Friday, 28 March 2014

Mike Harris - "Why is free speech not good enough for Northern Ireland?"

Writing in the Huffington Post here, Mike Harris (@mjrharris) has called the DUP's decision to veto libel reform an outrageous decision. He began by explaining the campaign for libel reform in England and Wales:
"It took endless humiliation before parliament got the message and decided to reform the law of libel: the UN Human Rights Council said our libel law chilled free speech across the entire globe, American academics faced our courts for writing about the funding of Al Qaeda, Barack Obama signed into law an act to protect Americans from our libel law and decent scientists such as Simon Singh Ben Goldacre and NHS cardiologist Pete Wilsmhurst faced ruin thanks to the law.

Thursday, 27 March 2014

Ruth Dudley Edwards - Council "censored" report on violence

Ruth Dudley Edwards (@RuthDE) has accused Fermanagh district council of censorship. This comes after they forced the removal of her reporting that there had been violence associated with the Orange Order. She said:
"What happened happened and there is no hope for Northern Ireland if the past is airbrushed out because it doesn’t suit politicians or public officials."
Previously looked at Ed Moloney who said censorship extended Troubles by up to 15 years. Mick Fealty also noted that "journalists were sometimes told to hold back on a story in case they might do damage to the delicate administration." Read more in the Impartial Reporter here

Wednesday, 26 March 2014

Olivia O'Kane - Number of Defamation claims in 2013 in Northern Ireland stabilise

Cases Received
Non-Court Disposals
Found for Plaintiff
Found for Defendant
Table 1: High Court Libel Proceedings

Court records show that the number of libel cases issued in Northern Ireland in 2013 remains at a similar level to 2011 and 2012. The total of all claims, in the High Court and the County Court, was 32 in 2012 and 30 in 2013.

Of the total of 64 claims issued in 2012 and 2013, 37 were claims against broadcast or print media defendants. There were 3 trials in 2012 and 2 in 2013. All of them were determined in favour of the plaintiffs.

The aggregate damages awarded in all defamation cases in 2012 was £112.505 – with the largest award being £80,000 in the case of Declan Gormley v Sinn Fein. In 2013, the aggregate damages awarded were £68,000 (2 judgments and one announced settlement).This is an updated version of the table from my 2012 post on Northern Ireland defamation cases.

Table 2: County Court Libel/Slander proceedings
Cases Received 
Court Disposals 
Found for Plaintiff 
Found for Respondent 


Data for 2013 should be treated as provisional


A case may not necessarily be dealt with in the same calendar year as it is received.

Olivia O’Kane is specialist media lawyer at Belfast solicitors Carson McDowell

Tuesday, 25 March 2014



Fulton v Sunday World injunction application dismissed

Following Conway v Sunday World, another gagging case has made the headlines with Fulton v Sunday World. This case involved an application by member of the Progressive Unionist Party (PUP) to stop the Sunday World from continuing to report his alleged links with the UVF. In the High Court Gillen J dismissed the application.

Like Conway, Fulton's lawyers argued that a relentless series of articles about him have put his life at increased risk from dissident republicans. News Letter reports in full here.

Monday, 24 March 2014

Spider Letters go to Supreme Court

The Court of Appeal has ruled unlawful the move by the Attorney General to suppress the publication of Prince Charles letters. Judgment in full here. Guardian reported here.

Roy Greenslade assented to the judgement and said:
"If Prince Charles is not neutral then the public have a right to know."
Paul Tweed dissented, saying the decision represented an incursion into the privacy of Prince Charles. Archie Bland called it a matter of secrecy, not privacy. 

However, we will not see Prince Charles' "spider letters" any time soon. The Attorney-General has taken leave to appeal  to the UK Supreme Court (@ukSupremeCourt). Attorney General Dominic Grieve said:
"We are very disappointed by the decision of the court. We will be pursuing an appeal to the Supreme Court in order to protect the important principles which are at stake in this case."

Northern Ireland journalists are working in a climate of intimidation

Journalists are working under a climate of threats and intimidation. Allison Morris of the Irish News had to be escorted from court by security guards. She received serious abuse from a gang of protesters when she was called a "Fenian bastard" and a "Fenian cunt". The demonstrators also threatened to cut her throat. The Guardian reported here. The National Union of Journalists reported here. NUJ president Barry McCall said:
"The media must be free to report on the courts without fear of violence or intimidation. Any attempt to undermine that right is an attempt to undermine the principles which underpin the judicial system."
On St Patrick’s Day 2014 a freelance photographer was assaulted on leaving a function at Belfast City Hall hosted by the Lord Mayor. They gang told him they knew which gym he went to and accused him of working for Sinn Féin, of being a dissident and subjected him to sectarian abuse. In June 2013 the PSNI informed a journalist that dissident republicans had issued a death threat against them.

