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defamation of character

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13

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    #62
    GM228
    Registered Users Posts: 8,925 ✭✭✭GM228


    SarahSTARRR wrote: »
    Are we going to disregard the possible invasion of privacy claim too?

    You missed post #49.


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    #63
    Owryan
    Closed Accounts Posts: 4,024 ✭✭✭Owryan


    SarahSTARRR wrote: »
    Are we going to disregard the possible invasion of privacy claim too?

    What invasion of privacy? They are potentially recording a conversation that both parties are partaking in.

    Or are you saying that you can use invasion of privacy to defend yourself in a defamation case by trying to have potential evidence excluded?


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    #64
    GM228
    Registered Users Posts: 8,925 ✭✭✭GM228


    SarahSTARRR wrote: »
    You are forgetting the part where it must injure a persons reputation in the eyes of the reasonable person so simply having someone overhear the statement would not qualify one for a claim of defamation.

    The evidence of one person and the lowering of their opinion of you is enough to ground an action.


    SarahSTARRR wrote: »
    They have to PROVE it has affected their life and reputation in some tangible way.

    No, you only need to show the statement tends to injure your reputation, not that is has done so.


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    #65
    gozunda
    Registered Users Posts: 18,996 ✭✭✭✭gozunda


    Additional question...

    Where 'defamation' (for example) made by an employee of a company against another employree or customer - is the company liable where the defamation is made during the course of normal working hours etc?


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    #66
    Claw Hammer
    Registered Users Posts: 6,163 ✭✭✭Claw Hammer


    gozunda wrote: »
    Additional question...

    Where 'defamation' (for example) made by an employee of a company against another employree or customer - is the company liable where the defamation is made during the course of normal working hours etc?

    If the employee is acting in the course of his employment, then the employer is vicariously liable. Owners of shops are frequently sued because of statements made by security staff to suspected shoplifters within earshot of other customers.


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    #67
    FreudianSlippers
    Registered Users Posts: 20,397 ✭✭✭✭FreudianSlippers


    SarahSTARRR wrote: »
    You are forgetting the part where it must injure a persons reputation in the eyes of the reasonable person so simply having someone overhear the statement would not qualify one for a claim of defamation.

    Except it absolutely does.

    The "defamatory statement" is presumed defamatory, as it's a reverse-onus tort.
    They have to PROVE it has affected their life and reputation in some tangible way.

    Section 6(5) Defamation Act 2009 "The tort of defamation is actionable without proof of special damage."


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    #68
    FreudianSlippers
    Registered Users Posts: 20,397 ✭✭✭✭FreudianSlippers


    SarahSTARRR wrote: »
    [...] if you record someone 'defaming' you without their knowledge, [...]

    Having someone who 'heard' the statement being made as 'evidence' is not sufficient as this is considered to be hearsay.
    SarahSTARRR wrote: »
    If you record someone without their consent and attempt to use this for any reason, its a breach of your right to privacy and data protection.

    Ignoring some of the other issues, there are a few problems here:

    1) Having someone give evidence that they heard the defamatory statement is not hearsay. Firstly, it's not evidence being given to prove the defamatory nature of the statement; it's first-hand evidence of publication to a third party. Secondly, hearsay evidence is generally admissible in civil cases in Ireland.

    2) If I record someone making a statement to me on the phone and then publish that to third party/parties, that's not defamation as the publication is invalid.
    6. (4) There shall be no publication for the purposes of the tort of defamation if the defamatory statement concerned is published to the person to whom it relates and to a person other than the person to whom it relates in circumstances where—
    (a) it was not intended that the statement would be published to the second-mentioned person, and

    (b) it was not reasonably foreseeable that publication of the statement to the first-mentioned person would result in its being published to the second-mentioned person.


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    #69
    GM228
    Registered Users Posts: 8,925 ✭✭✭GM228


    FreudianSlippers wrote: »
    Secondly, hearsay evidence is generally admissible in civil cases in Ireland.

    The rules of evidence apply more or less equally to both criminal and civil cases, hearsay evidence is not generally admissible in civil cases, although admissions (statements against interest) are more widely regarded as admissible in civil cases under the inclusionary exception to the hearsay rule.


