Official Report: Minutes of Evidence
Committee for Finance, meeting on Wednesday, 1 December 2021
Members present for all or part of the proceedings:Dr Steve Aiken OBE (Chairperson)
Mr Keith Buchanan (Deputy Chairperson)
Mr Jim Allister KC
Mr Pat Catney
Miss Jemma Dolan
Mr Maolíosa McHugh
Mr Matthew O'Toole
Mr Jim Wells
Witnesses:Mr David Attfield, BBC
Mr Sam McBride, Independent
Defamation Bill: Mr David Attfield; Mr Sam McBride
The Chairperson (Dr Aiken): We will now receive oral evidence on the Defamation Bill from Sam McBride, author and journalist, and David Attfield, legal director at the BBC. Just for the record, David, are you the legal director for the whole of the BBC or just for BBC Northern Ireland?
Mr David Attfield (BBC): No, I am legal director of neither. In fact, I am legal director of a prepublication team called programme legal advice. That is the team of publication lawyers who advise journalists on content prepublication. We have a team of eight lawyers, who are all based in London.
The Chairperson (Dr Aiken): OK Thanks very much indeed.
I welcome Sam McBride to the Committee. You have been in front of us a couple of times.
Mr Sam McBride (Independent): I was here once before, and it still feels rather unnatural, thankfully. [Laughter.]
The Chairperson (Dr Aiken): You are welcome, anyway. David, I am sorry that we are not able to greet you in person, but thank you very much for appearing via StarLeaf. I invite both of you to speak to your submissions on the Committee Stage of the Defamation Bill, and I want you to take 10 or 15 minutes to talk through some of the clauses. After that, I will ask some specific questions, because we have to make sure that we have looked at the clauses. My questions may not quite match that, but please feel free to do that as well. I will ask Sam to kick off and bring David in when Sam is finished. After you have both spoken, we will ask questions.
Mr McBride: Thank you, Chairman and members, for taking the time to hear my evidence.
At the outset, may I ask for a point of clarification? The COVID restrictions meant that I was not able to be in the Public Gallery, so I missed the first few minutes of Paul Tweed's evidence. I was able to pick up most of the rest of it in the cafe next door. I picked up that he referred to an article that I had written. Reading between the lines, I think that I can discern what his complaint is, but I would rather get it clarified now, because it is fundamentally wrong. It is about an article that I wrote about this issue and an image that illustrated that, which he said had not been changed. Is that fundamentally what the complaint was — that he had said that it should be changed?
The Chairperson (Dr Aiken): As far as I can ascertain, yes. My eyesight is not that good that I can see it here but, in essence, that is what he was stating.
Mr McBride: I was astounded to hear that complaint, to be perfectly honest. I can very quickly deal with that issue. Nothing really hangs on it, but it is pretty concerning that a lawyer comes here and says something that is so fundamentally and demonstrably inaccurate. There was a complaint from Paul Tweed about that article. It was an informal complaint — it is the only time that I have had an informal complaint from Paul Tweed — and it was dealt with promptly. My son was ill, so it took me a couple of days to get back to him.
As far as I was concerned, it was dealt with to his satisfaction. He has not come back to make any further requests about that. As soon as I saw his email and dealt with it, the image was altered. It is altered on the 'Belfast Telegraph' website. He complained about the juxtaposition, and I think that he made a reasonable complaint. I did not choose the image. It was probably chosen by a very junior member of staff, and I can assure you that they did not put any thought into trying to construe something between the image and the headline.
Paul Tweed drew it to my attention, and I think that he made a reasonable point. However, if you can see my phone, that is what is now on the 'Belfast Telegraph' website. It has been there since 24 September, from the day that I got his email and immediately responded to it after contacting my editor. So for him to say that that remains unaltered on our website — well, it is concerning that he thinks that way.
Anyway, I just wanted to deal with that at the outset.
Mr McBride: Sure.
Thank you for taking the time to scrutinise the Bill. I know that you are under a lot of pressure at this time as MLAs. There is a lot of legislation coming through towards the end of the mandate. Despite what I just said about my employment at the 'Belfast Telegraph', which I had not intended to say, I want to be clear that my employers at the 'Belfast Telegraph' and the 'Sunday Independent' are aware that I am giving evidence, and they are perfectly happy with that. However, I joined those newspapers relatively recently and am not speaking on their behalf. I am speaking as a journalist and author. They will give their own evidence, which, I think, they have done in writing. I ask you not to construe what I say as speaking on their behalf.
There will be others — David is one of those people — who can speak more knowledgeably than me to the individual clauses of the Bill and to some of the minutiae of what is a very complicated area of civil law. What I want to do, even more so after hearing Paul Tweed's evidence — or the evidence, such as it was, that I heard — is to convince you that there is a problem that needs to be resolved.
It is clear that, to this day, there are still some people who continue to suggest that this is really being exaggerated and that, because things are fine for Paul Tweed and his clients, as Mr Wells alluded to in some of his questions, there is no great problem here. Well, I work as a journalist and I see the problem. I accept that Paul Tweed is on the other side of this, and there should be a healthy tension between the two of us. However, I can assure you that a problem exists.
The Bill is vulnerable to somebody like Paul Tweed saying, "Show us your evidence". The problem that we very often —
The Chairperson (Dr Aiken): It is very difficult to prove a negative, but the chilling effect of the current circumstances acts as a brake on using any sort of process for or having any recourse to dealing with defamation.
Mr McBride: That is, I think, the central problem, as I perceive it in my experience. I can speak only for newspapers and not for other media organisations, but it is not that we very often get legal advice that we will lose a case. It is that we might lose a case. As commercial entities, newspapers will take a commercial decision. My instinct as a journalist is to defend everything that I think is defensible. I would not write it if I did not think that it was right. If it is wrong or if I am persuaded that it might be wrong, as was the case with that photo of Christian Jessen, of course it should be altered. I will absolutely support that, as my colleagues can say. Commercial entities cannot do what I did with my book. They cannot say, "To heck with the consequences, it is a matter of profound public interest. We will defend it, and if we go bankrupt, we go bankrupt", because if they do that, we all lose our jobs and the newspapers that we love. That is not a tenable position for those organisations in a commercial world.
There is a difficulty in bringing the argument that there is a chilling effect, because an insidious secrecy surrounds a lot of those cases. They are not known about beyond a handful of people in Northern Ireland, and it is very difficult for people like me to speak freely about them outside the bounds of a Chamber like this, where, thankfully, there is no fear of what somebody might do or of them sending us a legal threat, as Mr Wells said in his questioning during the previous session.
The Chairperson (Dr Aiken): Are you referring, Sam, to things like superinjunctions and the other things that we know are out there, which are a bit like — I hate to use the Harry Potter expression — things that "must not be named"?
Mr McBride: I have no personal experience of superinjunctions. I know that several exist in Northern Ireland; there are all sorts of rumours about them. I cannot speak personally to that, but I will give you a couple of examples of things of which I have direct first-hand experience. If I do not run over time, I can give you a third example. I can give you as many as you want, frankly, but two examples speak to two of the difficulties that we face at the moment.
The first case is one of the most egregious that I am aware of. It is relatively recent. It is from a couple of years ago. It is in relation to a lengthy analysis that I wrote in 2019 for the 'News Letter', where I was then the political editor, of a major speech by the Sinn Féin leader, Mary Lou McDonald, in Belfast. In that article, I drew attention to a series of problems, as they seemed to me, for Sinn Féin, which, in my view as a political journalist, were not adequately dealt with in that address to an audience at Queen's University. The article ran to about 1,300 words. That is lengthy in newspaper terms. It was a full page of the 'News Letter'. Its headline was:
"Failing to win over unionists doesn’t mean Sinn Féin’s charm offensive is failing".
If you search on Google for that article today, you will not find it. If you have access to the 'News Letter' and you search its electronic archive, you would discover a version of that page that is not the version that was printed and distributed by the 'News Letter' in 2019. In it, you would find that 14 words have been removed. The article originally contained a sentence that said:
"efforts have been tone-deaf to the point that they did not appear to most unionists to be genuine. For example, 13 years ago, Sinn Féin appointed convicted bomber Martina Anderson as head of its department of unionist engagement — akin to the DUP putting Gregory Campbell in charge of winning over nationalist voters."
You might think, "What is significant about that? It is a fairly standard comment for a journalist or columnist". Gregory Campbell got his lawyer, Paul Tweed, to complain in writing that what I wrote meant that he was:
"guilty of criminal activity and a terrorist".
He demanded that the 'News Letter' retract that article, apologise to him publicly, remove the article from our website, pay his legal costs, which were substantial, and pay him a lot of money. To cut a long story short, we received the legal advice from an eminent lawyer that a Northern Ireland court could award him up to £200,000 in compensation for those 14 words. The costs would be astronomically more, and, despite my abhorrence as a journalist and that of my editorial colleagues, the company decided to pay him £20,000 to settle the case. Nobody knows that, outside of a handful of people who were involved in it, and I think that most people will view that as utterly perverse.
That is the reality that we face as journalists in Northern Ireland. Of course I did not mean that Mr Campbell was a terrorist; I do not think that he was terrorist. I could have clarified that for him very easily in print, if he had wanted me to do so. Of course no reasonable person would have taken that to be what the article said. Of course what I actually referred to was his well-known and often gratuitous provocation of nationalists — that is commonly understood in Northern Ireland and by readers of the 'News Letter' — and that is an important issue about which the press must be free to write in a democracy. Of course that had a chilling effect every time the 'News Letter' came to write about Mr Campbell again, no matter how innocuous the article may have seemed.
