Analysis: Stormont defamation bill would return Northern Ireland to UK alignment
WITH the latest stage in the progress of a private member's bill on libel law reform in Northern Ireland heard in the Stormont assembly yesterday, Bimpe Archer looks at what the changes could mean.
THE defamation bill going through the assembly would return Northern Ireland to alignment with England and Wales - if passed.
The reform of libel laws in Scotland in April has left the north a defamation outlier, now alone in having freedom of speech governed by a mix of antiquated case law and statutes.
Scotland's reformation came eight years after the Defamation Act 2013 brought simplification and modernisation to the courts of England and Wales.
UUP assembly member Mike Nesbitt introduced his defamation bill in June after campaigning for the changes for eight years. His Private Member's Bill does not seek to reinvent the wheel, but rather to appropriate it.
The former broadcaster has responded to criticism that it is "a straight replication" of the Westminster legislation by framing it as a "starting point" for changes which can be amended at Stormont's own committee if deemed necessary.
Indeed when the Defamation and Malicious Publication (Scotland) Act 2021 was enacted, negligible divergence was sought by its nationalist government.
The point of Mr Nesbitt's bill is to winch libel reform from the swamp of determined apathy it has been languishing in for the best part of a decade.
A previous opportunity to bring in changes came five years ago when a report commissioned by the Executive recommended Northern Ireland's defamation law be brought substantially into line with the law in England and Wales.
Produced by legal academic Dr (now Professor) Andrew Scott, it was in favour of the introduction of a new threshold requiring claimants to show they have suffered "serious harm" before suing.
This is also in the 2013 Act and Mr Nesbitt's recommended bill - and has garnered the fiercest opposition.
It changes the test of what makes a statement defamatory, with an onus on the injured party to prove to a judge they suffered serious harm from it before the case can proceed.
This more rigorous test is designed to get rid of `trivial' claims, which are unlikely to proceed to court but can currently hang over organisations and individuals for years.
However, opponents claim the test is too stringent and the term `serious harm' too broad to protect private citizens who have suffered reputational damage.
The 2016 review also recommended the removal of the presumption in favour of jury trial in defamation cases and instead libel and slander would be tried without a jury unless a judge deems it appropriate.
Professor Scott's review challenged the current `single meaning' rule, which requires the court to select just one interpretation from the range of possible meanings of a publication.
This was also identified as increasing the complexity (and thus the cost) of cases and subsequent damages.
He recommended so-called `discursive remedies' such as corrections, retractions, rights of reply instead of damages.
Mr Nesbitt's bill rejects this in favour of sticking with the England and Wales Act, the UUP MLA believing the recommendation would create a new avenue for possibly vexatious, time-consuming disruption.
The bill also attempts to bring Northern Ireland libel law into the digital age, with more protection for those running websites who can show they are not the authors of defamatory posts.
However, opposition against the bill has produced some unlikely alliances within the assembly and as things stand does not look likely to pass before this mandate expires.
Meaning the modernisation of defamation law in Northern Ireland is likely to still be some way off.