Bradley – The Star

CHANGES IN DEFAMATION LAW – THE 2009 ACT EXAMINED

Under the 2009 Act, the Rule in Identification is that which previously existed at common law, namely that a person is identified in the statement if it could be reasonably understood as referring to him or her. This issue arose in the 2011 case of Bradley-v-Star Newspapers. The Plaintiffs sued in respect of allegations in an article which did not name them, but instead referred to criminals who went by the nick names “the fat heads”. The Jury in the High Court found they were not reasonably identifiable in this publication.

This was appealed to the Supreme Court, and the key question there was whether the Trial Judge should have admitted in evidence a second article which was published shortly after the first, which actually named the Plaintiffs, but which was not sued on by them in order to help with the interpretation of the first article. On the unusual facts of this case, the Supreme Court held that the second article should have been admitted.

Mr. Justice Hardiman summed up that if it were not to be admitted, the Jury would be denied access to information which the vast majority of reasonable newspapers and material would have read. As he put it, “it is one thing to say that intention is neither necessary nor sufficient to constitute a libel; it is quite another to say that a specific article undoubtedly published in the same newspaper, by the same Journalist ,who was an employee of the same Defendant, must be excluded from consideration on the question of identification.”

Defamation- Jurisdiction

DEFAMATION LAW

JURISDICTIONAL ISSUES AND INTERNET PUBLICATION

A hugely important decision in Irish defamation law is the recent decision of the ECJ in 2011 of eDate Advertising GmbH-v-X; Martinez-v-Societe MGN Limited. In this case the ECJ held that a broader answer should be given to the question of the appropriate jurisdiction in which defamation could be taken, where what was at stake was internet publication as distinct from conventional publication. The law in this area was previously governed by Article 5 of the Brussels Regulations, which is recognised in both European and Irish law. That determined that a defamation could be taken either, a, in any State in the EU in which the publication has occurred, though damages would be limited to compensation for publication in that jurisdiction, or b, in the State in which the Publisher was established, in which case, compensation could be awarded for the full extent of the publication throughout the entire EEC territory.

In the two cases above, the ECJ noted the universal nature of the internet publication, and concluded that it meant that the old rules based on the nature and extent of the distribution of publication had now become redundant.

As such, the Court concluded that where there was any action in respect of internet publication (which quite clearly meant more than a defamation action) the Plaintiff could not alone sue in each member State in which the publication occurred for the publication in the State, or sue in the State in which the publisher was established for all the community wide publication, but in addition, could sue in the State in which the centre of his or her interests were based for all publication in the community.

Naturally this may greatly open up prospects for the Plaintiffs in terms of succeeding in obtaining significant damages in libel actions, in that it may provide them with potentially beneficial home advantage. On a tangential point connected to this, in the case of Coleman-v-MGN Limited, the Supreme Court refused jurisdiction in a case of alleged internet publication, on the basis that there was no evidence before the Court, either that the newspaper in question was published online at the time of the alleged publication, nor that there was any evidence of hits on its website from Ireland. On the other hand, it would seem likely that had there been such evidence, the Court would have allowed the jurisdiction pursuant to the decision of the ECJ above.

Greg Ryan
Solicitor

Defamation – Qualified Privilege

DEFAMATION – QUALIFIED PRIVILEGE

Under the 2009 Act, the defences of both qualified and absolute privilege were reaffirmed. That means that it is a valid defence for a Defendant to show that his statement would have been protected under the defence of absolute or qualified privilege immediately prior to the commencement of the Act. Section 17 sets out a number of stated types of publication which will be absolutely privileged under the statute, while also leaving open the possibility that there may be other types of absolutely privileged statements.

It becomes more complicated when one considers the defence of qualified privilege, for two reasons. Section 18 encapsulates the existing common law defence of qualified privilege in statutory form, and with a qualification that such privilege can be lost if the publisher is motivated by malice. Secondly, the Act replicates what had been done in the Act in 1961, and creates two categories of documents, one of which is privileged without explanation, the other which is privileged subject to explanation.