Friday, 21 March 2014

Protecting Journalist-Source Privilege in Australia

[This is a guest post by Peter Bartlett and Amanda Jolson (@amanda_jolson) of Minter Ellison (@MintersTMT) on Australia's shield laws. Shield laws are designed to protect the confidentiality of the journalist-source relationship. However there has been a sustained attempt to erode those protections that guard the journalist-source relationship. Peter Bartlett and Amanda Jolson Minter Ellison explain.]

The Media Entertainment and Arts Alliance has called for uniform national shield laws. Christopher Warren, the Federal Secretary of the Alliance correctly referred to Australia's shield laws as "patchy and disparate."
According to Chris "it is appalling journalists are served with a subpoena that essentially would require them to breach their ethical obligation."

The comments followed this week's decision by Justice Janine Pritchard in the Supreme Court allowing us to seek special legal costs from Hancock Prospecting (Gina Rinehart). Hancock Prospecting had sought disclosure of sources from Fairfax's award winning journalist, Adele Ferguson.

Over recent years a number of Australian jurisdictions have adopted 'shield laws' that provide greater protection to the confidentiality of a source, and make it harder to compel journalists to reveal their sources to a court. These laws do not bestow an absolute privilege, but rather discretion available to the court to excuse the journalist from identifying an informant.

Wednesday, 19 March 2014

DUP oppose attempt to make the new councils record their meetings

Sunday, 16 March 2014

Northern Ireland Journalists told to hold back in name of peace process

Mick Fealty recently made two observations about Northern Ireland journalism.

One, he suggested that journalists are encumbered to and bound by the wishes of the media outlet's owner. He said:
“Rocking the boat”, I suspect, was never that big on the journalist’s agenda, particularly if not exactly to the proprietor’s taste. In any case, rocking it has more often been a case of cumulative work rather than going for it in one steady hit.
Two, he also suggested that journalists in Northern Ireland suffer from conformity and convention:
"Too many journalists still hunt in packs and so end up producing what Hugo Dixon calls ‘Me Too’ journalism. In the close confines of Northern Ireland this can lead to political pressures to conform (by not asking stupid questions) for the sake of our increasingly geriatric Peace Process™."
Mick Fealty had previously looked at the concentrated pressure for journalists to conform. He quoted an Irish Times report:  
"In [Northern Ireland] journalists were sometimes told to hold back on a story in case they might do damage to the delicate administration. While this was not a point to ignore, you couldn’t make exceptions."
But Mick Fealty has said how Northern Ireland journalists should operate:
"I’ve no doubt of the contribution, but the “well-behaved witness” now needs to start asking “stupid” questions. Otherwise false, or partial, narratives will go unchallenged as those witnesses continue to ignore “the bits that do not suit particular prejudices”. And when “agreed truth becomes accepted, the real truth becomes a lie”."

Saturday, 15 March 2014

Tim Berners-Lee and Tim Farron call for digital "Magna Carta" and "bill of rights"

Tim Berners-Lee, the inventor of the internet as we know it today has called for an online constitution. A shared document of principle that he has called a digital "Magna Carta". He is concerned about the web's neutrality, saying that it is under sustained attack from governments and corporations. An online "Magna Carta" would be a means to protect and enshrine the independence of the internet and the rights of its users. He said:
"Our rights are being infringed more and more on every side, and the danger is that we get used to it. So I want to use the 25th anniversary for us all to do that, to take the web back into our own hands and define the web we want for the next 25 years."
This call comes as part of the initiative 'the web we want.' This initiative calls on people to create a digital bill of rights in each country which should be supported by public institutions, government officials and corporations. Berners-Lee said:
"Unless we have an open, neutral internet we can rely on without worrying about what's happening at the back door, we can't have open government, good democracy, good healthcare, connected communities and diversity of culture. It's not naive to think we can have that, but it is naive to think we can just sit back and get it."
Tim Farron, the Liberal Democrat presiden, has called for a digital bill of rights in response to 'overreach by the state' after its imposition of 'blanket surveillance' of citizens. It would be a move for the people against the work of GCHQ by blocking the "bulk collection of data". A digital bill of rights would protect the public by guarding basic online freedoms from the "untrammelled power of the state". He said:
"The 1689 bill of rights codified the basic freedoms which we still enjoy today. As we live more of our lives online, we deserve to know that we also enjoy a similar level of freedom in what we do in cyberspace."
The site for 'the web we want' can be accessed here.

Monday, 10 March 2014

Wayne Denner - Do we really think about or pay attention to our Online Reputation?

Sadly NO! At least we have not begun to take the role of Protecting our Online Reputation seriously. But here’s the thing - once it goes online.. it stays online.

