While the Defamation Bill progressed through Parliament, neither the Scottish Parliament nor the Northern Ireland Assembly passed a consent motion to extend the legislation to those jurisdictions in full (the former did adopt sections 6 and 7 of the Act). Last week, the Scottish Law Commission announced that defamation would comprise one element of its ninth programme of law reform. The NI Law Commission has published a study of the law and is currently consulting on possible reforms [pdf]. The consultation closes on 20 February 2015.
The primary stated purpose of the NILC consultation is to consider the Defamation Act 2013 in England and Wales, and to consult on whether the reforms reflected in the Act should be extended to Northern Ireland, either in part or wholesale. The paper also moots whether any provisions in the Act should be revised in minor or more significant ways before adoption. This note considers these elements of the study; a second part is focused on a further reform option (the withdrawal of the “single meaning rule”, coupled with the introduction of a bar to the bringing of claims on a given meaning where a publisher has corrected or retracted that meaning promptly and prominently).
The NILC study comprises a thorough-going review of the operation of the law of defamation in Northern Ireland and of options for reform. It notes that the law is largely equivalent to that in England and Wales, but also highlights some significant “environmental” differences. For instance, the number of claims per capita appears to be relatively very high in NI. Most importantly, perhaps, it suggests that the different legal costs regime applicable in NI would appear to intensify the access to justice problem for many plaintiffs. Intuitively, relative to England, this must also lessen the potential impact of the law on freedom of expression. Nevertheless, the potential cost and complexity of legal proceedings still introduces a real dilemma between speaking out on a matter of public importance and facing expensive legal action, or staying quiet and thereby allowing problems to perpetuate.
As has been the case in England, the costs problem “cuts both ways”. Hence, the study reports that despite the emphasis often placed on the harm posed to free speech by defamation law, the key imbalance in the area is arguably not that in favour of reputation over free speech or vice versa. Rather, it is that between litigants who can afford to defend their publications or to vindicate their reputations, and those who cannot.
From the generality of the discussion on the 2013 Act, some particular points are especially noteworthy. The following selection is not intended to downgrade the importance of other issues considered in equal depth in the study.
Honest comment defence: two revisions?
As regards the revision of the honest comment defence in section 3 of the 2013 Act, it is mooted whether reform might sensibly go further in two respects with the aim of making the defence clearly more valuable to the average person who comments on facts that he or she reasonably believes to be true. The first question raised is whether it should be confirmed that the defence applies to inferences of verifiable fact. This would remove one level of complexity in the deployment of the defence.
The second question raised is whether the basis for comment should extend also to include facts that the defendant-publisher “reasonably believed to be true” at the time of publication. That is, whether the defence should be available when the factual basis for opinion expressed was either true, privileged, or reasonably believed to be true. These mooted extensions might be of especial utility to those commenting on social media.
Publication on matter of public interest defence
As regards the new defence of publication on a matter of public interest in section 4 of the 2013 Act, the possible interpretations of the new defence are noted, but it is suggested that the defence will almost certainly be interpreted in keeping with the common law Reynolds privilege.
One significant divergence with the pre-existing law is emphasised however: the extension of the new defence to cover opinions as well as statements of fact. The conceptual awkwardness of this approach is noted, and an alternative approach based on the revisions to the statutory honest opinion defence mooted above is suggested.
Peer-review privilege: a sticking plaster?
The study criticises the introduction of a new privilege applicable to statements published in peer-reviewed in scientific or academic journals in section 6 of the 2013 Act for having done both too little and too much. Plainly, much scientific and academic speech is highly important and its suppression due to the unwarranted defamation chill is a pressing social problem. There is great merit in the goal of facilitating free speech in this context. Yet, extending qualified privilege to statements in peer-reviewed publications may amount to little more than a “sticking plaster” approach.
Contributions to academic or scientific discourse might be thought, quintessentially, to be of such a nature as to attract the defences of honest comment / honest opinion or justification. The study asks whether a preferable way forward may be to ensure that such primary defences are so readily usable as to deter attempts to bully through the threat of legal action. Failing that, adoption of even this partial solution to the problem of the chilling effect on scientific speech is recommended as a positive step.
Presumption against trial by jury
The consultation paper indicates that reversal of the presumption that defamation claims will be heard by a jury in section 11 of the 2013 Act proved controversial in the pre-consultation meetings that informed its writing, as it had during the debates on reform that culminated in the 2013 Act. The discussion on this point in the paper notes both the arguments of principle in favour of retention of the jury, and the advantages of following the 2013 Act in terms of the facilitation of procedural efficiency and the associated reduction in cost. It is also noted that should the scheme discussed in Part 2 be adopted, the rationale for the presumption against a jury trial is correspondingly weakened to the extent that the process of determination of meaning would become redundant, and disputes would focus immediately on core errors of factual uncertainty.
The ‘serious harm test’: a serious error?
The desirability or otherwise of introducing the section 1 “serious harm test” into Northern Irish law is identified as the most contentious issue addressed during the NILC’s pre-consultation discussions. Such a rule might well reduce the likelihood that unmeritorious and trivial cases will be brought in future.
A converse view is that the design and the likely operation of the test would engender one-sided practical difficulties. The increased cost to litigants involved in collating and presenting evidence of harm at an early stage in proceedings was thought likely to make it more difficult for all but very wealthy plaintiffs to justify the potential expense of bringing claims for defamation. This was perceived to be a likely outcome even in cases where the plaintiff had a wholly justified complaint. That is, the impediment to claims being brought would apply to all cases, not only trivial claims. The consultation paper suggests that, on this view, it may be simpler, and hence better, to continue with the already effective common law approach. Concerns regarding the uncertainty of the rule would appear to have been borne out in the first case decided in England and Wales under section 1 of the 2013 Act (Cooke v MGN).
Corporations’ right to sue
Separate to the consideration of the section 1 serious harm test, the desirability of a particular rule focused on bodies that trade for profit (especially corporations) is also mooted in the consultation paper. Again, it cites clear arguments either way on this point. The paper also refers to the option for the NI Assembly to adopt a rule barring defamation claims by companies employing more than ten persons as has been done in Australian jurisdictions.
The NI Law Commission paper comprises a review of the traveaux preparatoires to the Defamation Act 2013, the justificatory and critical commentary thereon, and the early experience under the Act. For the most part it shadows the structure of the 2013 Act, but does suggest some notable alternatives to aspects of the English legislation. It also consults on a further reform option set out briefly in the second part of this note. The consultation closes on 20 February 2015.
Dr Andrew Scott is an Associate Professor of Law at the LSE and was the Project Lawyer for the Northern Ireland Law Commission project on Defamation Law in Northern Ireland