Defamation Bill: Second Stage

Private Members' Business – in the Northern Ireland Assembly at 3:00 pm on 14th September 2021.

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Debate resumed on motion:

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

Photo of Jim Allister Jim Allister Traditional Unionist Voice

I am flattered that Mr Muir seems to keep a file of my past utterances. It is just a pity that he does not heed them a little more, but there you go.

[Laughter.]

Before we broke for lunch, he intervened to ask me about a purported quotation from me in the 'Belfast Telegraph' from 2012, I think, in which I was reported to have said that, if we did not follow the 2013 Act, we would be in a difficult position. As to whether I said that, when you read the entirety of the article, the question that I was answering is clear. The burden of the article was that there was going to be a huge avalanche of libel tourism in Northern Ireland if we were the only place that did not follow the 2013 Act. I said that that would indeed create a very difficult situation.

Things have turned out very differently, however, despite those warnings that, if we did not follow the 2013 Act, there would be libel tourism. There was talk about Russian oligarchs and all sorts flooding our High Court. Some statistics speak to the truth of the matter. In the three or four years before 2013, we had an average of 35 writs for defamation issued in Northern Ireland. In the corresponding period since 2013, the average number of writs issued for defamation in Northern Ireland is 30. Far from an increase, there has been a slight decrease but, really, little if any impact. Libel tourism was a straw man in all of this. That therefore enables us to examine the present legislative proposal free from that pressure and burden. When you examine it free from that pressure and burden, it leaves you, of necessity, to consider every clause.

I have indicated that clause 1 troubles me most, and it does so because of the raising of the bar for how you can obtain remedy for defamation. I have dealt with most of my points about that, but I just want to make a couple of others. As in any civil proceedings, the onus is on the plaintiff to prove their case on the balance of probabilities. If, however, you have to prove your case on the balance of probabilities that not only was there harm but there was serious harm, it is clearly a much more difficult hurdle.

That is in circumstances in which, if you are suing a media organisation, it is most likely in a position where it has insurance. The plaintiff can never have anything other than his own resources, because it is just not possible to get legal aid in defamation cases.

It is an uneven playing field before you ever start. You are suing a body that, more often than not, as Mr Nesbitt bore witness to, has insurers that will pick up the tab, although, as Mr Nesbitt told us, you have to follow their directions. Against that is a plaintiff who is very upset at what has been said about them and who now has an extra consideration. First, they have to consider that, to do anything about this, they have to risk taking legal proceedings. If they lose those legal proceedings, there is no safety net of legal aid, and they will therefore have to pay everyone's costs, including those of the large- or medium-sized media organisation. Now, however, that plaintiff also has to consider whether they can get over the hurdle of proving this unspecified, subjective criterion of serious harm. What will a judge say serious harm is in their circumstances? That is another imponderable. It is not just a matter of deciding, "I have been lied about, and my reputation has suffered". This law would say that, unless there is serious harm, a reputation is entitled to suffer. Is that a good place to be? Is it good to say that anyone — a media organisation, an individual or anyone whatsoever — can tell a lie about you and damage your reputation, provided that they do not overdo it to the point where they have caused you serious harm?

Serious harm to one person might not be serious harm to another. In the eyes of a plaintiff, the harm might seem very serious but, in the eyes of an outsider, it might not seem serious at all. Our concern should be for the person affected — the little man. Clause 1 creates a hurdle that says to the little man, "It is not only that you have to take all the financial risks. It is not only that you cannot get insurance against being libelled when those that you have to sue do have insurance. Now, even to venture to sue, you need to be satisfied that you can prove serious harm. Then, if you get to the point where the judge says, 'Sorry, there is harm but, in my view, it is not serious harm', you will have lost, and you will pay everyone's costs, because costs follow the event. The individual who takes the risk — a risk that is present in libel in any event but would be enhanced risk by having to seek to show serious harm — and fails, having not got past that point, emerges in a far worse position, even though he has already suffered harm. He emerges with a huge bill to add to the harm that he has already suffered, but it was not enough harm to be called serious.

