Content Regulation / Censorship, Hate Speech, National Security
Government of Kazakhstan v. Respublika
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Sir Gerry Loughran, a government official, brought a suit against Century Newspaper Ltd for defamation, claiming that its paper had published malicious and defamatory information about him. The Northern Ireland Court of Appeals applied the Curistan principle for the first time in Northern Ireland and held that there was enough evidence to find that the newspaper had been dishonest or “had a dominant motive to injure.”
Century Newspaper Ltd (Century) is the publisher of a daily newspaper, the News Letter, and Sir Gerry Loughran had previously served as the Permanent Secretary of the Department of Enterprise and as the head of the Northern Ireland Civil Service. In May 2012, the News Letter published a portion of a government report. One article, “the First Article,” included criticisms of organizations involved in developing the report. Though the First Article did not mention Loughran by name, it referenced him indirectly by referring to “‘the most senior officials’ in the department.” “The Second Article,” entitled “Retired top civil servants involved,” appeared on the same page and “drew attention to the fact that the plaintiff had been Permanent Secretary in DETI.”
The News Letter published the First and Second Articles on its website as well. The lower court considered the First and Second Articles to be a hybrid publication. The author of the articles (and the News Letter’s political correspondent) published a tweet that read “Top Belfast doctors and two former heads of the civil service involved in saga which MLAs suspect involved fraud…” and included a link to one of the articles. Following a complaint form Loughran’s solicitor, Century removed the tweet and the online articles, but did not make an admission of liability.
Loughran sought damages for libel. Century asserted qualified privilege and claimed that the tweet was not referencing Loughran. The judge decided that the First Article was protected by qualified privilege and that the First Article was of public interest or of public benefit. The court also held “at this stage [the judge was] unable to conclude that no jury, properly performing its tasks and properly directed, could justifiably upholds a finding of malice.” Both parties are appealing certain aspect of the First Judgment, from November 13, 2013, and the Second Judgment, from February 25, 2014.
In a decision by Morgan LCJ, the Northern Ireland Court of Appeal noted the standards set forth in section 15 of the Defamation Act 1996, which state the publication of statements or reports is privileged, unless the publication was made with malice. The issue in the lower court decision was “whether there was any evidence, taken at its highest, on which a jury properly directed could properly infer that the defendant or its servant or agent knew that what was intended to be said in the publication relief on was false or that they had a reckless indifference as to the falsity.”
The Court found that the lower court judge had erred in his finding of malice, particularly in his reliance on the wrong test for malice. The Court stated that the standard for malice is “proof of matters of dishonesty, bad faith and malice in civil proceedings remains the balance of probabilities” and that malice only arises if the claim of qualified privilege is successful. [par. 37]. The Court also found that the judge had “failed to consider at all the requirement for the plaintiff to plead and establish a prima facie case that the defendant’s dominant motive for the publications was malicious,” especially given that Loughran had not elected to plead this. [par. 23]. The Court held that the lower court should not have permitted the pleading of malice to advance, given that this pleading could not be sustained.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Though the Northern Ireland Court of Appeals clarified the appropriate test to determine malice under the Defamation Act 1996, the Court will only apply this test if a claim of qualified immunity is successful.
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