None of the Defamation Act 2013 has been extended to Northern Ireland, and former Minister for Finance & Personnel Sammy Wilson MLA said he had "no plans" to review the law. This leaves citizens in Northern Ireland with far fewer free speech protections than their neighbours elsewhere in the UK.
The Libel Reform Campaign today publishes a detailed response to the Department of Finance report authored by Dr Andrew Scott.
The detailed substantive recommendations made by Dr Scott in his report are (with a few exceptions) welcomed and supported by the Libel Reform Campaign. The Report, coupled with the Consultation Paper of the Northern Ireland Law Commission (NILC) published before its abolition, provides an extensive evidence base for reform of the law of libel in Northern Ireland.
The consultation undertaken by the NILC elicited responses from major international and domestic publishers, from the BBC to The Guardian, newspaper representatives, the News Media Association, and the world’s largest internet company, Google. The significant number of unique consultation responses reflects the importance of reform in Northern Ireland to a wide range of individuals, organisations and corporations. Dr Scott’s recommendations in the wake of the NILC consultation and the inclusion in the Report of two pieces of draft legislation outline an evidence-led approach for reform of the law of defamation in Northern Ireland.
There is no reason whatsoever for any further political delays. As this consultation, along with the many consultations and opinions before it show, free speech in Northern Ireland is being chilled by an archaic, technical and restrictive law of libel.
The Libel Reform Campaign has welcomed the Department of Finance’s report into libel law reform which recommends substantive reform of the law to better protect free speech and matters in the public interest.
The campaign in particular welcomes the inclusion of two prepared pieces of primary legislation that could be taken through the Northern Ireland Assembly, as the Defamation (Northern Ireland) Bill. The first bill is a bespoke bill that aims to build on the Defamation Act as applied successfully to England and Wales with strengthened protections for internet publishers and a wider Honest Opinion defence. The second bill is based closely on the Defamation Act 2013 as applied to England and Wales, as previously authored by Brian Garrett, Austen Morgan and Jeffrey Dudgeon and tabled by Mike Nesbitt MLA.
The campaign is now urging the Northern Ireland Assembly to adopt one of the draft Bills as a matter of urgency to ensure that the chill on freedom of expression in Northern Ireland on matters in the public interest is lifted.
The public consultation saw a significant number of scientists, academics, medics, lawyers and writers support reform of the law of libel. A short-form survey undertaken by the Libel Reform Campaign saw 522 of 552 respondees (94.5%) back our calls for reform of the law. The 552 responses was 7 times higher than the similar Ministry of Justice short-form consultation for England and Wales.
It comes after thirty-one authors – including novelists Colm Toibin, Roddy Doyle, Sebastian Barry, Father Ted writer Graham Linehan, former Beirut hostage Brian Keenan, academic and political analyst Lord Bew, poet Michael Longley and Lucy Caldwell, whose book All The Beggars Riding was selected as Belfast's second One City One Book choice, signed a letter calling for immediate libel law reform in Northern Ireland.
Jo Glanville, the Director of English PEN said:
“The overwhelming support shown for libel law reform in Northern Ireland shows how overdue a rewrite of the law is. Dr. Scott has produced an excellent report with draft legislation that can act as a blueprint for other countries to adopt. With huge public support for reform and the legal arguments now concluded, the Assembly must act and bring forward legislation this year.”
Síle Lane, Campaigns Director of Sense About Science said:
“It is very good news that the report announced by Minister Ó Muilleoir today calls for reform of the libel law in Northern Ireland. We are pleased that the report makes a strong recommendation for a public interest defence as this shows just how much the law needs to be rebalanced in favour of the public interest and away from the vested interests it serves now. The hundreds of citizens of Northern Ireland who pressed the Law Commission to call for reform now expect the Assembly to act quickly to implement the recommendations.”
