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Defamation through the ages

By: Gemma McLoughlin Burke

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Defamation cases are often premised on strange and unusual facts. In the recent case of Parcel Connect Ltd t/a Fastway Couriers and A&G Couriers Ltd v Twitter International Company [2020] IEHC 279 for example, unknown individuals had created a fake or parody account claiming to be Fastway Couriers in which they issued rude responses to complaints and queries by customers who mistook them for the real company. The comments were clearly intended to be entertaining. But Fastway Couriers, clearly concerned with the potential impact on their business, initiated defamation proceedings against the owner of the parody account. This is a modern-day defamation case involving the use of social media. However, equally interesting and entertaining cases are dotted throughout the history of defamation litigation in Ireland and the UK. This piece looks at some of the more unusual (and borderline ridiculous) defamation cases of the past.

Defamation and Irish politics
Given our history, Irish people have been particularly sensitive to comments in which it was insinuated that their loyalties lay with the Crown. In one such case, Mawe v Piggott (1869) IR 4 CL 54, the Plaintiff (who was a parish priest) issued defamation proceedings after a newspaper article claimed he had stated that the “men who gave up all – life, liberty and home – for what they deemed the sacred cause of Old Ireland, were guilty of infamous conduct…I will watch them, I will denounce them to the tender mercies of the Croydons, the Talbots, the Barrys…so as to have them prosecuted for a political offence.” The priest claimed that the clear innuendo was that he was an informer who would report Irish activists and others fighting for Irish freedom. Lawson J refused to allow the matter to go before the jury and dismissed the claim, finding that “[t]he very circumstances which will make a person be regarded with disfavour by the criminal classes will raise his character in the estimation of right-thinking [citizens]”.

Just over a century later and subsequent to the establishment of the State, the Irish Supreme Court was faced with the question of whether such political statements that insinuated pro-English sympathies amounted to defamation. In Berry v Irish Times [1973] IR 368, the Secretary of the Department of Justice initiated defamation proceedings after a photograph was printed in a newspaper containing a person holding up a placard which read: “Peter Berry [the Plaintiff] – twentieth century felon setter – helped jail republicans in England.” Although once more the Court found that the “bringing to justice in another country of a fellow countrymen who broke the laws of that country” did not amount to defamation, there were strong dissents from McLoughlin and Fitzergald JJs. Fitzgerald J stated that “to an Irishman” the words were “equivalent to calling him a traitor”.

A final case of interest is that of Cleary v Lenihan (1874) 8 ILTR 146 which concerned the election of a local Mayor. The Plaintiff, who was the successful candidate, sued a newspaper which published a piece in which it stated that the unsuccessful candidate was intending to lodge a petition in the Courts in response to the results of the election. Among the claims against the Plaintiff were intimidation, undue influence, and - perhaps the most Irish claim of all - that he had plied a large number of voters with alcohol prior to the vote taking place.

A question of chastity …
Defamation law of the past was particularly concerned with protecting the moral reputation of women and girls (without similar concerns for men, of course). In fact, the Slander of Women Act, 1891, was enacted specifically to allow women to sue individuals who made accusations that they were “unchaste” or that they had committed adultery. The Act was interpreted in accordance with the thinking of the time. For example, being referred to as a lesbian was considered to amount to an accusation that a woman was “unchaste”. (See Kerr v Kennedy [1942] 1 KB 409.)

This was the 1800s, of course, and there was bizarre sexist legislation in place. But this legislation carried over to section 16 of the Defamation Act of 1961, which stated:

16.—Words spoken and published which impute unchastity or adultery to any woman or girl shall not require special damage to render them actionable.”

An interesting defamation case in this context is Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331. In that case, a photo was published of Ms X and Mr C with the caption: “Mr C, the racehorse owner, and Miss X, whose engagement has been announced”. Mr C was married to the Plaintiff, Ms C, and she was not referenced in the photo or the caption. Her claim was based on the innuendo that the photo allegedly implied that she was “an immoral woman” who was living with Mr C but was not married to him. The photo was held to be defamatory. An excellent insight into societal thinking of this time can be found in the following extract from the judgment of Scrutton LJ wherein he states:

Now the alleged libel does not mention the plaintiff, but I think it is clear that words published about A may indirectly be defamatory of B. For instance, 'A is illegitimate'. To persons who know the parents those words may be defamatory of the parents. Or again, 'A has given way to drink; it is unfortunately hereditary'. To persons who know A's parents these words may be defamatory...Similarly to say that A is a single man or a bachelor may be capable of a defamatory meaning if published to persons who know a lady who passes as Mrs A and whom A visits.”

It would be interesting to see if any of these statements would be considered defamatory in modern Ireland.

Insults and insinuations
Insults, insinuations and derogatory comments are the bread and butter of defamation litigation. Sometimes those perceived insults are simply statements of fact, such as the 2010 case of Dee v Telegraph Media Group Ltd (No 2) [2010] EWHC 924 where the Daily Telegraph referred to the Plaintiff in an article which opened with the following line: “A Briton ranked as the worst professional tennis player in the world after 54 defeats in a row has won his first match.” Insulting, of course, but - unfortunately for the Plaintiff - a statement is not defamatory if it is true. Other insults are more colourful. Two excellent examples include Dakhyl v Labouchere [1908] 2 KB 325 and Thorpe & Lee v Ames (Irish Times, 23 November 1977). In Thorpe a local newspaper was sued for referring to the Plaintiffs, who were two barmen, in the following terms: “One of the barmen looked like Lazarus before he came out of retirement. The other fellow was the reverse: he looked like him when he went back again.” In Dakhyl, the editor of a newspaper described the Plaintiff as follows:

"Sundry inquiries have reached me during the last week or two respecting one Dr. H. N. Dakhyl, of 178, Holland Road, Kensington, who appends to his name the symbols 'B.Sc., B.A., M.D. Paris, &c.,' and describes himself as 'a specialist for the treatment of deafness, ear, nose, and throat diseases.' Possibly this gentleman may possess all the talents which his alleged foreign degrees denote, but, of course, he is not a qualified medical practitioner, and he happens to be the late 'physician' to the notorious Drouet Institute for the Deaf. In other words, he is a quack of the rankest species. I presume that he has left the Drouet gang in order to carry on a 'practice' of the same class on his own account, and probably he is well qualified to succeed in that peculiar line."

Defamation and disease
In some cases, the suggestion that one was afflicted by a particular disease was held to amount to defamation. In cases such as Crittal v Horner (1614) Hobart 219 and Grimes v Lovell (1699) 1 Ld Ray 446, the Plaintiffs claimed that allegations that they had 'French pox' were defamatory. Similarly, in Taylor v Perkins (1607) 79 ER 126, an allegation of leprosy was claimed to be defamatory. More amusing were the cases concerning statements implying that the plaintiff had contracted venereal disease. (See Bloodworth v Grey (1844) 7 N Gr 334). However, unlike the above cases involving women and defamation, these cases were not concerned with the morality or chastity of such men, but instead, the Courts were concerned with the social stigma that would flow from such an accusation. This is best summed up by Bathurst J in Villers v Monsley (1769) 95 ER 886 where the Plaintiff alleged he had been accused of not only having a venereal disease, but also that he emitted an unpleasant odour. Bathurst J stated:

Nobody will eat, drink, or have any intercourse with a person who has the itch and stinks of brimstone; therefore I think this libel actionable, and that judgment must be for the plaintiff.”

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