Defamation law: The little man is under threat in war of words
If proposed changes to the libel law here go ahead it will be ordinary people who lose out, writes Paul Tweed
Northern Ireland has always been treated differently to the rest of the UK in relation to access to the libel courts. Unlike in the rest of the UK, 'No win, no fee' arrangements and the recovery of insurance premiums have not been available here and, therefore, with no legal aid, those without financial means are being denied access to justice in the libel courts.
Introducing the new English defamation legislation to Northern Ireland would further reduce the ability of businesses to protect themselves from reputational damage.
The introduction of a requirement that companies would have to establish substantial financial loss in order to bring an action to protect their brand will significantly increase the difficulties that libel victims already face.
The law in the Republic remains very similar to our current law. In particular, it has retained the right to a jury trial and has reasonable criteria for bringing a claim. The introduction of new legislation, following a lengthy and considered review of the right of the media to report and the protection of an individual's right to reputational protection, did not remove these facets.
The Irish defamation act has not deterred foreign investment, with Google, Facebook and Twitter still more than happy to locate their European headquarters in Dublin.
So much for the scaremongering reports claiming the Assembly's failure to introduce new libel legislation will deter foreign companies from setting up here. On the contrary, the requirement under the new English legislation that companies will now have to establish a substantial financial loss is more likely to discourage companies locating in Northern Ireland if the English legislation was introduced.
The public could be forgiven for being confused by some of the media coverage regarding the new English defamation legislation being extended to Northern Ireland. It is understandable that the media want to make it more difficult for the victim of a defamatory attack to seek vindication in the courts, which can result in a substantial dent in a publisher's coffers.
However, it is regrettable that some editors not only fail to acknowledge this obvious motivation, but have instead sought to create a totally unjustified impression of the courts being, or about to be, besieged by wealthy oligarchs and Middle Eastern businessmen, using their wealth to undermine the legal system.
No mention is made of the fact that current law requires a foreign plaintiff to satisfy the court that Northern Ireland is an appropriate jurisdiction to bring a claim.
The media are also silent on the subject of internet libel and the complete lack of redress to those individuals who have the misfortune of being victims of online harassment. With journalists forming the largest group of my clients over the past 35 years, and my clients also including a significant number of newspapers and publishers, I hope I am in a position to form a balanced view in relation to the libel law debate. Due consideration should be given to the facts before accepting the unbalanced arguments being put forward on what has been one of the most intense lobbying campaigns since that conducted by the tobacco industry decades ago.
I would point out that the Speech Act was introduced to prevent the enforcement of UK/Irish libel judgments in the US, despite the fact that lobbyists could not come up with even one example of such an attempt from this side of the Atlantic.
The English Defamation Act has come into law on the back of calls for an end to 'libel tourism', yet a survey by Sweet & Maxwell produced statistics showing there were, in reality, very few such claims.
If the proposed changes to the defamation laws are ultimately introduced, it is the ordinary people of Northern Ireland who will be the losers – not the lawyers.
We, at least, have the option of practising in a jurisdiction where the libel laws are more friendly towards the ordinary citizen and international corporation and we do not have to travel very far.