Defamation Bill: Second Stage

Private Members' Business – in the Northern Ireland Assembly at 11:00 am on 14th September 2021.

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Photo of Mike Nesbitt Mike Nesbitt UUP 11:00 am, 14th September 2021

I beg to move

That the Second Stage of the Defamation Bill [NIA 25/17-22] be agreed.

Photo of Alex Maskey Alex Maskey Sinn Féin

In accordance with convention, the Business Committee has not allocated any time limit for the debate. I call Mr Nesbitt to open the debate on the Bill.

Photo of Mike Nesbitt Mike Nesbitt UUP

Thank you very much indeed, Mr Speaker. I can well imagine that there are those not only in the House but further afield who will jump to conclusions about my motivation for bringing forward this Bill. They will say, "It's jobs for the boys. Here is a man looking after his erstwhile colleagues and chums in the media". I assure the House that that is not the case. My interest in defamation was generated by my years as a broadcast journalist, but my motivation can be summed up in one word: rights. This is about rights: your rights, my rights and, most importantly, the rights of the people whom we are elected to represent.

As is often the case when we debate rights, we are not discussing one absolute right but rather a number of qualified rights that to some extent compete and between which there is some tension. In this case, there are two qualified rights: the right to freedom of expression on the one hand and the right to protect our reputation on the other hand. They are qualified, and I have heard Members talk about the qualification on the freedom of expression in these terms: it does not give you the right to go into a crowded theatre and shout, "Fire, fire, fire", when there is no fire. Indeed, the right to protect your reputation is only a right to protect it from untrue, unwarranted or unfair imputation. We have to balance those two rights, and that is what I would like the House and the Committee for Finance to form a view on.

Since the beginning of recorded time, we have not really changed how we communicate: we draw, we write and we speak. However, the platforms that we use to disseminate our communications — the media, as it were — change dramatically on occasion. Think of Gutenberg and the printing press in the 15th century, Alexander Graham Bell with the telephone and Marconi with the radio in the 19th century, and John Logie Baird with television in the 20th century. Also in the 20th century came probably the most single dramatic change of all: Tim Berners-Lee's invention of the internet. If we are looking for a medium where reputations are trashed, not on a daily, hourly or even minute-by-minute basis but on a second-by-second basis, it is on the World Wide Web on social media sites. As our laws of defamation predate the invention of the internet, is that not a prima facie case for a deep-dive review of our laws? It is, and we are lucky that that deep dive has been completed.

When Simon Hamilton was the Minister of Finance, he spoke to his Executive colleague David Ford, the then Minister of Justice, and between them they commissioned the now defunct Northern Ireland Law Commission to conduct a deep consultation process and produce a report with recommendations.

The report is dated June 2016 and was released to the public by the then Finance Minister, Máirtín Ó Muilleoir, on 19 July 2016. That, of course, was during summer recess, and, by the time that we got back in the autumn of 2016, it would be fair to say that the House was not going through a golden period. If we were not hurtling towards collapse, we were certainly on that trajectory.

When the Law Commission began its work, I was asked to meet its representatives. I met Judena Leslie, the chief executive, and Dr Andrew Scott, who was the academic who was to conduct the consultation and the review. They asked me to pause my private Member's Bill, the justification being that there might well be understandable confusion if there were two parallel processes in play, so I agreed and paused, and, of course, that pause continued through the three years when the Assembly was down. While I revived my interest when we returned, we very soon hit the pandemic, and we were encouraged by many, including the Minister of Finance, whom I welcome to the Chamber, that we should focus entirely on essential business in the House. Much as I think defamation is important, I certainly could not classify it as essential business, so, again, the pause button was pressed.

In recent months, I have revived my interest. I was required to get you, Mr Speaker, to deem the Bill competent, and I thank you and the Bills team for your efforts and support. Two very minor technical changes to the language were required for you to deem it competent, but more importantly, or significantly perhaps, my clause 5 deals with the operators of websites, and that takes us into the area of telecommunications, which is a reserved matter under the Northern Ireland Act 1998, so I had to seek the Secretary of State's consent for this House to consider legislation in this area. I am pleased to report that, on 14 May this year, Robin Walker, the Minister of State, confirmed, on behalf of the Secretary of State, that he was content to grant consent to the consideration of the Bill by the Assembly. In fact, he went further and said:

"I welcome that the proposed bill will seek to put Northern Ireland in line with the rest of the United Kingdom."

So here we are, after the Bill's First Stage, back in June, having the first debate on defamation that I can recall during my time here. In fact, I believe that it may be the first debate on defamation since devolution in 1998 and also the first time that Dr Scott's report will really be touched on in any sort of detail since he published it in June 2016.

I should add, for the record, that I very much welcome Dr Scott's engagement. He was not just a neutral compiler of responses to the consultation, nor was he merely an academic performing some sort of statistical analysis of responses, such as, "x% thought this, and y% thought that". No, he was a player. He was a man with opinions about how we should reform our defamation laws, and I very much welcome that. It is not a criticism; it is very positive.

Dr Scott made clear, back in 2016, that the majority of respondents wanted to replicate the 2013 Defamation Act, as passed by Westminster, for England and Wales. I will quote Dr Scott:

"In the main ... it is recommended that reforms directly equivalent to those set out in the 2013 Act should be legislated by the Northern Ireland Assembly."

Furthermore, in his report, under the headline of "Recommendations", he says that he strongly recommends that we should adopt, from the 2013 Act, section 2, which is on the defence of truth; section 4, which is on the defence of publication on a matter of public interest; section 6, which is on qualified privilege for peer-reviewed scientific or academic statements; section 7, which is on the extension of existing qualified privileges; section 8, which is on the single publication rule; section 12, which is on the power of the court to order publication of summary of judgement; section 13, which is on the power of the court to order takedown of statements; and section 14, which is on the updating of the law of slander. He strongly recommended that we adopt all those sections. He also recommended that we should adopt section 1, which deals with the serious harm test; section 9, which deals with action against a person not domiciled in the United Kingdom; and section 11, which deals with the presumption in favour of trial by a judge alone. Therefore, he either recommended or strongly recommended the adoption of the vast majority of the Defamation Act 2013. In fairness, he recommended some variance, particularly regarding the reform or abolition of the single meaning rule. I will touch on that later in my remarks.

(Mr Deputy Speaker [Mr McGlone] in the Chair)

I suppose that the first question is whether we should simply replicate the Defamation Act 2013. I believe that that makes the greatest sense. However, there were two appendices to Dr Scott's report: the first contained his proposed draft Bill for reforming defamation; the second contained mine, albeit before we put in the two technical amendments that were recommended by the Bills team. Should we replicate it? I believe that we should. We would, for example, have much more case law and legal precedence if we were in tune with England and Wales. It would also mean that we would not place unnecessary complications in the way of publishers who intend to publish in Great Britain and Northern Ireland. However, it is a judgement call. Today, all that I am asking is that the Finance Committee looks at the options and comes to a conclusion.

Is reform required? Again, the best answer comes from Dr Scott at paragraph 1.05 of his report, where he states that the former Northern Ireland Law Commission consultation paper suggested:

"the key imbalance in this area is arguably not that in favour of reputation over free speech or vice versa ... [but rather] that between litigants who can afford to defend their publications or to vindicate their reputations, and those who cannot".

Therefore, he suggests very strongly that the current law is not about the law. It is about the money. It is about who has the deepest pockets, and they win.

I have personal experience of three cases of defamation from my time as a broadcast journalist at Ulster Television. All three were settled out of court. The process was as follows. We were issued with a writ, and we would gather in the Ulster Television boardroom — the production team that made the programme, senior management, UTV's legal advisers and two other people who had flown in from London and who would sit in the corner away from the table and listen to the whys and wherefores. When the internal debate was finished, those two people would come to the table and instruct us to settle it out of court. That was not because of the merits of the argument; it was because of the likely financial implications in comparison with how much settling out of court would cost and how much we would risk if we allowed a trial by jury to continue. Let us remember that, under our current laws, it is a jury trial. The judge will respect the status of the jury and will not say whether a statement is defamatory. He or she will simply declare whether it is capable of being interpreted as defamatory. If he or she says that it is capable of such an imputation, the trial will begin, the jury will decide, and it will decide the quantum of damages in the event that it decides that it is a defamatory statement. The money is key. The two gentlemen whom I referred to who had flown in from London were the insurers. Their position had nothing to do with the law. It was about the money. They would say, "We will not cover you if you go to court. Settle it out of court".