The secrecy here is a second chilling factor. I could not have commented on that while I was employed by the 'News Letter'; it would have been in breach of my contract. Even now, I would be loath to comment on it outside the confines of the privilege that I have in this Chamber. The secrecy is such that I know that senior DUP figures were not aware of that case. Some were horrified when they found out about it. Even in the party from which the individual comes, there was no argument in support of what he had done there.
In Northern Ireland, there are politicians who, for years, have secretly used newspapers as personal ATMs. Those people immediately look at them as a chance to get secret, easy money. It was very significant and, in my experience, unusual that, in the agreed terms of the clarification, correction or apology that ran in the 'News Letter' after the case was settled, which, ostensibly, was what it was all about — it is about reputation and about being public about that and correcting anything that might have been wrong — Mr Campbell did not want us to mention that he had got money from us. I think that that says a lot about the motivation of some of those individuals.
The second case is better known, because I was able to speak freely about it, and I chose to do so. It involves my book, 'Burned', which tells the story of the renewable heat incentive (RHI) scandal. It was published two years ago. It was unusual for me, because, as a journalist, the worst that could usually happen to me in the area of defamation is what happened in the case with Gregory Campbell. The story is retracted and money is paid to the individual. In an extreme case, I suppose, my employer might go bankrupt if it were a dreadful libel, but it would stop there. My employer indemnifies me personally against someone who sues me based on what I have written in my employment. In book publishing, that is often reversed.
The Chairperson (Dr Aiken): We have heard other evidence on the indemnification process. One issue is that a lot of insurance companies will, as part of a risk-based process, weigh up the cost of the legal action against the likely return. In effect, it becomes a business and economic decision rather than a decision of legal propriety or, indeed, of what is right and wrong.
Mr McBride: That is almost invariably the case with a commercial media outlet, regardless of whether it has libel insurance. Either the insurer weighs it up financially, or the accountants in the often very large company do that. At that point, the 'News Letter' was owned by Johnston Press, which owned several hundred newspapers across the UK, and was a very small part of that empire. The people who owned the 'News Letter' — they have changed since then — did not have any skin in the game. It was just numbers on a page to them, and it was probably about somebody's bonus and whether they could keep costs down. If there were a risk that the cost would run to £1 million or that the case would go to trial in front of a jury, it would seem attractive to them to pay £20,000 plus costs and say, "Get rid of it. That is it. Happy days. We can move on". That was the calculation.
When it came to my book, the reverse was the case. I signed a contract in which I indemnified the publisher, guaranteeing that there would be no libels in the text. Even though it was possible that my publisher would have stood behind me if there had been a claim — I certainly hope so — there was no legal guarantee for the publisher to do so. In fact, the reverse was true. I had legally guaranteed that I would foot any bill that arose from anything that was judged to be defamatory.
Several months before the book was published, I put questions to five senior DUP figures: Arlene Foster, Timothy Johnston, Andrew Crawford, Peter Robinson and Mervyn Storey. Some of those people were asked about incredibly serious allegations. Others were asked about matters that were, frankly, almost trivial. They were important to me in making the book accurate on the date that somebody was at a particular meeting, what they did, where they were and things such as that, but they could not, even in a wide appreciation of what defamation allows for, be judged to be remotely within the bounds of defamation law.
I got an immediate response from a solicitor for those individuals, who said:
"In the event that publication of inaccurate and defamatory material occurs, our clients are fully prepared to issue appropriate legal proceedings, which will, of course, include the publishing house as a co-defendant. Please take careful note of the position in this regard, and notify the publishing house accordingly."
Mr McBride: That is the first time that that has happened.
I was in a situation in which all my earthly assets would have been grossly inadequate to cover even one of the individuals taking a libel action.
There was a possibility of five separate legal actions being taken if they had followed through on their threats. Some of the threats I knew to be risible; they did not have any basis in law, and it was simply an attempt to put pressure on me. However, for some of them, I was not to know what a court was going to say; I was not to know what a jury was going say about it. There have been perverse outcomes in libel actions before in Northern Ireland. I was facing a situation where, if I lost, I was bankrupt. It was as straightforward as that.
The Chairperson (Dr Aiken): Sam, you said that there were some perverse outcomes in libel actions before. Can you give any details of those cases? We have heard evidence on other occasions that has said that there have not been cases like that.
Mr McBride: The most celebrated/infamous of those is the Goodfellas pizzeria case.
Mr McBride: It is now close to two decades ago. It was a restaurant review in 'The Irish News' that said that the reviewer did not really like the establishment that they were reviewing. The High Court in Belfast found that to be defamatory. There was a huge sum facing 'The Irish News'. It was a threat to restaurant reviews across the entire UK to the extent that 'The Times' sent its restaurant critic to Northern Ireland to review the restaurant — it was not very flattering — in order to make the point that restaurant reviews have to be subjective, and that is the whole point. If someone reviews my book and says that they think that it is trash, that has to be a freedom that they have. They cannot feel a fear that they have to somehow justify why they feel that way about it. That was the most egregious example.
I was in a situation where, as you can imagine, I had to have a pretty uncomfortable conversation with my wife. My deciding to press ahead and publish the book in an unamended form was going to have implications not just for me but for her, our young children and the house that we live in. That is not a situation that an investigative journalist doing due diligence by asking people about whom they are writing reasonable questions in the public interest should face. There is no justification for that, yet it is routine. In my experience, certain individuals repeatedly behave in that way. I should make clear that there are lots of people in the DUP and in other parties who do not behave like that.
For brevity, I will skip the third case, unless you want me to come back to it.
Mr McBride: Sure. David, obviously, represents the non-commercial media here. The BBC is effectively a quasi-public-sector organisation, but that is the exception in the UK and Ireland. We are overwhelmingly a jurisdiction in which newspapers, websites and media organisations are commercial businesses. There is a very clear chilling effect on our being able to do our jobs.
You people know who I am. You know what I write. It is in the paper under my byline. I do not troll people online using anonymous accounts. I do not rifle through your bins. I do not try to see whether you have been having affairs — I am not looking at anybody because I am not referring to anybody on the Committee. That is not the sort of journalism that I do, yet I could paper my walls with those letters. It is very well for somebody like Mr Tweed to say, "Look, it is not a big problem. I really do not think that anybody should be intimidated by a letter that says they might be sued and face hundreds of thousands of pounds of damages for really innocuous questions", but it is not easy when you are in my position.
Mr Attfield: I am very grateful for the opportunity for the BBC to make representations and for me to appear before you today. The BBC strongly supports the Defamation Bill, which, for the reasons that Sam McBride outlined, will bolster public-interest journalism in an important way. However, more fundamentally, it will result in other benefits that will affect claimants, plaintiffs and defendants because, contrary to what Mr Tweed said, it will lead to a quicker and more efficient determination of libel claims. The cheapest libel action is one that settles early, and the retention of jury trials in Northern Ireland is a big impediment to the settlement of claims. That is because the single most important element of an action that will determine whether a claim succeeds or fails is determined only during the trial itself.
In England and Wales, the abolition of the presumption of jury trials has had overwhelmingly positive effects in that it has fundamentally changed the way libel and defamation trials are conducted. In most cases now, there will be an early determination of meaning. We at the BBC have had two recent experiences of that. In both cases, the determinations went against the BBC, but we knew early that we were defending an article that we had not intended, in reality, to publish. We had allegations that we had not, in reality, intended to publish. Of course, that made us ask this: do we wish to commit to defending it, or should we seek a settlement?
If you look at the published judgements, which are available on British and Irish Legal Information Institute (BAILII) and at various other resources, you will see a large number of court decisions that now focus on meaning. If you look down the line, you will not find any further judgement in a lot of those cases, because the determination of that single issue prompts settlement.
One of the difficulties that we face, and Mr McBride has alluded to it, is that there is no jeopardy or risk in a plaintiff putting forward exaggerated meanings at the start of a claim. That does not get rumbled in Northern Ireland. The case can proceed all the way to trial with a very serious meaning hanging over the defendant that he does not believe he intended to convey and or believe the article in fact conveyed, but there is still the risk that a jury may disagree with that. There is no effective mechanism for having that thrashed out early. Fundamentally, it would allow claims to be resolved more quickly, would be cheaper and would mean that court resources could be much better used. The typical determination of meaning will be dealt with within two hours or half the time. While that is not widely heralded, that is a very significant consequence of clause 11 of the Bill.
I will also highlight the importance of a unified body of law. Northern Ireland would be an outlier if the legislation does not pass. Protection of reputation is dealt with not just by defamation but through the laws of privacy, data protection, protection from harassment and, potentially indirectly, through online harms. All those matters involve legislation or a body of case law that applies across the United Kingdom. Defamation would be an outlier. That would be an artificial situation where reputational claims, which are intended to protect or restore the reputation of an individual, often do not rely just on defamation but often bring into play privacy and data protection. If you have a sliver of a case —
The Chairperson (Dr Aiken): David, I am sorry to cut across you. Obviously, the BBC goes across the whole of our nation. One of the issues that we heard evidence on involves Scotland, which has a different approach. We understand the differences in the Scottish legal system, but could you just quickly outline them? You brought out the important point that Northern Ireland should not be an outlier, particularly for defamation law across our nation. Can you touch on that Scottish issue for a second?
