“The poor man, like the rich man, has the right to a good reputation…It is a travesty of justice to single out reputation as the human interest which one may only re-possess if one can pay for it.” (Law Reform Commission, Consultation Paper on the Civil Law of Defamation (1991), 436)
Traditionally defamation has been viewed as a struggle between the competing interests of freedom of speech and protection of one’s good reputation. In truth, defamation has been described as “wrongful publication of a false statement about a person which tends to lower that person in the eyes of right thinking members of society” (Quigley v. Creation ltd. [1971] IR 269), a definition that places emphasis on the vindication of one’s reputation. Defamation in Ireland is governed by the Defamation Act 2009 which replaced the Defamation Act 1961.
This essay will examine whether or not in the case of Sober v Rural Record if Sober was defamed in anyway, by considering all aspects of the case – regardless of ones wealth, influence or monopoly.
It is said in the case of Sober v Rural Record that the plaintiff is a member of the current Dáil and is her party’s spokesperson on health, she is a well known non-smoking tee-totaller who disapproves of smoking, drinking and the use of drugs. Yet, the Rural Record has purchased a photograph of a drunken woman in Temple Bar, dancing on the roof of a parked car while holding a vodka bottle and a joint. But the photograph has been digitally manipulated so the face of the drunken woman becomes that of Sober. The photograph is run in the gossip column of the Rural Record, along with a suggestion that Sober needs to “chill out.”
It is of my opinion; that it is arguable that Sober has and has not been defamed. I will discuss why below in the five main elements of defamation but will ultimately come to a decision whether she has been defamed or not.
1. The statement – A “statement”, in this case, the photograph and caption “chill out”, needs to be spoken, written or otherwise expressed in some manner. Because spoken word seems to often fade more quickly from memory, slander is often considered less harmful than libel. Libel and slander were the two historical subdivisions of defamation, relatively unimportant in practice. (Findlaw, 2017)
Libel is defined as “publication in permanent form, e.g. writing, TV. and radio broadcasts.” (Defamationireland.com, 2017)
Slander is defined as a “publication in impermanent form, e.g. speaking or gesturing.” (Defamationireland.com, 2017) Section 5 of the Defamation Act 2009 abolished the distinction between libel and slander, and replaced it with a collective “tort of defamation”.
The digitally altered photograph with the suggested “chill out” were written in the gossip section of the Rural Record. It can be immediately considered libel, due it being published in permanent form, but then again, it cannot as there is now only a collective tort of defamation. Therefore, it can be argued here that the statement is of defamatory value.
As example of where a defamation lawsuit was won on the statement was Cullen v O’Leary, May 2010 where, on live television Mr. O’Leary described Mr. Cullen as a “failed Aer Lingus pilot”. An apology was released and Mr. O’Leary also agreed to make a donation to a charity by Mr. Cullen as part of the settlement. Mr. Cullen said the remark caused “considerable upset to both himself and his family”, but was pleased his “good name and reputation as a pilot” was upheld. (Defamationireland.com, 2017)
2. Publication – For a statement to be published, a third party must have seen, heard or read the defamatory statement. A third party is someone apart from the person making a statement and the victim of the statement. A defamatory statement does not need to be printed in a book. Rather, if the statement is heard over the television or seen scrawled on someone’s door, it is considered to be published. (Findlaw, 2017)
As the Rural Record is a daily newspaper and the gossip column is part of the publication, it is inevitable that a third party has seen the image, therefore, again making the statement of defamatory value.
3. Injury – To prove there has been a cause of defamation, the statement must be shown to have caused injury to the victim of the statement. This means that the statement must have hurt the reputation of the victim of the statement. (Findlaw, 2017)
This is where the case can be argued not to be defamatory. Although we are given the brief of the case, we are not entirely sure whether Sober has incurred any repercussions because of the publication of the statement. It would be argued that Sober could have possibly lost her job and a position of power within in the Dáil, her reputation would be in tatters after such a statement went to print, and with the loss of her job, there would also be a loss of money. But again, we are not told of any of this, making it hard to determine if there is defamatory value. Also, the Rural Record had published the statement in the “gossip column” which, by “right thinking members of society” (Quigley v Creation ltd. [1971] IR 269) should be taken lightly and pay no mind to such a story. Therefore, in relation to the element of injury in defamation, I would argue here that no defamation has been caused to the plaintiff.
