1.— (1) This Act may be cited as the Defamation Act 2009.

(2) This Act shall come into operation on such day or days as the Minister may appoint, by order or orders, either generally or with reference to any particular purpose or provision, and different days may be so appointed for different purposes and different provisions.

2.— In this Act—

“ Act of 1957” means the Statute of Limitations 1957;

“ Act of 1961” means the Defamation Act 1961;

“ cause of action” means a cause of action for defamation;

“ correction order” has the meaning assigned to it by section 30 ;

“ declaratory order” has the meaning assigned to it by section 28 ;

“ defamation” shall be construed in accordance with section 6 (2);

“ defamation action” means—

(a) an action for damages for defamation, or

(b) an application for a declaratory order,

whether or not a claim for other relief under this Act is made;

“ defamatory statement” means a statement that tends to injure a person’s reputation in the eyes of reasonable members of society, and “defamatory” shall be construed accordingly;

“ defence of absolute privilege” has the meaning assigned to it by section 17 ;

“ defence of qualified privilege” has the meaning assigned to it by section 18 ;

“ defence of truth” has the meaning assigned to it by section 16 ;

“ 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;

“ Minister” means the Minister for Justice, Equality and Law Reform;

“ periodical” means any newspaper, magazine, journal or other publication that is printed, published or issued, or that circulates, in the State at regular or substantially regular intervals and includes any version thereof published on the internet or by other electronic means;

“ plaintiff” includes a defendant counterclaiming in respect of a statement that is alleged to be defamatory;

“ Press Council” has the meaning assigned to it by section 44 ;

“ Press Ombudsman” has the meaning assigned to it by paragraph 8 of Schedule 2 ;

“ qualified offer” has the meaning assigned to it by section 22 ;

“ special damages” has the meaning assigned to it by section 31 (7);

“ statement” includes—

(a) a statement made orally or in writing,

(b) visual images, sounds, gestures and any other method of signifying meaning,

(c) a statement—

(i) broadcast on the radio or television, or

(ii) published on the internet, and

(d) an electronic communication;

“ summary relief” means, in relation to a defamation action—

(a) a correction order, or

(b) an order prohibiting further publication of the statement to which the action relates.

3.— (1) A provision of this Act shall not affect causes of action accruing before its commencement.

(2) This Act shall not affect the operation of the general law in relation to defamation except to the extent that it provides otherwise (either expressly or by necessary implication).

4.— The Act of 1961 is repealed.

5.— (1) The Minister shall, not later than 5 years after the passing of this Act, commence a review of its operation.

(2) A review under subsection (1) shall be completed not later than one year after its commencement.

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.

7.— (1) Section 77 of the Courts of Justice Act 1924 is amended, in paragraph (i) (inserted by section 4(a) of the Courts Act 1991), by the substitution of “the tort of defamation” for the words “slander, libel”.

(2) The Civil Liability Act 1961 is amended—

(a) in section 11, by—

(i) the substitution, in subsection (5), of “defamatory statement” for the words “libel or slander”, and

(ii) the insertion of the following subsection:

“(7) In this section ‘ defamatory statement ’ has the same meaning as it has in the Defamation Act 2009.”,

and

(b) in section 14(6), by the substitution of “a defamation action under the Defamation Act 2009 ” for the words “an action for libel or slander”.

8.— (1) Where the plaintiff in a defamation action serves on the defendant any pleading containing assertions or allegations of fact, the plaintiff (or in the case of a defamation action brought on behalf of an infant or person of unsound mind by a next friend or a committee of the infant or person, the next friend or committee) shall swear an affidavit verifying those assertions or allegations.

(2) Where the defendant in a defamation action serves on the plaintiff any pleading containing assertions or allegations of fact, the defendant shall swear an affidavit verifying those assertions or allegations.

(3) Where a defamation action is brought on behalf of an infant or a person of unsound mind by a next friend or a committee of the infant or person, an affidavit to which subsection (1) applies sworn by the next friend or committee concerned shall, in respect of assertions or allegations, of which he or she does not have personal knowledge, state that he or she honestly believes the assertions or allegations, to be true.

(4) Where the plaintiff or defendant in a defamation action is a body corporate, the person swearing the affidavit on behalf of the body corporate under subsection (1) or (2), as the case may be, shall, in respect of assertions or allegations, of which he or she does not have personal knowledge, state that he or she honestly believes the assertions or allegations to be true.

(5) An affidavit under this section shall be sworn and filed in court not later than 2 months after the service of the pleading concerned or such longer period as the court may direct or the parties may agree.

(6) If a person makes a statement in an affidavit under this section—

(a) that is false or misleading in any material respect, and

(b) that he or she knows to be false or misleading,

he or she shall be guilty of an offence.

(7) A person guilty of an offence under this section shall be liable—

(a) on summary conviction, to a fine not exceeding €3,000, or imprisonment for a term not exceeding 6 months or to both, or

(b) on conviction on indictment, to a fine not exceeding €50,000, or imprisonment for a term not exceeding 5 years, or to both.

