NESBITT REPORTS OVERWHELMING SUPPORT FOR LIBEL REFORM
- Bigger response than that to Ministry of Justice's UK-wide Consultation
- 90%-plus support for reform
- Results being forwarded to Law Commission's review
Ulster Unionist Leader, Mike Nesbitt MLA, has reported overwhelming support for reforming Northern Ireland's antiquated Libel Laws, following his public consultation.
Mr Nesbitt explained: "The right to freedom of speech is fundamental to our constitution. In April 2013, the UK Government passed The Defamation Act, with unusual cross-party support at Westminster, to update our statutory right to freedom of speech, balanced by the need to protect against unjustified attacks on an individual's reputation.
"To my mind, this reform is essential. The libel laws are so old they pre-date the Internet, which is now the primary source of information for so many of our citizens.
"Inexplicably, Sammy Wilson MLA, who was the relevant Northern Ireland Executive Minister at the time, dismissed the idea of extending the new law to Northern Ireland, without even consulting his Executive colleagues, never mind the Assembly. He did this despite the knowledge that the United Nations had been highly critical of the status quo regarding libel laws in the UK.
"The result is that Northern Ireland is currently a place apart within the United Kingdom, and not in a good way. Our people - all our people - are at a disadvantage, because of the far-reaching implications of operating laws that are different to England and Wales."
The Strangford MLA undertook the consultation as preparation to reverse Mr Wilson's decision by way of a Private Members Bill at the Northern Ireland Assembly.
"This issue is much more important than many people realise, because it impacts on our economy as much as it does on any individual libelled by a media report. The key implications include:
- Media outlets will either have to consider publishing editions of their newspapers, programmes and websites that are sanitised to meet Northern Ireland's specific defamation laws, or not publish in NI at all;
- Our Universities will struggle to attract the best researchers, as scientists and academics will be put off by the fact that Northern Ireland does not offer the same protection for peer-reviewed analysis as is afford by the 2013 Westminster Act;
- The Executive's drive to establish Northern Ireland as a global centre of excellence for the new Creative Industries will be damaged;
- Some of the existing 6,000 local jobs in publishing and media will be at risk, while the prospects for investment in new high-end jobs by cutting-edge companies will be diminished;
- There is a real possibility the rich and powerful will use Northern Ireland as the equivalent of a "Tax Haven", such individuals becoming what is commonly referred to as "libel tourists".
"Reforming our libel laws will help make Northern Ireland a normal, progressive, attractive society.
"I seek to promote robust debate among scientists and academics, without an unreasonable threat of legal action for expressing an honestly held and researched opinion. I also think it is absurd to support the current laws, given they were written decades before the invention of the World Wide Web.
"This is about protecting Freedom of Speech in Northern Ireland. This is particularly important to us, because our current system of government means we do not have a second chamber, like the Lords in London, who scrutinise and revise legislation coming out of the Commons. Nor do we have an official opposition, a role performed to a large extent by the media, many members of whom tell me they face regular threats of legal action for defamation from a particular local political party.
"My consultation indicates only 1% of the population agrees with Sammy Wilson in thinking the laws of defamation are as good as they can be."
Mr Nesbitt's Consultation attracted a higher level of interest and response than the original consultation by the Ministry of Justice, who ran a UK-wide consultation ahead of the 2013 Act. It received 129 responses to the draft Bill and 75 responses to a questionnaire. Mr Nesbitt received 209 responses to an online questionnaire and several dozen individually tailored submissions.
Key results from the consultation indicate:
- 96% want a higher threshold before a defamation case can be brought. The proposal is that those claiming they have been defamed must prove serious harm, and in the case of bodies trading for profit, that there has been, or is likely to be, financial loss;
- 96% believe Northern Ireland's defamation laws should include a defence of publication on matters of public interest;
- 99% believe it is important to give academics and scientists greater protection for offering honest opinion on matters that are part of their areas of expertise. This would offer qualified protection, based on proper consultation and peer review in advance of publication, and will make it easier for professionals to take on well funded and resourced organisations such as multi-national drug companies;
- 97% believe the terms of the 2013 Defamation Act will protect Northern Ireland from the threat of so-called "Libel Tourism", a phenomenon the few opponents of libel law reform in NI argue will result from any such reform;
- Over 90% believe the law should offer more clarity on the responsibility of website operators for comments posted on their sites, with operators required either to identify the author of defamatory remarks, or take responsibility for the publication.
The area where there was least clarity was regarding trial by jury for cases of defamation. That said, 77% supported a change in the law to the position where defamation cases are tried without jury unless otherwise ordered by a court.
Mike Nesbitt commented: "This is the matter I thought might provoke most debate, and it did, as non-jury trials have a particular resonance in the recent history of Northern Ireland. I never proposed we simply 'cut and paste' the Westminster Act, any more than I would for Welfare Reform or any other legislation; there would be little point in funding such an expensive devolved government if we did not shape the law to reflect the best interests of our people. The question of whether or not jury trials form the best mechanism for defamation cases should be subject to further consideration."
