that the defendent is actually ill from schizophrenia and has the relevant documentation from doctors as evidence to prove of his/her illness. Would this remove liability from the defendant is this case?

No it would be up to the Defendant to prove the mental illness. The Plaintiff may require there own expert to also examine the Defendant. In relation to the taking of an action yes if the Plaintiff or his legal advisors knew of the DDefendants condition, it may not be wiise to take any legal action.To be honest I can not answer you question with any degree of certainity. I have looked and have not found any cases on point but someone else may. Also the whole area of actions against persons suffering from mental illness is not an area I know anything about. So maybe someone else with more knowledge will reply.

needsomehelp14

ResearchWill wrote: »

No it would be up to the Defendant to prove the mental illness. The Plaintiff may require there own expert to also examine the Defendant. In relation to the taking of an action yes if the Plaintiff or his legal advisors knew of the DDefendants condition, it may not be wiise to take any legal action.To be honest I can not answer you question with any degree of certainity. I have looked and have not found any cases on point but someone else may. Also the whole area of actions against persons suffering from mental illness is not an area I know anything about. So maybe someone else with more knowledge will reply.

Why would it not be wise to take legal action-are the disabled protected under some laws i dont know about?

ResearchWill

needsomehelp14 wrote: »

Why would it not be wise to take legal action-are the disabled protected under some laws i dont know about?

The reason for any action expecialy in the high court is to get damages. Without knowing all the facts about the person i do not know their ability to pay, also I think any Jury may make a finding of liability but could also only award a tiny award because of the situation. Defamation actions are fraught with difficulty not to mind trying to bring home a case with such proplems as these. The reason I say may not be wise is the reality of legal action a person must look at all the issues not just the rights and wrongs but the reality of the person being able to pay everyone.

Now if the Plaintiff just wants to clear his or her good name then a decision of the High Court that he was defamed maybe all they want and they are willing to pay for that.

needsomehelp14

Found this old article from 1985 here http://www.lawreform.ie/_fileupload/Reports/rLiabilityMentallyDisabled.htm

Can someone more experienced in law please add comments to this thread.

golden virginia

needsomehelp14 wrote: »

Found this old article from 1985 here http://www.lawreform.ie/_fileupload/Reports/rLiabilityMentallyDisabled.htm

Can someone more experienced in law please add comments to this thread.

It looks to me that you were given considerable experienced comment to your query. I found the above comments very informative in my honest opinion.

NoQuarter

needsomehelp14 wrote: »

Found this old article from 1985 here http://www.lawreform.ie/_fileupload/Reports/rLiabilityMentallyDisabled.htm

Can someone more experienced in law please add comments to this thread.

Your article is about as much use as an ash tray on a motorbike.

You have been given good advice, nobody here can predict the outcome of a case like that as there are no precedents.

ResearchWill

needsomehelp14 wrote: »

Found this old article from 1985 here http://www.lawreform.ie/_fileupload/Reports/rLiabilityMentallyDisabled.htm

Can someone more experienced in law please add comments to this thread.

I have 8 years studying law 8 further years in practice. The report you linked said there is little or no law in this area, and to my knowledge there has been no reform since 1985. In my opinion because of the huge difficulty in legislating in this area.

If you can find anyone in practice who can give you a defo answer on your question fair play.

littlemac1980

Well if you were schizophrenic then one, or either, of you would still be responsible for the defamatory publication, and therefore all of you would be liable, in my opinion.

chunkylover4

ResearchWill wrote: »

There are a number of defences to defamation.sections 15 to 27 of the 2009 Act deal with them.

15. Abolition of certain defences.


16. Truth.


17. Absolute privilege.


18. Qualified privilege.


19. Loss of defence of qualified privilege.


20. Honest opinion.


21. Distinguishing between allegations of fact and opinion.


22. Offer to make amends.


23. Effect of offer to make amends.


24. Apology.


25. Consent to publish.


26. Fair and reasonable publication on a matter of public interest.


27. Innocent publication.

So for example a member of the Dail can stand up and utter a total untruth about any person his wishes and as long as he is in the Dail he is covered by Absolute Privilage. I could go on and on but to say it is a strick liablity offence is simply not true.

