- Written by Ian Bushfield
- February 12, 2015
- Category: Northern Ireland
Libel Reform Campaign
Consultation response: Defamation Law in Northern Ireland
12th February 2015
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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.