(12 years ago)
Grand CommitteeRead Hansard Text Read Debate Ministerial Extracts
The Deputy Chairman of Committees (Lord Skelmersdale)
My Lords, in the unlikely event of there being a Division in the House, the Committee will adjourn for 10 minutes.
Clause 3 : Honest opinion
Lord Phillips of Sudbury
Lord Phillips of Sudbury
My Lords, Amendment 11 seeks to amend the second condition of the defence to libel of honest opinion. This requires that the statement complained of “indicated” in general or specific terms the background to the supposedly defamatory statement. The importance of that is very evident and I acknowledge that this clause is largely codificatory of existing law.
My concern is simple, as the amendment indicates. There needs to be a qualifying adjective before “indicated”. I do not believe that left on its own it necessarily carries any qualification as to adequacy or sufficiency of the indication given about the basis of the opinion that is supposedly defamatory. I am reinforced in my sense that we need the qualificatory adjective by reference to other parts of this short Bill. For example, Clause 4(3) refers to “accurate and impartial”. Clause 6 refers to “fair and accurate”. Indeed, there are multitudinous references to that phrase in Clause 7. On its own, “indicated” is a rather bleak word which needs the qualification of “adequately” to do justice to the parties.
Amendment 12 again is designed to provide a more satisfactory outcome in terms of this clause, “Honest opinion”. Clause 3(6) states that a person sued for a libellous statement does not lose his or her defence if that person was not “the author” of the libel but only a secondary publisher and that they published the original statement. My amendment would extend that protection to a situation where the publisher does not simply republish the original statement but publishes it,
“in a form which is substantially the same”.
Again, this qualification is necessary.
Clause 8 deals with the statute of limitations and how to assess when a publication shall run from in terms of the limitation. Clause 8(1)(b) refers to a publication that,
“subsequently publishes (whether or not to the public) that statement or a statement which is substantially the same”.
My amendment seeks to introduce the qualification of a statement which is “substantially the same”. As worded, under Clause 3, the defence would be lost unless it was a statement precisely the same as the original statement.
The Minister may tell the Committee that the Government believe that the provisions in Clause 8 under the single publication rule should be read into Clause 3. If that is what he says, I find it difficult to reach that construction given the way in which Clause 8 is worded, with no reference to Clause 3 and vice versa. I hope that whatever the noble Lord, Lord McNally, says on Report, we can make this clear on the face of the Bill. I beg to move.
Lord Lloyd of Berwick
Amendment 13, in my name, has been grouped with this amendment, but it raises a separate point. It is concerned with the defence of honest opinion or fair comment, as it used to be called. In 1975, the Faulks committee described fair comment as the bulwark of free speech and so, indeed, it is. A few years earlier, that great defender of free speech, Lord Denning, had made exactly the same point, adding that fair comment as a defence must not be whittled down by legal refinement.
My case will be that the defence of fair comment has been whittled down not, I hasten to add, by Clause 3 of the Bill, but by a decision of the House of Lords in 1992. The name of that case was Telnikoff v Matusevitch and I must declare an interest, since I gave the leading judgment in the Court of Appeal in that case, together with Lord Justice Glidewell and Lord Justice Woolf, as he then was. We were, unfortunately, reversed in the House of Lords, so I have a rather selfish interest in satisfying myself and, I hope, persuading the Committee that the Court of Appeal was right and the House of Lords was wrong.
The facts of the case were very simple and typical. The plaintiff wrote an article, published in the Daily Telegraph, criticising the BBC’s Russian service for recruiting its staff entirely “from Russian-speaking ethnic minorities”. The defendant, an emigré Russian Jew, took great exception to the article and, five days later, wrote a letter to the Daily Telegraph referring to the article by title and giving the date on which it had appeared. The letter contained the following sentence:
“Mr Telnikoff demands that [the BBC] should switch from professional testing to a blood test”.
As it stands, that statement looks, on the face of it, like a statement of fact: that that is what he had demanded. If so it was clearly defamatory, if untrue. However, if you look at the same sentence in its context, including the article to which the letter had referred, it looks very different. It was obvious, looking at the article, that the plaintiff had not demanded a blood test, so the words complained of were not a statement of fact at all but a comment. It was a strongly worded comment, but a comment none the less.
The crucial question on which the Court of Appeal and the House of Lords differed was whether you could look at the article as part of the context in which the letter was written. In the Court of Appeal we held, without much difficulty, that you could and should. Accordingly, we upheld the defence of fair comment in the interest of free speech and the action failed.
The case went to the House of Lords and there we were reversed. The only reason that their Lordships gave was that somebody might read the letter without having read the article. To such a reader, the letter would indeed appear defamatory, even though it would not appear defamatory to anyone who had read both the letter and the article. Therefore it followed that the writer of such a letter, if he was going to take a safe course, should set out the whole of the article, or the substance of the article, on which he proposed to comment—or, if he was even more determined to take a safe course, should consult a lawyer.
It seemed to me at the time that the decision was wrong. It did exactly what Lord Denning said one should not do: namely, whittle down the defence of fair comment by a legal refinement. Even so, I might not have been bold enough to table my amendment but for one other factor: the dissenting speech of Lord Ackner in the House of Lords. If ever there was a tour de force, this was it. I should like to quote the whole speech—I had the whole speech before me on Monday of this week—but perhaps I should confine myself to the two sentences that contain the answer. Lord Ackner said that,
“the defence of fair comment is not based on the proposition that every person who reads a criticism should be in a position to judge for himself. It would be absurd to suggest that a critic may not say what he thinks of a play performed only once, because the public cannot go and see it to judge for themselves”.
There could not be a stronger support for the amendment than the speech of Lord Ackner in the House of Lords in that case.
It is true that Lord Ackner was only one of five Law Lords—but five judges in all were in favour of the amendment, if one includes Mr Justice Drake, a great expert in this field, together with the three of us in the Court of Appeal. That makes five in favour of the amendment, with only four against. I hope that the noble Lord, Lord McNally, will find time during the Christmas vacation to read the judgment of Lord Ackner. He may well have time on his hands from now on. At Second Reading, the Minister went as far as to say that he thought that the view of Lord Ackner was probably right. I hope that he is still of that view and will maintain it when he has read Lord Ackner’s speech.
This brings me to the question that I asked at the end of my speech: is the wording of Clause 3(3) sufficiently clear and specific to enable the court to say—and in particular, to enable textbooks to say—that the decision of the House of Lords in Telnikoff v Matusevitch is no longer good law? The noble Lord said that his officials wished to consider the question and would write, but unfortunately they never did. If they had, I feel sure that we could have agreed. My view is that Clause 3(3) is not sufficiently precise. If Parliament is going to reverse an important decision of the House of Lords—and it was an important decision—in the field of defamation, as I hope we will, we must make it absolutely clear that that is what we are doing in the Bill. That is the only purpose of my amendment. The point would then be picked up by the textbooks—this is an important argument—so that we will not have to wait until a decision of the court, which would only add to the waste of time and money involved. We can do this now, and I hope that the noble Lord will agree to do so and accept the amendment. It will in no way detract from Clause 3(3), but it will cover a specific case, as we often do. I can think of literally no good reason why the Government should not accept the amendment now. I hope that the Opposition will take the same view.
Lord Lucas
My Lords, I apologise to the Committee for arriving late for a group in which I have amendments, but I am not fussed about having missed Amendment 10A. These are only for discussion anyway. I am also delighted that the Minister is not a lawyer, no more than I. We are in very intimidating company, but I shall be comforted by the thought that I am at least talking on a sort of level with him.
I declare an interest in that I run the Good Schools Guide, and therefore the whole matter of opinion is central to my life. Knowing what is and is not opinion is something to which I have to give daily consideration when I am looking at the comments that people have posted on our website and the comments that we choose to make about schools. I am conscious that I do not get good, consistent legal guidance in this area.
When things are put as they are in subsection (2)—
“the statement complained of was a statement of opinion”—
there are clearly a lot of factual statements which I treat as if they are statements of opinion. If someone says in a restaurant review that the food was cold, that is a statement of fact but the courts are going to treat it as a statement of opinion. On the other hand, if I say about a school that my child was bullied, that is not a statement of opinion but a statement of fact. Yet they both appear in the same English construction as the statement which will be taken as a statement of opinion. Dividing the two for people who are going to practically use this legislation is something which they will find difficult and I have always found difficult; it has frequently cost me lawyers’ bills to decide. I would be comforted if the Government were to make some effort, since we have a Bill on the subject, to enable ordinary users of this legislation to have some certainty as to what is an opinion and what is not. I do not see anything in this clause that makes life easier for me.