4. Falsity – Defamation law will only consider statements defamatory if they, in fact, are false. A true statement, no matter how harmful, is not considered defamation. In addition, because of their nature, statements of opinion are not considered false because they are subjective to the speaker. (Findlaw, 2017)
In the case of this statement the photograph has been “digitally manipulated so the face of the drunken woman becomes that of Sober” which makes this on its own visible defamation, but it is known that the photo is not, in reality, that of Sober but a completely different individual although, along with existing evidence I conclude that this element is positive in defamation.
5. Unprivileged – In order for a statement to be defamatory, it must be unprivileged. Lawmakers have decided that you cannot sue for defamation in certain instances when a statement is privileged.
Whether a statement is privileged or unprivileged, is a policy decision that rests of the shoulders of the lawmakers. They [lawmakers] need to avoid defamation against the importance that the person making the statement has the free ability to say what they want.
As a result of this, lawmakers themselves are immune from defamation suits resulting from statements made in legislative chamber or in official materials. (Findlaw, 2017)
Here we could possibly see a defence of qualified privilege being made by the Rural Record. Section 18 of the defamation act shows that a defence of qualified privilege can be made for the defendant to prove that the statement in of which the action was brought is true. (Irishstatutebook.ie, 2017) which is seen to not be the case, but on the other hand the defendant acted in bad faith or out of spite, ill will or improper motive and the manner and extent of publication of the statement exceeded what was reasonably sufficient in the circumstance. (Section 19 Defamation Act 2009 (b) (d)) Therefore, with it being known that the statement against Sober is false and there is no way for the Rural Record to prove that it is true, the victim has been defamed.
Taking the elements of defamation into consideration and all that I have learned and the conclusions I have come to, Sober has been defamed, with her reputation being thrown into the fire. It can be seen clearly as malicious defamation to the subject of the statement.
Prior to the enactment of the 2009 Act there were a number of procedures and provisions within the 1961 Act which hindered the efficiency of the law in its primary goal of vindicating one’s reputation. These obstacles further drove up the costs involved in defamation actions for both plaintiffs and defendants.
The ‘offer to make amends’ procedure is provided for under section 22 and 23 of the 2009 Act. A publisher of an alleged defamatory statement can now make an offer of amends, whereas in the 1961 Act only an unintentional, or innocent publisher of a defamatory content could avail of this process. (Section 17 Defamation Act 1961) This change affords a wider range of plaintiffs an opportunity to settle the dispute without going through a lengthy, and costly, litigation, which both parties could agree on.
The offer to make amends includes a published correction and apology, and payment of compensation of costs. Furthermore, if not accepted, an offer to makes amends serves as a mitigating factor when assessing an award of damage. (Section 24 Defamation Act 2009) In Britain, this has led to significant reductions in damages.
Christie v TV3 ([2015] IEHC 694) was the first case in which this provision was applied and resulted in damages being reduced by a third; subsequent cases have also seen discounts of twenty per cent. (see Daniel Ward v. The Donegal Times and Liam Hyland; Sean Quinn v. The Donegal Times and Liam Hyland)
It also could be argued that Sober has been a victim of Harassment. Section 10 of the Non-Fatal Offences Against a Person Act 1997 says that “Any person who, without lawful authority or reasonable excuse, by any means including by use of the telephone, harasses another by persistently following, watching, pestering, besetting or communicating with him or her, shall be guilty of an offence.” (S10 SS1 Non-Fatal Offences Against a Person Act 1997) It can be be seen as harassment when –
• “he or she, by his or her acts intentionally or recklessly, seriously interferes with the other's peace and privacy or causes alarm, distress or harm to the other” (S10 SS2 (a) Non-Fatal Offences Against a Person Act 1997) or,
• “his or her acts are such that a reasonable person would realise that the acts would seriously interfere with the other's peace and privacy or cause alarm, distress or harm to the other.” (S10 SS2 (b) Non-Fatal Offences Against a Person Act 1997)
In this case, the Rural Record would have no reasonable excuse for printing such a photograph in their gossip column. Malice and harm were intended.
After running this particular issue of the Rural Record, the photographer who took the original photograph that, had been digitally manipulated, claims that the usage of the photograph breaches her moral rights under the Copyright and Related Rights Act 2000.
