Two weeks ago, on 14 May 2021, the UK Government gave its consent to a Private Member’s Bill introducing defamation law reform in Northern Ireland, welcoming it as a step “to put Northern Ireland in line with the rest of the United Kingdom”.[1] It is an important development, not least because it clears the procedural obstacles that had been used to block previous attempts to introduce reform in the province. The stage is now set for Northern Ireland’s elected representatives to finally debate the question in the open and considered manner it deserves.

Of course, it would be a mistake to simply adopt a carbon copy of the Defamation Act 2013, which applies in England and Wales, without first having consideration of some of the unique characteristics of Northern Ireland. This includes the history of conflict and the particular nature of the media sector here. Pandering to sectarian division, for example, has led to some conservatism in reporting here. Moreover, much of the broadcast and print media in the province are owned by parent companies located in Dublin, London, or other parts of the UK. Somewhat remote from the Northern Irish public, they have not been encouraged to take their chances with a complex and ambiguous body of common law in the Northern Irish courts. Such conditions even make it difficult to measure with any certainty the extent to which lack of reform in Northern Ireland has so far caused a chilling effect on free speech—although, it can be safely assumed that it has had some such effect.[2]

This is not to say that Northern Ireland should not legislate to reform defamation law. Not at all. The unique characteristics of Northern Ireland make the need for reform here all the more pressing. In particular, the Assembly must take action to ensure better protection of ‘public interest’ speech in Northern Ireland.

In recent years, Sam McBride, Political Editor of the Belfast News Letter, and Ed Moloney, a journalist and author who has written extensively about the IRA and the Troubles, have both spoken out about the legal threats they have received, which ultimately were withdrawn. The cost of defending such threats can be high. Just last month, the media outlet openDemocracy published an article about how they spent two years fighting off legal threats from the Democratic Unionist Party politician Jeffery Donaldson “burning through thousands of pounds and precious time that would otherwise have been spent on our journalism.”[3] The case never reached the court, and was only dropped when the legal time limit for Donaldson to proceed the case ran out. Certainly, the court records show that defendants in Northern Ireland have little confidence in the so called ‘Reynolds defence’ that aimed to protect such speech at common law.[4] Since the appeal courts in England and Wales now have little use for it, after the 2013 reform, the common law defence will be starved of any further development in a less active Northern Irish court system.

Yet, public interest speech is as vital to Northern Ireland as it is to any other part of the world. The political structures that were established as part of the peace process in Northern Ireland mean that its citizens rely heavily on the conduct of government and public administration. At the same time, peace was only secured by power-sharing between two extremes of sectarian division, and the political system is still prone to the factious, guarded and hidden arrangements that sectarianism begets. On top of this, Brexit also revealed in stark terms Northern Ireland’s central location in a complex web of international governance. Decisions taken in the Northern Irish political system can and do have important consequence not just for the public here, but for a public beyond its borders.

Admittedly defamation law reform now presents some challenges that were not as prevalent when England and Wales adopted the Defamation Act in 2013. The growth of social media has provided greater opportunity for publication injurious to reputation, without necessarily pertaining to public interest, or meeting standards of responsible journalism. Any legislature considering reform today will find the margin of error has increased, and that it has become more challenging to strike the proper target of protecting free speech in the public interest, without promoting low-value speech that unjustly interferes with reputation. However, Scotland wrestled with these complexities in its own reform, the Defamation and Malicious Publication Bill, and after considered debate managed to pass a Bill in 2021, which strikes a fine balance between freedom of expression and right to reputation.

The responsibility now falls on Northern Ireland’s elected representatives. Whether they will answer it remains to be seen. The Member of the Legislative Assembly who developed the Bill, Mike Nesbitt, has informed the Speaker of the Secretary of State’s consent, and now waits for formal approval to introduce the Bill to the Assembly. Time is of the essence, however. The Assembly’s legislative mandate expires April 2022, and the schedule for the remaining year is already quite busy. There is, however, some basis for cautious optimism. The DUP—the party who historically were most opposed to defamation law reform—have recently undergone a restructuring and change in leadership, and perhaps the new leadership may be less opposed to reform. Moreover, Brexit, and the resulting severance of Northern Ireland from the rest of the UK, has left Unionism in crisis. Perhaps Unionists will recognise that bringing defamation law in line with the rest of the UK will achieve at least some regulatory alignment. Sinn Féin on the other hand, if the party is committed to democracy, justice and equal rights for all, should also support reform of defamation law in Northern Ireland.

The next year will tell the story. Ultimately, regardless of party or sectarian allegiance, if Northern Ireland’s elected representatives deny again the opportunity to reform defamation law and better promote free speech, that in itself will raise a question of significant public interest.

Dr Mark Hanna is a Lecturer at the School of Law at Queen’s University Belfast. His research focuses on defamation and privacy law. He has produced two podcasts on the subject of libel law reform in Northern Ireland, one with journalists, lawyers and civil society representatives (http://lawpod.org/?name=2020-11-30_defamation-ni.mp3 ), the other with leading academics (http://lawpod.org/?name=2021-03-30_defamation-law-reform-ni.mp3).

[1] Sam McBride, Nine years after DUP secretly blocked libel reform, NIO clears way for bill to protect free speech, News Letter, May 2021, https://www.newsletter.co.uk/news/politics/nine-years-after-dup-secretly-blocked-libel-reform-nio-clears-way-for-bill-to-protect-free-speech-3243327

[2] Gillian Halliday, RHI: DUP threatened me with legal action, says author McBride of book about boiler scandal, Belfast Telegraph, October 2019, https://www.belfasttelegraph.co.uk/news/rhi-scandal/rhi-dup-threatened-me-with-legal-action-says-author-mcbride-of-book-about-boiler-scandal-38599506.html; Jessica Ní Mhainín, The UK and media freedom: An urgent need to lead by example, FPC, December 2020, https://fpc.org.uk/the-uk-and-media-freedom-an-urgent-need-to-lead-by-example/

[3] Peter Geoghegan and Mary Fitzgerald, Jeffrey Donaldson sued us. Here’s why we’re going public, openDemocracy, May 2021, https://www.opendemocracy.net/en/opendemocracyuk/jeffrey-donaldson-sued-us-heres-why-were-going-public/

[4] Reynolds v Times Newspapers Ltd [2001] 2 AC 127. There the Appellate Committee of the House of Lords held that publications on matters relating to the public life of the community and/or the conduct of government (i.e., ‘public interest’) were privileged and that the requisite standard was ‘responsible journalism’. This was codified by section 4 of the Defamation Act 2013, which jettisoned the ‘baggage’ of the qualified privilege and simplified the defence to avoid some of the ambiguity of the judicial pronouncement in Reynolds.

This piece was produced as part of the Unsafe for Scrutiny project, which is kindly funded by the Justice for Journalists Foundation.