Introduction
A recent Court of Appeal Judgment, delivered by Mr Justice Brian
O’Moore1 has clarified the law surrounding the
defence of qualified privilege as provided for in S.18 of the
Defamation Act 2009 (the “2009 Act”) in
particular in relation to publications in the mass media.
Background
On 08 June 2016, Iconic Newspapers published an article
regarding the “Tax Defaulters List” in its Limerick
Leader newspaper. The Tax Defaulters List had originally been
published in the Government periodical Irish Oifigiuil. This
article claimed that William Bird of Henry Street, Limerick,
reached three separate settlements with the Revenue Commissioners
for under declaration of corporation tax and VAT, and under
declaration of PAYE/PRSI and VAT in relation to three companies
under his name.
As it transpired, Mr. Bird had made no such settlements with
Revenue and in fact Mr Bird had nothing to do with any of the
companies mentioned in the article at any time. Judge O’Moore
stated that “the suggestion that he had personally settled
with Revenue was completely erroneous”.
Court of First Instance Decision
The case first appeared in the High Court over the course of a
five-day trial which ran before Mr. Justice Owens. In their defence
Iconic Newspapers pleaded “that the words complained of
were published on an occasion of qualified privilege”, as
provided for in
S.18 of the 2009 Act. Iconic Newspapers claimed that they were
acting in good faith as the article was published as part of their
“lawful and legitimate duty to report on matters of
concern and/or interest to the public at large”.
Mr Justice Owens held that this was not an occasion of qualified
privilege. He stated that what had been reported by the Limerick
Leader to the public in their article was fundamentally inaccurate
and thus the defence of qualified privilege could not apply.
Iconic Newspapers appealed to the Court of Appeal.
Court of Appeal Decision
The argument made by counsel for Iconic Newspapers before the
Court of Appeal was that they had a social duty or social interest
under S.18(7) 2009 Act to communicate to the public the information
contained in the Tax Defaulters List. They argued that this applied
even if the information they conveyed to the public was incorrect,
which it was in this case.
In determining whether Iconic Newspapers could rely on qualified
privilege Judge O’Moore held that “it is necessary to
consider the pre-existing common law of qualified privilege and
also the context of the 2009 Act in which the subsection
appears”.
Common Law Position
Focusing on the common law of qualified privilege Judge
O’Moore looked at the cases of Kinsella v Kenmare
Resources2 and the English
decision in Reynolds v Sunday Times
Newspaper3. In Kenmare it
was held that the defence of qualified privilege is confined to
communications to those who are “likely to be directly
affected by the information communicated” and
“is only available in respect of private communications
and does not extend generally to mass media publications due to the
fundamental requirement of reciprocal duty and interest”.
Furthermore, in Reynolds it was determined that only in
exceptional circumstances could publication to the world at large
be protected by qualified privilege. Judge O’Moore held that it
is for the publisher who raises the defence of qualified privilege
to show that the circumstances are so exceptional that they fall
under the Reynolds doctrine.
Application of Common Law Principles of Qualified
Privilege
Applying the above to the case in question, Judge O’Moore
held that there was nothing exceptional about the tax affairs of an
“unknown” Limerick businessman to the extent that the
public had an interest in learning about them. Furthermore, he
stated that by allowing Iconic Newspaper’s claim this would
mean privilege would attach to occasions where a publisher honestly
but incorrectly published that an individual has been convicted of
a serious criminal offence.
Qualified Privilege Legislation
Having examined the common law interpretation of qualified
privilege, Judge O’Moore moved on to examining the 2009 Act. He
held that if Iconic Newspapers’ interpretation of S.18(2) was
deemed correct, it would mean that the essentially individual
nature of qualified privilege had been completely reversed and
would set the observations of the Court of Appeal in
Kinsella at nought. Judge O’Moore however, held that
this scenario would be, to use the phrase of Iconic Newspapers’
counsel, “unpalatable” and would be inconsistent
with the constitutional entitlement to the protection of an
individual’s good name.
The Judge also analysed section 18 (3) of the 2009 Act, which
lists different “occasions” of qualified privilege, one
of which was “a fair and accurate report or copy or
summary of any notice or other document issued for the information
of the public by on behalf of any Department of State for which a
Minister of the Government is responsible, local authority or the
Commissioner of the Garda Siochana, or by on behalf of a
corresponding department, authority or officer in a Member state of
the European Union.”
The Judge accepted that the publication in Iris Oifigiuil of the
Tax Defaulters List was such a “notice or other
document”. However, the Limerick Leader’s report of that
list was neither fair nor accurate. Judge O’Moore held that if
Iconic Newspapers was correct in its submission as to the scope of
section 18 (2) then its misrepresentation of the Tax Defaulters
List enjoys qualified privilege under subsection (2) but would not
enjoy qualified privilege under subsection (3) because it failed to
report the contents of the list in an accurate way. He held that it
was unlikely that the legislature would have wished for such an
“extraordinary result”.
Judge O’Moore also touched on the defence of fair and
reasonable publication on a matter of public interest, under S.26
of the 2009 Act. He held that if Iconic Newspapers interpretation
of section 18 (2) was correct, then section 26 would be completely
unnecessary. The defence under section 18 (2) could only be
available in exceptional circumstances where there was publication
to the world at large, and no such special circumstances were
established in this case.
The Judge concluded that section 18 (2) required a defendant
show that the persons receiving the information are subject to such
a duty or interest to do so that they are likely to be directly
affected by the information communicated to them, as described by
the Court of Appeal in Kinsella. While Iconic Newspapers did not
rely on the section 26 defence, the Judge held that in all
likelihood they would have failed to establish a defence under that
section having regard to the matters which a court must take into
account when applying the section 26 defence, including the extent
to which the defendant represented the plaintiff’s version of
events and the extent to which a reasonable attempt was made by the
defendant to obtain and publish a response from the plaintiff.
Conclusion
This decision accords with what would have been the general
legal understanding of the qualified privilege defence at common
law and pursuant to section 18 (2) of the 2009 Act. Generally, it
would have been considered that qualified privilege was a defence
confined to publications or communications that were other than in
the mass media save for those under section 18 (3) where specific
“occasions” of the privilege have been identified by the
legislature. The defence of qualified privilege, under S.18(2), has
been shown to only be available to the mass media under
“exceptional circumstances”. What those
“exceptional circumstances” might be remains to be
seen.
While the decision might not be regarded as favourable to the
media it did provide some clarification on the privilege available
to the mass media when publishing fair and accurate summaries of
information formally communicated by State bodies. The court did
not have to formally consider the applicability of section 18 (3)
so the comments of the Judge would not be technically binding but
should carry some weight when a court has to ultimately decide on
privilege claimed in relation to a publication of information
released to the public and the media by State bodies.
Footnotes
1. Judgment agreed with by Mr. Justice Donald Binchy and
Mr. Justice Seamus Noonan
2. [2019] IECA 54
3. [2002] 2 AC 127
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