Peers debate libel reform in Northern Ireland

As we reported here, today (February 25 2014) peers in the House of Lords considered libel reform in Northern Ireland by virtue of an amendment brought to the Northern Ireland (Miscellaneous Provisions) Bill by Lord Lexden in committee.

 

David Pannick QC reiterated the bad smell coming from Northern Ireland. Lord Bew reiterated the intolerable problems facing the Northern Ireland judiciary by way of the old libel regime. 

 

Lord Empey made an important observation:

Olivia O'Kane - The curious case of user-generated comment

Online responsibility is governed by the Electronic Commerce (EC Directive) Regulations 2002 (SI 2002 No 2013) and The Defamation Act 1996, commonly known as the safe harbour defences.

[Our original post on the Delfi AS v Estonia judgement here]

LEGAL FRAMEWORK

The following legislation provides that no liability shall arise until and after Information society Service Providers [“ISPs] are put on notice of the material complained about:

1. Pursuant to Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002 where:

an ‘information society service’ is provided which consists of the storage of information provided by a recipient of the service the service provider is not liable for damages or for any unlawful activity as a result of that storage where the storage provider “does not have actual knowledge of unlawful activity or information” and the provider “upon obtaining such knowledge or awareness acts expeditiously to remove or to disable access to the information”.

Olivia O’Kane - Northern Ireland Media Law Round Up 2013

The Courts in Northern Ireland heard a wide range of media law cases in 2013. In this post I will provide summaries of the most important cases in which judgments were given and are publicly available.

The innocent court reporter

The case of ZY v. Paul Higgins ([2013] NIQB 8) was heard on 25 January 2013. It concerned the Article 2 rights of a convicted child sex offender seeking anonymity to continue after conviction in order to safeguard his wellbeing from risk of suicide within the confines of Prison when it appeared a journalist was to write a piece to distributed to the mainstream media.

On 2 September 2011 ZY, a male in his 20s, was arrested and charged with attempting to blackmail a female in relation to an indecent video recording made when she was 15 years of age; engaging in sexual activity with a minor; and possessing indecent images of children. On 7 December 2012 ZY pleaded guilty to the charges and was sentenced to 21 months imprisonment. Following sentencing, representations were made on behalf of the first defendant journalist, Paul Higgins, seeking revocation of the anonymity order which had been made at the first remand hearing.

Lord Lester - 'Free Speech, Reputation and Media Intrusion'

Lord Lester of Herne Hill QC, the original architect of the Defamation Act 2013, delivered the opening speech to the Hong Kong University Conference Media Law Policy in the Internet Age on October 18 2013 here, 'Free Speech, Reputation and Media Intrusion: Law Reform Now'.

"A difficult problem has arisen since the enactment of the Defamation Act. Under our system of devolved government, the Westminster Parliament may legislate in this area for England and Wales, but not for Scotland and Northern Ireland to whose governments and legislatures public powers has been devolved. Defamation law is a devolved subject. Historically, the law of defamation has been the same in England and Wales and Northern Ireland. Scotland’s government has adopted some very limited aspects of the legislation. Northern Ireland’s coalition government of opposing parties indicated initially that it had no plans to review the law of defamation. It was ironical that the DUP, committed to keeping Northern Ireland within the UK should decide to sever Northern Ireland from England and Wales in this area of law. During a debate in the House of Lords in June, reference was made to the view of a senior Belfast lawyerwho wrote this:

The Libel Reform Campaign - The battle to modernise libel law continues

The Libel Reform Campaign here that the battle to reform libel law continues, now in Northern Ireland. At present people in England and Wales enjoy greater free speech protections than those in Northern Ireland. They said:

"We may have achieved libel reform in England & Wales, but the battle to modernise libel law continues elsewhere in the UK. Can you help us? 

As you may have read, the Northern Ireland Executive has not yet extended the Defamation Act 2013 into Northern Irish law. In fact, former finance minister Sammy Wilson MLA said he had "no plans to review the law on defamation in Northern Ireland" and told his Stormont colleagues that the threat to free speech was "just a lot of nonsense".

BBC, News Letter and Belfast Telegraph respond to "overwhelming support" for Libel reform

The public consultation into Mike Nesbitt's libel reform Bill (drafted in May and introduced in June 2013 here) received "overwhelming support". On January 29 2014 The News Letter gave its view on developments here:

"Reading about the massive public support for reforming Northern Ireland’s libel laws, many will wonder why an issue over which there is near-unanimous agreement was blocked from even entering the Assembly. Some fear that by referring the issue to the Law Commission, Mr Hamilton is attempting to block Mr Nesbitt’s bill. Given the results of Mr Nesbitt’s consultation, such a course of action would be difficult to explain. As a new minister, Mr Hamilton has a chance here to nail his colours to the mast. 

