The ‘chilling effect’ of defamation law in Northern Ireland?
Research began in earnest last summer on defamation law reform in Northern Ireland, culminating in the article published in the Northern Ireland Legal Quarterly in December 2021. I had heard, mostly from journalists and civil society groups, that the law in Northern Ireland was having a chilling effect on free speech. I wanted to test it for myself on a more empirical basis.
There had been little research on the subject since Andrew Scott’s excellent report in 2016, which had concluded, albeit somewhat cautiously, that there was a chilling effect and that the law did need reform. However, the divergence between the law in Northern Ireland and the rest of the UK had only grown since then, and the provisions of Defamation Act 2013 (which marked the standard of reform) had only come before the courts in England & Wales for testing and interpretation from 2017 onwards. Therefore, the time seemed right to look at this again.
There was, of course, a question about how to measure the chilling effect of law on free speech. It is difficult to prove that law is the cause of anything in society, but a comparison with England & Wales seemed a sensible and practical place to start. The Defamation Act 2013 that was introduced in England & Wales was clearly designed to give greater protection to freedom of expression, it is generally accepted that its key provisions have been effective in that regard. The reform marked an obvious divergence with the law in Northern Ireland, as the region had declined to adopt the legislation as its own.
I was aware also that the Northern Ireland Assembly was considering reform in line with England & Wales, after Mike Nesbitt of the Ulster Unionist Party had introduced a Private Member’s Bill calling for such. It was not my primary motivation for the research, but I did hope that, if it were published in time, it would inform public debate about the issue. I had no idea at the time how the research would be treated by the Northern Ireland Department of Finance and the Committee charged with scrutinising the Bill.
The research focused on three specific areas of the law: the presumption of jury trials; the threshold of seriousness in defamation claims; and the public interest defence. It was apparent early on that these marked the key areas of divergence between England & Wales and Northern Ireland and had the most pronounced effect in terms of the balance of rights between parties to defamation claims.
In summary, the article demonstrates how the continued presumption of jury trials in Northern Ireland exasperates the costs and complexity of proceedings and postpones proper scrutiny of claims to late stages in proceedings. It shows that, while courts in England & Wales had been employing a more fact-sensitive threshold to claims since as far back as 2010, the presumption of jury trial in Northern Ireland continues to allow plaintiffs to advance proceedings, so long as it would not be ‘perverse’ for the court to consider the words complained of defamatory – a difference that causes many defendants in Northern Ireland to settle early. It shows further that, even when there is opportunity to apply a more substantive threshold, the courts in Northern Ireland have generally eschewed the fact-sensitive approach, to allow plaintiffs to recover on the presumption of harm. Finally, the article reveals that there has never been a successful public interest defence in Northern Ireland, and that only a relatively restrictive defence is available to defendants in this regard.
The article concludes that, at least in these three important areas of law, the law in Northern Ireland is having a definite chilling effect on freedom of expression. Despite all else that that may achieve in dealing with low-value speech on the internet, when one considers the common practice of public officials in Northern Ireland issuing defamation writs under this system to supress political speech, the problem is hard to ignore.
All research should surprise itself, and there were three surprises at the end of this project. The first was just how much the common law in England & Wales had done to pave the way for the reform that was achieved with the Defamation Act 2013. The common narrative around that reform was that it was at the behest of civil society groups, or that it was a legislative convenience of the Conservative–Liberal Democrat Coalition Government at the time. But, on analysis, it is clear that the appeal courts in England & Wales had drawn up the blue-print for much of the eventual reform in the 2013 Act.
The second surprise was how Northern Ireland had begun to diverge from these developments in England & Wales from as early as 2010, three or four years before the conspicuous legislative split. It is perhaps a reflection of the ambiguity of the judicial principles involved that it has largely escaped attention that the courts in Northern Ireland have ignored key developments in the jurisprudence of the EWCA, and even the Supreme Court, in regard to these three areas of defamation law. It would be too simple to blame the Northern Ireland Queen’s Bench for this, however. The courts are limited by the arguments put before them by counsel, and it is perhaps a reflection of the complexity of press ownership in Northern Ireland that counsel for defendants may approach Northern Ireland cautiously, or simply that defendants based in London or Dublin may not see it as somewhere worth pushing the envelope.
The article concludes with the argument that the Assembly should give serious consideration to reform in those areas. Even in November of last year that seemed unlikely, however. In January of this year, the Finance Committee recommended removing its key provisions on serious harm and jury trials, and the Bill has only proceeded on that basis (although it still includes the bolstered public interest defence). The article presented an alternative argument, however, that the courts in Northern Ireland either follow the developments in the common law in England & Wales from 2010 to 2014, or that they declare a divergence in the interest of legal clarity. With the lack of development on serious harm and jury trials, that argument stands.
As a final word of thanks, the Northern Ireland Legal Quarterly, as Northern Ireland’s flagship legal journal, was an obvious choice of platform for the research. My sincere thanks to Mark Flear, Marie Selwood, Clayton O’Neill and everyone at the journal who helped promote the article.