The second thing that causes me particular concern is subsection (4)(a), where it seems that in this matter of opinion we introduce the question of a fact:
“The third condition is that an honest person could have held the opinion on the basis of … any fact which existed at the time”.
Even if we go back to the restaurant review, and I say in a review on a website that the food was cold, how can I establish that fact? I am being asked by subsection (4)(a) to say that there is a fact there. I have no way of establishing that fact. If the restaurant disputes that the food was cold, how will I argue that I am dealing with opinion? In my interpretation of subsection (4)(a) as a user of this legislation, rather than being given the freedom of expressing a reasonable opinion based on my experience of something, I am being called back to establish a fact in order to justify my defence that this is an opinion. I have to establish that I have this opinion based on facts. Therefore I have to establish the fact, and I cannot, so I am not entitled to an opinion. As a lay interpreter of the Bill, I find that a worrying clause. I would be grateful if the Minister could explain why I should not be worried about it.
Lord Lester of Herne Hill
My Lords, first, I am glad that the noble and learned Lord, Lord Lloyd of Berwick, referred to Lord Ackner. I remember when I was arguing a case called Pepper v Hart and the Attorney-General said, “Don’t pay any attention to what Ministers say at three in the morning, it is often rubbish”. Lord Ackner looked at him and said, “Mr Attorney, is the proposition that Ministers should think before they speak incompatible with good government?”.
The purpose of Clause 3 is to get rid of the uncertain common law and make sure that the problem that the noble Lord, Lord Lucas, has just raised will not arise again. It is curious that he should mention the example of the food critic, because what convinced me that we needed a Bill, and particularly Clause 3 of the Bill—which was invented by Heather Rogers QC, in my view the most knowledgeable and open-minded of all the QCs practising at the libel Bar—was a case that I did in Northern Ireland about a food critic. A restaurant called Goodfellas, which was probably funded by the IRA, was reviewed in the Irish News by Caroline Workman, the newspaper’s food review critic. The review was very rude about the quality of the food in the restaurant. However, counsel on both sides and the trial judge—and certainly the jury—confused facts and opinion. Caroline Workman was put in the witness box for three days and cross-examined on whether the food was, or was not, of the standard that she had put in the review. When I came in on appeal, I attempted, successfully, to repair the damage by persuading the Court of Appeal in Northern Ireland that if it is a food review, and everyone can see that it is about opinion, you need very few facts in order to justify the opinion. There are, for example, food or theatre reviews that just use stars, so that no stars means that it is terrible and five stars means that it is worth eating or seeing. It is defamatory to put no stars, or only one star, but it would be absurd for the reviewer to have to prove anything more than that they were there at the time; in other words, that it was not malicious. Leaving aside for the moment the point made by the noble and learned Lord, Lord Lloyd, the beauty of Clause 3, as it stands, is that it really does, for the first time, make the distinction between honest opinion and the defence of truth as good as I think one can get it.
However, I agree with everything that the noble and learned Lord, Lord Lloyd, has said about the Telnikoff case. I am not sure about the precise words of the amendment, but if the Minister were able to make a Pepper v Hart statement to indicate that whereas in subsection (8) we overrule the common law defence of fair comment—that we abolish it and start afresh—and that the intention in doing so is, among other things, to overrule the majority decision of the House of Lords in that case, then it might not be necessary for an amendment to proceed. One of the difficulties I have with the amendment is that although it singles out newspapers, there are of course other publishers as well—but that is a matter of boring technicality. I strongly support the spirit of that amendment and I hope that I have clarified why the noble Lord, Lord Lucas, can sleep easily tonight.
Lord Browne of Ladyton
My Lords, the Committee will be pleased to hear that—broadly for the reasons articulated so well by the noble Lord, Lord Lester of Herne Hill, about the purpose of the clause—I do not intend to speak for very long on Clause 3. Our Benches support the clause, although we recognise that in doing so we are not saying that it cannot be improved. If any of the amendments in this group can improve or assist the purpose of this clause, we will be happy to support them.
I regret to tell the noble Lord, Lord Lucas, that while his proposed amendments raise an interesting aspect in the discussion about the difference between facts and opinions, I have to say that I am inclined to agree with the view of the noble Lord, Lord Lester of Herne Hill, which is that the only fact that must be established in the example of a restaurant review is that you can prove that you have eaten in the place. I cannot support his amendments, although I will be interested to hear what the Minister has to say about the degree of certainty that one can have now when operating in the area of opinion, so that one can avail oneself of the defence offered by this clause in the future, as opposed to in the area of fact. However, I suspect that one would not want to raise that issue in a room full of lawyers because the position is unlikely to be clearer at the end of the discussion than it was at the beginning. It may be better just to leave it to ordinary people to decide whether or not they are dealing with opinion. It is the sort of thing that one knows when one sees it.
On the amendments spoken to by the noble Lord, Lord Phillips, I anticipate to a degree that the response will be that they are unnecessary. I hope that the Minister will be convincing in his explanation that they are, but the noble Lord has raised important issues around the adequacy of information that would allow people to take a view as to whether the opinions being expressed are supported by facts. If they are the reporting of other people’s opinions or statements, there has to be some information available to allow people, outwith court proceedings, to come to a view as to whether the opinions are justifiable in the circumstances of the facts that have informed them. The noble Lord has done the Committee a service by identifying this issue. I am not entirely sure that his amendments would improve the clause, but I shall leave it to the Minister to defend the drafting.
I turn to the very specific amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick. We cannot say that we have not had notice that this amendment was likely to be brought forward because the noble and learned Lord raised this issue in a short contribution made on Second Reading, when he asked a series of very specific questions. My recollection is that he got a positive response from the Minister, who indicated that he agreed with his view. I thought that the noble and learned Lord explained the point compellingly in terms of the House of Lords’ decision in Telnikoff v Matusevitch, saying that it is not good law. However, I suspect that the noble and learned Lords who considered that decision did not think that it would be further appealed in the House of Lords some 20 years later. The question, of course, is whether the issue needs to be addressed. I think that the mood of the Committee suggests that this is not good law, but there is a question of whether it needs to be dealt with in the Bill or by the sort of device suggested by the noble Lord, Lord Lester of Herne Hill.
Members on these Benches will listen carefully to the Minister’s response and we will test that against how the noble and learned Lord, Lord Lloyd of Berwick, in turn responds to it. If we need to come back to this issue again, I think that the noble and learned Lord can rely on our continued support. This stain on the law of England should be removed at some stage by other processes.
Lord Scott of Foscote
My Lords, I rise simply to say that for the reasons given by my noble and learned friend Lord Lloyd of Berwick, to which I cannot usefully add, I entirely support his amendment.
Lord Woolf
My Lords, I rise to say the same thing because, of course, I was the other person who had his decision overruled by the House of Lords. I agreed with the noble and learned Lord, Lord Lloyd, in the Court of Appeal and I agree with him again today. I must apologise to the Committee for my late arrival, which I can only blame on the queue at the gift shop.
Lord May of Oxford
I suspect that I am the only non-lawyer around the table but I wish to express my enthusiasm for the amendment.
Lord Phillips of Sudbury
My Lords, I should be interested whether the Minister who is to sum up can tell the Committee whether there has previously been a conspiracy of judges frustrated in the manner that we have seen today.
Lord Ahmad of Wimbledon
My Lords, I note with great interest that everyone referred to my noble friend Lord McNally, but it falls upon me at least to attempt to address some of the issues raised. I am mindful also of the fact that some holiday reading was put forward, and I now realise why my noble friend suggested that I deal with these amendments—I will be travelling to Australia and, rather erroneously, I asked him to suggest some reading for my long trip. Now I know what it will be.
I should like to respond to the various amendments in the group, Amendments 11, 11A, 12 and 13. Amendments 11 and 13 relate to Clause 3(3). The subsection reflects the test that has been approved by the Supreme Court in the case of Spiller v Joseph. This provision has been included to address the concern of the Joint Committee on the draft Bill that unless an indication of the subject matter on which the opinion is based is included it is difficult to assess the real nature of the criticism that has been made.
