William Bird v. Iconic Newspapers Limited [2025] IESC 30

Can media organisations rely on the defence of qualified privilege in respect of news reporting? In Ireland at least, the answer is no, following a decision of the Supreme Court which includes a full analysis of the history of the defence.

In William Bird v. Iconic Newspapers Limited, the Supreme Court ruled that a media organisation cannot rely on qualified privilege (section 18 of the Defamation Act 2009) in defamation proceedings relating to a publication to the world at large, as this would significantly expand qualified privilege and "swallow up" the defence of fair and reasonable publication (section 26), which the Oireachtas could not have intended.

What is qualified privilege?

Qualified privilege is a defence to a defamation action where a defendant can prove:

• that the statement was published to people who (i) had a duty to receive, or interest in receiving, the information contained in the statement, or (ii) the defendant believed on reasonable grounds had such a duty or interest; and
• that it had a corresponding duty to communicate, or interest in communicating, the information to those people.

Either "duty" or "interest" will suffice and the scope of what comprises a duty or interest is very broad and non-prescriptive. Publication of a report by an investigatory committee to specified managers is a good example. Or an airport security guard searching a passenger's bag following detection of a banned article by the detectors. A defence of qualified privilege fails if the plaintiff proves the defendant acted with malice or bad faith. So, if it could be shown that the investigatory committee or the security guard in those examples had been out to get the individuals at issue from the outset, a defence of qualified privilege would not succeed.

The facts in Bird

In Bird, the defendant published an article wrongly identifying the plaintiff with companies published on the Revenue's Tax Defaulters list. The plaintiff had nothing to do with the defaulting companies and sued for defamation. The defendant relied on the defence of qualified privilege under section 18 of the Defamation Act 2009, but did not plead section 26.

The main point of dispute was whether qualified privilege under section 18(2) or the common law could apply in the context of publications to the world at large by media organisations. Section 18(3), which protects fair and accurate reports of government publications, was held not to apply. The defendant also did not seek to rely on section 26 because it accepted that it could not meet the stringent test prescribed by that defence.

The court's decision

The Supreme Court noted that the "general rule" is that qualified privilege cannot apply to publications to the world at large because of the lack of reciprocity of duties and interest between the publisher and the public. This does not mean that publications to large numbers of people cannot benefit from the defence and it was held to apply in a case in England involving publication to 10,000 members of the Bar.¹

The court said that section 18(2) did in fact expand the scope of qualified privilege. Under the common law, the test was an objective one in that a mistaken belief by the publisher in a reciprocal duty and interest could not ground the defence.² Under section 18(2), it is now sufficient to show that the publisher "believed upon reasonable grounds" that a person had a duty or interest in receiving the statement.

On the question of media publications, the court stated that the defence of qualified privilege had not applied to "world at large" publications at common law. The court held that section 18(2) did not expand the common law in this respect as the Oireachtas intended to simply restate the common law defence (with the addition of the change noted above in relation to the publisher's belief); that section 26 was the Oireachtas's attempt at providing a statutory defence for public interest reporting, and that to hold otherwise would effectively negate that defence. The Oireachtas had decided on the parameters of that defence and expanding qualified privilege in the manner argued for would make section 26 redundant. The court accordingly determined that the defence of qualified privilege was not available to Iconic Newspapers and awarded €75,000 in damages to Mr Bird.

Analysis

The court acknowledged in its judgment that section 26 has never been successful before and that the renowned authors of Ireland's seminal defamation text, Cox and McCullough, said that its impact was limited. Section 26 in practice sets a prohibitively high bar for defendants to meet, which comments will resonate with both the media and practitioners in Ireland. Change is, however, on the horizon. Earlier this month, the Oireachtas passed an amendment to the Defamation (Amendment) Bill 2024 which would replace section 26 with a new, much shorter public interest defence, similar to the defence in England and Wales. While for many media organisations this likely does not go far enough, it is certainly a move in the right direction.

1. Kearns v. General Council of the Bar [2003] EWCA Civ 33↩
2. Hynes-O'Sullivan v. O' Driscoll [1988] IR 436↩