About this case:

• Citation:
  [2025] IESC 30
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice Maurice Collins

Delivering judgment for the Supreme Court, Mr Justice Maurice Collins explained: “Had Iconic reported fairly and accurately on the Tax Defaulters List — a requirement which, as already noted, could not be said to have been either complex or burdensome — its report would have been protected under section 18(3).

“Regrettably, the article was materially inaccurate insofar as it suggested that Mr Bird was associated with and/or responsible for significant tax defaults by three companies listed in the Tax Defaulters List, companies with which he had in fact no connection, and the jury took the view that that amounted to a significant defamation of him, as it was clearly entitled to do.”

Background

On 8 June 2016, the Limerick Leader, a newspaper owned by the appellant, published an article concerning the Revenue “tax defaulters list”.

The article erroneously stated that the respondent had settled with Revenue for under-declared tax liabilities relating to three companies under his name in the sum of €183,595. 

In fact, the respondent had no connection with the named companies and had been identified in the article by mistake. The respondent sued for defamation.

The High Court

In the High Court, the appellant claimed that the words complained of were published on an occasion of qualified privilege as per s.18 of the Defamation Act 2009, in which it was acting in good faith by publishing the article as part of its duty to report on matters of public interest.

At trial, Mr Justice Alexander Owens found no basis for the defence of qualified privilege in circumstances where the communication of inaccurate information was outside its scope, as the publisher had no duty or interest in communicating and the public had no interest in receiving inaccurate information.

The jury awarded the respondent €75,000 in damages, leading the High Court to award Circuit Court costs only to the respondent. The appellant appealed to the Court of Appeal on the findings made in respect of qualified privilege, with the respondent cross-appealing the award of costs.

The Court of Appeal

On appeal, the Court of Appeal dismissed the appellant’s appeal and allowed the respondent’s cross-appeal, finding inter alia that the defence of qualified privilege required a mutuality of duty or interest which, in practice, confined the defence to situations involving individuals (or groups of individuals) rather than to the public at large and that it would be extraordinary to allow the appellant to rely upon the defence where its article was not fair and accurate.

On 9 July 2024, the appellant was granted leave to appeal to the Supreme Court on the issues of the nature and scope of qualified privilege and its relationship with s.18(3) and the defence of public interest reporting under s.26 of the 2009 Act. Leave to appeal was also granted in respect of the costs issue.

The Supreme Court

Having considered the relevant provisions of the 2009 Act and the jurisprudence in the area, Mr Justice Collins identified the first question for the court as being whether the s.18(3) defence is available in respect of statements published to the world at large.

However, the judge explained that what needed to be determined first was whether the conventional common law defence of qualified privilege, based on reciprocity of duty/interest and defeasible only by malice, would apply to such statements.

Noting that the starting point was that the defence of qualified privilege did not generally apply to publication to the world at large because of the absence of the necessary reciprocity, the judge further considered that if the only safeguard for a defamed claimant is to discharge the “heavy onus” of establishing malice, and if a finding of malice is excluded by an honest belief in the truth of the defamatory statement, however unreasonable that belief may be and regardless of whether the belief was the product of the publisher’s own carelessness, “then in the context of media publication, malice is an illusory and inadequate ‘safety switch’”.

The judge considered that the extension of the common law defence of qualified privilege in this manner would “radically undermine” the constitutional protection of a citizen’s right to their good name.

The court also reasoned that privilege is intended to foster free communication in defined circumstances and/or for defined purposes by protected the publisher from potential liability with the provision of a defence that does not require the publisher to take on the burden of establishing the truth of what has been said, but that the protection of false speech is “an incidental effect of that protection, not its principal objective or primary rationale”.

Noting that the principal exception to the general rule that qualified privilege does not apply to publication to the world at large, being the fair and accurate reporting of certain proceedings and reports, has now been largely subsumed into s.18(3) of the 2009 Act, Mr Justice Collins opined: “None of these specific and relatively small-bore exceptions are capable of being stretched to accommodate a generally applicable media privilege.”

The court disagreed with the proposition that the defence of qualified privilege at common law could extend to media publication/publication to the world at large on the basis of a recognition of a duty to publish public interest material in the interests of the public as a whole, and that the jurisprudence provided no support for that suggestion save as regards the fair and accurate reporting of particular proceedings and reports.

Accordingly, the court found that no common law defence of qualified privilege was available to the appellant and moved to consider whether the appellant had a defence under s.18(2). 

Observing that s.18(2) “seeks to set out the essential elements of what, in common law parlance, is labelled an occasion of privilege”, the court was satisfied that same was merely a restatement in statutory form of the common law defence of qualified privilege and so, it followed that s.18(2) provided no more of a defence to the appellant than the common law would.

Having regard to the appellant’s argument that s.18(2) radically altered the law of qualified privilege by extending its protection to a broad category of media and non-media publication subject only to the absence of malice, the court considered that this would provide a defence for inaccurate reporting in circumstances where the Oireachtas has, in s.18(3), legislated to provide a defence strictly conditioned upon the fairness and accuracy of the reporting and requiring consideration of the public interest and benefit.

Pointing out that, as observed in the Court of Appeal, such an interpretation of s.18(2) would “effectively swallow up section 26 entirely”, it would also “negate the judgment made by the Oireachtas in deciding on the parameters of the section 26 defence and frustrate its purpose in enacting that defence”.

Confirming that s.18(2) is not open to be read as encompassing public interest reporting or as a parallel defence encompassing publications such as the appellant’s “shorn of the limitations in section 26 (and in section 18(3)) of the 2009 Act”, Mr Justice Collins explained that in circumstances where the appellant had no defence under s.18(3) as its article was materially inaccurate, the jury was entitled to take the view that same the respondent had been defamed.

As to the costs appeal, the Supreme Court was satisfied inter alia that the proceedings involved an exceptional question of law, that the High Court had erred in his approach to s.17(2) of the Courts Act 1981 (as amended) by failing to give sufficient weight to the existence and rationale of the discretion conferred by that section and in failing to give adequate weight to the fact that the award made by the jury was only marginally short of the High Court’s jurisdiction, and that no application to remit the proceedings to the Circuit Court had been brought by the appellant.

Conclusion

Accordingly, the Supreme Court dismissed both appeals.

William Bird v Iconic Newspapers Limited [2025] IESC 30