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    #70
    hullaballoo
    Administrators, Entertainment Moderators, Social & Fun Moderators, Society & Culture Moderators Posts: 18,712 Admin ✭✭✭✭✭hullaballoo


    Hearsay is admissible in all interlocutory (civil at least) applications as well. There is authority for the proposition that any application that is not an application for a final order is an interlocutory one, though I cannot find it at the minute.


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    #71
    GM228
    Registered Users Posts: 8,925 ✭✭✭GM228


    FreudianSlippers wrote: »
    SarahSTARRR wrote: »
    You are forgetting the part where it must injure a persons reputation in the eyes of the reasonable person so simply having someone overhear the statement would not qualify one for a claim of defamation.
    Except it absolutely does.

    The "defamatory statement" is presumed defamatory, as it's a reverse-onus tort.

    More accurate to say there is a presumption of falsity of the statement, not a presumption of a defamatory statement.

    The defendant must prove the statement was true (if they raise the defence of truth) rather than the plaintiff prove it was false. There are other ways to defeat by raising the defence of honest opinion or privilege for example.


    FreudianSlippers wrote: »
    SarahSTARRR wrote: »
    They have to PROVE it has affected their life and reputation in some tangible way.

    Section 6(5) Defamation Act 2009 "The tort of defamation is actionable without proof of special damage."

    My responce to that post is more accurate:-
    GM228 wrote: »
    SarahSTARRR wrote: »
    They have to PROVE it has affected their life and reputation in some tangible way.

    No, you only need to show the statement tends to injure your reputation, not that is has done so.

    S6 (5) deals with special damages, meaning you don't need to prove there was a quantifiable financial loss suffered as a result of the statement, when dealing with any damages evidence should be given and considered regarding the reputation of the plaintiff and the importance to the plaintiff of their reputation in the eyes of those who received a defamatory statement.

    Both the point on special damages and the presumption would be in contrast to say an action in relation to a malicious falsehood where the plaintiff would need to prove both the falsity and occurance of a financial loss for any successful claim.


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    #72
    GM228
    Registered Users Posts: 8,925 ✭✭✭GM228


    hullaballoo wrote: »
    There is authority for the proposition that any application that is not an application for a final order is an interlocutory one, though I cannot find it at the minute.

    Do the Toal vs Duignan (No.2) [1991] ILRM 140, Minister for Agriculture, Food and Forestry vs Alte Leipziger [2001] IESC 15 or Abbeydrive Developments Ltd. vs Kildare County Council [2010] IESC 8 cases ring a bell?

    I have a faint recollection they relate to your point, although I'll stress I may be wrong on this Hullaballoo.


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    #73
    FreudianSlippers
    Registered Users Posts: 20,397 ✭✭✭✭FreudianSlippers


    GM228 wrote: »
    More accurate to say there is a presumption of falsity of the statement, not a presumption of a defamatory statement.

    The defendant must prove the statement was true (if they raise the defence of truth) rather than the plaintiff prove it was false. There are other ways to defeat by raising the defence of honest opinion or privilege for example.

    I don't understand the need to nit-pick when we're more or less saying the same thing, but since you've decided to, I'll bite.

    It is absolutely not more accurate to say that the statement is presumed false, the statement is presumed "defamatory" i.e. that the statement tends to injure a person’s reputation in the eyes of reasonable members of society. That statement must also be false, but it's 6 of one half-dozen of the other.




    My responce (sic) to that post is more accurate:-

    S6 (5) deals with special damages, meaning you don't need to prove there was a quantifiable financial loss suffered as a result of the statement, when dealing with any damages evidence should be given and considered regarding the reputation of the plaintiff and the importance to the plaintiff of their reputation in the eyes of those who received a defamatory statement.

    Both the point on special damages and the presumption would be in contrast to say an action in relation to a malicious falsehood where the plaintiff would need to prove both the falsity and occurance (sic) of a financial loss for any successful claim.

    Again, explain to me how your response is in any way "more accurate"? They're different points being made in addressing distinct errors in the same post.

    I also dispute that you "need to show the statement tends to injure your reputation", but I can understand how you can make this mistake when you seem to disagree with my first statement regarding presumption of the statement being defamatory.


