Are Northern Ireland's libel reforms enough?
After much anticipation, the new Defamation Act 2022 has come into force in Northern Ireland.
The stark differences between libel law in England & Wales and that in N. Ireland have long been a source of difficulty for publishers, especially those with titles in both legal jurisdictions. Since the introduction of the Defamation Act 2013 in England & Wales, calls for similar reform in Northern Ireland have been discussed in great detail by legislators and practitioners alike.
Now the long awaited Act is here, and although it is a little different from the original draft bill, the new legislation still represents a significant step in the right direction from the point of view of journalists and publishers.
The introduction of the Act has aligned libel law in N. Ireland more closely with the legal position in England & Wales. There are three notable changes of law.
Firstly, the defences of Truth, Honest Opinion, and Publication in the Public Interest, are codified in sections 1 to 3 of the new Act.
As has been the case in England & Wales since 2014, it is likely that enshrining the public interest defence in law will be a welcome reform for reporters and legal practitioners who, up until now, have had to consider the intricate details of the Reynolds principles in determining whether or not ‘responsible journalism’ has been achieved. That has now been swept away, to be replaced by a focus on the public interest.
But do not be misled into thinking that this makes life any easier. Public interest remains a tricky defence for any publisher to run, with the actions of reporters remaining the subject of intense scrutiny.
Secondly, by far the most significant procedural change introduced by the new Act is the abolition of the presumption that a libel trial will be heard by a jury (rather than a Judge alone). This brings N. Ireland trial procedure into line with England & Wales on this crucial issue (apologies to our Scottish readers – your law is remains again from the other parts of the UK).
For publishers, jury trials are to be feared for many reasons (including the extraordinary expense) and though they have become relatively rare in practice in N. Ireland, it is reassuring that the presumption has been abolished. Gone are the days of Defendants having to settle cases simply because of the uncertainty and huge risk posed by seven unknown individuals (aka the jury).
N. Ireland has long had a reputation for being very friendly to libel Plaintiffs, and one of the reasons for this well deserved reputation was the jury trial presumption. Now that jury trials will be the exception rather than the rule, the proverbial playing field is now more level than ever before, and journalists (and their lawyers) can approach the possibility of a trial with a little less fear than has hitherto been the case. In this respect, the system is now much fairer.
Though time will tell if these amendments will lead to an increase of trials of preliminary issues (like the determination of meaning, for example) as has been the case when the law changed in England & Wales, it is widely accepted that addressing these kinds of issues at the earliest possible opportunity in proceedings has led to reduced costs and timeframes in the pursuit of resolution.
Thirdly, unique to the N. Ireland Act is the provision in section 11 – the “Review of Defamation Law” clause – which provides that the Department (of Finance) “must keep under review all relevant developments pertaining to the law of defamation as it considers appropriate”. The Department is also obliged to prepare a report, and to make recommendations on the findings of the review as well as on the operation of the Act, which is to be presented to the N. Ireland Assembly no later than June 2024.
At present, there do not appear to be any further details as to how this provision will work in practice, but it is certainly a legal obligation to watch (of which more below).
Whilst the above reforms are undoubtedly positive steps, they are not perhaps as wide ranging as journalists and publishers might have hoped.
Unfortunately, the new Act does not encompass all the provisions of the England & Wales legislation, and it is disappointing to see that the ‘serious harm’ test has not been adopted. This means that libel claims in N. Ireland will continue to be judged against the old “threshold of seriousness” test, which is generally accepted to be a lower threshold than the serious harm test. To this extent, the jurisdiction remains more Plaintiff-friendly than in other parts of the country.
The provisions regarding the liability of operators of websites (as contained in Section 5 of the England & Wales Defamation Act) are also absent from the new Northern Irish one. Some commentators say that in an increasingly online digital world, the absence of such a provision is a glaring omission.
However, many media lawyers on this side of the Irish Sea (including your correspondent) consider Section 5 to be unworkable and generally redundant, so the absence of this particular provision from the NI Act is perhaps not significant.
But undoubtedly, the most spectacular absence from the new Act concerns what is known as the ‘single publication rule’.
Why is this important? The answer lies in limitation, the time in which a claim must be brought before the ‘cause of action’ lapses.
In libel, the limitation period is 12 months from the date of first publication. This date is straightforward and obvious in respect of an article in a newspaper, magazine, on TV or radio.
However, when it comes to online articles, each time an online article is downloaded, it is technically published afresh, so triggering a new 12 month limitation period. In other words, an unintended consequence of the shift to online publishing was effectively to remove the time limit for bringing a claim.
This problem was addressed in England & Wales by the Defamation Act 2013 and the introduction of the single publication rule. By this rule, downloads of an article after first publication are excluded from calculating the date from which the limitation period starts to run (provided those subsequent publications remain “substantially the same” in content as the original one).
As a result, the key date for anyone who is contemplating suing a publisher in England & Wales is the date of first publication.
In N. Ireland, however, the failure to include a single publication rule in the 2022 Act means that the position remains just as it has always been – an article is ‘published’ each time it is downloaded, and therefore, the 12 month limitation period starts afresh each time an article is accessed online. This results in a never-ending potential liability for publishers, which is hardly sensible, let alone fair.
The verdict on the new legislation has to be that it is a really mixed bag – it certainly represents progress in the reform of N. Ireland’s libel law, but there is still a long way to go before publishers in the Province can feel they are being treated in the same way as their counterparts in the rest of the UK.
That said, it’s now less than two years before the Department of Finance has to prepare and submit its review to the NI Assembly – so there is still everything to play for. The gathering of data, and the presentation of that data to the Department, will be crucial if the reforms embodied in the 2022 Act are to be driven forward by the 2024 review.
Tony Jaffa is a solicitor admitted in England, Wales, and N. Ireland