The long awaited Defamation Act 2009 (the Act) introduced some long overdue changes and reform that benefit both Plaintiffs and Defendants. It is not the intention of the author to examine in depth all the changes incorporated in the Act, but to focus specifically on one of the major changes brought by the Act; the abolishment of the distinction between libel and slander.
The Act has abolished the distinction between libel and slander and in its place has introduced a new tort of defamation which incorporates both libel and slander.
Crucially, under section 68 of the Act, the limitation period for the new tort of defamation is only one year (this can be extended to two years at a Judge’s discretion where the interest of justice so require). This is a significant change given that the previous limitation period was six years for libel actions and three years for slander actions. Clearly, this reduced limitation period will benefit defendants where plaintiffs and practitioners are not pro-active in pursuing claims in a fast and efficient manner. The position of Defendants in this regard is further strengthened by Section 11 of the Act. Prior to the enactment of the Act, a new cause of action arose with every publication, however the position is now that only one cause of action will arise out of a situation involving multiple publications. For example, previously, each time an article was downloaded from the internet, a new cause of action would arise and the limitation period would re-start. This is no longer the case.
The abolishment of the distinction between libel and slander is a welcome change that will streamline this area of litigation. Previously slander was not actionable per se and one could only bring a claim for damages for slander if it could be proved that the Plaintiff suffered special damages or if it could be shown that the slander fell within specific exceptions. For example, in two recent successful Circuit Court actions in which Augustus Cullen Law obtained damages for a Plaintiff husband and wife, the Defendants attempted to have the case struck out claiming that it was a slander action in which there were no special damages suffered by the Plaintiffs. Augustus Cullen Law’s legal team successfully argued that the slander came within specified exceptions and therefore were actionable. Augustus Cullen Law went on to win both cases.
It should be highlighted that the Act does not apply retrospectively and only applies for causes of actions arising after the 1st January 2010. In the above example, the defamation of the husband and wife occurred in early January 2010, therefore the Act did not apply and the distinction between slander and libel existed right up to the hearing.
Lastly, when choosing which Court to bring an action in, practitioners should bear in mind that the jurisdiction for the Circuit Court in defamation cases has been raised to €50,000. Furthermore, Section 29 of the Act allows for Defendants to make a lodgement to the Court in satisfaction of the Plaintiff’s claim in defamation actions without an admission of liability. This brings the tort of defamation in line with other tort actions for damages.
If you have any further queries, please contact any of the following from our general litigation group:
- Damien Conroy, Associate Solicitor
30 November 2012