Libel reform: why we need to support a free Press
Writing in the Belfast Telegraph last week, Paul Tweed contended that the existing defamation libel laws which apply in Northern Ireland are fit for purpose and he opposed the introduction of the provisions contained in the Defamation Act 2013, which now apply in England and Wales.
Paul Tweed enjoys a well-deserved reputation as an experienced lawyer practising in this area of law, but I disagree profoundly with this view.
He cites that Scotland has not followed the 2013 Act, but this is somewhat misleading in that Scotland did introduce part of the 2013 Act and the decision not to introduce the remainder has aroused not a little controversy.
Surprisingly, Paul Tweed did not proceed to outline the nature of the changes introduced by the 2013 Act. It is appropriate to do so here.
Freedom of speech (with its concomitant notion of a free Press) is the very cornerstone of our liberty. The essential issue for decision is whether defamation law strikes the right balance between protection of freedom of speech on the one hand and safeguarding the reputation of the individual on the other.
These are some of the reforms which have been introduced in England and Wales which, in my view, should be introduced here:
* the law should distinguish between those statements which cause serious harm and those which are trivial;
* the current legal defence of justification needs to be updated/refined and be replaced by the defence of substantial truth;
* the common law defence of fair comment should be clarified, so as to be replaced by a new defence of honest opinion, which should be available where an honest person could have held a particular opinion on the basis of any fact which existed at the time of publication;
* a new defence should be introduced to protect responsible publication on matters of public interest;
* the law should be updated to deal with defamation appearing on websites and;
* peer-reviewed statements appearing in scientific or academic journals should enjoy the defence qualified privilege.
So why were these reforms not introduced in Northern Ireland? The answer is something of a mystery. It appears, however, that the decision was taken without prior discussion in the Executive, or Assembly.
Currently, the issue has been referred to the Northern Ireland Law Reform Commission and, given the extensive debate/consultation which preceded the enactment of the 2013 Act, it can only be hoped that this will not result in lengthy delay in the commission publishing the result of its work.
Meantime, there is reason to fear that some national newspapers may question whether to continue to distribute their publications in Northern Ireland if defence provisions providing for comment on matters of public interest similar to the 2013 Act do not apply.
There has also been some conjecture about whether, if the current law in Northern Ireland continues, this might encourage what has been described as "libel tourism" – in other words, claimants who have little or no connection with Northern Ireland might be encouraged to commence proceedings here for defamation, based on a calculation that it will be easier to succeed here than would be the case under the new law in England and Wales. It is uncertain whether this would be the case and there is evidence that the Northern Ireland courts are alert to this issue.
Whatever the case, it would undoubtedly be valuable to include a new statutory provision which would prevent libel tourism. Ultimately, the question of the reform of defamation law is not simply a matter of concern for lawyers. Ordinary citizens and our local Press and academic world are all engaged.
In this modern world, it is increasingly important to support the concept of a free (but responsible) Press, while protecting the reputation of every citizen.
Brian Garrett is senior legal consultant with Elliott Duffy Garrett Solicitors and draftsman of the Private Member's Bill for Northern Ireland