Just to clarify, the tort is one of strict liabilty. The fact that defences are available does not negate this fact. For example as I'm sure you're aware in product liability there are a number of defences such as using a product incorrectly yet the tort is still strict liability in this jurisdiction. The intention of the defendant is irrelavent, as is there perception of whether the material is defamatory or whether they attempted to identify the plaintiff. The elements of the tort are did a publication occur and was it defamatory?

golden virginia

chunkylover4 wrote: »

The elements of the tort are did a publication occur and was it defamatory?

Chunkylover 4 - its great that you have brought this up because I'm working on something that relates - what is a publication? For example if a teacher writes a discipline sheet for a student is this classed as publication? or letter to a parent about their child is this publication?

ResearchWill

golden virginia wrote: »

Chunkylover 4 - its great that you have brought this up because I'm working on something that relates - what is a publication? For example if a teacher writes a discipline sheet for a student is this classed as publication? or letter to a parent about their child is this publication?

Publication must be to a third party, so writing a note about a person to that person would not normally amount to publication.

In relation to a note to parents that may come under the defence of qualified privilege, unless you can show malice.

ResearchWill

chunkylover4 wrote: »

Just to clarify, the tort is one of strict liabilty. The fact that defences are available does not negate this fact. For example as I'm sure you're aware in product liability there are a number of defences such as using a product incorrectly yet the tort is still strict liability in this jurisdiction. The intention of the defendant is irrelavent, as is there perception of whether the material is defamatory or whether they attempted to identify the plaintiff. The elements of the tort are did a publication occur and was it defamatory?

chunkylover4 wrote: »

Defamation is strict liability so no it's not a defence, the test is would the publication of information lower the plaintiffs standing in the eyes of the reasonable person in the community, it's entirely context based.

As is clear from your earlier posting, it seemed to me clear that you stated that it was not a defence. Strict Liability in Tort is the idea that it is not necessary to show negligence for example where a farm animal has done damage. If the farmer did nothing wrong and in no way was negligent he will still be liable.

Your earlier post I understood to mean that there was no defence to defamation. If on the other hand you stated that Defamation requires neither negligence or deliberate action you are of course right. A person could act totally innocently and be guilty of defamation.

chunkylover4

Unlike the criminal law, tort law does not recognize insanity as an answer to liability. The fact that a defendant was insane at the time of his impugned conduct is essentially ignored by tort law's liability rules. There probably should be a defence but the courts in Ireland have been very slow to act regarding mental illness.
However in defamation as no fault is required on your behalf it cannot be a defence to then say you were not at fault for defaming the plaintiff whether due to insanity or whatever other reason, unless you fit into one of the categories that developed in common law and is now codified in the 2009 act.

FreudianSlippers

Would an untrue statement from a schizophrenic actually injure a person’s reputation in the eyes of reasonable members of society?

ResearchWill

FreudianSlippers wrote: »

Would an untrue statement from a schizophrenic actually injure a person’s reputation in the eyes of reasonable members of society?

Good point, in this case the OP was about an Internet posting, so would the reasonable person be aware.

chunkylover4

It's interesting, more facts would need to be available but on an internet forum it seems reasonable that the average person who viewed a post would not know if the person was mentally ill and if they did they may not automatically assume what they said is untrue. Of course there are a myriad of factors which could effect this. Has there been a case with similar facts?

needsomehelp14

Sorry for asking another question but i just want to know is there a time limit for someone to sue for libel-i seem to recall it was 6 years within the time of the publication-is this correct?

needsomehelp14

According to this http://www.irishstatutebook.ie/pdf/2009/en.act.2009.0031.pdf pt5 s37


38.—(1) Section 11 of the Act of 1957 is amended—
(a) in subsection (2), by the substitution of the following paragraph
for paragraph (c):
“(c) A defamation action within the meaning of the
Defamation Act 2009 shall not be brought after
the expiration of—
(i) one year, or
(ii) such longer period as the court may direct
not exceeding 2 years,
from the date on which the cause of action
accrued.”,


Does this mean someone has only to 2 years at most from publication of libelous material to sue for damages?