It’s not that it’s difficult to remove. It’s near impossible.

Therefore, Online Reputation, which yours truly has been banging on about on Twitter and Facebook, is serious, and it needs your attention RIGHT NOW.

But Wayne stop being over dramatic. Chill. How could a simple tweet or a Facebook post get me in trouble? Well it can, it does and it may cost you some hard earned $$. $105,000 to be exact in the case of former student of NSW School Andrew Farley who was ordered to pay this amount for “compensatory and aggravated damages” for making false allegations about music teacher Christine Mickle on Twitter & Facebook.   

Sunday, 9 March 2014

#Pantigate - The Broadcasting (Amendment) Bill 2014

Stephen Donnelly TD is working to remove the word "offence" from parts of the Irish statute book that would liberalise free speech. He explained here:
"On March 5, 2014, I introduced legislation that would change the Broadcasting Act to prevent litigious-minded groups and individuals from shutting down public debate. The Broadcasting (Amendment) Bill 2014 removes any reference to the term “offence” from Section 39 of the Broadcasting Act, as a result, Broadcasters would no longer have to ensure that nothing that could be termed offensive is broadcast. 
I do not believe that people should be censored for saying offensive things, whether that offence is reasonably caused or not. This issue came to light recently with the ‘pantigate’ scandal. The legislation in its current form gags free speech, harms public debate and means broadcasters can be bullied by the litigious and thin-skinned. The simple change that I’m suggesting is the removal of the term offence from our legislation. 
There are probably some changes also needed to the Defamation laws, but this amendment would fix one of the biggest flaws in the current legislation and send a strong signal to broadcasters, minority groups and those they offend that Ireland values free speech."

Friday, 7 March 2014

Mike Harris - House of Lords sends a clear message to Stormont: reform of the libel law is overdue

Last Tuesday, Lord Lexden alongside Lord Bew and Lord Black tabled an amendment to the Northern Ireland (Miscellaneous Provisions) Bill to extend the Defamation Act 2013 to Northern Ireland. Seeing the impact on freedom of expression and the opaque manner in which this issue has been handled, respected parliamentarians spoke up for the amendment. The government refused to accept the motion and it was not put to the vote, but the debate itself had the desired impact. The amendment was a direct challenge to the DUP who feel that they alone can decide on libel reform for Northern Ireland.

It remains the case that very few know why the Defamation Bill does not apply to Northern Ireland, an outrageous decision that has created a gaping loophole in the government's attempts to reform the UK's libel laws. As I noted in the Huffington Post, the humiliating rebuke by the United Nations Human Rights Council to the previous state of the libel law in England, Wales and Northern Ireland led to:
“the three major political parties to make a commitment to libel reform in their general election manifestos in 2010. They didn't qualify this bold commitment with "except in Northern Ireland". Why would they? The law in Northern Ireland has always been substantially the same as the law in England and Wales, that is until the government reformed it. At no point in the parliamentary debate did the government signal the Defamation Bill would not apply to the citizens of Northern Ireland.”

Thursday, 6 March 2014

A comment on Delfi SA v Estonia

[Olivia O'Kane (@OliviaOKane1) earlier looked at the law in Delfi AS v Estonia here

Under the judgement (October 10 2013) handed down by Europe's Chamber of the First Section, Delfi and other online news sites are responsible for anonymous comments. This was a decision to uphold the Estonian court. The Court held that Delfi, one of Estonia’s main news websites, was liable for defamatory comments from its users. This was in spite of the fact that Delfi had taken down the comments as soon as they had been notified of them. 
In the Delfi AS v Estonia case the Court held that there had been no violation of Article 10. It found that the finding of liability by the Estonian courts was a justified and proportionate restriction on the portal’s right to freedom of expression, in particular, because: the comments were highly offensive; the portal failed to prevent them from becoming public, profited from their existence, but allowed their authors to remain anonymous; and, the fine imposed by the Estonian courts was not excessive.

Wednesday, 5 March 2014

The story of the Defamation Act 2013

The modern movement to reform the law of libel in the UK began after Simon Singh was sued (2008-2010) by the British Chiropractic Association. An action described by David Allen Green as "misinformed" and "illiberal". An action commenced after Singh wrote an article in the Guardian saying that chiropractors who said they could treat children's colic and other ailments by manipulation of the spine were “bogus”.

A campaign emerged to support Signh who faced ruinous damage payments. The campaign was transformed by the charity Sense About Science and by English Pen and Index on Censorship. From this emerged "the Libel Reform Campaign". The three leading political parties backed libel reform in the 2010 general election. Via David Allen Green (@JackofKent).