In the more traditional form of qualified privilege, there had to be a legal, social, or moral duty or interest to publish the material, which was met by reciprocal legal, social or moral interest on the part of the recipient to receive the material. This under common law is defeated by malice, which unfortunately has not been defined in the new legislation. It is a notoriously difficult thing for a Plaintiff to prove malice, in so far as they have to prove that at the moment of publication, the Defendant was aware that the relevant statement was untrue.

Defamation – Court Witnesses

DEFAMATION

Witnesses in Court remain protected

An interesting decision of Mr. Justice Barrett was handed down on the 28th February this year in the case of Damian Jeffery versus the Minister for Justice & Equality, The Commissioner of An Garda Siochana Ireland and the Attorney General. In 2010, Mr. Jeffery, the Plaintiff, was convicted in Sligo District Court of certain road traffic offences. Before sentencing, one of the Guards present informed the Court that Mr. Jeffery had been convicted on a number of serious offences. He was incorrect in so far as the person who had actually committed those offences was another person who happened to have the same name. This Mr. Jeffery had no previous convictions and this was corrected by Mr. Jeffery’s Solicitor in the District Court and sentencing proceeded. However, from Mr. Jeffery’s perspective, damage was done to his reputation, both in Court and also when the erroneous list of convictions were reported prominently in the local media. Interestingly the Judge accepted that what had been submitted to the District Court Judge was not done with any malice by the Gardai nor was the State in any way complicit with the media attention that followed.

The Solicitors for Mr. Jeffery then sought that the Gardai apologise for the error, compensate Mr. Jeffery and clarify matters before a further sitting. Proceedings issued seeking damages and just over a year later in December, 2012, the Chief State Solicitors Office issued a letter forwarding a statement of regret from the Gardai, which was regarded by Mr. Jeffery as being too little too late.

The interesting question arose as to the reliefs sought by Mr. Jeffery. He did not institute defamation proceedings, rather proceedings claiming damages for negligence, breach of duty and negligent misrepresentation. The reason for this was that Section 17(2) of the Defamation Act, 2009 established absolute privilege in the course of proceedings and it was acknowledged by the Court that any defamation proceedings brought would certainly have failed.

Mr. Justice Barrett examined the Case Law in some detail and he concluded that the Courts must be Temples of Truth, or at least that is the ideal. He commented that there should be a minimum circumspection of what can be said so that the truth can be determined and thus justice done. If it were otherwise, if the witnesses were exposed to any threat in the form of litigation of what they said in Court, the truth would suffer. Accordingly, he felt that the Plaintiff’s actions could not succeed on this public policy ground.

Defamation on the web

DEFAMATION LAW

LIABILITY OF SERVICE PROVIDERS FOR MATERIAL POSTED ON WEBSITES FOR WHICH THEY HAVE SOME RESPONSIBILITY

Despite the rapid development of the internet, and the fact that it is now a primary medium for some classes of people, the internet has not yet been given a specific statutory treatment in respect of defamation law. It is regarded as any form of publication, and for the purposes of defamation law and under Section 6 of the 2009 Act, publication can be by “any means”. At common law, the definition of publication was always very broad, such that anybody involved could be regarded as such.

From an internet perspective, this poses very specific concerns for the internet service providers and other entities who host or facilitate the publication of material online. The question arises that in the extent to which they facilitate the transfer of statements from person A to person B, could they we regarded therefore as publishers? Naturally these tend to be very large companies, and therefore have deep pockets and thus are attractive Defendants for potential litigants. It may well be that the internet service providers in such cases have a defence of innocent publication under the 2009 Act, or could avail of the defence as specifically created for the service providers under the European Communities (Directive 2000/31/EC) Regulations 2003. There are conditions attached to those, and it is unclear at present how strenuously they would be applied at trial in any defamation case.

