Tim Carson

Midway through the Long Vacation, the Northern Ireland Department of Finance quietly published its statutorily mandated Report on the Review of the Defamation Act (Northern Ireland) 2022.

The appearance of the report fulfils the requirement, in section 11 of the Act, that the Department should “keep under review all relevant developments pertaining to the law of defamation”, “prepare a report and recommendations on” these developments and the operation of the Act, and publish the report and recommendations within two years of the Act receiving royal assent.

Accordingly, work on the review took place between March 2023 and May 2024, and was comprised of research, liaison with policy officials in Dublin and London, and engagement with stakeholders (via a formal, targeted consultation conducted between November 2023 and January 2024).

The resulting report, however, has arrived to little fanfare, and has not had the effect of convincing the Northern Ireland Executive that defamation law reform should feature in its recently published draft Programme for Government.

Is the report destined to be a minor, academic footnote to a decade-long campaign for reform? Or ought it to be, as Master Bell suggested it might in one of the most notable libel judgments of recent years in the jurisdiction, an occasion to prompt further and significant legislative action?

In what follows, we outline the context for the report, its headline findings and recommendations, and the outlook for defamation law in the jurisdiction going into 2025.

Why a review after just two years?

To assess the value of the report, it is first necessary to understand why the review took place, and the context for its commission. The text of section 11 of the Act was strikingly absent from the Defamation Bill as introduced at Stormont in June 2021. Indeed, the concept of a subsequent statutory review was first proposed following the expression of two opposing viewpoints at the second stage of proceedings.

Here, the bill sponsor, Mike Nesbitt MLA, reminded the Assembly that some eight years had passed since he first proposed defamation law reform in 2013. Five years on from the Scott Report, commissioned by the Department of Finance to ascertain whether reform was necessary and what statutory shape it should take, the sponsor commended the bill to the House and asked: “Do we really want to let the perfect be the enemy of the good at this point? We have enough in this Bill to begin.”

Taking a different view, however, was the then minister of finance, Conor Murphy MLA: “Why rush into this? The Assembly faces a choice. We can do our research, undertake proper consultation and bring forward considered and well thought-through legislation, or members can cut and paste [the Defamation Act 2013], as it is rushed through the remaining months of this mandate.” He concluded by stating that his focus would “remain on developing bespoke legislation, based on the latest consultation-led evidence, which will do the necessary task properly in the next mandate”.

Taking up the minister’s reference to the consultation on reform that was then unfolding in the Republic of Ireland (and which has now culminated in the Defamation (Amendment) Bill 2024 in the south), one member suggested “insert[ing] a specific review clause” to provide for the further consideration of reform in adjacent jurisdictions. He concluded pointedly: “That is doable. However, it is not doable if we kick the bill out today.”

Ultimately, the bill sponsor brought forward just such an amendment at committee stage, requiring the Department to undertake a review, make a report, and present its recommendations on the operation of the Act and further reform.

If this was the basis for the inclusion of section 11 in the eventual text of the Act, the justification for its retention through the remaining stages of the legislative process, however, was altogether different. Debate attending the bill’s passage from its first reading to royal assent was replete with the acknowledgement that the Assembly had insufficient time to consider, debate, and develop the issues and the legislation in full, due to a truncated mandate overshadowed by the threatened (and eventual) collapse of the Executive in response to the implications for NI of Boris Johnson’s Brexit deal.

At committee stage, for instance, it was regretted that “owing to the very constrained timescales”, key stakeholders were “unable to provide detailed commentary on the provisions and possible amendments to the bill”, while the committee also noted that the “limited time” did not “allow for the level and quality of scrutiny for this bill which members have come to expect for the legislative process at the Northern Ireland Assembly”, largely due to “the inevitable time pressures associated with the final months of a foreshortened mandate”.

The point was further underlined at consideration stage, during which the chairman of the finance committee observed that “committee stage had to be conducted within a short and less than optimal timescale… the committee could have done much more with [the bill] had we had more time and had stakeholders been properly informed of the relevant provisions”.

Consequently, by the final stage, the bill sponsor and the minister effectively met in the middle. Describing the bill as “a decent first step in the right direction”, the bill sponsor stated that he had achieved two things: first, “getting defamation law on the statute book”; and second, “getting the issue of defamation on our political agenda for the next mandate”. The minister agreed that “parts of the bill [would] be useful”, but restated his preference that “this law should be an interim law for defamation and that my Department will review the law, in line with the requirement placed on it in this bill, with a view to developing further legislation for consideration in the next mandate”.

Two clear themes emerge, then. First, the review was commissioned because further legislative action was anticipated by the Assembly; the 2022 Act was not considered the final word or a comprehensive set of reforms. And, second, this was principally because the precarity of the Assembly in 2022, and the limited legislative programme, made it impossible to do so; 2024 was a sufficiently approximate opportunity to resume or supplement the work done to date.

On one reading, then, the statutory review in 2024 was not intended to be a cursory survey of the current legal position, but, rather, an important exercise that had the potential to act as a springboard for more comprehensive and considered consolidation or reform.

