Defamation Solicitor | Dublin, Ireland

Defamation in the Workplace

We advise both employers and employees on what constitutes defamation in the workplace and assess the likelihood of a successful claim.

Bringing a Defamation Claim



We counsel employees on alternatives to a claim, bringing a defamation claim, potential consequences and inherent risks.

Responding to Defamation Claim

If an employer is subject to a defamation claim from an employee, we can assist in mitigating the risk, responding and achieving a successful outcome.

Settlement & Compensation

We vigorously and earnestly advocate on behalf of our clients to ensure they obtain the equitable compensation they deserve due to defamation in the workplace.

Defamation in the Workplace

The workplace is a very unique environment. After friends and family, we probably spend more time with our colleagues, then we do with any other category of people.

Colleagues may say certain things that are conveyed relative to a particular context within the workplace environment. An employer may make hurtful comments regarding one's performance and professionalism. However, what happens when those comments or statements go beyond 'banter' or 'constructive criticism'? What is defamatory? What are the defamation laws in Ireland? How can you prove defamation and what are the damages in a defamation claim?

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. 

Section 6 of the Defamation Act 2009 provides that:

6.— (1) The tort of libel and the tort of slander—

(a) shall cease to be so described, and

(b) shall, instead, be collectively described, and are referred to in this Act, as the “ tort of defamation ”.

(2) 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.

(3) A defamatory statement concerns a person if it could reasonably be understood as referring to him or her.

(4) There shall be no publication for the purposes of the tort of defamation if the defamatory statement concerned is published to the person to whom it relates and to a person other than the person to whom it relates in circumstances where—

(a) it was not intended that the statement would be published to the second-mentioned person, and

(b) it was not reasonably foreseeable that publication of the statement to the first-mentioned person would result in its being published to the second-mentioned person.

(5) The tort of defamation is actionable without proof of special damage.

What does a 'Defamatory Statement' or 'Defamation' mean?

Under the Defamation Act 2009, a "defamatory statement” means a statement that tends to injure a person’s reputation in the eyes of reasonable members of society.

A "statement” includes; a statement made orally or in writing; visual images, sounds, gestures and any other method of signifying meaning; a broadcast on the radio or television; anything published on the internet; or electronic communication.

An "electronic communication” includes a communication of information in the form of data, text, images or sound (or any combination of these) by means of guided or unguided electromagnetic energy, or both.

What is the the difference between 'Libel' and 'Slander'?

'Libel' refers to the written word, while 'slander' refers to the sppken word.

As a consequence of the Defamation Act 2009, the distinction has become somewhat irrelevant in Ireland.

What is 'Defamatory of Character'?

In order for an applicant to bring a claim for defamation, it will be necessary to prove that the statement made bears a defamatory meaning, in that it is probable or actually undermines the reputation of the individual concerned. Accordingly, in order to bring a successful claim for 'defamation of character', an individual must prove that, through an objective analysis, the statement in question contains an imputation that has a tendency to injure his or her reputation.

What is a Defamation Action?

A defamation action means an action for damages for defamation, or an application for a declaratory order.

A court may make a declaratory order if it is satisfied that; a statement made is defamatory of the applicant and the respondent has no defence to the application; the applicant requested the respondent to make and publish an apology, correction or retraction in relation to that statement, and the respondent failed or refused to accede to that request or, where he or she acceded to that request, failed or refused to give the apology, correction or retraction the same or similar prominence as was given by the respondent to the statement concerned.

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. 

1. 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.

No matter how false or malicious a statement, a defamatory statement in not actionable unless it is published to a person other than the 'defamed' individual.

Per Esher MR in Pullman v Hill:

"If the statement is sent straight to the person of whom it is written, there is no publication of it; for you cannot publish a libel of a man to himself".

The Defamation Act 2009 does not distinguish between the various forms of possible publication, therefore, an article published electronically will be just as applicable as an article published in print. Words spoken online will equally be as actionable as words spoken in person.

The burden of proving the publication rests with the person alleging a defamation occurred. 

2. 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?).

In Hough v London Express it was held that, if there was a publication of material, and that the material was defamatory, it is irrelevant whether or not the person receiving that statement believed it to be true or otherwise:

"If words are used which impute discreditable conduct to my friend, he has been defamed to me, although I do not believe the imputation and may even know it is untrue."

Robertson & Nicol on Media Law:

"However irksome it may be to have inaccuracies published about one's life or behaviour - dates misstated, non-existent meetings described, and qualifications misattributed - there must be a 'sting' in the falsehood that reflects discredit in the eyes of society."

3. 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).

Publication of a Defamatory Statement

Section 6 (2) Defamation Act 2009: 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.

Natural and Ordinary Meaning

Jones v Skelton:

"The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words."

The Capital and Counties Bank Limited v George Henty and Sons: HL 1882:

"In construing the words to see whether they are a libel, the Court is, where nothing is alleged to give them an extended sense, to put that meaning on them which the words would be understood by ordinary persons to bear, and say whether the words so understood are calculated to convey an injurious imputation. The question is not whether the defendant intended to convey that imputation; for if he, without excuse or justification, did what he knew or ought to have known was calculated to injure the plaintiff, he must (at least civilly) be responsible for the consequences, though his object might have been to injure another person than the plaintiff, or though he may have written in levity only."

