Background:
The Plaintiff alleged that a defamatory notice was published by the Defendant accusing him of ambiguous betting activity and fraud. This notice, containing his photograph, was circulated internally among thousands of Boylesports employees and was also posted on an employee's Instagram feed, leading to further widespread distribution. The Plaintiff contended that these allegations damaged his reputation, causing humiliation and shame. He claimed no offer to make amends was made under Section 22 of the Defamation Act 2009, and sought damages, including aggravated and exemplary damages, for defamation, along with interest and legal costs. The Defendant denied any malice or improper motives, arguing that the publication was protected under qualified privilege as they had a duty to protect their property and inform their employees. They admitted the internal circulation but denied responsibility for the external republication on Instagram, which was done by an employee without authorisation. Further, argued that the employee acted outside the scope of his employment and was dismissed for gross misconduct. They maintained that any publication was for the company's protection, done in good faith, and within the bounds of Section 18 of the Defamation Act 2009, and they were not vicariously liable.

Finding:
The court determined that the notice issued was defamatory by suggesting fraudulent conduct and lowering his standing in the eyes of right-thinking individuals. Despite the claim of qualified privilege, the court found no evidence supporting the basis for their negative opinion of the Plaintiff. The internal circulation to thousands of employees was deemed excessive, especially given the lack of clear justification for the notice. They failed to provide documentation or reasonable grounds for the allegations, which undermined their defence of qualified privilege.

The court scrutinised whether Boylesports acted with malice, defined as being publication without reasonable grounds or excessive dissemination. The court noted the Plaintiff’s discovery request was met with claims of lost records during a system transfer, further weakening the defence position. The court referenced past rulings, emphasising that qualified privilege fails if the Defendant acted with malice or if publication was excessive without justified reasoning. In this case, their lack of transparency and failure to provide concrete reasons for their actions indicated malice. The court concluded that Boylesports did not meet the threshold for qualified privilege and found in favour of the Plaintiff, Mr. Kelly.

Practical Guidance for Employers:
Employers should exercise caution and due diligence when publishing any internal notices that may defame an individual. To avoid legal repercussions, ensure that any allegations or negative statements are backed by solid evidence and are necessary for protecting business interests. Documentation supporting the basis for such statements should be retained and accessible to demonstrate reasonable grounds for the publication.

Limit the circulation of sensitive information to only those who need to know, thereby reducing the risk of excessive publication. Also, clearly communicate the boundaries of confidentiality to employees and enforce strict policies regarding the dissemination of company information, especially on social media platforms.

In the event of potential defamation, employers should promptly address the issue, offering to make amends under Section 22 of the Defamation Act 2009 if legally advised to. This can mitigate damages and show good faith efforts to resolve the matter amicably. Regular training on defamation laws and the importance of confidentiality can help prevent unauthorised publications and protect both the company's and individuals' reputations. In case of litigation, being able to demonstrate that all actions were taken with reasonable grounds and within legal bounds is crucial for mounting a robust defence.

The full case can be found here: 
https://www.courts.ie/view/judgments/9036b9b3-f336-42fb-ac19-9b6370399d91/536b1ee1-b646-4c6a-a37e-4b9e2a8dc952/2024_IECC_5.pdf/pdf