Interestingly, politicians were involved in all three cases. Statements by a politician led to the three writs, and two of the three writs came from other politicians.

Photo of Mike Nesbitt Mike Nesbitt UUP

Let me complete the point, if I may. In one of the cases, we were right to apologise because we had misinterpreted the difference between naming somebody and identifying somebody. We had not named them but we had given enough information for people to identify who they were, so we had defamed them and we were right to settle.

In the other two cases, it was one politician taking offence at what another politician had said about them. Currently, under the law, it is defamatory only if right-thinking, ordinary people think less of the person because they have heard that communication. I do not believe that there is any way that you could prove that in court. Under my proposed legislation, the bar becomes, "Prove that there has been serious harm?" There is no way that you can do that. I am thinking of those statements by one politician about another. Yet, because money is more important than the law under our current regime, both those politicians who were claimants got an out-of-court settlement. That just does not add up for me.

I will let Mr Weir in after reminding the House that we are a bit like foxes with the keys to the chicken coop. We have absolute privilege; we can say whatever we like in this Chamber. We cannot repeat it out there, 20 yards away in the Great Hall, but we can say what we like in here. Yet, we are also making decisions about whether or not we bring in a fairer, more modern regime for defamation.

Photo of Peter Weir Peter Weir DUP

I thank the Member for giving way. I appreciate that we may be foxes but I will try not to be too nasty to him. An analogy about a former occupant of the chicken coop may be of relevance.

I want to make two points in relation to settlement and the litigant side of things. The Member has indicated that, in a lot of these cases, there is an out-of-court financial settlement. There are others in the Chamber with a far more eminent background in the law than me, such as Mr Allister, although I am sure that modesty would prevent him from suggesting that himself. The legal culture in Northern Ireland, not simply in defamation cases, is that vast numbers of cases are settled by way of an out-of-court settlement and very few cases run to a full length of challenge.

The Member made an important point about the role of money in this. He mentioned specifically the depth of the publisher's pockets or those of the organisation that is trying to defend the statement. Clearly, the financial consideration will always be examined as part of it. The other criticism around defamation — I cannot see anything in the Bill that corrects it — is that those with very deep pockets who sue a broadcaster, a media outlet or whatever take a certain level of risk but can put their money where their mouth is if they have that amount of money. For many ordinary people, however, if they are libelled, there is little opportunity for them to take very high-stakes, expensive challenges given what the overall costs would be. I am sure that, later, we will debate the jury element. However, there does not seem to be a great deal in the Bill that addresses the problem that taking a libel action is outside the remit of the vast majority of people. Will the Member address where he sees protections in the Bill, not simply for the litigant who has to defend but, potentially, for the wronged plaintiff for whom much of it is pie in the sky?

Photo of Mike Nesbitt Mike Nesbitt UUP

I thank the Member. He, obviously, agrees with me that money is an important issue. Whether we are making it easier for the ordinary person to take action is a question that needs to be considered by the Finance Committee, but it is one of the policy objectives of the Bill. Moving on to that, the aim of the Bill is to reform the law of defamation and ensure that a fair balance is struck between the right to freedom of expression and the protection of reputation.

There are 12 policy objectives. The first is:

"• Make it easier and less expensive to take legal action when you have been defamed".

They also include:

"• Make it harder for the rich and influential to chill free speech • Introduce measures to exclude trivial claims;", of which I suspect there are many, and:

"• Protect the rights of scientists and academics to engage in robust debate".

That is an area I would like to expand on.

Photo of Peter Weir Peter Weir DUP 11:30 am, 14th September 2021

I thank the Member for giving way. At least, with legislation, we have unlimited time in that regard. It is one thing for the Member to say that there is an aim and that one of the aims is to make this more accessible to people. That is indeed one of the aims but, if the aim is not in any way reflected in the wording of the legislation, it is a relatively poor argument to put forward on the basis that it is left at, "Well, the Finance Committee can do something about this".

Photo of Mike Nesbitt Mike Nesbitt UUP

What I am saying is that it is up to the Finance Committee to take a view on whether there is enough in the legislation. For example, under the current regime, you have to persuade a judge that it is possible that you were defamed by the statement. He then hands that over to the jury, and you go into a jury trial. Under my regime, although jury trials are not ruled out, they would be the exception rather than the rule, and the judge could make a very quick decision as to whether or not the statement was defamatory. That is easier and cheaper than the current regime.

If I may, I would like to read into the record the policy objectives. I said:

"• Make it easier and less expensive to take ... action ... • Make it harder ... to chill free speech • ... exclude trivial claims", where that is possible, and:

"• Protect the rights of scientists and academics ... • Protect the right of journalists to conduct responsible and necessary investigations; • Protect the work of Non-Governmental Organisations; • Take better account of the impact of the Internet; • Require claimants to show that they have suffered serious harm before suing ... ; • Remove the current presumption in favour of a jury trial; • Introduce a defence of 'responsible publication on matters of public interest'; • Provide increased protection to operators of websites that host user-generated content, providing they comply with the procedure to enable the complainant to resolve disputes directly with the author of the material concerned", and finally:

"Introduce new statutory defences of truth and honest opinion to replace the common law defences of justification and fair comment."

With regard to the media, the scrutiny of this Executive and Assembly is different from that of neighbouring legislatures for two reasons. In Dublin and London, there are three bodies that scrutinise the work of government: an official Opposition; a second Chamber, be that the Seanad or the House of Lords; and the media. Here, there is no official Opposition or second Chamber; there is only the media. The role of the media in scrutinising the work of the politicians in this House is all the more important for the absence of those other two arms of scrutiny.

The first thing I want to talk about is the idea of replacing the current definition of defamation with the test of "serious harm". There are Members in the House who are very nervous about how to define "serious harm". Is it moving the bar, changing the bar or putting the bar too high? That is a judgement call, but it is the sort of concept that will be firmed up through case law. The more often a case goes through the courts, the more likely it is that you will get to a definite definition of "serious harm". Of course, the idea is simply to remove trivial claims and speed up the process.

Clause 2 is one of the areas in which we are replacing common law with a statutory defence. In this case, the common law defence of "justification" becomes the statutory defence of "truth". Clause 3 relates to "honest opinion". The common law defence of "fair comment" becomes the new statutory defence of "honest opinion".

Clause 4 concerns publication on a matter of public interest. Effectively, it would replace the common-law defence that was established in the case of Reynolds v Times Newspapers Ltd, which was a notorious case in which the late former Taoiseach Albert Reynolds tried to sue 'The Times'. I believe that he was awarded £1 because he was technically correct, but the judge felt that 'The Times' was to be supported, because what it had reported was a matter of public interest.

Clause 5 deals with operators of websites. I had to get the consent of the Secretary of State here, because, ordinarily, this is beyond the competence of the House. As I said previously, this is where reputations are trashed, second by second, somewhere in the world. In essence, I am proposing that there become a statutory duty on the operator of the website: if you complain to it that you believe that you have been defamed, the operator must identify to you the author of the post. For clarity, for the purposes of the clause, "identify" means that the operator gives the claimant sufficient information to bring proceedings against the author. The claimant therefore needs the name and a way of contacting the person. If the operator cannot, or will not, provide you with that information to identify the author, you can take your claim against the operator of the website.

Clause 6 looks at peer-reviewed statements in scientific or academic journals. That is one of the areas in which there is huge danger from being at variance with England and Wales. Let us take an example that is based on a real-life example involving a former school friend of mine who is a specialist on the effects of epilepsy on pregnancy. It is his determined and researched view that a particular drug, whatever its merits, should not be taken by a pregnant woman. There is no other imputation about the effects of the drug, but he establishes in his mind that pregnant women should not take the drug if they suffer from epilepsy.

Given that the drug is being produced by a global pharma with huge resources, finances and access to legal teams, that is potentially a very dangerous statement to make. It could perhaps open him to the possibility of being sued. Under the 2013 Act as it applies in England and Wales, if he were to write a scientific academic medical paper and then have it peer-reviewed, and the peer review concurs with his conclusion, he effectively has privilege and is clear to publish without fear of being sued for defamation. That is not the case in this jurisdiction.