Jeynes v News Magazines Ltd and Another:

"The legal principles relevant to meaning . . may be summarised in this way: (1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naive but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any ‘bane and antidote’ taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, ‘can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation’ . . (8) It follows that ‘it is not enough to say that by some person or another the words might be understood in a defamatory sense.”

Innuendo and Defamation

Those who have made a defamatory statement may try to hide their meaning in the words of their publication, thereby making it more difficult to 'prove' or detect a strong defamatory meaning in their statement. This being so, the law assumes that an ordinary reader will be able to infer defamatory meanings from within the publication, by looking at the text, images or words spoken, and adducing their ordinary meaning, in context.

Grubb v Bristol United Press Ltd:

"any innuendo (that is, any allegation that the words were used in a defamatory sense other than their ordinary meaning) cannot rely on a mere interpretation of the words of the libel itself but must be supported by extrinsic facts or matters. Thus, there is one cause of action for the libel itself, based on whatever imputations or implications can reasonably be derived from the words themselves, and there is another different cause of action, namely, the innuendo, based not merely on the libel itself but on an extended meaning created by a conjunction of the words with something outside them. The latter cause of action cannot come into existence unless there is some extrinsic fact to create the extended meaning."

Russell v Stubbs Limited: HL 1913

"I am of opinion that this innuendo imports into the erroneous entry more than it can reasonably bear. For I think the test in these cases is this:- Is the meaning sought to be attributed to the language alleged to be libellous one which is a reasonable, natural or necessary interpretation of its terms? It is productive, in my humble judgment, of much error and mischief to make the test simply whether some people would put such and such a meaning upon the words, however strained or unlikely that construction may be. . . To permit . . a strained and sinister interpretation, which is thus essentially unjust, to form a ground for reparation, would be, in truth, to grant reparation for a wrong which had never been committed."

Skuse v Granada Television:

"The court should give to the material complained of the natural and ordinary meaning which it would have conveyed to the ordinary reasonable viewer, and assume that that hypothetical reasonable viewer is not unduly naive, nor unduly suspicious, but can read between the lines and read in an implication more readily than a lawyer; that he may indulge in a certain amount of loose thinking, but that he must be treated as being a man who is not avid for scandal and someone who would not select one bad meaning when other non-defamatory meanings are available."

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.

1. 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."

2. 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. 

Section 17 of the Defamation Act 2009 provides that:

"It shall be a defence to a defamation action for the defendant to prove that the statement in respect of which the action was brought would, if it had been made immediately before the commencement of this section, have been considered under the law in force immediately before such commencement as having been made on an occasion of absolute privilege."

3. 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. 

Journalistic privilege is an example of qualified privilege.

It has been said that, for the purposes of determining whether, in the context of a defamation action, a journalist had acted responsibly, it was permissible to take account of the meaning which a journalist thought an article had even though that is different from the meaning which the article had to the ordinary reasonable reader.

Bonnick v Morris, The Gleaner Company Ltd and Allen:

"Responsible journalism was the point at which a fair balance was held between freedom of expression on matters of public concern and the reputations of individuals. Nevertheless ambiguity can be a screen behind which a journalist could be ‘willing to wound, and yet afraid to strike’. It is a matter for the words in each case."

Reynolds v Times Newspapers Ltd and others: 

"To be justified, any curtailment of freedom of expression must be convincingly established by a compelling countervailing consideration, and the means employed must be proportionate to the end sought to be achieved. The House identified a defence of privilege where the statement involved discussing a matter of proper public interest, that the allegation said to be defamatory was part of the story, and make a real contribution to it, and that the information on which it was based had been acquired fairly, and the publisher had acted responsibly in publishing the information."

Horrocks v Lowe:

"For in all cases of qualified privilege there is some special reason of public policy why the law accords immunity from suit – the existence of some public or private duty, whether legal or moral, on the part of the maker of the defamatory statement which justifies his communicating it or of some interest of his own which he is entitled to protect by doing so."

However, it must be noted that Section 19(1) of the Defamation Act 2009, provides that qualified privilege "shall fail if, in relation to the publication of the statement in respect of which the action was brought, the plaintiff proves that the defendant acted with malice."

4. 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?

1. 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). 

2. Offer of Amends in Defamation Claims

Milne v Express Newspapers:

"The main parliamentary intention of the offer of amends procedure was promoting machinery to enable defamation proceedings to be compromised at an early stage without the expense of a jury trial. The procedure provided for appropriate vindication and compensation of a claimant, because if compensation was not agreed it was determined by the court on the same principles as defamation proceedings."

3. 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.

Jameel and Another v Wall Street Journal Europe Sprl (No 2):

"It is an established principle of the law of libel in this country that a claimant, whether individual or corporate, does not have to allege or prove special damage in order to establish a cause of action. Once the defamation is proved damage is presumed."

Dingle v Associated Newspapers:

"Damages for defamation are an expression of many contributing factors, and, as we know, they can be affected one way or another by a defendant’s conduct, by his pleadings, by his counsel’s handling of his case, just as, occasionally, even a plaintiff may find his damages affected by the way that he has behaved."

4. 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.

Nail and Another v News Group Newspapers Ltd and others:

"In defamation proceedings the damage to feelings is assessed as at the point of assessment, and conduct of the defendant after the publication may aggravate or mitigate the damage and therefore the award."

5. 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.