Niamh Hargan - Media Law and Practice at University of Ulster Explained

[Niamh Hargan, a recently qualified solicitor took part in the new curriculum, Media Law and Practice, at the University of Ulster. A joint venture between the University of Ulster and SmithDehn LLP. She shares her experience of the course:]


As recently reported on Media Law Northern Ireland and elsewhere, this month has seen yet more exciting news for our burgeoning local film and television industry.

At a launch party on April 26th, international media and entertainment law firm SmithDehn LLP, together with production company Social Construct Media, announced the intention to establish their key European base in Derry later this year.

Already, though, these innovative twin companies have been making an impact: for the past twelve weeks, they have been teaching a pilot course in Media Law and Practice at the University of Ulster’s Magee campus, with partner and CEO Russell Smith at the helm. Among the 30 students, of which I was one, several had a background in legal studies and/or practice, whilst others brought hands-on

Hugh Tomlinson QC - Privacy and Defamation, Strasbourg blurs the boundaries

It is now clearly established in the case law of the Court of Human Rights that Article 8 protects the “right to reputation” as an aspect of private life. This is a relatively new idea, first appearing the case law as recently as 2004 (see Chauvy v France [70]).

The development was a controversial one because “reputation” was deliberately left out of Article 8 when the Convention was drafted (see our posts by Heather Rogers QC “Is there a right to reputation?“, Part 1 and Part 2). Nevertheless, the case law in both Strasbourg and the domestic courts is clear and consistent and is not likely to be reversed.

Dealing with reputation as a Convention Right: the first nine years

The recognition of reputation as a Convention right means that, when it considers defamation cases, the Court needs to balance freedom of expression and reputation from a starting point that neither takes precedence. This is a similar exercise to that carried out in privacy cases and there is a clear risk of the boundary between privacy and defamation becoming blurred (see generally, “Strasbourg on Privacy and Reputation”, Parts 1, 2 and 3).

Introducing News Sniffer (@news_sniffer)

Hello World! http://t.co/7zkQ3zsG
— News Sniffer (@news_sniffer) March 30, 2012

Yesterday we introduced Irishnewsdiffs.com, today it's News Sniffer. A tool and tracker that does the same job but for the banner online newspapers.

We're now monitoring selected feeds from The @Independent and The @washingtonpost http://t.co/3jJUWOO0qt
— News Sniffer (@news_sniffer) February 12, 2014

News Sniffer now tracks changes to The New York Times articles: http://t.co/xoTngQTL #nytimes
— News Sniffer (@news_sniffer) August 28, 2012

Added Guardian's Comment is Free article feed. Support for the New York Times is in the pipes too. http://t.co/7zkLvZjw
— News Sniffer (@news_sniffer) August 22, 2012

Introducing irishnewsdiffs.com (@IrishNewsDiffs)

http://t.co/hAYmpcvhWS is now live. Tracking changes to http://t.co/l0k311Hu63 and http://t.co/OtrZXcgasw << I see this becoming invaluable.
— TJ McIntyre (@tjmcintyre) April 7, 2014

@tjmcintyre @Tupp_Ed To highlight differences in coverage? Can you explain? I think I have a case of Monday brain.
— Bernard Tyers (@bernardtyers) April 14, 2014

@bernardtyers Hopefully it will show up the effect of defamation threats. Also, other changes in response to pressure.
— TJ McIntyre (@tjmcintyre) April 14, 2014

Further explanation here:

"Irish NewsDiffs archives changes in articles after publication. Currently, we track rte.ie, and irishtimes.com. 

NewsDiffs, which was born out of the Knight Mozilla MIT hackathon in June 2012, is trying to solve the problem of archiving news in the constantly evolving world of online journalism.

The original NewsDiffs is at newsdiffs.org

This version was launched in April 2014 to track changes to Irish news websites.