Mr Attfield: I am not a Scottish lawyer, but Scotland recently passed the Defamation and Malicious Publication (Scotland) Act 2021, which has received Royal Assent and is on the statute books. I do not believe that it in force, but it will bring into play
[Inaudible owing to poor sound quality.]
Mr Attfield: That Act introduces a serious harm test and a statutory public-interest offence that is very similar to clause 4. Very importantly, it introduces a significant difference and one that will increase as time progresses, and that is a single publication rule.
Mr Tweed challenged whether libel tourism exists. That is difficult to prove, but there are certainly cases that have been brought in Northern Ireland that would not, or could not, now be brought in England. We are dealing with one case where the online publication occurred more than a year ago.
That would be statute-barred in England, and it would be statute-barred if clause 8 were to come into effect. That is a libel action that is proceeding in Northern Ireland. It is an example of the outlier that I had in mind.
Even more importantly, if Northern Ireland continues as a jurisdiction in which whether an article is defamatory is tested according the Jameel Supreme Court decision from 2013 or whether a public-interest defence applies is determined by the Reynolds case from 1999, it is very hard to see how that law would not become ossified. In the absence of judge trials, you do not get reasoned decisions, so there will be no further decisions about what the trigger needs to be or about the degree of impact that libel needs to have in order for it to be actionable. How does the public-interest defence evolve with new technologies, new standards and differing strategies? It is very hard to see where that body of law will come from. I fear that we will be advising and litigating very much in a vacuum with a body of case law that is increasingly disappearing in the rear-view mirror.
The Chairperson (Dr Aiken): I will just touch base on that again. When case law is being developed, cases getting as far as the Supreme Court creates the necessary precedent, so we are detached from that. You are basically saying that, we are stuck behind and that, as the rest of the nations move on, we get progressively further behind.
Mr Attfield: Yes. Any public-interest defence, whether it is in Scotland or England, will proceed on a very similar basis to what is outlined in clause 4. It will not proceed on the basis of Reynolds, which has been expressly disapplied in England; yet, in Northern Ireland, the most important authority is still one from the previous century on the public-interest defence. Given that England and Scotland will have court decisions based on a different legislative test, I do not see how a new body of law can possibly evolve in Northern Ireland now. As I say, you will increasingly be looking at case law that is disappearing fast in the rear-view mirror.
Mr Attfield: I mentioned that we are currently dealing with a case that I do not think could be brought in England because it would time-barred. I think that Mr Tweed or Sam McBride alluded to the single publication rule. It is very significant, and it has a real chilling effect. The availability of newspaper archives serves a significant public good. There is a very strong public interest in having a tight limitation period. For many years, that period has been one year. In Northern Ireland, there is an exception to that for online publications, because the continuing existence of an online publication is seen to extend that period indefinitely. In Northern Ireland, we have what I consider to be a significant outlier, which will increase in significance as the internet becomes a bigger and bigger store of archived information. A claim can be brought many years after publication, at a time when important witnesses may not be contactable, memory may have faded and documents may no longer be accessible or may not have been kept. That is a significant risk. I do not think that forum shopping is a significant problem, but I think that the extended limitation period in Northern Ireland is an example of where —
The Chairperson (Dr Aiken): Let me get this right, David. The current limitation period in the rest of our nation is one year. In Northern Ireland —
Mr Attfield: It is one year in Northern Ireland.
Mr Attfield: However, the way that that one year is calculated for online publications is different in Northern Ireland.
Mr Attfield: Yes. In England, the one-year period starts when the publication first appears on the BBC's website, for example.
Mr Attfield: After one year of the article's being available online, the limitation period ends, and it can no longer be litigated over.
Mr Attfield: In Northern Ireland, the continued existence of the article online means that it is considered to be a new publication. If the article was published a year ago and is available today, you still have one year. In effect, for an online publication in Northern Ireland, the limitation period is never-ending. It is an indefinite period.
The Chairperson (Dr Aiken): Does that mean that if I accessed something on whatever web system, that would be deemed to be the start of the one year?
Mr Attfield: That is an outlier that the Defamation Act 2013 in England corrected, that the Scottish legislation has corrected and that still exists in Northern Ireland. We are defending a claim that has been issued that, under the one-year period in England, could not have been brought.
I will very briefly touch on clause 5 of the Bill. It is a fair point that the Bill does not address all the ills in the world of publishing, particularly online publishing — far from it. However, I have a difficulty with Mr Tweed's position on clause 5, which concerns the operators of websites. Clause 5 is a start. Mr Tweed says that he does not accept the legal position, but most lawyers would say that, at the moment, because of the e-commerce directive and US legislation, online publishers have very little jeopardy.
Clause 5 is a start in trying to hold online publishers accountable for content. It provides a mechanism that may be convoluted, and maybe amendments could be made to the Bill and to the regulations coming from the Bill that, learning from the English experience, could be better, more streamlined and more effective, but it is better than nothing. It is a start. It is a process by which someone can try to get justice out of Facebook. I cannot see the objection that it does not cure all the ills. It is a step in the right direction. It provides a process.
I do not like the claim that forum shopping is going on to any significant degree. I heard Paul Tweed argue very well that
[Inaudible owing to poor sound quality]
cases, but I fear that we face threats and sometimes cases in Northern Ireland that could probably be disposed of quickly in England because of the serious harm test. I would ask whether the serious harm test really offends against a sense of justice.
Before I focused on prepublication advice, I spent many years in litigation. You tear your hair out with the sorts of cases that, to use an analogy, are neighbours in dispute over a hedge. There needs to be a proportionality. The cases are High Court claims, potentially involving jurors who are giving up their time to hear a dispute. Out of respect to the jurors, there needs to be a sensible threshold at which a case becomes a matter of which the High Court should be seized and which jurors should be expected or feel that they have a duty and responsibility to preside over.
There has been satellite litigation over the serious harm issue, as there has been over the clause 4 issue. Mr Tweed very elegantly pointed to the costs that were incurred. Coming in at this stage, you get the benefit of the heavy lifting that has been done by the Supreme Court. We now have very clear Supreme Court decisions that pinpoint what is meant by "serious harm". We have a clear Supreme Court decision that really pinpoints how you assess the clause 4 public-interest test. That satellite litigation is a learning experience that English litigants have had to bear. If those clauses were adopted and passed, a body of much clearer law would be inherited.
Those were the main points that I wished make. I hope that they were helpful.
Mr O'Toole: Thank you, Sam and David, for your comprehensive evidence. It was quite striking. Mr Tweed seemed to be suggesting that one of the flaws in the Bill was that we are not taking Google, Facebook and Twitter down a peg or two. That would be great.
However, obviously, if the US Congress and the European Commission are having a hard time, we in the humble little Northern Ireland Assembly will probably not be found at fault because we are not introducing comprehensive regulation of social media in the next four or five months. I am not sure that that is a reasonable complaint.
Sam, you talked about those examples where there has been a "chilling effect". Have you seen a differential in how that works? For example, the 'News Letter' is owned by Johnston Press, which is a UK-wide publisher. Your current employers are now, I think, Belgian, but the group is Ireland-wide. Both those publishers had experience in different jurisdictions. Did you get a sense from the management that the jurisdiction in Northern Ireland was specifically more litigious or favourable to litigants?
Mr McBride: Yes, more than a sense of it. There was a rule instigated by Johnston Press that publications in Northern Ireland that were publishing on particular individuals had to go through certain hoops that an equivalent publication like 'The Scotsman', 'The Yorkshire Post', 'The Portsmouth News' or any of its other papers in Great Britain did not have to go through. That made it more difficult. I am not saying that, if you were a journalist who was quite determined to get something in, you could not always get it in, but it was harder. It made it more difficult, and it was a hurdle that, quite literally, did not exist in that major UK publisher. I do not know what the situation is now. I am not there, and the paper is under new ownership, but, for several years, that was the situation.
When I was reading David's written evidence last night, which the Committee sent to me, I was struck by the fact that, even the BBC, which is the biggest media organisation in these islands and one of the biggest in the world — it deals with wealthy financiers in the City of London, it reports on dictators from around the world and it deals with dodgy businessmen: all sorts of people who might be thought to be litigious — and he is saying that it has this particular problem in little Northern Ireland. That says an awful lot in that it is not just about people thinking that they can take on what they might perceive to be medium-sized regional newspapers. They are so confident that they will even take on the BBC.
Mr O'Toole: David, will you say something about that? As Sam said, you are a global media organisation that is often up against not just irate DUP politicians but dictators. What is particular about this jurisdiction? Is it something that the BBC is aware of at a corporate level?
Mr Attfield: Yes, we are aware of it at a corporate level. I hesitated when I wrote the submission about whether to use the phrase "disproportionate" because I am very mindful that BBC Northern Ireland produces some pretty punchy current affairs, and some very high-value investigative journalism comes out of BBC Belfast, with 'Spotlight' and 'The Nolan Show' being two obvious examples. It punches above its weight, so you may expect there to be a disproportionate number of libel complaints and defamation actions flowing from that.
