US Media Law Firm SmithDehn eyes Northern Ireland

The US media law firm SmithDehn LLP has helped to create a media law course at the University of Ulster, furthering chances that the media law firm will establish operations in Northern Ireland. SmithDehn co-founder Russell Smith is on Twitter at (@rsmith8). Michael Cleaver of SmithDehn is also on Twitter (@mpcleave).

SmithDehn already has offices in London, but a Northern Ireland base would represent a further bridgehead into the European market and the growing entertainment economy in Northern Ireland. The move would also represent and a boon for the Northern Irish economy, possibly employing up to 75 legal professionals and be an attraction for further international investment.

How Free Is Our Speech? - Radio 4 Discussion

Clive Anderson recently chaired a discussion on Radio 4 in May 2013 that asked a simple question: how free is our speech in Britain today? The discussion also took the time to considered specifically how speech on social media should be controlled or otherwise.

Billed as 'the programme that gets behind the legal issues of the day,' it certainly did that. You can listen to the episode in full here.

Clive Anderson kicked things off with a nice overview of the legal history as it exists in law in Britain to date and how this contrasts with our love of freedom:

What Are Positive Effects of Social Media in the First Hours of A Crisis Like the Boston Bombing?

This was the question put to a panel of speakers on the April 19 2013 episode of Radio 4's 'Any Questions?' The special edition was hosted by Columbia University in New York, a most fitting location for such as discussion. You can hear the discussion in full here.

Olivia O'Kane - Key changes with England and Wales Defamation Act

Key changes with E&W Defamation Act http://t.co/VuxGQng8H0 1. the fact that companies suing in libel must show financial loss;
— Olivia O'Kane (@OliviaOKane1) August 1, 2013

The Defamation Act 2013 will come into effect in England and Wales as of January 1 2014, as we explained earlier here. Ahead of the new year Olivia O'Kane, Northern Ireland media lawyer at Carson McDowell and media law blogger, explains the 9 key changes enacted under the Defamation Act 2013. Click below to see the rest

Lessons from McAlpine v Bercow

Ahead of the new year and thus the coming into force of the Defamation Act, it is of value to cast our eye back over the lessons we learnt from the Bercow v McAlpine case. As Feargus O’Sullivan said in The Financial Times here, although Ms Bercow’s tweet would still fall foul of the new law, the situation may nonetheless change somewhat when the Defamation Act 2013 comes into force.

Over to the May 13 High Court ruling. Presiding over the case between Bercow and McAlpine was Mr Justice Tugendhat who found that Sally Bercow had libelled Lord McAlpine by publishing on Twitter defamatory, albeit "nuanced", communications. Full judgement can be read here. Bad for law firm Carter-Ruck who had been instructed by Bercow. In his summation, the UK's senior libel judge Judge Tugendhat said:

“I find that the Tweet meant, in its natural and ordinary defamatory meaning, that the Claimant was a paedophile who was guilty of sexually abusing boys living in care. 

If I were wrong about that, I would find that the Tweet bore an innuendo meaning to the same effect.”

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."

Is Social Media Uncontrollable?

In a recent episode of The Big Questions (broadcast April 28 2013), Nicky Campbell tackled the issue of social media misuse and abuse.

The context? Two days prior on April 26 2013, Dean Liddle and Neil Harkins were both handed down suspended sentences (see here) for breaching a court injunction that banned any revelation of the adult identities of Jon Thompson and Terry Venebles – the killers of James Bulger.

Last Febrarury the two men had both posted photos on Twitter and Facebook that claimed to be of the two child killers. As the judge rightly said, the photos could have been seen by thousands of social media users. This was an act directly in contempt of court.

In that context we ask: Is social media out of control? Vicky Beeching, research fellow in internet ethics at Durham University kickeded things off and gave a twofold answer. She said:

"Firstly, we need to remember that social media is in its infancy. It’s so young. Twitter has turned 7, YouTube has turned 8. We’re literally taking baby steps. So we can’t panic and say it’s out of control. 

Secondly, the danger is when we look at the technology and we say that technology is to blame, we need to remember that all technology, whether it’s the invention of the wheel, the printing press or the internet: they’re neutral tools, they’re in our hands and if they’re out of control it’s simply a sign that we’re out of control."

Nicky Campbell rightly added that social media is in effect a reflection on us. But by and large most people are decent and they are fair. Nicky Campbell then asked: Is there something about social media that allows people to be particularly vile? Kate Smurthwaite, feminist writer said in response:

"Yes, absolutely. Several decades ago Germaine Greer said, ‘women have little idea how much men hate them.’ Well thank you to the internet we now know. I’m less than a week away from my latest death threat. That’s my life. That’s normal for me (reminds me of the abuse Mary Beard got when she appeared on Question Time).

Social Media and the Law Across the British Isles

In the same week that will host the final game of the British and Irish Lions tour of Australia I have produced a comprehensive overview of the laws that govern Facebook and Twitter across the British Isles. This includes separate and specific analysis of the four jurisdictions of England and Wales, Scotland, Northern Ireland and the Republic of Ireland.

England and Wales

On September 20 2012 Keir Starmer QC, DPP for England and Wales announced that new social media prosecution guidelines would be discussed after a series of controversial arrests and prosecutions. For some time the public had been critical of the heavy-handed approach of the police and judiciary against social media users.

Judges and other law officials had also voiced concern about the uncertainty of the law. And I think everyone had a genuine desire to uphold traditional notions of free speech. The whole problem was typified by the #TwitterJokeTrial which involving Paul Chambers who tweeted that he would blow up an airport if his flight was cancelled.

