Defamation Act 2013: Northern Ireland

Lord Black of Brentwood Excerpts

Thursday 27th June 2013 Grand Committee

[Lord Black of Brentwood]

My Lords, I declare an interest as executive director of the Telegraph Media Group and draw attention to my other interests in the register. We are all indebted to my noble friend Lord Lexden for securing this debate on an issue which is crucial not just for the people of Northern Ireland, a part of our country for which he is such a sturdy champion, but, as he said, for citizens across the UK.

On the surface, this may appear to be a dry and technical legal issue but in reality it is a challenge to UK law that will, unless resolved, have grave and far-reaching consequences for the future of the creative economies and jobs in Northern Ireland, for tens of thousands of ordinary citizens there who use the internet, for journalists and, perhaps above all, for the quality of government and governance in Northern Ireland. I am a strong supporter of the Defamation Act 2013. It clarifies the law to make it easier to understand and cheaper to use. It tackles the chilling impact of the previous libel regime on free speech and updates an antiquated area of law, making it fit for a digital age. It is a liberalising, modernising piece of legislation in which this House in particular should take great pride, because of the role of the noble Lord, Lord Lester of Herne Hill, in fighting to bring it about.

Perhaps the most inexplicable aspect of the Executive’s decision not to adopt this modernising legislation is that it shows no understanding of the profound changes happening in the media which, in all their guises, have become global. Content is spread around the world at the click of a mouse not just by media companies but by ordinary citizens who tweet, blog or use social media to express and share opinions. It is not possible to declare UDI from that. The structure of law needs to keep pace with that profound social and technological change, or else the law itself falls into disrepute. The Executive’s decision to cling to legislation from a world which has disappeared makes King Canute look perfectly reasonable.

When politicians set their face against their future, investment and jobs suffer. Over 4,000 people work in publishing in Northern Ireland, while another 2,000 work in broadcast. Some of those jobs may well be at risk if media companies decide that it is now too dangerous to operate in a jurisdiction that stifles freedom of expression and exposes them to financial risk, at a time when the publishing industry is under severe commercial pressure. Certainly, the foreign investment that the Province needs for its creative industries to prosper will be deterred. I can see no circumstances in which Google, Yahoo!, AOL, Twitter or others would establish businesses in an area that tied them to an out-of-date, repressive libel jurisdiction. This decision in effect rejects the high-end jobs that the Province desperately needs. The Executive decision will therefore have real human consequences for the people of Northern Ireland.

It will pose a problem for UK publishers, too. If Northern Ireland clings to the existing law, editors will have to either edit each edition for Northern Ireland separately, in the process sanitising the news and subjecting copy to different legal scrutiny—something I think unlikely to happen—or withdraw their papers from sale, with the profound consequences of that for media plurality. The UK’s publishers will have to confront that issue if there is no change of heart at Stormont. Alternatively, our Government might in the end be forced to legislate in the way President Obama’s Administration did to protect American companies from foreign rulings that impinge on freedom of expression—something directed against London, to our great shame, under the old libel regime but which will now be targeted on Belfast. Belfast might have a short-lived moment in the sun as the libel capital of the world but could find itself isolated internationally as Governments move to protect businesses from the courts in Northern Ireland. It could become a pariah.

I referred earlier to the grave impact this decision could have on the quality of democracy in the Province. For democracy to function it needs the scrutiny and free flow of information to the electorate that only a vibrant, pluralistic free press can provide. That is particularly true in Northern Ireland where there is no scrutinising second Chamber. The role of civic society, especially local and regional newspapers, in providing such constitutional safeguards is more vital there than anywhere else in the UK. Yet a libel regime that is loaded in favour of claimants and punishes defendants with an oppressive system of costs has a profoundly chilling impact on investigative journalism. As the noble Viscount, Lord Colville of Culross, said, it plays into the hands of those who seek to bully journalists and editors, particularly on local newspapers, where the realities of business mean that once lawyers are engaged for someone under scrutiny it is prudent to either drop an investigation or produce a sanitised report. That breeds poor government, bureaucratic cover-ups and, at worst, corruption. It is not just the Province’s 50 regional and local papers—including some of the finest titles in the UK, such as the Belfast Telegraph and Irish News—that will feel the force of this. At risk are many thousands of citizen journalists who blog or tweet about politicians. They could find themselves facing extortionate legal bills that would cripple them or indeed destroy their lives—something the Defamation Act is meant to prevent.

I do not pretend to understand the reasoning behind what the noble Lord, Lord Bew, has rightly described as an act of self-mutilation and which my noble friend Lord Lexden so eloquently compared to the plight of the people of Burgundy. It may have been done because many at Stormont fear the scrutiny that will be enhanced by changes to the law. It may be because a handful of lawyers and claims farmers—the Tweed brigade—in Belfast are intent on trying to make it the world’s libel capital, as if that is a title to be proud of. But whatever the reasons, I know that the consequences will be very real for the people of Northern Ireland that those at Stormont are supposed to represent. It will expose thousands of ordinary people to the intense dangers of costly libel actions. It will blunt the scrutiny role of local and national papers on which citizens depend for information—a role that makes democracy work. It will mean the law remains a toy with which only those with deep pockets can play. It will stop investment with the consequent impact on jobs in the Province’s creative economy. It is wrong in every conceivable way. This is a very grave situation. Either the Northern Ireland Assembly must act to reverse the decision or the UK Government must do it for them.