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    #74
    FreudianSlippers
    Registered Users Posts: 20,397 ✭✭✭✭FreudianSlippers


    GM228 wrote: »
    The rules of evidence apply more or less equally to both criminal and civil cases, hearsay evidence is not generally admissible in civil cases, although admissions (statements against interest) are more widely regarded as admissible in civil cases under the inclusionary exception to the hearsay rule.
    In principle the rules apply with similar effect in both types of proceedings; in practice (as I said) hearsay evidence is generally admissible in civil hearings. Rather than rendering hearsay evidence prima facie inadmissible, the evidence is normally only considered inadmissible if contradicted by oral non-hearsay evidence. The vast majority of examples of hearsay evidence in civil cases are documents/records/etc. as opposed to admissions.


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    #75
    GM228
    Registered Users Posts: 8,925 ✭✭✭GM228


    FreudianSlippers wrote: »
    I don't understand the need to nit-pick when we're more or less saying the same thing, but since you've decided to, I'll bite.

    It's not nit-picking, saying a statement has the presumption of being defamatory and the statement has the presumption of falsity are in fact two distict presumptions which afford different results. The presumption only applies to one element (the falsity) of the defamatory statement, not the defamatory nature of the statement.


    FreudianSlippers wrote: »
    It is absolutely not more accurate to say that the statement is presumed false, the statement is presumed "defamatory" i.e. that the statement tends to injure a person’s reputation in the eyes of reasonable members of society. That statement must also be false, but it's 6 of one half-dozen of the other.
    FreudianSlippers wrote: »
    I also dispute that you "need to show the statement tends to injure your reputation", but I can understand how you can make this mistake when you seem to disagree with my first statement regarding presumption of the statement being defamatory.

    Basically there are three elements to an action in defamation:-

    1. There must be a published statement (i.e communicated to a third party),

    2. The statement must "tend to injure a person’s reputation in the eyes of reasonable members of society" (i.e it must have a defamatory effect), and

    3. The statement must be false.

    What you are basically saying is that both number 2 and number 3 are presumed, they absolutely are not, only number 3 is presumed.

    You are making the common mistake of confusing the defamatory nature of the statement with the presumption of it's falsity.

    The plaintiff has always needed to prove number 1 and number 2, once they do that there is a rebuttable presumption on number 3, to presume a statement is defamatory would be putting a presumtion of injury to the plaintiffs reputation.

    It has always been the case that a plaintiff must prove the defamatory nature of a statement and once that is done they are afforded the presumption of falsity. The defamatory nature of a statement is a question of fact.

    The codification of statute and common law by the 2009 Act did not change that position, and is something which was subject to the 2016 Department of Justice and Equality review of the Defamation Act 2009.


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    #76
    FreudianSlippers
    Registered Users Posts: 20,397 ✭✭✭✭FreudianSlippers


    I have been involved in many defamation cases in my career and have never once had to prove the statement had "defamatory effect" - perhaps the cases you have been involved with have been the most nuanced defamation cases ever heard in Ireland, but the vast majority aren't quibbling over the "defamatory effect" of the statement.

    Perhaps you're technically correct, but how many times have you actually had to do this?


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    #77
    GM228
    Registered Users Posts: 8,925 ✭✭✭GM228


    FreudianSlippers wrote: »
    I have been involved in many defamation cases in my career and have never once had to prove the statement had "defamatory effect" - perhaps the cases you have been involved with have been the most nuanced defamation cases ever heard in Ireland, but the vast majority aren't quibbling over the "defamatory effect" of the statement.

    Perhaps you're technically correct, but how many times have you actually had to do this?

    So in all your cases the court has never satisfied itself a statement is defamatory in order to issue a declaratory order? Or when awarding damages a court has never taken account of evidence given concerning the reputation of the plaintiff? How does a court satisfy that a statement is defamatory if the plaintiff does not offer evidence of such? A court does not just presume such.

    Perhaps Neville Cox and Eoin McCullough, Defamation; Law and Practice (Clarus Press, 2014) or the Law Reform Commission, Report on the Civil Law of Defamation (LRC 38-1991) are only "technically" correct when they too state the plaintiff must prove the defamatory nature of the statement?

