A recently published review of Northern Ireland’s defamation law could see it brought in line with the reforms introduced in England, Scotland and Wales in 2013. The new Finance Minister has been given the report by the London School of Economics’ Dr Andrew Scott which recommends implementing or building on the Defamation Act 2013.
On welcoming the publication of the Scott report, Máirtín Ó Muilleoir, through a departmental press release re-stated a poignant inclusion within the report that highlighted neither international nor domestic human rights law required an amendment to Northern Ireland’s current law on defamation.
A restriction on freedom of expression, cost and access to justice were the underlying concerns of the existing defamation law which fuelled the introduction of the Defamation Act 2013 in England and Wales.
Prompted by the threat of a Private Members Bill by UUP leader Mike Nesbitt in an attempt to align Northern Ireland, then Finance Minister, Simon Hamilton, tasked the Northern Ireland Law Commission (NILC) to carry out a study of the law of defamation. A consultation document was subsequently published in 2014 but a month after the consultation period closed in 2015, the NILC closed down because of funding problems.
Scott’s report has built on the existing work of the NILC and the consultation responses it received and includes two draft bills, one which replicates the 2013 Act and another which seeks to build on it.
The report issues “strong recommendations” that provisions in the 2013 Act should be emulated, with consequential changes reflecting the shift in jurisdiction, including, among other things, a defence of truth, a defence of publication on a matter of public interest and update in the law of slander. Those elements of the 2013 Act which the report suggest are “less compelling” include a serious harm test and a presumption in favour of trial by judge alone.
The report also recommends a variation of the defence of honest opinion, included in the 2013 Act and suggests three ways on which Northern Ireland might seek to tailor for improvement the existing legislation. The first suggestion is that publishers may rely on privileged statements published before or “at the same time as” the opinion. This would correct a drafting error in the 2013 Act which only references “before”. The second, is an expansion of defence, mostly aimed at defending social media commentators. Publishers can rely not only on facts and privileged statements but also on facts they “reasonably believed to be true at the time the opinion was published”. The third variation is the inclusion of stretching defence to cover “inferences of variable fact”. A clause, explained within the report as intended to clarify an aspect of the defence that is agrees to be the current law by many legal commentators, but on which there remains a measure of uncertainty in English law.
Further alterations to the 2013 Act includes not introducing jurisdictional exclusion to secondary publishers, which includes a defence for website operators, and instead should be extended to prevent any defamation claim being brought against a person other than the primary author, editor or publisher of a statement.
The report suggests a further two-part approach to reform aimed at reducing the cost of bringing the defamation claim to court and make defamation law more comprehensible to the wider public. It recommends abolition of the common law “single-rule meaning” and the introduction of a jurisdictional bar to claims on capable meanings that have been retracted or corrected by a publisher promptly and prominently.
The report notes a desire for further issues of reform on reduced cost and enhanced access to justice highlighted during the initial NILC consultation and recommends that they be considered during the on-going review of civil justice being led by Lord Justice Gillen, for which consultation closes on 28 October.