MEDIA, SOCIETY, DEFAMATION – A NEW ERA? 21 January 2010

1. MEDIA, SOCIETY, DEFAMATION – A NEW ERA? 21 January 2010

2. MEDIA, SOCIETY, DEFAMATION – A NEW ERA? The new regime following the Defamation Act 2009 DAVID PHELAN, Partner, Hayes solicitors

3. The Defamation Act 2009 • Scope • Have things changed with the 2009 Act? Are we now in a new era? • In order to decide that, I’ll look at the Act in terms of 4 areas: • 1. What constitutes an actionable defamation and what defences are available? In other words, has there been a change in the balance between freedom to publish as against the right of the individual? • 2. If sued, what options does a media Defendant have in dealing with the proceedings? • 3. What can a Court do if defamation is proven? • 4. Miscellaneous procedural changes

4. The Defamation Act 2009 • 1. What constitutes an actionable defamation?

5. The Defamation Act 2009 • What constitutes an actionable defamation? • In terms of media rights, this is the most important issue • But, the 2009 Act doesn’t materially change the existing law • The balance between the right to publish and the right to a good name has not materially altered

6. The Defamation Act 2009 • What constitutes an actionable defamation? (2) • Presumption of falsity remains • Some technical changes: • - Separate torts of libel and slander abolished and replaced with tort of defamation • - New definition of “defamatory statement”, but no material change • - No need to prove special damages (except in claims which survive on death)

7. The Defamation Act 2009 • What constitutes an actionable defamation? (3) • Defences • - A number of the existing defences are restated (truth, consent, honest opinion) • - Some existing common law defences now incorporated into the Act (qualified privilege, “Reynolds defence”) • - Defence of absolute privilege is broadened • - Innocent publication

8. The Defamation Act 2009 • 2. If sued, what options are open to a Defendant?

9. The Defamation Act 2009 • If sued, what options are open to a Defendant? • Here, there are important changes: • - Apology is not now an admission of liability • - Offer of amends procedure • - Lodgement can be made without admission of liability • Previously, a Defendant had to either fully defend or fully concede – Now there is scope for being tactical (and so defamation law has now been brought in line with other types of litigation).

10. The Defamation Act 2009 • 3. What can a Court do once defamation is proven? (remedies)

11. The Defamation Act 2009 • What can a Court do once defamation is proven? • Again, there are significant changes here • Damages –Judge must give directions/guidance to the jury • -Supreme Court, on an appeal, can substitute the damages amount it deems appropriate • Declaratory Order • Correction Order • Order prohibiting the publication of a defamatory statement

12. The Defamation Act 2009 • 4. Miscellaneous procedural changes

13. The Defamation Act 2009 • Miscellaneous procedural changes • Again, some significant changes: • - Shorter limitation period • - Action survives on death (special damages only) • - Body corporate can claim even if no financial loss • - Verifying Affidavits • - Multiple publication (NB: Internet and ISPs) • - Summary disposal of action • - Increased Circuit Court jurisdiction

14. The Defamation Act 2009 • Conclusion

15. MEDIA, SOCIETY, DEFAMATION – A NEW ERA? 21 January 2010