Event - Launch of the Libel Reform Campaign Northern Ireland

The Libel Reform Campaign present a petition with 60,000 signatures to Downing Street in 2012

The immensely successful Libel Reform Campaign is coming to Belfast and Northern Ireland (sign up here):

"On Wednesday 7 May at 10am the Libel Reform Campaign will be bringing together writers, journalists, scientists, academics, human rights advocates and civil society to form a coalition to bring reform of the law of libel to Northern Ireland. 

With the launch of the Northern Ireland Law Commission consultation on libel reform expected in the coming months, a strong coalition will be needed that makes the case for reform of these archaic laws. You can read the campaign's criticisms of the law and the process that led to the new Defamation Act not being applied to Northern Ireland here and here. 

We would very much appreciate your participation in this coalition and your attendance at this event to bring together the coalition. I will be joined by Jo Glanville from English PEN, Sile Lane from Sense About Science and other Libel Reform campaigners. 

The event will be hosted in The Lab at the Belfast MAC (10 Exchange Street West, Belfast BT1 2NJ) from 10am - 12.30pm on 7 May. Plenty of coffee and pastries will be provided."

Sign up and register your attendance here.

Paul Tweed to launch JAMS Ireland

Martin McGuinness with Taoiseach Enda Kenny and PM David Cameron

Former IRA commander Martin McGuinness attended the State Banquet hosted by Queen Elizabeth. The Irish Times wrote:

"Had you asked anyone of a certain generation in Northern Ireland if they could ever see the Queen of England and Martin McGuiinness sitting down to have dinner you'd have been told to 'Get Your  Head Seen.'

On this occassion, Paul Tweed (@Paul_Tweed) has announced his intention to launch JAMS Ireland, specialising in finding solutions for political and diplomatic disputes within Ireland and across the globe. The Company will have facilities in Belfast and Dublin and will bring together a panel of experts including Brian Mawhinney (former Northern Ireland Minister) and Paul O'Higgins SC (Chairman - Irish Bar Council).

Mike Gilson and Mike Nesbitt give evidence before the Finance Committee

Video of Mike Gilson here. Video of Mike Nesbitt here (2hr7m). Text of Mike Gilson here and text of Mike Nesbitt here.

Brian Spencer - The DUP's fight against Libel Reform

GRAPHIC on the story of Libel Reform in Northern Ireland (in full here)

[This was originally published on eamonnmallie.com and Off the Record]
(updated below)


Introducing the Defamation Act 2013

On January 1 2014 the Defamation Act 2013 came into effect in England and Wales.

The new law strengthens freedom of expression and gives a warm hand to journalists, writers, academics and scientists. The new law increases the freedom of readers to receive information. The new law strengthens the free speech position of every internet, social media and Twitter user. Olivia O’Kane explains the changes here.

Northern Ireland retains the old law. A law described by the UK as a “national embarrassment” and by the US as “repugnant” to their Constitution. A law slated by Geoffrey Bindman QC in 1994 as “seriously unbalanced and fundamentally flawed”. In fact, the US enacted the SPEECH Act in 2010 whose very purpose was to nullify and negate the chilling effect of our speech law on their US-based journalists.

Dara O'Briain and friends on the old libel law

Mike Harris - "Why is free speech not good enough for Northern Ireland?"

Writing in the Huffington Post here, Mike Harris (@mjrharris) has called the DUP's decision to veto libel reform an outrageous decision. He began by explaining the campaign for libel reform in England and Wales:

"It took endless humiliation before parliament got the message and decided to reform the law of libel: the UN Human Rights Council said our libel law chilled free speech across the entire globe, American academics faced our courts for writing about the funding of Al Qaeda, Barack Obama signed into law an act to protect Americans from our libel law and decent scientists such as Simon Singh Ben Goldacre and NHS cardiologist Pete Wilsmhurst faced ruin thanks to the law.