FreudianSlippers

It used to be 6 years for libel and 3 years for slander, now it is one and if a court finds that “the interests of justice require the extension of time and that the prejudice the Plaintiff would suffer would significantly outweigh the prejudice the Defendant would suffer if the time is extended” then it may be increased to 2 years.

Really should try to get the term "libel" out of your mind now though, since it no longer exists. It really only serves to confuse where the terms are used incorrectly.
You may think it's pedantic, but it isn't; specifically where you say libel we are aware that we are dealing with the 1961 Act. If you're asking a question post 1st January 2010 it's defamation.

needsomehelp14

FreudianSlippers wrote: »

It used to be 6 years for libel and 3 years for slander, now it is one and if a court finds that “the interests of justice require the extension of time and that the prejudice the Plaintiff would suffer would significantly outweigh the prejudice the Defendant would suffer if the time is extended” then it may be increased to 2 years.

Really should try to get the term "libel" out of your mind now though, since it no longer exists. It really only serves to confuse where the terms are used incorrectly.
You may think it's pedantic, but it isn't; specifically where you say libel we are aware that we are dealing with the 1961 Act. If you're asking a question post 1st January 2010 it's defamation.

So lets say that 2 years pass since the writing of defaming material online-after the 2 years are up the plaintiff cannot no longer sue for damages or make the defendent pay money as compensation. Is this correct?

FreudianSlippers

After 1 year, unless that person can show reason why time should be extended another year.

ResearchWill

needsomehelp14 wrote: »

Sorry for asking another question but i just want to know is there a time limit for someone to sue for libel-i seem to recall it was 6 years within the time of the publication-is this correct?

The 2009 Act has been linked to in this thread, most simple questions can be found there as it deals with most of the issues with defamation the relevant section is


Limitation of actions.

38.— (1) Section 11 of the Act of 1957 is amended—

(a) in subsection (2), by the substitution of the following paragraph for paragraph (c):

“(c) A defamation action within the meaning of the Defamation Act 2009 shall not be brought after the expiration of—

(i) one year, or

(ii) such longer period as the court may direct not exceeding 2 years,

from the date on which the cause of action accrued.”,

and

(b) the insertion of the following subsections:

“(3A) The court shall not give a direction under subsection (2)(c)(ii) (inserted by section 38 (1) (a) of the Defamation Act 2009) unless it is satisfied that—

(a) the interests of justice require the giving of the direction,

(b) the prejudice that the plaintiff would suffer if the direction were not given would significantly outweigh the prejudice that the defendant would suffer if the direction were given,

and the court shall, in deciding whether to give such a direction, have regard to the reason for the failure to bring the action within the period specified in subparagraph (i) of the said subsection (2)(c) and the extent to which any evidence relevant to the matter is by virtue of the delay no longer capable of being adduced.

(3B) For the purposes of bringing a defamation action within the meaning of the Defamation Act 2009, the date of accrual of the cause of action shall be the date upon which the defamatory statement is first published and, where the statement is published through the medium of the internet, the date on which it is first capable of being viewed or listened to through that medium.”.

(2) Section 49 of the Act of 1957 is amended by the substitution of the following subsection for subsection (3):

“(3) In the case of defamation actions within the meaning of the Defamation Act 2009, subsection (1) of this section shall have effect as if for the words ‘six years’ there were substituted the words ‘one year or such longer period as the court may direct not exceeding two years’.”.

Limitation periods are in the Statute of Limitations Act 1957 as amended, the website www.irishstatutebook.ie is very good and even has a section setting out all amendments.

ResearchWill

needsomehelp14 wrote: »

So lets say that 2 years pass since the writing of defaming material online-after the 2 years are up the plaintiff cannot no longer sue for damages or make the defendent pay money as compensation. Is this correct?

You can only sue upto one year after the event, if you try and sue after one year but less than 2 years you need to court to agree that


(a) the interests of justice require the giving of the direction,

(b) the prejudice that the plaintiff would suffer if the direction were not given would significantly outweigh the prejudice that the defendant would suffer if the direction were given,

and the court shall, in deciding whether to give such a direction, have regard to the reason for the failure to bring the action within the period specified in subparagraph (i) of the said subsection (2)(c) and the extent to which any evidence relevant to the matter is by virtue of the delay no longer capable of being adduced.

