Too soon to say? Reflections on the Defamation Act (NI) 2022 Review

Published earlier this Summer, the Department of Finance’s Review of the Defamation Act (NI) 2022 (the 2022 Act) analyses the 2022 Act’s implementation to date and identifies current issues in defamation law that may affect how the 2022 Act is used and interpreted in the future. Here, we discuss some of the Review’s key insights.

Cast your mind back to June 2022. A much-publicised legal battle between two Hollywood stars concludes in Virginia; the late Queen Elizabeth II celebrates her Platinum Jubilee; and Glastonbury opens with Billie Eilish, Kendrick Lamar, and Paul McCartney taking to the Pyramid Stage.

This was also the month in which the Defamation Act (NI) 2022 received Royal Assent, providing Northern Ireland with its answer to the changes implemented in England and Wales by the Defamation Act 2013 (the 2013 Act).

How was the 2022 Act received?

While helping to clarify some elements of defamation law in Northern Ireland, the 2022 Act fell short of implementing key – and, some would argue, necessary – changes that were enacted by the 2013 Act in England and Wales.

In particular, the lack of a ‘serious harm’ test requiring plaintiffs to prove a statement had caused, or was likely to cause, serious harm to their reputation, led many commentators to question whether a perceived lower threshold for proving defamation would lead to ‘libel tourism’ with plaintiffs seeking to bring proceedings in Northern Ireland rather than alternative jurisdictions, such as England and Wales.

For a more detailed explanation of the changes brought about by the 2022 Act, read our insight here.

Why was a Review of the 2022 Act published?

To better understand how the 2022 Act would work in practice, Section 11 included a statutory mandate for the Department of Finance to keep “relevant developments pertaining to the law of defamation as it considers appropriate” under review, and to produce a report on these findings.

This report, which was published in June 2024, highlights some of the continuing concerns regarding disparities between the 2022 and 2013 Acts, as well as topical areas that may need to be addressed in future amendments to defamation law. Of course, with only two years under its belt, the 2022 Act has yet to provide solid, qualifiable data on its effects – something the Review itself has highlighted in its analysis.

Nevertheless, there are several salient points that should be of interest to all stakeholders within the fields of defamation law and reputation management, and which may have an impact on how the Act is used and interpreted in the future.

What are the key points from the 2022 Act?

1. SLAPPs are one of the most pressing issues for the 2022 Act.

Strategic Litigation Against Public Participation (SLAPP) has become increasingly concerning, both for legal professionals and the media.

In England and Wales, the problem of wealthy individuals using the threat of litigation to silence critics and stifle work in the public interest has featured prominently in legal and parliamentary debate, giving rise to several changes in legislation, such as the General Scheme for Defamation (Amendment) Act 2023 and amendments to the Economic Crime and Corporate Transparency Act 2023. A SLAPP Bill is also in the committee stage in the House of Commons.

While debated less explicitly in Northern Ireland, SLAPPs are identified by the Review as one of the more urgent aspects of evolving defamation law. Referencing the O’Doherty v Kelly case, which we discuss in more detail here, the Review highlights that SLAPPs are also materialising in this jurisdiction, albeit opinions on how to approach this are mixed, with some suggesting that bespoke legislation to tackle vexatious claims may be more complicated to implement.

2. The risk of ‘libel tourism’ has yet to materialise – but anti-SLAPP legislation may change this.

In our insight here, we discussed whether the lack of an equivalent ‘serious harm’ test in Northern Ireland might increase the prevalence of ‘libel tourism’, whereby plaintiffs with links to Northern Ireland launch claims in this jurisdiction due to a perceived lower threshold for proving defamation.

According to the Review, there is as yet little evidence that this is happening, although the Review did say that “if anti-SLAPPs mechanisms were put in place in England and Wales, in Scotland, and in the South, but not in this jurisdiction, libel tourism could become a problem here.”

3. A lack of serious harm or protections for online defamation remain key criticisms of the Act.

According to the Review, most criticism of the 2022 Act continues to focus on aspects of the Bill that failed to secure sufficient Assembly support. These include:

an equivalent ‘serious harm test’ – which, as discussed above, was the headline innovation of the 2013 Act in England and Wales;
clarification on any defences available to website operators for defamatory content posted on their forums;
codification of a ‘single publication rule’ for content that is posted and subsequently shared.

These issues, alongside SLAPPs, are identified as key challenges for defamation law with as yet little case law to demonstrate if the current 2022 Act is capable of meeting them.

As the Review states, it is “too soon to say what impact the 2022 Act has had to date or what its long-term impact might be”. As the law concerning defamation law and reputation management becomes increasingly regulated by statute in other neighbouring jurisdictions, it remains to be seen whether further statutory reform in Northern Ireland to match the protections in other jurisdictions will become necessary and unavoidable in the years to come.

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