It is very hard to see whether it is truly disproportionate, but my sense is that it probably is. The numbers are small in absolute terms, but, when I reviewed the figures last night, I guessed that around 20% of serious complaints and claims emanate from Northern Ireland.
[Inaudible owing to poor sound quality.]
Mr O'Toole: Sorry, David, I think that that was an important statistic. Did you say that 20% of serious libel claims that the BBC faces are from Northern Ireland?
Mr Attfield: I would say 20%. The numbers are small in absolute terms. They are in single figures for claims issued each year. I have looked back over the last 10 years, and my estimate is that, if we looked at serious complaints and issued claims together, we would see that 20% have emanated from Northern Ireland.
Mr O'Toole: Just so that I am clear, when you say "claims", is that where a writ has been issued?
Mr Attfield: No, because often a writ is not issued and the claim will be resolved without the issue of a writ. The numbers of writs that are issued are probably too small, to be honest. We have handfuls of issued writs each year, so it is very difficult with the law of small numbers to try to put a percentage on it. My estimate would be that, in 20% of cases across the past 10 years, serious threats have been made or claims have been issued.
Mr Attfield: If you have three or four claims issued in a year and one or two are from Northern Ireland, that might be 50%. I am sure that I can find the year in which 50% of the claims were issued in Northern Ireland because we had only four claims. It is very difficult, with such low numbers —
The Chairperson (Dr Aiken): David, I will cut across you there, because this is a particularly important point. We have heard evidence as we have gone through that this is not necessarily having a chilling effect, but you are saying that, for the BBC, which is one of the world's largest broadcasting organisations, given all its online activity and all the rest of it, 20% of the activity that you have concern about is from Northern Ireland, bearing in mind all the other activity that there is. You are a senior legal adviser in the BBC. That alone probably suggests that, somewhere in the BBC's risk register, there is something that, if there is anything to do with Northern Ireland, puts a flag up. I hate using the word "flag" in reference to Northern Ireland, but you know what I mean.
Mr Attfield: It puts a flag up for a number of reasons. I do not want to exaggerate the chilling effect. We are fortunate to have resource, expertise and good journalists. I do not think that I could give a clear example of a major investigation that we had to collapse in Northern Ireland that we would have pursued in England. It is much more on the margins of having to deal with complaints that we may take a different view on in Northern Ireland because we do not have the serious harm threshold or because we cannot see a simple means of expediting the claims so that they could be resolved cost-effectively at an early stage. You often know you are in for a long slog in Northern Ireland
[Inaudible owing to poor sound quality]
resolving claims. On the margins, it colours how we view complaints and how we advise on programmes. Because of the lack of a serious harm test, if we get a complaint about an online publication, we are, inevitably, cognisant of the longer tail of actionability that exists in Northern Ireland.
Mr O'Toole: That is helpful. As you acknowledged, the BBC, the biggest and most powerful media organisation in these islands and one of the biggest in the world, is being chilled. Even if it is having an influence at the margins —
Mr Attfield: It has an influence. I cannot point to a high public-interest investigation that has collapsed simply because of Northern Irish laws. We are not in that terrain, to be fair.
Mr O'Toole: I can relate to you an example from not that long ago. I will not name the journalist or the media company involved, but a journalist said to me that they had been effectively told to —
Mr Attfield: I can absolutely believe that.
Mr O'Toole: Present company excepted; it was not Mr McBride.
Can I ask Sam McBride one more question? You mentioned that there was — tell me if I am putting this wrong — a list of politicians. Were they all DUP politicians? I do not want to
[Inaudible owing to poor sound quality]
Mr O'Toole: This was a list of politicians. In fact, was it just politicians —
Mr McBride: No, it was not.
Mr McBride: No. It was people who were known to be litigious in this area. It is true that, in my time as a journalist, the DUP has been the most litigious party in this area. However, I should make it clear that Mr Buchanan has never sent us any complaints in this area. I do not think that Mr Wells has; he certainly did not when he was in the DUP. In absolute terms, it is a relatively small number of people, but they are very powerful people and people who know that it works. They have been doing it for years.
There is one other thing that I would like to clarify, picking up on something that David said. In the evidence session several weeks ago with the departmental officials, they made the point, if I recall correctly — I am speaking off the top of my head slightly — that, since the 2013 Act had not been implemented in Northern Ireland, the number of cases had gone down, ergo, there is no problem here. They said that it is no big deal, effectively. Of course, I am not quoting them verbatim. I think that the opposite is the case. In my experience, the vast majority of these cases do not go anywhere near court. That is not really the issue. In fact, in some ways, that is the issue.
In my time, I have seen something like 30 or 40 solicitors' letters threatening legal action, most of them in relation to politicians, perhaps because I was political editor for most of that time. Only one case in which I was involved entered court, and that case did not go to trial. It cost hundreds of thousands of pounds without even going to trial, before it was settled. It is not about whether you lose at trial; it is about the fact that you do not think that you can even get to trial. That is the problem.
Mr O'Toole: I will leave it that, but there is a very strong argument that, whether we update our law or not, these laws are never tested in court because media titles are scared.
The Chairperson (Dr Aiken): Sam, you also talked about the issue with the book. The book was also published in Dublin. There was no attempt in Dublin; it was decided to do it specifically in Northern Ireland, rather than in Dublin. Was it published separately in —
Mr McBride: David will know more about this than I do, but I think that printers, newsagents and booksellers etc have an exemption from this. It never got to the stage of a writ, so it was not about picking a jurisdiction in which to sue over it. In my view, it was simply an attempt to bully, probably my publisher more than me. I think that they knew that I was not going to be bullied. They thought, "Tell your publisher about this". It is a relatively small company outside Dublin. The fact that there was no legitimate concern about the book is evident from the fact that not a comma of the book was challenged after it was published. It was 150,000 words, but it was an attempt to stop it ever getting there.
Mr McBride: It was a solicitor in Northern Ireland acting for the DUP. I think that that is because the DUP is in Northern Ireland. I do not think that they got to the stage of choosing that they would issue a writ —
Mr McHugh: Tá fáilte romhaibh uilig. You are both very welcome, Sam and David. Sam, your submission states:
"I hold no brief for liars, but if lies are not causing serious harm, should we not prioritise free speech?".
That is an astonishing statement. You are saying that it is OK to lie, as long as it does not cause someone serious harm in the eyes of the court. Is that a fair assessment?
Mr McBride: No, I am certainly not saying that, in an ethical or a moral way, it is OK to lie. It is utterly unacceptable. It is reprehensible. It should be frowned upon. If people are known to be liars, they should be ostracised. However, should it be litigated? Should we go to court over everybody who tells a lie? Absolutely not. The courts would be filled. We would have millions of cases every year. I do not think that it is a controversial statement to say that, if somebody tells a lie, we should not go to the High Court and spend hundreds of thousands of pounds to litigate that.
Mr McHugh: I do not think that the intention is about where an individual tells a lie; it is when it is printed or reproduced in the media as a lie. Is that not cause for serious concern?
Mr McBride: If a lie is printed that is demonstrably untrue, there will be nothing in the Bill to prevent somebody, if it has had a significant impact on them, from taking a libel action. That is clearly still going on in England and Wales; there have been lots of very high-profile libel actions there since the 2013 Act, to the extent that Paul Tweed says that he does not really think that this helps the media at all. We cannot have it both ways. We cannot say, "Actually, the 2013 Act is something that doesn't help the media. It makes it more problematic for them and more costly, but, on the other hand, this would be disastrous and would open the floodgates".
When the 2013 Bill was going through the Houses of Parliament, Ian Paisley Jr, who is well known to be one of his clients, said that Paul Tweed told him that, if you were not an axe murderer — I think that that was the phrase that he used — you really would have very little hope with a libel action. It is clear that that is not the case. I entirely accept what Paul Tweed says about libel tourism; I do not see any great evidence that that has happened in Northern Ireland. However, we should be careful about deducing from that that it could not happen in Northern Ireland, particularly the longer the two jurisdictions diverge. If you are, in absolute terms, more likely to succeed in the libel action in Northern Ireland, and say, for the sake of argument, that you are Boris Johnson — you are a public figure in both jurisdictions — why would you not take it in Northern Ireland?
Mr McHugh: Sorry; I am not here to defend Paul Tweed. He did not, however, say that there was not any great evidence; he said that there was no evidence at all of there being libel tourism in the North of Ireland.
I want to get back to the point about a lie and whether it causes serious harm. David, I will direct this one to you, because you said that there have been High Court decisions that are definitive on serious harm. Paul Tweed, however, had no confusion: serious harm is not defined. Is it not a subjective term, in the first instance? Who is it that arrives at that conclusion on serious harm?
Mr Attfield: It is inevitably subjective, to a degree, but we now have a Supreme Court decision in a case taken by Bruno Lachaux against the 'Evening Standard' and 'The Independent' newspapers. That went through the High Court, the Court of Appeal and, ultimately, the Supreme Court on the test of what serious harm means.
What emerges is that you need to show that something demonstrable has flowed from it that has had an impact. It does not need to be devastating, but it needs to have some impact. The impact is, of course, taken in context. I think that Mr Tweed gave the example of it causing tensions in a family. For example, if my children no longer speak to me because they believe something that they have read or seen about me online. That, of course, would be serious harm. The damage to one or two relationships would be serious harm, if those are relationships that matter.