How can we possibly rush into creating that situation? I say to the House that we need to pause and think very carefully about whether that is where we want to go. For me, this is the compelling and determinative issue. I echo what Mr Weir said to the sponsor: when he comes to make a winding-up speech on the debate, will he indicate whether clause 1 is a make-or-break clause for the Bill? If it is not, it would be much easier — I can speak only for myself — to go through the Aye Lobby, because there are other things that it would probably be useful to do, not least in respect of scientific journals and social media. It is critical that we know whether the sponsor is going to die in a ditch over clause 1. A very clear answer to that would be helpful as we seek to move the matter forward.

Photo of Conor Murphy Conor Murphy Sinn Féin 3:15 pm, 14th September 2021

I welcome the opportunity to speak in the debate. I will say at the outset that our request to look again at the timing of the debate was on the back of a series of attempted engagements. We offered to speak to the Bill's sponsor; I wrote to him in, I think, July. He did not take up the offer, which is his prerogative. When we discovered that the Committee hearing would quickly be followed by the Second Stage, we wanted an opportunity to speak to the Committee. I accept in all that that the Department should have been more alert to the timetables involved. I am not sure where the Committee Chair got the idea that officials were denied access to the Committee. That was never the case; we did not make a request to address the Committee. However, that was the rationale behind that. For the record, I accept that we should have been more alert to the timing of all those things and had our opportunity to speak to the Committee ahead of that time, in which case the request for a delay in the debate would not have been necessary. Nonetheless, we are where we are today.

One thing in the debate that has been consistent is that every Member I heard speak agreed that reform is necessary. There is no one who disagrees; no one said that the situation that we have is satisfactory or that it is doing the right job for the right people in the right balance. The question is this: is the Bill is the right vehicle for that reform? One of the difficulties with being the penultimate Member to speak in the debate is that other Members have dissected quite a lot of the important parts of the Bill and offered some concerns and criticisms about how it would operate. I share a lot of them. I do not propose for the sake of the debate to repeat or go into the areas that they went in to, but the central question for all of us here, regardless of whether the Bill goes on to other stages, is this: is the Bill the right vehicle for what we all agree is a very necessary process of reform? The Bill is not a fresh piece of legislation. I think that everyone accepts that. It is a straight replication of the Defamation Act that was passed in Westminster in 2013, which was eight years ago. In terms of modern-day technology and media platforms, that is a lifetime ago. We live in a digital age. Defamatory statements can easily be posted on social media platforms and rapidly circulated online and by word of mouth. Within hours, a person's reputation can be destroyed, causing great distress to them and their families. It is primarily women who bear the brunt of abuse and defamation from online trolls. The legislation does not deal with that fundamental issue.

In replicating the 2013 Act, the private Member's Bill also introduces serious harm, which was dwelt on quite considerably by Mr Allister. That means that it is not sufficient for a person to prove that their reputation has been damaged by a defamatory statement; they also have to demonstrate that they have been seriously harmed. He articulated that, given his knowledge of the legal system, probably better than I could, so I will rest with his questioning in that regard. The original intention of serious harm was to exclude frivolous claims. In reality, it makes it easier for public figures, by virtue of their public profile and reputation, to demonstrate serious harm; in other words, the rich and the powerful are better protected than perhaps the ordinary man or woman on the street. As the Bill sponsor suggested, it is, indeed, about the money when it comes to that outcome from the legislation. Some of the most enthusiastic supporters of the Bill spoke from the perspective of media organisations — given their background, that is understandable — be they large or small, in that regard. However, there is a question about accessibility and the ability to get remedy for ordinary people who do not have deep pockets or insurance cover, as Members referred to.

There are other serious concerns with the legislation. One is the removal of jury trials. There have been no jury trials on defamation matters in England or Wales since the Defamation Act was passed, leaving the view on whether reputations have been harmed solely with a judge. The single publication rule has also been shown to be problematic. Although it was designed to simplify matters, it may have ended up complicating them. Those flaws were highlighted at the time and have only grown in the eight years since the Defamation Act was passed.

