Land of the free could hold key to reforming Northern Ireland's outdated libel laws
The proposal to overhaul Northern Ireland's Defamation Act is welcome. But is the US a better template, asks Mick Hume
Should the Assembly finally amend Northern Ireland's libel law to bring it into line with Westminster? As a London-based journalist and author with experience of being both sued for libel and defamed in the UK Press, it seems obvious that Northern Ireland's libel laws need to be liberalised. But Westminster's 2013 Defamation Act is not necessarily the ideal role model for defending free speech, either.
The caricature view from London is often that Northern Ireland is a place still "living in the past".
Libel is one area where Northern Ireland's politicians have so far done their best to live up to that caricature, preserving laws which would look more at home in the 19th century than the 21st.
Now a top-level report has recommended that libel law be amended to bring it into line with Westminster's Defamation Act of 2013.
Defamation law has long been the worst piece of legislation on the UK statute books - a prize won in the face of some pretty stiff competition. Contrary to all normal ideas of justice, it effectively rules that a defendant should be assumed guilty until proven otherwise. Little wonder that libel law has had a "chilling effect" on the Press, with the threat of punitive costs and damages making many wary of publishing controversial stories.
The legal inhibition on freedom of speech and of the Press posed by Britain's defamation laws made London the libel capital of the world - "a town called sue". An international elite came to the Royal Courts of Justice to sue for libel, using the UK's more plaintiff-friendly laws to try to silence their critics around the globe.
The UK Defamation Act 2013 introduced changes designed to end this "libel tourism" and make the law more liberal. Before that Act was passed, however, DUP ministers had already secretly decided that Northern Ireland would not be covered by the reforms.
When the Executive's decision to retain the punitive old defamation laws became known it raised fears that Belfast could become the new home for global libel tourism - which, unlike the new wave of international visitors to the Titanic Quarter, would surely not be a good thing for anybody except the lawyers.
When UUP leader Mike Nesbitt then announced plans for a Private Member's Bill to force Northern Ireland's libel laws into line with the British reforms, DUP Finance Minister Simon Hamilton responded by commissioning a report into the issue. Reformers feared this was a ploy to prevent Nesbitt's Bill going ahead.
Meanwhile, last year Sky Atlantic temporarily pulled the broadcast of a film about Scientology across the entire UK for fear that the church - no stranger to libel tourism - might sue at the High Court in Belfast.
Now, the report by London legal academic Dr Andrew Scott has finally been published. Among other reforms borrowed from the UK Act, it recommends that Northern Ireland's libel law be amended to end libel tourism and introduce a new "defence of truth", along with a "defence of publication on a matter of public interest" and a "serious harm test", so that plaintiffs have to prove the alleged libel has done them harm, rather than simply asserting it in court and being automatically believed, as they are now.
These proposals have been welcomed by many. SDLP MLA Claire Hanna insisted the "antiquated libel laws" must be reformed to avoid Northern Ireland becoming "a legal back channel to hide the dirty linen of the wealthy or the privileged".
However, concerned reformers noted the initial response to Dr Scott's report in the Press release issued by Sinn Fein minister Mairtin O Muilleoir's Finance Department. This statement highlighted the report's rider that "neither international, or domestic, human rights laws compel the introduction of reforms" by the Assembly. Instead, reform is "a matter of political choice".
To some eyes, perhaps jaundiced by experience, that emphasis from Stormont seemed to suggest that the Executive could choose to shelve the reforms once more.
So, as libel law comes back to the table, which "political choices" should reformers be pushing for? Any changes adopted from the Westminster Act, which could make Northern Ireland a safer place for free speech, should surely be welcomed? Like, for example, the proposed new "defence of truth". Some of us might have naively assumed that "truth" would always be a pretty solid witness for the defence, anyway. But not in the bizarre world of the libel courts.
But the UK Defamation Act 2013 is no liberal charter for freedom of expression. It accepts that the courts can impose strict limits on what can be said or written.
Worse, it hands the power to impose those limits to judges alone, effectively abolishing jury trials in libel cases.
This assault on the precious jury system is justified on the grounds of saving money. It smacks, to paraphrase Oscar Wilde, of a legal system that knows the price of everything and the value of nothing.
As ever, decisions as to what might be in "the public interest" will not be left to the public, but to those who consider they know what is best for the rest of us.
Dr Scott's proposals would also import the elitism of the new Westminster law by giving extra legal protection to "peer-reviewed scientific, or academic, statements". The implication is that protecting freedom of expression only really matters for those deemed "responsible". Yet, if it is to mean anything, the indivisible liberty of free speech must also be defended for those the mainstream considers "irresponsible", which, incidentally, would have included many great thinkers in their time, from Galileo to Darwin.
Like the right to jury trial, the right to free speech ultimately rests on the idea that people should be trusted to think for themselves and make their own choices, rather than entrusting everything to judges, lawyers, academics and politicians.
In that spirit, it might be better to look to America, rather than the UK, or "international human rights law".
Since 1964 the US Supreme Court has effectively held that no politician or public figure can sue for defamation unless they can prove that publication was motivated by malice.
In the words of the ruling on which US libel law is based, this is because "debate on public issues should be uninhibited, robust and wide open", which "may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials".
Now, that sounds more like a Belfast argument to me.
Mick Hume is the author of Trigger Warning: Is The Fear Of Being Offensive Killing Free Speech? A new concise edition is published by Williams Collins, priced £6.99