The Story of the Defamation Act in Northern Ireland (so far...)

The Press Gazette and other publishers recently suggested that the unilateral Sammy Wilson decision not to pass a 'legislative consent motion", which would have implemented in full the Defamation Act into Northern Ireland law, could hurt the devolved province. Lord Lester, the Liberal Democrat architect of the new libel law said the decision was a "very bad step" for the public.

The top human right lawyers Lord Lester said in full:

'"It is a very bad step for the public because it means that the Press, including broadcasters who are the eyes and ears of the public, will have to grapple with an out-of-date legal system in Northern Ireland compared to one which has been carefully brought up to date and strikes a fair balance in England and Wales," he told the Belfast Telegraph. 

"Of course, it is a very good step for lawyers in Northern Ireland who want to make a fortune out of an archaic libel law... Those lawyers will profit, but it will be at the expense of free speech for the people of Northern Ireland."'

The Press Gazette said:

'National newspapers might be forced to withdraw from Northern Ireland because of the Stormont Government's apparent refusal to act to implement the Defamation Act 2013 in the province, it has been claimed.'

The international champion for free speech, the Index on Censorship slammed the decision. They said:

'“This is a good piece of legislation which will end the international humiliation from our libel laws, which have been proven by the United Nations Human Rights Committee to chill free speech,” he told the Belfast Telegraph. “Northern Ireland’s politicians should be called to account for why they don’t think the people of Northern Ireland deserve the same protections for free speech as other countries.”'

The Belfast Telegraph added:

'Mr Harris said there were genuine fears that Belfast could replace London as a so-called libel tourism destination.' “Our concern is that Northern Ireland will continue to have antiquated libel laws and become a libel tourism capital where cases that can’t be taken in England will be taken to Belfast.”

The News Letter reported that national editions were 'jumpy' about the Stormont veto. More was said:

'There are fears that, faced with a greater likelihood of being sued if they circulate in Northern Ireland, some national publications will withdraw from the Province.'

The News Letter also reported that Dr Colm Murphy of the University of Ulster said that the decision could scare off investors.

'Amid mounting concern about the implications of a decision taken somewhere within the Stormont Executive to exclude Northern Ireland from UK-wide libel reforms, Dr Colm Murphy said that foreign internet companies would see the decision as a message which said: “Just don’t come here.” 

The former Sunday Times journalist, who is head of the University of Ulster’s school of media, also told the News Letter that Stormont’s veto of the Defamation Act could make publishers of national newspapers decide that selling their publications in Northern Ireland is “not worth the risk”.'

Belfast Media lawyer Paul McDonnell

Belfast media lawyer Paul McDonnell (@_PaulMcDonnell_) of McKinty & Wright chastised the isolationism of the Stormont legislature. He said:

'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.'

Media lawyer Tony Jaffa

Fellow media lawyer Tony Jaffa was equally as critical. He said:

'The decision of our political leaders not to adopt the new legislation means that a rare opportunity to encourage and promote freedom of expression in Northern Ireland has been lost.'

The Inforrm blog made a great contribution to the debate, giving insight into why Stormont decided to diverge on a large point of law. They said:

'There a number of possible theories to explain the failure of the Northern Ireland Executive to take steps to extend the Defamation Act to Northern Ireland: 

- That Northern Ireland politicians prefer more “claimant friendly” libel laws to protect them from criticism. 

- That the prospect of “libel tourists” going to Northern Ireland (as opposed to London) has attracted  lawyers in Belfast who have, as a result exercised, political influence to ensure that the Act is not adopted in the province. 

- That, having conducted a thorough analysis of the changes brought about by the Defamation Act, Northern Ireland politicians concluded that its negative impact on the Article 8 right to reputation outweighs its positive impact on the protection of the Article 10 right to freedom of expression. 

- That some Northern Ireland politicians have an instinctive distrust of any proposal coming from the Westminster Parliament.
Inertia. 

We will not comment on the relative plausibility of these theories – although, we suspect that anyone believing that libel tourists will flock to Belfast will be sorely disappointed (as has been pointed out before on this blog,  such tourists are a rarity even in London). 

Nevertheless, whatever the reason for the failure of the Northern Ireland Executive to act, it is difficult to see any rational justification for a divergence between the law of defamation in England and Wales and that in Northern Ireland.  In the interests of predictability and consistency, if nothing else, the Northern Ireland Executive should now agree to extend the Defamation Act to cover claims in the Courts of Northern Ireland.'

Paul Tweed (@Paul_Tweed) who said he had actively lobbied against uniformity explained here and here why he opposed implementation of the law in Northern Ireland. Read more on that here.

Mike Nesbitt has since produced a draft bill which seeks to strengthen the law in Northern Ireland in favour of free speech. Read about that here and see the draft bill in full here.