    A court must be satisfied that a statement has a defamatory nature, it is not presumed, the plaintiff offers evidence of such and the court decides objectively if it is indeed defamatory.


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    #78
    raher1
    Registered Users Posts: 880 ✭✭✭raher1


    I choose to ignore this fact as I thought the person to be under pressure or something, we we're never close but this surprised me.
    This person has continued to say these things now over two years
    I believe this person to be a nasty malice individual who doesn't like me
    I have done nothing to this person, where I could help this person out I could
    I have had words with this person's partner . He was shocked.
    I don't want to go down a legal route
    But I feel I need to report this to the Gardai at least.
    FreudianSlippers wrote: »
    I have been involved in many defamation cases in my career and have never once had to prove the statement had "defamatory effect" - perhaps the cases you have been involved with have been the most nuanced defamation cases ever heard in Ireland, but the vast majority aren't quibbling over the "defamatory effect" of the statement.

    Perhaps you're technically correct, but how many times have you actually had to do this?


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    #79
    AndrewJRenko
    Registered Users Posts: 28,488 ✭✭✭✭AndrewJRenko


    raher1 wrote: »
    But I feel I need to report this to the Gardai at least.

    Gardai have no role in defamation cases. It is a civil matter, not criminal.


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    #80
    4ensic15
    Banned (with Prison Access) Posts: 4,691 ✭✭✭4ensic15


    AndrewJRenko wrote: »
    Gardai have no role in defamation cases. It is a civil matter, not criminal.

    There is an offence of criminal libel.


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    #81
    AndrewJRenko
    Registered Users Posts: 28,488 ✭✭✭✭AndrewJRenko


    4ensic15 wrote: »
    There is an offence of criminal libel.

    Are you sure about that?

    http://www.irishstatutebook.ie/eli/2009/act/31/section/35/enacted/en/html#sec35


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    #82
    raher1
    Registered Users Posts: 880 ✭✭✭raher1


    4ensic15 wrote: »
    There is an offence of criminal libel.
    Good to know. It's complicated stuff.


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    #83
    GM228
    Registered Users Posts: 8,925 ✭✭✭GM228


    4ensic15 wrote: »
    AndrewJRenko wrote: »
    Gardai have no role in defamation cases. It is a civil matter, not criminal.

    There is an offence of criminal libel.

    No there isn't, the offence was abolished on 1st January 2010.

    And even when it was still an offence it wasn't as simple as calling the Gardai. There were many hurdles and Gardai generally did not bring such cases, rather they were brought by way of private prosecution.

    In order to initiate a successful case you required leave of the High Court (the application had to be held in camera) to commence proceedings, to be granted leave you had to establish a clear prima facie case that it was beyond argument there was a case to answer, that the libel was serious enough for the criminal law to be invoked (it may be a relevant factor that the libel was unusually likely to lead to a breach of the peace), and the question of whether the public interest required the institution of criminal proceedings must be taken into account.

    After all that you then had to prove the case to the criminal standard. Needless to say such cases were few and far between.


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    #84
    randomrb
    Registered Users Posts: 351 ✭✭randomrb


    FreudianSlippers wrote: »
    I have been involved in many defamation cases in my career and have never once had to prove the statement had "defamatory effect" - perhaps the cases you have been involved with have been the most nuanced defamation cases ever heard in Ireland, but the vast majority aren't quibbling over the "defamatory effect" of the statement.

    Perhaps you're technically correct, but how many times have you actually had to do this?

    Surely the whole point is that you have to show defamatory effect? are most of the cases that get to court disagreeing on the level of defamation. I'm pretty sure we studied many cases involving what constitutes a defamatory statement and what doesnt it seems a bit odd to dismiss this element out of hand without full knowledge of the facts of the case


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    #85
    Claw Hammer
    Registered Users Posts: 6,163 ✭✭✭Claw Hammer


    randomrb wrote: »
    Surely the whole point is that you have to show defamatory effect? are most of the cases that get to court disagreeing on the level of defamation. I'm pretty sure we studied many cases involving what constitutes a defamatory statement and what doesnt it seems a bit odd to dismiss this element out of hand without full knowledge of the facts of the case

    There is no need to prove that there were any consequences to the defamatory statement. If the defamatory statement was published to a person who knew for a fact it was not true, it would be defamatory even if it had no effect. If somebody was to say to a solicitor, "your colleague down the street was previously struck off the register by the High Court for dishonest conduct" that would be defamatory unless it was true, even if the solicitor knew for an absolute fact that it had never happened.