If you do not have clause 1, you still have the Supreme Court decision in the Jameel case, which is what the Northern Irish courts will apply. That is still a subjective test. It is slightly lower, but what it is not is something that will evolve. There will be very few cases that will enhance the understanding of that. I use this phrase: there will be a body of law that is increasingly receding in the rear-view mirror. There is the early 2000s Supreme Court decision in the case of Jameel, in which the pre-2013 requirement for harm was really looked at. That is as subjective. If the criticism is that clause 1 is subjective, it applies equally to that. The benefit of clause 1 is that we have recent Supreme Court authority on the point, and if further clarification is needed in due course, that undoubtedly will come from the decided cases.
Mr McHugh: Finally, I am not suggesting that either you, David, or you, Sam, would in any way benefit from it, but is clause 1 about protecting rich and powerful elements of the media or big social media companies, as opposed to defending the right of the individual?
Mr Attfield: Can I take that? I do not think so. There are two points. First, serious harm is all about impact. The BBC has more impact than a community newspaper, so we are already one step back in defending a serious harm case, because of our reach and the gravitas of our publication. The clause on serious harm is probably of most benefit to a community newsletter-type publication rather than the BBC.
Secondly, the BBC — I absolutely take the point that we cannot have a licence to lie — like most of the media, is regulated by Ofcom, the Independent Press Standards Organisation (IPSO) or another press regulator, which will come down pretty hard if untruths are published and will force corrections to be published to provide vindication. Defamation is not the only route through which reputations are protected and inaccuracies dealt with. The clause on serious harm is much more important and beneficial for someone writing a community newsletter than it is for the BBC.
Mr McBride: I will add to that. It also redresses the balance here in striking out, at an early stage, the Gregory Campbell-type complaint that I have given you the details of. There is no way that he could say that that caused him serious harm. There is no way that somebody crossed the street to get away from him the week after they read that about him. He was incidental to the story; he was not in the headline or the image, he was mentioned in 14 words etc, etc. What was said about him was incredibly anodyne, frankly, in the context of what some people have said about him. There is no way in which he could have done what he did in sending a solicitor's letter without knowing that he would end up paying the full bill. If you engage a solicitor, there is a lot of cost involved. If you think that you might have to pay for it, it is not entirely risk-free. Of course, if you think that you will never have to pay for it, why would you not?
Mr McHugh: I will comment on that, too. I do not think that receiving a solicitor's letter is ever a deterrent in itself when a researcher working for a radio station can say on social media, "This is what we do with solicitors' letters", then tear the letters up and throw them into a dustbin. Clearly, the letters were not limiting what they were doing as broadcasters.
Mr McBride: That was how that complaint was dealt with. It is important to say that it was a complaint from you or your solicitor, was it not? Is that correct?
Mr McHugh: The complaint was not about his tearing up a letter from me or my solicitor; it was about him talking about how he deals with complaints to the radio station.
Mr McBride: It was David Thompson on 'The Nolan Show', I think, with Stephen Nolan. You had sent a complaint to them. Just because those do not —
The Chairperson (Dr Aiken): One thing from the Chair. We are looking at very important legislation. We have privilege, but let us have a degree of caution, please. I will not stymie any debate, because it is vital, and we have learned a lot from what we are doing, but, please, let us have a degree of caution.
Mr McBride: I was trying to make sure that I did not misunderstand.
Mr McHugh: That altercation had nothing to do with my case, per se. It could have been any case. I am just making that observation.
Mr McHugh: To what extent, therefore, does it hinder the BBC or newspapers from —
Mr McBride: I have shown that it does hinder newspapers. I have given clear examples of that. The fact that it does not always hinder newspapers, or that some people have thicker skins than others and are prepared to take risks that other people are not, does not show that there is not a problem. It shows that there is a problem and that those people are prepared to take an element of risk. Not everyone will or should have to take those decisions.
The Chairperson (Dr Aiken): Sorry to take over, Maolíosa. We have heard that, from the BBC at one end of the spectrum to small newspapers in Northern Ireland at the other, they all feel the effect. It is safe to surmise that, from the two of you.
Mr Allister: Gentlemen, I do not think that I do either of you a disservice if I characterise your evidence as being in the interests of likely defendants in libel cases, and say that, clearly, therefore, you see the Bill as an aid for defendants.
On the point, Sam, that you are polluted with speculative, extravagant solicitors' letters of a threatening and bullying nature, how would the Bill diminish the writing of such letters?
Mr McBride: When Paul Tweed says that it would not stop it, he is, of course, correct. Within the bounds of what solicitors are allowed to do by their professional bodies, they can send whatever they like. There is a cost involved, however. Paul Tweed — I am using him as an example because he was here before me — or solicitor A who sends libel letters to journalists does not really care about it. Solicitors do it as a professional act; they make money out of it, and, of course, they have a business to run. It does not mean anything to them. Ultimately, the person who pays the bill, if the case does not go anywhere, is the person who is employing them — the client. If the client thinks that, in fact, there is more in the armoury of the defendant — in this case, the publisher — the practice will not be eliminated, but there will not be as many of the, frankly, vexatious claims that, in Northern Ireland, unfortunately, cannot be dealt with in a way that a vexatious claim can be dealt with in the rest of the UK.
Mr Allister: That is because, you believe, serious harm gives you a shield and prevents and discourages the writing of threatening letters.
Mr McBride: Yes. It raises the bar.
Mr Allister: It raises the bar. It brings me back to the sentence that Mr McHugh drew your attention to. I thought, when I read it, that you were being facetious — it seems not — when you wrote:
"but if lies are not causing serious harm, should we not prioritise free speech?"
You were not being facetious?
Mr McBride: You can characterise this in different ways, but think about it like this. If I say that you are wearing a white suit, it is a lie. You are not wearing a white suit, but it is not something that causes you any harm, and we can all agree that we should not be going to the law about that, unless there is some particular reason for it.
Mr Allister: Who would ever go to the law on that on our present legislation?
Mr McBride: No, but you could try. I am giving an extreme example. Of course that is not what we are dealing with here. What I am trying to say is that lies, in themselves, should not necessarily be actionable.
Mr Allister: What you want is immunity for publishers to tell lies that do not cause serious harm?
Mr McBride: It is not immunity because there is —
Mr McBride: There is, as David said, already a bar to get over. So we already accept that you cannot simply go to the law over anything. What we are arguing about is not whether lies should be illegal, or actionable in a civil way; but about which lies, how far up the ladder —
Mr Allister: In other words, immunity for lies that do not cause serious harm. So it is OK to lie, provided the law will rule that you did not cause serious harm. That is a charter to lie.
Mr McBride: No. We are viewing this in isolation. We are looking at this in defamation law, because that is what is before you in the Bill. Newspapers do not operate in isolation. Those that routinely lie have no readership because they are known to be liars. That is not a credible position. If the BBC routinely has to correct its output because it is lying about somebody or saying something that can be demonstrated in newspapers, social media or other ways to be lies, that is not a situation that any journalist or media organisation wants to be in. It is not good commercially or ethically and not what any of us got into the business to do. Therefore, this is about whether those lies should go to court; it is not about whether it is OK or not.
Mr Allister: Strip away the verbiage and what you advocate is that a publisher should be able to publish a lie with immunity —
Mr McBride: No. Not with immunity.
Mr McBride: No, because —
Mr Allister: — and some wigged and gowned judge will decide whether it is serious harm.
Mr McBride: No, because there is not immunity in other areas. There has already been reference to IPSO, which, I can tell you, is taken absolutely seriously by the media. It can order us to print a front-page retraction. That is not something that any newspaper editor wants on their watch. It is not immunity. The mistake here is that, in Northern Ireland, some people, and particularly some politicians, have viewed defamation as the immediate first stage. It is not a case of, "Let's phone up Sam McBride and say, 'Actually, you know what? I am not a terrorist. Can we make that clear?'". Or whatever else it might be. Go to IPSO or go to something else. It is immediately, "How much money are you going to give me for that?" That is what we are talking about and that is the reality.
Mr Allister: I understand that there are greedy people in all walks of life, politicians as well. However, I am more interested in the less powerful, the guy who does not have recourse to a political party, or the lawyers of one, but who has been lied about and feels that now, because there is no legal aid, it is beyond his reach to do anything about it, and you want to put it beyond his reach.
Mr McBride: It is true that libel law will rarely help the man or woman in the street. That is the reality. It has been so for hundreds of years, when the laws were very tight, or slightly looser, as they are now and if this were to change.
Mr McBride: No, no, no. It is clear that this is a form of law that is open to the wealthy and powerful. It is used by them. There are other avenues. I referred to IPSO, which is an entirely free process.
Mr McBride: Absolutely. That is why I was so surprised at what Paul Tweed said about the Christian Jessen case. That is exactly the sort of case that should be held to be defamatory. He acted in an appalling, reprehensible way, and of course he should be held to account and be hit in his pocket for it. I do not want to see a situation such as that in America, where you can almost say what you like about somebody. We are talking here about modest changes. That situation does not pertain to 'The Times' in London, 'The Daily Telegraph' or 'The Guardian'. They are not in a free-for-all right now.
Mr Allister: With respect, I disagree that it is a modest change to require a non-funded plaintiff who has been lied about to have to cross a threshold of serious harm before he can do anything about it. If he fails at that, he is in a worse position because he has run up his costs and your costs so that you, the publishers, have the privilege of telling lies about him.
