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Defamation of a company in the still un-commenced 2009 Act

Photograph of South Hetton Colliery 1831-1983 via aditnowIn the important decision of the House of Lords in Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359, [2006] UKHL 44 (11 October 2006) the House of Lords by a majority confirmed the traditional common law rule (see South Hetton Coal Company v North Eastern News Association Limited [1894] 1 QB 133) that a trading corporation was entitled to pursue a remedy in a defamation action without being required to allege or prove that the publication complained of had caused it actual damage; it is sufficient for a trading corporation to show that it is likely to be damaged in the way of business. Rossa McMahon has some strong words to say about the retention of the rule as a matter of Irish law by section 12 of the Defamation Act, 2009 (pdf), which provides

The provisions of this Act apply to a body corporate as they apply to a natural person, and a body corporate may bring a defamation action under this Act in respect of a statement concerning it that it claims is defamatory whether or not it has incurred or is likely to incur financial loss as a result of the publication of that statement.

Among many excellent points, I think that Rossa’s most telling point is this:

While the ability of companies to sue for defamation was regarded as already established in the common law, the explicit provision that financial loss need not be established appears to heighten the risk of McLibel type actions in Ireland.

He concludes with a comment about the timescale for the publication and commencement of the Act. It was enacted on 23 July 2009; it was finally officially published (pdf) about three weeks ago (it seems it was in a long queue for translations into Irish of all of the Bills enacted at the end of that session); but it is not to be commenced for a while yet: the Department of Justice website currently provides

The Act is expected to be commenced in January 2010 following the making of the relevant Rules of Court (an announcement will be made in due course).

We have waited for a long time for the Act, if not from the publication of the Law Reform Commission’s Consultation Paper and Report on the issue in 1991, then at least since the publication of the Report of the Legal Advisory Group on Defamation in 2003. It took more than six years for the Bill in that Report to lead to the 2009 Act; waiting more than six months for that Act to come into force hardly seems too much longer to wait.

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4 Responses to “Defamation of a company in the still un-commenced 2009 Act”

  1. Ronan says:

    Eoin,

    I think Daithi has a post on an Australian action called Whirlpool which never ran and was about web published injurious falsehood and there was also one on Ace Marketing which was quite funny, but on the mark.

    http://whirlpool.net.au/img/article/2clix/soc.pdf

    Course Mulvany v Betfair is of note in relation to the eCommerce Directive defence or host Defence as seen in Bunt v Tilley.

    My view is that companies should be included in the Act. The right to a good name and stemming irresponsible journalism is important.

    The new reliefs such as Declaration, Lodgment and Correction should be used more by the judiciary and Counsel briefing in such cases.

    The RSC Lodgment procedure will still have its uses in relation to overall cost penalties relating to vexatious, frivolous or indeed malicious prosecution of proceedings by any party to such an action.

    I’ve worked on 5/6 cases in the last 12 months involving pretty bad defamations which frankly (while not being a requirement) did validly damage the reputation, revenues and trade of the businesses in question. Claims of slavery, incitement etc.

    The ECHR is being construed and included more and more by the Courts, e.g., Article 6 (which while not being fully supported by Macken J. in Desmond v MGN) is often allowed in the case of companies. ‘Locking up granny’ for Civil Debt also backs this view up http://www.courts.ie/80256F2B00356A6B/0/C70D9DB2F22E09E9802575FC003C52A4?Open

    I share your views on commencement, and would highlight that the new remedies/defences have featured a fair bit in the UK in recent weeks: Kate Winslet, Ronaldo and Cheryl Cole. Lets hope the Rules Committee make matters clear.

    Ronan

  2. Is there any news on the Privacy Bill, which was originally to accompany the Defamation Act?

    I didn’t go through all the Oireachtas Debates on the Defamation Bill but I noted in my post that Minister McDowell appeared to take on board criticisms of the corporate defamation section and indicated that it might be reconsidered. From memory, the Defamation & Privacy Bills went by the wayside with the election and the former was suddenly revived and pushed through the Dáil rather quickly by the new Minister(s). I wonder if certain aspects of the legislation were due for reconsideration but this was then abandoned due to a changing of the guard?

  3. […] Healy continues that, whilst in July, the Department had said that the Act was expected to commence in October, the spokesperson confirmed that it is now expected to commence in January 2010. For earlier comments to the same effect, see Rossa McMahon (see also here). […]

  4. […] on the under-discussed provision allowing a company to sue for defamation here as did Eoin O’Dell here. Eoin also considered the constitutionality of the Act in this […]

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Me in a hatHi there! Thanks for dropping by. I'm Eoin O'Dell, and this is my blog: Cearta.ie - the Irish for rights.

"Cearta" really is the Irish word for rights, so the title provides a good sense of the scope of this blog.

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