IECC 5 · Circuit Court

Record No: 2020/00493

THE CIRCUIT COURT

AN CHÚIRT CHUARDA

DUBLIN CIRCUIT CIVIL COURT COUNTY OF THE CITY OF DUBLIN

IN THE MATTER OF

MARK KELLY

Plaintiff

and

BOYLESPORTS LIMITED

Defendant

Judgment of Her Honour Judge Jennifer O’Brien delivered this 21st day of June 2024

1. Background: This matter comes before the Court by way of ordinary civil bill issued on 25 September 2019. The plaintiff is unemployed and lives at an address in Dublin.

The defendant is a limited liability company having its registered office at the Finnabair Industrial Park, Dundalk, Co Louth. The defendant operates a number of bookmaking shops throughout the jurisdiction. The plaintiff was a regular customer of the defendant at various Dublin based Boylesports betting shops. It is alleged by the plaintiff that in or around March 2019 there were a number of photographs of the plaintiff placed on the defendant’s website with the following accusations “Please be aware of the below man who was attempting to engage in ambiguous bet placement activity. Samples of his

handwriting/ appearance are included below. This man must not be served and must be referred to customer services if there are any issues.”

2. It is alleged that the words and pictures were published to various members of the defendant’s staff, as well as to third parties who had access to the publication. A particular employee of the defendant caused the notice to appear on his Instagram feed.

The plaintiff and his partner gave evidence to the effect that the notice appeared on the said employee’s Instagram page and was subsequently copied to thousands of people in their local area. The plaintiff complains that the allegations in their ordinary and natural meaning and/or in the alternative by innuendo, are understood to mean that the plaintiff was a thief, that the plaintiff was a criminal, that the plaintiff attempted to defraud the defendant, that the plaintiff’s betting was fraudulent, that the plaintiff was a person who should not be served by the defendant staff and that the plaintiff was engaged in ambiguous activity.

3. It is alleged that no offer was made to make amends pursuant to the provisions of Section 22 of the Defamation Act of 2009. It is claimed by the plaintiff that by reason of these matters he suffered loss and damage to his reputation and has been adversely affected, he has been lowered in the eyes of right-thinking members of society. He claims he has suffered humiliation and shame in public due to the unlawful actions of the defendant, its servants, or agents. It is claimed that the publication was published within the jurisdiction of this Court and that it was directed to “all Dublin shops”. The plaintiff claims damages including aggravated and or exemplary damages for defamation together with interest and an order for costs.

4. The defendant lodged a full defence to the matter, albeit in the course of the trial it was acknowledged that this notice was circulated to thousands of the defendant’s employees on the internal intranet within the company. The plaintiff was put on full proof of the allegations made. It was denied that the plaintiff suffered any damage, and it was denied that any of the words or pictures published of the plaintiff or any conduct or gestures on behalf of the defendant were published falsely or maliciously or arose from any improper motives. The defendant asserts that at all material times the defendant, it's servants or agents, were acting under a duty to protect the property of the defendant and all publications occurred on an occasion of qualified privilege. Accordingly, the defendant relies on the provisions of Section 18 (1) and (2) of the Defamation Act 2009 and the defence of qualified privilege as recognized by common law.

5. The alternative, which is denied, if the plaintiff suffered the alleged or any injuries same were caused solely by republication of mistake, by an unidentified third party.

Therefore, if there were any statements defamatory of the plaintiff published by the defendant, which is denied, all such publications were made in accordance with the provisions of Section 18 (1) and (2) of the Defamation Act 2009 and were published on the defendant’s internal system, which, at the material time was not accessible by the public. Therefore, it is claimed that any republication of the alleged statements occurred as a result of a breach of contract and or an occasion of an unlawful access to the internal system. It was submitted in the course of evidence that the employee was subsequently dismissed for gross misconduct. The defendant further claimed that any such republication was made without the consent of the defendant, either express or implied and was not foreseeable by the defendant, it’s committed servants or agents. The defendant admitted that no offer to make amends has been made pursuant to Section 22 of the Defamation Act 2009.

6. As such it is not disputed in the case that the employee re-published an internal document without authority for doing so. The defendant claims that it is not vicariously liable for the employee’s actions in this regard. The Court heard evidence from the plaintiff and from the plaintiff’s partner and also from the head of security for the defendant and the regional director of the defendant regarding the steps taken in relation to this matter. It is notable that while a notice to produce was served, the defendant has not brought forward in evidence the documentation which gave rise to their concerns regarding the plaintiff’s betting patterns. The Court further notes that the defendant took no steps to inform the plaintiff of the breach or potential breach of his GDPR rights on the part of a former employee of the defendant. No efforts were made to make amends vis-á-vis the plaintiff.