(8) An affidavit sworn under this section shall include a statement by the deponent that he or she is aware that the making of a statement by him or her in the affidavit that is false or misleading in any material respect and that he or she knows to be false or misleading is an offence.

(9) In a defamation action—

(a) the defendant shall, unless the court otherwise directs, be entitled to cross examine the plaintiff in relation to any statement made by the plaintiff in the affidavit sworn by him or her under this section, and

(b) the plaintiff shall, unless the court otherwise directs, be entitled to cross examine the defendant in relation to any statement made by the defendant in the affidavit sworn by him or her under this section.

(10) Where a plaintiff or a defendant fails to comply with this section, the court may make such order as it considers just and equitable, including—

(a) in the case of such a failure on the part of the plaintiff, an order dismissing the defamation action, and

(b) in the case of such a failure by the defendant, judgment in favour of the plaintiff,

and may give such directions in relation to an order so made as the court considers necessary or expedient.

(11) The reference to court in subsection (5) shall—

(a) in the case of a defamation action brought in the High Court, include a reference to the Master of the High Court, and

(b) in the case of a defamation action brought in the Circuit Court, include a reference to the county registrar for the county in which the proceedings concerned were issued.

(12) (a) References in this section to plaintiff shall, in the case of a plaintiff who is deceased, be construed as references to his or her personal representative.

(b) References in this section to defendant shall, in the case of a defendant who is deceased, be construed as references to his or her personal representative.

(13) This section does not apply to an application for a declaratory order.

9.— A person has one cause of action only in respect of the publication of a defamatory statement concerning the person even if more than one defamatory imputation in respect of that person is borne by that statement.

10.— Where a person publishes a defamatory statement concerning a class of persons, a member of that class shall have a cause of action under this Act against that person if—

(a) by reason of the number of persons who are members of that class, or

(b) by virtue of the circumstances in which the statement is published,

the statement could reasonably be understood to refer, in particular, to the member concerned.

11.— (1) Subject to subsection (2), a person has one cause of action only in respect of a multiple publication.

(2) A court may grant leave to a person to bring more than one defamation action in respect of a multiple publication where it considers that the interests of justice so require.

(3) In this section “ multiple publication ” means publication by a person of the same defamatory statement to 2 or more persons (other than the person in respect of whom the statement is made) whether contemporaneously or not.

12.— The provisions of this Act apply to a body corporate as they apply to a natural person, and a body corporate may bring a defamation action under this Act in respect of a statement concerning it that it claims is defamatory whether or not it has incurred or is likely to incur financial loss as a result of the publication of that statement.

13.— (1) Upon the hearing of an appeal from a decision of the High Court in a defamation action, the Supreme Court may, in addition to any other order that it deems appropriate to make, substitute for any amount of damages awarded to the plaintiff by the High Court such amount as it considers appropriate.

(2) In this section “ decision ” includes a judgment entered pursuant to the verdict of a jury.

14.— (1) The court, in a defamation action, may give a ruling—

(a) as to whether the statement in respect of which the action was brought is reasonably capable of bearing the imputation pleaded by the plaintiff, and

(b) (where the court rules that that statement is reasonably capable of bearing that imputation) as to whether that imputation is reasonably capable of bearing a defamatory meaning,

upon an application being made to it in that behalf.

(2) Where a court rules under subsection (1) that—

(a) the statement in respect of which the action was brought is not reasonably capable of bearing the imputationpleaded by the plaintiff, or

(b) that any imputation so pleaded is not reasonably capable of bearing a defamatory meaning,

it shall dismiss the action in so far only as it relates to the imputation concerned.

(3) An application under this section shall be brought by notice of motion and shall be determined, in the case of a defamation action brought in the High Court, in the absence of the jury.

(4) An application under this section may be brought at any time after the bringing of the defamation action concerned includingduring the course of the trial of the action.

15.— (1) Subject to sections 17(1) and 18 (1), any defence that, immediately before the commencement of this Part, could have been pleaded as a defence in an action for libel or slander is abolished.

(2) In this section—

“ defence ” shall not include a defence under—

(a) statute,

(b) an act of the institutions of the European Communities, or

(c) regulations made for the purpose of giving effect to an act of the institutions of the European Communities;

“ European Communities ” has the same meaning as it has in the European Communities Act 1972;

“ statute ” means—

(a) an Act of the Oireachtas, or

(b) a statute that was in force in Saorstát Éireann immediately before the date of the coming into operation of the Constitution and that continues to be of full force and effect by virtue of Article 50 of the Constitution.

16.— (1) 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) In a defamation action in respect of a statement containing 2 or more distinct allegations against the plaintiff, the defence of truth shall not fail by reason only of the truth of every allegation not being proved, if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining allegations.

17.— (1) 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.

