The Deficiency in Defamation Laws in Northern Ireland and the Protection of Human Rights
30th March 2022
By Alyssa Andrade Palmieri , Queen’s University Belfast
Modern society is continuously evolving to accommodate an ever-changing mindset. With this, it is essential for the law to reflect these changes accurately, and more importantly, to reform the law to suit the advancements in current thinking. Freedom of expression is the fundamental human right to hold opinions and ideas without unlawful interference from public bodies . This human right has been codified throughout legislation in the United Kingdom and Northern Ireland to better protect individuals from having their rights infringed. Defamation law is a growing topic of debate across various interconnecting sectors. With access to the internet and the use of social media platforms exponentially increasing in the last decade, defamation law has been more frequently discussed in terms of its explicit protections for expression. The current Northern Irish legislation governing defamation remains outdated and weak, predominately with regard to freedom of expression. Defamation law must be reformed, and protections for freedom of expression must subsequently be expanded to reflect the current era considering modern media usage positively.
The law of defamation in Northern Ireland is regulated by the Defamation Act (Northern Ireland) 1955, which includes some provisions from the Defamation Act of 1952 adopted in England and Wales. Further reform was required as years passed, which concluded in the adoption of the Defamation Act of 1996, extending most of the provisions to Northern Ireland. The 1996 Act is where defamation law currently sits in Northern Ireland and is the common law position that existed across the United Kingdom before 2013. Protection of freedom of expression in these Acts exists under the provisions outlining fair comment, responsibility for publication, the Reynolds defence, and the meaning of a statement. The Human Rights Act 1998 domesticated the European Convention on Human Rights into UK law, including specific articles outlining the fundamental right to freedom of expression and its components.
Before 2013, the UK was unified in its legislation and approach to defamation law. However, the Defamation Act 2013 reformed how the UK would approach defamation issues in the civil and common law. The Northern Irish Executive refused to extend the 2013 Act to Northern Ireland, thus severing ties with England and Wales in this area of the law. An extensive debate has explored the reason behind the refusal to extend the Act to Northern Ireland; however, the unwillingness created a divide in how defamation cases are heard throughout the UK. The current law in Northern Ireland lacks sufficient safeguards and defences to defamation claims accessible to defendants. Because of this, the defences available in defamation cases are likely to fail under Northern Irish legislation, constructing a system favouring claimants which further limits rights to freedom of expression. The current system is best portrayed in Elliot v Flanagan , where the defendant was sued for libellous comments made on Twitter toward the plaintiff. The court ruled in favour of the plaintiff, further emphasizing what academics are calling a plaintiff favourable regime in Northern Ireland. The time for reform in the law of defamation in Northern Ireland is now as the current social climate continues to grow extensively through internet media platforms, and the present law lacks significant protection for freedom of expression.
The Defamation Act 2013 crucially expands areas of defamation law that previously lacked specific protections for freedom of expression. Provisions that establish a test for severe harm and expand the statutory public interest defence are among the essential amendments that were adopted to protect freedom of expression. The development of a serious harm test requires plaintiffs to demonstrate that the defamatory statement has seriously harmed them. In Northern Ireland, many claims fail to reach the courts due to the absence of a harm threshold where the sheer risk of defamation actions can curb freedom of speech. Adopting this test in Northern Ireland would aid in filtering out frivolous claims where minimal or unclear reputable damage from a defamatory comment can be proven.
The expansion of the public interest defence is needed to safeguard all professionals who publish work for the public interest, which further protects them from defamatory suits targeting their published work. With these new provisions not extending to Northern Ireland, the state is left open for what is known as libel tourism, where foreign nationals use Northern Irish courts to successfully sue publications that may only distribute a few copies. The current law in Northern Ireland has a detrimental impact on freedom of expression because it acts as a form of censorship on the public. Professionals such as journalists, authors, and other publishers are often deterred from publishing any content they believe could be found to be defamatory because of the lack of an effective defence. This has a negative impact on freedom of expression and is a catalyst for censorship because professionals become reluctant to produce and comment on controversial topics from which they could suffer extensive economic losses. Reporting on vital research while holding powerful entities and public bodies accountable for their actions is essential to public knowledge, especially when there is a growing spread of misinformation throughout society. Strategic Lawsuits Against Public Participation (SLAPPs) are legal actions used by powerful entities to silence publishers. The increasing use of SLAPPs directly impacts freedom of expression rights because of the lack of preexisting safeguards to protect matters of public interest. The need for a test for harm and an expansive defence of public interests proves imperative for Northern Ireland in the wake of a community engulfed by the internet and social media. The increasing popularity of social media platforms indicates a rising necessity for reform of the law.
Defamation law in Northern Ireland lacks comprehensive reforms, which, if implemented, would likely shift the law to protect the right of freedom of expression. Although the Defamation Act 2013 further develops the law of defamation in England and Wales, there are still existing gaps where continued reform is necessary. Northern Ireland can expand the law passed the limits of the 2013 Act and adopt the most up to date legislation in the UK. The 2013 Act falls short in outlining a higher threshold of harm for corporations and public authorities while also failing to increase motivation to use mediation techniques to resolve disputes. The Human Rights Act 1998 implements the right to reputation, derived from Article 8 ECHR under the right to a private and family life, into domestic law. However, companies do not justify reputation as part of personal identity and psychological integrity, and this right can therefore not be applied to the reputations of corporations. Although corporations have other ways to sue for defamation, the threshold for harm should be significantly higher than what is required for an individual because they are considered public bodies. Further, there should be increased restrictions on public figures and bodies bringing defamation claims due to the inherent nature of the profession or organization, as further explored in the Defamation and Malicious Publication (Scotland) Act 2021.
As previously stated, many defamation cases end in settlement rather than a court hearing. Limited access to justice and the high costs of defamation cases are the underlying issues that lead to settlement regardless of wrongdoing. With proper law reform, defendants will be more successful in court, alleviating some of the financial burden defamation disputes place upon individuals. However, reform could lead to a rise in overall cases, which the court would have to address. ADR would be a cost-effective and time-efficient solution to help deal with the rise in defamation cases following legal reform. To promote this shift, the government must create rules that allow the courts to recommend alternative practices before and during litigation and ensure that the courts are accessible to everyone. These recommended additions to the 2013 Act to address the gaps in the legislation would progress Northern Irish defamation law beyond the current legislation in England and Wales and further protect the fundamental right to freedom of expression.
Present day society is advancing towards a media-faced culture. The current law governing defamation in Northern Ireland contains little protection for freedom of expression. Reforms to the outdated law are required to ensure necessary safeguards are in place for to protect both parties in defamation disputes. The 2013 Act is an essential starting point for reforms in defamation law in the Northern Ireland; however, existing gaps remain where the legislation could further preserve the right to freedom of expression. Northern Ireland has an opportunity to initiate positive change in defamation law and be a leading legislator, one which other countries could look up to . The increased usage of social media platforms opens the door for an unprecedented rise in defamation claims, leaving the court to make decisions that may heavily impact the future of media law and how society interacts with it. The ability to freely express opinions and ideas must be protected at all costs. The law is obligated to preserve public rights and should reflect the evolving issues in a continuously changing world. The law of defamation must grow to reflect these changes accurately and further ensure the fundamental human rights are protected.