The leading English case is the 2000 decision of Godfrey-v-Demon. The Defendant company hosted a usenet facility which contained bulletin boards to which people could add comments. One such comment from an unknown author purported to be from the Plaintiff, Mr. Godfrey, and was defamatory of him. The Plaintiff contacted the Managing Director of the Defendant company on the 17th January 1997 requesting the offending post be removed. The Defendant allowed the material to remain until the 27th January 1997. The Plaintiff sued for defamation in respect of the publication between 17th January and 27th January, but not for the publication before the 17th January. The Judge, Mr. Justice Morland, held that on considering the existing rules, the Defendant, ISP, could be regarded as a publisher, the same way as a book seller could be classified as such. He concluded accordingly;

“In my judgment, the Defendants whenever they transmit, and whenever there is transmitted from the storage of their news server a defamatory posting, publish that posting to any subscriber in their ISP who accesses the news group containing that posting. Thus every time one of the Defendant’s customers accesses (the relevant news group hierarchy) and sees that posting which is defamatory of the Plaintiff, there is the publication to that customer.” The judgment does suggest that had the Defendant simply been transmitting emails from one user to another, then he would not have regarded that as publication. The case is authority for the proposition that the ISP is the publisher of defamatory material, but subject to the traditional common law principle that an innocent disseminator will have the defence of innocent publication available to them.

In the later case in 2007 of Bunt-v-Tilley, the question was asked as to what precise level of involvement in the publication was there by the secondary publisher. Mr. Justice Eady focusing on the issues, such as the involvement of publication and the responsibilities for publications, concluded that the ISP which did no more than passively facilitate postings on the internet, could not be a publisher at common law. He was adamant that there would need to be some measure of involvement in publication for it to be a publisher.

In the recent 2011 case of Metropolitan International Schools-v-Designtechnica Corp, Mr. Justice Eady held that a search engine operating as such could not be seen as a publisher, in that it had no human input into the process by which the material sought was returned, and therefore could not have been seen as being involved in the process of publication.

Bloggers were examined in the 2013 case of Davison & Habeeb-v-Others, and Tamiz-v-Google. This concerned the Google blogging service, which is effectively a platform enabling users to create their own blogs and post them URL’s provided by Google (Blogspot.com). In both cases the alleged defamatory statements grounding the action were published and involves hosing on this site, and the question was whether at any stage (before or after Google became aware of the comments and asked the user to remove them) Google could be deemed to be a secondary publisher of the comments in question. In both cases Google was applying to have the matter struck out, on the basis that the relevant Court did not have proper jurisdiction. In the Davison case, the Plaintiff alleged that Google were responsible for hosting, editing, and distributing the blogspot.com website on which the offending blog was published by the primary publisher. Google did appear to have some role in regulating the content, for example, it would not permit child pornography, and there was a facility for users to complain about other aspects of the blog, including that they were defamatory. It maintained however that it was not the publisher and it could not adjudicate on whether certain material was defamatory, and it would only take down material where there was Court decision to the effect that the material was defamatory.

On the question of publication, the Court went back to the old decision of Byrne-v- Deane, where a notice left on a golf club notice board for some time was deemed to involve publication by the club, and suggested that the blogspot was more than a mere facilitator. The Court particularly noted that Google had a contents policy, and concluded that unless this was a complete sham, it must be regarded as having some measure of editorial control over what published.

This was revisited again by the Court of Appeal in the Tamiz case. This was again the publication of defamatory comments on blogger.com, and the question of whether Google could be liable. Google had been informed by the Plaintiff of the presence of the comments, and they were then removed voluntarily by the blogger in question. The question arose as to whether any liability could attach to Google in respect of the publication of the material, either before or after it was informed of the comments. In the first instance Mr. Justice Eady held that Google was not a publisher. He determined this from examining their involvement in the publication process. He particularly noted that there was over half a trillion words on blogger.com with 250,000 new words being added every minute, and that Google’s role was purely a passive one.

However, on appeal the Court of Appeal concluded that it was at least arguable that Google was a publisher, but citing the decisions in Byrne, Godfrey, and Davison, concluded that whereas Google could not be seen as a publisher before it was informed, it could be a publisher after it was informed of the potentially defamatory nature of the comments.