7. The submissions made on behalf of the plaintiff included reference to the text “Defamation Law and Practice” Second edition by Cox and McCullough which sets out the legal issues arising in this case. Firstly, the Court must consider if the statement is defamatory. It is submitted on behalf of the plaintiff that clearly the statement is defamatory and there is no evidence proffered as to the basis of the defendant forming this opinion of the plaintiff. The notice alleges ambiguous bet placement activity and identifies the plaintiff with the photograph which was sent to thousands of employees within the defendant.

Secondly, it is submitted that the Court must consider whether there is any qualified privilege. Section 18 (2) provides as follows:

“18 (2) Without prejudice to the generality of subsection (1), it shall, subject to section 19, be a defence to a defamation action for the defendant to prove that-

(a) The statement was published to a person or persons who-

(i) Had a duty to receive, or interest in receiving, the information contained in the statement, or

(ii) The defendant believed upon reasonable grounds that the said person or persons had such a duty or interest, and

(b)The defendant had a corresponding duty to communicate or interest in communicating, the information to such person or persons.”

Counsel then referred to Section 19 which provides as follows:

“19 (1) In a defamation action, the defence of qualified privilege shall fail if, in relation to the publication of the statement in respect of which the action was brought, the plaintiff proves that the defendant acted with malice.

(2) The defence of qualified privilege shall not fail by reason only of the public publication of the statement concerned to a person other than an interested person if it is proved that the statement was published to the person because the publisher mistook him or her for an interested person.”

8. As such the plaintiff claims that the excessive publication of the information can cause the defendant to lose qualified privilege. This particularly arises in relation to the employee, who it is submitted clearly excessively published the information. It is submitted that no restrictions were placed on the dissemination of the information other than that it went to all Boylesports employees. It is further submitted that there was a duty on the part of the defendant to ensure that the publication was not excessive. The plaintiff referred to the decision of MacGrath J which concerned forgery of a €10 note and excessive publication which caused a loss of the defence of qualified privilege.

9. It was further submitted on behalf of the plaintiff that the defendant can, if they believe they have reasonable grounds, pass on the information where there is a duty to do so. It’s submitted that there's no basis for the reasonable grounds for the publication in this particular instance. It was submitted that the onus is on the defendant to show reasonable grounds for publishing the notice. It was submitted that the evidence was contradictory and unsatisfactory and beggar’s belief that the defendant would have no knowledge of the files underpinning the allegations in this case when legal action was taken within a period of four months of the events. In this regard, the defendant stated in the course of evidence that the files had been erased on account of a change of system at their office. The plaintiff’s counsel asks what was reasonable in the circumstances of this case and the Court must look at all of the evidence. The defendant’s first witness said they didn't have knowledge of Mr. Kelly's identity whereas the second witness for the defendant stated that they knew exactly whom the notice related to.

10. As a follow up, the plaintiff submitted that where qualified privilege does apply, the defendant can lose it with malice. It is submitted that malice in this instance is excessive publication and insufficient investigation, regarding the initial publication. It is further submitted that the test must be analysed again with regard to the secondary publication by the employee and in this instance, it was submitted that qualified privilege cannot apply. It is noted that while the employee was dismissed, it is claimed that the defendant is vicariously liable for the actions of the employee while he was in the office. The test is whether the employee was acting in the course of his employment and yet while his actions may have been outside the scope of his employment. It is not sufficient to say that he was dismissed, that there is liability for the actions taken while he was in office.

11. Counsel for the plaintiff submits that it's notable that the employee was sacked for breach of confidentiality to the defendant rather than for what he did to the plaintiff. It was submitted that the second witness for the defendant didn't think he had to do anything about Mr. Kelly notwithstanding that they are vicariously liable for the actions of their employee, and it is submitted this is clearly the case.

12. Counsel for the defendant argued that they are not vicariously liable, this would only arise if the employee was acting in the course of his work whereas here the employee acted contrary to the terms of his employment and as such the defendant cannot be found to be vicariously liable. It was submitted that these warnings go to all of the shops within the organization as a whole as people are very movable and it would be farcical to merely send the notice to a smaller number of shops. Counsel refuted that there was any excessive publication, and that the defendant was in any way not careful about how the information was published. Reference is made to the decision of Hardiman in McCormack, although it was submitted that the defendant is not relying on that case. The defendant’s counsel stated they are relying on Section 18 (2) of the Defamation Act. It was submitted that the notification was published on the internal intranet for the purpose of protecting the defendant’s assets. It was submitted that the information was not targeted for any other reasons. Reference was made to the decision of the Supreme Court in Talbot v Hermitage Golf Club [2014] IESC 57 and the necessity of publication being “in pursuance of a moral duty”. It was submitted that there's no evidence of malice and that the defendant had taken fair and reasonable steps for the purpose of protecting their interests.