The question that I cannot answer is this: how often have academics who are thinking of applying for a post at Ulster University or Queen's University Belfast been put off by the fact that they do not have the protection that they would have if they were to take a post at a university in England or Wales? It is the same when looking at the statistics for the number of cases of defamation that are brought to our courts. It is an interesting statistic in its own right, but it does not really tell us anything about the activity that is going on behind the scenes. The really interesting statistic, which is not available, is this: how often has a communication not been made because the potential author, publisher or editor received a legal letter threatening to sue if publication went ahead? That is the chill factor. There are not stats for how often such letters are issued, and it is not possible to gather up that information. We know that it is there, however, and we need to conclude that it is significant as well as serious.

Clause 7 applies to reports protected by privilege, and it just extends the areas that are covered by that privilege.

Clause 8 is important. It is a single publication rule. It says that you cannot sue every time somebody repeats the original defamatory comment. Everything relates back to the first time a statement is published and to its author and/or editor.

Clause 9 refers to action against a person who is not domiciled in the United Kingdom. It addresses the idea of so-called libel tourism. There is no evidence that libel tourism exists in any significant manner, but the clause says that we take a common-sense approach. The example that I put in the explanatory and financial memorandum is that, if a statement is published 100,000 times in Australia and only 5,000 times in Northern Ireland, that is a basis for saying, "If you want to take a case for defamation, take it in Australia, because that is where the damage is most pronounced".

Clause 10 deals with an action against a person who is not the author, editor or publisher. You would take that action only if it were not reasonably practicable to bring the action against the author, editor or publisher.

Clause 11 relates to the idea that the trial would be by judge alone, without a jury. I understand that that is a sensitive matter, given our history of judge-only trials. However, in this case, it makes a lot of sense. One of the big issues that Dr Scott identified in his research and consultation was access to justice. This goes a considerable way to addressing that.

Several other clauses are more technical than anything else. I will not trouble the House with them at this stage. I simply ask the House to note that implementation is not expected to increase significantly any public expenditure or make any significant change to the workload of any Department or Executive agency.

Dr Scott's big idea — if I may put it that way, and I do not wish that to sound disparaging; it is his theme — is what he calls the "bipartite suggestion", which is to do with the single meaning rule. If a claimant claims that he has been defamed by a communication, the court has to decide what the statement means, or what is the imputation. We all know that we can often say something, and we think that we know exactly what we mean, but the person to whom we are speaking takes a significantly different interpretation of what we have said. Dr Scott's report uses the example of a person avoiding tax. If you hear that a businessman has avoided tax, you might have a very negative interpretation. On the one hand, you might think that that man is a scoundrel who is illegally evading his duty to pay his taxes. You might think very badly of him. On the other hand, you might take the view that what is meant by that is that he is very tax efficient. He understands that, if he gives charitable donations, it reduces his tax liability and makes his shareholders happy because they are doing good works for vulnerable people.

Under the current regime, one of the things that slows down the process is having a jury. The judge does not decide on the single meaning; that is for the jury to do. If there is no jury, there is no bar on the judge deciding, right up front, what the single meaning is. That could eliminate the case, knock it out and resolve it right at the beginning, which addresses Mr Weir's point about how the ordinary person gets better access to justice.

Dr Scott recommends something different. He says that we should do two things: abandon the single meaning rule altogether, but, in conjunction with that, put a bar on bringing a defamation case where the complainant has explained to the publisher the interpretations that he puts on a statement that he considers defamatory.

The bar comes on if the publisher then corrects the meaning and says, "The complainant says he thinks I was implying that he is a bad person who avoids paying taxes. That is not what I meant; I meant that he is a good person who gives charitable donations, which get tax relief". If you do that prominently and promptly, there is a bar on you taking a case for defamation. Again, it is a judgement call: as with "serious harm", what does "promptly" mean? What does "prominently" mean? Dr Scott seems to suggest that, whatever the primary publication, be it press, print, radio or television, the correction should go on the internet. That is not prominent enough for me. If it is in the paper, the correction or apology needs to be in the paper. If it is on radio, it should be on radio. If it is on television, it should be on television. It could lead to endless corrections undermining public confidence in the media. That is my view, and that is why I do not support it, but I hope that it will be up for the Committee for Finance to take a view on that position.

I emphasise that I am happy for the Committee to tease out the relative merits not just of retaining a single-meaning rule or adopting Dr Scott's proposal but of every clause in the Bill. I hope we get to the point soon where the Committee takes the Bill, deconstructs it, breaks it apart sentence by sentence and then builds it back up. Who knows what shape it will take? I will not die in a ditch over every clause in the Bill; I simply believe that there should be and can be a better balance between the right to freedom of expression and the right to protect your reputation, not least because our current laws predate the internet, and I think that is an open-and-shut case for review.

Photo of Steve Aiken Steve Aiken UUP

I thank Mike, the sponsor of the Bill, for his opening remarks and for the related oral briefing he provided to the Committee for Finance on 8 September. I make my comments as the Chairperson of the Finance Committee.

Free speech is a key guarantor and a critical feature of democracy. It allows views to be aired, the truth to be told and, perhaps most importantly, the powerful to be held to account. A number of measures provide protections for Members in that regard. However, they are insufficient on their own. Free speech and access to a free press are also critical components of a democracy and are rightly considered to be the birthright of all those who are fortunate enough to live in this and, indeed, neighbouring jurisdictions.

With the freedom to publish comes responsibility and the need to protect the reputations of individuals and, in some cases, organisations from defamation based on false and damaging statements. As indicated, the legislation in that regard is a little complex. It has evolved over a considerable time, and, in Northern Ireland, it relies on common law precedents. In other jurisdictions, fairly recent legislation has put key terminology into the statute book and has sought to strike an improved balance between the protection of reputation and the most important right to free speech. The Bill owes a great deal to the recent legislation in England and Wales. It builds on the consultation undertaken by the Northern Ireland Law Commission and the analysis by Professor Scott of the London School of Economics and Political Science (LSE). It proposes a fairly long list of changes.

When the Committee heard from the sponsor last week, members expressed differing views. Some indicated support in principle for the reform of defamation legislation but queried the timing and content of the Bill. Others highlighted concerns relating to the serious harm provisions but remained open-minded on some other aspects of the Bill. Still others indicated that they would support the Bill at Second Stage and seek to amend it at later stages. Overall, the Committee did not come to a final position. I, like the Bill sponsor, will await with interest the impending vote when we find out who goes into which Lobby.

There has been some commentary about the Committee's consideration of these matters. Let me clarify: on 23 June, the Committee agreed to take briefings on the Defamation Bill from the sponsor and the Assembly's Research and Information Service. Our forward work programme setting that out was published and shared with the Department of Finance. A number of unrelated changes to that programme were requested by the Department and agreed without fuss by the Committee. To be clear, it is not the case that officials sought to brief the Committee on these matters and were denied; if they had, I feel sure that my Committee colleagues would have readily agreed to accept such briefings regardless of whether or not it was usual practice.

By virtue of the evidence that the Committee has considered, it has endeavoured to give proper consideration to the principles of the Bill, given the constrained timescales of what would appear to be a fast disappearing mandate. That said, consensus was not possible on this occasion. The Bill awaits the decision of the House.

Photo of Maolíosa McHugh Maolíosa McHugh Sinn Féin

I welcome the opportunity to contribute to the debate on the Defamation Bill. It is a complex area of law, with competing interests. It is important that, when we consider changing defamation law, we do so in a balanced and proportionate way. I am not opposed to reforming and updating defamation law. There is strong justification for modernising libel law, given that the current law came into force in 1994 and many aspects of society have changed since that time, particularly with the rise of social media and online platforms. In that regard, I agree with the Bill sponsor.

I cannot agree, however, that the Bill will provide a fair and balanced outcome. I will spell out briefly why I think that to be the case. The Bill is an exact replica of the Defamation Act 2013 that was passed in England and Wales. That Act is controversial in its own right and contains many flaws. At the time that the Act was signed into law, the then Finance Minister chose not to extend that legislation to this jurisdiction and decided that we would instead look at developing our own legislation, which would be tailored to meet the needs of citizens in the North of Ireland. That was the correct approach to take.

