Bird v Iconic: Qualified Privilege defence doesn’t fly with Supreme Court

Introduction

A recent Supreme Court ruling delivered by Judge Maurice Collins has dismissed an appeal by Iconic Newspapers that the common law or statutory defence of qualified privilege under section 18(2) of the Defamation Act 2009 extended to publications to the world at large and media publications. The Supreme Court upheld the High Court award of €75,000 to Mr William Bird concluding that the published article was in fact defamatory.[1]

Background

On 08 June 2016, Iconic Newspapers (“Iconic”) published an article regarding the Tax Defaulters List in its Limerick Leader newspaper. The Tax Defaulters List includes the names of people and companies who have received a fine or penalty from the Revenue Commissioners with respect to the underpayment or under declaration of taxes and also lists those who have entered into settlement agreements with the Revenue Commissioners. In its publication the Limerick Leader noted that “funfair/amusement activity operator William Bird, of Henry Street”, had entered into three different settlement agreements with the Revenue Commissioners to the sum of €183,595 for the under declaration of taxes, in relation to three companies, William Bird (Rollercoaster) Limited, William Bird (Sales) Limited and William Bird Tramore Limited (the “Companies”). As it transpired, however, the William Bird who was named in the Limerick Leader article had no connections whatsoever with the Companies and was identified in error. Mr Bird subsequently initiated proceedings for defamation. 

The High Court and Court of Appeal decisions are explored in our previous insight here with a summary of both decisions outlined below.

The High Court Decision: 

Iconic  pleaded “that the words complained of were published on an occasion of qualified privilege” pursuant to section 18 of the Defamation Act 2009. Iconic asserted that it had acted in good faith and maintained that the published article fell within their “lawful and legitimate duty to report on matters of concern and/or interest to the public at large”.[2]However, Judge Owens held that the publication was so fundamentally inaccurate the defence of qualified privilege could not apply. The High Court awarded €75,000 in damages to Mr Bird but limited costs to Circuit Court costs. This was subsequently appealed to the Court of Appeal. 

Court of Appeal Decision:

On appeal, Iconic argued that they had a social duty under section 18(7) to report the information contained in the Tax Defaulters List to the general public, which applied even if the information conveyed to the public was incorrect. The Court, relying on preexisting common law principles and statute, found that qualified privilege remains limited to communications received by those with an actual duty or interest in them. Drawing on Kinsella v Kenmare Resources[3] and Reynolds v Sunday Times,[4] the court reiterated that mass media publications require exceptional circumstances to attract qualified privilege under common law. In this case, no such circumstances were present. Mr Bird was an “unknown” Limerick businessman and there was no public interest justifying broad publication of his alleged tax issues. 

The court noted that if Iconic’s interpretation of section 18(2) was deemed correct, it would effectively confer broad privilege on mass media articles, which would undermine the legislative intention to protect an individual’s good name. The court analysed the qualified privilege defence afforded under section 18(3), which lists different “occasions” of qualified privilege. It was noted that although the publication of the Tax Defaulters List itself would fall under section 18(3), the Limerick Leader’s article was neither fair nor accurate and would therefore not be privileged under this section. Importantly, the court also noted that if section 18(2) was so wide-ranging as to overshadow section 26 (public interest defence), then section 26 would be rendered obsolete which indicated that such an interpretation was not intended. 

Supreme Court Decision: 

1.Common Law Defence 

Iconic relied on this defence which is “based on reciprocity of duty/interest and defeasible only by malice”. It was argued by Iconic that malice could be rebutted if the publisher could prove that they held an “honest belief” that the publication was true. In other words, “mere carelessness” on the publisher’s part(as was the case here) would not be sufficient to establish maliceif the publisher “honestly believed - however unreasonably - that the statement was true”. Judge Collins held that if Iconic’s argument was upheld malice becomes an “illusory” and insufficient “safety switch” which in reality would offer no real “safeguard” to the applicant. As it stands, the onus lies with the applicant to prove malice, which is an incredibly high threshold to reach. Judge Collins further opined that if the court were to extend the defence of qualified privilege to publications made to all the world “conditioned only on the absence of malice”, it would also “radically undermine” the constitutional protections of reputation and the protection of the good name recognised under the Constitution.

Fair and accurate reporting, which is now codified under section 18(3) of the 2009 Act, is an exception to this general rule that qualified privilege does not apply to publications to all the world. Judge Collins noted that this exception is “not capable of being stretched to accommodate a generally applicable media privilege”.

Judge Collins further reaffirmed the position that only in exceptional circumstances is publication to the world protected by qualified privilege. Having examined the positions in Kinsella and Reynolds, Judge Collins opined that these provided no support to the suggestion that qualified privilege would apply to publications to the world at large “save as regards the fair and accurate reporting of particular proceedings and reports”. Therefore, Judge Collins held that “no common law qualified privilege defence would be available to Iconic”. 

2. Defence under section 18(2) 2009 Act 

Iconic argued that section 18(2) significantly broadened the common law defence of qualified privilege to extend to media and non-media publications. However contrary to Iconic’s position, the court was satisfied that section 18(2) simply gave statutory footing to the common law position of an “occasion of privilege” and held that in reality, this section is a restatement of the common law defence.

Judge Collins noted that Iconic’s reading of section 18(2) would render section 26 of the Act redundant. Section 18(3) and section 26 of the 2009 Act already provide specific, structured defences for public interest and fair and accurate reporting. To extend section 18(2) as suggested by Iconic would, according to Judge Collins, disrupt the coherence of the 2009 Act and would also “give rise to significant constitutional issues” under Article 40.3.2. Accordingly, Judge Collins noted that all of these factors pointed clearly that media publications fell outside the scope of section 18(2) and were not protected by qualified privilege under that section.

Judge Collins observed that section 18(2) could not be interpreted to provide a “parallel defence for public interest reporting, encompassing publications such as that at issue here and shorn of the limitations in section 26 (and in section 18(3) of the 2009 Act”). The Court also rejected the argument that its interpretation of section 18(2) left a gap in defamation law. It emphasised that had Iconic reported the Tax Defaulters List fairly and accurately, its report would likely have been protected under section 18(3). Given that the appellant lacked a defence under section 18(3) owing to the material inaccuracy of the publication, Judge Collins held that the jury were in fact justified in their conclusion that defamation had occurred and therefore dismissed the appeal.

Conclusion:

The Supreme Court’s finding, that only in exceptional circumstances can the defence of qualified privilege be invoked with respect to publications to the world at large, is not particularly surprising.  It seems that there are few cases where the media will be able to rely on the defence of qualified privilege other than in the specific instances noted in Section 18(3) of the Defamation Act. However, those instances require the reporting to be fair and accurate, rendering this a defence that will likely be rarely relied on by the media in defending defamation cases

[1] [2025] IESC 30

[2] https://www.rdj.ie/insights/court-of-appeal-clarifies-law-on-qualified-privilege-defence-in-defamation-claims-arising-from-mass-media-publications

[3] [2019] IECA 54

[4] [2002] 2 AC 127