13. Reference was also made to the decision in Somerville v Hawkins [1851] 138 E.R. 231. Reference was made to the decision of Charleton J in the Talbot case. In that case, the Court was satisfied that the communication was privileged under Section 18(2) and that it was not motivated by personal spite or ill will and as such there is a presumption that the statement is true. It was submitted by counsel for the defendant in the instant case, that there was no evidence that the defendant was “indifferent as to its truth.” Counsel stated that the employee had republished the information contrary to the terms of his employment and as such no malice has been proved by the plaintiff as against the defendant. The defendant does not accept that the plaintiff suffered any trauma or anxiety as he continued to return to the Boylesports betting shops. The defendant noted that the employee was not joined as a party to the proceedings. Reference is made to Section 35(1)(i) of the Act and counsel for the defendant submitted that the plaintiff’s conduct does not square with the evidence given in Court on the day of trial. It was notable that the plaintiff had never made a written complaint regarding the allegations he made that the defendant had taken his money. No application was brought to amend the proceedings. It is further notable that the Civil Bill refers to the fact that the notice was directed to all Dublin shops whereas in fact it was directed to all shops in Ireland. Counsel for the plaintiff stated that he did wish to rely on the decision of MacGrath in the case of Nolan v Laurence Lounge t/a Grace's Pub, [2018] IEHC 352 with regard to qualified privilege and malice.

It is argued for the plaintiff that the publication was excessive and that is evidence of malice in the particular circumstances. It was submitted that the defendant did not apologise to the plaintiff, nor did they acknowledge any breach of his GDPR rights and or his rights to privacy.

14. Decision: A number of legal issues arise in this case including the application of the defence of qualified privilege. In this case, the defence of truth is not pleaded and as such sole reliance is placed on the defence of qualified privilege. The first question the Court must consider is whether the notice issued about the plaintiff is defamatory in nature. The Court finds that the statement made about the plaintiff is clearly defamatory in the sense that it implies that he engaged in fraudulent conduct, and it lowers the standing of the plaintiff in the eyes of ordinary right-thinking people. The Court notes with some concern that no evidence whatsoever was proffered as to the basis for the defendant forming this opinion of the plaintiff. The notice alleges ambiguous bet placement activity and identifies the plaintiff with the photograph which was sent to thousands of employees within the defendant. Under cross-examination, the security witness for the defendant acknowledged that the records had been lost on transfer to a new system around that time. He gave evidence that it was usual to circulate such a notice to the entire internal network of employees (on the intranet) in the event that a concern arose regarding the activities of a customer.

15. While the defence of truth is not pleaded, this Court has a difficulty with the proposition that no basis whatsoever is proffered by the defendant as to the reasoning it applied in formulation of such a negative opinion regarding the plaintiff’s conduct. Evidence was given to the effect that there would have been a good reason for forming this opinion, however, the files are no longer available. The Court is left in the dark as to what the good reason was. This is unsatisfactory and to my mind goes to the very essence of the defence of qualified privilege. It does not matter that the reason subsequently transpires to be one relied on in error. What matters is that there was a reason and that the reason for forming a negative view of the plaintiff in terms of his impact on business interests, was relied on in good faith. That element is absent here and the Court is asked to rely on the concept that “there would have been a good reason.” Something of a black box of evidence that is no longer available for whatever reason.

16. Secondly, the Court must consider whether this is an event giving rise to the defence of qualified privilege.

Section 18 (2) provides as follows:

“18 (2) Without prejudice to the generality of subsection (1), it shall, subject to section 19, be a defence to a defamation action for the defendant to prove that-

(a) the statement was published to a person or persons who-

(i) had a duty to receive, or interest in receiving, the information contained in the statement, or

(ii) the defendant believed upon reasonable grounds that the said person or persons had such a duty or interest, and

(b) the defendant had a corresponding duty to communicate or interest in communicating, the information to such person or persons.”

Section 19 provides as follows:

“19 (1) In a defamation action, the defence of qualified privilege shall fail if, in relation to the publication of the statement in respect of which the action was brought, the plaintiff proves that the defendant acted with malice.

(2) The defence of qualified privilege shall not fail by reason only of the public publication of the statement concerned to a person other than an interested person if it is proved that the statement was published to the person because the publisher mistook him or her for an interested person.”

In this case, it is clear that the initial publication by the defendant (had he shown good reason for it) was an occasion such that same was to a person who had a duty to receive, or interest in receiving the information contained in the statement. On the face of it, this publication was clearly about protecting the defendant’s business interests and falls within Section 18(2)(a)(i) as set out above. Furthermore, the defendant had a corresponding duty to communicate or interest in communicating the information to such person or persons in accordance with Section 18(2)(b).