Mike Harris, an advisor to the Libel Reform Campaign said:
“I’m delighted this consultation and Dr. Scott’s expert analysis has shown the case for reform of the law of libel in Northern Ireland is now irrefutable. It’s now time for the Assembly to protect free speech and get legislation passed this year.”
Cardiologist Dr Peter Wilmshurst said:
"I am extremely pleased to learn that the Northern Ireland Law Commission has published a report on libel reform with recommendations on a public interest defence, single publication rule and serious harm test. I hope that the draft bills containing the recommendations will be passed quickly by the Northern Ireland Assembly."
Science writer Dr Simon Singh said:
"Having been a victim of English libel law, and having seen how the Libel Reform Campaign has successfully argued for a fairer libel law in England and Wales, it is truly tremendous to see Northern Ireland following a similar path. Freedom of speech is one of the pillars of a free society, and it is crucial that Northern Ireland brings its defamation law up to date, particularly so that the rich and the powerful, as well as the bullies and the crooks, can be held to account."
The Libel Reform Campaign submitted evidence to the consultation which was endorsed by a number of Northern Irish academics, writers, journalists and lawyers including Lord Bew, Dr. Tom Woolley, Paul Connolly and Lyra McKee, Brian Garrett, Glenn Patterson and Brian John Spencer.
- Libel Reform Campaign announces results of their survey to inform the Northern Ireland Law Commission consultation on defamation
- 747 members of the public sign petition calling for full adoption of the Defamation Act 2013 in Northern Ireland
- 552 reply to survey undertaken by the Northern Ireland Libel Reform Campaign - 7 times higher than the similar Ministry of Justice short-form consultation for England and Wales
- Huge support for free speech in Northern Ireland with 92% of those surveyed agreeing there should be a stronger public interest defence in Northern Ireland beyond the current defence in the law
- Major figures from Northern Ireland including writers, academics and scientists back the campaign
The Libel Reform Campaign has found overwhelming support for free speech and scientific freedom in a survey conducted to support the work of the Northern Ireland Law Commission. The campaign’s survey found overwhelming support for the full adoption of the Defamation Act 2013 to reform Northern Ireland’s antiquated law of libel, which fails to protect writers, academics and scientists who speak out and criticise the rich and powerful and were criticised by the UN Human Rights Committee.
The campaign is now calling for the Northern Ireland Law Commission to act with speed and publish the results of its consultation, before the Commission is abolished at the end of March.
Science writer Simon Singh said:
I was sued for libel and lost two years of my life, just because I was raising the alarm on a matter of children's health. I wouldn't wish this on anyone, and this sort of law only means that fewer people speak out and matters of public concern are covered up. That's why it's so important that 6 years after this campaign began, we finally get the reform of libel that both the public and journalists want. Unless the law is reformed, other science writers or academics could be chilled in Northern Ireland from speaking out in the public interest. That's wrong and dangerous.
Jo Glanville, the Director of English PEN said:
The public support for libel reform in Northern Ireland is clear. The response to the Law Commission's consultation should be published at the earliest opportunity so that there is no further delay in bringing overdue reform to Northern Ireland.
Síle Lane, Campaigns Director of Sense About Science said:
The hundreds of people calling for a public interest defence are the parents, voters, consumers and patients of Northern Ireland who want to be able to read and ask questions about vital issues of public interest. The current, chilling, libel laws mean they are at risk of being left with an impoverished public discussion. Northern Ireland’s policy makers need to recognise this and act urgently to remedy it.
747 members of the public signed the campaign’s petition which stated:
If the consultation shows support for reform, we call on Assembly members to apply the Defamation Act with immediate effect. The people of Northern Ireland should be allowed to enjoy the benefits of a reformed law that better balances free expression with reputation.
552 people answered the campaign’s survey with overwhelming support for reform of the law. 95% of these responses backed the application of the Defamation Act 2013 to Northern Ireland. 75% said no to the principle that corporations and the government should be allowed to sue citizens. 92% agreed that there should be a stronger public interest defence in Northern Ireland beyond the current defence in the law and 81% agreed that claimants should they have to prove that they have been seriously harmed before going to Court and in the process running up significant costs.
