Fergal McGoldrick: A communications breakthrough for the Protocol?

Fergal McGoldrick: A communications breakthrough for the Protocol?

Fergal McGoldrick

Fergal McGoldrick, a senior associate in Carson McDowell’s media, communications & reputation team, casts his eye over the new Northern Irish “Pre-Action Protocol for Defamation and Other Media and Communication Claims” and its implications for the kaleidoscope of 21st century communications claims.

With local, and occasionally, national, politics currently convulsed by the ‘Northern Ireland Protocol’, one could be forgiven for swiftly consigning anything containing those words to the dustbin.

Happily, for those who practise in the field of media and communications at least, the Lady Chief Justice has recently introduced a new Protocol in Northern Ireland to aid the management and early exchanges of such claims, effective from 4 October 2022.

Entitled “Pre-Action Protocol for Defamation and Other Media and Communication Claims”, this Protocol reflects the reality that such claims are no longer confined to libel and slander, and follows the introduction of a similar protocol in England in late 2019.

Through a combination of Convention rights, domestic statutes, and ever-developing jurisprudence, publishers, broadcasters and legal professionals are now just as likely to face (or threaten) claims in misuse of private information, breach of confidence, data protection and harassment as those more ‘traditional’ types of claim.

The most significant changes in the Protocol are:

  • The Protocol applies to all such claims, irrespective of whether the claim is ultimately issued in the High Court or County Court;
  • A requirement, where the defendant is not domiciled in the United Kingdom, to specify facts or matters relevant to Northern Ireland being the most appropriate forum for the dispute;
  • A requirement to notify the recipient if the plaintiff intends to make an anonymity application in respect of the claim, and the basis for that application;
  • Implementation of specific requirements for letters of claim, depending on the type of communications claim being issued (be it defamation, misuse of private information/confidence, data protection or harassment etc.);
  • In defamation claims, significantly greater focus on the imputation or ‘meaning’ the plaintiff (and where appropriate, the defendant) contends the statement at issue has;
  • In misuse of private information/confidence claims, a requirement to set out both the specific information, and the basis on which a reasonable expectation of privacy, or confidentiality, arises in that information;
  • In misuse of private information claims, why the plaintiff’s privacy rights outweigh the right to freedom of expression;
  • In data protection claims, a requirement to specify the personal and/or special category personal data, and identify the duty or duties alleged to have been breached.

Perhaps surprisingly, the Protocol does not expressly address emergency injunctive claims which occasionally arise in Northern Ireland where a plaintiff contends that as a result of a forthcoming publication or broadcast, their Article 2/Article 3 rights are engaged (normally as a result of an alleged paramilitary threat, or self-harm concern). One assumes however, even though not expressly referred to, a Court will expect the parties to adopt the same degree of particularisation at an early stage in such applications.

Overall, it is hoped that the direction of travel evident in the Protocol (greater particularisation at an earlier stage, and confirmation of whether and on what basis, anonymity is sought) will allow media and communications claims to be dealt with more efficiently, either within the Court system, or through the various Alternative Dispute Resolution methods.

A copy of the Protocol is available here.

  • Fergal McGoldrick is a senior associate specialising in media and communications at Carson McDowell LLP.
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