Official Report: Minutes of Evidence

The Chairperson (Dr Aiken): I welcome Mike Nesbitt to the Committee again. The session is being reported by Hansard. Mike is here to answer any questions that the Committee has about his amendments. The Bill Clerk is also available to provide advice if necessary.

The Committee will proceed through the clauses, and I will put the Questions formally. Where there are amendments, the Question on the amendment will be put first, and then the Question on the amended clause will be put. Members should follow that process using the updated Bill table in their packs. Only the amendments that the Committee previously agreed to consider will be put. The wording of the amendments from the Bill sponsor is in Members' tabled items. If Members are unhappy and want other amendments to be considered, they should indicate that clearly and in good time.

If that is clear, we will proceed.

The Committee Clerk: Chair, to clarify, the Bill sponsor has provided some other typographical amendments that will be considered as well if members are content to do so.

The Chairperson (Dr Aiken): OK, are we content?

Mr K Buchanan: Chair, just for clarity, the paper outlines amendment Nos 1 to 16, and there is an additional one at the back.

The Committee Clerk: Yes, and that one, I think, fits in at —

Mr K Buchanan: Clause 10.

The Committee Clerk: Clause 10. Thank you.

The Chairperson (Dr Aiken): Right. Are we ready? Let us go.

The Chairperson (Dr Aiken): This clause provides that:

The provision extends to situations where publication is likely to cause serious harm in order to cover situations where the harm has not occurred at the time the action for defamation commences.

Members, are we content that we understand clause 1? I am asking not whether we agree with it but whether we understand it.

The Chairperson (Dr Aiken): The Committee previously informally agreed that it would not consider related amendments and would simply consider whether the clause should stand part of the Bill. If members are content with that approach — I think that we are — is the Committee content that clause 1 as drafted stands part of the Bill?

The Chairperson (Dr Aiken): This clause replaces the common law defence of justification with a new statutory defence of truth. The clause is intended broadly to reflect the current law while simplifying and clarifying certain elements.

Members, do we understand clause 2?

The Chairperson (Dr Aiken): The Committee previously informally agreed that it would not consider the related amendment and would simply consider whether the clause should stand part of the Bill. Since that informal agreement, the Bill sponsor has proposed an amendment that corrects a typographical error. That is shown in the tabled items as amendment No 1:

Members, if we have no questions about amendment No 1, I will put the Questions.

The Chairperson (Dr Aiken): The clause replaces the common law defence of fair comment with the new defence of honest opinion. The clause broadly reflects the current law whilst simplifying and clarifying certain elements. It does not include the current requirements for the opinion to be on a matter of public interest.

Members, do we understand clause 3?

The Chairperson (Dr Aiken): Two amendments have been suggested, and they have been informally supported by the Committee. They relate to reasonable belief and are amendment Nos 2 and 3 in the tabled papers. There is also a typographical amendment, which is amendment No 4. Do members have any questions about the amendments?

Mr Allister: I have a question about amendment No 3:

Is the reference to "any fact" something that is objectively a fact, or can it be something that turns out to not be a fact but is "reasonably believed" by the defendant?

Mr Nesbitt: That would be a matter for the judge, because it would be a subjective decision whether it would be reasonable to have believed that it was a fact at the time the statement was published.

Mr Allister: So, "any fact" in that amendment means any fact, if it turns out to be a fact.

Mr Nesbitt: If it is "reasonably believed" to be a fact. The wording was lifted from Professor Scott's recommendations.

Mr Allister: Chair, I do not know if I am allowed to comment at this stage.

The Chairperson (Dr Aiken): You can.

Mr Allister: It seems to me that that is not advisable, because anyone could say, "I reasonably thought that".

Mr Nesbitt: Would you prefer "any statement that the defendant reasonably believed to be factual at the time the statement complained of was published"?

Mr Allister: The problem is the same. A defendant could simply say, "I reasonably believed that to be the case".

Mr Nesbitt: Surely, a judge would not take that at face value and would ask, "Why did you reasonably believe that?"

Mr Allister: Clause 3(4)(a) and clause 3(4)(b) are definitive. Clause 3(4)(a) refers to facts that "existed at the time" the statement was complained of, and clause 3(4)(b) mentions:

Those are definable facts that can be authenticated. We are now into the territory of a defendant having the let-off of saying, "Ah, sure I thought it was right".

Mr Nesbitt: Again, it would be the role of the judge to test that. Chair, you took evidence from Andrew Scott. I read the evidence, but I cannot remember whether this issue was raised, and, if so, what he had to say about it.