Dr Andrew Scott has been referred to often in the debate. He has published and spoken quite a lot on the issue, and it seems that his arguments can be mustered on either side of the debate. In his report, he advised against a straightforward replication of the 2013 Act. Instead, he proposed that we develop our own bespoke legislation. One of the messages coming from a conference of academic lawyers held in Dublin at the end of 2019 was that the Defamation Act 2013 was not a good model for defamation law. People have said that the 2013 Act has tipped the balance away from reputational rights and privacy.

That legislation could offer lessons to bespoke legislation that we might produce. It is my intention that such legislation will come forward from the Department of Finance. It could take lessons from the 2013 Act, and it could take into account the Irish Government's review of defamation law, which is expected to conclude shortly. The importance of that review is that it includes the most up-to-date examination of how to address online defamation. It is not simply a matter of our taking an all-Ireland approach to these matters but of taking examples of best practice and research from other places. Mr O'Toole said that we could come back to that and insert a clause that adds in bits of that review, if it proves OK. My argument is: why rush into this? Why not wait until we do our own research, get the most up-to-date advice and information and produce legislation in the next mandate?

My Department is ready to prepare state-of-the-art legislation. I accept, without reservation, that this has gone on for far too long. I wish that it had been dealt with from 2013 onwards. However, given the experience of the pandemic and the pressures on people's time, only now are we in a place where we can work on this. I want to see that work progress with all speed. I am very happy to work in a collegial manner with Members from all parties as we take this forward. We can take a bit more time to get it right. There is no sign, as others said, that we are beset by libel tourism, which was one of the great warnings attached to the 2013 legislation and its absence here. There is no evidence that people are choosing this jurisdiction for their defamation actions because they think that they will get more leniency and a better outcome. As a matter of fact, it has been pointed out that, by comparison, the number of cases has dropped in the intervening period.

We see no evidence that scientists or academics in our universities are mincing their words or that journalists here are more cautious. You can buy the same books, magazines, papers and academic journals here as you can buy in London, Dublin or New York. I have not heard of a single book, article or news story that could be published in London or Dublin but had to be held back here for fear of our defamation laws. I see no evidence that we need to move urgently on defamation law because major human rights or freedom of expression issues are at stake or because every other tourist here is a libel tourist. That is why, even though it is beyond time when this should have been done, the correct action is to take time to do it right.

The Assembly faces a choice. We can do our research, undertake proper consultation and bring forward considered and well-thought-through legislation, or Members can cut and paste this outdated and flawed legislation and try to fix it, which seems to be what the Bill sponsor is suggesting, as it is rushed through the remaining months of this mandate. The Bill sponsor has suggested that the Committee, which seems to be the focus of the burden of trying to correct the Bill, could deconstruct and reconstruct it. The Committee will have to decide whether it wishes to use resources in the time ahead to undertake such an onerous exercise. The Department will have to consider its approach as to what it might do in the time ahead, should the Bill get through Second Stage today.

Our efforts would be better invested in developing new and effective legislation rather than trying to fix a flawed Bill. If Members are convinced that this is the right vehicle and that they can patch it up as it goes along, good luck to them. My focus will remain on developing bespoke legislation, based on the latest consultation-led evidence, which will do the necessary task properly in the next mandate.

Photo of Roy Beggs Roy Beggs UUP

I call Mike Nesbitt to conclude and respond to the debate.

Photo of Mike Nesbitt Mike Nesbitt UUP 3:30 pm, 14th September 2021

Thank you, Mr Deputy Speaker. I thank every Member who has shown an interest in the Bill, particularly those who have spoken in the debate, and especially the Minister for turning up. He will not be surprised that I do not necessarily agree with everything that he had to say, and I will return to that in a moment.

Rather than just go through what each Member said turn by turn, I would like to address the themes that have emerged, and themes certainly have emerged during the debate. One is that just about every Member agrees that, in principle, our laws are fit for reform, upgrading and modernisation.

