Northern Ireland libel law a “story of evasion and irresponsible delay”?

A recent debate in the House of Lords has once again brought into focus the controversial discrepancy between the libel laws of Northern Ireland, and those of England and Wales.

The Defamation Act 2013 has made a number of significant changes to English libel law, with the new legislation aiming to reverse the alleged “chilling effect” that the former law (equivalent to that still operating in Northern Ireland) has on freedom of expression.

Plaintiffs must now satisfy a new test whereby that they have suffered “serious harm”. Particularly welcome is the greater protection afforded to academics and those publishing material on matters which they reasonably believe to be in the public interest. The legislation also attempts to curb the potential for “libel tourists” trying to rely on English laws when they have minimal connection to the jurisdiction, and introduces a new process to assist victims of online defamation to resolve disputes directly with the authors of the disputed statements.

However, as yet the Northern Ireland Executive has shown little appetite to extend the effect of these changes to Northern Ireland, which has led to claims that Northern Ireland will become a haven for libel tourists seeking to utilise our existing legislation in order to stymie free speech. Whilst the issue has been referred by Finance Minister, Simon Hamilton, to the Law Commission for consideration, and a private members bill has been introduced by UUP leader, Mike Nesbitt, there are currently no firm proposals to adopt the measures already in place in England and Wales.

If the existing law remains in place, the effect on businesses could cut both ways. For businesses with a social media presence, great care should be taken in using official Twitter or Facebook accounts, as individuals or businesses who perceive that they have been libelled by such accounts (which can include “retweets”) currently do not have to prove that any harm they have suffered is “serious”. Similarly, if employees publish statements that are critical of others, and which can be interpreted as being posted in the course of their employment, both employee and employer can be held liable. Therefore clear policies regarding the use of social media websites, both in terms of official business and personal accounts, are to be encouraged. The flip side is that, if a business feels it has been the subject of defamatory comment online or in print, it currently faces a less stringent test to succeed with a case in defamation in Northern Ireland.

If the new law were to be introduced in Northern Ireland, it could be good news for publishers and businesses who host user-generated content online, as they would benefit from greater protection against would-be plaintiffs. If our libel law remains the same, it will be fascinating to see whether Northern Ireland does in fact become the hot destination for the world’s disgruntled libel tourists, packing nothing but controversial tabloid articles in their hand luggage.

Opinion by Fiona Fee BL, Legal Eye

Members of the Bar of Northern Ireland specialise in the provision of expert independent legal advice, opinion, dispute resolution and courtroom advocacy.

Contact for More Information: media@barlibrary.com or 07824806705