The Committee Clerk: He did not comment on it. I do not think that members raised it at the time.

It sounds like the Committee is OK with amendment Nos 2 and 4 but amendment No 3 is an issue.

Mr Allister: That is my position.

The Chairperson (Dr Aiken): Clause 4 creates a new defence to an action for defamation of publication on a matter of public interest. It is based on the existing common law principle established in Reynolds v Times Newspapers Ltd and is intended to reflect the principles established in that case and in subsequent case law. Do members understand clause 4?

The Chairperson (Dr Aiken): Clause 5 creates a new defence for the operators of a website where a defamation action is brought against them in respect of a statement posted on that website.

Members, do we understand clause 5?

The Chairperson (Dr Aiken): The Committee previously informally agreed that it would not consider the related amendments and would simply consider whether the clause should stand part of the Bill. Since that informal agreement, the Bill sponsor has proposed a further amendment, which is amendment No 5 and links to amendment No 14, which is about tidying up regulation-making powers. Mike, would you like to talk to that?

Mr Nesbitt: It is just technical, Chair, based on advice from the Bill Office.

The Chairperson (Dr Aiken): OK. If members do not have any questions about the amendment, I will put the Question.

The Chairperson (Dr Aiken): Is the Committee content that clause 5, as amended, be agreed?

Mr Allister: No.

The Chairperson (Dr Aiken): We will put it to a vote. All those in favour raise their hands.

Mr O'Toole: Chair.

The Committee Clerk: Sorry, Chair. Can members put their hand down? It sounds as though there are dissenting voices. Mr O'Toole, do you require clarification?

Mr O'Toole: We are supportive of clause 5 in principle, but we will register an abstention. We are certainly not opposed to it — we are in favour of it in principle — but we want to do a little bit more investigation into it. We will take a formal position on clause 5, but I want to register an abstention at this stage.

The Chairperson (Dr Aiken): OK. I will put it to a vote again.

The Chairperson (Dr Aiken): The clause creates a new defence of qualified privilege relating to peer-reviewed material in scientific or academic journals, where published in electronic form or otherwise. The term "scientific journal" includes medical and engineering journals. Are we content that we understand clause 6?

The Chairperson (Dr Aiken): The clause amends the provision contained in the 1996 Act relating to the defences of absolute and qualified privilege to extend the circumstances in which those defences can be used. Members, do we understand clause 7?

The Chairperson (Dr Aiken): The clause introduces a single publication rule to prevent an action being brought in relation to the publication of the same material by the same publisher after a one-year limitation period from the date of the first publication of that material to the public or a section of the public. That replaces the long-standing principle that each publication of defamatory material gives rise to a separate cause of action that is subject to its own limitation period: the multiple publication rule.

Members, are we content that we understand clause 8?

The Chairperson (Dr Aiken): The Bill sponsor has proposed an amendment that corrects a typographical error and is shown in the tabled items as amendment No 6. If the Committee does not have any questions about amendment No 6, I will put the Question.

The Chairperson (Dr Aiken): Is the Committee content that clause 8, as amended, stands part of the Bill?

Mr Allister: No, Chair. I reserve my position on that. I want to think a bit more about it. If there is a vote, I will abstain. I am happy for that to just be noted.

Mr McHugh: Are we voting on the clause now?

The Chairperson (Dr Aiken): Yes.

Mr McHugh: We oppose it.

The Committee Clerk: OK. Members wish to vote on clause 8. In such cases, when the Chair says, "Is that agreed?", it would be helpful if members said, "No, it is not. We need a vote".

The Chairperson (Dr Aiken): OK.

The Chairperson (Dr Aiken): The clause aims to address the issue of libel tourism, a term which is used to apply where cases with a tenuous link to Northern Ireland are brought in this jurisdiction. Do members understand clause 9?

The Chairperson (Dr Aiken): OK. Agreed. The Bill sponsor has proposed amendment No 7, which simplifies the clauses, corrects a typographical error, restricts the provision to those not domiciled in the UK and removes reference to the EU and states contracting to the Lugano convention. If members do not have any questions about the amendment, I will put the Questions.

The Chairperson (Dr Aiken): The clause limits the circumstances in which an action for defamation can be brought against someone who is not the primary publisher of an alleged defamatory statement. Are members content that they understand clause 10?

The Chairperson (Dr Aiken): One amendment has been suggested to the clause and was informally supported by some members of the Committee. It relates to the definition of "author" and "publisher". It is set out at page 9 of tabled items.

Do members have any questions about the amendment?