Free speech is too important to be mired in party politicking."

Read The Libel Reform Campaign's response to Nesbitt here. Earlier post on the public consultation here (Belfast Telegraph here, News Letter here, BBC here).

Mike Harris speaks of the urgency to reform Northern Ireland libel laws

The Head of Advocacy at Index on Censorship Mike Harris (@mjrharris) wrote an overview of the Defamation Act 2013 which came into effect in England and Wales on January 1 2014 (government press release here) on the Inforrm blog here. The new speech and communication law considerably strengthens the position of the publisher, journalist and the internet user. Of interest: tweets sent after January 1 will be required to meet the higher thresholds set out in the Defamation Act 2013.

Mike Harris said of the situation in Northern Ireland:

"Of particular urgency is the situation in Northern Ireland where libel sceptics have won the day with the Northern Ireland Executive blocking the application of the new Defamation Act to the province. The Department for Finance and Personnel refuses to comment on the basis of “confidentiality” as to why it had not been able to secure the “necessary consents” for the Defamation Bill within the required timescale. The Libel Reform Campaign hopes to help the Northern Ireland Law Commission with their forthcoming consultation on the libel law and will be campaigning to ensure the Executive revisits this issue to create a law that can be a progressive blueprint for other common law jurisdictions."

David Allen Green on social media regulation

The Financial Times legal blogger David Allen Green (@DavidAllenGreen) wrote about social media regulation in The New Statesman. My previous post on Allen Green's move from the New Statesman to the FT can be read here. He said here on social media self-regulation:

"Social media provides the means by which clusters of like-minded individuals can easily swap ideas and scrutinise data on public matters. In this way, social media users can hold politicians and media outlets to account in a manner not possible -- or conceivable -- until a few years ago. Instead of a politician saying something forgotten the day after, or a reporter's bylined piece being in next day's fish-and-chip paper, those involved in social media can pore over details and make connections weeks and months later. Transgressions can be linked to and accumulated. A speech or a byline can now come back and haunt you long after you have "moved on". 

As long as there are those willing to promote such accountability then politicians and media professionals can now be subjected to on-going and sometimes intense examination. The effect of this may be to make those with political and media power more responsible; it will certainly mean that it is more straight-forward and more likely that individuals can be called out for any wrong-doing. On this basis it is not those in power who will be regulating social media, but social media regulating those in power. 

Once social media is understood as an advanced form of active citizenship then it can become part of the solution to the problem of abuses of political and media power; not part of the problem to be addressed by regulation. Regardless of the self-serving caricatures promoted by some in the media, the record of bloggers and tweeters compares rather well to tabloid excesses. In the medium- to longer- term, it is clear that those in mainstream media who work with social media will tend to produce better output. 

Northern Ireland Law Commission recommends libel law review

In the period between May and June 2012 Sammy Wilson, then Finance Minister, vetoed the Defamation Act 2013 without consulting any of the other parties, deciding not to pass a 'legislative consent motion'. He said that threats to free speech were "just a load of nonsense."

In May 2013 Mike Nesbitt introduced fresh libel legislation (our post here).

In September 2013 the newly installed Finance Minister Simon Hamilton asked the Northern Ireland Law Commission to cast "a fresh pair of eyes" over the Defamation Act 2013 (our post here)

In November 2013 the First Minister Peter Robinson said he supported the original veto and said that fears were "absurd".

Following the September referral to the Law Commission the News Letter has reported here that the Law Commission has recommended a public consultation on Northern Ireland’s libel laws. The Law Commission has given the advice to Simon Hamilton after he asked it to look into the issue (we looked at that move here and Tony Jaffa welcomed the development here).

The commission’s chief executive Judena Goldring has made the advice to DUP Finance Minister Simon Hamilton after he asked the agency to look into the matter. The Law Commission must now await formal clearance from the Justice Minister before it begins work on the project in the new year and submits a report to Executive ministers.