To that end, a review was commissioned under the direction of Professor Scott to carry out research and provide commentary on the need for legislation and the extent to which the Defamation Act 2013 should be replicated. The Scott report was clear in its findings: it said that there was a need for legislation that was similar in some respects to the Defamation Act 2013 but was different in that it should be tailored to our particular needs here. The report also provided an assessment of the specific parts of the Act that should be replicated here and the parts for which, in Professor Scott's opinion, evidence of the need to replicate was less convincing.

This Bill is not the Bill that the Scott report suggested that we pursue. I fail to understand how the Bill, in any shape or form, has been adapted or changed to suit the needs of people in this jurisdiction. As far as I can see, it is a straightforward copy and paste of the Defamation Act 2013.

One of the more contentious aspects of the Bill is the clause that sets out the serious harm test, which will ensure that anyone wishing to bring a case of defamation must show how the defamatory statement has caused serious harm to their reputation. That was well examined in the Finance Committee. Many of the arguments that were presented to us were less than convincing. The clause is problematic, to say the least. My first question is this: how is it possible for any judge to quantify fairly what constitutes serious harm? It seems to me that the clause will set up an evidence threshold that will block ordinary citizens from taking libel action. It is OK for corporations or high-profile public figures in the media or politics who can point to a drop in, say, sales or viewership or whatever, to prove that damage done by defamatory statements has affected their reputation, but how does the clause help the ordinary man in the street whose reputation has been unfairly damaged? How does he protect his name?

The Bill sponsor claims that the clause will act as a filter to deter what he describes as "frivolous" claims. Many people have had to endure nasty and untrue comments — we can all easily identify with that — and have experienced a loss of reputation. Under this regime, however, their right to defend their name will be diminished and their claim described as "frivolous", which, I am sure, to many, would be rather insulting, to say the least.

Defamation law is a complex area with competing rights at stake, namely the right to freedom of expression as opposed to the right to defend one's name. I take very personally the right to defend one's name. We have a duty as legislators to ensure that we strike the correct balance. The Bill is skewed too heavily in the direction of freedom of expression. As legislators, we have a responsibility to ensure that we have law that is fit for purpose and is informed by all the available and up-to-date information. It would be wrong to adopt an approach that would see bad legislation being passed quickly rather than law based on that informed position.

Photo of Keith Buchanan Keith Buchanan DUP

Thank you, Mr Deputy Speaker, for the opportunity to contribute to the debate. It is important that the Bill be fully scrutinised, not only at this stage but if it gets to further stages.

While we recognise the need to see progress on long-standing concerns relating to the fairness of defamation law in Northern Ireland, it will be imperative that Members of the House draw on and learn from the operational experience of previous reforms enacted in other jurisdictions, not least England and Wales.

I will touch briefly on clause 1 and one or two other clauses; I will not go into them in depth at this stage. The interpretation of the serious harm threshold will be crucial to the success of any reforms. It needs to be fair and balanced for companies and private citizens. There has to be an acknowledgement that raising the bar to require defamatory content to cause serious harm or a serious financial loss will inevitably affect whether a business or private citizen believes it is viable to launch proceedings. That gives me great concern. Perhaps the Bill sponsor can comment on that in his closing remarks.

The meaning of "serious harm" has been subject to legal wrangling in England and Wales, and the Court of Appeal and the Supreme Court have provided different rulings. We need to avoid sowing confusion that ultimately reduces confidence in the system. An important practical question remains about when a dispute on serious harm should be resolved. Should there be preliminary hearings? Would that add or remove cost? The same goes for defences on grounds of fair comment. Are there ways of ruling on those at an early stage to prevent unnecessary proceedings at a full trial?

We cannot ignore the fact that the overriding concern among members of the public about current libel law is not whether it restricts free speech in the press but whether they can get affordable access to the legal system. These are some points — not necessarily questions — for the Bill sponsor: will the Bill prevent or reduce open access to courts for private citizens? Are there ways of enhancing the focus of the Bill to better reflect that? How will the Bill build confidence in the process? Will the Bill favour the defendant rather than the citizen?

Will the Bill make it more difficult for the citizen to raise a case? Will the Bill offer more protection to large social media broadcasters and print media? Will the private citizen have a diminished opportunity to bring a claim?

In his comments, the Bill sponsor referred to the Secretary of State, who has paved the way for the legislation to be introduced, despite the fact that the Bill touches on reserved matters about online content in clause 5. That does not remove the need for a joined-up approach. We need to ensure that the obligations placed on social media companies about their abilities are fair and realistic, particularly given that users who publish defamatory content cannot easily be identified.

While, broadly speaking, we welcome the intention to set out regulations clarifying what is expected of an online company when responding to a complaint about defamatory content posted on its website, it remains to be seen how that will work in practice. If an individual in Northern Ireland takes on a large media giant in California, it is the David and Goliath principle. However, David has no stones, and it could be a difficult lawsuit to follow in real, practical terms. Maybe the Bill sponsor can touch on that issue later.

The interaction needs to be better explained. Does the definition for the "operator of a website" cover all relevant housing platforms in all forms? Will the Bill compel or enforce social media companies to change their policy of non-disclosure? I understand that such a policy is currently the case in some instances. We also need to examine the Bill's potential for unintended consequences. Will a raised threshold of serious harm allow newspapers or broadcasters to calculate that the financial reward of publishing a questionable story will outweigh any likelihood that it will be challenged? Will a higher threshold for pursuing defamation cases ultimately lead to a reluctance in the legal profession to take on anything but watertight — if there is such a thing — cases?

Those are a few pointers and general concerns about the clauses. I would appreciate it if the Bill sponsor could alleviate those concerns in his closing remarks.

Photo of Matthew O'Toole Matthew O'Toole Social Democratic and Labour Party 12:00 pm, 14th September 2021

First, before I go on to make detailed remarks, I declare my interest. I am the chairperson of the all-party group on press freedom and media sustainability. Indeed, the Bill sponsor is the deputy chairperson, and other members of the all-party group are here today. Some of what I say today will be based on that experience and perspective, as well as my being the SDLP finance spokesperson and one of its representatives on the Finance Committee.

I very much welcome the fact that the Member has brought this legislation to the Assembly today. We are in broad support of the Bill. We will support it at Second Stage. First, like the Member, though I am not quite as storied as him, I have some professional experience. I was a journalist at the start of my career and, indeed, continued to do quite a lot of freelance journalism until I joined the House. However, that does not distort my view any more than Mr Allister's legal experience or that of Mr Weir colours their view on the matter. It gives a particular perspective that is useful.

As the Bill sponsor said, he has tried for many years to make progress on the legislation. I welcome the fact that we are debating it now. I welcome the fact that it is coming to us before the end of the mandate. First, it is worth saying that a free press is critical to our democracy. Multiple people have said that today; I am sure that others will say it as we go forward. However, in addition, you cannot have a free press without having a healthy and sustainable press. Media titles, particularly those that derive their revenue from commercial sources, which is most of them, need to be viable going forward.

The all-party group on press freedom and media sustainability made a call for evidence on that matter. We are in the process of finalising the report. The call for evidence has been about the issues that face media titles in Northern Ireland, and it is not just the big titles that we all know. It included the big, regional titles, such as the 'Belfast Telegraph', 'The Irish News' and the 'News Letter', but also the small, local titles that all our constituents read and Members rely on to do their job and get their message out. I am sure that we will rely on those titles in the months before next May or whenever the forthcoming election is.

I went through the responses to our call for evidence, and one of the most consistent complaints and observations that was made by the local media was the threat posed to them by Northern Ireland's unreformed defamation law regime. So, for people who think that this is all about 'The Sun' newspaper and big tech based in California, it is not. In fact, what we are doing here is much more proportionately about your weekly newspapers: the 'Down Recorder', the 'County Down Spectator', the 'Derry Journal', the 'Ballymena Guardian'; you can name them all. They are the people who have to deal every day with the pressure created by our very restrictive defamation laws. I will come back to this point, but let us reiterate it: Northern Ireland has the most unreformed defamation laws not just in the UK but in these islands. I will come back to the point about consistency with other jurisdictions, whether England and Wales or, indeed, the South of Ireland.

