Key things to consider before you initiate a defamation claim

Defamation is the communication of a false statement about a person or business that results in unjust harm to their reputation. If the statement has been made in writing and then published, the defamation is known as ‘libel’ and if the statement has been spoken then it is ‘slander’. If one has been the victim of such a defamatory statement, one is then entitled to sue the person that made the statement under defamation law.

There is a fine balance between one individual’s right to freedom of speech and the concurrent need to protect other individuals from deformation. Put simply, whilst one has the right to air their views on a particular experience or service without fear of engendering a defamation claim, one does not have the right to make misleading or false statements that will result in unfair damage to another’s reputation. Knowingly making an untrue statement, being reckless with the truth or making a statement intended to injure the complainant will all be regarded as ‘malicious’ by a court.

In addition to evaluating the veracity of the claim itself, however, there are several other elements that one should consider before initiating a defamation claim:

Was the statement made with absolute privilege?

Absolute privilege protects members of law-making bodies from a charge of deformation if the statement was made during the course of legal proceedings. It applies to all legislators and provides protection regardless whether or not the words are spoken in good faith.

It also applies to ‘fair and accurate’ reporting of such legal proceedings in reports that are published contemporaneously. A report is judged to be fair if it is ‘impartial’ and ‘conveys the substance’ of what happened in court.

Was the statement made with qualified privilege?

Qualified privilege protects people when the statement that they are making ‘has a duty to its recipients and they have an interest in receiving [it]’. It applies when a person is adjudged to have a moral or social duty to make such a statement such as publishing material that might have implications on public safety.

Another example of qualified privilege is the immunity given to members of the press when publishing their work in good faith and without malice.

Was the statement a matter of public interest?

It is possible to defend oneself against a defamation claim if it can be argued that the statement ‘was, or formed part of….a matter of public interest’.

It is important to note that this defence can be employed regardless whether the statements made are subsequently revealed not to be true. This protection recognises the role that professionally conducted investigative journalism can serve to reveal potential injustice and wrongdoing within society.

Could the defendant use the ‘honest opinion’ defence?

If the defendant can show that the statement was an ‘opinion’, that within the statement there was ‘an apparent basis to the opinion’ and that the opinion was one that ‘an honest person could have held’ then they could potentially defeat a claim of defamation.

The article above has been contributed by JM Solicitors Dublin.

False Statement by Nick Youngson CC BY-SA 3.0 Alpha Stock Images.