The Northern Ireland Law Commission is currently consulting on reforms to defamation law [pdf]. Many mooted reforms relate closely to those reflected in the Defamation Act 2013 (see Part 1). In addition, the NILC is consulting on the desirability of a further reform option. This would comprise two inter-related changes: first, the withdrawal of the “single meaning rule”, and secondly, the introduction of a bar to the bringing of claims where a publisher has corrected or retracted a possible meaning promptly and prominently.
The consultation paper identifies the over-complication of publication disputes as they move from the public sphere into the legal context and the attendant cost of (prospective) embroilment in legal proceedings as the root problem with defamation law. The bipartite proposal is intended to meet this overarching concern, to secure adequate redress for people who consider that their reputations have been sullied by false statements made by others, while reducing significantly the “chilling effect” of potential claims on those who wish to unearth and publicise corruption and malpractice and to criticise the powerful.
The additional reform proposal is developed at some length in chapter 5 of the NILC consultation paper. The basic thinking can be briefly stated however. The proposal comprises two elements: first, the removal of the “single meaning rule”, and secondly the introduction of a bar on claims where prompt and prominent corrections or retractions of complained of meanings have been made. The paper moots that it may be possible to ensure access to justice, while yet minimising the role of law, lawyers, and the courts in many cases.
In the first respect, the paper notes that the single meaning rule has long been part of defamation law, but that it has been explicitly rejected by the Court of Appeal as part of the related tort of malicious falsehood and by domestic and European courts as part of the closely analogous law of trade marks. The rule is intended to simplify the task that must be undertaken by the court when determining defamation claims. It requires a court to extract a singular meaning from often ambiguous publications on which to base its application of the law.
This is plainly counterfactual. Moreover, it may be that the practical effect of the single meaning rule is to see defamation claims often become highly technical, protracted and costly exercises as the parties vie to have their interpretations of the publication selected by the court. Yet, merely removing the single meaning rule would indeed entail that the task for the court would become unmanageably complicated. Would not leaving all possible meanings “on the table” see legal proceedings inevitably stuck in an impassable quagmire?
The second dimension of the NILC proposition begins with recognition that prompt correction of falsehoods as a means of vindicating reputation is often the primary goal pursued by most bona fide plaintiffs. Provision for such “discursive remedies” is commonplace in European legal regimes. Indeed, the law of Northern Ireland – and that of England and Wales – is comparatively unusual in not providing discursive remedies for defamation as standard. Moreover, almost all mainstream Northern Irish (and UK) publishers are committed, in principle, to correcting significant inaccuracies when they are identified. As a matter of practice, however, this commitment is sometimes more honoured in the breach.
Incentivised reliance on appropriate “discursive remedies” might provide an attractive “way out” of publication disputes for defendants. The law might recognise, applaud and promote the tendency of publishers to provide a discursive solution to disputes generated by publication. The introduction of a bar on claims where corrections or retractions have been made on (some) given meanings may change the incentives involved when complaints arise. Defendant-publishers might begin to publish corrections or retractions automatically when complained of meanings can be seen to be plausible but were unintended. They might also become more willing and able to defend actions in court if they are convinced of the truth of what has been published. With the contested meanings determined in advance, litigation would be honed and the cost of proceedings would fall dramatically.
The vision offered in the NILC consultation paper is that the jettisoning of the single meaning rule and the introduction of discursive remedies together could take all but the most pointed disputes on specific contested meanings out of the legal forum altogether. The following schema illustrates how the two parts of this reform option might be expected to interact. The NILC consultation closes on 20 February.
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