Court of Appeal clarifies law on qualified privilege defence in defamation claims arising from mass media publications

Introduction

A recent Court of Appeal Judgment, delivered by Mr Justice Brian O’Moore[1] 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 Resources[2] and the English decision in Reynolds v Sunday Times Newspaper[3]. 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.

[1] Judgment agreed with by Mr. Justice Donald Binchy and Mr. Justice Seamus Noonan

[2] [2019] IECA 54

[3] [2002] 2 AC 127