Proving reputational harm in Northern Ireland

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When it comes to defamation proceedings, Northern Ireland offers an attractive alternative to English courts for potential plaintiffs. Not all claims will be welcomed with open arms and sizeable awards, however, as two cases demonstrate.

Northern Ireland’s amended defamation law was introduced in 2022 in the form of the Defamation Act (Northern Ireland) 2022 (the 2022 Act), following the introduction of the Defamation Act 2013 (the 2013 Act) for England and Wales.

The 2022 Act does not replicate all changes introduced by the 2013 Act, however. While courts in England and Wales require plaintiffs to prove ‘serious harm’, no such obligation exists in Northern Ireland, making the threshold for proving defamation much lower, and giving victims of defamation greater opportunities to seek redress.

That is not to say, however, that defamation claims have a greater chance of success in Northern Ireland. Plaintiffs must still be certain that they can demonstrate “more than minimal” reputational damage – beyond hurt feelings – if they are to achieve both a successful case and suitable damages, something two key cases in the Northern Irish courts exemplify.

O’Neill v Carson: Why damages aren’t awarded for hurt feelings

Former Democratic Unionist Party (DUP) councillor John Carson was suspended in 2021 by the local government standards watchdog for posting “she will be put back in her kennel” underneath a photo of Sinn Féin deputy leader Michelle O’Neill.

While exchanging strong words has always been a part of politics, Mr Carson’s use of the word “kennel” was deemed defamatory by Ms O’Neill because of its associations with animals, dogs, and subservience. This, according to Ms O’Neill, left her feeling attacked as both “a professional and a woman”.

Following a successful judgment by default for claims of defamation in December 2022, Ms O’Neill pursued damages against Mr Carson for his “malicious, absolutely misogynistic” comments. In this instance, she was unsuccessful.

In a deferred judgment, Master Bell found that, despite Ms O’Neill obtaining a judgment in default, the words published by Mr Carson did not warrant an award of damages because they had no adverse impact on Ms O’Neill’s reputation.

“Ms O’Neill is a politician of considerable stature,” he said. “She represents Northern Ireland on the national and international political stage. By comparison, Mr Carson is a political non-entity on the national stage, never mind the international stage.”

Master Bell went on to say that a claim against Mr Carson’s “vulgar abuse” should never have reached the High Court in the first place, and that such claims even cause delays for more serious cases.

Mr Carson by no means walked away unscathed, facing legal costs of approximately £12,000 that would likely cost Mr Carson all of his savings and possibly his home”. Nevertheless, Ms O’Neill was also liable for her own court costs, as well as being unsuccessful in her claim for damages. As such, this case provides an important reminder that, while the courts are willing to restore a plaintiff’s reputation via public vindication, including a statement in open court or a public apology, they will not award damages on the basis of hurt feelings alone.

Kelly v O’Doherty: Vexatious on the balance of probabilities

More recently, a claim for defamation launched by Sinn Féin Member of the Legislative Assembly (MLA) Gerry Kelly has demonstrated how “scandalous, frivolous and vexatious” claims may not even make it to the Northern Irish courts.

On 20 August 2020 Mr Kelly issued a writ claiming damages against writer Malachi O’Doherty for comments he made in two radio interviews in 2019. In the interviews, Mr Malachi stated that Mr Kelly had shot prison officer John Adams in the head during an escape from Maze prison near Lisburn in 1983.

Mr Kelly had been one of 38 IRA prisoners who had escaped and was found not guilty of the prison officer’s shooting in 1987.

In subsequent books written by Mr Kelly, however, he discussed the escape and even admitted to being armed with a gun and threatening to shoot a prison officer.

This led Master Evan Bell to state that: “Even if one accepts Mr Kelly has not explicitly admitted pulling the trigger, the content of his books appears to make Mr Kelly civilly liable, on the balance of probabilities, for the shooting of Mr Adams.”

Mr Kelly’s case was subsequently characterised as SLAPP (Strategic Lawsuit Against Public Participation), with Master Bell stating that the proceedings were initiated “not for the genuine purposes of vindicating a reputation injured by defamatory statements, but rather for the purpose of stifling the voices of Mr Kelly’s troublesome critics.”

What do O’Neill v Carson and Kelly v O’Doherty teach us?

While the threshold for proving reputational damage in England and Wales is higher than that in Northern Ireland, this does not mean that plaintiffs will have the ability to bring claims – and achieve sizeable sums – without concrete proof of significant reputational damage.

In both cases, plaintiffs were unsuccessful in demonstrating reputational harm, either because of a pre-existing reputational imbalance in the public sphere, or because of information in the public domain.

As such, while a need to prove “serious harm” does not exist in Northern Ireland’s defamation law, it is nonetheless demonstrably important to show that the words complained of have done more than ruffled feathers, hurt feelings, or bruised egos. Plaintiffs need to show a lasting impact of those words, whether that is on their private life, their career, or their standing in society.

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