Including the word “adequately”, as proposed by Amendment 11 in the name of my noble friend Lord Phillips, would make no difference to how the provision would operate in practice. In order to succeed in establishing the defence, or indeed any other defence, the defendant will have to show that all the conditions attached to the defence are adequately met. If the way in which they are met is not adequate, it will be inadequate and by definition will fail. We therefore do not consider that this amendment is necessary at this time.
My noble friend also referred to Clause 8, which deals with a different situation, where the material is republished by the same publisher. Clause 3(6), however, deals with situations where the defendant is not the author of the statement—that is, where the newspaper editor publishes a comment piece written by someone else.
I move on to Amendment 13, in the name of the noble and learned Lord, Lord Lloyd of Berwick. It is true that this issue was flagged up at Second Reading. He referred to the specific assurance that he suggested was given, whereby a detailed letter was to be sent to him. If that has been overlooked, I am sure that the officials and my noble friend have noted that, and we will write to him quite specifically.
Lord Lloyd of Berwick
Regretfully noting such a thing is not enough. I was promised a reply and it did not come. Something more than noting is required.
Lord Ahmad of Wimbledon
I thank the noble and learned Lord for his suggestion, but if I had been able to finish my sentence, I was going to say that I apologise regarding the commitment made and, as I said, we will be writing to him quite specifically on the issue that he has raised.
I turn to the matters that the noble and learned Lord raised. Amendment 13 provides for this condition to be met if, in commenting on a letter or article in a newspaper, the defendant identifies the subject matter of the letter or article and the date on which it appeared. This situation is already covered by subsection (3). If the statement indicates that the basis for the opinion is what was said in a particular letter or article that has previously been published, then that would enable the claimant to read the letter or article and assess the nature of the criticism, and the test would thereby be met.
The noble and learned Lord referred to a particular case. I am mindful of the great expertise not just around the table but in the array of judicial expertise engaged in the particular case to which he referred and in which he was involved, as he pointed out. I would hesitate at this point to express a view on the rights and wrongs, but what I can say is that Clause 3(3) reflects the test that was subsequently approved by the Supreme Court in Spiller v Joseph, and that covers the circumstances that are set out in the noble and learned Lord’s amendment.
Lord Mawhinney
I am grateful to the noble Lord for giving way. Apropos of his comments about the noble and learned Lord, Lord Lloyd of Berwick, that noble and learned Lord is not the only one who finds my noble friend’s response slightly lacking. Governments have a habit of making promises that are important, first, because they come from the Dispatch Box or whatever, and secondly, because they are important to the recipient of the promise. When those promises are not upheld to Members of this House or of the other place there is a significance to the absence, which my noble friend did not entirely encapsulate in his reply. If he will forgive me, as a friend, for saying so, conveying the Government’s understanding that breaking such a commitment is simply not acceptable probably needs more substance than a quick apology, en passant, and the promise of a letter.
Lord Ahmad of Wimbledon
I thank my noble friend. He emphasised the word “friend” and I acknowledge this fully. I can assure the Committee that I did not intend to appear as if I did not fully understand the nature of the question put by the noble and learned Lord. If that has been communicated, I make an unreserved apology and assure the Committee that we fully acknowledge the fact that a letter should have been written to the noble and learned Lord, based on the discussions at Second Reading. I am sure that my noble friend Lord McNally has taken particular note of the comments and expressions that have been made. As a reasonably new Member of your Lordships’ House, I always welcome direction, particularly on the way that the House operates. I reiterate that I intended no discourtesy to the noble and learned Lord and thank my noble friend for his direction, which I acknowledge and will take on board. I hope that the noble and learned Lord also feels that I have acknowledged any shortcoming in my initial response.
The Earl of Erroll
This is not on the subject we have been talking about but goes back to the amendment in the name of the noble and learned Lord, Lord Lloyd of Berwick. Subsection (3) says,
“the basis of the opinion”.
Is that the same as the subject matter on which you may form an opinion? In English, the basis of my opinion would be formed by my knowledge or experience or other knowledge that I had, whereas I am commenting on something external: the subject matter. In ordinary English, the subject matter on which I am making an opinion is very different from the basis on which I form this opinion about the subject matter. I am not sure whether the Minister’s reply covered the noble and learned Lord’s point or whether it should be reconsidered.
Lord Ahmad of Wimbledon
I hear what the noble Earl says. We shall return to this point in writing. If the noble and learned Lord wishes to return to this point, it can be debated more extensively at a later stage of the Bill.
Lord Lester of Herne Hill
We know that the common law is being overruled by this clause. As I understand the Minister’s reply, it is that, without saying that the majority opinion in Telnikoff has been overruled, this clause effectively no longer reflects that narrow view of the majority of the Law Lords. Is this right?
Lord Ahmad of Wimbledon
We will take this on board in light of the comments that have been made. I seek the Committee’s indulgence on this. As I said, as ever, some valued points have been made and they will be duly considered. I will write to the Committee on that specific issue.
On Amendment 11A, my noble friend Lord Lucas spoke about Clause 3(4). Amendment 11A would remove the bulk of subsection (4) so that the third condition for the defence to apply would be satisfied if the defendant simply shows that an honest person could have held the opinion. That rather asks the question as to the basis on which they might have reached that opinion. Subsection (4) would simplify the current law. It would give some guidance as to the basis on which the opinion might have been formed, while avoiding the complexities which have made the defence too complicated and technical. The provision as drafted therefore strikes the right balance.
Amendment 12 would change the drafting of Clause 3(6) in a way which the Government do not believe would be helpful. Subsection (6) relates to situations where the “honest opinion” defence is raised but the defendant is not the author of the statement—for example where an action is brought against a newspaper editor in respect of a comment piece, rather than against the person who wrote it. In these circumstances, the defence will be defeated if the claimant can show that the defendant knew or ought to have known that the author did not hold the opinion.
To the extent that Amendment 12 shifts some of the wording in the subsection, it does not alter the effect. However, it also inserts a reference to the statement being published by the defendant in a form which is “substantially the same” as the statement by the author. This would create uncertainty in the law, as it could be read as implying that the defence might be available in situations where the defendant has changed the statement by the author. This is not desirable.
We have looked at specific issues. I return to the points made by the noble and learned Lord, Lord Berwick. I end my comments by again assuring him unreservedly that, while there were shortcomings, no offence was intended in my response. We will write to him fully on the matters he has raised previously and today. I hope that, on the basis of my comments, the noble Lord, Lord Phillips, will be prepared to withdraw his amendment.
Lord Morris of Aberavon
My Lords, I am sorry to say that I am confused by the Minister’s reply to the noble and learned Lord, Lord Lloyd of Berwick. It is not the Minister’s fault, I am sure; it is the departmental brief that he has been given. As I understand it— I may be wholly wrong—at present the Government are unable to respond to the noble and learned Lord’s comments which were canvassed in appropriate detail at Second Reading. Is the position that there is no government position?
Lord Ahmad of Wimbledon
I did refer to that. We believe that the situation is already covered by Clause 3(3), to be clear. However, I have again noted and totally taken on board the comments made by the noble and learned Lord, and acknowledged the fact that, as was mentioned at Second Reading, this issue would be fully addressed in a letter. As I have stated previously, I have asked the Committee whether we may write specifically on that issue and address any other issues which remain outstanding. Again, however, as I said in my comments, the Government’s position is that the situation is already covered by the clause.
Lord Lucas
My Lords, perhaps I may first ask a question on the matter raised by the noble and learned Lord, Lord Lloyd of Berwick. The Minister said in his reply that he thought that it would now, under this Bill, be fine if someone reading the letter could refer to the article, because that was referenced, and that would cover things. Would that be the case if the letter concerned was behind a paywall? As would commonly be the case on Twitter or blogs or whatever, you might well find that the letter had been published in the Times or the Financial Times or some other place which is only accessible if you pay some mogul a large sum of money annually, and is therefore not in a practical sense accessible to someone who just happens to read the letter and react to it. Would that mean that if you published behind a paywall and then commented on it you were not protected by the law as it is set out in this Bill?
