Defences to Defamation: Truth, Honest Opinion and Privilege

The defences to defamation in Ireland are not arguments. They are sets of facts, each set out in a numbered section of the Defamation Act 2009 as amended by the Defamation (Amendment) Act 2026, and each is available only to a defendant who can prove the facts the section requires. A letter that says the statement was “obviously true” or “just my opinion” has named a defence without yet having one. This guide goes through every defence in the Act in order, says what evidence each needs and who bears the burden of producing it, and marks the four places where the 2026 Act changed the position.

1. Who Proves What

The claimant proves the tort. Section 6 requires a statement that tends to injure a person’s reputation in the eyes of reasonable members of society, published to at least one person other than the claimant, that identifies the claimant. A company must also, since 1 March 2026, show under section 12 that the statement has caused or is likely to cause serious harm to its reputation, meaning serious financial loss for a body trading for profit; there is no serious harm test for an individual. The claimant does not have to prove the statement was false. From there the burden shifts: every defence below is the defendant’s to establish, with one exception. Where qualified privilege is raised, the defendant proves the occasion and the claimant proves the malice that defeats it. That allocation shapes most cases before anyone reaches court: the defendant, not the claimant, has to produce the evidence that what was said was true, was opinion, or was said on a protected occasion.

2. Truth: Section 16

Truth is a complete defence. If the statement is proved true in substance, the claim fails regardless of motive, tone or harm. The facts it needs are the facts asserted: if the post said a contractor took a deposit and never came back, the defendant needs the bank record of the deposit, the messages chasing the work and, ideally, a witness. The common failure is a statement that is true in the defendant’s own experience but cannot be proved on admissible evidence. A true statement without proof is, in a courtroom, a false one. There is a further cost to getting this wrong: a plea of truth maintained to the end that fails is conduct that worsens the harm, and the court may award aggravated damages for it. Truth should be run when the evidence is in hand, not when the defendant feels strongly.

3. Absolute and Qualified Privilege: Sections 17 and 18

Absolute privilege under section 17 covers the occasions the section lists, such as statements made in the Oireachtas and in the course of court proceedings, and it cannot be defeated by malice. Qualified privilege under section 18 arises far more often. It protects a statement made by a person who had a duty or interest in making it to a person who had a corresponding duty or interest in receiving it. The employer giving a reference to a prospective employer and the manager raising an allegation inside a disciplinary process with the people who need to hear it are privileged occasions. The defendant establishes the duty and the interest on both sides. The privilege is then lost in two ways. The claimant may prove malice, which means knowledge that the statement was false, recklessness as to whether it was, or an improper motive. Or the publication may have gone beyond the people with the relevant interest: the same allegation repeated to colleagues, to customers or on social media is not on a privileged occasion at all.

The 2026 Act added section 18(1A), a qualified privilege for a retailer’s inquiry whether goods or services were paid for. It has three conditions: the person making the inquiry had a duty or interest in making it, the publication was not excessive, and the inquiry was made in good faith. A quiet, good-faith inquiry at the till is protected; an accusation shouted across the shop floor is neither an inquiry nor a limited publication.

4. Honest Opinion: Section 20

Section 20 protects opinion, as distinct from fact. The defendant has to establish that the statement was one of opinion, that the opinion was honestly held, that it was based on facts which were true or were indicated in the statement, and that it concerned a matter of public interest or a matter that a reasonable person would consider to be opinion. The evidence it needs is proof of the underlying facts, because an opinion based on facts that cannot be proved has no foundation, and the defendant’s own evidence that the view was genuinely held. The practical exercise is to separate the post into two columns. “Rude and unhelpful” is opinion. “Took my money and never did the work” is fact, and goes into section 16. Most reviews and posts contain both.

5. Offer of Amends and Apology: Sections 22 to 24

An offer of amends under section 22 is an offer to publish a correction and apology and to pay compensation and costs as agreed or as determined by the court. Since 1 March 2026 the correction and apology must have the same or similar prominence as the original statement. The offer must be made before the defence is delivered. If it is not accepted, it is a defence under section 23, lost only where the publisher knew or was reckless as to whether the statement was false and defamatory, which is for the claimant to prove. The publisher’s conduct after the offer is relevant to costs. The mechanics, and when to make or accept one, are in offer of amends after the 2026 Act. An apology under section 24 is different: it is not a defence to liability but it is not an admission of liability either, and it goes to damages under section 31. Neither needs facts about the statement; both turn on the defendant’s conduct after it, which the defendant controls.

6. Consent, Public Interest, Innocent Publication and Live Broadcast: Sections 25 to 27A

• Consent (section 25). It is a defence that the claimant consented to the publication. The defendant needs evidence of the consent: a message or record that the claimant agreed to the publication.
• Fair and reasonable publication on a matter of public interest (section 26 as substituted). The defendant must show that the publication was fair, that it was in the public interest, that the defendant reasonably believed it was in the public interest, and that it was published in good faith. The evidence is the record of how the piece was put together and why.
• Innocent publication (section 27). Available to a person who was not the author, editor or publisher of the statement and who took reasonable care in relation to its publication. A platform or host relies on it; the evidence is what it did when it was notified.
• Live broadcast (section 27A, new). Available to a broadcaster that took reasonable care over a statement made by a contributor in a live broadcast. The evidence is the care taken before and during the programme.

7. What the 2026 Act Changed

Four defences changed on 1 March 2026. Section 18(1A) created the retail inquiry privilege. Section 26 was substituted, so the public interest defence now turns on fairness, public interest, reasonable belief and good faith. Section 27A created the live broadcast defence. And sections 22 and 23 were amended so that the correction and apology must have the same or similar prominence as the original, the defence is lost only for knowing or reckless falsity, and conduct after the offer is relevant to costs. Alongside the defences, the Act introduced the serious harm test for companies in section 12, an element the claimant company must prove rather than a defence, and abolished juries for High Court actions commenced on or after 1 March 2026, which changes who decides whether a defence is made out but not what it requires. Everything else here was already the law under the 2009 Act.

8. Which Defence You Actually Have

The question in the first week after a letter arrives is not which defence sounds right but which set of facts the defendant can prove. The exercise is mechanical: write out the statement, mark each line as fact or opinion, list the evidence for each factual line, ask whether every recipient had an interest in receiving it, and record what was done after the complaint arrived. Usually one defence is strong, one is arguable and the rest do not apply, and that decides the reply. Where no defence is strong, the offer of amends and the section 24 apology are the exits, and they are cheaper the earlier they are used. The first week is set out in received a defamation solicitor’s letter: what now, and the defence side as a whole on our page on defending a defamation claim.

A claimant reading this gets the same analysis from the other side: a defence reasonably likely to succeed is exactly what a court looks for before granting a prohibition order under section 33, and a letter that anticipates the defence and explains why it fails is a stronger letter. The Defamation Claim Checker runs the section 6 elements and the likely defences from your answers. We act for claimants and for defendants, never both sides of the same matter.