A recent Circuit Court judgment has provided interesting insights into the current approach to online defamation.

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Background

The plaintiff in Walsh v Cornerstone Slieve Bloom Church & Others alleged that he was defamed by statements made by his then 15-year-old daughter during her baptism ceremony which was broadcast via a Facebook live stream on 14 May 2023.

The ceremony had been hosted by Cornerstone Slieve Bloom Church in Tullamore, Co Offaly, for some 80 attendees, and the live stream was broadcast on the church’s Facebook page. The recording was subsequently available on the Facebook page.

The court held that the church was not a legal entity and identified the correct defendants as the second and third-named defendants, the church’s pastors who also operated the Facebook page.

It was determined that the defamatory statements, which amounted to an assertion that “the plaintiff was a bad father who fought with his wife and caused upset to his young daughter”, were “serious”. Even though the plaintiff was not named and his daughter was only referred to by her first name, Judge Meehan was satisfied that he could be identified.

The plaintiff’s daughter’s speech was about three minutes’ long and started around one hour and seven minutes after the recording began. The defendants removed the video on 2 June 2023 after receiving a letter from the plaintiff’s solicitor alleging that the comments made by the plaintiff’s daughter were defamatory.

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The Church Publication

The court held that the defendants were secondary publishers in respect of the church publication. They provided a platform for the plaintiff’s daughter but had no prior notice of what she intended to say.

As the defendants were secondary publishers, they could avail of the defence of innocent publication provided for by Section 27 of the Defamation Act 2009 (the “2009 Act”). However, this was not considered in detail by Judge Meehan as he was satisfied that the church publication was an occasion of qualified privilege.

The court applied the test in Section 18(2) of the 2009 Act:

  1. The plaintiff’s daughter’s statement was published to persons who had an interest in receiving the information received in the statement. The congregation “had a moral or social interest in the plaintiff’s daughter’s reasons for being baptised”;
  2. The defendant had a corresponding moral or social interest in communicating the information to the congregation.

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The Online Publication

Judge Meehan held that it was “even more clear” that the defendants were the publishers of the online publication as:

  • They operated and controlled the church’s Facebook page;
  • They organised the live stream of the baptism ceremony;
  • They made the video of the ceremony available online for a period of 20 days, during which they were “fully aware of the content of the defamatory statement”.

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Judge Meehan noted: “As pastors, the defendants encouraged the plaintiff’s daughter to be baptised and to testify as the reasons for her choice.”

He added that, as the defendants had control over what was posted on the Facebook page, they were the primary publishers. Accordingly, the Section 27 defence of innocent publication was not available to them.

The plaintiff’s counsel argued that the recording was broadcast “to the world at large”. Judge Meehan said that “in theory he is correct”. In the three weeks the video was available, there were 192 clicks. The judge accepted that many of these clicks would have been from the plaintiff and connected parties such as his wife and solicitor.

While the court noted that “the number of people who viewed the comments at arm’s length is very small”, Tullamore is a “relatively small town” and viewers were “likely to have been local”.

The online publication was published to a “group of persons who are not easily identifiable” and no evidence was produced to the court to seek to establish who those people were. Therefore, “the defendants could not have believed on reasonable grounds that those persons had a duty to receive or interest in receiving the information contained in the statement”, and the defence of qualified privilege could not be relied on.

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Contributory Negligence

The plaintiff did not issue proceedings against his daughter, the author of the statements. Counsel for the plaintiff accepted that the defendants and the plaintiff’s daughter “might” be concurrent wrongdoers under Section 11 of the Civil Liability Act 1961.

The court held that the plaintiff’s daughter, as the author, “must bear some responsibility”. However, there was no evidence that she had any involvement in the video being posted online.

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Damages

After finding the church liable for the defamatory publication, Judge Meehan looked at the four general categories identified by Mr Justice MacMenamin in Padraig Higgins v The Irish Aviation Authority [2022] IESC 13 and decided that the case fell short of the medium range as argued by the plaintiff’s legal team.  He set the headline award of damages for the publication at €30,000.

The court attributed 40% of the damage to the publication to those physically present in the church and 60% to the online publication via the Church’s Facebook page, reducing the award to €18,000.

Judge Meehan held that a further 20% should be discounted due to the author of the statements being a concurrent wrongdoer who was not joined to the proceedings by the plaintiff. This reduced the final award to the plaintiff to the sum of €14,400.

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Conclusion

The decision to award liability was made as, despite the immediate removal of the video once the defendants were contacted by the plaintiff’s solicitor, the second-named defendant was aware of the offending material as soon as the comments were made and failed to remove the video. The judge described the pastor’s reaction to the defamatory statement as “informative” and noted that his affirmation and praise of the plaintiff’s daughter was evidence that he was “not particularly surprised by what she had said”.

This case again illustrates the importance of joining all liable parties as defendants to proceedings and confirms the responsibility of a plaintiff to pursue all parties, as previously highlighted in Kehoe v RTE. There was a significant reduction in the amount awarded to the plaintiff for failing to join all wrongdoers. It is likely that, in the current case, the familial connection between the plaintiff and the author of the statements may have influenced a decision to join the author to the proceedings.

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