On December 19 2012 the interim social media prosecution guidelines were then published. On the same day a public consultation was launched. The consultation process closed March 13 2013.

On June 20 2013, almost 9 months to the day after Keir Starmer QC announceed that the Crown Prosecution Service and other law makers would discuss social media laws, the full and final social media prosecution guidelines were published.

John Cooper QC on Social Media and the Law

John Cooper QC and Paul Chambers of #TwitterJokeTrial

Below are the blunt words of Keir Starmer QC, the former Director of Public Prosecutions (DPP). And why the bluntness? The former head of public prosecutions in England and Wales was obviously angered by the criticism delivered by experienced criminal silk, John Cooper QC (@John_Cooper_QC) who cast doubt on the newly published (December 19 2012) interim social media prosecution guidelines. Here's what he said:

“Well I don’t think John Cooper with all respect has seen anything like the number of cases I have. I don’t think he has thought about the sophistication of the issues. There are many cases…I mean he can point to one case [the Twitter Joke Trial]…yeah he makes a cheap point about one case. I've got to deal with the many thousands of cases that come in; I've got to deal with all the chief constables. So, yes, nice cheap point, but actually let’s get back to reality.”

Panel - Social media, politics and protest

I had the great pleasure of featuring on the panel event, Social Media, Politics & Protests at University of Ulster on social media and civic change on December 10 2013, organised by (@ornayoung). Alan in Belfast (@alaninbelfast) covered the event on Slugger here. Alan in Belfast also has audio here and here. Images from the day here.Tweets from the day via Storify here.

The TCD Social Media panel which preceded this event in October 2013 can be seen here. See my discussion with Sharon O'Neill of UTV on social media law here.

Below is a paraphrased account of my presentation from the UU event:

1. Overview of social media and the rule of law:

"In the last decade we've seen a creative technological explosion. Technology is ubiquitous. Technology has penetrated into every corner of life. It's power lies in the freedom it gives people. The freedom to build and maintain new and old relations, create businesses and overthrow tyrannical governments. 

But this is a two-pronged freedom. Social media gives the freedom to do great good. Social gives the freedom to do great bad. By that formula, social media is both a criminal weapon and a weapon of mass reputational destruction.

The Defamation Act 2013 will come into full force in E & W on January 1 2014

The Defamation Act 2013 (Commencement)(England and Wales) Order and the Defamation (Operators of Websites) Regulations 2013 were made on December 2 2013. The Defamation Act 2013 will come into force in England and Wales on 1 January 2014. After that date it will apply to causes of action “accrued”, i.e. to libels published from 1 January 2014 onwards.

The new libel law was vetoed by Stormont. Mike Nesbitt has proposed a Bill, its consultation is complete and is now been put before the Law Commission NI by the Finance Minister Simin Hamilton. 

In the Financial Times, Feargus O’Sullivan said: 

"Although Ms Bercow’s tweet would still fall foul of current laws, the situation may nonetheless change somewhat when the Defamation Act 2013 comes into force. It may become harder for the injured party of a perceived social network libel to seek legal redress. Courts will require proof of “serious harm” to reputation before a case can proceed. The act provides a statutory defence of “publication on matter of public interest”. It also makes defences of “truth and honest opinion” statutory. The reform is probably for the best. No one really wants social networks where users feel at risk of legal action for expressing a negative but honest personal opinion, and it is helpful to have the law simply expressed in a statute that is easily accessible.

Initial comments via Inforrm blog here. 

Joe Brolly - "Social media is not exempt from the laws of the land"

Short, sweet and to the point:

@rarogan Social media is not exempt from the laws of the land. I assume you have a shit hot legal team.
— Joe Brolly (@JoeBrolly1993) October 23, 2013

@JoeBrolly1993 @rarogan and just like that, everything disappears!!
— Nevan Higgins (@NevH1888) October 23, 2013

@NevH1888 @rarogan a bit late for that. I have forwarded his tweet to my legal team. They will be in touch.
— Joe Brolly (@JoeBrolly1993) October 23, 2013

Carson McDowell media lawyer and blogger Olivia O'Kane made an important contribution:

@C_Kilpatrick1 @OliviaOKane1 use with extreme care and remember you are publishing to the globe don't repeat false info&don't incite crime
— Olivia O'Kane (@OliviaOKane1) August 2, 2013

Judge Tugendhat Sends Out Social Media Warning and Advice

From the Spectator quoting Lord McAlpine's solicitor here:

"In the meantime, vindicated Lord McAlpine’s solicitor sounds a clear and concise note: ‘Mr Tugendhat’s judgment is one of great public interest and provides a warning to, and guidance for, people who use social media."

This originally appeared on Twitter for Lawyers here.

"Mr Tugendhat’s judgment is one of great public interest"

From the Spectator quoting Lord McAlpine's solicitor here:

"In the meantime, vindicated Lord McAlpine’s solicitor sounds a clear and concise note:

"Mr Tugendhat’s judgment is one of great public interest and provides a warning to, and guidance for, people who use social media."

The Story of the Defamation Act in Northern Ireland (so far...)

The Press Gazette and other publishers recently suggested that the unilateral Sammy Wilson decision not to pass a 'legislative consent motion", which would have implemented in full the Defamation Act into Northern Ireland law, could hurt the devolved province. Lord Lester, the Liberal Democrat architect of the new libel law said the decision was a "very bad step" for the public.

The French Lurch Towards Social Media Censorship

These are interesting times for social media. In Dublin Fine Gael TD Tom Hayes seems to be toying with the idea of bringing in the legal control of online communications. In England and Wales the director of public prosecutions has played it cool and has put the matter out to public consultation.