After 1 or 2 years the defendant then has the defense that the action is statute bared.

needsomehelp14

ResearchWill wrote: »

You can only sue upto one year after the event, if you try and sue after one year but less than 2 years you need to court to agree that


(a) the interests of justice require the giving of the direction,

(b) the prejudice that the plaintiff would suffer if the direction were not given would significantly outweigh the prejudice that the defendant would suffer if the direction were given,

and the court shall, in deciding whether to give such a direction, have regard to the reason for the failure to bring the action within the period specified in subparagraph (i) of the said subsection (2)(c) and the extent to which any evidence relevant to the matter is by virtue of the delay no longer capable of being adduced.

After 1 or 2 years the defendant then has the defense that the action is statute bared.

What does that last comment mean-'
After 1 or 2 years the defendant then has the defense that the action is statute bared'. Does this mean that the plaintiff can longer sue the defendent for compensation?

ResearchWill

needsomehelp14 wrote: »

What does that last comment mean-'
After 1 or 2 years the defendant then has the defense that the action is statute bared'. Does this mean that the plaintiff can longer sue the defendent for compensation?

The statute of limitations does not stop you bringing any action you do wish after the relevant time. What it does do is give the Defendant a defence the defence that the action is statute barred.

Example a person is defamed on this site, 7 months later he sues then the statute can not be raised. Say he decides to sue after a year and 7 months then the court is asked to decide does the defence apply in light of all the circumstances.

If after 2 years and 1 day he decides to take an action, then the defendant pleads the statue of limitations in his defence. He will succeed and therefore be entitled to his costs.

From the wording of the section an action can not be taken after the relevant times, in certain cases that is clear and simple in others it may not be, so each case will be decided on its merits.

dermot_sheehan

ResearchWill wrote: »

If after 2 years and 1 day he decides to take an action, then the defendant pleads the statue of limitations in his defence. He will succeed and therefore be entitled to his costs.

Unless of course he can prove that the defendant concealed the cause of action of was guilty of fraud under s. 71 or 72 of the statute of limitations.

ResearchWill

dermot_sheehan wrote: »

Unless of course he can prove that the defendant concealed the cause of action of was guilty of fraud under s. 71 or 72 of the statute of limitations.

Section 71 is fraud and 72 is mistake. Suppose in Internet defamation case if it could be shown a person used fraud to make it look like someone else committed the act or the plaintiff was mistaken as to the identity of the real defendant then it may very well be able to use either section.

But in my opinion he would have to show an intention to take an action within the limitation period and the only thing stoping him was not knowing the real identity. A way to prove that would be to commence proceedings against the Internet forum to get access to the defendants true identity.

needsomehelp14

ResearchWill wrote: »

The statute of limitations does not stop you bringing any action you do wish after the relevant time. What it does do is give the Defendant a defence the defence that the action is statute barred.

Example a person is defamed on this site, 7 months later he sues then the statute can not be raised. Say he decides to sue after a year and 7 months then the court is asked to decide does the defence apply in light of all the circumstances.

If after 2 years and 1 day he decides to take an action, then the defendant pleads the statue of limitations in his defence. He will succeed and therefore be entitled to his costs.

From the wording of the section an action can not be taken after the relevant times, in certain cases that is clear and simple in others it may not be, so each case will be decided on its merits.

'If after 2 years and 1 day he decides to take an action, then the defendant pleads the statue of limitations in his defence. He will succeed and therefore be entitled to his costs'
What does this mean? How will the stutue of limitations protect someone?

ResearchWill

needsomehelp14 wrote: »

'If after 2 years and 1 day he decides to take an action, then the defendant pleads the statue of limitations in his defence. He will succeed and therefore be entitled to his costs'
What does this mean? How will the stutue of limitations protect someone?

If the Plaintiff can not show an exception under the 57 act and he is beyond the limition period he then takes a huge cost risk. The normal rule on cost under order 99 of the rules of the superior courts is that costs follow the event. So if the plaintiff loses the case because of the statute unless some special reason can be show he will lose the case and have to pay the defendants costs.