The ‘chilling effect’ of defamation law in Northern Ireland?

This article compares defamation law in England and Wales with that of Northern Ireland and analyses whether the current law in Northern Ireland is having a ‘chilling effect’ on free speech. At the time of writing, the Northern Ireland Assembly is formally considering adopting legislation based on the Defamation Act 2013 which reformed the law in England and Wales. The article aims to contribute to that debate in Northern Ireland, but it should also be of broader interest as an analysis of the effectiveness of the Defamation Act 2013. The article focuses on three key areas of reform, in both the Defamation Act 2013 and the Northern Ireland Defamation Bill: the presumption of jury trial, the threshold of seriousness, and the public interest defence. It demonstrates that the different approach of the law in Northern Ireland in these areas did not simply occur with the enactment of the 2013 Act, but rather that it started several years before that with a divergence from developments in the common law in England and Wales. The article argues that the difference has been entrenched by the changes in the 2013 Act, and that, in relation to each of those areas, the law in Northern Ireland is now on a singular course and one that can be seen to have a definite ‘chilling effect’ on free speech.

Damages for reputational harm: can privacy actions tread on defamation’s turf?

In four recent cases, the High Court of England and Wales has had to consider whether damages for reputational harm can be recovered in a claim for misuse of private information (‘MOPI’). This is an important issue which sharpens focus on the precise boundaries between privacy and defamation law. And yet it is a question on which the court is currently divided, with different judges coming to different conclusions on whether, and on what basis, reputational harm damages can be awarded in a privacy claim. This article argues that the key to resolving this issue is to better understand: (1) the precise interests protected by defamation and MOPI; and (2) how the interests protected by each tort are tied to the available heads of damage. Unpacking these points in turn, the article explains why damages for reputational harm should be restricted to defamation and be unavailable in a MOPI claim.

Safe harbour: Should we be worried? An analysis of Clause 20 of the Harmful Digital Communications Bill, and its application to the law of defamation

<p>Liability of internet intermediaries for content created by third parties is a contentious area of defamation law. Recently, the law in New Zealand has begun to depart from English law, and move closer to strict liability. Parliament has responded with a ‘safe harbour’ in clause 20 of the Harmful Digital Communications Bill, which will provide online content hosts with conditional immunity from liability for content created by others. The author supports the creation of a legislative safe harbour for internet intermediaries, but highlights a number of deficiencies with clause 20 as currently drafted. This paper analyses the existing law, including possible defences, and clause 20. It also looks to other jurisdictions’ safe harbours, and concludes with recommendations on how clause 20 ought to be improved.</p>

Safe harbour: Should we be worried? An analysis of Clause 20 of the Harmful Digital Communications Bill, and its application to the law of defamation

<p>Liability of internet intermediaries for content created by third parties is a contentious area of defamation law. Recently, the law in New Zealand has begun to depart from English law, and move closer to strict liability. Parliament has responded with a ‘safe harbour’ in clause 20 of the Harmful Digital Communications Bill, which will provide online content hosts with conditional immunity from liability for content created by others. The author supports the creation of a legislative safe harbour for internet intermediaries, but highlights a number of deficiencies with clause 20 as currently drafted. This paper analyses the existing law, including possible defences, and clause 20. It also looks to other jurisdictions’ safe harbours, and concludes with recommendations on how clause 20 ought to be improved.</p>

Our Right to Share, Their Right to Know: An Analysis of Public Interest Defense to Defamation

The defamation reports have increased and shifted under online-based technology through social media. This study considered the defamation issue in Indonesia that alleged Richard Lee, a doctor who shared a beneficial publication through social media about the dangerous skincare product. Richard's audience believed that his content helped them know the hidden truth behind skincare products available in the market. Consequently, the public questioned whether he was liable because he was regarded to share helpful information under the public interest. This study aimed to analyze Indonesia’s defamation laws, especially in public interest defense under Article 310(3) of the Indonesian Criminal Code. However, the interpretation for public interest as a crime abolition is unclear, resulting in various courts' decisions that lead to criminalizing internet users. This study used legal research with statutory and comparative approaches. It examined legal norms and practices in Indonesia and compared those in the United Kingdom, Canada, and New Zealand. These three countries adapted defamation law to develop cases, including those alleged defamations for the public interest. While the freedom of expression is enshrined in the constitution, its practice has contradicted defamation provisions outlined in derivative regulations. By comparison, these three countries have precise boundaries and public interest defense is explicit. Those countries have specific rules and lists that needed to be fulfilled for those who use public interest defense. The lists based on previous precedents show how they learn and adapt to the development of public interest defense in many cases. This study concluded that Indonesia does not have specific standards or rules to determine cases categorized as the public interest. KEYWORDS: Public Interest Defense, Online Defamation, Freedom of Expression.

Foreign Experience of Legal Support for the Protection of Honor, Dignity, and Business Reputation

The article examines the concept and development of legal relations in the field of the protection of honor, dignity, and business reputation in foreign legislation, where they are part of the legal institution of defamation. The research involved the formal-legal and comparative-legal techniques based on the principles of historicism and objectivity. The article features a retrospective summary of theoretical, normative, and practical approaches to the conceptual application of the institute of defamation in the countries of the Anglo-Saxon and continental law. The Anglo-American defamation law is formed both within the general and statutory framework. Special legislative acts of the United Kingdom define the conditions (criteria) for classifying these legal relations as essentially defamatory. The peculiarities of the continental defamation law can be attributed to its mainly criminal-legal regulatory component, rather than civil or administrative law. The comparative legal review of the foreign experience of legal support for the protection of honor, dignity, and business reputation proved relevant and practically significant.

Defamation Law, Sullivan, and the Shape of Free Speech

This chapter examines how free speech interacts with defamation law. When thinking about defamation law and free speech, it can be difficult not to consider the classic US case of New York Times v Sullivan. The decision substantially changed how US defamation law treats political speech, and has resonated widely in other jurisdictions. It increased the burdens facing public officials who sue in defamation, making it far more difficult for them to succeed. The chapter draws out two broad issues from Sullivan and subsequent decisions which have relevance for understanding defamation and free speech more generally, especially democratic aspects of freedom of expression. It also highlights three ways in which the reform of defamation law could better protect free speech. First, legal doctrine could be reformed. Second, remedies could be altered to reduce the chill of defamation law. Third, and perhaps less often recognized, the effective degree of freedom of speech provided under any given defamation law depends greatly on litigation practice. Reforming defamation litigation has been tried in many jurisdictions and there have long been proposals for larger reforms, such as developing alternative dispute resolution methods and venues for defamation claims.