the Irish for rights

Reform of the law of defamation – the defence of honest opinion

Honest opinion, via A Perfect World websiteIn Northern Ireland, the Minister for Finance has just published a Review of the Law of Defamation, prepared for it by Andrew Scott (Associate Professor of Law, LSE). Prof Scott had prepared a consultation paper for the Northern Ireland Law Commission (NILC) in November 2014. The consultation period closed on 20 February 2015. The NILC itself closed on 31 March 2015. So Prof Scott’s final Report (pdf) was submitted directly to the Ministry for Finance, which has just published it. The Report builds on the work of the NILC, draws on the consultation responses that it received, assesses the recent experience of the law of defamation in England and Wales under the Defamation Act 2013, and sets out recommendations for reform of the law of defamation in Northern Ireland. Most of the recommendations require legislation by the Northern Ireland Assembly, so a Bill to this effect is included as Appendix 1 to the Report. A second draft Bill that would merely emulate the 2013 Act in Northern Irish law is included as Appendix 2.

The Report recommends that, to a significant extent, measures equivalent to the provisions of the 2013 Act should be introduced into Northern Irish law. However, one of the substantial changes from the 2013 Act relates to the proposed new defence of honest opinion. In section 3 of the 2013 Act, the defence of honest opinion is as follows:

(1)   It is a defence to an action for defamation for the defendant to show that the following conditions are met.

(2)   The first condition is that the statement complained of was a statement of opinion.

(3)   The second condition is that the statement complained of indicated, whether in general or specific terms, the basis of the opinion.

(4)   The third condition is that an honest person could have held the opinion on the basis of—

(a)   any fact which existed at the time the statement complained of was published;
(b)   anything asserted to be a fact in a privileged statement published before the statement complained of. …

The Report recommends that a drafting error be corrected, and that the section should be substantively amended in two further ways

  • it should be possible for a publisher to rely not only on true underpinning facts or privileged statements as the basis for his or her opinion, but also on “facts” that he or she “reasonably believed to be true at the time the opinion was published”. This expands the defence, especially so as to defend the position of social media commentators …
  • it is recommended that it be made clear that the defence extends to cover “inferences of verifiable fact”. This is intended to clarify an aspect of the defence that is agreed to be the current law by many legal commentators, but on which there remains a measure of uncertainty in English law …

In Ireland, section 20 of the Defamation Act, 2009 introduced a similar defence of honest opinion, but required that the opinion relate to a matter of public interest (section 20(2)(c)). Given that there is a public interest defence elsewhere in the 2009 and 2013 Acts, there is no need for a public interest requirement in the defence of honest opinion. The Irish section should be amended to come into line at least with the 2013 Act, if not with the NI proposals. Their publication today is very welcome indeed, and Prof Murray is to be commended for his excellent Report. The Irish Act is in need of revision, but none is envisaged in the Government’s Legislation Programme (pdf). Nevertheless, a review of the operation of the 2009 Act is due, and it is to be hoped that the English experience of the 2013 Act and the Northern Ireland Report will be taken into account – in particular, to make the defence of honest opinion workable.

5 Responses to “Reform of the law of defamation – the defence of honest opinion”

  1. Eoin says:

    Paul Tweed leads criticism of recommendations for defamation law reform

    Belfast lawyer Paul Tweed of Johnsons Solicitors has told Irish Legal News that recommendations to extend British defamation law reforms, including the “serious harm” test, to Northern Ireland would cause legal costs to “go through the roof”. …

    However, Mr Tweed, who has been involved in high-profile defamation actions in the UK and Ireland, said Dr Scott’s proposed reforms would complicate the “perfectly adequate defamation law in place”.

    Mr Tweed told Irish Legal News: “In my opinion it will increase costs dramatically, and could end up putting out the likes of some of the smaller publications that do get bogged down in litigation.

    “You’ll be aware in England that the 2013 Act has run into the same problem where we have costs, we’re talking about costs of £300,000 plus, just to hear an interrogatory application on the serious harm rule.”

    He added: “It suits lawyers – I act for newspapers and claimants, so if that’s the case, so be it. I personally am totally against any of the recommendations being implemented.”

    Mr Tweed also said a High Court committee is due to publicly disagree with Dr Scott’s recommendations.

    He told ILN: “I sit on two High Court defamation committees and one of them is due to report shortly. Andrew Scott’s report is certainly not in sync with the report that’s about to come out from the High Court committee, which is made up of members of both the defence side, acting for newspapers, and the plaintiff side.”

  2. […] Scottish Law Reform Commission Discussion Paper on Defamation (March 2016) (pdf) [7.33-7.39]) and Northern Ireland. Other aspects of the Irish 2009 Act are in need of revision (see my previous posts here and here), […]

  3. […] Scottish Law Reform Commission Discussion Paper on Defamation (March 2016) (pdf) [7.33-7.39]) and Northern Ireland. Other aspects of the Irish 2009 Act are in need of revision (see my previous posts here andhere), […]

  4. […] Law in Northern Ireland (June 2016; pdf), prepared by Prof Andrew Scott of the LSE, suggested that Northern Irish law should adopt an equivalent of section 4 of the 2013 Act, and Scotland (Discussion Paper (2016) […]

  5. […] Law in Northern Ireland (June 2016; pdf), prepared by Prof Andrew Scott of the LSE, suggested that Northern Irish law should adopt an equivalent of section 4 of the 2013 Act, and Scotland (Discussion Paper (2016) […]

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Me in a hatHi there! Thanks for dropping by. I’m Eoin O’Dell, and this is my blog: Cearta.ie – the Irish for rights.

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