The conclusion therefore is that as far as the internet service providers are concerned, in order for them to be deemed to be publishers, they must be involved in the publication process. Mere facilitation of the publication is not enough, for example search engine, but where they have the capacity, whether theoretical or otherwise to control or remove the offending material, and where they become aware that the material has been uploaded, then it is arguable they may be deemed to have sufficient association with the publication, or to have assumed responsibility for it in order to be classed as a publisher.

Greg Ryan
Solicitor

Contributory negligence

Mr. Justice Barrett clarified the law in relation to contributory negligence in a judgment handed down on the 1st April recently in a case of Sylvia Deehan-v-Loughlinstown Inns Limited trading as the Lough Inn Public House. The case arose by reason of an incident that happened at the pub on the 21st January 2011. There was a lady’s evening on at the pub, and at one point during the evening’s entertainment a spot prize was thrown into the audience. Several people jumped to catch the prize, including Ms. Deehan, but she fell and hit herself on the leg of the loudspeaker that was sitting on the floor.

The Judge examined the precepts of the Occupiers Liability Act 1995 and also the case law in relation thereto. He held that the duty of the pub operator was to take all reasonable steps to safeguard the patrons against risks and dangers that are foreseeable. He did say that a pub operator is not required to guard against improbable or unlikely happenings. He emphasised that provided a pub operator used reasonable care and skill to make the premises fit for purpose and to operate competitions without risk to attendees, that it may be possible to infer contractual obligation whereby attendees undertake to take reasonable care for their own safety, and to accept the dangers inherent to the entertainment.

On applying those principles to this case, he concluded that it wasn’t proved that the pub had failed to take all reasonable steps to safeguard its customers. Interestingly, he also said that for the pub to accident proof its premises, would be both highly expensive and entirely impractical, which were factors which the Court would have to have regard in determining.

As regards the consumption of alcohol, he held that a person who freely elects to go to a pub, freely elects to drink alcohol, freely elects to engage in a party game, and who freely elects to jump for a spot prize, can reasonably anticipate that she may fall, and should not assume that she would be entitled to compensation if she does in fact fall. He finished by saying that bad things can happen to good people, and still no compensatable event may arise.

Restricting company directors

Company Directors will be reassured by the Judgment of Mr. Justice Barrett delivered on the 1st April, last in relation to a Restriction Order sought by a Liquidator pursuant to Section 150 of the Companies Act, 1990. Declan Tate was the official Liquidator of Shellware Limited and he sought to restrict Mr. Eoghan Breslin, one of the former Directors of the Company. The Company designed and manufactured Exhibition Presentation Stands and also fitted out pubs. It started trading in June, 1999 and ceased trading almost 10 years later and was wound up on the 12th January, 2009.

The Judge commented that under Section 150, the Court must grant the Declaration sought in the proceedings unless it is satisfied that in any of a variety of circumstances identified in Section 150 of the legislation, the relevant circumstances in this case being that Mr. Breslin had acted a) honestly and b) responsibly in relation to the conduct of the affairs of the Company, and c) there was no other reason why it would be just and equitable that he be the subject of such an Order to be made. The Court found that there was no issue as to his honesty and the only issue was whether he had acted responsibly in relation to the conduct in the affairs of Shellware.

The concerns that arose were numerous, namely six grounds which otherwise would have been considered serious. These were a failure to maintain adequate books and records, the late or non-payment of certain taxes, steps taken when the company was in financial difficulty, the making of payments to a related company, the use of company credit cards for personal use and a claimed lack of cooperation with the Liquidator.

To deal with the first of these, the Audited Accounts had been carried out up to June, 2006. However when the business started to dry up in 2008, Mr. Breslin decided that they could not afford to pay the Auditor to draw up the accounts. The Court felt that his actions were open to criticism but they did not consider them to be irresponsible.