Olivia O'Kane - Number of Defamation claims in 2013 in Northern Ireland stabilise

	2008	2009	2010	2011	2012	2013
Cases Received	55	46	54	31	31	27
Non-Court Disposals	20	196	55	17	6	10
Found for Plaintiff	ND	1	4	ND	3	2
Found for Defendant	1	ND	ND	ND	-	-
Damages	ND	£75,000	£57,001	£31,001	£112,505	£68,000

Table 1: High Court Libel Proceedings

Court records show that the number of libel cases issued in Northern Ireland in 2013 remains at a similar level to 2011 and 2012. The total of all claims, in the High Court and the County Court, was 32 in 2012 and 30 in 2013.

Of the total of 64 claims issued in 2012 and 2013, 37 were claims against broadcast or print media defendants. There were 3 trials in 2012 and 2 in 2013. All of them were determined in favour of the plaintiffs.

The aggregate damages awarded in all defamation cases in 2012 was £112.505 – with the largest award being £80,000 in the case of Declan Gormley v Sinn Fein. In 2013, the aggregate damages awarded were £68,000 (2 judgments and one announced settlement).This is an updated version of the table from my 2012 post on Northern Ireland defamation cases.

Table 2: County Court Libel/Slander proceedings

	2008	2009	2010	2011	2012	2013
Cases Received	-	3	1	1	1	3
Court Disposals	1	-	3	1	1	1
Found for Plaintiff	-	-	1	-	-	-
Found for Respondent	1	-	2	1	-	-
Damages	ND	-	£1,000	ND	-	-

Notes:

Data for 2013 should be treated as provisional

ND denotes NOT DISCLOSED

A case may not necessarily be dealt with in the same calendar year as it is received.

Olivia O’Kane is specialist media lawyer at Belfast solicitors Carson McDowell

Protecting Journalist-Source Privilege in Australia

[This is a guest post by Peter Bartlett and Amanda Jolson (@amanda_jolson) of Minter Ellison (@MintersTMT) on Australia's shield laws. Shield laws are designed to protect the confidentiality of the journalist-source relationship. However there has been a sustained attempt to erode those protections that guard the journalist-source relationship. Peter Bartlett and Amanda Jolson Minter Ellison explain.]


The Media Entertainment and Arts Alliance has called for uniform national shield laws. Christopher Warren, the Federal Secretary of the Alliance correctly referred to Australia's shield laws as "patchy and disparate."
According to Chris "it is appalling journalists are served with a subpoena that essentially would require them to breach their ethical obligation."

The comments followed this week's decision by Justice Janine Pritchard in the Supreme Court allowing us to seek special legal costs from Hancock Prospecting (Gina Rinehart). Hancock Prospecting had sought disclosure of sources from Fairfax's award winning journalist, Adele Ferguson.

Over recent years a number of Australian jurisdictions have adopted 'shield laws' that provide greater protection to the confidentiality of a source, and make it harder to compel journalists to reveal their sources to a court. These laws do not bestow an absolute privilege, but rather discretion available to the court to excuse the journalist from identifying an informant.

Northern Ireland Journalists told to hold back in name of peace process

Mick Fealty recently made two observations about Northern Ireland journalism.

One, he suggested that journalists are encumbered to and bound by the wishes of the media outlet's owner. He said:

“Rocking the boat”, I suspect, was never that big on the journalist’s agenda, particularly if not exactly to the proprietor’s taste. In any case, rocking it has more often been a case of cumulative work rather than going for it in one steady hit.

Two, he also suggested that journalists in Northern Ireland suffer from conformity and convention:

"Too many journalists still hunt in packs and so end up producing what Hugo Dixon calls ‘Me Too’ journalism. In the close confines of Northern Ireland this can lead to political pressures to conform (by not asking stupid questions) for the sake of our increasingly geriatric Peace Process™."

Mick Fealty had previously looked at the concentrated pressure for journalists to conform. He quoted an Irish Times report:  

"In [Northern Ireland] journalists were sometimes told to hold back on a story in case they might do damage to the delicate administration. While this was not a point to ignore, you couldn’t make exceptions."

