The truth, as Oscar Wilde has Algernon Moncrieff remark to Jack Worthing in Act I of The Importance of Being Ernest, is rarely pure and never simple. Nowhere is this more evident than in a defamation courtroom. At common law, the defence of justification to a claim for defamation averred that the words complained of, in their natural and ordinary meaning, were true in substance and in fact. For example, in Irving v Penguin Books Ltd [2000] EWHC QB 115 (11 April 2000), American historian Deborah Lipstadt estabished that holocaust-denier David Irving had deliberately distorted evidence relating to the Holocaust, and thus successfully relied on the defence of justification to defeat Irving’s claim of defamation. In Ireland, the common law has been replaced by section 16(1) of the Defamation Act 2009 (also here), which provides that the defence of truth is made out where the defendant proves “that the statement in respect of which the action was brought is true in all material respects”. In England, the equivalent statutory provision is much more straightforward: section 2(1) of the Defamation Act 2013 provides that it “is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true”.…

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In Watters v Independent Star [2010] IECC 1 (3 November 2010) Matthews J in the Circuit Court handed down the first reserved decision under the Defamation Act, 2009 (also here). We will soon have the second. The politician Michael Lowry TD (pictured left) has taken a defamation action against journalist Sam Smyth over comments Smyth made in an article in the Irish Independent newspaper last May and on TV3 last June. I’ve already blogged about an earlier procedural skirmish in the case. The full action was heard today. According to the RTÉ news website (with links added by me to the relevant sections of the 2009 Act):

Mr Lowry says that Mr Smyth’s assertions portrayed him as corrupt, dishonest and untrustworthy and both unfit and unsuitable to be a minister or a TD. He said that other people had taken this same meaning from Mr Smyth’s comments. Mr Lowry says the comments were false and as such were deeply offensive and defamatory.

Mr Lowry is seeking that the court make a number of orders including that Mr Smyth apologise, publish a correction and refrain from making such public comments in the future. However, Mr Smyth is arguing that the comments made by him were true and represented his honest opinion.

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Section 28(1) of the Defamation Act, 2009 (also here) provides:

A person who claims to be the subject of a statement that he or she alleges is defamatory may apply to the Circuit Court for an order (in this Act referred to as a “declaratory order”) that the statement is false and defamatory of him or her.

Today, in an important decision, (that has been overshadowed by the coverage given to Doherty v Government of Ireland [2010] IEHC 369 (03 November 2010)), the first reserved judgment on the 2009 Act has been handed down on an application pursuant to this section (and another action seeking a declaration is pending):

Porn offender still capable of having character defamed, judge rules

A convicted porn user who had openly admitted his guilt and had sought psychiatric help is still capable of having his “residual” character defamed, a judge decided today.

Judge Joseph Matthews said that 34-year-old Barry Watters, of Hazelwood Avenue, Dundalk, Co Louth, had suffered a substantial loss of reputation through his guilt, conviction and imprisonment on pornographic charges. But he could not reasonably be said to be in the same category as a convicted prisoner who refused to accept his guilt, remained in denial and do absolutely nothing with no remorse, contrition, acceptance of wrong doing or show any intention to rehabilitate or not re-offend.

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