Mr McBride: No. That is founded on the misapprehension that, at the moment, or even if the Bill or whatever legislation were to be passed, libel law is ever, in reality, available to a plumber or a builder. That just does not happen. I have received lots of those letters. They always come from powerful people. That is the reality.
Mr Allister: Is that because you can afford to throw the letters from the plumbers or builders in the bin —
Mr McBride: We just do not get them.
Mr Allister: — because you know that they have not got the wherewithal to come after you?
Mr Attfield: I would like to respond to that. The mainstream press and broadcasters are heavily regulated, with obligations of accuracy and swift, free, effective mechanisms to redress that. We get a hundred complaints from plumbers and builders, which our internal processes deal with. They can appeal to Ofcom, and that can result in outcomes that include published apologies, free of charge. Overwhelmingly, people wish to use that mechanism. It is quick, cheap and free. It is effective.
Mr Attfield: It is not free for us, because we have to resource it. We have to —
Mr Attfield: It is not cheap for us, because we have to resource it and investigate. The BBC complaints process is not a cheap infrastructure. Overwhelmingly —
Mr Allister: You said something, and I want to make sure that I got it correct. Did you say that you had no examples to give us of cases that were settled in Northern Ireland that would not have been settled in GB?
Mr Attfield: That is very hard to prove. We certainly have cases that are brought in Northern Ireland that I do not think would be brought in GB. We certainly have that. I would not —
Mr Allister: The question was this: are there examples of cases settled in Northern Ireland that would not have been settled in GB?
Mr Attfield: It is very hard, because I am not across the legal advice in every case, and I do not know what an English barrister may opine.
Mr Attfield: There are certainly cases that have been settled far later. Vindication is not like revenge. Vindication is not a dish best served cold, and the mechanisms under the Defamation Bill would allow far speedier processes, access to justice and resolutions of claims. Many claims have run to the door of the court in Northern Ireland, because there is no mechanism for banging heads together to resolve issues whilst the jury system is in process, because there are matters that are reserved for the jury.
There are certainly cases where vindication has come late and where costs have been run up. I keep giving the example of the claim that would be out of time in England. The serious harm test has been in for only a few years. We have certainly had threats. One unserved writ, potentially, was issued in Northern Ireland; I would have been very surprised if such a writ had been issued in England, because of the serious harm threshold. In fact, I am struggling to think of one. You can argue that both ways: either there is no problem or the serious harm threshold is not a significant impediment.
Mr Allister: I want to explore one more thing with you, if I may, because I found your evidence on it quite confusing. The question of preliminary determination of meaning and the question of preliminary determination of serious harm are free-standing issues. You can have one in legislation without the other. Is that correct?
Mr Attfield: It is difficult to see how you can have those in legislation. Both those matters are reserved for the jury, so it is very difficult to see how you could have a system whereby those matters could be —
Mr Allister: In Northern Ireland, as a preliminary issue, you can have a judge rule on whether contended meanings are credible.
Mr Attfield: The test is perversity. It is extreme. The test is not what the article means —
Mr Attfield: — it is whether, on any basis, the article could possibly be harmful. The test is perversity.
Mr Allister: In a recent case, 11 or 12 suggested meanings were thrown out at the preliminary stage. Is that not correct?
Mr Attfield: Yes. I gave you that case as an example.
Mr Attfield: The judge also commented on how much more effective it would be if the meaning could just be determined. As —
Mr Allister: Is there a halfway house where the question of the meaning is a judicial decision at an early stage, but the question of "harm" remains a jury decision?
Mr Attfield: That is difficult, because the jury may take a different view. Before the Defamation Act 2013, there was a real reluctance for the judiciary to do that, because it considered that the jury would ultimately have to come to its own view, and you cannot pre-empt that decision.
Mr Attfield: It is very hard, therefore, to see how you determine the meaning.
Mr Allister: No, the jury would come to its own view about whether there was harm and, therefore, whether damages are due, but the judge would come to a view on which meanings would go before the jury.
Mr Attfield: That has not been adopted and is considered not to be practical, because —
Mr Attfield: — the jury will have its own independent thought on what the article means. You cannot pre-empt its reaction to and assessment of the article in the publication.
Mr Allister: You can, to the extent that what is left to the jury is the meanings that have been determined by the judge.
Mr Attfield: You can. This is sort of theoretical, because it has never been tried. The English courts certainly did not go there. The Northern Irish courts have certainly not tried to go there. The test has been that, where you have a jury, the only thing that a judge can determine about a meaning is whether it is perverse: in other words, that it is so off the scale that it should not even have been put to the jury for its consideration.
Mr Attfield: There has always been the test of perversity, for the very reason that you should not saddle the jury with the judge's thinking. The jury must approach it with an open mind and a clean sheet.
Mr Allister: Can you point us to any perverse decisions in Northern Ireland that were not rectified on appeal?
Mr Attfield: No, but it is a small jurisdiction with few cases. The risk of perversity —
Mr Allister: That might, therefore, suggest that our law is not so bad after all.
Mr Attfield: No, I do not think that Northern Irish law is "so bad". There is an opportunity to align Northern Irish law with English and Scottish law in a way that will ensure strength and uniformity. The biggest point that I made in my submission was largely about future-proofing Northern Irish law, because there will be a slither of law. Paul Tweed says "Oh, well, Northern Irish law is different in lots of respects", but it is not different in respects where you do not get judges giving reasoned decisions. There will just be no case law. There will be no case law upon which to determine "serious harm", which will determine —
Mr Allister: In my scenario, for example, there would be case law on meanings.
Mr Allister: There would be case law on Court of Appeal decisions on damages.
Mr Attfield: There will not be decisions on damages; those are reserved for the jury.
Mr Allister: There would be on Court of Appeal rulings on damages.
Mr Attfield: One every five years, potentially. There is a real risk of stasis in a jurisdiction where considerable responsibility is given to a jury to determine issues without reasoned decisions, based on a body of law that —
Mr Attfield: I have sat in two cases with juries present: two libel trials that I saw go all the way. I had a lot of respect for the jury.
In both instances, it carried out its functions impeccably. I have no reason to believe that having a jury would result in poorer justice than having a judge.
Mr Attfield: In both those cases, I got an absolute sense of the jurors thinking, "What am I doing here? I am not trying a serious criminal matter. I am trying a private issue, which, frankly, does not impact on me". Moreover, it just —
Mr Attfield: That may be right. My submission is not that a jury will give an unjust result. That is most definitely not my submission. My submission is that you pay a heavy price for a jury, in that you have cases that run and run and run and only settle at trial or at the door of the court, because there is no mechanism, with the role of the jury intact, for narrowing the issues.
My second main submission —
Mr Allister: Equally, you can pay a heavy price for the determination at the beginning of the case on the question of serious harm, which can take on a life of its own.
Mr Attfield: Those are separate matters. The Committee and your MLA colleagues will need to decide whether the serious harm provision is something that you wish to incorporate. That is, in a sense, a discrete issue. I feel that it is worth incorporating. I feel that it has had a positive benefit in England. I do not feel that it is a huge departure from increasing the bar to access to justice. It is an effective filter to ensure that claims that actually matter to a degree engage the High Court process. There should be a materiality before you can engage the High Court system. Other mechanisms —
Mr Allister: Have we not got the filter of the County Court jurisdiction in Northern Ireland?
Mr Attfield: You have, but most —
Mr Attfield: I would ask Paul Tweed whether he ever issues claims in the County Court. I am sure that he does not.
Mr Allister: No, but there are some: for people do not want to risk a lot of money and want to establish a principle rather than get a heap of damages. The County Court is there for that purpose.
Mr Attfield: I totally accept that clause 1 is a separate issue. It will be for MLAs to decide whether they wish to take on a slightly higher bar with the benefits of uniformity and evolving case law to help to guide judges and litigants in the future.
Mr McBride: Chairman, may I make a brief comment to Mr Allister? It has just come to mind. On the idea that that might be a licence for bad behaviour, which I entirely accept is not an unreasonable concern, given how we saw some of the media behave, with phone hacking etc, in London, there is an additional problem for a journalist who gets on like that in the current situation. My contract says that I am bound by the terms of the Society of Editors' code of conduct, which is pretty rigorous. It is about good journalism and giving people a right of reply. It is about acting ethically etc. If I breach that, I am potentially in breach of my contract. I could get sacked. It is gross misconduct.
Mr Allister: It must not apply to the 'Sunday World', does it?
Mr McBride: I will not comment on other publications. Speaking from my experience, and I read my contract recently because I signed it recently, I think that it would certainly focus the mind of people who wanted to act unscrupulously. They would think that their job is potentially on the line.
The Chairperson (Dr Aiken): I have a quick one, Sam. Do all journalists have to sign the Society of Editors' code of conduct, or is it a voluntary code?
Mr McBride: I am not sure what the situation is for staff in the BBC. If they do not have the code from the Society of Editors, which is largely a newspaper thing, I imagine that they will have something that is pretty much equivalent. To my knowledge, it is standard practice across the industry in GB and Northern Ireland.
Mr Attfield: In the BBC, it is a term of the contract of employment that the editorial guidelines, which have a long chapter on accuracy, be adhered to.