It is also worth saying, in parenthesis, and putting on record that we have a particular challenge, as well with the sustainability of media titles, with the safety of our journalists here in Northern Ireland. We are not a model jurisdiction of a free press and a healthy, plural, vibrant democracy where journalists are free to do their job. I see the Member opposite laughing, but this is serious stuff.

Photo of Peter Weir Peter Weir DUP

I am recalling something else.

Photo of Matthew O'Toole Matthew O'Toole Social Democratic and Labour Party

OK. I appreciate that. I did not mean to impugn him. Thankfully, I have privilege here, so he will not be able to take action.

Photo of Peter Weir Peter Weir DUP

I will explain to you later.

Photo of Matthew O'Toole Matthew O'Toole Social Democratic and Labour Party

Indeed. The point that I am making is that this is serious stuff, and this is part of the context too. This is not a safe jurisdiction in which to be a journalist, and it is not a healthy place for local media.

I have engaged multiple times with the Finance Minister and often he has taken supportive action on the sustainability of our media, but part of the context is that not just one or two but most of the regional newspaper groups and newspapers that responded to our call for evidence singled out the defamation law in Northern Ireland as a particular concern for them. That is the context of this Bill as I talk through the general points.

As I said, there is clear anecdotal evidence that our outdated defamation laws have a significant chilling effect on free speech, and I use the word "anecdotal" for a reason. As the Bill sponsor said, much of what happens because of our defamation law is based on out-of-court settlements. In the Finance Committee the other day, we had a somewhat technical debate about the meaning of out-of-court settlements. Mr Allister, who is, of course, a learned gentlemen, pointed out that out-of-court settlements have a particular meaning. In many cases, these are not even out-of-court settlements because a writ, a legal proceeding, is never issued in the first place. Because I have privilege, I can say here that I know that, because Northern Ireland's defamation laws are so restrictive, there are many cases where a writ is never issued but powerful people, including people in political parties, get very expensive libel lawyers to issue letters to threaten people with actions. They do not ever have to issue a writ or go near a court, but that chills free speech. If people in the Chamber think that that is not happening, they are either deluded or are deliberately kidding themselves. That does happen, and I can think of multiple examples of it. I can think of some very striking examples that happened in recent weeks and months. That is where we are with Northern Ireland's defamation laws.

I made the point about a lot of this evidence being anecdotal. As the Bill sponsor said, because these are, in large part, either out-of-court settlements or not even out-of-court settlements but settlements or arrangements that are made between parties before they even get to issuing a writ, we cannot know in substantive terms. The courts do not publish it. Judgements are not reached and statistics are not gathered because there is no basis on which to gather them. However, if people believe in the principles of this Bill and that we should look at reforming our defamation law — of course, they have already reformed defamation law in England and Wales and the Programme for Government in the South of Ireland has committed to reforming defamation law — why not use the exercise of moving this Bill on to the next stage for the Finance Committee to do its work and to bottom out and substantiate more of the detailed rationale? I have heard lots of Members, including the previous but one Member who spoke, Mr McHugh, make this point. He said that he agreed with the principles of the Bill but that he had concerns with specific provisions and clauses. Why not get the Bill to Committee Stage so that we can hear evidence from practitioners and other people and, if necessary, improve and amend it?

I am clear, as are every media organisation and lots of other individuals who are not representatives of media organisations, that Northern Ireland's defamation laws are, as they stand, chilling free speech and allowing rich individuals and organisations to use lawyers' letters to shut down freedom of speech and expression. That is a very serious thing for our democracy. It is particularly serious because our democracy is unique, as the Bill's sponsor said. We are a consociational democracy. I passionately believe in power-sharing, but, as the Bill sponsor said, we do not have a second revising Chamber, nor do we have an official Opposition. Furthermore, because we are a small jurisdiction, and because of the stresses that the media has been under this past two decades because of the growth and explosion in online platforms, we do not have as plural or strong an investigative media as we had in the past. Therefore, as I said, there is a strong case to be made that the reform of our defamation laws is both overdue and necessary. Members do not have to take my word for it, or even the word of the Bill sponsor: they can take Professor Andrew Scott's word for it. He, of course, did his review, as has been said. It was commissioned by the Law Commission under a previous Finance Minister, Simon Hamilton, and that work was continued under another Finance Minister, Máirtín Ó Muilleoir. It is also worth saying that, in large part, Dr Scott recommended similar reforms to those that were made in England and Wales. If Members think that the England and Wales reforms are not appropriate — they are not exactly the same as what is in the sponsor's Bill — and that they could be amended or adjusted further, let us do that in Committee Stage and then Consideration Stage. We can do that.

People have made reference to the need for coordination and collaboration across the island. We are, in one sense, unique because the media industry here is Northern Ireland; it is both east-west and North/South. In a sense, we are part of both the British and the Irish media markets. People here read 'The Irish Times' and London's 'The Times', so, yes, there is a job to be done in ensuring that those laws do not create unnecessary burdens to publishers, or create lacunae. At the minute, there is a big lacuna, because we are totally unreformed since 1996. The Republic reformed its laws in 2009, and England and Wales reformed theirs in 2013. Let us look at all that in Consideration Stage. What is wrong with looking at it in Consideration Stage? It would specifically be possible, I am sure —. The Bill sponsor might want to reflect on this in his closing remarks. If one of the concerns is how reforms in the South might impact on the law here, I would be amenable to helping facilitate the moving of a specific amendment about reviewing a law that was passed here once there was —. If reform was passed in the Oireachtas, we could look at that. We could insert a specific review clause which provided for a review in statute here of how our legislation was operating with that. That is totally possible; all of that is doable. However, it is not doable if we kick out the Bill today, I am afraid.

I am slightly concerned by some of what I have heard today. There are Members teeing up arguments to kick out the legislation rather than give it a fair hearing at Committee Stage through to Consideration Stage. I have heard that from two parties. That concerns me. It concerns me because there have been people from political parties who have used our powerful defamation laws to send letters from expensive libel lawyers to shut down criticism. It is important that we have a defamation law regime that allows individuals who have been wronged and defamed proper legal recourse. That is critical. That is one of the aims of the Bill, and I am supportive of it. Free speech is a conditional privilege, as the Bill sponsor said. You do not have total free speech to say what you like. We are politicians, and we have people saying bad things about us all the time. Some are legitimate criticisms and some are unfair, but we are politicians and we have chosen to be in public life, so we have chosen to accept a measure of challenge and criticism as part of our jobs. It is clear that, in the online world, things very often go too far. By the way, I remind some of you who are conflating some of the issues around online bullying and online harm with defamation law that there is separate online harms work going on at Westminster. The truth is that very few average people use the defamation law in order to take action on cyberbullying, for example. The law as it stands does not really provide for that.

This legislation will not change that, so I caution against conflating those issues.

I will deal fairly briefly with some of the specific points in the legislation. I will not go through each clause in detail, because I hope that the Finance Committee will have the opportunity to do so. As has been said, clause 1 is largely consistent with the Defamation Act in England and Wales, in that it creates a new test of serious harm. That is exactly the kind of issue that we need to understand and unpack in the Finance Committee. I ask those who are profoundly concerned about what the clause means — two different contributors have asked that question — whether they have seen evidence that the reformed law in England and Wales has led to a huge increase in defamatory material going unchecked and spreading like wildfire in publications there since it was made. That is part of the test as well. If we go to Committee Stage, there will be a reasonable test for the Bill sponsor to explain each clause and make what is in each clause stand up, but it is also important that those who question the need for reform provide evidence of whether the additional harm that they are worried about has been created in England and Wales.