I make an exception for Mr Allister, who questioned whether it is broken. He asked me at Committee to come up with an example of a recent defamation case in court where there had been a bad result or where the quantum awarded by the jury was out of kilter. As he pointed out today, I was unable to do so. However, I would argue that that is not the best test. Like the swan, a lot of the activities go on below the waterline. They are unseen. There are a number of legal letters being issued, threatening potential publishers that if they make that communication, they will be sued.

As I said, in the three times that I have been involved, it was not even a question of the media organisations' lawyers weighing up the pros and cons of freedom of speech versus protection of reputation. It was the insurers saying, "If you go to court, we will not cover you. We have made a financial consideration and we reckon that you can settle it for x thousand pounds, which is a much better prospect to us than risking going to court and the jury awarding ten times x thousand pounds if the claimant wins the case".

The other clear theme is that clause 1, which relates to serious harm, is in serious trouble. Some Members, including Mr Buchanan and Mr Weir, asked whether I can assuage concerns and give guarantees that there are no red lines and no immovable clauses as far as I am concerned. I hope that it will assure them that, if it goes to Committee, let us say that it is the equivalent of a tall building built of Lego. I would expect Committee members to take it apart brick by brick, examine every brick and then put it back together. However, when you put it back together, it might be missing a storey or two, so there is no clause that I want to die in a ditch over.

I take the concerns that have been expressed about serious harm, but I do not think that it is for me to say that serious harm has this meaning or this threshold. Mr Weir made the point that we come from different backgrounds; he comes from a legal background, and I come from the media. I was reflecting on that over lunch. I am not an expert on the media. I am very interested in the media. If you had asked me, when I was working in the BBC in the 80s, if I knew the BBC, I would have said that I knew pretty well how the BBC worked. During 13 years at UTV, if you had asked me if I knew how Ulster Television worked, I would have said, "Yes, pretty well", but I do not know about the 'Belfast Telegraph', 'The Irish News', the 'News Letter', the Sundays or the subregional weekly papers, so I am not an expert. Some people with a legal background are good on family law, commercial law or media law but not the law, period.

I suggest that, when it comes to something like serious harm, if you allow it to go to Committee, it is not my opinion that you will want to hear. Why would you not want to hear the opinion of, for example, Lady Chief Justice Keegan or Lord Justice Gillen, who carried out the review of civil justice, or experts in media law or Citizen's Advice on the number of times the ordinary person comes looking for advice on how to carry out a defamation action? I am not trying to set out the forward work programme of the Committee for Finance; I am just suggesting that that might be a better way to proceed than asking me what I mean.

Of course, the defamation law in England is from 2013. It is eight years old, so there is a body of case law. By the way, some of it is referred to on page 3 of the explanatory and financial memorandum. I am more than happy, if the Finance Committee wants to take that course of action after the debate, and the conclusion is that serious harm is not a good way in which to go forward, that we do not go forward with clause 1 and we go forward with something else. If we do not go with serious harm — I hope that this assures Mr Allister on another point, which is the concern that has been raised about non-jury trials — and we stick with the current test, which is, effectively, whether the statement that is made about you make an ordinary, decent, right-thinking person think less of you, the argument swings, in my mind, back towards having a jury trial. If it is serious harm, I can see why a judge could be put in that position, but, if it is the current test, we may wish to swing back to a jury trial. To a certain extent, clause 1 is linked to clause 11. I hope that that assures Members.

Mr Buchanan listed specific areas. I did not make a note of them. I hope that that general assurance is enough, but, if there are specifics, I am more than happy to address them. Mr McGuigan also raised his concern about jury trials. I hope that that assures him.

By the way, I should have declared that I am the vice chairperson of the all-party group on press freedom and media sustainability. Mr O'Toole is the Chair. He made the point that we could, at a later stage, take account of any changes that are introduced in the Republic of Ireland, where they are in the process of reviewing their defamation laws. That is perfectly reasonable. I would add that we could also take account of any changes that might be made out of Westminster, because the Defamation Act is now eight years old. Many Members have made the point that it is imperfect. I would imagine that, at least behind the scenes, those who have taken a lifelong interest in the issue are thinking about it and whether it is timely to bring forward some sort of amendment or update in the legislature at Westminster.