Mr Wells: People always say, "Poor Jim Wells. He is stuck on the Finance Committee. It is so dull and boring, and nothing ever happens". We can certainly say that that is not the case this afternoon, yet again.
I want to pick up on one thing that you said. You picked out the DUP for criticism. You used an interesting line, which, no doubt, will appear in the 'Belfast Telegraph' tomorrow. You said that its members had used the media as their "personal ATMs". That is a nice line. Am I right in thinking, however, that other Northern Ireland politicians who are not members of the DUP have done exactly the same?
Mr McBride: Yes. I think that I was cut off, cut myself off or lost my train of thought when I was speaking about that earlier. As you know, there are people in the DUP who do not sue newspapers at all. I will not give names, but there are people who pride themselves in rolling with the punches. They dish it out and they take it, and they view that as an important part of democratic discourse in our country. I have, however, noticed, and some of my colleagues in other news organisations in Northern Ireland have noticed, that, since the debate about the extension of the 2013 Act to Northern Ireland, Sinn Féin has become much more litigious in that area. It almost never sent us anything, but, increasingly, it is now almost equal to what we get from certain individuals in the DUP.
This time last year, the 'News Letter', where I was then employed, was facing separate libel claims from Arlene Foster, as leader of the DUP, who was then the First Minister, about something of very great significance in which I was involved, and from the deputy First Minister, Michelle O'Neill, about something that touches on this Committee's work. It was around concerns about a PPE order and allegations that she had misled the Assembly. Both of those claims went nowhere, which, again, speaks to the fact that it is not about a genuine claim that can be stood up in court.
If, sometimes, the media organisation —
The Chairperson (Dr Aiken): Just a second. That is happening now. This goes to a previous question: if the Bill goes through, how would it change that situation?
Mr McBride: I think that it redresses the balance. Think about newspaper companies. 'The Irish News' is locally owned. The 'News Letter' is owned by a UK company. The 'Belfast Telegraph' is owned by a company that is ultimately based in Belgium and the Netherlands. It is the exception to have a company such as 'The Irish News', or a very small local newspaper that is owned by a family. Generally, newspapers are owned by big conglomerates. From my experience with Johnston Press, I know that it has lawyers based in London or elsewhere in England. Those lawyers are looking at Northern Ireland, and there is a sense that, based on the nature and scale of the claims that they get in Northern Ireland, and the fact that a lot of them get very costly very quickly, this is just a problem jurisdiction.
There is a related problem with the point that was being discussed with Mr Allister earlier, which was about the law ossifying here. What happens if those day-to-day, in-house lawyers, with their experience, or people who are specialist media lawyers, such as David, think, "This is something that I can be confident about, because there was a case in the Supreme Court in London recently that dealt with this, so I am very clear about it"? Increasingly, over time, they become less clear about what on earth is going on in Northern Ireland. We are this odd jurisdiction, which has a law that, yes, makes sense to people such as Paul Tweed and others in Northern Ireland who know a lot about it. Somebody who is coming in as a specialist in London, however, is more prone, in my experience, to saying, "Look, it's too difficult there. It's Northern Ireland".
The Chairperson (Dr Aiken): By changing the law and bringing in this defamation thing, however, because it changes the balance, are you saying that that will be reduced?
Mr McBride: Yes. That is why I said that this is modest. We can argue about whether it is modest or not, but it is not going to stop it. It never will stop, and, frankly, in a democracy, where people have a genuine concern about their reputation and they have been libelled, they have to be able to take legal action. The Christian Jessen case is the ultimate example of that. It was an outrageous act, concerning one of the most significant aspects of Arlene Foster's character and her conduct. Of course she has to be able to threaten him and then take action, where he responded in the way in which he did.
I am trying to get across to you that that is the exception to the rule. I go back to the point about the ordinary person in the street. There is a danger here of having a hypothetical case, where the ordinary person in the street might, under the current law, if we keep it and do not reform it, be able to take legal action. I am saying that it does not happen, but it is for other people to look at the figures and say what their experience is. What we can say does happen, which I can say with absolute clarity, is that the reality is that the ordinary person in the street does not get brought information about their elected representatives, about business people or about senior figures in society that they have a right to in a democracy. They are losing out right now. If you look at this and say that for some hypothetical benefit, which, I do not think, is ever going to be achieved for the vast majority of people, you jeopardise the other real benefit that they could have, and I think that that is a mistake.
Mr Wells: May I take that a bit further? You quoted from your book, which, obviously, we have all read. I read it over Christmas a couple of years ago, sad person that I am. What difference would the legislation that Mr Nesbitt is proposing have made to what you said in 'Burned'?
Mr McBride: The legislation would have made no difference to what I said in 'Burned', because I took a risk. As I said, it was a very considerable risk. It would have made it less likely, however, that someone would employ a solicitor to send a letter. Employing a solicitor to send such a letter is not risk-free or cost-free. If you think that the claim is utterly ludicrous, and that it will never stand up in any way, I say to you that those people are not trying to get an argument that they can win. They are trying to get an argument that the other lawyer says that they might just win in a best-case scenario in court with a jury etc and that that would be very costly. That is what they are looking for. This legislation slightly tips the balance. It is not about saying that they could not do that — of course they could — but it would make it less likely.
Mr K Buchanan: Thank you, Sam and David. Mr Tweed said earlier of the media in the United States — I am no expert on that — that a large percentage of what you read there is not true but that a large percentage of what you read here is true. Do you agree with that?
Mr McBride: In broad terms, for sections of the American media, I agree, but it is also true to say that other sections of the American media — the 'New York Times', 'The Atlantic' and 'The Washington Post', for example — have a far more rigorous system of fact-checking and internal processes to make sure that what they print is accurate than do most national newspapers in the UK. It is a bit of a generalisation. Yes, if you look at one end of the spectrum, with the 'National Enquirer' or something like that, you see that it is absolutely true, but the respected media organs in the United States operate, by and large, to pretty high standards.
Mr K Buchanan: Let me ask about fact-checking. You referred, the minute you came through the door, to the Christian Jessen case, to Arlene Foster and to the picture etc. I did not see the detail on that. What was the fact-checking done there?
Mr McBride: I am not sure what your question means. What fact was not checked?
Mr K Buchanan: Is the fact-checking in America on some of the papers that you referred to better than the fact-checking in Northern Ireland?
Mr McBride: Absolutely. They are massive media organisations that make, probably, tens of millions of pounds a month, so they can employ thousands of journalists.
Mr K Buchanan: Irrespective of whether you sell two newspapers or 100,000 — I appreciate that there is a difference in financial scale — are facts not facts?
Mr K Buchanan: Right. When I read your written evidence last night — I appreciate what Mr Allister and Mr McHugh said earlier — I could not believe what I was reading. I will read it for the record:
"I hold no brief for liars, but if lies are not causing serious harm, should we not prioritise free speech?"
Mr McBride: That is a very significant misrepresentation of what I have said orally in this Committee.
Mr K Buchanan: With respect, Sam, I read out what you wrote. I did not write it.
Mr McBride: I have been asked whether I meant that. I said that, categorically, I did not mean that. I think that it is reprehensible —
Mr K Buchanan: Do you realise what journalism — I do not mean just your journalism — does in Northern Ireland or anywhere else in the United Kingdom when it is wrong?
Mr McBride: I am sorry, but can you say that again?
Mr K Buchanan: Do you realise what incorrect journalism can do to people's lives?
Mr McBride: Absolutely. The Christian Jessen case is a great example. That is not journalism, in that it was on social media, but it is a form of media, I suppose, in the modern world.
Mr K Buchanan: We have to strike a balance. I appreciate your point, and I listened to you when you referred to your home and your wife and children. I listened intently, and I understand your argument, but we cannot tell lies. We are politicians. You are a journalist. We should not tell lies. The difficulty is that, when something gets out there, people latch on to it straight away.
Mr McBride: Lest there be any lingering doubt about it, I do not think that it is a good thing to tell lies. It is not acceptable, or moral, to tell lies. I do not defend people who tell lies —
Mr K Buchanan: You wrote those words in that evidence. Would you change them —
Mr McBride: No. Let me clarify this, because you have put it to me twice. The words that I wrote were very clear. I said that there is a distinction between saying that something is morally wrong and defending lies. Lots of things are morally wrong: it is morally wrong for a married man to have an affair, but, generally, he should not be brought to court over it. There is a danger in your presenting what I have said as somehow defending lies. I have made the very point that I do not defend lies. I oppose lies, and I expose them, from the Prime Minister downwards. I have no problem with that whatsoever. Do we need to go to the High Court, however, over something that is a lie but a minor issue that does not need to be litigated, if the real problem that that creates is the current situation, which is that important public-interest journalism is being stymied in Northern Ireland? That is a reasonable argument to make.
Mr K Buchanan: Sam, take off your journalist hat, and I will take off my politician hat. If you were not a journalist, and I were not a politician, and we were looking at the law from the perspective of the plumber or the electrician to which Mr Allister referred — Joe Public — would you say that the law will benefit society in Northern Ireland?
