Northern Ireland's laws inviting libel tourism: Without reform, courts here could be used to gag free speech worldwide
Northern Ireland's outdated libel laws mean that our courts could be used to gag free speech - not just in Great Britain, but the rest of the world, according to one of the UK's leading science writers.
Author Simon Singh - who himself successfully defended a libel case after being sued over an article he wrote questioning the effectiveness of chiropractic - was keynoting at a Belfast event in the Crescent Arts Centre organised by the Libel Reform Campaign as part of the Northern Ireland Human Rights Festival.
Speaking last night to an audience of scientists, writers and legal experts, Singh warned his audience that Northern Ireland's outdated libel laws risked encouraging 'libel tourism'.
"If I blog or tweet something, or publish a book, and somebody doesn't like what I write about them and wants to shut me up, well, my blog and my books are read in Northern Ireland - so that's where I may be sued for libel.
"So Northern Ireland's courts could be used to gag not just the rest of Britain, but the rest of the world," he said.
The event also heard disturbing examples of how libel laws in Britain had been used to chill free speech and public discussion, and how the changes in the 2013 Defamation Act were working to remedy some of the most heavily-criticised practices.
The Northern Ireland Law Commission - which is to be abolished in early 2015 - has recently issued a consultation paper seeking the public's views on reform of the libel laws in Northern Ireland.
Mike Harris of the Libel Reform Campaign said: "If the consultation is positive - as we expect it will be, and there is a clear majority of people in Northern Ireland in favour of reform - then I think the Assembly should implement the Defamation Act 2013, which already applies in England and Wales.
"The change could can be done in a day. That would allow Northern Ireland to have the reform that its writers, scientists and academics deserve - and it would not be subject to the kind of delays that would be encountered if we were to start from scratch to pass legislation unique to Northern Ireland."
He felt that speedy reform was paramount: "The longer the law remains unreformed, the greater the chill factor, and the greater the opportunity for libel tourism."
The prospect of Northern Ireland's libel laws being taken to the European Court of Human Rights at Strasbourg was raised as a possibility, on the grounds that Northern Ireland's laws may breach Article 10 of the Convention, which guarantees freedom of expression.
Dr Sile Lane, campaign director of Sense About Science, said she was concerned that although the Northern Ireland Law Commission had issued a consultation paper on libel reform in Northern Ireland, there was as yet no certainty about what would happen to that consultation when the Northern Ireland Law Commission was abolished in March of next year, when its funding from the Department of Justice comes to an end.
In England and Wales, the libel laws were updated and modernised by the Defamation Act 2013. The aim of the Act was to ensure a fair balance between the right to freedom of expression and the protection of reputation. Northern Ireland did not adopt the reforms, after the then Finance Minister Sammy Wilson withdrew a paper he had prepared. The present minister, Simon Hamilton, referred the matter to the NI Law Commission to advise whether our libel laws need to be updated. Last month, the Law Commission issued a consultation paper on libel law reform.
Nine cases where freedom of expression was at risk
Dr Peter Wilmshurst is one of the UK's top cardiologists. He was asked to run a clinical trial of a new heart implant. After running the tests, he felt the device might be dangerous. Dr Wilmshurst was surprised to find that when the results of the tests were published by the manufacturers, they were incomplete and misleading. He voiced his concerns at a conference in the United States and a journalist wrote up the story for a US website. The company subsequently sued Dr Wilmshurst, who spent the next four years and thousands of pounds defending his professional judgment, which he had been exercising on behalf of his patients.
Tennis player Robert Dee
Robert Dee is a professional tennis player. Unfortunately, he lost his first 54 games on the professional circuit, which led to more than one journalist to dub him "the world's worst tennis player". He sued many news outlets, and received damages from them. When he finally won a game, the Daily Telegraph reported that a "Briton ranked as the worst professional tennis player in the world after 54 defeats has won his first match". Mr Dee sued again, but the Daily Telegraph decided to fight, and won.
Fourteen years ago, an Irish News journalist wrote a review of Goodfellas Restaurant in Belfast. She was not impressed, and said so, and the owner sued for libel. The Irish News lost the case and the owner of Goodfellas was awarded substantial damages. But the NI Court of Appeal overturned the judgment. Lord Justice Kerr said there had been confusion over what were assertions of fact, and what were opinions - with the jury considering opinion as if it were fact.
In 2007, a group of Sheffield Wednesday fans were in legal hot water when lawyers acting for the club launched a libel action against Neil Hargraves, owner of a web forum call Owlstalk. Club directors took umbrage at posts on the forum which criticised the club. They claimed that the forum hosted defamatory posts, and sought a court order to force Hargreaves to reveal the identities of the people who had posted them. A judge eventually ruled that most of the claims were trivial, although he did allow the legal process to continue in the case of four messages. The club soon decided to drop the case.
Citizens Advice Bureau
The Citizen's Advice Bureau was recently forced to spend thousands defending a libel action from a company engaged in a practice called 'civil recovery'. When a CAB team wrote a report about the issue, they received legal threats. Civil recovery is when someone is accused of shoplifting and instead of shops calling the police they get the accused to hand over their name and address. A few days later, the person receives a letter from a company called Retail Loss Prevention demanding money.
Eminent Ulster historian Lord Bew has told the House of Lords how fear of libel litigation was casting a chill over discussions about Northern Ireland's past. In a 2010 debate he said: "I speak as a professional historian and to some degree as a part-time journalist. In the past two or three weeks, the Bloody Sunday Report put a number of contentious matters beyond all reasonable doubt. Nonetheless, I left out several paragraphs of those articles, because there was still so much space for possible libel action - even though I was confident that what I wanted to say was definitely true. It was simply not worth putting the newspaper through the difficulties that it might subsequently face, even in a context in which so much has been clarified beyond doubt."
The CarerWatch Forum provided an online support group for UK carers. But when they started to discuss Atos Healthcare, the firm which provides assessment on sick or disabled people and access to disability benefits, Atos issued legal threats to the internet server which hosted CarerWatch. They pulled the plug on the CarerWatch Forum. The 2013 Defamation Act prevents this kind of third party action: it says claimants must always complain to the people who published the words complained of - not to their internet hosts. Atos said it did not ask for the forum to be shut down, only that some employee details be removed. An Atos spokeswoman said: “We recognise that CarerWatch is a useful resource for the carer community and we took steps to help bring the site back up once we were informed that the entire site had been taken down.”
Lesley Kemp is self-employed. In 2012 she did some work for a film production company. Her bill was less than £200. The firm paid late - and they deducted a £25 banking fee. Lesley was annoyed, and expressed her frustration on Twitter. When the account was finally paid, she tweeted positively. But she still received a libel threat, with the claimant's solicitors asking for damages. The Libel Reform Campaign was able to get her legal help - but she still had to pay substantial costs to defend herself against the libel action.
When Nature, one of the world's most respected scientific magazines published a well-researched piece criticising the editor of another scientific journal for publishing articles without proper peer-reviewing, he sued. They won their case - but not until after spending over £1.5m on legal costs, which involved flying experts in from all over the world to testify in its defence. Under the updated defamation law now operating in England and Wales, scientists have a "substantial truth" defence.