Northern Ireland has never shown much enthusiasm for the Defamation Act 2013. When it first came on the agenda for debate there, the Finance Minister at the time declined to table it and declared that ‘Northern Ireland had no plans to review its defamation law’. However, it is only now that the Northern Ireland Assembly has been formally tasked with contemplating similar reform (see the Northern Ireland Defamation Bill) that the full scale of hostility towards the 2013 Act has come to the fore.
Leading lawyers and politicians there are critical of the reform adopted in 2013 by England and Wales, and eight years of practical experience of the legislation only seems to have entrenched their opposition.
No doubt we must wait for the next edition of Gatley on Libel and Slander (due March 2022) for a proper appraisal of how the 2013 Act has performed, however it is hard to ignore the criticisms of the legislation that are emanating from Northern Ireland these days.
The singular opposition to the reform there not only has a disproportionate effect in the rest of the UK—for example, despite comprising just 3% of the population of the UK, Northern Ireland typically generates 20% of claims received by the BBC—but the current criticisms of the 2013 Act at Stormont constitute one of the most bruising engagements the legislation has faced so far. The appeal courts in E&W may have had to thrash out the meaning of its provisions in case law over the last several years, but none of that proved the bloody contest the legislation has faced in Northern Ireland. Although similar legislation was adopted in Scotland last year, it enjoyed the backing of the SNP there, who were able to shepherd it through the legislature without considerable resistance. In Northern Ireland, the question of reform has only come about through a Private Members Bill, and those in power appear to oppose reform now as much as they did in 2013, if not more.
There has been criticism of various aspects of the Defamation Act 2013, but the provision which has undoubtedly caused the most consternation there is the serious harm test contained in s 1, and the corresponding clause 1 of the Northern Ireland Defamation Bill. This is somewhat surprising and begs reflection. After all, the question had already been tested in England and Wales all the way up to the Supreme Court in Lachaux, and although its various implications could not be settled entirely, the questions that initially dogged it, and the muddle the Court of Appeal got itself into over it, were ostensibly put to bed by Lord Sumption’s judgment. When Scotland was confronted with the question of whether they should adopt such a serious harm test, they took confidence in that interpretation, and adopted the provision as necessary.
Northern Ireland has taken little comfort in those developments, however. For example, an eminent lawyer with extensive practice experience in London, Dublin and Belfast had this to say about the serious harm test in his oral briefing before the legislative committee: ‘What is serious harm? I do not know. I have asked many times, and I get a different answer every time.’
Another leading barrister in Belfast did seem to know what it is, but presented it a ‘too heavily skewed in favour of publishers’, and as unnecessary escalation of costs and complexity, since ‘the common law provisions gave already established mechanisms to get rid of trivial claims [i.e., a procedural threshold].’
One senior Member of the Northern Ireland Legislative Assembly, and a respected QC, warned that the serious harm test constituted nothing less than a ‘charter for lies’!
These are serious allegations about the serious harm test, and the political and legal system that adopted it. Does no one there really know what the serious harm test is? Is it an unnecessary legal complexity skewed in favour of defendants? Is it a ‘charter for lies’?
These are questions that people in England and Wales should give consideration to in taking stock of s 1 of their Defamation Act 2013. I invite the comment and corrections of those with experience of the provision in s 1, but I would submit the following points in relation to it.
A threshold of harm, and indeed defamatory meaning in general, is not something that can ever be perfectly defined. If we want that, we would have to presume harm in all cases. But the inchoate nature of the principle right involved—reputation—means there must always be some allowance for inherent harm. For that reason, ‘inherent probabilities’ were included in the Supreme Court’s definition, along with ‘the meaning of the words, the situation of the claimant, and the circumstances of publication’.
Nonetheless, it was the intention of both Parliament and the Supreme Court that the sliding scale should be moved, as far as possible, away from reliance on inherent probabilities and towards a focus more on factual evidence of harm. In that sense at least, we have never been clearer about what is involved in the threshold of seriousness. The move toward objectivity and sensitivity to the facts must afford greater certainty about the threshold of harm—that is the whole point of s 1. Of course, there can be no general, a priori definition because it must be tested on the facts of each case, but that is hardly more obscure than the idea that a judge would infer harm from the facts of a case.
Despite the advance made in moving the focus to objective fact of harm, the change, as Lord Sumption pointed out in Lachaux, hardly constituted a ‘revolution’ in the law. Unfortunately, he did not go into to detail about why it is not so revolutionary, its history in the common law, for example, and particularly the development of seriousness and fact-sensitivity in Thornton and subsequent cases.
Equally, though, Lord Sumption could have meant that it was not revolutionary in its effect. The requirement that the claimant must demonstrate harm as a fact has no doubt raised the bar for claimants, but only slightly. Many of the cases that were actionable before, would still be actionable now. Northern Ireland proves a valuable control group for testing this out. In the last seven years, the only case which was knocked out on s 1 in England and Wales that arguably would have passed under Northern Ireland’s lower threshold test, is Nwakamma v Umeyor. The only case that succeeded in Northern Ireland that may have been knocked out under s 1 in England and Wales is the case of Coulter v Sunday Newspapers Ltd. But then, who knows? Maybe the claimant in that case could have proved as a matter of fact that the accusation that he was a ‘scrooge’ did cause, or was likely to cause him serious harm?
Even if its effect is modest, though, this is not to say s 1 is unnecessary. The other right that is heavily involved in defamation law—freedom of expression—can hardly be protected by a procedural threshold alone. Of course, claims should be denied if the statement complained of has very limited publication, or if there has been some other procedural impropriety. But courts must also scrutinise claims on a more substantive basis, to determine whether the statement complained of has actually harmed the claimant (allegations, for example, that the claimant is a ‘gold digger’, or a ‘scrooge’), and thus whether it is therefore necessary or proportionate to interfere with the defendant’s right to freedom of expression.
Moreover, a fact-sensitive approach to a substantive threshold will obviously generate some litigation and trial, and, by its nature, it may not prove as amenable to easy determination as the procedural threshold would. However, the problem should not be exaggerated. The courts have proven adept at managing the complexity involved in trying s 1 at preliminary stages, any ensuing complexity is offset by doing away with jury trials and other complexities that persisted under the old law, and so much of our communication is now so heavily documented and recorded in data that evidence of harm is increasingly available in defamation cases.
Finally, what about the charge that s 1 is a ‘charter for lies’?
Perhaps it will allow some defendants to tell lies with impunity, but then so too would the previous test based on inference of harm, so too does the procedural threshold, and so too will any test that does not simply presume harm in all cases. The issue is not really about truth or lies, but rather whether the lies told in fact harm the claimant’s reputation. In that sense, s 1 could equally be called a ‘charter for truth’. But again, the important distinction is not between truth and lies, but between harm to the claimant’s right to reputation and harm to the defendant’s right to freedom of expression.
The serious harm test strikes a balance between those rights. It was a necessary development in the law for that purpose. That is why it was adopted, and we can be confident that, despite its imperfections, we do know what it is, and what it aims to do.
I submit that, if nothing else, Northern Ireland’s singular opposition to the principle has taught us that much about s 1.
Mark Hanna, Queen’s University, Belfast