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Twitter libel case shows Northern Ireland is more 'claimant friendly' than the rest of the UK, say experts

A judge's decision in a libel trial in Northern Ireland reinforces the fact that the country is the most "claimant friendly" in the UK for bringing defamation claims, experts have said.05 Feb 2016

On Wednesday the High Court in Northern Ireland ordered Sinn Féin politician Phil Flanagan to pay Tom Elliott, former leader of the Ulster Unionist Party and former member of the Ulster Defence Regiment (UDR), £48,750 in damages for posting libellous comments about Elliott on Twitter.

Flanagan has subsequently posted an apology on Twitter for a message he tweeted about Elliott on 1 May 2014 after Elliott had appeared on a BBC radio show. Mr Justice Stephens took Flanagan's apology into account when setting the level of damages. The judge considered the appropriate valuation of the libel to be £75,000 but reduced the damages award by 35% due to Flanagan’s apology and the fact he had admitted his wrongdoing.

The judge also took into account the fact that Flanagan had taken down his post about Elliott within an hour of it being published as well as the number of people who had been exposed to the tweet. According to a summary of the court's judgment, at the time Flanagan posted the comments he had 5,000 followers on Twitter and his tweet was seen by 167 of those followers. Six people retweeted Flanagan's tweet and one person favourited it, the summary said.

The court summary of Mr Justice Stephens' ruling said: "The judge held that to state that a senior politician, who had been the leader of a political party in Northern Ireland, was responsible for harassing and shooting people during his service with the UDR, involving, as it does, most serious conduct which is completely contrary to [Elliott's] duty, is a most serious libel and is grossly defamatory." 

"However, he also said that the limited publication of the libel on [Flanagan's] Twitter account, the limited numbers who saw the defamatory statement and the limited repetitions are significant factors. He states that the appropriate award, despite its gravity, is significantly sensitive to the limited nature of the publication," it said.

"The judge also considered [Elliott's] feelings. He accepts that [Elliott] was astonished and shocked by the statement but because he had not checked for 'some time' whether the tweet was still accessible, the judge infers that his concerns and upset had diminished over time. He also considers that the statement had less effect on him than it would have had on others who do not have the experience of political debate. He also notes that [Elliott] had not been shunned, pilloried or ostracised as a result and that he was subsequently elected as the MP for Fermanagh and South Tyrone," the court summary said.

Belfast-based libel law expert James Griffiths of Pinsent Masons, the law firm behind Out-Law.com, said the case highlights some of the differences that exist between defamation laws that apply in Northern Ireland compared to those recently reformed in England and Wales.

"Because Northern Ireland did not enact the Defamation Act 2013, there is currently a more plaintiff friendly regime here as plaintiffs do not need to prove that serious harm has been caused or is likely to be caused by the comments, as is the case in England and Wales," Griffiths said. "With libel reform in Northern Ireland a hot topic in the media and at Stormont, it remains to be seen whether this dichotomy between the jurisdictions is allowed to persist."

Some aspects of the Defamation Act also apply in Scotland, although not the provisions on serious harm.

Media law specialist Imogen Allen-Back of Pinsent Masons said the Wednesday's ruling also served to highlight that damages awards for defamation tend to be higher in cases brought before the courts in Northern Ireland than elsewhere in the UK.

Allen-Back said the case was also notable as it confirmed the growing reputational risks both businesses and individuals face from online activity.

Figures published last year by the UK government revealed that more defamation claims were filed before the High Court and Court of Appeal in London in 2014 than in any other year since 2009. A total of 227 cases of alleged libel or slander were raised in 2014, up from 142 cases in 2013. In 2009 there were 298 defamation cases heard by either the High Court or Court of Appeal.

"Social media platforms provide a forum for people to voice instant views, often to others outside of their usual social circles and sometimes in a manner where the consequences of their words are not fully thought through," Allen-Back said. "This can raise a challenge for companies and individuals in managing their reputation, particularly as some social media applications allow users to remain anonymous."

"Last year's statistics point to there being a rise in the number of defamation claims being brought that relate to derogatory online posts being made. The Defamation Act's 'serious harm' threshold was established to curb frivolous claims of defamation being made. It will be interesting to see if guidance the courts have provided on the application of the 'serious harm' threshold will be reflected in a fall in defamation claims being brought in future," she said.