The significant support for the “serious harm” hurdle is in contrast to the position outlined by lawyer Paul Tweed who has argued the hurdle “makes it more difficult for the electorate... to protect themselves".
The Libel Reform Campaign also submitted evidence to the Law Commission to make the case for reform. This evidence was endorsed by a number of Northern Irish academics, writers, journalists and lawyers including Lord Bew, Dr. Tom Woolley, Paul Connolly and Lyra McKee, Brian Garrett, Glenn Patterson and Brian John Spencer.
For more information please contact:
Libel Reform Campaign
Consultation response: Defamation Law in Northern Ireland
12th February 2015
Please sign our petition calling for libel reform in Northern Ireland and make sure to share it on Twitter (with #LibelReform) and Facebook.
The Libel Reform Campaign is a civil society coalition of 100 organisations and 60,000 supporters including leading names from science, the arts and public life. The campaign called for legislation to reform the law of libel in December 2009 and successfully persuaded all three main political parties to commit to reform of the law of libel in their general election manifestos in 2010. The Defamation Bill 2013, enacted on 1 January 2014, is the culmination of 5 years campaigning and policy research by this grassroots coalition led by English PEN, Index on Censorship and Sense About Science.
During the campaign, it was always the intention that reform of the law of libel would apply equally to the people of England, Wales, Scotland and Northern Ireland.
We welcome the excellent and thorough consultation document produced by the Northern Ireland Law Commission. The insight and analysis outlined in this consultation and the depth of the questions provide significant pre-legislative scrutiny allowing the Northern Ireland Assembly to enact reform once the Commission has reported.
Our preferred option for reform of the law in Northern Ireland remains that the Assembly adopts the Defamation Act 2013 through a Legislative Consent Motion. This is not to say that a broader more comprehensive package of reforms would not be desirable and produce better public policy outcomes, but without a clear vehicle for this legislation including Assembly time, resources and additional scrutiny, this may not be viable.
Our responses to the consultation questions
Q 1: Should the Defamation Act 2013 be extended in its application, in full, to the Northern Irish jurisdiction?
The legislation was written by the Ministry of Justice and scrutinised in Parliament on the basis that the legislation would apply to Northern Ireland. The legislation is therefore ready to be applied to the Northern Ireland jurisdiction in full.
Q 2: If the Defamation Act 2013 should not be extended to Northern Ireland in full, should any specific provisions contained within the Act be extended in their application to Northern Ireland?
Q 3: If the Defamation Act 2013 should be extended in its application to Northern Ireland in whole or in part, should any provisions to be adopted be revised in any manner prior to their adoption?
It is the position of the Libel Reform Campaign that adopting the Defamation Act unrevised is the most desirable public policy outcome due to the efficacy of this procedure.
Additional provisions could be considered by the Law Commission, as follows:
A modified public interest defence (as set out below);
A statutory Derbyshire defence inserted into section 1 (2), preventing the state (or corporate bodies delivering services with public money) from suing third parties for libel.
An amendment to section 9 to prevent “libel tourists” abusing the High Court after making claims but without the resources to do so.
Early Neutral Evaluation and mediation incentivised by changes to the Civil Procedure Rules, in line with the English PEN and Index on Censorship Alternative Libel Project.
These provisions could also be achieved by post-legislation scrutiny by the Assembly after the adoption of the Defamation Act.
Q 4: Irrespective of whether the 2013 Act is adopted in whole or in part, would it be desirable to introduce into Northern Irish law a measure withdrawing the “single meaning rule” in combination with the introduction of a bar on claims where a publisher has made a prompt and prominent correction or retraction?
Potentially. This proposal has merit.
Consideration would need to be given to the possibility this measure could be abused by vexatious litigants. Such a litigant could call on a small publisher to rule out a number of meanings, close to the original intention of the publication, using the threat of litigation as a chill on their ability to defend these meanings. This may act to narrow the original intention of the publication to a point at which it bears little meaning.
