The Defamation Act (Northern Ireland) 2022 – a halfway house?
Gateley Legal NI
Following frequent speculation over the past number of years, defamation law in Northern Ireland has been recently amended with the enactment of the Defamation Act (Northern Ireland) 2022 (the 2022 Act).
The context for reform of defamation law in Northern Ireland
A key catalyst for debate around the position of defamation law in Northern Ireland was the introduction of the Defamation Act 2013 (the 2013 Act) for England and Wales.
The 2013 Act provided helpful clarity in a number of respects, including by:
- setting out clear statutory defences to defamation, which were previously dealt with under the common law, including a defence for website operators;
- removing the presumption of a trial by jury;
- codifying the ‘single publication rule’.
Significantly, the 2013 Act also introduced a ‘serious harm’ test, requiring a claimant to prove that a statement caused, or was likely to cause, serious harm to the reputation of a claimant before it would qualify as defamatory. This represented a significant departure from the previous position under the common law, the effect of which has been to increase the burden on a claimant seeking to successfully pursue a legal action for defamation in England and Wales.
The 2022 Act falls short in replicating the full extent of the 2013 Act. In particular, no requirement to prove ‘serious harm’ has been introduced in Northern Ireland. The consequence of this is that the threshold in Northern Ireland for a plaintiff to prove defamation remains lower than in England and Wales. This is good news for claimants with a presence across both, or multiple, jurisdictions who can establish a proper forum for bringing a defamation action in the Northern Ireland High Court.
In addition, it is surprising to note that the following aspects of the 2013 Act have not been replicated or followed in the 2022 Act:
- there is no clarification around specific defences open to website operators;
- there has been no codification of the ‘single publication rule’.
What has changed?
Whilst the 2022 Act is unlikely to alter, fundamentally, the advice provided to plaintiffs on the merits of pursuing actions in defamation, the implications of the Act are not immaterial. Rather, the following changes are of note:
- A presumption against jury trials has now been enacted. Whilst jury trials have become relatively uncommon in defamation cases in Northern Ireland, the formalisation of this position is welcome. It is likely that we will see increasing numbers of ‘meanings applications’, in which defendants seek to have actions dismissed on the basis that the words or phrases complained of could not possibly bear the particular meaning attributed to them.
- The introduction of statutory defences of: (1) truth, (2) honest opinion, and (3) publication on matters of public interest.
Increased clarity being brought to these defences is particularly advantageous for defendants, who previously had to rely upon case law to make out a defence, which carried with it greater risks and uncertainty of outcome.
The future of defamation law in Northern Ireland
An interesting aspect to the 2022 Act is the statutory mandate that the Department of Finance (the Department) keeps under review all “relevant developments pertaining to the law of defamation as it considers appropriate.” Section 11 further mandates that the Department prepares a report on the findings of their review and of the operations of the Act. The discretion afforded to the Department as to what developments it “considers appropriate” leaves the future direction of defamation law in Northern Ireland very much unknown. This context does, however, provide encouragement for continued public debate and discussion to influence the future direction of travel in this area.