Thursday 23 October 2014

A crock of gold for libel tourists who bring cases to Emerald Isle

While it's good news for lawyers, firms like Google may weigh up their future here.

Published 05/05/2013 | 05:00

Ah, the good old law of unintended consequences pops up again. Who would have thought that Irish jobs could be affected by the passage at Westminster last week of the Defamation Act?

For those who care about free speech, last week seemed good. Most UK newspaper proprietors got their act together to offer a sensible alternative to the restrictive press controls cobbled together by the Hacked Off lobby and press-hating politicians and the government is having a rethink.

Then the deputy prime minister, Nick Clegg, suddenly remembered that his party was supposed to be liberal, and killed off the Communications Data Bill, aka "the Snoopers' Charter". This would have required internet service providers to record and keep for a year contact information on every user's web searches, email, texts and so on in case it was wanted by various public bodies.

And there was the Defamation Act, whose purpose, as explained last June by then Justice Minister Ken Clarke, was "to correct the worst excesses of our current system in which, particularly for the powerful and wealthy, the law makes it rather too easy to menace responsible publishers with libel proceedings".

He didn't, though, want this "to come at the cost of giving further licence to parts of the media to publish whatever they like without regard for the truth", and – responding to a concern expressed by the North Antrim MP, Ian Paisley Jnr – Clarke emphasised that it must remain possible for ordinary people "to get a remedy", though "only where their reputation has been seriously harmed".

One of the excesses addressed was London's reputation as the go-to place for libel tourists.

A famous example was the Saudi billionaire Khalid bin Mahfouz, one of our own after 1990, when Charlie Haughey handed over to him 11 Irish passports in exchange for a promise of £20m in investments in various Irish enterprises. More than a decade later, Mahfouz sued Rachel Ehrenfeld, an American terrorism expert, for alleging in her book Funding Evil that he was a financial backer of al-Qaeda. Although it was published only in the US and she hadn't marketed it internationally, it was enough that a few copies had reached the UK.

Dr Ehrenfeld refused to acknowledge British jurisdiction and Mahfouz secured a default judgement in 2005 requiring her to destroy all copies of her book and pay him $230,000 (€176,556) in damages. As a result of her countersuit in the US, New York State passed a law preventing the enforcement of libel judgements awarded in countries with laws less liberal on free speech. In 2010, a federal act followed suit.

But the plot thickens. Paisley had pointed out to the Commons that it was necessary to get UK-wide agreement on the law, because otherwise those precluded from suing in England could do so in Northern Ireland. He was knowledgeable and eloquent about more than that, particularly the introduction of a requirement that required an individual clearly to pass a "serious harm test" before being allowed to bring a claim. He quoted Mark Twain about the need to protect the people from the press and Oscar Wilde about the truth being "rarely pure and never simple".

He had asked "an eminent lawyer in Belfast about that particular issue. Paul Tweed is the author of a seminal book called Privacy and Libel Law and practises in three jurisdictions" (London, Belfast, Dublin) and had been given the "chilling" answer that "anything short of being called an axe-murderer probably falls short of the requirement".

(Tweed is indeed such an eminent and busy lawyer that in 2008 I found to my surprise that his firm were simultaneously engaged in reading for my publishers the typescript of my book on the Omagh bomb lest it contained libels while demanding compensation from the Daily Mail over a remark I'd made about Paisley to which he'd taken exception.)

It was a unilateral decision by DUP Finance Minister Sammy Wilson to halt the extension of the Defamation Act to Northern Ireland without consulting other parties.

When the Act passed last week, Tweed tweeted: "Looks like libel litigants will now have to cross the Irish Sea to Belfast in order to get access to justice."

So with would-be litigants' eyes turning from London towards the Emerald Isle, it's celebratory hats in the air for our learned friends!

The future seems less rosy for employees of Dublin-based Facebook, Google and Twitter or for those hoping other social media will invest in either part of Ireland.

Defamation and privacy laws are even more restrictive in the south than up north. Paul Tweed has already explained that he prefers to act in Dublin rather than Belfast. If web-based companies find Irish defamation and privacy laws are being used to hold them responsible for internet libels, they'll be tempted to go back home to a constitution that guarantees free speech.

www.ruthdudleyedwards.com

Irish Independent

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