Article 40.3.2 of the Constitution states “the State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen”
“Copyright is a property right whereby, subject to this Act, the owner of the copyright in any work may undertake or authorise other persons in relation to that work to undertake certain acts in the State, being acts which are designated by this Act as acts restricted by copyright in a work of that description.” (S17 (1) Copyright and Related Rights Act 2000)
Under the Copyright and Related Rights Act 2000, Chapter 7, Copyright: Morals Rights, the photographer, who is the author, has made clear that she too, has had her reputation damaged due to the publishing of this statement. Although the author has right of paternity even if the work has been adapted (S107 S108 Copyright and Related Rights Act 2000) they also have the right to object to any distortion or derogatory action made to the work, in this case, the face of Sober being digitally manipulated onto the photograph. (S109 SS2 Copyright and Related Rights Act 2000) It has become a question of Integrity Right and it is applied to this case. ((S109 SS2 and SS3 Copyright and Related Rights Act 2000). Furthermore, the alteration of the work infringes the right of integrity as it is exposed in the course of business and trade and has been made available to the public (S112 (c) and (d) Copyright and Related Rights Act 2000), and also, due to the animosity of the action, the author has the right to not be falsely attributed to the work, in this case, the author would like to have their name taken away from the work as it has been digitally manipulated by the Rural Record. In a sense, the author has now been defamed as well as Sober and copyright has been breached, which could incur huge consequences for the paper. A suitable remedy, I would advise, is to issue an apology to the author and if needs be, a settlement for damages should also be reached amicably.
Once again another issue has arisen from the publication of this statement – The woman who was actually dancing on the car in the photograph, has contacted the newspaper and claims that the printing of the altered photograph is in breach of her legal right of privacy under the Copyright and Related Rights Act 2000.
There is no absolute Irish Law that protects the right of privacy when it come to statements made about them, be it in any format (TV, Radio, Print, etc.) Copyright law may be used when talking about the issue of privacy, but, in this case the Copyright and Related Rights Act 2000 cannot really be applied to protect the plaintiff’s accusation of the breach of her legal right to privacy. Here’s why:
• A person, who for private and domestic reasons, commissions a photo where copyright subsists in the resulting work, has the right not to have copies made available to the public. (S114 SS1 Copyright and Related Rights Act 2000) Firstly, the plaintiff did not commission the photograph to be taken of her, and secondly, it can be argued that, because the photograph was taken in a public place, her privacy rights have been waivered. Therefore, making her claim obsolete.
• The act of making this work available to the public, infringes the rights of the person who commissions. (S114 SS2 Copyright and Related Rights Act 2000) Again, the work was not commissioned by the plaintiff and also, as the photograph went to print after being digitally manipulated to show the face of Sober, it can be said that the plaintiff would not be able to be identified in the photo and the only people who could identify her would be people that would have seen her there.
• Will not be infringed by an act under incidental manner. (S114 SS3 Copyright and Related Rights Act 2000) Although the photo was not published under incidental manner, there are no grounds to take a case against the Rural Record for what the plaintiff claims. In truth, the photograph was taken in a public place, when, even though she was drunk, it was her own decision to dance on top of a parked car.
In my opinion, there has been no breach in privacy and the plaintiff’s claim would be dismissed if brought to court.
“Be thou as chaste as ice, as pure as snow, thou shalt not escape calumny.” (William Shakespeare, Hamlet (1600-02), Act II, scene 1, line 138)
Bibliography
Statutes:
Defamation Act 1961
Defamation Act 2009
Copyright and Related Rights Act 2000
Non-Fatal Offences Against a Person Act 1997
Cases:
Christie v. TV3 [2015] IEHC 694
Quigley v. Creation ltd [1971] IR 269
Cullen v. O’Leary (2010)
Journals:
Law Reform Commission, Consultation Paper on the Civil Law of Defamation, 1991
Books:
Quinn, F. (2013). Law for journalists. 4th ed. London: Pearson, p299-391
Murphy Y. (2011) Journalists and the Law, 2nd edit (Dublin, Round Hall Sweet & Maxwell)
William Shakespeare, Hamlet (1600-02), Act II, scene 1, line 138
Websites:
Findlaw. (2017). Defamation Law: The Basics – Findlaw. [online] Available at: http://injury.findlaw.com/torts-and-personal-injuries/defamation-law-the-basics.html.
Defamationireland.com. (2017). Slander and Libel. [online] Available at: https://www.defamationireland.com/libel-and-slander/
Irishstatutebook.ie. (2017). Defamation Act 2009, Section 18. [online] Available at: http://www.irishstatutebook.ie/eli/2009/act/31/section/18/enacted/en/html#sec18
Www2.austlii.edu.au. (2017). Mistake and qualified privilege. [online] Available at: http://www2.austlii.edu.au/~alan/aktas.html