Defamation Act the key to our freedom of expression
Published 21/03/2014 | 01:30
Readers will know freedom of expression is a subject close to the heart of this column and, of course, for most journalists.
Northern Ireland has had, in my mind, too many restrictions in this area of law and has become 'claimant-friendly' to the extent of chilling legitimate journalism.
The tide has ebbed and flowed in recent months, with some progressive judgments in the courts, but – so far at least – no end in sight for the battle to extend the UK's fit-for-purpose Defamation Act 2013 to Northern Ireland.
The DUP and to a lesser extent, Sinn Fein, flatly refuse to extend the Act. Recently, a brave move to extend it via the Northern Ireland (Miscellaneous Provisions) Bill failed – in spite of the overwhelmingly positive response to UUP leader Mike Nesbitt's consultation on his proposed Stormont Private Member's Bill.
The government and Labour believed they should not impose the Act on Northern Ireland, because it is a "devolved" matter and that appropriate legislation should be enacted at Stormont (as supported by the UUP and others). They're not so shy about foisting their welfare austerity measures on the province, but I guess that's a different matter altogether.
But, just as life is often full of swings and roundabouts, so, too, at times, is the law.
A few legal judgments in Northern Ireland in recent months have helped freedom of expression, although we are still very much swimming in hostile waters.
One of these, discussed in this column, was the case of alleged senior Real IRA man Brendan Conway (an accusation which he denies, by the way), who failed in an application for an interim gagging injunction against the Sunday World, in a case supported by the Belfast Telegraph, BBC and UTV.
The Sunday World was back in the courts again last week, after a Progressive Unionist Party member, Colin Fulton, failed to gag the paper with an interim injunction as part of a wider harassment claim against it for a "relentless" series about his alleged links with the UVF.
Refusing the application, Mr Justice Gillen said the plaintiff's continued association with alleged notorious UVF members, his consequent public exposure and earlier threats, "suggests he may be drawn inexorably to activity which generates the threat to his life which he most fears".
The Conway and Fulton rulings both assist the cause of investigative journalism by underscoring judicial reluctance to grant pre-publication injunctions, unless in the most exceptional of circumstances.
The third Belfast judgment which assists freedom of expression is that of Terence Ewing and Times Newspapers Ltd, dating from a couple of months ago, but of which I've only just become aware.
In this case, the Sunday Times, represented by well-known lawyer Paul Tweed – better known for representing plaintiffs, but this time wearing his 'defence' hat – dealt a blow against libel tourism by defeating a challenge relating to an English plaintiff, who travelled to Belfast with a friend, downloaded a copy of a newspaper article in a library, then claimed he had been libelled in Northern Ireland.
Mr Ewing had previously been declared a "vexatious" litigant in England and Wales, but had not been declared so here.
The Court of Appeal refused the application robustly on the grounds that he knew no one in Northern Ireland, had no reputation here and that any damage that may have been done to him "occurred as a result of the publication in Great Britain, where he resides".
The case does, at least, set limits on 'libel tourism' and is welcome, in so far as it goes. It was in my opinion, however, quite an extreme set of circumstances and I suspect other challenges will be mounted in the future, unless and until, the Defamation Act is extended.
Nevertheless, as they say in the Tesco ads, every little helps.