I also note the irony. I look forward to hearing what Mr Allister says about the Bill. We have heard a lot recently about the critical importance of Northern Ireland's being treated exactly the same as the rest of the United Kingdom, which includes England and Wales. Here is a test today for Mr Allister and the DUP. Let us engage on the question of why Northern Ireland cannot have similar standards in its defamation law to the rest of the UK. I am fascinated. I look forward to hearing why not, because I have been told repeatedly in the Chamber and in the media in recent weeks and months that being treated exactly the same is the ultimate test of sovereignty and of the Britishness of this place. I look forward to hearing why we need an entirely different and unreformed defamation law regime that is completely outwith and at variance to that in the rest of the UK. I do not say that to be mischievous or flippant. Rather, I say it to ensure that we have a serious conversation, if people are going to throw up particular questions about the application of the Bill. In my view, the way in which to have a serious conversation and to scrutinise the Bill is by allowing it to proceed to Committee Stage and then to Consideration Stage, when we will have the opportunity to scrutinise it clause by clause and to scrutinise what has happened in England and Wales over the past number of years, the potential for reform in the South of Ireland, what it will mean for the sustainability of media titles and all the other questions.

I repeat my point: many local newspapers said to us in the call for evidence that one of the clear things that they want to see reformed is our defamation law. I want to hear from them too, if the Bill proceeds to Committee Stage.

In conclusion, there are significant questions that we need to tease out at Committee Stage and further at Consideration Stage. There is definitely the opportunity for scrutiny and, if necessary, further amendment. From what I heard, the Bill sponsor sounded more than amenable to that, if it is required. I very much hope that we get to do that, because I have not heard a good reason from anyone as to why the House should not support the Bill's passage to the next stage. The SDLP will certainly be doing that.

Photo of Andrew Muir Andrew Muir Alliance 12:15 pm, 14th September 2021

I rise as the Alliance Party spokesperson on finance to respond to the Bill at Second Reading. Like Matthew O'Toole, I declare my membership of the all-party group on press freedom and media sustainability.

My contribution will focus on three key issues. The first is why we are here and why, as a party, we support the Bill at Second Stage. The second is the principles of the Bill, a discussion on which is, I understand, the primary purpose of today's debate. The third is particular issues with the Bill that require consideration today and highlighting those as matters for further consideration, if the Bill passes its Second Stage.

As for the background, context and why the Alliance Party supports the Bill at Second Stage, it is my understanding that, when the Defamation Bill, which is now the Defamation Act 2013, was passing through Westminster in 2012, a paper was passed to OFMDFM by the then Finance Minister, Sammy Wilson. That paper was withdrawn in June 2012. To date, I still do not know the content of that paper or the logic behind why it was withdrawn, but it was withdrawn, and the deadline to enact a legislative consent motion arising from the Bill, which is now an Act, was missed. To me, it is perhaps no surprise that that paper was withdrawn and that the opportunity for the legislative consent motion was missed. It is wrong that the Executive and the Assembly were not given an opportunity to take a decision. However, since the DUP objected to the Bill when it was passing through Westminster, it is not a surprise that the Finance Minister did not take that opportunity. It is wrong that the Executive and this place were not given an opportunity to make a decision on that.

From reading through the evidence provided to last week's Finance Committee, it is clear that previous work that the Bill sponsor did was put on hold due to the Law Commission's work and that of Professor Scott. That work was completed and has been considered, as outlined here today. To push the Bill back and deny its passage at Second Reading would be wrong. That would deny us the opportunity to further consider the Bill at Committee Stage and other stages. That would be wrong, and it would deny the opportunity for amendments. If Members have concerns about particular aspects of the Bill, they will have an opportunity to further analyse those at Committee Stage and to bring amendments to the House. That is the right way for the Bill to proceed. Pushing it back would simply push the whole issue onto a merry-go-round. Frankly, it would deny any opportunity for change in this mandate and, potentially, in the future.

I valued the opportunity to meet the Bill sponsor before, I think, summer recess. That was a good opportunity to understand the Bill's aims and context. If the Bill passes its Second Stage today, I encourage others to engage and have those discussions with him. I have striven to respond to all of the private Member's Bills that have been presented to the Chamber. It is important to engage with Bill sponsors. I note that the sponsor of this Bill circulated a note on the Bill to all 90 MLAs, so there was engagement and an opportunity for discussion.

On the principles behind the Bill, as other contributors outlined, particularly Matthew O'Toole, this is about reforming defamation laws in Northern Ireland. The laws in Northern Ireland are outdated and need to be reformed. Today is an opportunity to progress that much-needed reform.

A key debate in the Finance Committee, which has been outlined today, was whether we should alter the threshold and change it to a matter of "serious harm". We as a party are convinced of and support the need to change the threshold. I know that the retort is to ask for evidence in support of that. There is the issue of the chilling effect of the current legislation, and that will continue without a change to the threshold and an update to the legislation.

Getting specific examples of the chilling effect of the current defamation laws is difficult, but I can recollect where that has occurred in Northern Ireland. It only takes you to read the book 'Burned' or the proceedings of the RHI inquiry to see that, as the media, particularly larger media outlets, sought to bring to light some of the issues in that scandal. The age-old procedure whereby solicitors' letters and legal letters are served on a media company is used to such an extent that media broadcasters sometimes have to leave it to the last minute before getting a broadcast out.

The programme on the RHI inquiry was not just a one-off in finding itself in that situation. There are many other examples. Credit to the BBC and 'Spotlight' for bringing many issues to light for the Northern Ireland public. However, as Matthew O'Toole outlined, for smaller local media companies without the deep pockets of larger media organisations, that chilling effect has a serious impact on the decision whether to publish articles in order to bring to light serious issues of concern for the public. That is why we need to support the Defamation Bill at its Second Reading. As the Bill sponsor outlined, it is also about protecting the rights of scientists and academics. We need to strike a balance in the legislation. What is in the 2013 Act is ready to be transposed to the Bill.

The Bill also reflects the fact that life has changed. When introducing the Bill's Second Reading, the Bill sponsor said that the way in which we communicate now is similar to that of the past. There is one key change, however, and that is social media. In what I was going to call "the olden days" but that is now in my lifetime — I am starting to show my age — people might have written a letter to a local or regional newspaper, and that letter might have contained defamatory allegations. From speaking to some editors who are a bit long in the tooth, I know that they will say they used to act as filters and did not print some of the letters they received because they knew they were defamatory. Nowadays, people — sometimes, when they have alcohol taken — pick up a phone and publish whatever they want on social media. Retracting that and dealing with the serious harm that can arise from it can become a particular challenge. We need legislation to be able to deal with that.

We need to strike a balance on freedom of expression. I can think, for example, of human rights activists in other countries. Afghanistan, where people need to conceal their identities, is of particular relevance today. However, we have to deal with the question, which I am concerned about and which, hopefully, can be considered in Committee Stage, of how effective the 2013 Act is in dealing with defamatory allegations that are published on social media in particular. I am not entirely convinced it is effective, so it needs further examination.

From reading the Committee proceedings, I know that concern was expressed, particularly from a Sinn Féin perspective, about how we need an all-Ireland approach. A letter about that from the Finance Minister was shared with the Committee. Passing the Bill at Second Reading would not preclude amendments, which have been outlined, or a further approach to an all-Ireland dimension and harmonisation. Voting against the Bill's Second Reading, however, would preclude any action whatsoever. It would not allow progress on, further scrutiny of or amendments to the Bill.

I am not a member of the Finance Committee. Party strengths at the moment mean that the Alliance Party does not have a position on it. I will highlight again the issues that arise from parties not being represented on certain Committees. The last Bill I responded to was a private Member's Bill from Jim Allister. As I said, we do not have a place on the Finance Committee, so we are not fully party to the correspondence, the documentation or the full discourse in that Committee. There has to be a way to ensure that, for example, other parties have sight of letters that are seen by the Committee, so that, when the Bill comes back to the Chamber at Consideration Stage, we can not only bring our own analysis and scrutiny but not miss anything that has been considered by the Committee.

As a party that supports openness and transparency, the Alliance Party will support the Bill at its Second Reading. There is nothing to fear from voting for it at Second Stage. There is nothing whatsoever to fear; if anything, there is a lot to gain. I encourage the House to support the Bill's Second Stage.

Photo of Philip McGuigan Philip McGuigan Sinn Féin

I welcome the opportunity to contribute briefly to the debate on the Defamation Bill.

As my party colleague Maolíosa McHugh pointed out, legislation in the area is desirable, in the sense that the current laws are outdated and there is undoubtedly a case for more modern laws that are fit for purpose. I remain unconvinced, however, that this private Member's Bill is the best vehicle for that.

