Return to upward trend seen in 2017 of defamation claims taken in the Circuit Court

The Courts Service Annual Report 2019 was launched by the Courts Service on 22 July 2020. While the Report shows a decrease in the number of defamation claims taken in the High Court last year, it also shows that there has been a return to the upward trend seen in 2017 of defamation claims taken in the Circuit Court. The number of claims taken in the High Court decreased by 16% from 186 in 2018 to 157 in 2019, while the number of defamation claims entered in the Circuit Court increased by 26% from 112 in 2018 to 151 in 2019.

It has been suggested that the striking increase of 85% in the number of defamation claims in the Circuit Court in 2017 was driven by the increase in the monetary jurisdiction for Circuit Court cases in 2014 from €38,000 to €75,000.[1]Social media also likely contributed to the rise, due to an increased tendency of social media users to publish remarks without going through the checks that would be in place in a traditional media organisation and consequently failing to consider the legal implications of what they are publishing.[2] The increase in Circuit Court cases reflected the trend of rising numbers of actions over alleged defamatory comments made on social media seen in the UK. That trend reversed for a time in 2015 and 2016, partly due to changes to the UK Defamation Act in 2013 which required defamation claimants to prove that a publication has caused or was likely to cause them “serious harm”. Such a threshold does not exist in Ireland.

However, figures released in June by the Ministry of Justice show that the number of defamation claims in the UK for 2019 is the highest seen in the last decade. There was a 22% increase in issued defamation claims compared to 2018. This follows a 70% increase in defamation claims in 2018 and a 39% jump in 2017. Notably, the volume of defamation claims in 2019 is 127% higher than it was in 2013, despite the introduction of the UK Defamation Act. Again, this may be a result of increasing information regarding individuals and companies being published, stored and used online.

New test established in the UK

The recent UK Supreme Court decision of Stocker v Stocker[3] saw a new test established to assist in attributing meaning to words prior to deciding whether the meaning assigned is defamatory. The courts in Ireland and the UK have traditionally used the standard of the meaning to be attributed by an ordinary, reasonable reader.

In this case, the Plaintiff Mr Stoker had entered into a relationship following the breakdown of his marriage. During a Facebook exchange, the Defendant Mrs Stocker made a post relating to Mr Stocker which stated “he tried to strangle me”. Mr Stocker claimed that this Facebook post would be understood by readers to mean that he had tried to kill her, however Mrs Stocker argued that the words meant that he had violently gripped her neck, inhibiting her breathing so as to put her in fear of being killed. In the Supreme Court, Lord Kerr held that Mitting J’s use of a dictionary during the High Court hearing to inform him as to the meaning of the words amounted to a “legal error” which was not a “realistic exploration of how the ordinary reader of the post would have understood it”.

Lord Kerr considered that the fact that the words were in the context of a Facebook post was highly significant. Addressing the question of how a Facebook post may be interpreted, Lord Kerr stated:

“Readers of Facebook posts do not subject them to close analysis. They do not have someone by their side pointing out the possible meanings that might, theoretically, be given to the post.”

Mrs Stocker’s defence of justification (truth) was successful - she was able to defend her comments as true without having to also demonstrate that Mr Stocker had actually intended to kill her. Although the ordinary, reasonable reader standard remains in this jurisdiction, the Irish Courts may well follow the Stocker decision when determining how a Facebook post or a tweet on Twitter would be interpreted by a social media user.

Recent defamation decisions in the Irish Circuit Courts

Claimants becoming aware that Irish Courts are prepared to award significant damages for defamatory material published on social media may have contributed to the resurgence in the number of defamation claims brought in the Circuit Court in Ireland. However, a number of recent decisions indicate that there may be a decreasing tolerance amongst the judiciary for frivolous or vexatious defamation claims. In a recent damages claim for €75,000 in the Circuit Court a Marks & Spencer customer alleged that she had been accused of not paying for a “Bag for Life”. The claimant stated that she had become embarrassed, shocked and upset when asked at the checkout if she could prove that she had paid for the bag.

However, Judge John O’Connor stated that a store checkout operator asking if someone had paid for a bag did not give rise to a defamation action nor did becoming upset at such a question justify a claim.

The claim was dismissed and, although no order was made as to costs, it was made clear by Judge O’Connor that future claims which produced no evidence of defamation would see costs awarded against the plaintiff. A similar outcome was seen in the Circuit Court where a claim by a 21-year-old woman that she was defamed when accused by staff of stealing a toy for her child was thrown out by Judge Jacqueline Linnane. In addition, the claimant was ordered to pay the legal costs of the action against Dealz Retailing Ireland and its security firm. The Judge noted that people “should be a little bit slower about going to their solicitors when things of this nature are said to them in shops”. It was also highlighted by the Judge that in such cases, unsuccessful claimants should pay the legal costs of defendants. This indicates that the Courts are actively discouraging those who may consider pursuing a baseless defamation claim.

Reform

Although the Defamation Act 2009 is subject to five-yearly reviews, the first review due in 2014 was not initiated until 2016 and has yet to be completed. Former Justice Minister Charlie Flanagan stated last November that he hoped the defamation review would be completed and options for reform presented to the Dáil before end of March 2020.

The Minister was speaking at a symposium on the reform of Ireland’s defamation laws attended by media, academics, the legal profession, social media companies, NGOs and relevant state bodies to consider four thematic issues arising from a public consultation on how the Defamation Act 2009 might be amended.

It was noted by the Minister that a free and independent media is vital to democracy and it is essential to avoid any ‘chilling effect’ on free speech of high libel awards. He highlighted that Defamation law in Ireland seeks to balance the right to freedom of expression, the right to protection of good name and reputation, and the right of access to justice, all of which are protected under both our Constitution and the European Convention on Human Rights

The Press Council of Ireland and the Office of the Press Ombudsman repeated their call for the government to complete a long-promised review of the Defamation Act 2009 in their annual report for 2019, published in May 2020. The chairman of the Press Council of Ireland highlighted in his introduction of the Report that large awards for defamation claims create a risk that publishers will go out of business, and may cause democracy to suffer through the suppression of the means of communicating facts and opinions.

Conclusion

The suggestion that social media may be giving rise to increased defamation claims in this jurisdiction is reflected in the type of enquiries we now regularly receive from corporate clients about publications on social media both from a defamation and IP infringement perspective. Claims of this nature are here to stay, however as the volume of these “social media” claims grow, the damages may reduce as the judiciary gets to grips with this area, as demonstrated by the above cases. There are indications for the traditional media that a downward trend in damages would apply to that area too.

The Stocker decision may be instructive for the Courts in this jurisdiction when approaching the task of assessing words published on social media which are alleged to be defamatory. There is little doubt that the traditional approach is outdated and inappropriate in the context of words published during transient exchanges online. As noted, reform of the Defamation Act 2009 is well overdue and would be welcome in light of the continuing trend of increasing numbers of defamation actions taken in the Circuit Court and the new challenges posed by claims arising in the context of defamatory words published on social media.