In February 2013 the former DUP Finance Minister Sammy Wilson made the unannounced decision to block Northern Ireland from the sweeping reforms of the British libel laws which have liberated and strengthened the protections on free speech for journalists, academics, internet users and others. The unilateral move has been opposed by some leading libel lawyers who claim that it will make it too difficult for ordinary people to sue publishers. Ms Judena Goldring told the News Letter:

"Our initial advice to the finance minister is that there ought to be a full public consultation on the issues here so that the people of Northern Ireland have a good opportunity to contribute to that discussion... Once formal approval is forthcoming we will expect to have a full public consultation on the issues here so that the people of Northern Ireland will have a good opportunity to contribute to that discussion and we can have a proper public debate on the issues."

Ms Goldring stressed that the commission wanted to see a balanced debate, not a “skewed” one.
“We will do the research and arguments on all sides and put that, in an unbiased way, into the public domain in the form of a consultation paper.”

She said that the commission was “fortunate” that there had already been a major consultation on the issue in England and Wales and the defamation law in Northern Ireland is “very similar” so the commission had “the benefit of all the responses back to that”.

Ms Goldring said that the commission would then put its recommendations to the Finance Minister. Ms Judena Goldring praised Mike Nesbitt, who has introduced fresh legislation here, for his handling of the issue, saying that he had been "very responsible and helpful" with the commission. She said: "He has done a lot of work in bringing this issue to the fore and taking the very responsible position that he has adopted in letting official consultation brought forward by the Law Commission to take it on."


News Letter report in full here.

For earlier post on the matter of libel reform in Northern Ireland, Tony Jaffa supports Law Commission investigation here, the News Letter said it supported libel reform here, Peter Robinson said that he saw no point in libel reform here and media lawyer Paul Tweed supported the Sammy Wilson veto here. The Stormont Committee found the libel reform was unnecessary here. Paul Connolly in the Belfast Telegraph and Lord Black backed reform here, 31 writers and poets called for libel reform here. Mike Nesbitt introduced new legislation here and explained why Northern Ireland needs libel reform here. His draft bill is here. David Pannick QC said here that an "unpleasant odour" was coming from Northern Ireland's libel laws. A doctor said here that the current libel laws in Northern Ireland had contributed to patient deaths. Mike Harris from Index on Censorship made representations before Stormont Committee on the need for libel reform in Northern Ireland, see here. Index's letter to the Stormont Committee can be read here. Jo Glanville of English Pen slammed the Stormont libel veto here. Lord Bew said here that the NI libel laws were bad for academics and journalists. Lord Black said here that the libel veto puts jobs and investment at risk. The Ulster Business Magazine asked NI media lawyers Paul Tweed and Olivia O'Kane if people should be worried by Northern Ireland's libel isolationism here. A May 2013 analysis of the events surrounded libel reform in NI here. Sam McBride tweeted about the possible consequences of the libel veto here. As did Newton Emerson here.

Mike Nesbitt wrote in the Belfast Telegraph on July 23 here:

"In all my years in broadcast journalism, I was involved in very few cases of defamation, but, of those that did emerge, all involved the political classes. Indeed, they all involved the DUP: two were brought by elected representatives; the third by those offended by comments made by one of their senior members.

So, should politicians declare an interest when commentating on the laws of defamation? They should certainly bear it in mind."

News Letter supports libel reform

The News Letter backs reform of NI libel laws. Whatever your view, you can respond to survey on bill by end of today http://t.co/8u9Ua5hpJv
— Sam McBride (@SJAMcBride) November 28, 2013

Christopher Hitchens on England's pre-2013 libel system

Christopher Hitchens explained how his magazine Vanity Fair was sued for libel by Roman Polanski:

"Just for discussing this subject [child abuse] a couple of years ago, my magazine Vanity Fair was sued by Mr Polanski from Paris in London. Not in America but where he thought the jurisdiction would be easier on him. He didn't even have to appear in person because he thought that  might be risky. He made a video deposition. We claimed he had no reputation to defend. He walked away with a lot of our money on a libel judgement saying this couldn't be discussed."

Watch original video here from 4 minutes 50 seconds. Christopher Hitchens had previously explained what happened in a 2009 article for Slate Magazine. He said of the 2005 libel case:

"In July 2005, Polanski took advantage of the notorious British libel laws to sue my colleagues at Vanity Fair and collect damages for his hurt feelings. It doesn't matter much what the supposed complaint was—he had allegedly propositioned a Scandinavian model while purring about making her the next Sharon Tate—so much as it mattered that Polanski would dare to sue on a question of his own moral standing and reputation. "I don't think," he was quoted as saying of the allegation, "you could find a man who could behave in such a way." Say what? Anxious for his thin skin, the British courts did not even put Polanski to the trouble of appearing in a country where he has never lived. They allowed him to pout his outraged susceptibilities by video link before heaping him with fresh money. At this point, I began to feel a cold spot forming in my own heart. And then, just last December, while still on the lam, Polanski filed from abroad to have the original Los Angeles child-rape case, in which he had pleaded guilty, dismissed without further ado.