I am a member of the Finance Committee, and I had the opportunity, along with other Committee members, to hear the Bill sponsor answer the Committee's questions.

I remain unconvinced after that session that the Bill will deal effectively with all the issues that have been raised by Members across the House. I remain unconvinced that the Bill will deal effectively with online abuse. I have serious concerns, as others have, about the "serious harm" clause.

Another aspect of the Bill is its attempt to deal with libel tourism. However, as the Committee heard through a research paper and from the Bill sponsor, libel tourism does not seem to be a problem here in the North. The statistics show that the average number of defamation cases a year has decreased since 2013.

I am deeply concerned about the clause to move away from jury trials in favour of judge-only trials. I raised that point in Committee and say again that surely the Bill sponsor can appreciate the controversial nature of that clause here in the North. Public confidence in our legal system has at times been at best fragile, to say the least. Full jury trials are an important part of ensuring that public confidence remains high. A move away from full jury trials is a retreat from the principle that every citizen has the right to a fair trial and equal access to justice.

We have an opportunity, if we choose, to develop well-informed, balanced and up-to-date legislation that has been informed by a proper analysis of the strengths and weaknesses of defamation law in our neighbouring jurisdictions. The South in particular, as was mentioned, will soon report on its plans to update its defamation law.

I conclude by reiterating that the 2013 Act was unsuitable for this jurisdiction in 2013, and it is my belief that it still remains unsuitable. However, although we have reservations, we will not block the vote.

Photo of Peter Weir Peter Weir DUP 12:30 pm, 14th September 2021

I suspect that that might have been the message that the Member got just a few moments ago, but I might be speculating.

Like Mr Muir and a few others, I am not a member of the Finance Committee. I did, at various stages in previous Assemblies, serve on the Finance Committee. I am, I suppose, the MLA equivalent of a recovering member of the Finance Committee, but I have not had the opportunity to get the detailed information that has been presented to the Finance Committee.

I do not think that there is a problem per se in reforming defamation law. I am not fundamentally opposed to looking at the current position and looking to modify, change and codify it. However, I have concerns about the Bill as currently drafted. To that extent, my party and I are particularly keen to hear what the Bill sponsor says in his summing-up to see whether our concerns can be assuaged or are capable of change.

I appreciate that some of this comes down to the dichotomy between those who have a journalistic background or, indeed, are heavily invested in the all-party group. With perhaps a slightly more cynical eye from those of us who come from a legal background, I do not see the 2013 Act as necessarily being the panacea in terms of defamation and libel law as it has at times been presented. Why do I say that? In part because I question the motivation behind the 2013 Act. If I am being cynical, the Act came in at the time of the coalition Government when there was considerable pressure on the press, particularly because of the phone-hacking scandal, and there could have been high levels of additional regulation of the press. Perhaps there is a little bit of cynical belief that that was an attempt by the Government — a quid pro quo — to do something on behalf of the media barons by saying, "At least we are trying to balance this out by making things a bit easier for you in a libel situation". I view the background with some cynicism.

There are two key issues: finance for both the plaintiff and the defendant and where the balance is between the two, and, as was mentioned, trying to balance the conflicting pressure of ensuring that there is a free press that can act without fear or favour against the need for people to be able to protect their reputations. We should always remember that in existing legislation and common law, it has always been the case, and this is recognised in the legislation, that any comment that is shown to be truthful, fair or in the public interest is always defensible. So, any publication that is printing the truth should never have any fear about a successful claim being made against it for doing so.

On the balance between those two pressures, and I appreciate what some Members have said on this, the question in recent years has been about whether it has started to shift towards giving too much those who would potentially create libels. We have seen the extent to which libel has increased, particularly through social media and, to some extent, what might be described as being a "democratisation" of the process, which has come at a very heavy penalty. We have to bear that in mind when looking at where we have the balance so that there is an opportunity for someone to take a case in the right circumstances and receive justice.

I have a suspicion — sorry, suspicion is the wrong word. I have a concern that some of the clauses, although quite reasonable in and of themselves, incrementally shift the burden against the plaintiff. The sponsor referred to the fact that, effectively, the Bill codifies, in a legislative sense, the common-law defence of justification into a clause that deals with truth. However, it does not quite do that: it shifts the defence from stating that something is true to having to be substantially true. That may be a reasonable change to make, but, again, it shifts things incrementally.

Similarly, on the issue of fair comment, the Bill broadly reflects the current law, but, for example, it removes the requirement for the opinion to be a matter of public interest. Again, there is a slight incremental shift in that. Largely speaking, it appears that clause 4 reflects the Reynolds test.

On clause 5, which deals with the operators of websites, it is important that we create legislation that deals very specifically with social media websites and online presence. While I welcome much of what is in the clause, if we reach the point at which the Bill goes to the Finance Committee for scrutiny, it will be important that there is a key test on whether it goes far enough. This is an opportunity to provide people with greater protection from online libel. If there is a criticism of clause 5, it is that it does not go far enough. Is this an opportunity that we need to take? Does the current wording of clause 5 represent a missed opportunity?

I do not have any problem with clause 6 on peer-reviewed statements, although I am slightly cynical about the belief that there is a horde of academics who have not or will not come to Northern Ireland because they are worried about how they will be challenged in the courts because of the law on peer-reviewed statements. Nevertheless, I am supportive of clause 6.

I do not have any particular problem with clause 7, but clause 8 needs to be teased out more. On the issue of jury trials, I understand the argument that there can be simplification and, maybe, an impact on costs, although the principal cost will be from the long trials that involve very expensive lawyers. There is a basic principle in a jury trial, particularly if we are trying to judge what is prejudicial and defamatory in the public mind, of getting 12 men or women together to give a verdict, on behalf of the public as a whole, as to whether something meets a particular threshold. I see certain advantages in that. Again, I am slightly sceptical of that, albeit it is not necessarily the most fundamental issue.

It largely comes down to two issues that I have concern about. Specifically, on clause 1, libel has been actionable per se. Rather than giving a greater level of clarity, introducing a test of serious harm has a number of drawbacks. First, the experience in England and Wales, where it has operated, has been that different case law has perhaps produced different standards, so it does not necessarily give certainty to either litigant or defendant. Secondly, the Bill sponsor indicated that we could effectively test whether that raises the bar or not. It strikes me that moving from a situation in which libel itself is actionable per se to a point where serious harm needs to be demonstrated clearly raises the bar, and that, I think, is a key deterrent to those who may potentially take legal action.

Mention was made of the calculation that is often done, which is not unique to defamation cases, of, for example, a publisher deciding, "Is it worthwhile me fighting this to the fullest extent? Can I settle out of court?". A serious harm test will start to shift that very heavily the other way towards the plaintiff, and lawyers will be saying, "How can we be certain that we will be able to demonstrate serious harm?". Will this act as a major deterrent to people who have been directly libelled or defamed taking that legal action? While I have indicated that I have some quibbles with other aspects of the Bill, that is the most fundamental problem in the Bill at present. It shifts the burden too much against the opportunity for people to defend their reputation.

The Member has been open to say that, essentially, if the Bill gets to Committee, he will take on board whatever is raised there. While the Member's preference is clearly for everything that is in the Bill at present to remain, as a party, we are interested in hearing, during his summing-up remarks, whether he sees that as amendable, potentially by removal from the Bill, or whether he sees that as so fundamental to the Bill that he could not countenance that. That is important.

This is the final point. While it appears as an aim, it is a little bit weak simply to say, "Here is a list of worthy aims". It is a reasonable enough point to talk about accessibility and, on the one hand, put in place what is there and say that, actually, this means that publishers with deeper pockets are not simply protected and that it goes, if you like, to defendants of a less financially substantial nature. However, there is nothing in the Bill that correspondingly addresses what, I think, from a financial point of view, is probably the single biggest problem with defamation, which is the extent to which it is seen on both sides as being a rich person's game. While there has been mention of the intimidation of the big publisher, the problem for those who will sometimes be libelled is that, if they are going against a newspaper, a large online presence or, indeed, one of the major broadcast media organisations, they are going against an organisation that can potentially draw on the best lawyers in the country and draw upon millions of pounds. For the ordinary man in the street, that option is not available. One of the other fundamental changes needed to the Bill, if it is to move ahead, is some way to rebalance that side of it.