Mike Nesbitt says he was impressed by the quantity and quality of responses to this consultation, with over 200 individuals and organisations responding to his survey, and dozens forwarding their own thoughts by email and post. Contributors included:
- Serving and retired medical professionals, who recognise the danger of multi-national companies utilising the current gap in legislation to maximise the potential of Northern Ireland's courts to protect their interests;
- Serving and retired academics who fear the best researchers, lecturers, fellows and professors, will find Northern Ireland too cold a house, and avoid our local universities, in favour of England and Wales, where their research and opinions will be more warmly greeted and debated;
- Economists who fear the Number One objective of the Northern Ireland Executive, that of rebalancing and growing the private sector, will be hampered;
- Media outlets, who recognise the economic impact of not reforming Northern Ireland's laws, which, in brief, could result in organisations deciding not to publish in Northern Ireland;
- UK politicians, who recognise the negative impact on the status quo.
As Lord Black, Executive Director of the Telegraph Media Group, put it at the launch of Mike Nesbitt's Consultation period:
"When politicians set their face against the future, investment and jobs suffer. Over 4,000 people work in publishing here, while another 2,000 work in the broadcast media. Some of those jobs will be at risk if media companies decide that it is now too dangerous to operate in a jurisdiction that stifles freedom of expression and move their operations."
Lord Black also warned the failure to reform Northern Ireland's libel laws would deter interest from Foreign Direct Investors, the very companies we seek to create new high-end jobs, because of the commercial dangers of operating in a region where the laws of defamation are fifty years or more out of date.
He also highlighted the chill factor for "citizen journalists", equipped with smart phone technology, including instant access to publishing on social media.
In media terms, Lord Black is stark in his assessment: "UK publishers will face a very difficult choice. They will either have to edit each edition of their newspapers separately for distribution in Northern Ireland, probably sanitising the copy in the process in order to protect
themselves. This means that readers will never get the full story. Or else – perhaps for the simple commercial reason that this would be a very expensive job – they will have to withdraw their papers from sale here. I hope it will never come to that, but this is a decision that all UK publishers will have to confront if Mike Nesbitt’s Bill does not proceed to the statute book."
Since stating his intention to start the process of introducing a Private Members Bill to the Assembly, Sammy Wilson's successor as Minister for Financer and Personnel, Simon Hamilton MLA, had referred the matter of the reform of libel laws to the Northern Ireland Law Commission.
The Ulster Unionist Leader said: "I accepted an invitation from the Law Commission to discuss my interest in this matter. My plan was that my next step would be a second phase of engagement with "super consultees", in other words, bodies with a professional interest in defamation.
"Given the Law Commission are now committed to the same process, I see no sensible reason to replicate their work, so I have offered to hand over my Consultation results to the Law Commission and they have accepted my offer.
"I did this on the explicit understanding from the Law Commission that they will make public the report they submit to the Minister and that this will happen in a matters of months, not years.
"I thank all who contributed to my Consultation process, and urge Minister Simon Hamilton to pay heed to the huge level of consensus on the need for reform, and not to look over his shoulder at the opinion of his predecessor and potential future party leader. This is a moment to do what is right for Northern Ireland and in this regard, doing what is right is to bring forward positive, progressive change."
Notes to Editors:
Guy Black, Baron Black of Brentwood, is Executive Director of the Telegraph Media Group and a Conservative Life Peer.
Westminster passed the Defamation Act 2013 in April 2013. Sammy Wilson MLA, as Minister for Finance & Personnel, decided not to propose the Legislative Consent Motion (LCM) that would have brought Northern Ireland into line with the new 2013 Act.
The United Nations Human Rights Committee, in its Sixth Periodic Report on the UK, 2008, concluded:
‘The Committee is concerned that the State party’s practical application of the law of libel has served to discourage critical media reporting on matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work, including through the phenomenon known as “libel tourism.” The advent of the internet and the international distribution of foreign media also create the danger that a State party’s unduly restrictive libel law will affect freedom of expression worldwide on matters of valid public interest.’
Mike Harris, Libel Reform Campaign:
‘Incredibly, there was a bigger response to Mike Nesbitt's consultation on libel reform in Northern Ireland than there was to the Ministry of Justice's consultation paper, which originally covered the whole of the UK. This shows there is clear demand for a Bill to reform the law. While the law remains the way it is, it will continue to chill free speech in Northern Ireland and give libel bullies a powerful tool to silence people who speak out in the public interest.’
Jo Glanville, Director, English PEN:
‘The response to Mike Nesbitt’s consultation is an overwhelming indication of public support for libel reform in Northern Ireland. The range of individuals and organisations calling for change demonstrates that this is a pressing concern across society. It’s essential that the Executive recognises the strength of public feeling and ensures that there are no unnecessary delays to implementing reform.’