(2) Subject to F1[section 18 (3) or 78 (2) of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013], and without prejudice to the generality of subsection (1), 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 was—

(a) made in either House of the Oireachtas by a member of either House of the Oireachtas,

(b) contained in a report of a statement, to which paragraph (a) applies, produced by or on the authority of either such House,

(c) made in the European Parliament by a member of that Parliament,

(d) contained in a report of a statement, to which paragraph (c) applies, produced by or on the authority of the European Parliament,

(e) contained in a judgment of a court established by law in the State,

(f) made by a judge, or other person, performing a judicial function,

(g) made by a party, witness, legal representative or juror in the course of proceedings presided over by a judge, or other person, performing a judicial function,

(h) made in the course of proceedings involving the exercise of limited functions and powers of a judicial nature in accordance with Article 37 of the Constitution, where the statement is connected with those proceedings,

(i) a fair and accurate report of proceedings publicly heard before, or decision made public by, any court—

(i) established by law in the State, or

(ii) established under the law of Northern Ireland,

(j) a fair and accurate report of proceedings to which a relevant enactment referred to in section 40 of the Civil Liability and Courts Act 2004 applies,

(k) a fair and accurate report of proceedings publicly heard before, or decision made public by, any court or arbitral tribunal established by an international agreement to which the State is a party including the Court of Justice of the European Communities, the Court of First Instance of the European Communities, the European Court of Human Rights and the International Court of Justice,

(l) made in proceedings before a committee appointed by either House of the Oireachtas or jointly by both Houses of the Oireachtas,

(m) made in proceedings before a committee of the European Parliament,

(n) made in the course of proceedings before a tribunal established under the Tribunals of Inquiry (Evidence) Acts 1921 to 2004, where the statement is connected with those proceedings,

(o) contained in a report of any such tribunal,

(p) made in the course of proceedings before a commission of investigation established under the Commissions of Investigation Act 2004, where the statement is connected with those proceedings,

(q) contained in a report of any such commission,

(r) made in the course of an inquest by a coroner or contained in a decision made or verdict given at or during such inquest,

(s) made in the course of an inquiry conducted on the authority of a Minister of the Government, the Government, the Oireachtas, either House of the Oireachtas or a court established by law in the State,

(t) made in the course of an inquiry conducted in Northern Ireland on the authority of a person or body corresponding to a person or body referred to in paragraph (s),

(u) contained in a report of an inquiry referred to in paragraph (s) or (t),

(v) made in the course of proceedings before an arbitral tribunal where the statement is connected with those proceedings,

(w) made pursuant to and in accordance with an order of a court established by law in the F2[State, or]

F3[(x) made in the course of the consideration by the Parole Board of—

(i) an application for parole, or

(ii) the variation or revocation of a parole order, where the statement is connected with that consideration, or

(y) contained in a decision of the Parole Board, or a notification of such a decision, pursuant to the Parole Act 2019 or a parole order.]

(3) Section 2 of the Committees of the Houses of the Oireachtas (Privilege and Procedure) Act 1976 is amended by the insertion of the following subsection:

“(3) In this section ‘utterance’ includes a statement within the meaning of the Defamation Act 2009 ;” .

(4) A defence under this section shall be known as, and is referred to in this Act, as the “defence of absolute privilege ”.

F4[(4) In this section, ‘application for parole’ and ‘parole order’ have the meanings they have in the Parole Act 2019.]

18.— (1) Subject to section 17 , 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 (other than the Act of 1961) in force immediately before such commencement as having been made on an occasion of qualified privilege.

(2) Without prejudice to the generality of subsection (1), it shall, subject to section 19 , be a defence to a defamation action for the defendant to prove that—

(a) the statement was published to a person or persons who—

(i) had a duty to receive, or interest in receiving, the information contained in the statement, or

(ii) the defendant believed upon reasonable grounds that the said person or persons had such a duty or interest, and

(b) the defendant had a corresponding duty to communicate, or interest in communicating, the information to such person or persons.

(3) Without prejudice to the generality of subsection (1), it shall be a defence to a defamation action for the defendant to prove that the statement to which the action relates is—

(a) a statement to which Part 1 of Schedule 1 applies,

(b) contained in a report, copy, extract or summary referred to in that Part, or

(c) contained in a determination referred to in that Part.

(4) Without prejudice to the generality of subsection (1), it shall be a defence to a defamation action for the defendant to prove that the statement to which the action relates is contained in a report, copy or summary referred to in Part 2 of Schedule 1 , unless it is proved that the defendant was requested by the plaintiff to publish in the same medium of communication in which he or she published the statement concerned, a reasonable statement by way of explanation or a contradiction, and has refused or failed to do so or has done so in a manner that is not adequate or reasonable having regard to all of the circumstances.

(5) Nothing in subsection (3) shall be construed as—

(a) protecting the publication of any statement the publication of which is prohibited by law, or of any statement that is not of public concern and the publication of which is not for the public benefit, or

(b) limiting or abridging any privilege subsisting apart from subsection (3).

(6) A defence under this section shall be known, and is referred to in this Act, as the “ defence of qualified privilege ”.

(7) In this section—

“duty” means a legal, moral or social duty;

“interest” means a legal, moral or social interest.

19.— (1) In a defamation action, the defence of 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.