On a couple of points of factual accuracy, I think that Mr Muir referred to the fact that I had shared a letter from the Finance Minister with the Committee. I did not actually share the letter; I referred to it. Just to be clear about references to Dublin: it was my inference that the Minister may be looking at an all-island solution. That is my inference; it is not necessarily what he is proposing. That difference highlights the need for a single meaning rule, because he is taking one meaning out of it and I intended another. On that basis, he made the point that he invited me to meet him to discuss the Bill, and he was correct — the letter was dated 21 July — but, again, there was a misunderstanding there, because I was waiting for a call from his Department. He finished by making the offer of a meeting. When I offer a meeting, for example, to a constituent, I say, "If you would like to take me up on that, please call my office on 02891 82" etc, or "email Richard at the email address". That is not part of the letter from the Minister. I was waiting for a call from the Department. I regret that confusion, because I would rather work with than against the Minister. That having been said, in his penultimate paragraph, he says:

"I cannot support your Bill, with or without qualification".

He is hardly playing footsie with me on that issue.

I will wrap it up there. I apologise if I have not mentioned any particular Member. Sorry: I beg your pardon. Mr McHugh said that there were many flaws but specified only the issue of serious harm. I hope that he will agree to let it go to Committee, so that he can rehearse all the other serious flaws that he believes are in it. On a matter of factual accuracy, I got the impression from Mr McHugh's remarks that he felt that, back in 2013, as soon as the Bill was passed at Westminster, we collectively decided that we would do our own thing. That is not quite right. On 28 March 2013, in answer to my question for priority written answer, the Finance Minister of the day said:

"There are no plans to review the law of defamation in Northern Ireland." — [Official Report (Hansard), Bound Volume 83, pWA225].

Later that year, on 3 June, I asked the late Martin McGuinness whether the Executive was going to consider the issue. He said:

"It is very important to say that the Executive have not taken any decision in relation to a Defamation Bill. It never appeared on the agenda of any Executive meeting, and it was certainly never given to me, as deputy First Minister, for agreement to be reached between myself and the First Minister in relation to what goes on the agenda of an Executive meeting". — [Official Report (Hansard), Bound Volume 85, p296, col 1].

It was only after I formally brought forward the private Member's Bill that there was a change of attitude. There had been a change of Finance Minister by then. As I said, it was Simon Hamilton who engaged with David Ford and the Northern Ireland Law Commission to commission Andrew Scott. If you were cynical, you could say that Simon was kicking the can down the road. You could also take the much more benign view that Simon was saying to the Law Commission, "Give me the evidence base to do something about this — to bring on a Bill to reform the laws on defamation".

My final thought is directed to the Minister, who has been saying, "Why rush?". It is 14 September 2021, and the first record of me mentioning reform of defamation law was on 28 March not 2021, 2020, 2019, 2018, 2017, 2016, 2015, 2014, but 2013: eight and a half years ago. If that is a rush, good luck on the doorstep looking for a vote. Eight and a half years. Do we really want to let the perfect be the enemy of the good at this point?

I remember that when I was campaigning to get into this Assembly 10 years ago, I was listening to a news conference on the radio when a then Executive Minister was being grilled about why it was taking so long to make a decision about a certain issue. The Minister said, "Well, this is a very important issue, so we have to take the time to get it right". I remember thinking, "That is nonsense; there is no right decision. What you have is a series of options, all of which have downsides. Your job is to make the judgement call about which one to go with and how best to manage that downside".

That is where we are with this private Member's Bill on defamation. There is no right answer; there is a series of options that have good aspects but also downsides. Ivan Turgenev, a Russian novelist, put it like this:

"If we wait for the moment when everything, absolutely everything, is ready, we shall never begin."

We have enough in this Bill to begin. I commend it to the House at Second Stage.

Question put and agreed to. Resolved:

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

Photo of Roy Beggs Roy Beggs UUP

I ask Members to take their ease for a few moments.

(Mr Speaker in the Chair)