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    #86
    randomrb
    Registered Users Posts: 351 ✭✭randomrb


    Claw Hammer wrote: »
    There is no need to prove that there were any consequences to the defamatory statement. If the defamatory statement was published to a person who knew for a fact it was not true, it would be defamatory even if it had no effect. If somebody was to say to a solicitor, "your colleague down the street was previously struck off the register by the High Court for dishonest conduct" that would be defamatory unless it was true, even if the solicitor knew for an absolute fact that it had never happened.

    My point is that you have to show that the statement can have a negative impact on the reputation. There is a need to prove that the statement was defamatory but no need to prove that there were consequences.

    Take Reynolds v Malocco the question over whether an insinuation that someone was homosexual was central to that case.

    In your example that is undoubtable a defamatory statement but if the person had said "your colleague down the street is gay" there would be a debate over whether that is a defamatory statement not over the actual consequences


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    #87
    Claw Hammer
    Registered Users Posts: 6,163 ✭✭✭Claw Hammer


    randomrb wrote: »
    My point is that you have to show that the statement can have a negative impact on the reputation. There is a need to prove that the statement was defamatory but no need to prove that there were consequences.

    Take Reynolds v Malocco the question over whether an insinuation that someone was homosexual was central to that case.

    In your example that is undoubtable a defamatory statement but if the person had said "your colleague down the street is gay" there would be a debate over whether that is a defamatory statement not over the actual consequences

    You are changing your story. You're now saying can have, whereas previously you were saying must.


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    #88
    randomrb
    Registered Users Posts: 351 ✭✭randomrb


    Claw Hammer wrote: »
    You are changing your story. You're now saying can have, whereas previously you were saying must.

    The differance is between "defamatory effect" and actual reputation loss. You have to prove the first not the second, ie a statement has to be defamatory to enable you to sue someone for defamation.


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    #89
    GM228
    Registered Users Posts: 8,925 ✭✭✭GM228


    randomrb wrote: »
    The differance is between "defamatory effect" and actual reputation loss. You have to prove the first not the second, ie a statement has to be defamatory to enable you to sue someone for defamation.

    Correct, the defamatory effect is the resulting tendancy to injure a person’s reputation in the eyes of reasonable members of society, not the actual injury.

    You must prove the defamatory nature of the statement by giving evidence of such, however the actual defamatory effect is then for the judge/jury to decide, not only is the plaintiff not required to prove the actual injury, they also can't actually give direct evidence of the effect of the statement on them unless they want to prove a special fact, see for example the old Kenny vs Freeman's Journal [1892] 27 ILTR 8 case which sums it up nicely:-
    Kenny vs Freeman's Journal wrote:
    When the libel is entirely expressed in language, the rule of law is that a witness cannot be asked what impression was produced on him by the words, because the jury are the proper tribunal, and the witnesses would be usurping their province by doing so. The one exception to the rule is that you may prove a special fact, the effect of which is to show that the words were used in a different sense from their ordinary meaning, having proved which you may then ask the witnesses how did you understand the words used


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    #90
    raher1
    Registered Users Posts: 880 ✭✭✭raher1


    GM228 wrote: »
    Correct, the defamatory effect is the resulting tendancy to injure a person’s reputation in the eyes of reasonable members of society, not the actual injury.

    You must prove the defamatory nature of the statement by giving evidence of such, however the actual defamatory effect is then for the judge/jury to decide, not only is the plaintiff not required to prove the actual injury, they also can't actually give direct evidence of the effect of the statement on them unless they want to prove a special fact, see for example the old Kenny vs Freeman's Journal [1892] 27 ILTR 8 case which sums it up nicely:-

    Would it harm your case if you went to talk to the person first. Try to reason with them


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    #91
    raher1
    Registered Users Posts: 880 ✭✭✭raher1


    Is there a time line to defamation, like 3 months or six years


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