But Mick Fealty has said how Northern Ireland journalists should operate:

"I’ve no doubt of the contribution, but the “well-behaved witness” now needs to start asking “stupid” questions. Otherwise false, or partial, narratives will go unchallenged as those witnesses continue to ignore “the bits that do not suit particular prejudices”. And when “agreed truth becomes accepted, the real truth becomes a lie”."

Wayne Denner - Do we really think about or pay attention to our Online Reputation?

Sadly NO! At least we have not begun to take the role of Protecting our Online Reputation seriously. But here’s the thing - once it goes online.. it stays online.

It’s not that it’s difficult to remove. It’s near impossible.

Therefore, Online Reputation, which yours truly has been banging on about on Twitter and Facebook, is serious, and it needs your attention RIGHT NOW.

But Wayne stop being over dramatic. Chill. How could a simple tweet or a Facebook post get me in trouble? Well it can, it does and it may cost you some hard earned $$. $105,000 to be exact in the case of former student of NSW School Andrew Farley who was ordered to pay this amount for “compensatory and aggravated damages” for making false allegations about music teacher Christine Mickle on Twitter & Facebook.   

Mike Harris - House of Lords sends a clear message to Stormont: reform of the libel law is overdue

Last Tuesday, Lord Lexden alongside Lord Bew and Lord Black tabled an amendment to the Northern Ireland (Miscellaneous Provisions) Bill to extend the Defamation Act 2013 to Northern Ireland. Seeing the impact on freedom of expression and the opaque manner in which this issue has been handled, respected parliamentarians spoke up for the amendment. The government refused to accept the motion and it was not put to the vote, but the debate itself had the desired impact. The amendment was a direct challenge to the DUP who feel that they alone can decide on libel reform for Northern Ireland.

It remains the case that very few know why the Defamation Bill does not apply to Northern Ireland, an outrageous decision that has created a gaping loophole in the government's attempts to reform the UK's libel laws. As I noted in the Huffington Post, the humiliating rebuke by the United Nations Human Rights Council to the previous state of the libel law in England, Wales and Northern Ireland led to:

“the three major political parties to make a commitment to libel reform in their general election manifestos in 2010. They didn't qualify this bold commitment with "except in Northern Ireland". Why would they? The law in Northern Ireland has always been substantially the same as the law in England and Wales, that is until the government reformed it. At no point in the parliamentary debate did the government signal the Defamation Bill would not apply to the citizens of Northern Ireland.”

Paul McDonnell - Northern Ireland is a libel-friendly, free-speech limiting outpost

Northern Ireland media lawyer Paul McDonnell (@_PaulMcDonnell_) of McKinty and Wright was cited by Lord Lexden in a House of Lords debate. Lord Lexden read out his submission in full:

"The refusal of the Northern Ireland executive to extend to Northern Ireland the remit of the Defamation Act and the legal clarity and free speech protection it brings, is quite simply unjustifiable. Why should the citizens and journalists of Northern Ireland not be afforded the same protection of those in the rest of the United Kingdom, whether they are expressing opinions online or holding government to account. Why as the rest of the United Kingdom embraces the digital revolution, should Northern Ireland be confined by our archaic and unfocused freedom of expression laws? 

Blindfolding the public on libel reform

This is the problem we see time and time again: lawyers gag journalists, and in doing so they blind the general public.

Excellent stuff by @SLSingh: "Libel laws don’t just gag me, they blindfold you" in The Sunday Times today http://bit.ly/441sZm #SinghBCA
— Free Debate (@freedebate) October 18, 2009

We reported on the Sunday Politics NI debate here. The segment presented both the assenting and dissenting views on the matter of libel reform in Northern Ireland, (from Lord Bew and Paul Tweed respectively). We covered both sides of the debate and gave a full and equal airing to Lord Bew and Paul Tweed. However in the video above and here, Paul Tweed has decided to edit out those people who support libel reform and oppose his view. He has decided to presented an entirely one sided view.

