By Dr Aileen O’Carroll
The Digital Repository of Ireland (DRI) Deposit Terms and Conditions states that the depositor ‘will promptly notify the Repository of any copyright, confidentiality, privacy, data protection, defamation, or similar or related issues pertaining to the digital objects’.
In this blog post, we ask what defamation risks should you be aware of if you are archiving an oral history that is un-anonymised, and the interviewee mentions a third party? We talked to Dr Eoin O’Dell, associate professor at the School of Law, Trinity College Dublin, and asked what researchers based in Ireland need to know about defamation law. Below is our understanding of some of the key issues that researchers should be aware of around current Irish legislation on defamation. Please note this is not official legal advice and should not be taken directly as legal advice – we encourage archives to seek out legal advice where required. The purpose of this blog post is to help people start thinking about what potential issues may arise.
Defamation is ‘a statement that tends to injure a person’s reputation in the eyes of reasonable members of society’ (s2, Defamation Act 2009; see also s6, 2). The distinction between libel (applied to writing) and slander (applied to speech) was abolished in 2009. The main remedy is damages, which can be high, as can the costs of defending a claim (they can be especially prohibitive to organisations with limited budgets.
For an archive, the current law on defamation carries two risks – first, the archive may be forced to defend a defamation case and second, additional costs will be incurred if the archive is found to have facilitated defamation.
How High is the Risk of Defamation?
Defamation only applies to living people, there is no risk involved if someone is deceased.
Defamation only applies to people. However, if a group or organisation is mentioned, and it is clear that the statement applies to a limited number of people within that group, then the statement can be defamatory.
The act outlines that what sounds like a group may in fact be recognisable identified/identifiable individuals if ‘the statement could reasonably be understood to refer, in particular’, that individual or those individuals (s10, Defamation Act 2009).
Example:
The Basil Growers Union stitched it up,
my motions never got to conference.
In this case, if the group of people in the Basil Growers Union who decide on which motions go forward are a small identifiable group of people, it may be defamatory.
‘Stitch up’ is problematic as it implies deliberate wrongdoing.
If due process of selecting motions occurred, ‘stitch up’ is false, and the statement is defamatory.
In Ireland, there is a financial risk attached to publishing a potentially defamatory statement, even if the defamation would be considered minimal.
In the UK, there is a defence where the reputational harm caused is limited.
In Ireland this defence does not exist, even a minimal defamation is actionable.
It is important to know that currently, even if the damages for fleeting harm are modest (eg., €500), the legal costs for defending a defamation case can be significant, and in losing a case, legal costs are typically awarded to the defendant (1).
As it is often much cheaper to settle a defamation case, than to risk having to pay high legal fees, many cases are settled before going to court (2). The government is considering altering the defamation law to reduce legal costs and payouts (3).
In Ireland, removing the defamatory statement from the public sphere, does not protect you from a defamation case.
Many recent defamation cases have been based on material found in newspaper archives in the UK online archives.
A recording and transcript are two different statements. You can defame in the recording and the same statement in the transcript would be considered a second defamation.
Is it Defamation?
Let’s look again at how defamation is defined: defamation is ‘a statement that tends to injure a person’s reputation in the eyes of reasonable members of society’ (s2, Defamation Act 2009; see also s6, 2).
It is not enough for a third party to be offended by a statement, they would additionally have to suffer reputational damage.
There are three questions you would need to ask about a statement:
- Does it damage someone’s reputation in the eyes of a reasonable member of society?
- Is it a fact?
- Is it false? ‘If defamatory, truth is a complete defence’ (s16, Defamation Act 2009).
Example:
Jane Doe, she is a sociopath. She has a habit of taking people’s ideas, putting them out there and then taking all the credit for them.
Does calling someone a sociopath damage their reputation?
What is the definition of a sociopath?
Do the facts presented support the definition?
Are the facts presented true?
This quotation would be considered a high risk of defamation.
Honest Opinion
There is a defence called ‘honest opinion’ in section 20 of the defamation act: ‘in the case of a statement consisting of an opinion, the opinion was honestly held’ (S 20, Defamation Act).
Saying ‘in my opinion’ or ‘allegedly’ before a statement does not protect you from being accused of and found guilty of defamation.
To be considered an ‘honest opinion’, the opinion needs to be supported by proven facts.
Example:
Jane Doe is a bit of a media whore anyway, is that a wrong thing to say? Anyway, so she could see a chance for herself, I will get myself in the media.
If Jane Doe frequently appears on the television and in newspapers (i.e. it is a proven fact that she is in the media), this can be considered an honest opinion.
