Reform of Defamation Law in Northern Ireland – Recommendations to the Department of Finance

August 4, 2016

Back in March 2015 I reported on the production of the Northern Ireland Law Commission (then already in its death throes and now extinct) of a Consultation Paper inviting views on the desirability of reforming defamation law and practice in Northern Ireland. This consultation had been instigated by a request to the Northern Ireland Law Commission by the then Minister of Finance and Personnel to carry out a study of the law defamation in Northern Ireland following the introduction in England and Wales of the Defamation Act 2013 (“the 2013 Act”).

A Report summarising the responses to the public consultation and proposing possible legislative reforms was submitted in June 2016 to the Minister of Finance who has now arranged the publication of the Report. The Report and a summary of consultation responses has been published on the Department of Finance’s website: https://www.finance-ni.gov.uk/publications/review-law-defamation

The Department of Finance has indicated that the Minister will now the consider the Report “in the process of developing a policy that ensures a fair balance between the right to free speech and the right of the ordinary man and woman in the street to protect their reputation”.

The Report makes a number of recommendations regarding the reform of defamation law in Northern Ireland, most of which will require legislative action by the Northern Ireland Assembly, action which up to the present time has not been forthcoming.

The Report recommends, to a greater or lesser extent, the introduction of measures equivalent to the provisions in the 2013 Act.

It strongly recommends that the following provisions should be emulated (with such consequential changes as are necessary to reflect the shift in jurisdiction).

  • Section 2: the introduction of a defence of truth in substitution for the former defence of justification
  • Section 4: the introduction of a defence of publication on a matter of public interest
  • Section 6: the extension of qualified privilege to peer-reviewed scientific or academic statements
  • Section 7: the extension of existing qualified privileges
  • Section 8: the introduction of a single publication rule
  • Section 12: granting the court power to order publication of summary of judgment
  • Section 13: granting the court power to order removal of statements
  • Section 14: an update to the law of slander

The Report also recommends that the following provisions of the 2013 Act should be emulated although in each of the cases it takes the view that the argument for introduction is less compelling:

  • Section 1: the introduction of a serious harm test
  • Section 9: the restriction of action against a person not domiciled in the UK or a Member State
  • Section 11: the introduction of a presumption in favour of trial by judge alone

The Report goes on to recommend that a new defence of honest opinion (formerly fair comment), similar to that in Section 3 of the 2013 Act should be introduced in Northern Ireland but with the proposal that the defence should be augmented in three ways:

  • First, it should be possible for a publisher to rely on privileged statements that were published either before or “at the same time as” the opinion. This particular proposal is seen as a correction of a drafting error in the 2013 Act
  • Secondly, it should be possible for a publisher to rely not only on true underpinning facts or privileged statements as the basis for his or her opinion, but also on “facts” that he or she “reasonably believed to be true at the time the opinion was published”. This is considered an expansion of the defence, especially so as to defend the position of social media commentators
  • Thirdly, it is recommended that it be made clear that the defence extends to cover “inferences of verifiable fact”. The intention behind this is to clarify an aspect of the defence that is agreed to be the current law by many legal commentators, but on which there remains a measure of uncertainty in English law

The Report makes it clear that the aim behind these revisions is to ensure the honest opinion defence delivers on its promise of significant protection for freedom of expression.

The Report goes on to recommend that the jurisdictional exclusion relating to secondary publishers (intermediaries) found in section 10 of the 2013 Act should not be introduced in its current form. It goes on to make the point that exclusion should be extended so as to prevent any defamation claim being brought against a person other than the primary author, editor or publisher of a statement. This would have the effect of absolving (online) intermediaries from potential liability. This would mean that no equivalent to the defence for website operators found in section 5 of the 2013 Act need be introduced into Northern Irish law, and that existing defences for intermediaries can be repealed. It is acknowledged that reputations are exceedingly vulnerable in the online environment but it is considered that sufficient alternative avenues for the protection of reputations exist that would deliver prompt and efficacious solutions for plaintiffs.

That is something which obviously remains to be seen.

The Report also recommends the introduction of the abolition of the common law “single meaning rule” and the introduction of a jurisdictional bar to claims on capable meanings that have been retracted or corrected by a publisher promptly and prominently. These combined reforms are intended to encourage the swift resolution of disputes generated by ambiguous publications, to secure the correction or retraction of unintended slights on reputation, to obviate the risk of liability for publishers in very many cases, and substantially to reduce the cost of bringing a defamation claim to court for determination. It is also intended (as hopefully all of these reforms are) to make defamation law more comprehensible to the wider public.

The Report also notes the potential desirability of a range of further procedural reforms that would reduce costs and enhance access to justice in this context and it recommends that those options be considered fully during the review of civil justice that is currently being undertaken by Lord Justice Gillen.

There are two appendices to the Report.

  • Appendix 1 is a draft bill which reflects the full package of recommendations contained in the Report.
  • Appendix 2 consists of a draft bill which simply emulates the 2013 Act from a Northern Ireland perspective.

Clearly there is much food for thought in the Report but it does seem to be a clear signal to the law making body that the considered view of those most closely involved in defamation law is that reform of the law is necessary and should be carried out. Our interest now will be to see to what extent the Northern Ireland Executive will implement the proposed reforms and when.

In this regard the Executive will have to bear in mind the key principles underpinning the Report which are stated as follows:-

  • Defamation law must provide a proper balance between individual rights to reputation (Article 8 of the European Convention and Human Rights) and to freedom of expression (Article 10 of the European Convention of Human Rights), and promote effective access to justice for all parties (Article 6 of the European Convention of Human Rights)
  • Defamation law must recognise the importance of societal interests in the openness of public communications and the accuracy of reputational information
  • Defamation law must encourage the efficient inexpensive and prompt resolution of disputes regarding statements that have been published, limiting any need to revert to court as far as it is possible
  • Defamation law must be comprehensible to members of the public and to any prospective litigant
  • Defamation law should focus responsibility, and potential liability, for statements that have been published primarily on the authors, editors and publishers of those statements

Hopefully these are principles which the Executive agrees are of crucial importance to Northern Ireland society and will accept and implement the recommendations of the Report.

Access and particularly affordability of access to the Courts are essential to those who are defamed and it is to be hoped that the Report of Lord Justice Gillen’s review of civil justice when published will produce positive and practicable recommendations in that regard.

This article has been produced for general information purposes and further advice should be sought from a professional advisor.