Northern Ireland: The devolved Government has published its Review of the Defamation Act (NI) 2022
03/10/2024
Although we live in one country, history has bequeathed three separate legal systems to the United Kingdon, each of which is jealously guarded by the politicians and the devolved governments (and no doubt by the lawyers as well).
This distinctiveness once again manifested itself in the Summer of 2024, when Northern Ireland’s Department of Finance published its review of NI’s new(ish) libel legislation, the Defamation Act (NI) 2022.
Why did the Department go to the trouble of producing this Review? The answer lies in Section 11 of the Act, which obliged the Department to
“keep under review all relevant developments pertaining to the law of defamation as it considers appropriate”; to “prepare a report and recommendations on the operation of the Act”; and to “publish the report and recommendations within two years of the Act receiving Royal Assent”.
By the beginning of the 2020s, libel law in NI was in urgent need of reform, with publishers being ever more vocal in their objections to what was perceived to be an outdated and pro-plaintiff legal regime.
At the time, like many others, I welcomed the introduction of the new Act, as it seemed to me to be a step in the right direction.
But at the same time, the requirement for a review to be carried out so quickly always seemed to me to be a pointless exercise. What could possibly be achieved in such a short space of time? And as the authors of the Review concede, civil servants began their work as early as 2023.
It’s my understanding that section 11 was introduced as a political compromise to ensure the then Bill became law.
Whether that is true or not is irrelevant, of course. Section 11 became law, and the civil servants did their duty.
So the question to be considered is simply this: is the Review is likely to change anything for publishers in operating in NI?
The answer, I think, is ‘no’.
Which is perhaps the predictable outcome, given the short time between the Act receiving Royal Assent and the Department beginning work on this task. In the words of the Review’s authors:
“It is generally considered to be too soon to offer much informed comment on the operation of the 2022 Act. The Act had been in place for less than two years when this report was being finalised….
We believe it too soon to legislate further on defamation particularly in the context of competing legislative priorities and resource constraints”.
The Review covers a wide range of topics, but the comments on certain issues struck me as being noteworthy.
From the perspective of a publisher, no change to the legislation is a good thing, if you have in mind the effective abolition of jury trials.
If anything forced publishers to settle pre-2022 libel actions, even those to which they had a valid defence, it was the fear of unpredictable juries coming up with rogue decisions, and the consequential costs risk, which would be severe. What publisher could take the risk of putting its business at risk?
On the other hand, because the legislators intentionally excluded the ‘serious harm’ test from the 2022 Act, a review of this topic would be quite useful. The serious harm test was introduced by the Defamation Act 2013, but regrettably, that statute does not extend to NI.
The authors of the Review hinted that this is definitely an issue worth reviewing further. But does this augur well for the introduction of the serious harm test into NI law?
Sadly, this seems unlikely. It appears that the Department has no appetite to press the point to politicians:
“It must be recognised that the Assembly debated this issue fully…. and it was the will of the Assembly, two years ago, not to legislate in this way”.
So what of the future? In the immediate short term, nothing is going to happen, as one of the Review’s conclusions is:
“We believe it too soon to legislate further on defamation, particularly in the context of competing legislative priorities and resource constraints.
And in the longer term? Whilst there seems to be a hint of further reviews:
“Charting a path through the competing assessments of further reform will remain on the Department’s radar……”
the Department has given itself plenty of wriggle room:
Scarce resource is currently focussed on other important law reform matters, but nonetheless, the Department will aim to monitor the wider debate on defamation law and policy. Future reform will be judged on how that debate progresses.
I’m no civil servant, but I can’t help wondering if this is what the long grass looks like! Or am I being unduly sceptical?
So the message is that it’s business as usual for publishers in NI. Whether that’s to be welcomed or not, I will leave to you to decide.
Tony Jaffa is admitted as a solicitor in England, Wales, and Northern Ireland, and advises publishers and journalists in all three jurisdictions.