CORPORATE LAW
and protects a free press and public interest blogging,” she said. “Let’s hope the two tier approach will not encourage media organisations to exit Northern Ireland and curb economic growth and inward investment in Northern Ireland. We do not want to face a proposition that the UK media may have to sanitise news broadcast in Northern Ireland.” According to O’Kane the key changes to the defamation laws are: • The Act aims to assist in weeding out potential spurious claims with the introduction of a serious harm test which raises the bar for bringing a claim. A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the complainant. • The implication for corporate bodies is that the Act curtails the ability of organisations that trade for profit to sue for libel and provides protection to those that fairly or honestly opine on corporate products without fear of legal proceedings. Harm to the reputation of a company is not serious harm unless it has caused or is likely to cause the body serious financial loss. Companies are already prevented from
claiming damages for certain types of injury such as injury to feelings and were thus in practice likely to have shown actual or likely financial loss anyway. • The defences of truth and honest opinion replace the common law defences of justification and fair comment which broadly reflect the current law while simplifying and clarifying certain elements. • Introduction of the new defence of publication on a matter of public interest which is not intended to be a new departure from the current law but rather to be based on the existing common law defence. • Introduction of a new defence for the operators of websites where a defamation action is brought against them in respect of a statement posted on the website. It provides greater protection for website operators and content hosts. • Extension of qualified privilege to the publication of peer-reviewed statements in scientific or academic journals in print or electronic form. • Absolute and qualified privilege extends to fair and accurate contemporaneous reports of court proceedings or in public of a legislature for instance or press conferences or documents circulated by UK public companies.
• Under the new single publication rule claims must be brought within one year of their first publication. This replaces the multiple publication rule whereby each publication of defamatory material gives rise to a separate cause of action which is subject to its own limitation period. The change will benefit social media users and the online community. • Tighter controls on libel tourism, where cases with tenuous links to England have been brought in English courts. If a statement is published 100,000 times in Australia and only 5,000 times in England and Wales that should be good reason to prevent the action from proceeding in England and Wales. This provision aims to weed out trivial claims and prevent conflict with European jurisdictional rules. • Prohibition of an action for defamation being brought against someone who is not the primary publisher, author, editor of a statement complained of unless it is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher. • Removal of the presumption of a jury trial. • Courts have power to order a summary of its judgment to be published where parties cannot agree an apology or correction.
Opponents fear “open season” P aul Tweed (pictured), a libel lawyer well known for acting on behalf of journalists and celebrities, is against changing the system in Northern Ireland to bring it into line with England and Wales. Tweed, who works in Belfast, Dublin, London and the US, believes the changes will make it harder for ordinary people with a grievance against the press to go to court. “I’m opposed to it. I’ve been sitting on the Ministry of Justice panels in the UK and it was quite clear to me sitting through those meetings there was no need to reform. For all intents and purposes the Act has primarily been a sop to the press. There has been a very successful lobby campaign that’s the most successful since the tobacco industry campaign three decades ago,” said Tweed. Tweed said the jury system is the “last opportunity for the ordinary Belfast man” to express his displeasure at the media. “The politicians are depriving the electorate of the right to have their say. I am a massive fan of the UK and Irish media, they do a great job and that’s in no small part down to our libel laws. They have to give some credence to truth and that’s what makes them the excellent publications they are,” he added. “The ordinary man on the street has never had access to justice in Northern Ireland as far
as the libel courts are concerned. There is no legal aid here and while there’s no legal aid in England either what they have allowed is lawyers to work on a no win, no fee basis, which we’re not allowed to here. Also, and most importantly, in England there is a provision for recovery of after the event insurance premiums. That gives people who haven’t got a lot of money some protection.” Tweed believes claims Belfast will become a haven for libel tourism if its laws are out of step with England, are nonsense. “They keep talking about Russian oligarchs and Saudi business men. If you find any in Northern Ireland let me know,” he said.
“The judges are already asking us why so few defamation cases are being brought before the courts and the simple answer is that a lawyer can make more from a whiplash case. There will be no defamation cases in Belfast if the Act comes in.” Tweed also thinks changing the law could have negative implications for the Northern Ireland economy by making it “virtually impossible for a company to sue”. “A corporation under the new Act has to show evidence of serious financial damage. So if the publishers of a magazine made an allegation of bad practice, you couldn’t sue them unless you could show you are suffering significant financial loss as a result of that, which is very difficult to do,” he said. “It will make it much more appealing to set up in the Republic of Ireland rather than Northern Ireland because they will have much more protection there. They still have a jury and they don’t have to show financial loss.” With such a strong lobby in favour of extending the Act there is a strong chance it will happen, he believes. “It is going to be open season on the politicians if it does,” he said. “When they come to me looking for help I’m going to take great relish in reminding them they were the ones that changed the laws.”
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