Defamation in the Workplace
What is the Defamation Act 2009?
The purpose of the Defamation Act 2009, is to ensure that an individual’s right to a good name, under the Irish Constitution, is upheld.
What are the Elements of Defamation?
The essential elements of the tort of defamation are that a statement be published, which undermines the reputation of an individual, who is reasonably identifiable.
Publication of a Defamatory Statement
The tort of defamation consists of the publication, by any means, of a defamatory statement concerning a person to one or more than one person (other than the first-mentioned person), and “defamation” shall be construed accordingly.
Undermines the Reputation of a Person
An individual may dislike or disapprove of a statement made about them. Their feelings may even be hurt. However, for a successful claim of defamation, the statement made must undermine the reputation of that person (e.g. what was the meaning and was it defamatory?).
Identification of Defamed Person
To bring a successful claim, an individual must prove that the defamatory statement could be reasonably inferred to relate to them personally (e.g. a defamatory statement concerns a person if it could reasonably be understood as referring to him or her).
Defences to Defamation
What are the Defences to Defamation?
Truth of a statement is an absolute defence. Fair comment may be considered, as will absolute and qualified privilege. Qualified privilege is often used by employers to defend robust statements concerning the performance of employees.
The Defence of Truth
Section 16 of the Defamation Act 2009 provides that: it shall be a defence (to be known and in this Act referred to as the “ defence of truth”) to a defamation action for the defendant to prove that the statement in respect of which the action was brought is true in all material respects.
Absolute Privilege
Absolute privilege is unlikely to arise in workplace defamation claims as it primarily relates to statements made in made in either House of the Oireachtas, the European Parliament or the exercise of judicial functions.
Qualified Privilege
The statement was published to or from a person or persons who had a duty to receive, or interest in receiving, the information contained in the statement. Very often, in workplace defamation claims, this defence is relied upon in relation to spoken or written words.
Honest Opinion
At the time of the publication of the statement, the defendant believed in the truth of the statement. The opinion leading to the statement must be made on empirically true and accessible facts.
What are the Damages for Defamation?
Assessing Damages in Defamation Claims
When assessing damages to be awarded, consideration is given to the nature and extent of the defamatory statement and the conduct of the parties (e.g. did the defendant offer an apology, correction or retraction of the statement, or an offer to make amends).
Special Damages in Defamation Claims
The court in a defamation action may make an award of special damages to the plaintiff in respect of financial loss suffered by them as a result of the injury to their reputation caused by the publication of the defamatory statement.
Aggravated Damages in Defamation Claims
The court may award aggravated damages when it can be shown that the defendant conducted his or her defence in a manner that aggravated the injury caused to the plaintiff’s reputation by the defamatory statement.
Punitive Damages in Defamation Claims
The court may award punitive damages when it is shown that the defendant intended to publish the defamatory statement, knew that the defamatory statement would be understood to refer to the plaintiff, and knew that the statement was untrue or was reckless as to the truth.
Conclusion
Employers’ liability for defamatory statements may arise from a variety of contexts involving employer-employee communication.
The principal employment actions giving rise to potential defamatory statements are terminations, references, dissemination of confidential information, evaluations, internal discipline and criticism.
By specializing exclusively on workplace legal and regulatory issues, Crushell & Co have a unique expertise and experience, through which we can objectively analyse and litigate work-related defamation claims.