Paul McDonnell - Northern Ireland is a libel-friendly, free-speech limiting outpost

Northern Ireland media lawyer Paul McDonnell (@_PaulMcDonnell_) of McKinty and Wright was cited by Lord Lexden in a House of Lords debate. Lord Lexden read out his submission in full:
"The refusal of the Northern Ireland executive to extend to Northern Ireland the remit of the Defamation Act and the legal clarity and free speech protection it brings, is quite simply unjustifiable. Why should the citizens and journalists of Northern Ireland not be afforded the same protection of those in the rest of the United Kingdom, whether they are expressing opinions online or holding government to account. Why as the rest of the United Kingdom embraces the digital revolution, should Northern Ireland be confined by our archaic and unfocused freedom of expression laws? 

Tuesday, 4 March 2014

Blindfolding the public on libel reform

This is the problem we see time and time again: lawyers gag journalists, and in doing so they blind the general public.
We reported on the Sunday Politics NI debate here. The segment presented both the assenting and dissenting views on the matter of libel reform in Northern Ireland, (from Lord Bew and Paul Tweed respectively). We covered both sides of the debate and gave a full and equal airing to Lord Bew and Paul Tweed. However in the video above and here, Paul Tweed has decided to edit out those people who support libel reform and oppose his view. He has decided to presented an entirely one sided view.

This is a matter for concern. The public can view the Sunday Politics NI debate for only 7 days after the initial broadcast. Thereafter it will be removed from the public domain. The Paul Tweed edited version is on YouTube and will remain there until the day he decides to remove it. By this avenue of debate the public has been blindfolded.

He has given his airing to the public, but in doing so has screened out those voices that don't suit his agenda. Is that right? We support free speech and advocate that all voices be heard.

Paul's video coverage here. Our coverage here.

The "blizzard", "confetti", "volume" and "bombardment" of vexatious libel writs against Northern Ireland journalists

Northern Ireland journalists have repeatedly referred to the journalistic climate of libel intimidation in Northern Ireland.
  • Mike Gilson has worked across the British Isles and has said that Northern Ireland sees far more "vexatious claims"
  • Sam McBride has spoken of the "volume" of libel writs. 
  • Anthony McIntyre has said that letters are sent like "confetti". 
  • Newton Emerson has spoken of a "blizzard" of writs. 
  • BBC producer and peer Viscount Colville of Culross said that journalists had been "bombarded with daily, sometimes hourly, threats of defamation." 
  • Lord Lester of Herne Hill explained how a journalist who he represented sued by the Irish News for £25,000 found the "experience was so traumatic that she gave up her profession as a journalist." 
  • Ruth Dudley Edwards spoke of "the DUP’s enthusiasm for restrictive libel laws."
  • Mick Fealty said: "I can think of more than one Northern Irish politician that’s none to slow to pull the legal trigger when the occasion arises." 
  • Mick Fealty also said: "Who needs to visit Pyongyang when we can have Pyongyang here?" 
  • More worryingly, Mick Fealty reported that NI politicians now enjoy commercial indemnity, meaning "our MLAs want to be able to sue our ass. But be allowed lie with impunity." 
  • Eamonn Mallie has said "I'll see you in court" is the DUP's new "war cry"
  • Journalist Patrick Kane (@patrick_kane_) said that the libel law system has been "exploited by many, and gagged even more."
  • Former journalist Mike Nesbitt explained all libel actions he encountered involved the DUP (see here).
And here's the main issue and concern, as Mike Nesbitt said:
"The point is the laws are regularly utilised behind the scenes to try to influence, warn off, possibly even threaten."
And here:
"Many members of [the media] tell me they face regular threats of legal action for defamation from a particular local political party.

Monday, 3 March 2014

Sunday Politics NI discuss libel reform

(From L-R) Lord Bew, Paul Tweed and Mark Carruthers
The House of Lords tried to push through libel reform in Northern Ireland by virtue of an amendment tabled by Lord Lexden. However it was ruled that the Stormont Assembly has primacy on the issue by virtue of the fact that libel law is a reserved matter.

Mark Carruthers asked Lord Bew: "Why was this attempt made at Westminster?" Lord Bew responded:
"Well when you get a Northern Ireland Provision Bill going through the House it's a very rare event. It's inevitable that people will make the attempt and there's a lot of feeling in the House of Lords on this issue to at least have a serious debate about it. The truth is now, the matter as far as the parliament in London is concerned, is actually over... it'w now a matter for the Assembly. The new minister Simon Hamilton has set up a report from the Law Commission with a distinguished LSE academic Dr Scott to work on. And really that is where the debate and the focus now is. But I think it was worth airing once again last week at Westminster the concerns that exist about freedom of expression and that fact that it is now at a weaker level than the rest of the UK."