‘Fair reporting’ defence omitted in draft bill

Two recent cases offer context on online defamatory comments and when extensions to the time limit for making a claim can be provided, Pinsent Masons lawyers Laura Finn and Lisa Carty have written.

In the first, the High Court awarded damages of €40,000 to Stillorgan Gas Heating and Plumbing Limited after defamatory comments were made online.

Reputational damage

The decision shows that defamatory comments posted for a short period can cause reputational damage to a company and result in damages being awarded – even if those comments do not necessarily cause a reduction in sales.

Stillorgan was hired in early 2022 to repair the heating system of a rental property in Ranelagh, which was owned by the sisters of James Manning.

Manning was assisted in managing the property. Following a dispute, Manning posted several online reviews, which led to an action for defamation.

Manning failed to appear at a High Court hearing in October 2023, and the matter was back before the court in February for the assessment of damages.

The court used the framework for assessing damages identified by the Supreme Court in the 2022 Higgins v The Irish Aviation Authority case.

General damages awards in defamation cases fall within four general categories, ranging from level one to level four, based on the seriousness of the defamation.

The court used this assessment when assessing the reviews posted online by Manning. He accepted that he was responsible for four reviews published online, in which he described the company as “cowboys” and “gangsters” and stated that the Gardaí were “investigating the removing of items” from the property.

The court commented that the reviews “far exceed what might be described as the normal criticism associated with the cut and thrust of business” and noted that they alleged criminal conduct.

Word of mouth

The court was satisfied that the reviews met the definition of a ‘defamatory statement’ under the Defamation Act 2009, had the potential for wide circulation, and that word of mouth was an important factor in generating business.

It noted that two of the reviews were removed after 24 hours, and two were removed after four days.

The short time for which the reviews were live, together with the fact that the company was a well-established and trusted business, were factors in assessing the amount of compensation, according to the court.

While the company gave evidence of a reduction in sales, the court did not accept that, on the balance of probabilities, the allegations made in the reviews caused this.

It did find, however, that the reviews had caused general reputational damage to the company.

The court also noted that Manning regretted the tone used in the reviews and apologised for reposting one of the reviews under the other individual’s name after his initial post was removed.

The damages were determined to be in the ‘moderate’ category and the company was awarded €40,000.

This decision shows that the courts will use the guidelines for the assessment of damages set out in the 2022 Higgins case.

Extensions of limitation periods 

In another recent case, the High Court refused to grant an extension to the one-year limitation period for bringing a defamation action to court.

The case concerned an application by Catherine Logan for an extension.

In this case, Logan sought damages for defamation arising from an email sent on 14 July 2023, two emails sent on 3 August 2021 and a telephone call on 3 August 2021.

The action was issued on 2 August 2023.

Logan was a voluntary board member of the Jack & Jill Foundation and had previously provided communications and marketing consultancy services to Lefgem Limited, a company owned by her husband.

Lefgem was the owner of the Johnstown Estate and Hotel, and Peter Wilson and David Godwin each had interests in privately owned lodges on the Johnstown Estate.

Dispute

A dispute had arisen between Godwin and Wilson and Lefgem in relation to services for the lodges.

The court first considered the reasons for the delay given by Logan, as well as the effect of the delay on the evidence.

The court found that they weren’t particularly persuasive, given that her primary reason for not issuing proceedings was that the charity was struggling due to the effects of the pandemic.

Logan also argued that because she was home-schooling her young children during the pandemic, the statements could not be given the consideration they deserved.

The court found that these fell short of the sorts of reason that would engage the exceptional nature of its power to extend the limitation period.

Making statements in good faith

Finally, Gerry Adams was recently awarded €100,000 in damages in a defamation case brought against the BBC over a Spotlight programme.

The BBC relied on the defence of fair and reasonable reporting on a matter of public interest, as set out in section 26 of the act.

The jury found that the statements were not made in good faith, as required.

The Draft General Scheme of the Defamation (Amendment) Bill 2024, proposed simplification of the defence of fair and reasonable reporting on a matter of public interest, a defence that has never succeeded in Ireland to date – but the proposed reform is not included in the current iteration of the bill.