Secondly, I turn to the subject of my amendments. As a practical user of the Bill, I am going to find it very difficult to know what is opinion and what is not. At the moment one has to go through ridiculous and convoluted forms of language such as, “I felt that the food was cold” or “I believe that my son was bullied”, in order to make it clear that you are talking about opinion. It does not say clearly anywhere in this Bill that when you are talking of personal experience, that is equivalent to opinion. We are coming to the effects of this clause on Clause 5 concerning website operators when judging whether an incoming comment is a comment or a statement of fact. It is very important to have rules and to know where the law lies, but at the moment Clause 3 does not make that clear. I continue to have a problem with the way paragraph (4)(a) is expressed. Something is not an honestly held opinion,
“on the basis of any fact which existed at the time”.
That does not appear to have any application to whether the person who held the opinion was aware of the fact, or indeed was even capable of being aware of the fact. If the fact existed, that makes the opinion a dishonest one and therefore not protected. Again, I find that concept very difficult.
I shall certainly bring these matters back on Report, but I will be grateful for any guidance and perhaps the opportunity to go through these things with officials before the next stage.
Lord Ahmad of Wimbledon
I thank my noble friend for his questions. I can give him an assurance that we will write to him on the specific points that he raised. That will allow for a proper period of reflection.
Lord Lloyd of Berwick
I am very grateful to the noble Lord, Lord Lester, for his support for this amendment, and indeed to other Members of the Committee, some of whom have spoken with particular knowledge of this aspect of the law. The noble Lord, Lord Lester, was concerned about the language of the amendment, and of course I accept that the wording could be improved. It may be that it is in fact too narrow in the sense that it refers only to newspapers and not to other places where articles might be published. It is the sort of thing that can be dealt with very easily if only one could have some sort of conversation on these matters with Ministers.
The noble Lord also said that it might be dealt with sufficiently with a statement under Pepper v Hart. There I think I would disagree with him. The point in Telnikoff v Matusevitch is so important in the law of defamation that it ought to be dealt with specifically so that it is on the face of the Bill, not just through a statement from the Minister. Nevertheless, I am grateful for his support.
As to the reply, of course I accept the apology offered by the noble Lord, Lord Ahmad. However, these things should not happen and it is not the first time it has happened, even to me. One is told that one is going to be written to, but then one is not, so it is important that when the Government say that they are going to write, they should in fact do so. There is simply no purpose in raising points at Second Reading unless they can be dealt with properly at the Committee stage. In this case, of course, that has not been possible.
There were two questions for the Government to consider. First, do they accept that the decision of the House of Lords was erroneous? They have not dealt with that at all. Secondly, if it was erroneous, is that point made sufficiently clear in Clause 3 as it stands? On that I very much echo the statement of the noble Earl on the other side of the table. My view is that it is not sufficiently clear and I can see no reason why it should not be made sufficiently clear. It does not cost the Government anything to accept an amendment of this kind. Although I necessarily will not press the amendment, I intend to raise the matter at the next stage.
Lord Phillips of Sudbury
My Lords, to be frank with my noble friend, I do not feel that his response to Amendments 11 and 12 really addressed the case I was making. However, I do not propose to say anything further today. I will reread what he said; I hope he will reread what I have said; and I hope that there may be discussions before Report, when I can perhaps convince him otherwise.
Lord McNally
“(b) the defendant reasonably believed that publishing the statement complained of was in the public interest.”
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, this is the first opportunity for me to associate myself with the apology that my noble friend extended to the noble and learned Lord, Lord Lloyd, and I do so. The noble and learned Lord has indicated that we can move on, but perhaps I should say that when one of the observers of this Committee asked me the other day what my intention was, I felt a little like Metternich’s reaction when Talleyrand died: “Well, what does he mean by this?”. I repeat again for the benefit of the Committee that my objective is that by the end of the Committee, we will be able to bring forward a better Bill. That is the only intention I have. I have no secret orders or red lines. I want a Bill that clarifies the law, gets the balance right between reputation and freedom of speech and puts the law in a better place than when we started this journey. I am, of course, absolutely grateful to the many noble and learned Lords who are contributing to our deliberations. I would only urge on them this humility: the noble Lord, Lord Browne, made the point at the beginning of our debate that British libel law—or the English law of defamation, I am being corrected—is not in good repute. That is why we are bringing forward legislation. I humbly say that the various judgments over the years have not brought us to a good place. That is why we are here and that is my sole intention.
As someone who has some knowledge of the history of the trade union movement, the trade union solidarity show by my learned friends is very impressive, but I hope that we will get a Bill—to take the point made by the noble and learned Lord, Lord Lloyd—that the textbooks can take guidance from and that will give people some better clarity and assurance. However, as people always tell me, even when we have finished our work, it will be tested by a judge and we may then find out how good it is. That is my mission statement and I hope we can all join in that. I will certainly make sure that we try to respond to the points raised in Committee and that we have a Committee stage that gets the Bill into good shape. People have been telling me that Clause 4 is the heart of the Bill, and getting it right will be the test of how good a Bill it is. The fact is that we have tried in this process and been advised on several responses—particularly as to whether we should have lists or general principles. I should make it clear that I will listen carefully to the legal and other expertise around the table on whether we have got this right. In this approach, I am considering not only legal opinion but I want to be sure that academics, scientists and the general public know what we are about and where the thresholds are that we are trying to set.
In moving the amendment, I shall speak also to Amendment 16 and 21. These amendments respond to concerns that were expressed during the Second Reading debate in this House and in the other place about the way in which the public interest defence in Clause 4 is currently articulated.
At Second Reading, a number of noble Lords were concerned that Clause 4 as drafted might not adequately reflect the current law in the light of the Supreme Court’s decision earlier this year in Flood v Times Newspapers. Some noble Lords also took the view that including a non-exhaustive list of factors to which the courts can have regard in considering the defence could risk creating a rigid checklist approach and add to the evidence that would need to be gathered and to the expense of running the defence.
From a different perspective, some stakeholders have called for a radical shift in the clause towards the interests of defendants by introducing a requirement for the claimant to show malice in order to secure any remedy beyond publication of an explanation or correction. Let me say at the outset that the Government do not believe that this approach, which changes the burden of proof, would provide appropriate protection for people who have been defamed.
However, we are grateful for the many contributions that have been made to the debate in this House and elsewhere, and we accept that the clause can be improved. Our amendments make changes which recast the defence in a number of respects. First, Amendment 14 replaces the requirement for the defendant to show that he acted responsibly in publishing the statement complained of with a requirement for him to show that he reasonably believed that publishing the statement complained of was in the public interest. Consideration of whether a publication was “responsible” involved both subjective and objective elements. “Reasonable belief” also does this, but we believe that it brings out more clearly the subjective element in the test—what the defendant believed at the time rather than what a judge believes some weeks or months later—while retaining the objective element of whether the belief was a reasonable one for the defendant to hold. The courts will need to look at the conduct of the publisher in deciding that question.
Amendment 21 inserts a new subsection requiring the court, in considering whether the defendant’s belief was reasonable, to make such allowance for editorial judgment as it considers appropriate. This expressly recognises the question of editorial discretion which has featured in recent cases, in particular in the Flood judgment. Although this provision is likely to be most relevant in journalism cases, it has been drafted in a way that does not limit it to that context.
Amendment 16 removes the list of factors which the clause currently invites the court to consider. This is a difficult issue. Although we do not believe that the courts would apply the list of factors, based on those in Reynolds, as a checklist, we have responded to strongly expressed concerns that the use of a list may be likely to lead in practice to litigants and practitioners adopting a risk-averse approach and gathering detailed evidence on all the factors listed, in case the court were ultimately to consider them relevant.
The Deputy Chairman of Committees
Page 2, line 34, leave out paragraph (b) and insert the new paragraph (b) as printed on the Marshalled List. As an amendment to that amendment, I call the noble Lord, Lord Phillips of Sudbury, to move Amendment 15.
Lord Phillips of Sudbury
My Lords, I was going to ask my noble friend a question. Is it too late to ask him?
Lord Phillips of Sudbury
In that case, it is very important, in the light of the amendment in my name, to know whether the words, “the defendant reasonably believed”, inserted by Amendment 14 to Clause 4(1)(b), are construed in an objective or a subjective way. If that is an unfair question then we will have to wait for a reply, but it is very important.