Mr Allister: Is this the —?

The Committee Clerk: This is the extra one, at the back of the papers.

Mr Allister: I would like Mike to talk us through it.

Mr Nesbitt: The current proposal is to replicate section 1 of the Defamation Act 1996, which gives a single line to author, editor and publisher. The amendment provides for a much more detailed exposition of what we understand by those three terms.

Mr Allister: So it is all about defining "author", "editor" and "publisher".

Mr Nesbitt: Yes, to make sure that, for example, a boy doing a paper round cannot be trapped as having taken part in an act of defamation.

Mr Allister: Can a printer be trapped?

Mr Nesbitt: Yes, a commercial publisher.

The Chairperson (Dr Aiken): A commercial publisher means a person whose whole business is issuing material to the public.

Mr Nesbitt: To be clear, if I send a defamatory article to a printer and they print it, no.

Mr Allister: At present, they could be held if they publish it.

Mr Nesbitt: I do not think so.

Mr Allister: There has been many's the publisher pursued.

Mr Wells: Is there a difference between a publisher and a printer?

Mr Allister: The act of printing is to publish.

Mr Nesbitt: Yes, publishers would be expected to know exactly what they are publishing. However, if I have written a 1,000-page treatise, which is a scientific document, is a printer under the same obligation to understand every single word? Is that reasonable?

Mr Allister: Surely, one of the reasons why, on all our election communications, you have to say that they have been published by your election agent and say who they have been printed by because there could ultimately be liability on the printer: is that not right?

The Chairperson (Dr Aiken): Mike, replacement clause 10(3) in your amendment states:

Basically, they are just the vector for getting it out there. It continues:

Mr Nesbitt: Yes, so, again, is it reasonable for somebody who owns a bookshop to be considered to be part of a defamation case if they stock 2,000 titles and one happens to have a defamatory comment on page 753?

Mr Allister: Not if it is not reasonable for the printer to be liable. I would have thought that the printer can and should be liable.

Mr Nesbitt: That would be a very onerous task to put on printers.

The Chairperson (Dr Aiken): Jim, do you object the amendment to clause 10?

Mr Allister: Well, ultimately, I will object to the clause, whether in its amended form or not. I agree that its amended form is probably easier to understand than the original form. I am not opposed to the amendment being approved, but I want then to, I think, oppose clause 10, as amended.

Mr O'Toole: Can I ask a question, Chair?

The Chairperson (Dr Aiken): Yes, go ahead, Matthew.

Mr O'Toole: This is a basic question, but it was not clear from our conversation or, indeed, from the tabled papers. Was the new clause 10 tabled by the Bill sponsor?

The Chairperson (Dr Aiken): Yes.

Mr O'Toole: OK, because there are other ones from the Bill sponsor. Fine.

The Chairperson (Dr Aiken): OK. First of all, we will deal with the amendment to clause 10.

The Chairperson (Dr Aiken): The Bill sponsor has proposed a further amendment — amendment No 8 — that inserts new clause 10A. It relates to judicial discretion in respect of alternative dispute resolution. The Committee previously informally agreed to give further consideration to such an amendment. Do members have any questions about the amendment?

Mr Allister: Mike, is it not the current position that the judge has a residual power to do that?

Mr Nesbitt: I am unclear. There seems to be a number of avenues open to judges in terms of a pre-trial mechanism. This is a clearly stated route. Are you considering whether there is a different existing route?

Mr Allister: No, I thought that it might already exist, but, regardless of whether it does or not, I suppose that it does no harm to say in the legislation that it can be done.

The Chairperson (Dr Aiken): Do members understand the amendment?

The Chairperson (Dr Aiken): The clause removes the presumption in favour of a jury trial in defamation cases. Members, do we understand clause 11?

The Chairperson (Dr Aiken): In summary disposal proceedings, under section 8 of the 1996 Act, the court has the power to order an unsuccessful defendant to publish a summary of its judgment where the parties cannot agree the content of any correction or apology. The clause gives the court power to order a summary of its judgment to be published in defamation proceedings more generally. Members, do we understand clause 12?

The Chairperson (Dr Aiken): This clause relates to situations where an author may not always be in a position to remove or prevent further dissemination of material that has been found to be defamatory. Are members content that we understand clause 13?

Mr Wells: Mike, can you outline in what sort of circumstance you see this applying?

Mr Nesbitt: For example, if I post something online and take it down, I cannot stop people taking a screenshot and continuing to publish it.