This is a matter for concern. The public can view the Sunday Politics NI debate for only 7 days after the initial broadcast. Thereafter it will be removed from the public domain. The Paul Tweed edited version is on YouTube and will remain there until the day he decides to remove it. By this avenue of debate the public has been blindfolded.

He has given his airing to the public, but in doing so has screened out those voices that don't suit his agenda. Is that right? We support free speech and advocate that all voices be heard.

Paul's video coverage here. Our coverage here.

The "blizzard", "confetti", "volume" and "bombardment" of vexatious libel writs against Northern Ireland journalists

Northern Ireland journalists have repeatedly referred to the journalistic climate of libel intimidation in Northern Ireland.

• Mike Gilson has worked across the British Isles and has said that Northern Ireland sees far more "vexatious claims". 
• Sam McBride has spoken of the "volume" of libel writs. 
• Anthony McIntyre has said that letters are sent like "confetti". 
• Newton Emerson has spoken of a "blizzard" of writs. 
• BBC producer and peer Viscount Colville of Culross said that journalists had been "bombarded with daily, sometimes hourly, threats of defamation." 
• Lord Lester of Herne Hill explained how a journalist who he represented sued by the Irish News for £25,000 found the "experience was so traumatic that she gave up her profession as a journalist." 
• Ruth Dudley Edwards spoke of "the DUP’s enthusiasm for restrictive libel laws."
• Mick Fealty said: "I can think of more than one Northern Irish politician that’s none to slow to pull the legal trigger when the occasion arises." 
• Mick Fealty also said: "Who needs to visit Pyongyang when we can have Pyongyang here?" 
• More worryingly, Mick Fealty reported that NI politicians now enjoy commercial indemnity, meaning "our MLAs want to be able to sue our ass. But be allowed lie with impunity." 
• Eamonn Mallie has said "I'll see you in court" is the DUP's new "war cry". 
• Journalist Patrick Kane (@patrick_kane_) said that the libel law system has been "exploited by many, and gagged even more."
• Former journalist Mike Nesbitt explained all libel actions he encountered involved the DUP (see here).

And here's the main issue and concern, as Mike Nesbitt said:

"The point is the laws are regularly utilised behind the scenes to try to influence, warn off, possibly even threaten."

And here:

"Many members of [the media] tell me they face regular threats of legal action for defamation from a particular local political party.

Sunday Politics NI discuss libel reform

(From L-R) Lord Bew, Paul Tweed and Mark Carruthers

The House of Lords tried to push through libel reform in Northern Ireland by virtue of an amendment tabled by Lord Lexden. However it was ruled that the Stormont Assembly has primacy on the issue by virtue of the fact that libel law is a reserved matter.

Mark Carruthers asked Lord Bew: "Why was this attempt made at Westminster?" Lord Bew responded:

"Well when you get a Northern Ireland Provision Bill going through the House it's a very rare event. It's inevitable that people will make the attempt and there's a lot of feeling in the House of Lords on this issue to at least have a serious debate about it. The truth is now, the matter as far as the parliament in London is concerned, is actually over... it'w now a matter for the Assembly. The new minister Simon Hamilton has set up a report from the Law Commission with a distinguished LSE academic Dr Scott to work on. And really that is where the debate and the focus now is. But I think it was worth airing once again last week at Westminster the concerns that exist about freedom of expression and that fact that it is now at a weaker level than the rest of the UK."

Viscount Colville - Journalists were bombarded with daily, sometimes hourly, threats of defamation

Viscount Colville of Culross speaks in favour of libel reform in Northern Ireland

Viscount Colville of Culross made compelling point in the House of Lords on Tuesday 25 February 2014 in favour of libel reform in Northern Ireland.

"My Lords, I declare an interest as a producer at the BBC. I support this amendment and add my concerns to those of other noble Lords at the refusal of the Northern Ireland Executive to implement the Defamation Act 2013. I was sorry not to have been able to attend Committee but I read, with regret, the Hansard report of the Minister’s speech, in which she said she could do little beyond offering some encouragement for this to go forward."