The Deputy Chairman of Committees
My Lords, to get us back on to the straight and narrow, an amendment to Amendment 14 has been proposed.
Amendment 15 (to Amendment 14)
Lord Phillips of Sudbury
(c) the defendant acted fairly as to the manner, balance and content of such a statement”
Lord Phillips of Sudbury
I have rather lost the plot. Can the Minister reply to my question before I move my amendment? I may not have to move it if he answers in a certain way.
Lord McNally
I would have to take advice on those matters. In a room full of lawyers, I am not going to make comments ex cathedra, ad hoc, on the hoof, or whatever description they might say. Why not ask your questions? By the time I come to reply I might even give you an answer.
Lord Phillips of Sudbury
My Lords, I am grateful to my noble friend and sympathise with his predicament. In the light of what he has said, and as we have an opportunity to discuss this at a further stage, I will not move Amendment 15 at this time.
Lord Lester of Herne Hill
I am sorry—I am always very bad on procedure.
Clause 4 is at the heart of the Bill. The Government have done an extremely good thing. Originally, like my Bill, and like the judgment in Reynolds of the noble and learned Lord, Lord Nicholls of Birkenhead, there was a checklist of factors. In practice, the checklist proved unworkable. It was a list of factors that could not be weighed one against another. As the noble Lord, Lord McNally, said, there was great opposition to it. The Joint Committee on Human Rights, on which I serve, expressed the conclusion in paragraph 15 that the checklist was inappropriate and that we needed instead a generic test. The Constitution Committee expressed the same conclusion in paper 86.
The inventor of Clause 3 was Heather Rogers QC. The inventor of Clause 4—as it is proposed that it should be amended—is neither me nor the Government but Sir Brian Neill. He is in hospital at the moment, otherwise he would be here, but he will be delighted to know what is happening today. It was he who asked why on earth judges would need a checklist of factors when one could produce a proper, objective test coupled with a reasonable belief. One can then leave it to judges to decide on a case by case basis whether there has been responsible publication. Whether there has been such publication requires the answer to two simple questions. At least, the questions are simply stated; they are not always simply answered.
The first is whether, objectively, the publication is about something of public interest. The second is whether there has been responsible publication—I do not say responsible journalism because this applies to everybody, not just the press—in that in newsgathering, editorial judgment and the rest of it there has been compliance with the professional standards appropriate to a newspaper or to other circumstances. That means that this is not a charter for irresponsible publication. For example, if a newspaper publishes something that is defamatory and untrue, it cannot be covered by Clause 2. If it is not just a matter of opinion, it cannot be covered by Clause 3. If it is not covered by statutory or common-law qualified privilege, it cannot be covered by that. It can be covered only by Clause 4—and it has to earn it because this is a privilege that is being given in the public interest. It is not a privilege because the newspaper or whatever should have a special right. It is a privilege because the public, through the eyes and ears on the media, are entitled to have information provided to them on matters of public interest.
This is a far better solution than the one I tried to persuade the Law Lords of when I did Reynolds, which was the New York Times v Sullivan approach in the United States. What came out of Reynolds was a compromise on the American position. The reason why the American position does not make much sense—with respect to the great court that decided New York Times v Sullivan—is that it focuses on the identity of the publisher and not the content of the publication. It asks: is the publisher a public figure? That is the wrong question. It does not matter whether the publisher is a public figure. What matters is whether it is in the public interest to publish what is in the publication. In the United States—I say this as someone who greatly admires the American legal system—not just, for example, a servant of the state but a basketball coach or a restaurant owner is defined as a public figure because they want to find a way to say rude things about restaurant owners. The beauty of Clause 4 is that we have now got rid of the checklists, we leave it to the courts which are well capable of considering matters on a case-by-case basis, and there is a generic formula. I pay great tribute to my noble friend Lord McNally, under whose leadership all this has become possible. We have had great arguments about this in the past few months and he has listened. What has been produced, thanks to Sir Brian Neill, does not need any further amendment. It is fine as it stands.
Lord Mawhinney
My Lords, the Joint Committee’s report was published 14 months ago. It is a fairly accurate account of the months of work it put in to produce that report. This is one of the instances where 14 months has assumed considerable significance. I will be truthful, as noble Lords would expect me to be, but I have not had time to go back, prior to this Committee stage, and read all the evidence that was given to us. However, my memory is that by and large we concentrated on the list because the list already existed. We listened to evidence from people who wanted to tweak the list. My recollection is that there was no discussion of a slightly more radical solution—or, if there was, it was of a passing, almost ephemeral nature. However, I do not believe that such a discussion actually happened. Given that three other members of that committee are present, they can correct me if my memory is in error.
I pay tribute to the noble and learned Lord, Lord Morris of Aberavon, who is a distinguished member of the committee. He took upon himself the role of reminding us that if we wanted a radical change of the law, we were going to create—to use his memorable phrase—“a cottage industry for the lawyers” until the new law had settled down. We paid attention to what the noble and learned Lord said. Had there been a significant discussion about a radical alternative to the list, I guess that at least some thought would have been given to whether or not we were going to generate a new cottage industry. He will recall that I was slightly more relaxed about cottage industries than perhaps he was, in part because it seems to me that any time the law is changed, lawyers and judges will always want to have a say in determining what it actually means before the whole issue moves forward.
I come back to the significance of the 14 months, because the conversation about a radical alternative to the list has emerged in that time. I am grateful to my noble friend Lord Lester of Herne Hill, who, in turn, introduced me to Sir Brian, and we spent a certain amount of time talking about whether the list was the best way to proceed or whether something more general and more dependent on the common sense and good judgment of the courts would not be a better way forward. I do not wish to unduly embarrass him, but I thank my noble friend Lord McNally also, because he and I had some conversations around this issue as it became clear to all of us that doing away with the list and having a more general statement would almost certainly be the right way forward. From looking at Amendment 23, it is clear to me that the noble Baroness, Lady Hayter of Kentish Town, was having similar conversations to those that I was having, because that amendment is a good summary of where the new thinking should be placed.
My noble friend Lord McNally concentrated on the words,
“all the circumstances of the case”,
and I have underlined them. I am not sure that I entirely buy the official interpretation of those words that his officials have given him. I am of either the old school or the new school but I am not sure which. I think that, just occasionally, it helps to have the obvious stated in a Bill for the avoidance of any misunderstanding or, indeed, any potential mischief-making. In supporting the thrust of what the noble Lord, Lord Browne, and the noble Baroness, Lady Hayter, have suggested, having the words,
“all the circumstances of the case”,
in the Bill would be a happy addition.
Perversely, that takes me to the amendment I have proposed. It emerged out of conversations that were held 14 months ago and it is an accurate reflection of one more addition to the list that emerged from our considerations. However, I am happy to acknowledge that in the intervening time my noble friend Lord McNally, and indeed the noble Lords, Lord Browne and Lord Lester, and the noble Baroness, Lady Hayter, have moved the conversation forward to a much better place. With that in mind, when the time comes, I shall not move Amendment 17.
Lord Marks of Henley-on-Thames
My Lords, I found the question of whether we should or should not have a list of factors in Clause 4 a very difficult one. In the Joint Committee I was certainly of the view—a view I expressed at Second Reading—that a list of factors would be helpful, primarily because it would enable members of the public to look at the statute on the internet to see what kind of factors might or might not be important in determining whether a publisher would be held to have acted responsibly.
I remember the arguments around this issue in Joint Committee, and my noble friend Lord Mawhinney may like to think back to them. However, I have now been persuaded that the list of factors arising out of the Reynolds case has been treated as a checklist and used by claimants and defendants alike, and by their solicitors, to put their opponents to very costly proof at the pre-action stage in a way that has tended to be oppressive and increase costs. There is a serious risk that a codified list of factors as set out in the unamended Bill would have the same effect. I now accept that a statement of general principle is the right approach, but I have reached that conclusion with some difficulty.
