6 days ago
Supreme Court upholds €75,000 award to businessman mistakenly identified as a tax defaulter
A publisher has lost its
Supreme Court
appeal over a jury's award of €75,000 damages to a businessman over an article in the Limerick Leader which mistakenly named him as a tax defaulter.
The appeal raised important issues concerning the nature and scope of the defence of qualified privilege under the Defamation Act 2009 and the common law.
On Thursday, the five-judge court said the defence would only apply to mass media publications in 'exceptional' circumstances, including reports of judicial and parliamentary proceedings, and is limited to 'fair and accurate' reports.
None of those circumstances applied to the June 2016 article in the Limerick Leader, published by Iconic Newspapers Ltd, Mr Justice Maurice Collins said when dismissing Iconic's appeal against the €75,000 award made by a High Court jury to William Bird after finding he was defamed in the article.
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After the Court of Appeal dismissed Iconic's appeal against the jury's decision, the Supreme Court agreed to hear a further appeal in relation to the nature and scope of the qualified privilege defence and its relationship to other defences.
Iconic had pleaded the words complained of were published on an occasion of qualified privilege. It pleaded that, acting in good faith, it published the article as part of its lawful and legitimate duty to report on matters of public interest, namely settlements made with Revenue.
In the Supreme Court judgment, Mr Justice Collins said the context behind the 2009 Act was the need to balance competing constitutional values, the State's ability to vindicate the good names of citizens on the one hand, and the rights of citizens to freely express their convictions and opinions, and the media's liberty of expression, on the other.
While qualified privilege can apply across a wide variety of circumstances, it applies to statements made 'in the discharge of some public or private duty', he said.
The defence represents a 'delicate and sensitive balance' given the risk of reputational harm that can be caused be honest error, he said. The key concept is reciprocity between the duty and/or interest on the part of the speaker and listener respectively, although some instances of qualified privilege might be difficult to strictly rationalise on that basis.
Only in exceptional circumstances will qualified privilege apply to communications to the world at large, he said. Such circumstances included replies to public attack and reports of judicial, parliamentary or other proceedings.
In relation to such proceedings, it is not the source, but rather the 'nature' of those, or other matters in which the public is interested, that provides a basis for a defence. The defence of privilege in such circumstances was limited to fair and accurate reports and none of those circumstances applied in the Iconic case.
In all jurisdictions other than the US where media publications can enjoy protection from being sued, they are subject to additional conditions beyond the requirement for honest belief/absence of malice, such as requirements the publication was 'reasonable or responsible'.
The article in question, in its reference to Mr Bird, was 'materially inaccurate', the judge said. it had wrongly linked him to three companies in the defaulters' list with which he had no association. He was identified in the article as a result of a mistake made by the journalist who wrote it and that mistaken identification involved 'a significant lack of care'
Iconic could not avail of qualified privilege in this case and its appeal must be dismissed on that point, he held.
Mr Bird, the judge said, was entitled to his costs at High Court level, not at Circuit Court level as the trial judge had ordered. A proper application of the High Court judge's costs discretion would mean observing the €75,000 award was at the boundary of the High Court's jurisdiction and bringing his case in the Circuit Could would have carried a significant risk that Mr Bird would have been under-compensated, he said.
