With the focus on men’s mental health this November, there really is no better time to consider the negative effects of online comments on mental health and the law that governs this area when negative comments reach the point of defamation.

Traditionally defamation was confined to print or oral distribution of misinformation but today it is becoming more and more relevant in the realm of social media. Hate speech, the spread of misinformation and the spread of ‘revenge porn’ are becoming more and more common and so the law in this area will be seeing more of the spotlight in the coming months.

While the term defamation is being heard much more commonly these days, what does this actually mean in a legal sense?  Section 6(2) of the Defamation Act 2009 defines defamation as; ‘the publication, by any means, of a defamatory statement concerning a person to one or more persons’. A defamatory statement is defined as a statement that tends to injure a person’s reputation in the eyes of reasonable members of society.

Applying this to instances of alleged defamation on social media, any comment, post or picture may fit the definition of a ‘defamatory statement’ if it is published to an audience of one or more other people with the intention of tarnishing somebody’s reputation. But have the courts always stuck to so rigid a defamation and where is the line to be drawn between accidental misrepresentation of facts and genuine defamation of character?

Some may argue that by including online comments and posts the flood-gates have been opened for these kinds of cases, but with social media being ever dominant in everyday life it must be governed by some form of law to protect social media users, especially younger users.

Defamation is a tort, or a civil wrong, so this means that the standard of proof is on the balance of probabilities. On the basis of the evidence is it most probable that defamation occurred? The tort has four key elements that must be present;

  1. Was there a publication of some kind? The material must have been distributed either in print, orally, online, really any kind of publication applies here.
  2. Was the statement a defamatory statement? This means was the statement in some way untrue or misleading and would this affect the person it was about in some way.
  3. Would the statement cause injury to a person’s reputation; and
  4. Would this be the case in the eyes of reasonable members of society? So the test for defamation is an objective one, would any reasonable person believe that a defamatory statement had been published and was likely to tarnish the reputation of the subject?

What is interesting to note, however, is that damage to one’s pride does not equate to damage to one’s reputation. In the context of online publications, this means that even if a statement is vulgar or abusive it may not amount to defamation if it does not objectively damage reputation. Is this satisfactory and how highly should the Irish Courts value someone’s pride?

If a charge of defamation succeeds in coming to trial what defences are then available to this charge? There are nine principle defences to defamation;

  1. If the statement is actually true
  2. If the accused has the privilege, such as Dail privilege, to make the statement without consequence, aiming to protect freedom of speech.
  3. If the statement is an honest opinion
  4. If the accused offers to make amends
  5. If the accused apologises
  6. If consent was given to publish the statement
  7. If the publication was fair and reasonable
  8. If the publication was innocent
  9. If there will be difficulties under the Directive on e-Commerce

This is an ever-developing area of law as social media becomes more and more ingrained in everyday life, so while the law may have some gaps in this area, the fundamental takeaway here is that statements made online have consequences, personal as well as legal. For the month that’s in it, consider what is posted online and the effect it may have, it is people who are responsible for the statements made after all.

To seek help or information surrounding statements or images shared without consent;

https://www.womensaid.ie/services/helpline.html

For further information on the law of defamation;

http://www.irishstatutebook.ie/eli/2009/act/31/enacted/en/html

Louise Kennedy – Law Writer

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