(2) The defence of qualified privilege shall not fail by reason only of the publication of the statement concerned to a person other than an interested person if it is proved that the statement was published to the person because the publisher mistook him or her for an interested person.

(3) Where a defamation action is brought against more than one defendant, the failure of the defence of qualified privilege in relation to one of the defendants by virtue of the application of subsection (1) shall not cause the failure of the defence in relation to another of the defendants unless that other defendant was vicariously liable for such acts or omissions of the first-mentioned defendant as gave rise to the cause of action concerned.

(4) Section 11(4) of the Civil Liability Act 1961 is repealed.

(5) In this section “interested person” means, in relation to a statement, a person who, under section 18(2)(a), had a duty or interest in receiving the information contained in the statement.

20.— (1) It shall be a defence (to be known, and in this section referred to, as the “defence of honest opinion”) to a defamation action for the defendant to prove that, in the case of a statement consisting of an opinion, the opinion was honestly held.

(2) Subject to subsection (3), an opinion is honestly held, for the purposes of this section, if—

(a) at the time of the publication of the statement, the defendant believed in the truth of the opinion or, where the defendant is not the author of the opinion, believed that the author believed it to be true,

(b) (i) the opinion was based on allegations of fact—

(I) specified in the statement containing the opinion, or

(II) referred to in that statement, that were known, or might reasonably be expected to have been known, by the persons to whom the statement was published,

or

(ii) the opinion was based on allegations of fact to which—

(I) the defence of absolute privilege, or

(II) the defence of qualified privilege,

would apply if a defamation action were brought in respect of such allegations,

and

(c) the opinion related to a matter of public interest.

(3) (a) The defence of honest opinion shall fail, if the opinion concerned is based on allegations of fact to which subsection (2) (b) (i) applies, unless—

(i) the defendant proves the truth of those allegations, or

(ii) where the defendant does not prove the truth of all of those allegations, the opinion is honestly held having regard to the allegations of fact the truth of which are proved.

(b) The defence of honest opinion shall fail, if the opinion concerned is based on allegations of fact to which subsection (2) (b) (ii) applies, unless—

(i) the defendant proves the truth of those allegations, or

(ii) where the defendant does not prove the truth of those allegations—

(I) the opinion could not reasonably be understood as implying that those allegations were true, and

(II) at the time of the publication of the opinion, the defendant did not know or could not reasonably have been expected to know that those allegations were untrue.

(4) Where a defamatory statement consisting of an opinion is published jointly by a person (“ first-mentioned person ”) and another person (“ joint publisher ”), the first-mentioned person shall not fail in pleading the defence of honest opinion in a subsequent defamation action brought in respect of that statement by reason only of that opinion not being honestly held by the joint publisher, unless the first-mentioned person was at the time of publication vicariously liable for the acts or omissions, from which the cause of action in respect of that statement accrued, of the joint publisher.

21.— The matters to which the court in a defamation action shall have regard, for the purposes of distinguishing between a statement consisting of allegations of fact and a statement consisting of opinion, shall include the following:

(a) the extent to which the statement is capable of being proved;

(b) the extent to which the statement was made in circumstances in which it was likely to have been reasonably understood as a statement of opinion rather than a statement consisting of an allegation of fact; and

(c) the words used in the statement and the extent to which the statement was subject to a qualification or a disclaimer or was accompanied by cautionary words.

22.— (1) A person who has published a statement that is alleged to be defamatory of another person may make an offer to make amends.

(2) An offer to make amends shall—

(a) be in writing,

(b) state that it is an offer to make amends for the purposes of this section, and

(c) state whether the offer is in respect of the entire of the statement or an offer (in this Act referred to as a “ qual ified offer ”) in respect of—

(i) part only of the statement, or

(ii) a particular defamatory meaning only.

(3) An offer to make amends shall not be made after the delivery of the defence in the defamation action concerned.

(4) An offer to make amends may be withdrawn before it is accepted and where such an offer is withdrawn a new offer to make amends may be made.

(5) In this section “ an offer to make amends ” means an offer—

(a) to make a suitable correction of the statement concerned and a sufficient apology to the person to whom the statement refers or is alleged to refer,

(b) to publish that correction and apology in such manner as is reasonable and practicable in the circumstances, and

(c) to pay to the person such sum in compensation or damages (if any), and such costs, as may be agreed by them or as may be determined to be payable,

whether or not it is accompanied by any other offer to perform an act other than an act referred to in paragraph (a), (b) or (c).

23.— (1) If an offer to make amends under section 22 is accepted the following provisions shall apply:

(a) if the parties agree as to the measures that should be taken by the person who made the offer to ensure compliance by him or her with the terms of the offer, the High Court or, where a defamation action has already been brought, the court in which it was brought may, upon the application of the person to whom the offer was made, direct the party who made the offer to take those measures;

(b) if the parties do not so agree, the person who made the offer may, with the leave of the High Court or, where a defamation action has already been brought, the court in which it was brought, make a correction and apology by means of a statement before the court in such terms as may be approved by the court and give an undertaking as to the manner of their publication;

(c) if the parties do not agree as to the damages or costs that should be paid by the person who made the offer, those matters shall be determined by the High Court or, where a defamation action has already been brought, the court in which it was brought, and the court shall for those purposes have all such powers as it would have if it were determining damages or costs in a defamation action, and in making a determination under this paragraph it shall take into account the adequacy of any measures already taken to ensure compliance with the terms of the offer by the person who made the offer;

(d) no defamation action shall be brought or, if already brought, proceeded with against another person in respect of the statement to which the offer to make amends applies unless the court considers that in all the circumstances of the case it is just and proper to so do.