Offence
As above, it is not enough for a third party to be offended by a statement, they would additionally have to suffer reputational damage. However, if reputational damage occurs, then the damages could take into account the level of offence suffered.
Moreover, if the statement could cause offence, then it would be necessary to consider the ethical commitments underpinning the research project and make an ethical decision on whether the statement should be included or not.
Example:
There would have been families with paramilitary connections, in the town, the O’Briens, who did not object to the school becoming integrated.
Labelling the O’Briens family as having a paramilitary connection may be true and defendable as true (for example if a family member has a paramilitary conviction), but may also cause offence to the family, and potential harm. Here it is an ethical question of whether that material is retained.
The researcher would need to ask themselves if there is a risk that the text will be harmful to the research participant? For example, might the text expose the participant to ridicule or have other adverse consequences for them?
For more discussion of these issues see ‘Respect: an EU Code of Ethics for Socio-economic Research’ (4).
Weak Defences
As we have seen above, the main defences to defamation are:
- The statement is true.
- Honest opinion (at the time of recording/publication the defendant believed in the truth of the opinion, and so believed on the basis of facts that were true or in respect of which the defence of privilege applies).
There are a number of additional limited defences which are unlikely to be available to a researcher or archivist. There is a very limited defence of fair and reasonable publication on a matter of public interest, but it has never been successfully relied upon. There is also a defence of innocent publication: That is, a person who was only the printer, exhibitor, or distributor of the material, not the author, editor or publisher, may be able to rely on this defence. However, it is unlikely that an interviewer or archivist could rely on this defence.
A final, limited, defence, rests on privilege. There are two types of privilege: ‘absolute’ and ‘qualified’. Absolute applies in a Court of law, Dáil, or the Seanad – someone speaking in these forums cannot be sued no matter what is said. Qualified is an accurate and fair account of what occurred in a court or Dáil – organisations or public meetings can attract qualified privilege. However, it can be defeated if the speaker acted maliciously.
Finally, please note that the fact that an allegation is in the public domain does not provide a licence to repeat it. If an allegation is defamatory, and it is repeated, the repetition is further defamation.
Conclusion
Researchers, whether conducting interviews or preparing those interviews for deposit in an archive, have a duty of care towards their interviewees. The risk of harm to the interviewee must be balanced carefully with the potential benefit of the research. In Ireland, when evaluating the risk of harm, researchers should also consider the risk of exposing interviewees, themselves, and the archive to the potentially crippling costs associated with Irish defamation cases.
In the pre-interview, interview, and when preparing the data for deposit in the archive, researchers should be alert for any of the following:
Confidential or sensitive information (about anyone). Examples include discussions of personal tragedies, medical conditions, sexual abuse or violence, criminal allegations, and defamation against named or identifiable third parties.
If the interviewee makes a statement which puts them at risk of harm, you must consider your ethical responsibilities to your interviewees. It may be appropriate to redact the statements.
Works Cited
(1) O’Dell, Eoin. 2019. “Man wins ‘fleeting defamation’ case and is awarded €500 – should the law of defamation really concern itself with such a trifle?” Cearta. 12 December. Accessed February 22, 2021. http://www.cearta.ie/2019/12/man-wins-fleeting-defamation-case-and-is-awarded-e500-should-the-law-of-defamation-really-concern-itself-with-such-a-trifle/.
(2) Times, The Irish. 2016. “The Irish Times Submission to the Review of the Defamation Act 2009.” Department of Justice. December. Accessed February 22, 2021. https://www.justice.ie/en/JELR/Irish_Times.pdf/Files/Irish_Times.pdf.
(3) Leahy, Pat. 2022. “Proposed changes to defamation law set to be accepted by Government.” The Irish Times. 1 March. Accessed March 9, 2022. https://www.irishtimes.com/news/politics/proposed-changes-to-defamation-law-set-to-be-accepted-by-government-1.4814618.
(4) “Respect: an EU Code of Ethics for Socio-economic Research.” Accessed July 25, 2022. https://www.employment-studies.co.uk/system/files/resources/files/412.pdf.
Further Resources
2009. “Defamation Act 2009.” Irish Statute Book. https://www.irishstatutebook.ie/eli/2009/act/31/enacted/en/print.
Martin, Andrea. 2020. “Ireland’s Defamation Laws.” Newstalk. 5 October. https://www.newstalk.com/podcasts/highlights-from-moncrieff/irelands-defamation-laws.
Image: Fáilte Ireland. (2020) Law Library, King’s Inns, Dublin, Digital Repository of Ireland [Distributor], Dublin City Library and Archive [Depositing Institution], https://doi.org/10.7486/DRI.6h44db08j.