It is important to note that the way the test is now expressed in government Amendment 14 combines an element of subjectivity with an element of objectivity. That is really the answer to the question put by my noble friend Lord Phillips of Sudbury to my noble friend Lord McNally when he decided not to move his amendment. I am bound to say that I thought that my noble friend Lord McNally did himself an injustice in declining to answer the question because he had in fact already answered it in his opening remarks on his own amendment. The element of subjectivity is that the court will have to look at what the defendant believed, and that is a subjective test. It will then have to look at whether that belief was reasonable, and that is an objective test. That combination will enable the court to develop the law on the basis that it is an issue of fact which will necessarily take into account all the circumstances of the case. My concern is allayed by that because it seems unlikely that the case-by-case development—the cottage industry development to which the noble and learned Lord, Lord Morris, referred—will not create too much difficulty. However, it is a danger, and I hope that it is one that the courts will be careful to consider.
Amendment 15, tabled by my noble friend Lord Phillips—
Lord Phillips of Sudbury
I entirely take what my noble friend has said and agree with it. However, would it not be advisable, if only to help the general public and the lawyers? Under Amendment 14, in the name of the noble Lord, Lord McNally, the double test—the subjective and objective tests—which he outlined, could be more clearly enunciated.
Lord Marks of Henley-on-Thames
I am bound to say that I am worried about the way in which the amendment in the name of my noble friend Lord Phillips makes that suggestion. I appreciate that he does not intend to move it. It seems to me that one can do no better than require the court to look at all the circumstances of the case. As a matter of drafting, I am not entirely sure that the amendment in the names of the noble Lord, Lord Browne, and the noble Baroness, Lady Hayter, is necessary. It seems to me implicit that,
“all the circumstances of the case”,
have to be taken into account. That phrase is usually used in statute to say that all the circumstances of the case “included but not limited to”, and then it goes on to a checklist. We are not having the checklist so I am not sure that that requirement is necessary to be expressed.
My worry about the way in which my noble friend Lord Phillips—
Lord Lester of Herne Hill
I am catching a bad habit from sitting next to my noble friend Lord Phillips and interrupting but since he does not intend to move Amendment 15, is not the vice of his approach that he will seek to make the court into the editor?
The Deputy Chairman of Committees
Before we go on, perhaps I should remind the Grand Committee that we are discussing an amendment to a government amendment in the name of the noble Lord, Lord Phillips of Sudbury. It was called and therefore it will need to be withdrawn. Since it is in the same group, it does not particularly matter for the purposes of the debate. But that is the position.
Lord Phillips of Sudbury
If it will assist the House, I will withdraw it post haste.
Lord Marks of Henley-on-Thames
I would rather that my noble friend Lord Phillips did not withdraw it. I was about to address it in terms that agree precisely with the interruption helpfully made by my noble friend Lord Lester but at a little more length. It seems to me that the amendment in the name of my noble friend Lord Phillips invites the judge to enter into a critique of the position of the defendant and, in using the words “manner, balance and content”, one is requiring the court to decide on whether the defendant should have written what he has written. That seems to me to be inimical to freedom of speech and to go very much against what this defence is trying to do. The importance of the defence is that it is a liberalising defence. It seems to me that that would narrow it in an unacceptable way.
Finally, I turn to Amendment 22, which, rather unfairly, I will comment on before the noble Lord, Lord May, has spoken to it. The question is whether the words used should be “editorial” judgment or “the publisher’s” judgment. It may be that one could argue for the use of both phrases but it seems to me that we need these concepts to go wider than simply editorial judgment. We live in a world where many of the statements to which this defence will be referable will never go anywhere near an editor: they will be published on the internet by individuals and will not bring editorial judgment to bear. It seems to me that the beauty of the amendment in the name of the noble Lord, Lord May, or something very like it, is that it allows for a publication with a much wider ambit than the government amendment. However, by and large, I support the government amendment wholeheartedly.
Lord Mawhinney
May I offer my noble friend a personal apology? I said that there were three distinguished members of the committee here present. I will be honest with my noble friend and say that my eyes saw him but my brain did not register the fact. Of course, there are four distinguished members present. I want to correct the record and, in so doing, express my appreciation for his contribution to the committee.
My noble friend invited me to reflect back on our conversations about the list. I well remember conversations about whether the list would become a tick-box exercise and the damaging impact that that would have on courts having to make decisions so that every item was covered. However, I do not remember any conversations about a radical alternative to the tick-box approach. I hope that he will accept that that is my best memory of the conversations that we had.
Lord Marks of Henley-on-Thames
My Lords, of course I accept that. I would like to say that I am grateful for the apology, but I am not sure that I am. I had worked out that there were four of us and I had not worked out who was left out, but now I know that it was me. It matters not, perhaps, what the conversations were, as I think that I have made the point.
Lord May of Oxford
My Lords, I wish to speak to Amendment 22 but in a broader context, as I believe that it relates directly to some of what many people feel to be the unsatisfactory elements of the Bill in its present form and Clause 4 in particular. In saying that, I express my appreciation of the noble Lord, Lord McNally, and the Government generally for helpfully moving things forward in response to earlier worries. I much appreciated the noble Lord’s comments, particularly in connection with Clause 4.
The Government’s proposed amendment to Clause 4 is a big improvement. The proposal significantly to modify Clause 4, which in its original form was largely an unhelpful codification of existing law, has been widely welcomed by those campaigning for a public interest defence—some 60,000 people have been involved one way or another. They and many of those involved in the awful cases that have given rise to the broad campaign for reform have been unable effectively to use a defence that was designed for newspapers. It is too complex and usually hugely expensive. It is certainly not suited to what medical specialists say at a conference, to reports on consumer issues or to reports on human rights.
Given that the Government appear to have recognised this fundamental point, I believe that they should clarify things further by changing the wording of Amendment 21. It says:
“In determining whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest, the court must make such allowance for editorial judgement as it considers appropriate”.
The phrase “editorial judgement” has the subtext of newspapers. That covers much of the matter, although not necessarily legalistically. It would be much clearer if it said, “such allowance for the publisher’s judgement as it considers appropriate”. I notice that, despite the many sensitive comments that the noble Lord, Lord McNally, has made, he was not minded to accept this amendment, but I will persist with it.
I want to go little more widely. This amendment addresses part of a more general problem, in that the Bill still seems to many readers to focus on newspapers, editors and corporations. We need to recognise that the central need that has provoked the entire issue of the revision of the Bill is for a well drafted protection of individuals acting in the public interest. It needs to correct the current internationally notorious and embarrassing situation which is being abused by those with deep pockets who travel to the UK with the specific aim of using our existing legislation and its whacking great costs to prevent individuals speaking out on issues of public interest, particularly in biomedical and other scientific contexts. I realise fully that this is only part of a larger problem.
Lord Lester of Herne Hill
I am grateful to the noble Lord. I am sorry, but Clause 4 in its present form and in its amended form could not be clearer. It does not apply only to newspapers and the media as it refers to:
“Responsible publication … for the defendant to show”.
That applies to me, to an NGO and to anyone at all. Criticisms of the law of libel in general are a different matter. On this specific point, I do not know who these people are who think that it does not apply to anyone but the media, but they are mistaken unless they cannot take the opportunity of reading the words themselves.
Lord May of Oxford
I realise that the situation is more complicated than I may have portrayed it. One of the more fascinating and charming things I have learnt in the course of these procedures is that if one is a member of the legal profession, one is not merely a noble Lord, but a noble and learned Lord. As an unlearned Lord, it does not seem that the bulk of the discussion has focused on what I understand to have been the moving issue here in the first place. In large part, it is a response to the Libel Reform Campaign which involves almost 100 organisations and, as I said a moment ago, some 60,000 supporters, including leading names from the sciences, the arts and public life. They have been calling for legislation to reform the libel laws since December 2009. The committee took that on board. I am not familiar with the committee because I was not a part of it, but it seems to have addressed the issue by and large in a sensible way and it has brought forward the Bill before us.
The Bill contains many welcome proposals—the single publication rule and some measures to reduce libel tourism, which is rarely referred to—but what it does not contain are measures to limit corporations’ use of the law in what I think are dodgy ways, or clear provisions for online hosts and intermediaries because it still assumes that publication means print rather than online. Until it provides a strong public interest offence, scientists, human rights groups, NGOs, consumer groups, authors and doctors will continue to be silenced by a piece of legal machinery that we should be more embarrassed about than we seem to be.