(2) Subject to subsection (3), it shall be a defence to a defamation action for a person to prove that he or she made an offer to make amends under section 22 and that it was not accepted, unless the plaintiff proves that the defendant knew or ought reasonably to have known at the time of the publication of the statement to which the offer relates that—

(a) it referred to the plaintiff or was likely to be understood as referring to the plaintiff, and

(b) it was false and defamatory of the plaintiff.

(3) Where the defendant in a defamation action made a qualified offer only, subsection (2) shall apply in relation to that part only of the action that relates to the part of the statement or the meaning, as the case may be, to which the qualified offer relates.

(4) A person who makes an offer to make amends is not required to plead it as a defence in a defamation action.

(5) If a defendant in a defamation action pleads the defence under this section, he or she shall not be entitled to plead any other defence in the action, and if the defence is pleaded in respect of a qualified offer only he or she shall not be entitled to plead any other defence in respect of that part of the action that relates to the part of the statement or the meaning, as the case may be, to which the qualified offer relates.

24.— (1) In a defamation action the defendant may give evidence in mitigation of damage that he or she—

(a) made or offered an apology to the plaintiff in respect of the statement to which the action relates, and

(b) published the apology in such manner as ensured that the apology was given the same or similar prominence as was given to that statement, or offered to publish an apology in such a manner,

as soon as practicable after the plaintiff makes complaint to the defendant concerning the utterance to which the apology relates, or after the bringing of the action, whichever is earlier.

(2) In a defamation action, a defendant who intends to give evidence to which subsection (1) applies shall, at the time of the filing or delivery of the defence to the action, notify the plaintiff in writing of his or her intention to give such evidence.

(3) In a defamation action, an apology made by or on behalf of a defendant in respect of a statement to which the action relates—

(a) does not constitute an express or implied admission of liability by that defendant, and

(b) is not relevant to the determination of liability in the action.

(4) Evidence of an apology made by or on behalf of a person in respect of a statement to which the action relates is not admissible in any civil proceedings as evidence of liability of the defendant.

25.— In a defamation action it shall be a defence, to be known as the “ defence of consent ”, for a person to prove that the plaintiff consented to the publication of the statement in respect of which the action was brought.

26.— (1) It shall be a defence (to be known, and in this section referred to, as the “ defence of fair and reasonable publication ”) to a defamation action for the defendant to prove that—

(a) the statement in respect of which the action was brought was published—

(i) in good faith, and

(ii) in the course of, or for the purpose of, the discussion of a subject of public interest, the discussion of which was for the public benefit,

(b) in all of the circumstances of the case, the manner and extent of publication of the statement did not exceed that which was reasonably sufficient, and

(c) in all of the circumstances of the case, it was fair and reasonable to publish the statement.

(2) For the purposes of this section, the court shall, in determining whether it was fair and reasonable to publish the statement concerned, take into account such matters as the court considers relevant including any or all of the following:

(a) the extent to which the statement concerned refers to the performance by the person of his or her public functions;

(b) the seriousness of any allegations made in the statement;

(c) the context and content (including the language used) of the statement;

(d) the extent to which the statement drew a distinction between suspicions, allegations and facts;

(e) the extent to which there were exceptional circumstances that necessitated the publication of the statement on the date of publication;

(f) in the case of a statement published in a periodical by a person who, at the time of publication, was a member of the Press Council, the extent to which the person adhered to the code of standards of the Press Council and abided by determinations of the Press Ombudsman and determinations of the Press Council;

(g) in the case of a statement published in a periodical by a person who, at the time of publication, was not a member of the Press Council, the extent to which the publisher of the periodical adhered to standards equivalent to the standards specified in paragraph (f);

(h) the extent to which the plaintiff’s version of events was represented in the publication concerned and given the same or similar prominence as was given to the statement concerned;

(i) if the plaintiff’s version of events was not so represented, the extent to which a reasonable attempt was made by the publisher to obtain and publish a response from that person; and

(j) the attempts made, and the means used, by the defendant to verify the assertions and allegations concerning the plaintiff in the statement.

(3) The failure or refusal of a plaintiff to respond to attempts by or on behalf of the defendant, to elicit the plaintiff’s version of events, shall not—

(a) constitute or imply consent to the publication of the statement, or

(b) entitle the court to draw any inference therefrom.

(4) In this section—

“ court” means, in relation to a defamation action brought in the High Court, the jury, if the High Court is sitting with a jury;

“ defamation action ” does not include an application for a declaratory order.

