knowledge | 22 June 2017 |
Refusal to Restrain Notification of Potential Defamation Risk not Contrary to Freedom of Expression
Section 27 of the Defamation Act 2009 introduced a statutory defence of innocent dissemination. In a recent case the Court of Appeal has considered to what extent someone who fears that a book that may be defamatory of them is legally entitled to communicate that fact to a distributor and seller.
In Jones v Coolmore Stud,1 the plaintiff worked for the defendant, a prominent stud farm, for a number of
years. After he resigned he wrote a book about his experience there and
privately published it. The stud farm’s
solicitors wrote to distributors and booksellers to warn them about disseminating
the book on the basis that it was defamatory and that legal action would ensue.
The plaintiff sought an injunction to prevent the
defendant from adopting measures to prevent or restrict dissemination of the
book. He argued that the defendant was not entitled to contact these third
parties when there had not been any determination of libel. He also wanted the
court to declare that his book was not defamatory of the defendant.
In the High Court, Costello J held that the defendant was
entitled to protect its interests and it was legally permissible to write to
distributors and sellers with a view to closing those avenues of dissemination.
Also, the court could not make the declaration of non-defamation sought by the
plaintiff at the interlocutory stage of proceedings. The plaintiff appealed.
On appeal, Ryan P noted that s27 provides a statutory
defence of innocent publication. The
defendant had legitimately put potential distributors and retailers on notice
of its claim of defamation so as to make it clear to them that they could not rely
on that defence if it brought proceedings for defamation. This was a legitimate
legal step and the plaintiff was not entitled to an injunction to prevent it. The fact that it had not been established in a
court that the publication was defamatory was irrelevant.
In relation to the plaintiff’s complaint that he had been
bypassed by the defendant, the court held that a party was not obliged to sue
any particular person, such as the author of allegedly libellous material,
before taking steps in relation to other persons to protect its reputation. Also,
the defendant was free to choose between persons having liability and proceed against
one or more and not against others. An
author could not insist that a person claiming to be defamed in his work had to
sue him as well as others, or instead of others. The High Court was also correct to say that it
could not make a declaration of non-defamation sought by the plaintiff at this
early point in the proceedings.
The defendant’s action did not interfere with the
plaintiff’s constitutional right of freedom of expression. The plaintiff was
free to express his views and to publish them, subject to the law of defamation
and other lawful inhibitions on expression. The fact that he was unable to
insist on distribution in a particular manner was not a restriction on his
freedom. It was also the case that other
parties were entitled to their rights including their reputations and they could
legitimately take steps to vindicate those rights or to inhibit attacks on
The reputational protection afforded to a complainant would be seriously reduced if he could not head-off publication or distribution by informing such persons of his allegations about the material.
Also contributed by Ciara FitzGerald.
-  IECA 164
This briefing is for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.