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MEDIA, SOCIETY, DEFAMATION – A NEW ERA? 21 January 2010. MEDIA, SOCIETY, DEFAMATION – A NEW ERA? The new regime following the Defamation Act 2009 DAVID PHELAN, Partner, Hayes solicitors. The Defamation Act 2009. Scope Have things changed with the 2009 Act? Are we now in a new era?
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MEDIA, SOCIETY, DEFAMATION – A NEW ERA? 21 January 2010
MEDIA, SOCIETY, DEFAMATION – A NEW ERA? The new regime following the Defamation Act 2009 DAVID PHELAN, Partner, Hayes solicitors
The Defamation Act 2009 • Scope • Have things changed with the 2009 Act? Are we now in a new era? • In order to decide that, I’ll look at the Act in terms of 4 areas: • 1. What constitutes an actionable defamation and what defences are available? In other words, has there been a change in the balance between freedom to publish as against the right of the individual? • 2. If sued, what options does a media Defendant have in dealing with the proceedings? • 3. What can a Court do if defamation is proven? • 4. Miscellaneous procedural changes
The Defamation Act 2009 • 1. What constitutes an actionable defamation?
The Defamation Act 2009 • What constitutes an actionable defamation? • In terms of media rights, this is the most important issue • But, the 2009 Act doesn’t materially change the existing law • The balance between the right to publish and the right to a good name has not materially altered
The Defamation Act 2009 • What constitutes an actionable defamation? (2) • Presumption of falsity remains • Some technical changes: • - Separate torts of libel and slander abolished and replaced with tort of defamation • - New definition of “defamatory statement”, but no material change • - No need to prove special damages (except in claims which survive on death)
The Defamation Act 2009 • What constitutes an actionable defamation? (3) • Defences • - A number of the existing defences are restated (truth, consent, honest opinion) • - Some existing common law defences now incorporated into the Act (qualified privilege, “Reynolds defence”) • - Defence of absolute privilege is broadened • - Innocent publication
The Defamation Act 2009 • 2. If sued, what options are open to a Defendant?
The Defamation Act 2009 • If sued, what options are open to a Defendant? • Here, there are important changes: • - Apology is not now an admission of liability • - Offer of amends procedure • - Lodgement can be made without admission of liability • Previously, a Defendant had to either fully defend or fully concede – Now there is scope for being tactical (and so defamation law has now been brought in line with other types of litigation).
The Defamation Act 2009 • 3. What can a Court do once defamation is proven? (remedies)
The Defamation Act 2009 • What can a Court do once defamation is proven? • Again, there are significant changes here • Damages –Judge must give directions/guidance to the jury • -Supreme Court, on an appeal, can substitute the damages amount it deems appropriate • Declaratory Order • Correction Order • Order prohibiting the publication of a defamatory statement
The Defamation Act 2009 • 4. Miscellaneous procedural changes
The Defamation Act 2009 • Miscellaneous procedural changes • Again, some significant changes: • - Shorter limitation period • - Action survives on death (special damages only) • - Body corporate can claim even if no financial loss • - Verifying Affidavits • - Multiple publication (NB: Internet and ISPs) • - Summary disposal of action • - Increased Circuit Court jurisdiction
The Defamation Act 2009 • Conclusion
MEDIA, SOCIETY, DEFAMATION – A NEW ERA? 21 January 2010