27.— (1) It shall be a defence (to be known as the “ defence of innocent publication ”) to a defamation action for the defendant to prove that—

(a) he or she was not the author, editor or publisher of the statement to which the action relates,

(b) he or she took reasonable care in relation to its publication, and

(c) he or she did not know, and had no reason to believe, that what he or she did caused or contributed to the publication of a statement that would give rise to a cause of action in defamation.

(2) A person shall not, for the purposes of this section, be considered to be the author, editor or publisher of a statement if—

(a) in relation to printed material containing the statement, he or she was responsible for the printing, production, distribution or selling only of the printed material,

(b) in relation to a film or sound recording containing the statement, he or she was responsible for the processing, copying, distribution, exhibition or selling only of the film or sound recording,

(c) in relation to any electronic medium on which the statement is recorded or stored, he or she was responsible for the processing, copying, distribution or selling only of the electronic medium or was responsible for the operation or provision only of any equipment, system or service by means of which the statement would be capable of being retrieved, copied, distributed or made available.

(3) The court shall, for the purposes of determining whether a person took reasonable care, or had reason to believe that what he or she did caused or contributed to the publication of a defamatory statement, have regard to—

(a) the extent of the person’s responsibility for the content of the statement or the decision to publish it,

(b) the nature or circumstances of the publication, and

(c) the previous conduct or character of the person.

28.— (1) A person who claims to be the subject of a statement that he or she alleges is defamatory may apply to the Circuit Court for an order (in this Act referred to as a “ declaratory order ”) that the statement is false and defamatory of him or her.

(2) Upon an application under this section, the court shall make a declaratory order if it is satisfied that—

(a) the statement is defamatory of the applicant and the respondent has no defence to the application,

(b) the applicant requested the respondent to make and publish an apology, correction or retraction in relation to that statement, and

(c) 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.

(3) For the avoidance of doubt, an applicant for a declaratory order shall not be required to prove that the statement to which the application concerned relates is false.

(4) Where an application is made under this section, the applicant shall not be entitled to bring any other proceedings in respect of any cause of action arising out of the statement to which the application relates.

(5) An application under this section shall be brought by motion on notice to the respondent grounded on affidavit.

(6) Where a court makes a declaratory order, it may, in addition, make an order under section 30 or 33 , upon an application by the applicant in that behalf.

(7) The court may, for the purposes of making a determination in relation to an application under this section in an expeditious manner, give directions in relation to the delivery of pleadings and the time and manner of trial of any issues raised in the course of such an application.

(8) No order in relation to damages shall be made upon an application under this section.

(9) An application under this section shall be made to the Circuit Court sitting in the circuit where—

(a) the statement to which the application relates was published, or

(b) the defendant or one of the defendants, as the case may be, resides.

29.— (1) In an action for damages for defamation the defendant may, upon giving notice in writing to the plaintiff, pay a sum of money into court in satisfaction of the action when filing his or her defence to the action.

(2) A payment to which this section applies shall be deemed to be a payment under such rule of court for the time being in force as provides for the payment into court of a sum of money in satisfaction of an action for damages for defamation.

(3) Where a payment to which this section applies is made, the plaintiff in the action concerned may accept the payment—

(a) in accordance with the rule referred to in subsection (2), or

(b) inform the court in which the action was brought, on notice to the defendant, of his or her acceptance of the payment in full settlement of the action.

(4) The defendant shall not be required to admit liability in an action for damages for defamation when making a payment to which this section applies.

30.— (1) Where, in a defamation action, there is a finding that the statement in respect of which the action was brought was defamatory and the defendant has no defence to the action, the court may, upon the application of the plaintiff, make an order (in this Act referred to as a “ correction order ”) directing the defendant to publish a correction of the defamatory statement.

(2) Without prejudice to the generality of subsection (1), a correction order shall—

(a) specify—

(i) the date and time upon which, or

(ii) the period not later than the expiration of which,

the correction order shall be published, and

(b) specify the form, content, extent and manner of publication of the correction,

and shall, unless the plaintiff otherwise requests, require the correction to be published in such manner as will ensure that it is communicated to all or substantially all of those persons to whom the defamatory statement was published.

(3) Where a plaintiff intends to make an application under this section, he or she shall so inform—

(a) the defendant by notice in writing, not later than 7 days before the trial of the action, and

(b) the court at the trial of the action.

(4) An application under this section may be made at such time during the trial of a defamation action as the court or, where the action is tried in the High Court sitting with a jury, the trial judge directs.

31.— (1) The parties in a defamation action may make submissions to the court in relation to the matter of damages.

(2) In a defamation action brought in the High Court, the judge shall give directions to the jury in relation to the matter of damages.

(3) In making an award of general damages in a defamation action, regard shall be had to all of the circumstances of the case.

