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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