That noted, the proposal has similar outcomes to the policy recommendations in the English PEN and Index on Censorship Alternative Libel Project which noted that early determination of meaning in a non-legal (or quasi-legal) setting such as mediation could significantly reduce costs and the chill from legal bullying.
The nature of the correction or clarification by the publisher should not be set out in statute but based on a “reasonable” test of editorial judgment. Forced or mandatory apologies could be in breach of Article 10 of the European Convention.
This proposal would need to be combined with the availability of statutory defences as set out in the Defamation Act, in particular section 3 and section 4, to give the publisher the confidence to defend their actual stated intention (even after it has been narrowed thanks to this procedure).
Q 5: Are there other desirable reforms of defamation law in Northern Ireland?
Yes. The consultation should consider incentivising alternative dispute resolution through the civil procedure rules as set out in the Alternative Libel Project.
Q 6: If the 2013 Act is not adopted in its entirety, would it be desirable for a rule equivalent to section 2 of the Act, the “defence of truth”, to be introduced into Northern Irish law?
The Libel Reform Campaign agrees with the analysis (3.19 - 3.28) contained in the consultation document that consideration should be given to extending the defence of honest opinion to comment on facts that an average person “reasonably believes” to be true.
If the Bill is not applied by an Order of the Assembly, and subject to a scrutiny process, we would recommend this amendment is adopted.
Q 7: If the 2013 Act is not adopted in its entirety, would it be desirable for a rule equivalent to section 3 of the Act, the “defence of honest opinion”, to be introduced into Northern Irish law? Would it instead be preferable to continue with the common law approach as restated in Spiller v Joseph?
Yes. Section 3 of the Act should be applied as it is set out in the Defamation Act 2013.
It would not be preferable to continue with the common law approach. The common law approach was considered in the pre-legislative scrutiny of the Bill and found inadequate to protect honest opinion. A number of cases demonstrated the inadequacy of the common law approach.
We also agree with 3.31 that echoes the opinions of the Joint Committee on the Draft Defamation Bill that the removal of the public interest dimension takes out “an unnecessary complication”.
Q 8: Should it be confirmed that the defence of honest comment/honest opinion extends to encompass inferences of verifiable fact from underpinning facts?
We disagree with the analysis of the Law Commission in 3.32 and 3.33 that allowing a defendant publisher to rely on facts that existed at the time of publication would in the words of Lord Phillips “radically alter” the defence. The formulation set out in section 3, 4(a), removes the need for argument at trial as to whether the fact was known to the defendant (a complex and time-consuming process). Allowing the fact to have existed (which the defendant would need to prove) reduces the complexity of the defence from the defendant having to prove they knew the fact, to a mere statement that the fact existed. The alternative to this, we believe, could complicate this defence unnecessarily.
Q 9: Should it be possible for a defendant-publisher to rely on the defence of honest comment/honest opinion where he or she held a “reasonable belief” in the truth of the underpinning facts on which a defamatory comment was made?
Q 10: If it is desirable for a rule equivalent to section 3 of the 2013 Act to be introduced into Northern Irish law, would it be desirable for the provision to be amended so as to allow opinions published contemporaneously with privileged statements to benefit from the defence?
Yes. As an extension of the defence, this proposal has merit. Particularly in commentary around political debates (see Q 15).
Amending subsection 7 to include opinions published contemporaneously with privileged statements would also support potential libel claimants, allowing them to “reply to attack”. This would give the victims of defamatory statements published with privilege, the right to reply (without incurring the possibility of a libel action).
Q 11: If it is desirable for a rule equivalent to section 3 of the 2013 Act to be introduced into Northern Irish law, would it be desirable for the definition of “privileged statements” in section 3(7) to exclude reference to section 4, and instead to include in section 3(4) reference to ‘any fact that he or she reasonably believed to be true at the time the statement complained of was published’?
