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14.10.2016

Northern Ireland - Report on defamation law reform

by Ronan Fahy
On 19 July 2016, the Northern Ireland Minister of Finance, Máirtín Ó Muilleoir, announced the publication of a report on defamation law in Northern Ireland, written by Dr. Andrew Scott, of the London School of Economics. The 101-page report, entitled Reform of Defamation Law in Northern Ireland, includes two draft bills, and builds upon earlier work undertaken by the Northern Ireland Law Commission. A Consultation Paper had been published in November 2014 by the Law Commission, with a consultation period running until February 2015. The Minister of Finance also published a summary of the consultation responses.

The primary purpose of the study undertaken by the Law Commission was to consider whether the Defamation Act 2013, which had been enacted in England and Wales, should be extended to Northern Ireland. The report first considerers the statutory defences included in the Defamation Act 2013, including the defence of truth, defence of honest opinion, defence of publication on matter of public interest, and the defence of qualified privilege for peer-reviewed scientific and academic journals. The report broadly recommends enactment of these statutory provisions in Northern Ireland law, but with slight amendments, including for the defence of honest opinion, it was recommended that the defence should be extended to include “facts that the defendant-publisher “reasonably believed to be true” at the time of publication.”

Notably, the report contains a lengthy discussion of two specific provision of the Defamation Act 2013. The first is section 5 of the 2013 Act, which provides a defence for website operators regarding statements posted on their sites by third parties. The second is section 10 of the 2013 Act, which provides that “a court does not have jurisdiction” to decide a defamation action brought against a person who was not “the author, editor or publisher” of a  statement, “unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher.” The report recommends that section 5 should not be extended to Northern Ireland, and that instead the defence contained in section 10 should be extended to include that no claims can be brought against persons not the “author, editor or publisher”. It is also recommended that section 10 should be extended to include that “a person shall not be considered the author, editor or publisher of a statement if he is only involved “in the moderation of statements posted on a website by others.”

In relation to the 2013 Act’s serious harm test in Section 1, which provides that a “statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”, the report recommends its extension to Northern Ireland. Further, the report recommends that section 1(2) also be extended to Northern Ireland, which provides that “harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.”

A further issue of note is the report’s recommendation in relation to libel tourism i.e. where “corporations and others from other jurisdictions” use threats of defamation proceedings and “take advantage of the relatively restrictive character of British law”. The report recommended that an equivalent provision to section 9 of the 2013 Act should be introduced into Northern Ireland, providing that it must be shown that “Northern Ireland is clearly the most appropriate place in which to bring an action” before an action can be heard. Moreover, in relation to jury trials for defamation, the report recommends that a trial will be “without a jury unless the court orders otherwise”.

A final notable issue relates to the single meaning rule, which is a common law rule that in defamation proceedings “each set of ‘words complained of’ must be understood to hold one meaning only”. The report notes that the single meaning rule “is so highly complex and technical as to border on the arcane”, and “generated complex rules and practice on the pleading of meanings”. The report recommended the abolition of the rule, and the enactment of a “jurisdictional bar to claims in defamation based on meanings that had been corrected or retracted by the publisher promptly and prominently.” The report argues that the proposal “is 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.”

Annexed to the report are two draft bills, with one simply emulating the provisions of the Defamation Act 2013 in Northern Ireland law, while the other bill contains the full range of recommendations, including the single meaning rule reforms. The Minister of Finance has stated that he now consider the report.

Ronan Fahy, Institute for Information Law (IViR), University of Amsterdam

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