Last week, the High Court dismissed a claim in defamation brought by a man claiming to have been defamed by Smyth’s toy shop when one of their security guards, he alleged, accused him of stealing a toy duck.

The fact that the product at the centre of the case was a walking and talking toy duck (and the fact that it could only with difficulty be stopped from walking and talking in the High Court) has led it to be reported as a frivolous case, thrown out by the judge on grounds of pure silliness.

In fact, cases of this kind are quite common. After all, how would you like it if you were accused of theft in front of a shop-full of fellow customers? Bad enough in the relative anonymity of the city centre, the damage to your reputation could be many times worse in a small town. All things being equal, the making of such an accusation is defamatory, if untrue. However, store owners would be placed in an impossible position were they at risk of defamation liability every time they accosted a suspected shoplifter.

The law in the area is set out in the 2004 case, McCormack v Olsthoorn. Mr. McCormack, a keen gardener, had bought a tomato plant on a Saturday shopping trip, and was in the Limerick Milk Market, hoping to buy another. Having browsed at Mr. Olsthoorn’s market stall, he moved on, bringing with him the tomato plant previously bought at another shop. Mr. Olsthoorn saw him walking away with a plant in hand, and made the not unreasonable assumption the plant was from his stall. Though the parties disagreed as to what exactly happened next, there was no dispute that Mr. Olsthoorn accosted Mr. McCormack, before backing off upon discovering that the plant was not one of his stall’s.

The issue before the court was whether the stall owner’s utterances to Mr. McCormack, in the full hearing of a crowded Milk Market, were protected by qualified privilege.  Privileged statements are exempted from the defamation laws, the best known example being the absolute privilege attaching to statements made in the Dáil. Qualified privilege arises on certain situations, but can be lost. In McCormack v Olsthoorn, 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 and in doing so to “tax” an individual whom he suspected of a theft”.

One would have thought that this might have put an end to these defamation claims, but they continue to arise. The main reason for this is that, unlike absolute privilege, qualified privilege can be lost, and one of the ways it can be lost is via excessive publication. Mr. Justice Hardiman seemed to accept in Olsthoorn that questioning someone about a possible theft in the presence of customers is not necessarily an excessive publication. This seems reasonable, as it will not always be possible to act discreetly where time is of the essence. However, the question of just how indiscreet one can be remains unanswered, and delicacy and discretion are not necessarily major element in a security guard’s job description. Certainly, a shout of “Stop, Thief!” across a crowded shop will not always be justifiable.

Accordingly, shoplifting defamation claims are quite common, some successful, some not. In 2011, two teenage girls were awarded €8,000 each for defamation (plus €2,500 each for false imprisonment, which is often a component of these cases) when falsely accused of shoplifting. Earlier that year, another teenage girl (the pattern here is not entirely coincidental, I suspect – security guards are mistrustful of teenagers) received a settlement of €15,000 for a similar false accusation. In 2009, however, two claims were dismissed, where it was held that shop owners and their staff were entitled to make discreet enquiries.

In the case of the duck, the case was dismissed on the basis that there was no malice in the security guard’s behaviour (malice being another of the ways in which privilege can be lost). This suggests that the question of excessive publication was not pursued in that particular case. Mr. Mongan might have fared better if it had. Certainly, his financial troubles would have been lessened had he gone (as did the Plaintiffs in all the cases mentioned in the above paragraph), to the Circuit Court