No. This is an unnecessary complication for the reasons set out under Q8.
Q 12: If the 2013 Act is not adopted in its entirety, would it be desirable for a rule equivalent to section 4 of the Act, the “defence of publication on a matter of public interest”, to be introduced into Northern Irish law?
Would it instead be preferable to continue with the common law approach as restated in Jameel v Wall Street Journal Europe and Flood v Times Newspapers Ltd?
No. In pre-legislative scrutiny it was felt by politicians considering this issue that the common law approach had failed. This was backed up by a statement calling for a new statutory public interest defence signed by leading authors, scientists and entertainers presented to Parliament on 11 March 2011.
Q 13: If it is desirable for a rule equivalent to section 4 of the 2013 Act to be introduced into Northern Irish law, would it be desirable for the extension of the defence to opinions in section 4(5) to be excised?
Q 14: If the 2013 Act is not adopted in its entirety, would it be desirable for a rule equivalent to section 6 of the Act, the qualified privilege for statements in peer-reviewed scientific or academic journals, to be introduced into Northern Irish law?
Q 15: If the 2013 Act is not adopted in its entirety, would it be desirable for the extension and clarification of various privileges set out in section 7 of the Act to be introduced into Northern Irish law?
We heard evidence that there was uncertainty around what was considered to be privileged in Northern Ireland.
The Libel Reform Campaign would extend section 7 to explicitly mention the Northern Ireland Assembly and councils and all units of local government in Northern Ireland under 4 (a).
Q 16: If the 2013 Act is not adopted in its entirety, would it be desirable for the new defence for website operators set out in section 5 of the Act to be introduced into Northern Irish law?
If so, should this include an obligation for website operators to append a notice of complaint alongside statements that are not taken down?
No. This was considered by Parliament and rejected. The Libel Reform Campaign believes that vexatious claimants may use notices of complaint to place doubt around publication which is true, honest comment or in the public interest. This doubt would impact on the author’s right to freedom of expression (and may, as a procedure act as a form of defamation on the author whose editorial judgement is called in question).
There are also practical reasons to consider as a significant amount of publication is on platforms that are domiciled in the US. The Libel Reform Campaign considers alternative dispute resolution such as mediation a better procedure.
Q 17: If the 2013 Act is not adopted in its entirety, would it be desirable for the new defence for secondary publishers set out in section 10 of the Act to be introduced into Northern Irish law?
Q 18: If the 2013 Act is not adopted in its entirety, would it be desirable for the changes made to the law of slander by section 14 of the Act to be introduced into Northern Irish law?
Q 19: If the 2013 Act is not adopted in its entirety, would it be desirable for a rule equivalent to section 11 of the Act which reverses the presumption that defamation claims will be heard by a jury to be introduced into Northern Irish law?
The Libel Reform Campaign has consulted on this issue. Alone among the sections in the Defamation Act, this has caused the most concern within civil society in Northern Ireland though it is worth noting that 77% of respondents to Mike Nesbitt MLA’s consultation on libel law reform in Northern Ireland agreed with the position in the Defamation Act that trial by jury should be abolished unless specifically authorised by the Court.
Q 20: If the 2013 Act is not adopted in its entirety, would it be desirable for a rule equivalent to section 1(1) of the Act, the “serious harm” test, to be introduced into Northern Irish law?
The serious harm test not only puts new obligations on claimants: it offers an extremely strong incentive to the media to act quickly to correct errors.
The precedent set by Cooke vs MGN (the first case in which the s.1 serious harm hurdle was tested) is noteworthy in this regard. The judgement was that serious harm had not been caused by the article, primarily because the newspaper had made a prompt correction and removed the piece from its website. The Cooke judgement has therefore introduced a ‘discursive’ remedy into the s.1 case law: if a media outlet acts quickly to publish a correction and to remove or amend online versions of an article, they at once give the complainant (the potential claimant) a vindication of their reputation, while making it unlikely that they will then have to face a libel action.
