Belfast Telegraph

Friday 29 August 2014

Stormont guilty of failure over its libel law response

The Executive's rejection of the new Defamation Act risks turning Belfast into A Town Named Sue, writes media lawyer Paul McDonnell

Verdict's in: Stormont missed an opportunity to bring libel law into line with the 2013 Defamation Act
Verdict's in: Stormont missed an opportunity to bring libel law into line with the 2013 Defamation Act
The first ministers
The first ministers
Paul McDonnell, lead partner of the media team at Belfast law firm McKinty and Wright
Paul McDonnell, lead partner of the media team at Belfast law firm McKinty and Wright

Press regulation, Leveson and the Royal Charter are the buzzwords in the media world at present. But an equally, if not more important, development – the reform of the law of defamation – has also been occupying the minds of parliamentarians, both in the Assembly and at Westminster.

Sadly, the Assembly appears of the view that such reform is not necessary in Northern Ireland, rejecting the application of the Act to Northern Ireland.

Defamation has for decades been a legal minefield for journalists. The advent of social media has vastly expanded the scope of this minefield. It counts tweeters, bloggers and social media users amongst potential victims.

Campaigners had long argued for a user-friendly code that protected the rights of the individual, while avoiding the potential, chilling effect of any law aiming to restrict, or control, free speech.

Much of the development of defamation law has been as a result of its interpretation by courts on a case-by-case basis.

The noble aspiration of the Defamation Act 2013 was to simplify the law, allowing ease of access for those seeking to assess the limits of publishing freedom.

While this was once the sole dominion of the newspaper editor, social media has placed every person with access to the internet in the editorial hotseat.

The Act has introduced much-needed clarity. For example, spurious defamation claims are likely to be weeded out at an earlier stage, as the Act requires a person to have suffered "serious harm to their reputation" in order to take claim against another.

Similarly, companies with far greater financial resources will no longer be able to intimidate those expressing an opinion on their products or services with the threat of legal action, as under the new law they are required to show the material complained of "caused or is likely to cause the body serious financial loss".

Those who express their opinions online in blogs and allow others to do (as in a 'comments' section) also benefit from the Act, with the law now requiring anyone taking issue with any material to contact the author first, rather than laying the blame at someone hosting a discussion.

For journalists, the Act has much-needed certainty on how they can investigate matters in the public interest, such as MPs' expenses, or the insurance safety-net provided to MLAs for libel.

Previously, the primary consideration for any journalist undertaking investigative work against those with significant wealth or influence was whether they were protected by qualified privilege, should a case be taken.

The problem is that, currently, the defence is governed by 10 principles developed in case law, rather than parliament, meaning each is open to interpretation.

The new Act simplifies the law, affording bloggers and journalists protection once they can demonstrate that the published material was in the public interest and that they had a reasonable belief that publishing the material was also in the public interest.

Potential claimants will have greater certainty on their case's merits at an early stage, rather than having to rack up expensive legal fees trying to decide if they have a case.

Other changes in the Act include providing protection to scientists and academics from mischievous litigation and reforming the rules on repeat publication, so that bloggers, journalists and tweeters can only be sued in the year from first publication, not every time material is accessed. It also seeks to curtail 'libel tourism', by restricting who can be a party to libel cases in England and Wales.

That, of course, is the key point. As it stands, the Assembly has decided not to allow the Defamation Act and the clarity that comes with it to extend to Northern Ireland. Instead, we shall retain the antiquated law as it is.

Surely, it is in everyone's interest that a potential claim is easily identifiable? Why should the citizens of Northern Ireland not be afforded the same protection as those in the rest of the UK in using social media? Why should we continue to be governed by archaic freedom of expression laws – some of them conceived when computing was in its infancy?

The refusal to extend the law to Northern Ireland may have other consequences. Already questions have been raised in the House of Lords on whether the national media will have to sanitise the news as reported elsewhere in the UK for broadcast and print to the Northern Ireland market.

Therefore, investigations in the public interest which concern well-funded entities will effectively be subject to censorship by the back door, as regional publications will be similarly unable to report on matters for fear of court action in this libel-friendly, free speech-limiting UK outpost.

Some might say this article, from a media lawyer, is akin to turkeys voting for Christmas. While I don't doubt that the isolation of Northern Ireland in libel law is likely to generate more work for my colleagues and I, can it really be said such a situation is serving the interests of justice?

As a lawyer practicing in Northern Ireland, I take pride in our legal system. Failure to bring the law in relation to defamation in line with England and Wales will do nothing for the judicial system's standing.

Much of the focus of the Assembly in recent times has been on equality. If the Assembly does not legislate to introduce the Defamation Act to Northern Ireland, one must ask where the equality is in exposing the Press and citizens here to laws which offer much less protection than those in England and Wales?

As campaigners, invoking the great Johnny Cash, noted: "It would be intolerable if Belfast became 'A Town Named Sue'."

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