Mr McBride: I caveat this by saying that I do not think that I can be impartial, but I will do my best. Setting aside the fact that I have a vested interest in this — I am a journalist, and I am straightforward about that — most of the media organisations whose evidence I have heard publicly, or, in the case of David's evidence, seen, have been clear that this would be good for us. We think that it would save us money and help us get more stories out etc. There is no hidden agenda. That is straightforward. If you are simply looking at whether it is good for me or good for Paul Tweed, however, you are forgetting the people who are most important in this: your constituents. They are not —
Mr McBride: As things stand, and as they will stand, in Northern Ireland, the Republic Ireland and Great Britain, most people of modest means do not have recourse to defamation. It does not happen. It is not a reality. It has never been the case. It is a tool of the powerful. What they do have access to, however, is the media. That is how they understand the world. I am not being disrespectful, but they are not watching this right now. I am sure that there is somebody watching it right now, but most people are not, as they do not have time. They have busy lives. They are not going into the public gallery of Belfast High Court. They rely on the media to tell them what is going on in Northern Ireland, and we cannot do that.
Mr K Buchanan: I am not going to go on and on about it, but they expect the media to tell the truth, and —
Mr McBride: We cannot tell the truth right now. We are being shackled. If you look at —
Mr K Buchanan: Sam, are you going to get a letter from a lawyer for telling the truth?
Mr McBride: I got one for my book.
Mr K Buchanan: No. I am talking about afterwards. If you have published something that is true, or that you assume is the truth, having checked it, are you going to get a letter from a lawyer stating, "That was factually wrong", if it is the truth?
Mr McBride: Yes. When I say that I have seen probably 30 or 40 cases in my time as a journalist, I should add that many of them fade away. I mentioned Arlene Foster and Michelle O'Neill: those claims just go. They run down the clock, the claims go, and that is it. It is not the case that all of them are successful, but they chill us for that year. There is a concern there. It is a misunderstanding. I am paraphrasing something that Paul Tweed said earlier, but he basically said, "If it is true, what do you have to worry about?". You have said something similar. That is to fundamentally misunderstand the libel law. The libel law is not about whether something is true but about whether I can prove it is true.
Think about some of the greatest journalistic investigations in history — Watergate, the 'News of the World' phone hacking scandal, MPs' expenses. There were lots of things in those cases that we now know were true, but the journalists did not know at the time that they were true. They took risks, and they actually got things wrong in each of those stories. They said things that were not true, but they did so honestly. They were trying to get to the truth. Society already recognises in defamation law that there is privilege in, for instance, what we are saying here today. You can put something to me that is entirely untrue, and you rightly and I rightly, if I respond to it, are protected from being sued for that. The law accepts that there is some benefit to society from encouraging the sort of investigation that might uncover and report something that turns out to be wrong but that it is better that than the whole thing being suppressed. That is good, right and what we need to do more of here.
Mr K Buchanan: I have one final question, if I may. What are your thoughts on clause 5, which relates to websites? Forget about the Bill. Does the clause protect the individual or the website?
Mr McBride: Sorry, but I do not have the Bill in front of me. I should have printed it out. Can you remind me what it is about?
Mr K Buchanan: It applies to operators of websites, and defamation. If an individual posts something on a website about another individual, the operator has to prove that it was the individual who said it.
Mr McBride: That is one of the areas, along with the protection for academics and peer-review journals etc, that does not have much of a direct impact on me. It will, in some cases, have an impact on newspaper websites that have a comments section beneath an article. I can write an article about what is going on in Stormont, and somebody might comment beneath the article, "This is absolute tosh". That clause protects that discourse that readers can have. It is more significant for people who are outside my line of work.
Mr K Buchanan: I am not taking away from newspaper journalism, but should the Bill not be heading more in the direction of website journalism? I am not saying that it is heading away from newspapers, but that is where it is going, so the Bill is weak on that front.
Mr McBride: David made a good point about the single publication rule. That is something that probably seems to you incredibly technical and boring and that does not really matter at all, but is absolutely fundamental. You have a situation in which, as he said, if I had published something through the 'News Letter' in 2009, and I had perhaps lost my notebook or my source for the story is dead — all sorts of things have happened, and things have moved on — libel law up until now historically has stated that if, after a year, you are wronged by that, you cannot sue. You had a year, which was more than enough time, and, after that, the statute of limitations kicks in. In Northern Ireland, the statute of limitations just does not kick in, so you can sue and sue and sue. You can imagine what that is like.
Mr McBride: As I understand it, it is to do with the 2013 Act's not being extended to Northern Ireland. It was one of the technical things in that Bill. It was probably not discussed as much as some of the other elements in the Bill. It was not as controversial.
Mr Allister: There is a basic one-year limitation, but I think that the view is taken that, when social media repeats something, that is a fresh publication.
Mr McBride: It is actually more than that. It is not even social media. If it is on the website —
Mr Attfield: It is not the repeating of it but the availability. One member of the Committee put it very well: it is the accessing of the article online that is deemed a new publication. There is a 1990s case, in the early days of the internet, that deemed each accessing of the online article to be a fresh publication, triggering a new limitation period. That may have seemed a sensible decision in 1997, or whenever the case was, when people did not really understand the impact of the internet. It stuck, however, until the 2013 Act, which removed it.
Online publication is now treated in the same way as broadcast or newspaper publication in England and Wales and, once enacted, in Scotland.
Mr McBride: I will make one more comment to Mr Buchanan that I omitted to say. There are three principal defences for a defamation action. The first is that it is true, and that is what you are referring to, but it is not the only one. The second is that it is privileged, so it is said in a court case, where I do not know whether it is true, because I am only reporting it, or in this place, and, again, it would be quite wrong if I were to think that I could not report what was said here because I had to prove what you have said is true. You are a public representative. It is important that the public know what you are saying, so that can be reported, and no action can be taken about that as long as it is fair and accurate.
The third principal defence is fair comment. Again, that is not about truth. You may think, as a DUP MLA, that Sinn Féin is an appalling political party. Sinn Féin may think that the DUP is an appalling political party. That is not empirically true or false, I think. There will be people who will disagree with that, but it is your opinion. It is your opinion, based on your experience and on facts that you think are important, which other people think are not important etc. It is important that that be protected.
In the Gregory Campbell situation, what I was clearly doing was saying, "Here is something that's not necessarily a fact. This is my analysis as a political journalist and as somebody who lives in Northern Ireland". One cannot prove that it was true, and I was not seeking to prove that it was true: that, as he thought, I said he was a terrorist, for instance.
First, It is too simplistic to think that, if it is true, it is OK, and if it is not true, it is not OK. Secondly, it is about proving that it is true. If a Civil Service whistle-blower comes to me, it may well be that they give me documents and things that, I am satisfied, show that what they are saying is accurate, but they cannot ever allow me to use those in a court of law, because they would lose their job.
The Chairperson (Dr Aiken): Thanks very much indeed to everybody. I have a final question. This session has gone on for quite a long time, but it has been very important. Sir Robert and his team have agreed to rearrange for another day, so I am not asking the Committee to stay until late. I can see that Maolíosa is quite happy about that.
Our legislation has diverged from that in England and Wales, so the issue is the significant divergence. We are looking to enact legislation to bring us into line with the rest of the UK, but it will potentially diverge again, notwithstanding the fact that we would be looking at Supreme Court precedence and all the rest of it. Should we not be looking to make sure that we are part of the rest of the UK legislation, and that is part of it, rather than at having separate Northern Ireland legislation?
I ask that because, the more that I hear today, the more that I understand the complexities of where we are. I would like your opinions.
Mr Attfield: It is helpful for everyone — claimants, plaintiffs and defendants — if there is a unified body of law. As a pre-publication lawyer, it is very difficult for me advising 'Panorama', 'Spotlight' or a Nolan programme always to have in mind the outlier risks that exist in Northern Ireland. I think that I have made the point quite extensively that it is very difficult to see how an informed body of law can evolve, given that defamation law really evolves from case law decided by judges, if the role of the jury in Northern Ireland, which is a small jurisdiction, means that there will be very little case law about what "honest opinion" is. You are detaching yourself from the honest opinion defence in England. There will be very little case law on the threshold for bringing a claim, whether that be serious harm or the current slightly lower test in Northern Ireland. I do not see how that can be a healthy situation for anyone. It creates huge uncertainties, whereby the body of applicable case law is increasingly disappearing in the rear-view mirror.
Mr McBride: There is always a temptation for this place to tinker with what comes from Westminster, because it is the national Parliament. We saw that happen in the case of RHI, where a very complex area of law seemed to have been changed in a relatively minor way, as was the thought at the time. We have seen it again with this second, very complex area of law. Even I, a working journalist who has studied media law and has lots of experience of cases, find it incredibly difficult to understand how case law interacts with statute and all the various issues. The Assembly should be very cautious about altering this. There are bits that Paul Tweed, you and I would probably want to change.
In a jurisdiction where organisations such as the BBC operate on a national basis, lots of newspapers are circulated nationally and lots of what we consume is national in character, once we start significantly diverging from the rest of the UK, this will continue to get worse. This is not the end point. This is the start point. In fact, the start point was 2013. We have already diverged significantly from the rest of the UK. That situation will continue, and it will get worse, and just because there has not been a situation in which 'The Times', 'The Daily Telegraph' or 'The Guardian', for instance, have stopped circulating their print editions in Northern Ireland, do not assume that that will never happen. Print circulation is falling. Newspapers are increasingly taking tough commercial decisions. If there is a high-profile case that costs them a lot of money, there is a very real risk of that happening in this jurisdiction.