The Chairperson (Dr Aiken): The Bill sponsor is proposing an amendment to introduce a new clause 13A which will require the Department to review the jurisdiction of the County Court. This is shown in tabled items as amendment No 9. Have members any questions about the amendment?

Are we content that we understand the amendment?

The Chairperson (Dr Aiken): Clause 14, actions for slander, special damage. The clause repeals the Slander of Women Act 1891 and overturns a common law rule relating to special damage. Do members understand clause 14?

Mr Wells: You wonder how on earth that managed to stay in the statutory books for so long.

The Chairperson (Dr Aiken): We will get rid of that one

The Chairperson (Dr Aiken): The Bill sponsor has proposed an amendment which will introduce a new clause 14A that will require the Department to review the operation of the Bill and related matters within two years of Royal Assent. This is amendment No 10. Mike, do you want to talk to that for a moment?

Mr Nesbitt: I am conscious that the Department thinks the time is not right and has pointed to the fact that the Government of Ireland appear to be thinking of amending or updating their laws of defamation, and Scotland did last year, so it is a fluid situation. I wanted to make provision for the Department to continue to do what it says it is doing, which is basically scoping, for want of a better phrase. It will also give an opportunity, after two years, to see how this Bill has worked out in practice. You will have those two review streams. It may be that, after two years, you say, "There is something that we have missed" or "There has been a development." This environment is changing all the time. Dublin are reviewing laws which they only introduced in 2009, and by 2019 they are holding conferences to review what they have done. The shelf life of defamation legislation is measured in years rather than decades. That is what this is intended to do, and to acknowledge the concerns of this Committee and departmental officials.

The Chairperson (Dr Aiken): OK. Any other comments? The Department suggested that the review be undertaken within three to five years of commencement, rather than Royal Assent. This will ensure that the provisions have actually been commenced before they are reviewed. Do members have any views on this?

Mr O'Toole: If I understand it correctly, the Department's position is that it wants a longer deadline to review, which seems to marginally contradict the idea that this is stuff that will be out of date or that it is a fast-moving question. I do not have particularly strong views. I will just make the point about the new clause generally that it answers quite a lot of the Department's practical concerns around this not being the right time, as it were.

Mr Allister: I think you have to read this with clause 18, which is the commencement clause. Under the commencement clause, as it currently stands, it is in the discretion of the Department when most of it will start.

The Chairperson (Dr Aiken): When it is commenced.

Mr Allister: The Department could sit on its hands, and in two years this might never have commenced. How does the review fit in with that?

Mr Nesbitt: There is one further amendment that I have not found a form of words for, and it is for clause 18. I very much take on board that I have potentially given too much discretion to the Department on the commencement. I have not brought forward an amendment yet because I need a few more days to be sure. Everything will not necessarily be commenced at the same time, but I think I need to amend clause 18 to ensure that there are time limits placed on all the duties that will be placed on the Department in terms of commencement.

Mr Allister: As a general comment, I think that that is something that the Assembly should have a weather eye to in all legislation. In multiple instances, where the Assembly has passed certain matters and left the commencement to the Departments, they have not been commenced.

The Chairperson (Dr Aiken): Yes.

Mr Nesbitt: If I may, Chair? At the Economy Committee, we looked at a private Member's Bill that had the very same issue with commencement. The Committee has gone back to the Bill sponsor to ask why they had left such discretion to the Department and whether they might consider a time limit.

Mr K Buchanan: Jim's point is valid. If Mike is going to come forward with an amendment on the commencement timing, the amendment in front of us might be slightly different with regard to its timing. Two years might not be the right figure; it could be three or four.

The Chairperson (Dr Aiken): Yes.

Mr K Buchanan: Is it Royal Assent or is it commencement?

Mr Allister: At present, it is from Royal Assent. Yes.

The Chairperson (Dr Aiken): Royal Assent.

Mr Nesbitt: As there may well be different commencement dates for different provisions, Royal Assent is the preferred option.

The Chairperson (Dr Aiken): OK. Is the Committee content that the new clause 14A, in line with the wording in the table, stands part of the Bill? Are we agreed?

The Chairperson (Dr Aiken): The clause sets out definitions of the terms "publish", "publication" and "statement" for the purposes of the Act. Members, do we understand clause 15?

The Bill sponsor has proposed typographical amendments, which are amendments Nos 11 and 12 in the tabled items. Do we have any questions about the amendments?

The Chairperson (Dr Aiken): Subsections (1) to (3) make consequential amendments to reflect the new defences of truth and honest opinion. Members, do we understand clause 16?