As regards the late or non payment of taxes, he noted that there had been a history of late payment and indeed the eventual Petition to Wind Up the Company had been brought by the Revenue Commissioners. Notably he commented that there was no evidence to suggest that the Company or indeed the Director had every avoided making a tax payment in order to keep the business afloat. Thus it did not appear that there were any of the criteria present that would transform the late or non payment of taxes in this case from reproachable behaviour into irresponsible behaviour. He did note that it was reproachable, and the company should make every effort possible to pay its taxes as they fell due.

As regards the steps taken when the Company was in commercial difficulty, the Judge complemented the Director on the steps that he took. He looked for new business, he engaged with his creditors, he sought professional advice and he tried to liaise with the Revenue Commissioners. He commented with the optimal benefit of hindsight, it might be possible to view him as being guilty of misplaced optimism regarding the continuing trading, but he wasn’t guilty of irresponsible behaviour.

The greatest concern was the making of payments to a related company. He was also the Director of a pub in Dalkey. That Company went in to Examinership in September, 2008 but prior to that, Shellware continue trading with that Company notwithstanding that it must have been apparent to the Director that there was a reduced prospect of Shellware recovering its debts. The facts bore that out, and the Company later accepted a write down of certain parts of its debts as part of a scheme of arrangements with the Pub Company.

For the reasons above, the Judge decided he was not required to make an Order under Section 150 and therefore he would not restrict him from acting as a Director.

Interestingly, the Liquidator was late in seeking the Application for the Order. Under the 2001 Act, the ??? of a Liquidator is required within six months after appointment to provide a report to the Director of Corporate Enforcement. Under Section 56 he must bring the application not earlier than three and not later than five months after the report. While he was out of time on this stage, there were a number of contributory factors including the delay of the Director in reverting.

This decision should clarify the position for all company directors, and is worth closer examination.

Bullying in the Workplace

A very recent decision of Mr. Justice Kearns in relation to bullying in the workplace was delivered on the 21st March, 2014. Catherine Glynn sued the Minister for Justice, Equality and Law Reform and the Attorney General in respect of damages for stress and harassment over a four day period carried out by the Superintendent in relation to the completion by her of the monthly accounts. She said that this occurred in the month of May, 2005 and that she was hounded and harassed in relation to the need to complete the task quickly and in relation in particular to an issue of individual cheque which the Superintendent had drawn for his expenses.

The Judgment is a lengthy examination of the assertions made by the Plaintiff in her case about all the wrongs that had been done to her. He then examines the defence in quite some detail and in a lengthy 33 page Judgment examines the Law in relation to it. He set out some useful guidelines for the future, including that the first question that must be asked in every bullying case, is whether the behaviour complained of, by reference to an objective test, imports that degree of calibrated inappropriateness and repetition which differentiates bullying from workplace stress or occupational stress.

He went on to recount the legal definition of bullying as recommended by the Report by the Task Force on the Prevention of Workplace Bullying, which was issued in 2001 which is set out in the Industrial Relations Act, 1990 as:

“Repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individuals right to dignity at work. An isolated incident in the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, it is not to be considered bullying”.

He went on to recount the relevant legal principles which were laid down in the 2009 case of Berber -v- Dunnes Stores as follows:

1. The ordinary principles of Employer’s Liability apply.

2. The threshold question is whether the kind of harm in a particular employee was reasonably foreseeable: and whether it was an ?? injury? to health, or was it attributable stress at work, as distinct from other factors

3. Forseeable ability depends on what the Employer knows or what he ought to know about the individual employee. However the Employer is usually entitled to assume the Employee can withstand the normal pressures of the job unless he knows of some particular vulnerability.

4. The Employer is generally entitled to take what he is told by his Employee at face value unless there is a good reason to think to the contrary

5. The indication of impending harm to health must be plain enough for any reasonable employer to realise he has to do something about it.
6. The Boss is only in breach of duty if he has failed to take reasonable steps bearing in mind the magnitude of the risk or harm occurring, the costs and practicality and the justifications for the risk.

