Assembly's block on Defamation Bill misses big chance
Stormont's refusal to adopt libel reform is of concern to more than just journalists and lawyers. The web has made us all publishers now, says Tony Jaffa
It's a strange thing, the UK's Constitution, and for everyone interested in freedom of expression, a recent decision by the Stormont Executive has made it just a little bit stranger.
As you may have heard, the Executive has refused permission for the Defamation Bill, which is almost at the end of its parliamentary journey in Westminster, to apply to Northern Ireland.
This means that, when the Bill becomes law, probably before the end of the current parliamentary session, England and Wales will have a newly updated law of libel; Scotland's law will be updated where possible (although their law has always had a number of important differences from the rest of the UK); but, for reasons unknown, Northern Ireland will be lagging behind.
Now, you might think that this is all very interesting for media lawyers, professional journalists and publishers, but for the person in the street, this hardly seems to be earth-shattering news.
After all, why should ordinary people be bothered by a legal anomaly in a fairly narrow area of the law?
Well, let me ask you a few questions. Are you a blogger? Or a tweeter? Perhaps you are a scientist, an academic, or a medical professional who has to review new products or ideas? Or maybe you are running a business and you have an all-singing, all-dancing website?
To state the obvious, the internet has had a profound effect on all our lives. One of its effects has been to turn a huge number of people into publishers.
Anyone who blogs, tweets, or uses social media to express opinions to the public is, whether you like it or not, a publisher.
And, once you become a publisher, you need to be fully aware of the law of libel. Ignore it at your peril.
If you don't believe me, just look at what happened to the tens of thousands of people – including Big Brother star Sally Bercow – who tweeted and re-tweeted the false allegations against Lord McAlpine last year.
And this is why the Stormont Executive's failure to ensure that the Defamation Act 2013 (as it will be called when the Bill becomes law) becomes part of Northern Ireland's law is so disappointing.
The current law of libel has struggled to cope with the huge technological advances of the last couple of decades. With publishing technology changing so quickly, the laws relating to publishing – especially to libel – have become blunt instruments, in urgent need of reform.
Which is why the new law in England, Wales and Scotland will be so useful for their new generations of writers and publishers.
In many respects, the new Defamation Act will not contain particularly radical proposals. But what it will do for the English and Welsh (and the Scots, to a lesser extent) is to:
• give greater protection to website operators for libels innocently published on their sites by third parties;
• enable controversial scientific and academic reviews to be discussed and published without fear of a libel claim;
• make it perfectly clear that fair and accurate summaries of official Press conferences have the protection of privilege; and
• most importantly of all, encourage debate and the free exchange of ideas by protecting material which is published in the public interest.
In short, the new legislation will go some way to addressing the legal problems created by social media.
The so-called 'citizen journalists' of England, Wales, and Scotland will undoubtedly benefit from the new legal climate and freedom of expression in those countries will be encouraged. But in Northern Ireland, it will be business as usual.
The law will continue to struggle to cope with the issues created by new publishing technology and social media.
For the thousands of citizen reporters and publishers, bloggers and tweeters, the uncertainties will remain. And the 'chilling effect' of libel law on freedom of expression will be as acute as ever.
The decision of our political leaders not to adopt the new legislation means that a rare opportunity to encourage and promote freedom of expression in Northern Ireland has been lost.
The Executive should think again and ensure that these reasonable reforms become part of Northern Ireland's law without delay.