Libel Reform and Scotland, the Silence of the Lords – Paul Tweed

21 03 2014

Paul TweedDuring the course of what has been an intense, and often vitriolic, debate in the House of Lords on the decision not to implement the Defamation Act 2013 in Northern Ireland, the failure to even mention the similar stance taken by Scotland is somewhat bewildering.

Indeed, Scottish Justice Minister, Kenny MacAskill, has been robust in stating that “the Scottish Government has no plans for wholesale reform in this area”.

A number of peers, and of course the usual sections of the press, have chosen to ignore this very relevant fact in their attempts to portray Northern Ireland as the lone miscreant in failing to tow the line within the UK.

And to make matters worse, in their determination to ensure compliance, rather than leaving the Northern Irish Law Commission and Assembly to make an independent assessment and decision in relation to their own legislation, a number of peers attempted to force the legislation on the Province by the back door, by way of the Northern Ireland (Miscellaneous Provisions) Bill.

There appears to have been little or no mention, never mind debate, on whether a similar arbitrary stance should be adopted in relation to Scotland.  Could it be that this would be much too sensitive an issue to raise during the current clamour for Scotland’s independence?

In any event, notwithstanding the extensive scaremongering in the print media inferring that “libel tourists” will be descending on Belfast like triffids, there has been no sign to date of this happening.  Indeed, towards the end of last year I represented a major national newspaper in defending a claim brought by a personal litigant, which the Court in Belfast dismissed on the grounds, inter alia, that the Plaintiff had insufficient connections with the Province and that Northern Ireland was therefore not an appropriate jurisdiction to hear his claim.  I would suggest therefore that this is a clear indication that “forum shopping” by individuals without an established reputation in Northern Ireland is already deterred and prevented by the existing defamation legislation.

Fortunately, some of the victims of character assassination in the press may still have the option of seeking vindication of their reputations across the border in the Republic of Ireland, where defamation legislation has also been recently introduced, but on a much fairer and equitable basis than the new UK Act, and backed up by a reasonably effective Press Ombudsman and Council.

The fact that the Irish Defamation Act remains broadly similar to the current Northern Irish legislation has also been conveniently ignored in what has been totally one-sided coverage in the press.  Certainly there has been no mass exodus of newspapers from Ireland following the introduction of their new legislation four years ago, and international companies such as Facebook, Google and Twitter continue to establish their European headquarters in Dublin in what is regarded as a corporate friendly environment.

Apart from these commercial considerations, another question which has to be posed is whether England and Wales are out of step with Scotland, Northern Ireland and the Republic of Ireland in failing to offer any practical protection for the general public, while seeking to prevent the ordinary man on the street from sitting on a jury in judgment of the worst excesses of the media?

Paul Tweed is a partner in the firm of Johnsons which has offices in Belfast, Dublin and London

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2 responses

23 03 2014
Guy Ropes

I think it’s “toe the line” and not “tow the line”

24 03 2014
Robert

Its entirely wrong to compare the blanket stonewalling of the Defamation Act by DUP ministers, with the approach taken by the SNP in Scotland. Indeed, in the very same committee discussion where Kenny MacAskill said that “the Scottish Government has no plans for wholesale reform in this area”, he also conceded that the Defamation Act provisions on peer reviewed material were worthy of inclusion in Scottish Law. The Legislative Consent motion that emerged from that meeting at least allowed that section of the Act to apply Scotland. By contrast, Northern Irish politicians have not even considered passing a Legislative Consent Motion.

There are deep discrepancies between the law in England, Wales and Northern Ireland on the one hand, and the Scottish Law on the other (I am sure that Mr Tweed knows this, even if he leaves it out of his article). Even the word for ‘tort’ is different in Scotland (its a ‘delict’) and defamation law is structured very differently (for example, there is no distinction between slander and libel in Scots Law). So while in Northern Ireland the law as been substantially the same as in England and Wales for generations, this is not the case in Scotland, which is why campaigners’ attention is currently focused across the Irish Sea.

That is not to say that all is well with defamation law in Scotland. The Libel Reform Campaign has never made that claim. We remain concerned that the public interest defence in Scotland is less effective than the defence in England and Wales. There are good reasons for Scotland to reform its law, and we urge the Scottish Parliament to give serious consideration to this.

Robert Sharp, English PEN

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