17. The next question requiring determination is whether there was any malice on the part of the defendant, in terms of its actions surrounding this initial publication to the internal group? What is malice for these purposes? Does the lack of any basis for formulation of a negative opinion of the plaintiff amount to malice in the particular circumstances, notwithstanding that the defence of honest opinion is not pleaded? The plaintiff claims that the publication on the part of the defendant to the entire staff base was excessive and therefore this gives rise to malice in the particular circumstances. Further, the plaintiff sought discovery against the defendant and was informed that the documentation underlying the allegations made was no longer available and had been lost on transfer to a new system. In Sommerville v Hawkins [1851] 10 CB 583, a statement from an employer warning employees about persons with whom they were associating was seen as being made in pursuance of a moral duty – that is in pursuance of the business interests of the defendant. Reference is made to the decision of the Supreme Court in Talbot v Hermitage Golf Club [2014] IESC 57 and the necessity of publication being “in pursuance of a moral duty”. It was submitted that there's no evidence of malice and that the defendant had taken fair and reasonable steps for the purpose of protecting their interests. Counsel for the plaintiff also placed reliance on the decision of MacGrath J in the case of Nolan v Laurence Lounge t/a Grace's Pub, [2018] IEHC 352 with regard to qualified privilege and malice. It is argued by the plaintiff that the publication was excessive and that it is evidence of malice in the particular circumstances. It was submitted that the defendant did not apologise to the plaintiff, nor did they acknowledge any breach of his GDPR rights and or his rights to privacy.

18. Nolan v Laurence Lounge t/a Grace’s Pub, is a decision of MacGrath J on an appeal from a decision of the Circuit Court. The plaintiff claimed damages for defamation arising from an occurrence in a public house in Rathmines on the evening of 24 April 2013 when the legality of a €10 note which he proffered for an alcoholic beverage was called into question by a barman employed by the defendant. He alleged that his reputation was damaged by the words spoken by, and the conduct of, the defendant’s barman was such as to infer in their natural and ordinary meaning that the plaintiff was guilty of fraudulent conduct, that he was guilty of an offence, and he could not be trusted. The claim was denied. While the defendant accepted the legality of the €10 note was called into question – the words, the manner in which they were spoken, and the actions of the barman were disputed. The defences of trust and qualified privilege were relied upon. The Circuit Court judge in finding for the plaintiff awarded damages of €5,000. The defendant unsuccessfully appealed that award.

19. In this decision reference was made to the seminal decision on qualified privilege in Toogood v Spyring [1834] 149 E.R. 1044 in which Parke B formulated what has come to be recognised as the definition of circumstances in which qualified privilege may arise, with emphasis being placed on the “occasion” preventing the inference of malice. In his celebrated dictum, he observed at para 193:

“In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorised communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.”

20. I am of the opinion that the publication internally to staff members was not excessive per se. However, in the particular circumstances of this case where no reasonable basis is proffered for creation of this notice, I do find the subsequent internal publication of negative information about the plaintiff, excessive in that the communication does not appear to be made in pursuance of protection of business interests or if it is, the defendant offers no reasons other than “there would have been good reasons.” There is no sense in which the communication of the notice in this case is “fairly warranted by any reasonable occasion or exigency.” While the communication may have been honestly made, the court is offered no reason as to the determinations that were made nor the circumstances in which they arose, whether honest or otherwise. Simply the Court is told we have a system and as such there would have been a good reason. In this manner the defendant has sought to fix the Court with knowledge of its internal workings to its own advantage. While it is not necessary to prove honest opinion or truth where that defence is not raised, it is in the opinion of this Court necessary to prove that there was a reasonable basis for the defendant’s belief that the plaintiff was acting contrary to the interests of their business, prior to publishing an internal notice about him. Failure to put forward any reasonable basis for the defendant’s belief is evidence of malice in the circumstances of this case and as such, the defence of qualified privilege fails.

21. The Court must also consider the position with regard to the subsequent publication by the employee and whether the defendant is vicariously liable for same. Counsel for the defendant stated that the employee had republished the information contrary to the terms of his employment and as such no malice has been proved by the plaintiff as against the defendant. The defendant does not accept that the plaintiff suffered any trauma or anxiety as he continued to return to the Boylesports betting shops. The defendant noted that the employee was not joined as a party to the proceedings. In essence, the defendant denies liability for the employee's wrongful actions in this regard.

22. The law makes employers liable for various acts of their employees conducted “in the course of their employment”. It is clear that the publication by the employee on his Instagram account of an internal notice was clearly outside the ambit of his role within the organisation. As such the Court makes no finding against the defendant in this regard.

23. The Court grants a declaration that the plaintiff was defamed by the notice published within the defendant’s organisation given that no reasonable basis was proffered in which the defence of qualified privilege might otherwise arise.

Damages in favour of the plaintiff in the sum of €7,500.

An order for costs in favour of the plaintiff to include reserved and discovery costs, to be taxed in default of agreement.