This is clear from the bill sponsor’s response to one member’s concern about the reversal of the presumption in favour of jury trials at the further consideration stage, in which the sponsor reminded the member “that we now have clause 11, which factors in a review of the Act’s operation so that may not be forever”. Similarly, the statement by a member of the finance committee that “the idea that we might be legislating in haste is answered in part by the review clause that is now in the bill, which will allow the Assembly and the Finance Department to review how it is working”, was also telling.

Ultimately, as the sponsor acknowledged, the bill went ahead as it was as a practical exigency because it was doubtful “whether, post 5 May, there will be an Assembly and Executive functioning in a manner that will allow us to bring forward legislation in this area … that is an important reason why the Department should continue to review what is happening here and in other relevant jurisdictions”.

What were the report’s headline findings?

Unfortunately, the report does not deliver the outcome envisaged on the floor of the Assembly. In effect, it is a descriptive survey comprised of five sections: (i) the operation of the Act; (ii) current issues in defamation law; (iii) stakeholder opinions; (iv) developments in NI and elsewhere; and (v) conclusions and recommendations.

The report’s major headline is perhaps the Department’s statement that “while no new defamation law appears feasible … we acknowledge that legislation on SLAPPs may require closer inspection”. Section (iv) usefully reviews the current position on SLAPP legislation in Dublin and London, and invokes the judgment in Kelly v O’Doherty (see here for commentary) to discuss the costs deterrent associated with defending SLAPPs, while section (ii) also articulates the potential practical challenge of obtaining collaborative support from the Department of Justice and the Executive to realise legislative movement on the issue. Although no concrete recommendations are provided, the Department’s pledge to review the extent of SLAPPs in NI, the adequacy of the current law to address them, and the statutory innovations that might be deployed is encouraging. 

Also of interest is the report’s identification of what it calls “online defamation” (which appears effectively to be a synonym for intermediary liability) as a key current issue. The local focus is on the 2022 Act’s omission of sections 5, 8, and 10 of the Defamation Act 2013 in England and Wales, and corresponding failure to address online publication specifically. Again, no recommendations are put forward (although the Department commits to review online defamation further and “seek expert opinion and the views of interested parties”). However, with further provisions of the Online Safety Act 2023 imminently coming into force, and in light of initial attempts to regulate artificial intelligence, the report’s identification of legislative initiatives elsewhere which “include more formal arrangements to insist on the permanent or temporary takedown of defamatory comment and the requirement on online service providers to identify those who created it” is intriguing.

Finally, and disappointingly, the Department, contrary to its position during the passage of the bill, concluded that it was too soon to bring forward further reform in defamation law (with, perhaps, the exclusion of SLAPPs) or “to offer much informed comment on the operation of the 2022 Act”.

The outlook for defamation law in NI

Ultimately, the report, although a useful overview of the current position, comes up short in two ways.

First, it does not follow from the context in, and the basis on, which it was commissioned in 2022 and, often, appears to be unaware of this context. For instance, the report states that the bill’s progress “involved the full process of Assembly scrutiny… and, at committee stage, by the finance committee” and justifies the decision to defer further consolidation or reform by holding that “defamation law is an area which the Assembly has, very recently… had the opportunity to consider in detail”.

Given the context supplied above, this is a confusing position to adopt. While competing priorities, limited resources, and another shortened mandate understandably serve to deprioritise defamation, drawing a line under the possibility of further reform due to the purported comprehensiveness of the Act is both misinformed and misleading.

Second, the report limits itself to acting as a descriptive survey (of legislative debates, developments elsewhere, and stakeholder responses) that hesitates to attempt critical commentary or make recommendations. Fifteen pages, for instance, usefully lay out recent developments in defamation law in Ireland, England and Wales, and Scotland, but critical appraisal of these, and commentary on how they might inform the position in NI, is largely absent. In contrast, the report’s recommended next steps are spread across two-and-a-half pages.

This is perhaps best exemplified by the report’s treatment of the issue of serious harm. During the passage of the bill, the finance committee stipulated that the Department’s review should consider the threshold. In practice, a single paragraph was devoted to the issue in section (i), while its only mention in “conclusions and recommendations” is the perplexing assertion that the Department’s ongoing monitoring brief will ensure that it is “better placed and informed to comment on the Act’s effectiveness on… whether the absence of a serious harm test is having any negative consequences”.

The rejoinder is obvious. Aside from a decade’s worth of English case law to examine on this point, this statement also ignores the fact that Kelly is a more than useful test case, and provides a vivid (and judicially articulated) illustration of how such a threshold might have had practical effect to mitigate the burden of a frivolous and vexatious claim on a defendant who was vindicated.

Ultimately, it is hard to avoid the impression that the report represents a missed opportunity, in particular to redress the paucity of time and scrutiny for comprehensive reform in 2022, and that it appears to be a cursory exercise undertaken to satisfy the requirement in section 11. In any case, further legislation is not forthcoming; it appears that what the minister of finance described as “an interim law of defamation” will persist as the status quo in NI for the medium term.

Nonetheless, there is still work to be done in the short term. In its concluding paragraph, the report commits the Department to ongoing monitoring of wider debates on defamation law, and states that “future reform will be judged on how that debate progresses”. If the report is to be the final word on the law of defamation in Northern Ireland for some time, then it is imperative that the judiciary, practitioners, and stakeholders alike sustain the debate and continue to foster constructive discussions in support of reform.

• Tim Carson is an associate at Tughans LLP in Belfast.