Judge Justice Horner - "Anyone who uses Facebook does so at his or her peril”

The perils of social media today's #belfasttelegraph pic.twitter.com/tdYHmXnRae
— Olivia O'Kane (@OliviaOKane1) August 3, 2013

Writing in the Belfast Telegraph, Olivia O'Kane of Belfast solicitors Carson McDowell quoted a judge presiding over a social media case. The judge, the Honourable Mr Justice Horner said:

"Before I go on … I should say that anyone who uses Facebook does so at his or her peril."

Olivia O'Kane then said in the Telegraph:

"Post at your peril... social media sites offer no protection from law."  

Read the court case in full here. Olivia O'Kane wrote further analysis on the Carson McDowell website here. Images of the original Telegraph article below:

Mike Nesbitt explains why NI needs libel reform

Mike Nesbitt wrote in the Belfast Telegraph on July 23 here:

"In all my years in broadcast journalism, I was involved in very few cases of defamation, but, of those that did emerge, all involved the political classes. Indeed, they all involved the DUP: two were brought by elected representatives; the third by those offended by comments made by one of their senior members.

So, should politicians declare an interest when commentating on the laws of defamation? They should certainly bear it in mind."

DUP use the old libel law to control the media and speech

Mike Nesbitt, Newton Emerson and Sam McBride explain why DUP vetoed libel reform

Mike Nesbitt was featured in the News Letter under a headline that roughly went: the rich and powerful are using the libel law to gag the media.

Newton Emerson said something to similar effect in the Sunday Times of July 7 2013, as you can see in the image below:

"The DUP has offered no satisfactory explanation for blocking Westminster’s Libel Reform Act… but the blizzard of writs the DUP sent Spotlight, both before and after the broadcast, highlights the unusually large role that libel plays in NI’s political discourse."

DUP Censorship

Following the Spotlight investigation into Nelson McCausland's dodgy dealings, Sam McBride made an illuminating observation on DUP libel reform policy:

The volume of solicitors' letters from DUP to BBC over one Spotlight episode gives a pretty clear hint as to why DUP blocked libel reform
— Sam McBride (@SJAMcBride) July 3, 2013

Social Media Law in Ireland, Ctd a timeline of events

To understand the social media situation in Ireland we need to go back to December 28 2012 when the Oireachtas Committee on Transport and Communications announced that it would examine the role of social media in public life.

Committee chairman and Fine Gael TD Tom Hayes was instructed to lead the investigation and to report back to Minister for Communications, Pat Rabitte in early 2013. It’s also important to note that the decision to investigate social media fell against a dark back cloth: the recent suicide of the minister of state for agriculture, Fine Gael TD Shane McEntree. His death has been attributed in part to a period of social media abuse which followed an earlier budget announcement. 

Social Media and the Law in Ireland

T J McIntyre is a law lecturer and solicitor and has repesented Digital Rights Ireland. You can see his very worthwhile blog here.

He writes on IT and the law surrounding new technologies and media. He provided a comprehensive over of the laws that govern social media behaviour in Ireland which you can read here and here.

You can see the presentation and overview of the Irish law that covers social media below:

Arcane libel laws have contributed to patient deaths said doctor

Read the News Letter report in full here.

Index on Censorship speaks out against NI libel isolationism

Mike Harris, head of advocacy with Index on Censorship wrote a article, 'Stormont must give us a libel law fit for modern age,' in the Belfast Telegraph and on the Index website, available here and here. Mike wrote:

"To protect free speech, US President Barack Obama signed into law the US Speech Act to protect US citizens from the effect of English, Welsh and Northern Irish libel law, an act described as a “national embarrassment” by MPs. 

Now Northern Ireland is alone with its embarrassing libel law. The law of England and Wales has been substantially reformed after the Libel Reform Campaign won support from 60,000 members of the public and over 100 charities and campaigning groups and in response the Government passed the Defamation Act. 

Sam McBrides expresses fears over libel veto

Daily Telegraph chief warns that national newspapers may no longer be sent to NI after Sammy Wilson's libel bill veto http://t.co/9fJZTQnbc9
— Sam McBride (@SJAMcBride) June 29, 2013

Read more here.