Shortened response to Mike Nesbitt's defamation law consultation

Written by Robert Sharp
November 08, 2013
Category: Northern Ireland

Proposed http://portageparkdistrict.org Private Member’s Bill on the law of defamation in Northern Ireland

Consultation survey: http://www.surveymonkey.com/s/H9YHDSL

 

The full response from the Libel Reform Campaign can be seen here.

 

Question 1. Do you agree with the inclusion of a substantial harm test in the Bill?

Yes.

The Libel Reform Campaign has always argued that the test should be ‘serious and substantial’ (because substantial in law merely means non-trivial or negligible, while serious means that it is serious enough to bring before a court). This would reduce the risk of the statute not reflecting the current position in case law.

This is an important clause. It prevents trivial or vexatious claims from proceeding at great expense and with a chilling effect on freedom of expression. It is also beneficial to claimants, as it prevents them from proceeding with expensive cases where they have no reasonable prospect of success.

Question 2:Do you agree that the common law defence of justification should be replaced with the statutory defence of truth?

Yes.

Truth is the oldest defence in libel – as stating the truth ought to be a justification, even if it does damage to the claimant’s reputation. Over time, case law has evolved so that statements are justified if they are found to be substantially (rather than in totally) true. The Defamation Act clause reflects this position.

The defence in any future legislation in Northern Ireland should be changed from the defence of ‘truth’ to ‘justification’ so as not to imply a narrowing of the defence. ‘Truth’ suggests that what is necessary is to demonstrate the ‘whole truth and nothing but the truth’ of the statement, when in fact the existing case law and the Defamation Act considers a statement justified when the ‘substantial truth’ of a defamatory imputation is demonstrated.

 

Question 3:Do you agree that the common law defence of fair comment should be replaced with a new defence of honest opinion?

 

Yes.

The inclusion of a stronger honest opinion defence in the bill was overwhelmingly supported by responses to the Ministry of Justice consultation and the Libel Reform Campaign welcomed the strengthening of the clause in light of the consultation.

A new defence of honest opinion should provide better protection for honestly held, non-malicious, opinions which will protect freedom of expression.

Question 4: Do you agree with the introduction of a defence of publication on matters of a public interest?

Yes.

The Defamation Act 2013 includes a defence of publication on matters of public interest where a ‘defendant reasonably believed that publishing the statement complained of was in the public interest’. This is a step forward from the common law ‘Reynolds Defence’ of responsible publication.

The failure of the Reynolds Defence

The Reynolds Defence of responsible publication was unsatisfactory in a number of cases, in particular for scientists Simon Singh and Dr Ben Goldacre and for the campaigning NGO Global Witness.

The Reynolds Defence did not adequately protect the public interest because there was continued uncertainty about how the list of circumstances that establish the defendant’s responsibility were applied when a case reached court. While recent common law cases have seen attempts to discourage the application of the circumstances as an exhaustive list, without a clear statutory defence, the same uncertainty and expense will continue to chill publication that is in the public interest.

Question 5: Do you agree with the proposal to offer operators of websites a defence against statements posted on their website, dependent on the operator meeting new statutory obligations?

Yes.

It is essential that Northern Ireland modernises the law in order to provide the necessary protection for freedom of expression online. The internet is the front line for free speech today. However, the current common law position in Northern Ireland fails to protect a number of key internet intermediaries including ISPs, search engines, web hosts, social networks and discussion boards: parties that were not responsible for composing, writing, editing or approving material can be sued for libel.

Question 6: Do you agree with the proposal to offer qualified privilege to peer-reviewed statements in scientific and academic publications?

Yes.

This should effectively prevent threats of libel action interfering with this form of publication. This is consistent with the inclusion of reports of scientific conferences because researchers are professionally obliged to report the findings of their research.

Question 7: Do you agree with a single publication rule?

Yes.

The current position in common law, the multiple publication rule known as the ‘Duke of Brunswick Rule’, pre-dates the invention of the light bulb let alone the internet. It allows a claimant to take each instance of a newspaper carrying a libellous statement or every access by a user of a website carrying a libellous comment, as actionable in law. Importantly, the limitation period (the time in which a potential claimant has to commence a claim) starts anew with each instance of publication. This is outdated, particularly in the age of the internet and digital publication, where documents can be ‘re-published’ at zero net cost with the click of a computer or smart phone years after the defamatory comment was originally made. Placing a single publication rule in statute won overwhelming support in the Ministry of Justice consultation.

Question 8: Do you agree that defamation cases should be brought in the most appropriate jurisdiction?

Yes.

This provision tackles the potential problem of non-EU defendants being inappropriately sued in Belfast courts. This will be particularly relevant after commencement of the Defamation Act 2013 that has the potential to limit ‘libel tourism’ in England and Wales.

Question 9: Do you agree that defamation cases should be tried without a jury unless a court orders otherwise?

Yes.

There is merit to improving access to justice for both sides through lower costs. One way this could be achieved is by reducing the need for extensive pre-hearings on what can later be put before a jury and through early resolution of non-jury trials.

Question 10: Over-arching comments.

The laws need to be changed.

Northern Ireland can improve upon the Defamation Act 2013

The Defamation Act 2013 was a good start to improving the libel law of England and Wales, yet there are areas in which the Act did not deliver upon the public’s aspiration for the legislation. Northern Ireland has the opportunity to set out the most comprehensive framework for reform of the libel law that can be used as a benchmark for other common law jurisdictions. The areas where the Northern Ireland Assembly can build on the Defamation Act include; stronger protections for individuals being sued by corporations or other non-natural persons, increased incentives for mediation, a stronger public interest defence and better protections for internet intermediaries. Such comprehensive reform will place Northern Ireland is the best place possible to attract inward investment from tech companies and media companies, while balancing the right to reputation and the right to freedom of expression.