The new Defamation Act is balanced against companies in the UK – the government should have taken a lead from Dublin.
With the formal implementation of the new Defamation Act from 1 January, it remains to be seen whether the government has scored an economic own goal regarding the somewhat punitive requirement that a company will have to establish ‘serious financial loss’ in order to be entitled to protect the reputational integrity of a brand or product.
Britain is already losing out as a result of IT giants such as Google and Facebook deciding to locate in Ireland. Accordingly, this latest move to create further obstacles for companies, in what are already challenging economic times, is difficult to understand, particularly in circumstances where there have only been a relatively limited number of corporations taking defamation proceedings over the years.
The more claimant-friendly Irish defamation laws do not appear to have discouraged companies from establishing their European headquarters in Dublin, and while access to justice is still very difficult to procure for both individuals and corporations, in that jurisdiction there is at least a semblance of a level playing field.
What is perhaps even more surprising has been the absence of any meaningful debate on this specific issue before this fairly fundamental change in the law relating to companies was implemented. Such is the urgency that has been created by the desire of many politicians to placate the press.
While the full impact of the draconian changes that have been driven through in the UK in response to this intense pressure from the press and other lobby groups will not be apparent for some time, there is no doubt that Ireland will continue to be regarded as providing a much more corporate-friendly environment for international companies to do business and to protect their brands.
Although Dublin is unlikely to earn, or desire, the much vaunted title of ‘libel capital of the world’, there is now a clear perception of Ireland being the more progressive of the two nations, having introduced its own, more pragmatic, defamation legislation three years ahead of the UK, while at the same time also implementing a much more credible system of press regulation in the form of a press council and ombudsman.
The UK, and Northern Ireland in particular, would have done well to follow this example, taking into account what are fundamental access to justice, and commercial, considerations.
Paul Tweed is senior partner at Johnsons, which has offices in Dublin, London and Belfast