On Free Speech and Banishing People to Desert Islands…

Mark Hanna is a Lecturer in the School of Law at Queen’s University Belfast.

Free speech has become a curious creature in Northern Ireland. Nowhere is this more obvious than in The Newsletter and Ruth Dudley Edwards’ year-end list of people ‘to banish to a desert island’.

It is perhaps not surprising that things have reached a point where elements of the press are expressing a preference for the ancient practice of banishing people to desert islands to curb their influence on public life. A ‘culture war’ is afoot in Northern Ireland, and it is being waged through the print media, as much as it is through internet trolls and bot-farms.

What is surprising about the banishment list, however, is that it has been published under the banner of ‘free speech’. Lawyer Paul Tweed was included on the list for his ‘unrelenting opposition to libel reform’ in Northern Ireland. Soon after publishing her banishment list, Ms Dudley Edwards published another piece in The Newsletter celebrating Kate Hoey as a ‘warrior for free speech’ for her claim that professional vocations in Northern Ireland ‘have been dominated by those of a nationalist persuasion’. Indeed, the supposed dominance of the legal profession by nationalists is presented as a particular threat to free speech in Northern Ireland. Ms Dudley Edwards has made it well-known that she has been subject to vexatious threats of libel suits from lawyers representing nationalist interests, all of which she has fought off in the interests of free speech.

One may wonder how banishing people to a desert island for their views may serve the interests of free speech, but it is worth making a few brief legal points about the list, in the hope of clearing up some of the confusion.

The first is about who is responsible for the restrictive libel laws in Northern Ireland. As dynamic as Mr Tweed is, he cannot take the credit for that. Blaming him for the problem of libel law in Northern Ireland is like blaming a racing driver for speeding at the track.

In truth, the responsibility for our libel law rests squarely with the courts and the Assembly. The courts had an opportunity to follow developments in England and Wales since 2010, yet quietly declined to do so. The Assembly had an opportunity to reform the law in 2013 and point-blank refused to do so. They have another chance now with the current Defamation Bill, but based on the debate up at Stormont so far, they are as reluctant as they ever were. What is more, there is none of the sectarianism to this that Ms Dudley Edwards or Ms Hoey would present. Both unionist and nationalist politicians oppose reform, and both have made equal use of the law to sue and threaten suit against speech unfavourable to their interests.

The second point is about the right of academics to publish their research without fear of persecution. Professor Colin Harvey missed out on the original list but was included in a follow-up article because of his public statements on the constitutional future of Northern Ireland, and his engagement with the organisation Ireland’s Future, neither of which Ms Dudley Edwards agrees with.

It is worth remembering, though, that clause 6 of the Northern Ireland Defamation Bill—the same reform that Ms Dudley Edwards favours so much that she would banish anyone who opposes it—guarantees the right of academics to speak openly in relation to any scientific or academic matter. Northern Ireland remains a conspicuous example of a jurisdiction where academics still do not enjoy this right, and newspapers calling for the banishment of professors to desert islands only underlines the danger of the legal anomaly.

For the record, I have not spoken to my colleague Colin Harvey about this. Nor can I claim his expertise in constitutional law, or the views he has formed on that basis. But it is worth reminding the press that academics have a right to speak about their research, and that it is in the public interest that they can do so freely.

Technically, of course, The Newsletter has done nothing wrong. As a historian, Ms Dudley Edwards will know the practice of banishing people to desert islands trickled to a stop in the nineteenth century. There is no longer legal authority for such, and even if there was, her plaintiff calls would hardly be enough to bring it to motion. We can assume therefore that the banishment list was just an expression of her honest opinion. She has a right to that as much as anyone else.

However, even if it does not offend the letter, it treads a little on the spirit of the law. There are some limits to the defence of honest opinion. In particular, it should not be used as a cloak for abuse or censure, or otherwise curb the right of others to express their opinion.

The Newsletter and Ms Dudley Edwards have not gone that far, but they sail dangerously close to the wind. Against the background of everything that is playing out in the province, the political rhetoric, all the online nonsense, it can hardly be said to be responsible journalism.

With all that, ‘free speech’ it may be, but calling it such may be like putting a silk hat on a pig.

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