From a financial point of view, that is a bigger problem than, if you like, a feeling of financial intimidation among publishers.

The 2013 legislation has not widened access for the ordinary man on the street. Any raising of the bar will act as a deterrent to the next section of people up. It is certainly the case that, since 2013, the mega-rich have effectively been able to take the financial threats of this more casually. If we raise the bar substantially without having any cognisance of the financial impact, it runs the risk of defamation cases becoming much more the preserve of the rich. For example, despite the reform that was made, some of the most recent cases that have been lodged in London are from Russian oligarchs. To be fair, a Russian oligarch should have the same right to protect his or her reputation as anybody else, but, irrespective of where the balance is put, the cost of taking a defamation case is loose change for people like that. With the financial aspects of defamation and, indeed, the balance between the plaintiff and the defendant, we do not want, instead of widening accessibility, which is one of the aims of the Bill, to create a perverse incentive and a scenario in which defamation becomes much more the preserve of those who have very large resources.

My party and I have concerns. It is only fair to give the sponsor of the Bill the opportunity to outline what commitment he will give to reasonable amendments being made at the next stage and whether he thinks that those could be accommodated. The major concern, which, I think, is shared beyond my party, is clause 1. That is a fundamental flaw in the Bill. Can an amendment to that clause be accepted as part of an overall package that would enable the Bill to go through?

Photo of Patsy McGlone Patsy McGlone Social Democratic and Labour Party 12:45 pm, 14th September 2021

I call Jim Allister. Mr Allister, I apologise in advance if I have to cut you off in mid flow. There will be a meeting of the Business Committee at 1.00 pm.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

Thank you. I suspect that you will

[Laughter.]

The danger to the House is that I might get a second go

[Laughter.]

I welcome the debate. I begin by expressing my total amazement that an attempt was made by a Minister, namely the Finance Minister, to thwart and abort the debate by writing to the Speaker and the Business Office asking that the debate should not take place and should be delayed. To his credit, the Speaker properly told the Minister that that was itself out of order, in that it is not for the Executive to dictate the order of business to the Business Committee. However, that was a telling insight into the totalitarian tendency of Ministers in the Executive who think that they can dictate to this elected Assembly when private Members can bring their business to the House. Through their scheduling, the Executive can certainly dictate when they bring their business to the House, but when private Members bring theirs is none of the Executive's business. I welcome the fact that the debate is taking place in spite of that audacious attempt.

With most Bills, a good starting point is often to ask what we are trying to fix and whether the present system is broken. To be absolutely fair to him, when I asked the Bill's sponsor at the Finance Committee whether he could point to any outrageous defamation rulings or awards in recent years in Northern Ireland, he honestly conceded that he could not. We are not in a situation where our defamation laws are so out of control or out of kilter with what they need to be that there is an urgent, irrepressible need for reform. Therefore, as legislators, we should be conscious of the fact that there does not appear to be a compelling requirement to address the issue at this point — not that it is not always good to reflect and reform where we can.

Mr O'Toole made a point, and he may be right; the problem with his point is that there is no way of really knowing that there is a subterranean chill factor whereby letters are written and media organisations fold before the proceedings start. Now, I have enough contacts still in the legal world to know that two of the major parties in the House keep their lawyers very busy writing to the media to object to suggestions that certain things might be published. Maybe that has a chilling effect; I am sure that, to some degree, it does. That is something to go into the balance in considering the issues.

For me, the fundamental, defining issue on the matter is how far we are changing defamation law in the context of its accessibility to the general public. That brings one straight away to clause 1. Today, the test for succeeding in defamation is whether what has been said, in the eyes of the average man or the general public, lowers a person's reputation or what they think of that individual. What clause 1 wants to do is to raise that to a different question, which is this: is that harm serious? That is itself a wholly subjective question. Let me make this point: the proper test for whether something is serious harm or non-serious harm is the level of damages that flow from that harm. In other words, if you secure a judgement that you secure a judgement that you have been defamed, the damages that you get reflect whether the harm caused to you was minor or serious. I respectfully suggest that that is the right arena for the determination of whether something causes "serious harm". However, to make that the threshold to even be able to succeed in defamation proceedings is wrong. It is very much putting the cart before the horse. The situation is that, if your reputation has been damaged, the degree to which it has been damaged is reflected in the damages that you get, not that you must demonstrate a particular level of harm before you are even permitted to succeed. That, I think, is the fundamental flaw, as I see it, in the Bill.

I do not have an issue with much of the rest of the Bill. On the common law translation of the defence of justification into the statutory defence of truth, there is not much difference. On the issue relating to fair comment there is not much difference. Yes, we need to tighten things up for the social media age in which we live. I have difficulties with the abolition of juries, because the fundamental question in a libel case is this: has this man's or woman's reputation been adversely affected in how they are perceived by the general public? Who better to determine that than the general public, who sit on a jury? If that is the question, is that not the right arena for it to be answered? I have some difficulty with that.

I return to clause 1. If we move away from truth as the touchstone of whether there has been libel and change that touchstone to, "Has there been serious harm caused by reason of the lie that was told?", we diminish the very essence of the respect that we have for truth. If we say that you can now tell a lie about someone, provided that you do not cause that person serious harm, we are making a pretty huge change to our libel laws. That is what it comes down to when you deconstruct clause 1. You can cause someone's reputation to be diminished and get away with it because you have not caused the person serious harm. You can tell a lie about someone and get away with it because you have not caused the person serious harm. Is that the sort of law that we want to present on behalf of our citizens? Do we want to say to them, "Yes, it is OK for a newspaper or someone else to tell a lie about you, as long as it does not cause you serious harm"? I do not think that that is the proper approach.

What is "serious harm", and how appropriate is it that a judge, who may not be the person most in touch with everyday life in our society, makes that decision? Is it appropriate that a judge and a judge alone should make that decision about an ordinary citizen, an elevated citizen or someone in the public eye? If harm has been caused to someone's reputation by a lie that was told, surely it is far better to rest in the current situation, whereby you reflect the seriousness of that in the damages awarded, rather than putting in place too high a bar to let the person get the defamation case off the ground.

I read in the explanatory and financial memorandum that this is about making it:

"easier and less expensive to take legal action".

I am sorry, but I just do not see that in the Bill. How is it making it easier by saying to someone, "You have a higher threshold to meet before you start"? On any interpretation, that makes it harder. When someone goes to consult their solicitor and/or barrister to discuss the viability of bringing a case, that person will now have to be told, "It's not whether your reputation was damaged; it's whether that damage caused you serious harm". That does not make it easier; it makes it harder. That is why the very first principle that is supposedly espoused in the document is denied by its own content.

Photo of Andrew Muir Andrew Muir Alliance

I thank the Member for his contribution. He is right to focus on the issue of serious harm, because that is where the major debate will be if the Bill passes its Second Reading. When I was considering the Bill and the context behind it, I looked up the background to it all. On 3 May 2013, there was an article by the late and great Liam Clarke that gave the background to it. If this has been misquoted, I am happy to be corrected, but it states:

"Jim Allister, a barrister", which you are,

"said: 'We will create a very difficult situation for ourselves if we don't adopt the bill here, but it will be good for lawyers of course.'"

I want to understand, from your perspective, why your view of the Bill today differs from your view back in 2013.

Photo of Jim Allister Jim Allister Traditional Unionist Voice 1:00 pm, 14th September 2021

I have no recollection of talking to Mr Clarke at all about this, so I am dependent on the accuracy of his reporting. I do not want to at all impugn someone who has passed this scene of time, but I do not recognise the short extract that you read. That is all that I can say to you. However, the question for today is this: are we or are we not on the right path?

I think that Mr Deputy Speaker is about to tell me to sit down.

[Laughter.]

Photo of Patsy McGlone Patsy McGlone Social Democratic and Labour Party

Just on that path, I will consult the barrister now. The Business Committee has arranged to meet at 1.00 pm today. I propose, therefore, by leave of the Assembly, to suspend the sitting until 2.00 pm. The first item of business when we return will be questions to the Minister of Agriculture, Environment and Rural Affairs.

The debate stood suspended. The sitting was suspended at 1.00 pm.

On resuming (Mr Deputy Speaker [Mr Beggs] in the Chair) —