Lord Lester of Herne Hill
I am sorry, but if the Libel Reform Campaign has been briefing in that way, it is completely wrong, and it is time that it realised that it is completely wrong. As I have said before, the whole purpose of this defence is to protect NGOs, consumers and individuals, not only the media. So far as I am aware, the Libel Reform Campaign has not come up with anything better than the amendments to Clause 4, and I have been waiting for it to do so. Since I began to prepare my Bill, for a year I made quite sure that all the NGOs met me every month or so in order to reach a high common factor of agreement. The Libel Reform Campaign did a great job of publicising the need for reform but, with respect, it is not good enough for the campaign to make a root and branch statement of that kind without giving proper credit to all the ways in which this Bill dramatically and importantly reforms the law and creates a better balance between free speech and reputation. I have to say all of this because sometimes even NGOs need to be accountable.
Viscount Colville of Culross
I declare an interest as a journalist, producer and director at the BBC. I support Amendments 14, 16 and 21. In my Second Reading speech, I expressed concern about the chilling effects on free speech through the use of all 10 factors in the Reynolds defence as a checklist by lawyers trying to affect investigations both prior to publication and in destroying the public interest defence statement once something has been published.
In the letter sent to all Peers on 10 December, the Minister said that he was honouring his commitment given at the conclusion of Second Reading to look again at Clause 4. In the intervening period he has worked with the noble Lord, Lord Lester, and other distinguished libel lawyers to formulate a new wording for the clause. The wording they came up with to amend Clause 4 is very satisfactory and addresses my concerns.
Any amendment must not be a charter for reckless statements that hide behind the shield of a public interest defence. Amendment 14 contains the crucial words, “the defendant reasonably believed”, which replace, “acted responsibly”. Amendment 16 would drop the list of factors altogether. Some supporters of free speech fear that the words “reasonably believed” will allow the courts to work up yet another list of factors that can be used as criteria for what is reasonable. However, the amendment will allow serious journalists, NGOs and scientists who are reporting on matters that they consider to be in the public interest to use their own checklist of what is reasonable. I talked to my colleagues at the BBC who were preparing Monday’s “Panorama” programme on the Barclay brothers’ tax affairs, which had been months in preparation. They had dealt with multiple firms to get the programme on air. This would have been extremely helpful to them by bringing a very important public interest defence to a debate about tax avoidance by people who are extremely important in the affairs of our country. I am very grateful that the amendment has been brought forward.
As a journalist I do everything I can to check the veracity of claims that I intend to publish; to question at length the witnesses; to check out by any other means the truth of witnesses’ evidence; to find other supporting witnesses where possible; and to ask an individual, or an authoritative representative of an organisation being investigated, to reply. But sometimes, despite one’s best efforts, it is not possible to get a satisfactory reply from a person or an organisation being investigated. Very often that means one cannot publish. However, I am convinced that with this amendment I would be safeguarded by the Clause 4 defence when publishing a statement that would be in the public interest. I am very reassured by that.
I welcome Amendment 21, which further strengthens the hand of the author by making allowance for editorial judgment. It includes the words, “considers appropriate”, to ensure that the amendment is never used just for reckless statements. Not only will the amendment comply with the Flood decision that editorial judgment should be taken into account, but the many people who are worried by the quality of editorial judgments revealed in the report of Lord Justice Leveson will be reassured that the courts will have the final say on the nature of editorial judgments exercised in the publication of an article or statement. For far too long, responsible authors who want to publish in the public interest have been cowed by our libel laws. The people of this country have a right to be presented with matters of public interest so that they can have at least an informed choice in a debate on the subject. The amendments to Clause 4 tabled by the Government will boost democracy and accountability in this country. They are a great step forward.
Baroness Bakewell
My Lords, I had not intended to speak but I am one of the campaigners, and one of the signatories to many appeals, for the reform of the libel laws. I am a journalist and I am at risk. I am at risk every day I write or report for the BBC or anyone else. I regard myself as the focus of Clause 4 and how it might affect my livelihood, my reputation and the cases which I report when I make a programme. I know that the noble Lord, Lord Phillips, will not press his amendment, but I was alarmed when he spoke about the defendant acting,
“fairly as to the manner, balance and content,
of the statement that they make. Each of those words is a millstone around the neck of a journalist, who of course will seek to please his employer but also to be fair to the public. Each one of those words can be interpreted in so many ways that I foresee—following what we heard—conversations going on for months in the “Panorama” office about each of them.
That is why I appreciate and commend the Bill and Amendment 14, which leaves things clear and lets us know where we stand. Amendment 21 provides for responsibility and allows for the discussion covered by Amendment 23, which states:
“In determining whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest, the court must have regard to all the circumstances of the case”.
Those are going to be innumerable and may move in many directions, but they are what journalists want to see because it makes them both responsible and true professionals. I support the amendment.
Lord Bew
My Lords, I support government Amendment 14. The recollection of the noble Lord, Lord Mawhinney, of the committee’s discussion of this matter is entirely fair, in that this discussion has moved on over the 14-month period. However, as the noble Lord, Lord Marks, said, we discussed at various times our view of the checklist approach, as was embodied in the Reynolds defence which will now be abolished. We heard quite a lot of evidence that it was not working particularly well, but it was not radically unworkable. On balance, it has not been working well enough. There were real issues with the ways in which certain newspapers were working or not working with it. I accept completely that, in the main, the discussion has moved on over the past 14 months, and the evidence was clear that it is not working well enough. I balk slightly at the idea that it was absolutely unworkable.
I think that we are doing the right thing. I am grateful to the noble Lord, Lord Lester. It is not his wording, but we all know how much work he and the noble Lord, Lord McNally, have put in on the rather neat formulation before us today.
I am slightly surprised that an unintended implication of what we are doing has not been picked up on thus far. Listening to the debate in the other place on the Leveson inquiry, much reference was made to the Irish model. Indeed, some Members of the other place obviously thought that there was a great similarity between the Irish model and what Lord Justice Leveson is recommending. There is one respect, at the heart of what we are doing today with Clause 4, in which it is quite important to note that that is not so. It appears to be the opinion of all parties in both Houses that we need this public interest defence. It is not part of a transaction. The Prime Minister recommended that Members of both Houses read the Irish Defamation Act 2009. There is an implicit transaction in Section 26 of that Act: the newspapers agree to regulation because, by that means, they are more likely to be able to offer a defence of this sort of public interest defence.
It is apparently the forming view of Parliament that this is not a matter of a transaction. The noble Lord, Lord Lester, referred very eloquently earlier to the fact that the public interest defence ought to be available. There is no transaction there at all. We are doing the right thing, but I simply make this comment because people are talking a little too easily about transferring the Irish model into our affairs. The Irish model is constructed on a different principle, and we are going ahead on a different basis.
Lord Triesman
My Lords, I join noble Lords who have thanked the noble Lord, Lord McNally, for the way in which he has approached this and the kind of solution that may now be very close to fulfilment. To be candid, it is not a position that I thought likely to be one of the outcomes, but I can see a great deal of the sense of it. I can also see that it fulfils part of his aim that there should be greater clarity for people who need to use this law; that there be a better, more effective law; and that we should not end this process with the same lack of reputation in this general field from which we have perhaps suffered in the past.
I will draw several arguments about the heart of the Bill together in a moment. I understand the strength of the proposition that if judges are to decide, in the ways that they are capable of deciding, that would be better than providing an extensive checklist.
In his opening statement, the noble Lord, Lord McNally, said that he believed that the courts and the judges would have a mind to these kinds of things as they formulated their views. That is fine up to a point. The point where I think it needs a little more testing is that it would be helpful if, when the law is on the statute book, there was a sense both of what Parliament believed were critical issues and of what the Government had said in their responses were critical issues. This is not just a matter of what the legal opinions are; views are now widespread among the public of the United Kingdom about what it is or is not legitimate to do.
Let me turn directly to Amendment 14. A short while ago, the noble Lord, Lord Phillips of Sudbury, said that there may be a clearer enunciation of at least one part of it. I do not think that he was talking specifically about his amendment; I think that he was making a general proposition about clearer enunciation. Indeed, I do not know whether his amendment is now a matter of fact or opinion, as it may or may not have been withdrawn.
