Adele Hall

Momentum towards the proposed reform of defamation laws was a casualty of the dissolution of Dáil Éireann last November; however, the Defamation Bill has since been restored to the Dáil order paper.

Notwithstanding this legislative pause, the judiciary continues to view defamation, particularly online defamation, as seriously as ever. 

Justice Nolan in Casey v McMenamin [2024] IEHC 705, a decision of 4 December 2024, granted an award of aggravated damages resulting from the defendant’s actions. 

Nolan J awarded the plaintiff €120,000 in general damages, plus an additional €20,0000 in aggravated damages due to defamatory Facebook publications.

Factual background

The plaintiff is a well-known businessman and public figure living in Donegal who made his property available for housing displaced Ukrainian women and children. The defendant published a Facebook post in April 2023 alleging the involvement of Casey in human trafficking and inhumane treatment of Ukrainian migrants for profit. 

The plaintiff’s solicitor wrote to the defendant requesting the removal of the post due to its defamatory nature, to which no response was received. The plaintiff subsequently issued High Court proceedings, seeking damages (including aggravated and exemplary damages), a correction under section 30 of the Defamation Act 2009, an injunction restraining the defendant from publishing or causing to be published the defamatory material, and an order removing the defamatory comments.

Judgment in default of appearance was granted to the plaintiff. Nolan J’s decision was an assessment of damages following that judgment in default. 

Legal analysis – the test for defamation and damages

Notwithstanding that the case before him was for an assessment of damages only, Nolan J assessed the merits of the plaintiff’s case. He found that the words were not true, that they were defamatory in their natural and ordinary meaning and that publication had occurred.

Nolan J restated the factors under section 31 of the 2009 Act that must be considered when deciding the level of damages in defamation proceedings, including:

• the nature and gravity of any allegation,
• the means of publication,
• the extent to which the statement was circulated,
• the importance to the plaintiff of his reputation in the eyes of recipients (and evidence to that effect), and
• remedial steps taken by the defendant.

In this case, Nolan J found that the defendant had taken no remedial steps and was satisfied that damage had been caused to the plaintiff’s reputation. The repetition of similar defamatory remarks was considered an aggravating factor.

Significantly, Nolan J endorsed the categorisation of damages in defamation actions set out by the Supreme Court in Higgins v the Irish Aviation Authority [2022] IESC 13.

He considered that the case fell within the ‘medium range’ category, which led to an award of general damages of €120,000. Nolan J regarded the failure to remove the offending content as a breach of a previous High Court order directing the defendant to remove the offending posts and a contempt of the court process. He awarded the plaintiff an additional €20,000 in aggravated damages. 

Outlook

The judgment clarifies the approach of the Irish courts to defamation.

The damages awarded in this case are on the higher end of the scale, and the inclusion of aggravated damages is notable as it highlights the seriousness with which the courts view defamation.

With the continued dominance of social media and online platforms, the proliferation of online engagement, the rapid spread of information, and the potential impact of the deregulation of technology in the US, it is worth bearing in mind domestic legislation and recent court judgments that impact the Irish framework around defamation and online behaviour.

• Adele Hall, Paul Convery and Niamh McCabe are lawyers in William Fry’s litigation and investigations department. Gail Nohilly and Kate Ní Mhaoláin also contributed to this article.