Proposed 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?
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?
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.