Would it instead be preferable to rephrase the statutory test so as better to reflect the stated intention of the authors of the Act?
This is perhaps worth consideration, but it would need to provide the same level of protection as set out in caselaw from Cooke vs MGN.
Would it instead be preferable to continue with the common law approach reflected in Jameel v Dow Jones?
Q 21: If the 2013 Act is not adopted in its entirety, and irrespective of whether the standard “serious harm” test is adopted, would it be desirable to introduce into Northern Irish law a rule that ‘bodies that trade for profit’ must show ‘serious financial loss’ if they are to bring a claim in defamation?
Would it instead be preferable to introduce a bar on corporate claims equivalent to that introduced under the Australian Uniform Defamation Acts?
Q 22: If the 2013 Act is not adopted in its entirety, would it be desirable for a rule equivalent to section 8 of the Act, the single publication rule, to be introduced into Northern Irish law?
Would it preferable instead to retain the multiple publication rule, or to introduce an alternative defence requiring the attaching of a notice of complaint?
No. The multiple publication rule, a principle developed in the nineteenth century, is entirely inappropriate in the Internet age.
Consensus on this point was one of the first aspects to be achieved during the process that lead to the Defamation Act 2013. The Libel Working Group convened in 2009 recommended change. The Ministry of Justice then consulted on the same point, and in light of the responses received concluded that it was appropriate in principle to introduce a single publication rule.
The single publication rule was present in Lord Lester’s private member’s Defamation Bill in 2010 (clause 10) and in the Ministry of Justice’s Draft Defamation Bill published in 2011 (clause 6). The clause that became section 8 of the Defamation Act 2013 was not amended at all during the legislative process and is exactly the same wording at that presented in the Draft Defamation Bill.
Section 8(6) of the Defamation Act 2013 makes explicit that the court’s discretion regarding limitation periods under the Limitation Act 1980 is not affected.
Q 23: If the 2013 Act is not adopted in its entirety, would it be desirable for a rule equivalent to section 9 of the Act, the rule on “libel tourism”, to be introduced into Northern Irish law?
Consideration should be given to our amendment to section 9 as stated above and also the inclusion of subsection 13 (2) of Lord Lester’s Defamation Bill in Clause 1 requiring the court to strike out claims where there has been no real or substantial tort in this jurisdiction.
Section 9 may not be as robust in section 9 (2) in preventing libel claims by those domiciled, or part-domiciled, in the European Economic Area (EEA). While the government intended for section 1 to strike out claims by foreign claimants if publication is not serious and substantial in this jurisdiction, this could be clarified further.
Q 24: Irrespective of whether the 2013 Act is adopted in whole or in part, would it be desirable for remedial powers of court equivalent to those set out in sections 12 and 13 of the Act to be introduced into Northern Irish law?
Q 25: Would it be desirable for any other “discursive remedies” to be introduced into Northern Irish law?
Forcing defendants to make corrections or clarifications is an infringement of the right to freedom of expression.
It is desirable for publishers to make reasonable corrections or clarifications, where there is mutual agreement that an honest mistake has been made.
Consideration could be given to whether discursive remedies could provide an additional defence beyond those available under the Defamation Act 2013. This is likely to be of most use to ordinary social media users, who are not publishers in the traditional sense, who could retract, delete or edit online publication in order to qualify for this defence.
APPENDIX A: The Membership of the Northern Ireland Libel Reform Campaign Advisory Council
The Advisory Council is formed of:
Academics: Queen’s Professor Colm Campbell and former Professor, Dr. Tom Woolley.
Journalists: Paul Connolly and Lyra McKee.
Lawyers Neil Faris, Brian Garrett.
Novelist Glenn Patterson.
Blogger Brian John Spencer.
Civil society representatives: Mike Harris, Jo Glanville and Sile Lane from the Libel Reform Campaign.