(4) Without prejudice to the generality of subsection (3), the court in a defamation action shall, in making an award of general damages, have regard to—

(a) the nature and gravity of any allegation in the defamatory statement concerned,

(b) the means of publication of the defamatory statement including the enduring nature of those means,

(c) the extent to which the defamatory statement was circulated,

(d) the offering or making of any apology, correction or retraction by the defendant to the plaintiff in respect of the defamatory statement,

(e) the making of any offer to make amends under section 22 by the defendant, whether or not the making of that offer was pleaded as a defence,

(f) the importance to the plaintiff of his or her reputation in the eyes of particular or all recipients of the defamatory statement,

(g) the extent (if at all) to which the plaintiff caused or contributed to, or acquiesced in, the publication of the defamatory statement,

(h) evidence given concerning the reputation of the plaintiff,

(i) if the defence of truth is pleaded and the defendant proves the truth of part but not the whole of the defamatory statement, the extent to which that defence is successfully pleaded in relation to the statement,

(j) if the defence of qualified privilege is pleaded, the extent to which the defendant has acceded to the request of the plaintiff to publish a reasonable statement by way of explanation or contradiction, and

(k) any order made under section 33 , or any order under that section or correction order that the court proposes to make or, where the action is tried by the High Court sitting with a jury, would propose to make in the event of there being a finding of defamation.

(5) For the purposes of subsection (4) (c), a defamatory statement consisting of words that are innocent on their face, but that are defamatory by reason of facts known to some recipients only of the publication containing the defamatory statement, shall be treated as having been published to those recipients only.

(6) The defendant in a defamation action may, for the purposes of mitigating damages, give evidence—

(a) with the leave of the court, of any matter that would have a bearing upon the reputation of the plaintiff, provided that it relates to matters connected with the defamatory statement,

(b) that the plaintiff has already in another defamation action been awarded damages in respect of a defamatory statement that contained substantially the same allegations as are contained in the defamatory statement to which the first-mentioned defamation action relates.

(7) The court in a defamation action may make an award of damages (in this section referred to as “ special damages ”) to the plaintiff in respect of financial loss suffered by him or her as a result of the injury to his or her reputation caused by the publication of the defamatory statement in respect of which the action was brought.

(8) In this section “ court ” means, in relation to a defamation action brought in the High Court, the jury, if the High Court is sitting with a jury.

32.— (1) Where, in a defamation action—

(a) the court finds the defendant liable to pay damages to the plaintiff in respect of a defamatory statement, and

(b) the defendant conducted his or her defence in a manner that aggravated the injury caused to the plaintiff’s reputation by the defamatory statement,

the court may, in addition to any general, special or punitive damages payable by the defendant to the plaintiff, order the defendant to pay to the plaintiff damages (in this section referred to as “aggravated damages”) of such amount as it considers appropriate to compensate the plaintiff for the aggravation of the said injury.

(2) Where, in a defamation action, the court finds the defendant liable to pay damages to the plaintiff in respect of a defamatory statement and it is proved that the defendant—

(a) intended to publish the defamatory statement concerned to a person other than the plaintiff,

(b) knew that the defamatory statement would be understood by the said person to refer to the plaintiff, and

(c) knew that the statement was untrue or in publishing it was reckless as to whether it was true or untrue,

the court may, in addition to any general, special or aggravated damages payable by the defendant to the plaintiff, order the defendant to pay to the plaintiff damages (in this section referred to as “punitive damages”) of such amount as it considers appropriate.

(3) In this section “court” means, in relation to a defamation action brought in the High Court, the jury, if the High Court is sitting with a jury.

33.— (1) The High Court, or where a defamation action has been brought, the court in which it was brought, may, upon the application of the plaintiff, make an order prohibiting the publication or further publication of the statement in respect of which the application was made if in its opinion—

(a) the statement is defamatory, and

(b) the defendant has no defence to the action that is reasonably likely to succeed.

(2) Where an order is made under this section it shall not operate to prohibit the reporting of the making of that order provided that such reporting does not include the publication of the statement to which the order relates.

(3) In this section “ order ” means—

(a) an interim order,

(b) an interlocutory order, or

(c) a permanent order.

34.— (1) The court in a defamation action may, upon the application of the plaintiff, grant summary relief to the plaintiff if it is satisfied that—

(a) the statement in respect of which the action was brought is defamatory, and

(b) the defendant has no defence to the action that is reasonably likely to succeed.

(2) The court in a defamation action may, upon the application of the defendant, dismiss the action if it is satisfied that the statement in respect of which the action was brought is not reasonably capable of being found to have a defamatory meaning.

(3) An application under this section shall be brought by motion on notice to the other party to the action and shall be grounded on an affidavit.

(4) An application under this section shall not be heard or determined in the presence of a jury.

35.— The common law offences of defamatory libel, seditious libel and obscene libel are abolished.

