Four years after the DUP secretly blocked Northern Ireland from being part of UK-wide libel law reform, a DUP-commissioned report has recommended that that decision be overturned.
In 2013, the News Letter revealed that DUP ministers had - without any publicity and without the knowledge of some other Executive ministers - decided that Northern Ireland would not be covered by what is now the Defamation Act 2013.
The decision meant that protections for free speech in Northern Ireland are now weaker than in other parts of the UK, and it is more difficult for journalism in the public interest or honest scientific research to be defended in the courts.
In response, Ulster Unionist leader Mike Nesbitt began work on a private member’s bill to rectify the situation.
That led to the then DUP Finance Minister, Simon Hamilton, to ask that the issue be examined by the Law Commission.
Some campaigners for libel reform believed that the review was an attempt to delay reform, because its immediate implication was that Mr Nesbitt was unable to press ahead with his bill while the department was working on its own initiative.
However, that review - conducted by London legal academic Dr Andrew Scott (who continued the work after the Law Commission was axed last year) - has now been completed and has said that the current situation should not continue.
Instead, the report includes two draft bills, either of which could be rapidly introduced in the Assembly by the Finance Minister.
The report recommends that “to a significant extent, measures equivalent to the provisions of the Defamation Act 2013 should be introduced into Northern Irish law”.
It specially highlights the need for changes to the law to introduce a new “defence of truth”, a “defence of publication on a matter of public interest”, the enhanced protection of qualified privilege for peer-reviewed scientific or academic statements and the introduction of a “serious harm test” whereby claimants have to prove that they have suffered serious harm before being able to sue for libel.
The report also recommends the end of so-called ‘libel tourism’ where wealthy foreigners use our courts to sue publications which perhaps only distributed a few copies in this country. The Westminster legislation has already outlawed that in England and Wales.
Dr Scott said that the Law Commission’s research “substantiated the perception that the law of defamation wrongly restricts the proper exercise of freedom of expression in Northern Ireland” and that “problems of cost and access to justice” are key problems which affect both plaintiffs and defendants.
However, despite the central thrust of Dr Scott’s report being recommendations around the need for the law to be reformed, a Stormont press release announcing the report glossed over that fact.
Instead, the press release issued by Mairtin O Muilleoir’s Department of Finance focused on one paragraph in Dr Soctt’s 100-page report in which he said that “neither international nor domestic human rights law compels the introduction of reforms equivalent to those set out in the Defamation Act 2013 or any other reform in this area”.
Dr Scott said that “essentially, therefore, the decision to proceed – or not proceed - with any reform of defamation law is a matter of political choice”.
Mr O Muilleoir said he would consider the report “carefully” but gave no commitment to accept the report’s recommendations.
The Libel Reform Campaign welcomed the report and urged Stormont to adopt one of the draft Bills “as a matter of urgency to ensure that the chill on freedom of expression in Northern Ireland on matters in the public interest is lifted”.
Mike Harris, an advisor to the Libel Reform campaign, said: “I’m delighted this consultation and Dr Scott’s expert analysis has shown the case for reform of the law of libel in Northern Ireland is now irrefutable.
“It’s now time for the Assembly to protect free speech and get legislation passed this year.”