The reform of defamation law in Northern Ireland has been a long awaited and much-contested issue since the introduction in England and Wales of the Defamation Act 2013 (the 2013 Act). We last discussed this issue as part of our Defamation update in March, which can be accessed here.
Since then, and after much consideration and significant amendments to the draft bill, the Defamation Act (Northern Ireland) 2022 (the 2022 Act) was enacted on 6 June 2022. In short, while the 2022 Act does share similarities to its English counterpart, and can be seen as a step in the right direction, more fundamental reform will have to wait.
The good and the bad
The most important alignment with the 2013 Act is that of the defences contained in sections 1-3; Truth, Honest Opinion and Public Interest. Codification of the public interest defence and applicability of post 2013 case law on the subject will offer some welcome clarity and reassure journalists and media organisations who have at times found the Reynolds principles somewhat difficult to navigate in Northern Ireland.
One of the most notable amendments falls under section 7 of the 2022 Act which ends the presumption to a jury trial in cases of defamation. In practice, jury trials in NI defamation proceedings had become rare – whether due to the number of claims settling before trial or agreement by the parties to proceed with a judge only. Nonetheless, this is a significant milestone and gives hope that early applications, particularly for determination of meaning, will be seen more and more. Addressing the key issues in dispute at an early stage can significantly reduce costs on both sides and, as can be seen by MacAirt and Others v JPI Media last year, is something which the NI judiciary has not shied away from.
Many of the 2013 Act’s most significant clauses have, however, been omitted. The calls for Northern Ireland to adopt the same ‘serious harm’ threshold as is currently applied in England and Wales were ultimately ignored. Similarly, section 5 of the original draft bill, ‘Operators of Websites’, did not make its way in to the 2022 Act. Its exclusion raises questions surrounding the adequacy of the 2022 Act’s engagement with the challenges to defamation law that arise from an increasingly online world. This is an issue amplified by the removal of section 8, the single publication rule. It was anticipated that Northern Ireland’s multiple publication rule might be abolished to bring the law into line with that of England & Wales and Ireland. However, this has been maintained by the 2022 Act, meaning that a new and separate cause of action will accrue every time the publication is downloaded or accessed within the jurisdiction.
The 2022 Act’s sole original clause, and the one likely to be of interest to advocates of wider-ranging reform is section 11, ‘Review of Defamation Law’. This provides that the Department ‘must keep under review all relevant developments pertaining to the law of defamation‘ and publish a report, along with recommendations for further reform, within two years of the bill receiving royal assent. It is unclear how this will be borne out. Although, if nothing else, section 11 may provide the time that was lacking during the passage of the bill for more comprehensive debate and comparative evaluation of defamation law elsewhere.
In the meantime, it’s encouraging to see steps are being taken to reform the NI Pre-Action Protocol for Defamation following a consultation issued by the Office of the Lady Chief Justice. At present the draft protocol closely reflects the position in England & Wales. It will be interesting to see if, unlike the fate of the draft bill, it stays that way.
Ciaran O’Shiel is a partner and Holly Johnston is a Trainee in A&L Goodbody’s Belfast Litigation & Dispute Resolution team.