36.— F5[…]

37.— F6[…]

38.— (1) Section 11 of the Act of 1957 is amended—

(a) in subsection (2), by the substitution of the following paragraph for paragraph (c):

“(c) A defamation action within the meaning of the Defamation Act 2009 shall not be brought after the expiration of—

(i) one year, or

(ii) such longer period as the court may direct not exceeding 2 years,

from the date on which the cause of action accrued.”,

and

(b) the insertion of the following subsections:

“(3A) The court shall not give a direction under subsection (2)(c)(ii) (inserted by section 38 (1) (a) of the Defamation Act 2009) unless it is satisfied that—

(a) the interests of justice require the giving of the direction,

(b) the prejudice that the plaintiff would suffer if the direction were not given would significantly outweigh the prejudice that the defendant would suffer if the direction were given,

and the court shall, in deciding whether to give such a direction, have regard to the reason for the failure to bring the action within the period specified in subparagraph (i) of the said subsection (2)(c) and the extent to which any evidence relevant to the matter is by virtue of the delay no longer capable of being adduced.

(3B) For the purposes of bringing a defamation action within the meaning of the Defamation Act 2009, the date of accrual of the cause of action shall be the date upon which the defamatory statement is first published and, where the statement is published through the medium of the internet, the date on which it is first capable of being viewed or listened to through that medium.”.

(2) Section 49 of the Act of 1957 is amended by the substitution of the following subsection for subsection (3):

“(3) In the case of defamation actions within the meaning of the Defamation Act 2009, subsection (1) of this section shall have effect as if for the words ‘six years’ there were substituted the words ‘one year or such longer period as the court may direct not exceeding two years’.”.

39.— (1) Section 6 of the Civil Liability Act 1961 is amended by the insertion of the following definitions:

“ ‘ Act of 2009 ’ means the Defamation Act 2009;

‘ aggravated damages ’ has the same meaning as it has in the Act of 2009;

‘ punitive damages ’ has the same meaning as it has in the Act of 2009.”.

(2) Section 7 of the Civil Liability Act 1961 is amended by—

(a) the insertion of the following subsection:

“(1A) On the death of a person on or after the commencement of section 39 (2) (a) of the Act of 2009, a cause of action for defamation vested in him immediately before his death shall survive for the benefit of his estate.”,

and

(b) the insertion of the following subsection:

“(2A) Where by virtue of subsection (1A) of this section, a cause of action for defamation survives for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person shall not include general damages, punitive damages or aggravated damages.”.

(3) Section 8 of the Civil Liability Act 1961 is amended by—

(a) the insertion of the following subsection:

“(1A) On the death of a person on or after the commencement of section 39 (3) (a) of the Act of 2009 a cause of action subsisting against him shall survive against his estate.”,

(b) by the insertion of the following subsection:

“(2A) Where by virtue of subsection (1A) of this section, a cause of action for defamation survives against the estate of a deceased person, the damages recoverable against the estate of that person shall not include general damages, punitive damages or aggravated damages.”.

40.— An agreement to indemnify any person against civil liability for defamation in respect of the publication of any statement shall be lawful unless at the time of the publication that person knows that the statement is defamatory, and does not reasonably believe that there is a defence to any action brought upon it that would succeed.

41.— The Third Schedule to the Courts (Supplemental Provisions) Act 1961 is amended by—

(a) the insertion, in column (2) at reference number 6, of “a defamation action within the meaning of the Defamation Act 2009,” between “other than” and “an action”, and

(b) the insertion of the following:

“

”.

42.— (1) In an action for slander of title, slander of goods or other malicious falsehood, the plaintiff shall be required to prove that the statement upon which the action is founded—

(a) was untrue,

(b) was published maliciously, and

(c) referred to the plaintiff, his or her property or his or her office, profession, calling, trade or business.

(2) In an action for slander of title, slander of goods or other malicious falsehood, the plaintiff shall be required to prove—

(a) special damage, or

(b) that the publication of the statement was calculated to cause and was likely to cause financial loss to the plaintiff in respect of his or her property or his or her office, profession, calling, trade or business.

43.— (1) Where a person has been acquitted of an offence in the State, the fact of his or her acquittal, and any findings of fact made during the course of proceedings for the offence concerned, shall be admissible in evidence in a defamation action.

(2) Where a person has been convicted of an offence in the State, the fact of his or her conviction, and any findings of fact made during the course of proceedings for the offence concerned, shall be admissible in evidence in a defamation action.

44.— (1) The Minister may by order declare that such body as is specified in the order shall be recognised for the purposes of this Act, and a body standing so recognised, for the time being, shall be known, and in this Act is referred to, as the “Press Council” .

(2) Not more than one body shall stand recognised under this section for the time being.

(3) No body (other than a body that stands recognised under this section for the time being) shall be known as, or describe itself as, the Press Council.

(4) The Minister shall not make an order under subsection (1) unless he or she is satisfied that the body in respect of which he or she proposes to make the order complies with the minimum requirements specified in Schedule 2 .

(5) If the Minister is of the opinion that a body for the time being standing recognised by order under this section no longer complies with the provisions of Schedule 2 , he or she may revoke that order.

(6) The Minister shall, before making an order under subsection (5), allow the body for the time being standing recognised under this section to make representations to him or her.

(7) Whenever an order is proposed to be made under this section a draft of the order shall be laid before each House of the Oireachtas and the order shall not be made unless a resolution approving of the draft has been passed by each such House.