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Defamation: Staying out of Trouble When Writing Non-fiction with Rachel Fehily

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Rachel Fehily

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Most defamation cases are brought by litigants who have been defamed by newspapers. Authors can also be targets for defamation proceedings and publishers don’t like to be sued for defamation so it pays to know what you can and cannot say!

Litigation is expensive and can ruin the reputation of the author and the publisher. The law of defamation is different in different countries but for the purposes of Ireland the following is a brief overview of the law that I hope will point you in the right direction:

What is defamation?

Defamation law was updated in 2009 – the use of the terms “libel” and “slander” have been replaced by the word “defamation.” “Defamation” means the publication by any means of a defamatory statement. It can be published orally or in writing, by visual images, on the television, radio, internet or electronic communication.

A defamatory statement is a statement that tends to injure a person’s reputation in the eyes of reasonable members of society.

And be careful, you can defame a company as well as an individual under the 2009 Act.

What are the defences to Defamation?

Truth: The author must prove that the statement is true in all material respects. If some of the words aren’t true but they don’t injure the plaintiff’s reputation then the defence will not fail.

Absolute and qualified Privilege: This isn’t really relevant to writers but we need to give you the full picture. It covers situations where politicians in the Dail or Seanad, judges and lawyers in Court can express themselves freely without fear of being sued.

Qualified privilege covers communications where the informant has a legal, social or moral duty to communicate information. For example,  making allegations of incompetence of an employee. If the statement is made maliciously then the defence of qualified privilege isn’t valid.

Honest Opinion: The author must prove that the statement is based on an opinion and that opinion is honestly held. The writer must show that he or she believed in the truth of the opinion at the time of the publication of the statement, that the opinion is based on allegations of fact and that the opinion related to matters of public interest.

Consent to Publish: If the author can prove that the plaintiff consented to the publication of the statement then that is a full defence.

Fair and Reasonable Publication on a matter of Public Interest: This is known as the Reynold’s defence (the case brought by Albert Reynolds against the Times newspaper) and is based on the idea that journalists and newspapers are allowed a certain amount of protection when they discuss matters that are in the public interest as long as it was “fair and reasonable” to publish the statement.

Innocent Publication: Before the 2009 Act a publisher who published the work of another was equally as exposed as the author of the work. Since 2009 the publisher can defend him or her self if he or she proves that he or she was not the author of the statement, took reasonable care in relation to its publication and had no reason to believe that he or she caused publication of a defamatory statement.  The Act also outlines a class of people who are not considered to be an author, editor or publisher of a statement.

Offer to Make Amends: An offer to make amends is an offer to make a suitable correction and sufficient apology published in reasonable circumstances and to pay such damages, if any and costs as may be agreed. The offer must be made before the delivery of the defence and made in writing. This offer can be shown to the Court and may in some circumstances go towards mitigation and damages

Apology: An author may use his offer of an apology as evidence for mitigation of damages.

Remedies to Defamation: A defendant can seek a number of remedies in Court. The main ones are as follows:

Damages: Normally the defamed person will look for Damages – a sum of money to compensate for the defamation. Juries used to have a free hand in making their decision but since 2009 Judges will direct the jury based on submissions as to what factors the jury ought to have regard to.

Declaratory Order: A plaintiff can seek an order in the Circuit Court that the statement is false and defamatory of him.

Correction Order: A plaintiff can apply to Court during a defamation hearing for an order directing the author to publish a correction of the defamatory statement.

Prohibition Order:  A plaintiff can apply to Court to make an order prohibiting publication or further publication of the statement.

Blasphemous Matters:

The 2009 Act abolishes the old common laws in relation to seditious and obscene libel. If you publish as a writer a statement that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents to that religion then you may be found guilty of a criminal offence and fined up to €25,000. The offending book can be seized and disposed of by the court.

Online defamation:

The 2009 Act didn’t focus too much on giving protection to hosts in cases of online defamation. This means that there is limited immunity for online chat rooms and blogger hosts under European law, provided they act quickly to remove defamatory material when they become aware of it. Internet hosts usually remove user content if they are threatened with legal proceedings because it’s too expensive to hire lawyers to figure out if the material is defamatory or not.

The key for you as a writer is to try and avoid defaming anyone! There is no restriction on using brand names or company names in your writing, but do be careful what you say about them, and ensure that you have evidence to support your comments or claims.

If you are published by a larger publishing house, they will often ensure that your book has been ‘legalled’ i.e. read by a lawyer in order to ensure there is no content that could lead to difficulties. This is particularly true of memoir where one person’s recollection of an event may differ from what another considers to be the facts. If you are in any doubt at all concerning your writing, consult a solicitor. The key thing to remember is that once it’s in print, it cannot be taken back, so be sure of your ground.

About the author

© Rachel Fehily for writing.ie

Rachel Fehily was born in Dublin and is a graduate of Trinity College Dublin, The Kings Inns and University College Dublin. She has practised as a Barrister and a Mediator and is particularly interested in conflict resolution.

She has represented defendants before juries in criminal cases, victims of sexual abuse, litigants in medical negligence, defamation, family law and commercial cases. She has contributed articles to The Irish Times, The Sunday Business Post and Image Magazine.

Her first book “Break Up, Don’t Crack Up: A Practical Guide to Dealing with the End of your Marriage or Relationship” is due for publication by Blackhall Publishing in January 2012. Her website is http://www.familylawmediator.ie/ She is currently working on a novel and a self-help book for an international readership.

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