7. The Employer can only be reasonably expected to take steps which are likely to do some good.

8. If the only reasonable steps would have been to dismiss or demote the Employee, the Employer will not be in breach of duty in allowing a willing Employee to continue in the job.

9. In all cases, it is necessary to identify the steps which the Employer both could and should have taken before finding in breach of duty of care.

10. Finally, the Claimant must show that the breach of duty caused and materially contributed to the harm suffered and it is not enough to show that occupational stress has caused the harm.

The Judge found on a factual basis that he couldn’t see anything in the behaviour of
Gardai involved which constituted bullying or harassment. He commented that her complaint only arose in 2005 when she was asked to do something that she was unwilling to do. Further, as the Plaintiff’s claim turned on the events of only a couple of short days, he felt it to be more identifiable with a once off single incident rather than repetitive or inappropriate conduct and on that basis he dismissed the claim.

He did comment as an aside that even if he was mistaken on that, he was also of the view that the stress suffered by the Plaintiff had not been proven to be as a result of the matters complained of in this case. She had a prior history of stress and depression which was not disclosed until well in to the proceedings.

Guarantees to the Bank

An interesting decision was handed down by Mr. Justice Bermingham on the 7th March, this year in relation to a purported release from a Guarantee by a Guarantor over a debt from Bank of Ireland. In September, 2004, James Horgan guaranteed borrowings by his son, Robert Horgan and nephew, David Horgan. The Bank advanced €419,000 to purchase three properties of which two were sold at a profit but the third was never disposed of. In a not unfamiliar tale from the Celtic Tiger era, the property was worth €179,000 and is now worth €30,000.

The family had always intended that the father would be released from the Guarantee at an early stage, although this was disputed by the Bank. Mr. Horgan claimed that he had been shown a letter from the Bank releasing him from his obligations in 2005 but he was not in a position to produce it. The Bank intended ??? that the reason he couldn’t produce it was because such a letter never existed.

The principal borrower gave evidence that when his company had gone in to liquidation in February, 2009, the files had been taken by the Liquidator and when he got them back, that they were in some disarray and that the letter that he claimed existed releasing his father, had disappeared.

As Mr. Horgan could not produce the letter, Mr. Justice Bermingham found that on the balance of probabilities it had never been the Bank’s intention to release Mr. Horgan, Senior from his obligations pursuant to the Deed of Guarantee and thus he was liable for his son’s and nephew’s debts.

This case reiterates the importance of making sure that when one is leaving a financial transaction or arrangement or leaving a company set up, that you are released from all of the obligations to the company’s financial officers.

We recently had a case where a company director who left the company in 2000 is now being chased by the Company’s Bankers for debts incurred almost five years later, which really only crystallised when the company went in to liquidation subsequently in 2009. That case remains to be determined.

Reckless lending, the courts decree

Mr. Justice Hogan handed down a decision in March of this year, which clearly denies the existence of any such offence of reckless lending. Mr. Thomas Healy had sued Stepstone Mortgage Funding Limited in respect of a mortgage which he had taken out in September, 2007 for €120, 000 to purchase a property in Westmeath. He fell behind in his mortgage payments and in 2013, the mortgage company instituted proceedings in respect of the arrears.

Mr. Healy issued separate proceedings suing Stepstone for what he described as gross negligence and misrepresentation, and contended that the company had broken serious???? liquidity laws which had caused the financial collapse, and that the mortgage therefore was seriously flawed. He also sought damages for reckless lending and sought a declaration that any mortgage that they may hold was invalid.

Mr. Justice Hogan confirmed that there was no such offence of “Reckless Lending”. He referred to two recent decisions of Mr. Justice Charleton in the ICS Building Society and Grant, which were followed by Mr. Justice Kelly in McConnan v The President of Ireland.

He also looked back at the Law prior to the coming in to force of the Constitution and he said that he could find no example of where an existence of such a tort was acknowledged prior to the coming in to force of the Constitution on the 29th December, 1937. Accordingly he felt that those proceedings were unsustainable and struck them out.