Consultation Paper – Defamation Law Northern Ireland

March 8, 2015

On 27 November 2014 the Northern Ireland Law Commission (at a time when its demise had already been announced by the Department of Justice) produced a Consultation Paper inviting views on the desirability of reforming defamation law and practice in Northern Ireland.

The statutory 12 week period for submissions closed on 20 February 2015 and hopefully something good, even if somewhat borrowed, will come out of this experience.

The catalyst in producing this paper was the enactment of the Defamation Act 2013 in England and Wales and the furore that followed its coming into force on 1 January 2014 in England and Wales when there were opposing views aired as to whether it should have been introduced into Northern Ireland.

The purpose of the Consultation is claimed to be twofold:-

1. To consider the Defamation Act 2013 in England and Wales and to consider whether the reforms reflected in the Act should be extended to Northern Ireland, either in part or wholesale

2. To consult on the desirability of a further reform option, one intended to provide adequate redress for those who consider their reputations to have been sullied by false statements made by others, while reducing significantly the “chilling effect” of potential claims on those who wish to unearth and publicise corruption and malpractice and to criticise the powerful. It was stated that this comprised of two interrelated reforms the withdrawal of the “single meaning rule” and the introduction of a bar to the bringing of claims where a publisher has made a correction or retraction promptly and prominently.

At the outset the Northern Ireland Commission stated that it was not committed to any particular recommendations for reform. The Consultation Paper identified the over complication of publication disputes as they move from the public sphere into the legal context and the attendant cost of involvement in legal proceedings as being the root problem with defamation law.

It recognises that from the defendant publisher perspective that the potential cost and complexity of legal proceedings introduces a real dilemma between speaking out on matters of public importance and facing expensive legal action, or staying quiet and allowing problem issues to perpetuate.

It also recognises that the person aggrieved by the offending publication can be faced with an “access to justice” problem arising from the costs and complexities involved.

The Consultation Paper goes on to point out that consideration of the reform of defamation law takes place in the “rights context” provided by the passing of the Human Rights Act 1998 and the wider international obligations of the United Kingdom. There has to be a recognition that defamation law generates constraints on the freedom of individuals and others to publish.

As such it impinges upon the exercise of Article 10 of the European Convention on Human Rights (“ECHR”) right to freedom of expression which has to be weighed in the context of the “right to reputation” which falls within the Article 8 ECHR right to respect for one’s private and family life.

Access to justice, protected by the right to a fair and impartial tribunal in Article 6 ECHR, is necessary for all parties whose rights may have been infringed and thus defamation law must reflect an appropriate and effective balance between the Convention rights to express oneself and to maintain an accurate reputation.

It is in this context that responses were sought on the proposed amendment of the law in Northern Ireland.

The Consultation Paper set out a list of 25 questions. The first question raised the issue as to whether the Defamation Act 2013 should be extended in full to the Northern Irish jurisdiction. The remaining questions dealt with more specific issues relating to the adoption in entirety or part of various provisions within the Act bar the final question which dealt with the question as to whether or not it was desirable for other “discursive” remedies to be introduced into Northern Irish law.

My view (as expressed to the Commission) is that given the limited size of the jurisdiction of Northern Ireland and a dependence up to this point, rightly or wrongly and to a greater or lesser extent on the law applicable in England and Wales (with certain modification) the only sensible approach is to extend the application of the Defamation Act 2013 in full to Northern Ireland. In taking this view and answering the first question positively I indicated a view that the other questions were not of any relevance but I did go on to deal with the issue of discursive remedies and the need to give future consideration to these. I also indicated that greater emphasis could be placed on mediation as a means of resolving such disputes.

It is something of a disappointment that the 2013 Act when introduced did not deal with reform of the law as I or others might have wished. Like much legislation it was a compromise between different points of view and to that extent I believe that there is still room for further reform. I do not believe, however, that it would be appropriate for Northern Ireland to strike out on its own and simply take a “pick and mix” approach to reform of the law. A major concern in an area of law which Lord Diplock as long ago as 1964 said “is concerned with the meaning of words” is that there should be consistency, clarity and certainty and I believe that in this area of law this can only be achieved by extension of the 2013 Act to Northern Ireland in its entirety. We in this jurisdiction are totally dependant upon a corpus of law which exists primarily from the English courts (although Northern Ireland has contributed significantly) and which is found in texts which are primarily produced by English law publishers.

I take the view therefore that a first appropriate step is to introduce the 2013 Act in to Northern Ireland and then to seek through a lobbying of the now various UK legislatures such further reform as is considered appropriate.

It will be interesting to see what recommendations are made by the Northern Ireland Law Commission following consideration of the views of the various consultees. What is clear is that there is a need for reform of the law in Northern Ireland and that this can most readily be achieved by extending the scope of the 2013 Act to Northern Ireland recognising that this is not an end but a beginning to proper reform on the law of defamation.

For further advice please contact the Defamation Team at Cleaver Fulton Rankin on 028 9024 3141 or info@cfrlaw.co.uk

Please note: The content of this article is for information purposes only and further advice should be sought from a professional advisor before any action is taken.