Posted: 2020-07-05

A new defamation law came into force on the 1st January 2014 in England, but similar changes have not been made in Northern Ireland.

A new defamation law came into force on the 1st January 2014 in England. However similar changes have not been made in Northern Ireland and as a result supporters of free speech and rational thinking, including those who write in Irish Free Thinker, can be at risk for the most innocent of critical comments when put to paper.


Amongst other provisions, the Act introduced a 'serious harm' threshold for bringing a defamation claim, and a single publication rule (potentially of great significance to online publication).  The Act stipulated that the courts of England and Wales do not have jurisdiction to hear defamation actions against persons domiciled outside the UK, EU or Lugano Convention, with a view to preventing so-called ‘libel tourism’. The Act also reversed the mode of trial – to judge rather than jury. 


However, attempts to introduce similar reform in Northern Ireland were thwarted due to opposition from the DUP. The Northern Ireland Law Commission produced a consultation paper in 2014 and in 2016 legal academic expert Andrew Scott reported on this consultation. The NI Law Commission and Andrew Scott proposed that a defamation reform bill should be introduced in Northern Ireland and Scott’s report sets out the draft bill introduced by MLA Mike Nesbitt.

One of the main objectives of the reform is to introduce into law a defence of ‘honest opinion’ and a series of proposals to reduce the cost of justice as was intended in England.


In mid June 2012 Sammy Wilson, the Finance Minister, halted the extension of the 2013 English defamation act into Northern Ireland though, according to Eamonn Mallie, this decision remained secret for a year. Mike Nesbitt wrote in 2013 that during all his years in journalism, all libel suits had been served by DUP politicians. Those who have read Sam McBride’s book Burned on the RHI scandal will be familiar with the number of times that publication of the truth about the wood pellet scam were threatened with libel actions from DUP politicians.


However, in September 2013 new DUP finance minister Simon Hamilton asked the NI Law Commission to carry out a public consultation. The result was overwhelming public support for libel reform. But subsequent attempts to implement the change through the House of Lords failed and currently the issue remains in limbo. 


Mike Nesbitt has reintroduced his bill at Stormont but no further progress has been made. Eamonn Mallie has argued that the Law Commission consultation was merely an attempt to “kick the can down the road,” 

and the DUP remain implacably opposed: “The DUP’s Sammy Wilson said that concerns about free speech were ‘just a lot of nonsense’. The DUP’s Ian Paisley Jnr made no less than 10 interventions criticising the Defamation Bill in its second reading debate in the House of Commons”. The then leader of the DUP, Peter Robinson, said in November 2013 that he was ‘bemused’ by concerns and said worries were ‘absurd’(1).


Arlene Foster, commenting on the Andrew Scott report, said: “If there are changes to be made, we will move into policy development to consider how we make them. I do not think that it would be right to follow the Defamation Act 2013 slavishly”.


Mike Harris of English Pen and the Libel Reform Campaign, writing in the Huffington Post, states that “Very few know why the Defamation Bill does not apply to Northern Ireland, an outrageous decision that has created a gaping loophole in the government's attempts to reform the UK's libel laws. It took endless humiliation before parliament got the message and decided to reform the law of libel: the UN Human Rights Council said our libel law chilled free speech across the entire globe, American academics faced our courts for writing about the funding of Al Qaeda, Barack Obama signed into law an act to protect Americans from our libel law and decent scientists such as Simon Singh, Ben Goldacre and NHS cardiologist Pete Wilmshurst faced ruin thanks to the law.”


An active libel reform group in Northern Ireland has worked hard to support Mike Nesbitt’s bill and the report from Andrew Scott. For instance, Lyra McKee, the freelance journalist (above), who was shot and killed in Derry on April 18 2019, was an active supporter. She was writing a book about murdered Northern Ireland politician Robert Bradford: “My line of work means I often upset people in power. I often find myself being threatened with our archaic libel laws… I've become involved with the Libel Reform Campaign because a muzzled press equals a poor democracy - and that is what we have in Northern Ireland”


A year after Lyra’s tragic death a fitting memorial would be the adoption of libel reform in Northern Ireland.       q



Tom Woolley 2020