The Chairperson (Dr Aiken): The Bill sponsor has proposed a typographical amendment, which is amendment 13 in the tabled items. Do we have any questions about the amendment? No?

The Chairperson (Dr Aiken): The clause makes provision on the making of regulations and orders under the Act. As drafted, they will be subject to negative resolution. Members, do we understand clause 17?

The Chairperson (Dr Aiken): The Bill sponsor has proposed amendment No 14, which makes all regulations subject to the draft affirmative resolution.

The Committee Clerk: Amendment Nos 14 and 15 refer to the draft affirmative resolution. I have made an error in your brief.

The Chairperson (Dr Aiken): So, amendment Nos 14 and 15.

The Committee Clerk: Yes.

The Chairperson (Dr Aiken): Thank you. Do members have any questions about the amendments? OK.

The Chairperson (Dr Aiken): As drafted, the Bill will largely:

I think we understood that from the discussion we have just had. Mike, you have proposed an amendment for a typographical error, which is amendment 16, but you also said that you will be bringing —.

Mr Nesbitt: There will be an amendment on the commencement, yes.

The Chairperson (Dr Aiken): OK. We are dealing purely with the typographical amendment No 16.

The Chairperson (Dr Aiken): The Committee has also formally agreed to consider further amendments that would ensure that commencement occurred after a reasonable time period, not at the discretion of the Department. This has not been tabled. You have already explained that to us, Mike. Bearing in mind that we are expecting that to come through, is the Committee content that clause 18, with the recommended amendment as it is, stands part of the Bill?

The Committee Clerk: To clarify and to help the Bill sponsor, do members have a preference on when it should be commenced? Should it be commenced at Royal Assent? Is that what members are saying?

The Chairperson (Dr Aiken): Members, should the Bill be commenced at Royal Assent?

A Member: Yes.

The Chairperson (Dr Aiken): You did not even move your lips. [Laughter.]

Mr Nesbitt: I do want to take a bit more advice on whether there should be different commencement dates for different duties in this Bill.

Mr Allister: I must say that I think that that is wise. I think that there are issues that are relatively straightforward and that others that are a bit more complex.

Mr Nesbitt: There are some that I would want to commence either on the day of or the day after Royal Assent, but there may be others on which you might want to give the Department appropriate time to get its head around.

The Chairperson (Dr Aiken): Without saying what your amendment would say, the Bill would commence at Royal Assent with the exception of whatever the particular clauses happen to be.

Mr Nesbitt: Yes. At the minute, I have in the Bill that section 15 and subsections (4) to (8) of section 16 come into operation the day after Royal Assent. The others are up to the Department. It is going to be much more detailed in terms of clause-by-clause. Some will come in at Royal Assent, and some will need time so that the Department can draw up the regulations.

The Chairperson (Dr Aiken): Committee, I will take your views on this. We have heard from the Bill sponsor, and I think we are all agreed that the more nuanced commencement with Royal Assent and other options with it should be considered. I do not think, therefore, that we should be putting clause 18 to our consideration until we have seen that.

The Committee Clerk: Does the Chairperson of the Committee want to tell the Clerk to go away and come up with our own amendment? I can do that just as easily and come back next week with an amendment to clause 18, or we can wait for the Bill sponsor.

Mr Allister: What are the Bill sponsor's timings?

Mr Nesbitt: I should like to think that I will have it done in days.

Mr Allister: Next week.

The Chairperson (Dr Aiken): Next week.

The Committee Clerk: So we cannot consider it — .

The Chairperson (Dr Aiken): We will not consider clause 18 now.

The Chairperson (Dr Aiken): This clause sets out the short title, the Defamation Act (Northern Ireland) 2021. Members, do we understand clause 19?

The Committee Clerk: Chair, if we are going to follow the rules appropriately, we will not conclude formal clause-by-clause consideration today. If the Committee agrees, we may do this next week and then immediately do the report. I will guess at what, I think, the Committee will go for and we can do all of these things next week, if the Committee is agreeable. It will not take long.

The Chairperson (Dr Aiken): All we are left with now is clause 19.

The Committee Clerk: Easy.

The Chairperson (Dr Aiken): The short title.

The Chairperson (Dr Aiken): Mike, thanks very much for coming in. I look forward to that as well. Next week, we will do clause 18 and clause 19. That will be the end of the formal clause-by-clause consideration, and we will do the final report.

The Committee Clerk: I will have a go at what, I think, members will go with, and if it turns out differently and you want to change that, that is OK. We should put away clause-by-clause consideration next week and agree the report, if members are content. That will be two days before we are due to report.