Pharmacists in Smoking Cessation

What is defamation?
A defamatory statement is
defined as one “that tends to
injure a person’s reputation
in the eyes of reasonable
members of society”. In
order for a statement to
be actionable, it must be
published by any means to
one or more people.
Returning to the scenario
above, if the person who was
acting suspiciously started to
leave the pharmacy and you
shouted out to the customers
nearer the door “Stop that
thief!”, and it then transpired
that the person had not in
fact shoplifted, this would
potentially be a defamatory
statement and the individual
would be able to pursue a
claim against you.
A person who has allegedly
been defamed can pursue
proceedings in either the
Circuit Court, which can
award damages up to
€50,000, or in the High Court
where such cases are still
heard by a jury. In the High
Court, a person who has
defamed an individual can
be ordered to pay damages,
Special Damages, Aggravated
Damages and occasionally
Punitive Damages. Further, if
the individual establishes that
he/she has been defamed,
you will also have to pay their
legal costs. Such a claim can
be extremely expensive.
A person who believes that
they have been defamed,
however, must swear an
affidavit verifying the
assertions of fact which they
seek to rely upon in order
to prove the case. If it is
subsequently established that
the information contained in
the plaintiff’s court pleadings
is false or misleading, then
he/she will be deemed to
have committed an offence
under the Defamation Act
and is potentially liable to
imprisonment and or a fine at
the discretion of the court. In
our view, this is the legislation
trying to balance the impact
of the Act; however, this
does not limit the need for
you to be extremely careful
about accusing someone of
shoplifting.
As mentioned above, a
defamatory statement will
not become actionable until
the moment it is seen, heard
or otherwise brought to the
attention of a person other
than the plaintiff. The Act
refers to the need for the
statement to be “published”.
Publication does not mean
that it is limited to a printed
statement. A statement
can be published orally or
in writing. Visual images,
sounds, gestures and any
other methods of signifying
meaning can also constitute a
statement.
Defences under the
Defamation Act
There are several defences
to an action in defamation
within the Act. Some of these
are relevant to the scenario
above.
1. Truth
This means that you can
successfully oppose a claim
for defamation if you can
prove that the relevant
statement was true in all
material aspects. Effectively,
it would be necessary
for you to prove that the
individual was in fact a
thief and that he had stolen
goods from your pharmacy.
It is necessary to prove the
truth of every allegation
that has been published
and show that the allegedly
defamatory statement
was “true in all
material respects”.
This defence is
rarely used as a
stand-alone defence
and would usually
be one of a number
of defences pleaded.
Were it to fail, a court or
a jury will have grounds
to make an award for
Aggravated Damages.
2. Qualified Privilege
Qualified Privilege may
be pleaded as a defence
where a statement was
published to a person
who had a legal, moral
or social duty to receive
the information, or where
the defendant reasonably
believed that the person
had such a duty or interest
and the defendant had
a corresponding duty
to communicate the
information.
The leading judgement
in this area was given by
Mr Justice Hardiman in the
Supreme Court in the case
of John McCormack v Adrian
Olsthoorn. The case arose out of
a relatively innocuous incident,
namely the alleged theft of
a tomato plant at the Milk
Market in Limerick. It was an
action for assault, battery, false
imprisonment and defamation.
Mr McCormack had bought a
tomato plant on a Saturday
shopping trip. He then went
into Limerick Milk Market
hoping to buy another plant.
He stopped at Mr Olsthoorn’s
market stall to look at his
plants. He then moved on,
taking with him the original
plant that he had bought from
another shop. Mr Olsthoorn
saw this and thought that Mr
McCormack was taking a plant
from his stall.
There was a dispute
about the evidence as to
what exactly occurred
when Mr Olsthoorn stopped
Mr McCormack; however,
there was no dispute that
Mr Olsthoorn accosted
Mr McCormack and then
upon realising his mistake,
backed off. The court had
to determine whether Mr
Olsthoorn’s comments to Mr
McCormack made in the full
hearing of everyone in the
Milk Market were protected
by qualified privilege. Mr
Justice Hardiman held that
the prevention of a suspected
theft was an occasion of
qualified privilege and that Mr
Olsthoorn “had a legal right to
protect his property”.
However, this does not give
shop owners carte blanche
as to how they deal with
suspected thieves. The defence
of qualified privilege can be
lost if there is either malice on
behalf of the maker or if there
has been excessive publication
of it. There is no definition
within the legislation as to
what constitutes “excessive
publication”.
Each scenario will turn
on its own facts and it
is impossible to give any
absolute certainty as to
how you can safely stop an
individual who is suspected of
having stolen your goods. In
reality, in order to avoid such
claims, it is most important
“ You suspect that the individual may have
shoplifted some goods. What do you do?
In reality, it is necessary for you to exercise
extreme caution.”
IPUREVIEW FEBRUARY 2017 21