Let me look at the two words “public interest”. When somebody uses those words to me, I understand them to mean that there is an entitlement by the public to learn of matters that are of the public interest in a broad sense—knowledge of policy practice and the debates on all those matters, what might be wrongdoing, malpractice or malfeasance, many aspects of social and cultural life, scientific knowledge and other scholarly knowledge. There is probably a long list and my point is not to produce a checklist. That is what I broadly understand “public interest” to mean.
What has also become entirely clear over many years is that many of the editors of newspapers—and this was also clear in the evidence that they provided to Lord Justice Leveson—do not think that that is the whole of what is meant by “public interest”. They have a fundamentally different view of what public interest is. I am not thinking of the things that Lord Justice Leveson and others have said were criminal intrusions into the privacy of individuals. Those are covered by criminal law, which is more or less adequate, although that, too, is probably a matter of debate.
My point is that common practices in parts of the press and parts of the culture of the press mean that there is a view of what is in the public interest and that it means whatever those editors believe might interest the public, whatever it is. Consequently, they can libellously or otherwise intrude into aspects of private life—as I said, I am not going into the criminality of the means by which they obtain the information—so that, for example, if they have discovered by one route or another that someone has a medical condition that they are discussing with their mum, that becomes a matter of public interest in the sense that the public in a prurient way may be interested and that it will unquestionably sell more copies of a newspaper if it is in that newspaper. That is entirely unreasonable. In some cases, of course, that may just be a matter of intrusion of privacy, but it is clear that on occasions it could have a defamatory effect on the person who is being written about.
I am not in any sense content to believe that the simple words “public interest” will convey to Paul Dacre that he is not, as he seems to believe, the ultimate arbiter of anything and everything that we should consider to be in the public domain. That should not be the last word on this and we should not allow it to be. That applies, too, to the former News of the World journalists. I say to the noble Viscount, Lord Colville—
Lord Lester of Herne Hill
I wonder whether it is any comfort to the noble Lord, Lord Triesman, to know that the courts have made it quite clear that there is a significant difference between what is of interest to the public and what is in the public interest. The two are not the same.
Lord Triesman
My Lords, I am very grateful for the intervention because it will cut out my saying a great deal more. However, it would be helpful, in the same spirit as the noble Lord, Lord Phillips, intended when he said greater enunciation might be sensible, for the legislation that we are looking at to somehow indicate what that distinction is, so that somebody who does not study law as a matter of practice can pick it up, read it and understand exactly what is meant by it. I am very grateful for the intervention because that is precisely the point that I wanted to make.
Finally, I will say something about the list that is about to be removed. It goes back to the point that I was trying to make about Parliament and the Government giving at least some indication of the things that might concern them. I was intrigued by—and at one stage convinced of the importance of having in subsections (2)(d) and (2)(e)—the words that appear there. Even if the words do not finally appear in the Bill, it should be understood, under subsection (2)(e), that when somebody publishes information, the reliability of the information is capable of being subjected to some real test. I do not know whether that is another point that the argument of the noble Lord, Lord Lester, may have in part answered. However, what seems to be true is that there are often few demonstrations of the sanity or motives of those who have provided information that simply gets reproduced and, on occasions, is not withdrawn. I say to my noble friend Lady Bakewell and to the noble Viscount, Lord Colville, that not every journalist uses the standards that I am pleased to acknowledge that they plainly do. Not every journalist does that by a long chalk.
In those cases, knowing about the credibility of the information seems important. It is something that one would want Parliament to have expressed, even if it does not appear as a list in the Bill. Equally, in subsection (2)(f), although I am conscious that bad experiences should not be promoted into the making of law, it seems important that people about whom things are to be written should have at least some knowledge of them or some opportunity to say something about them before the event happens. If those were the ways in which interpretation of the law by judges were achieved, that would amount to great progress here. I conclude by stating that if judges do that, and if lawyers put arguments to the judges, my anxiety—which I guess I will just have to live with—is that we will not be talking about a cottage industry but rather a major multinational for the time being.
Lord Lloyd of Berwick
To correct the record, the noble Lord, Lord Lester, referred to Sir Brian Neill and the huge contribution that he made to this part of the law, but he did say that he was in hospital. I am happy to tell the Committee that he is now back home and will no doubt be following this debate with the greatest interest, either in Hansard or possibly—he is sufficiently technically minded—on television.
Lord Lucas
My Lords, my noble friend in his speech, and my other noble friend subsequently, convinced me that my Amendment 16A was misguided, so I shall not pursue it. However, I will ask my noble friend how he thinks his Amendment 14, and in particular the words “reasonably believed”, will apply to Twitter. It is a common function of Twitter that one passes on interesting news, sometimes with an added comment of one’s own, attributing it to a source generally rather than appropriating it for oneself. Would one be expected, under this amendment, to pursue inquiries as to whether one believed the source, or the particular information; or will it be sufficient to reasonably believe that the place you got it from is likely to be reliable?
Lord Browne of Ladyton
My Lords, first, I join those who have expressed their gratitude to the Minister, the noble Lord, Lord McNally, for not only his approach to engagement but his willingness to listen and persuade the Government that perhaps the draft Bill that was presented to us did not meet the challenge—certainly in this respect—that the Government had set themselves. In fact, I am simply grateful for his willingness to change what was before us. That is reflected in these amendments and in another amendment that we will come to in the next group. I have personally been grateful to him, as has my noble friend Lady Hayter, for his engagement and his willingness to listen, and I add to the thanks given to Sir Brian Neill, who I do not know but who clearly has made a significant contribution to improving the Bill. I also thank the noble Lord, Lord Lester of Herne Hill, for his work, and the Joint Committee. However many of its members are present—a protean number—it has done us a valuable service.
I should also thank my honourable friends Robert Flello, Helen Goodman and others in the House of Commons who engaged with this in some detail, of necessity because of the then apparent reluctance of the Government to shift on the issue. They debated many matters that we now do not have to debate with some intensity over many hours. It is to be regretted that throughout those debates the Minister at the time appeared unwilling to shift. Behind them there is a broad coalition of people who have campaigned on these issues for a significant period, and who have been represented properly here, who are too numerous in their different forms to mention.
It is probably inevitable that we will disappoint some of their best expectations of the law. There are people out there who still believe that there should be an additional public interest defence that is based on an obligation on the claimant to show malice on the part of those who publish. However, it would appear that that has not found support in your Lordships’ House and come before the Committee. The issue has not gone away and it may come back. At some stage, we will have collectively to come to the point whereby we have made the best of this legislation. We should not make the very best become the enemy of the good.
Secondly, I will make an observation that will not be lost on everyone in this Room, although it may be lost on some noble Lords. I say this with great respect to many of my friends in this Room, but it is interesting to see the chilling effect on other people that my profession can have when debating these complex and difficult issues. I am doing my best in my contributions to try not to add to the chilling effect that lawyers can have on others when they start to engage in the technicalities and obscure corners of these discussions. I constantly keep in front of me in the Bill the objective of trying to find a clear and accessible statement of the law of defamation for England—and partly for Scotland, which I shall deal with in a moment, because there are provisions in the Bill that apply to Scotland and need to be accepted through a process in the Scottish Parliament known as a Sewel Motion.
Despite the fact that the ultimate test of everything that we do here is, “How will this be applied in courts, what can we rely upon judges to do, how can people make arguments, what implications does this word have, what can we assume that that will do?”, at the end of the day people will make decisions in relation to the law of defamation well before there is any engagement with a court. There is overwhelming evidence, particularly in the world of learned—I do not use that word in the legal sense—and informed opinion, that fear of our defamation law is having a substantial and chilling effect on people, not because they do not think that at the end of the day they will be able to persuade a judge that this was a reasonable position to hold or that these facts alone are able to be proved in every jot as defensible, but because, by and large, their observation of the way in which our law works suggests to them that this is too dangerous a business to get involved in, and they would prefer to get on with their science or some other area of their life rather than devote the next two or three years to protecting the position that they justifiably hold and which they would like to get out there for discussion in the public domain.
In any event, I do not have experience of these great cases because I have not contributed to any of the ones that have got the law into this state. I try to avoid approaching that on this basis, and I will make my contribution to the debate on this group of amendments on that basis because I have an amendment that, yet again, appears to come into conflict with the way in which we pass law, with what is necessary and all the rest of it. I want that amendment to be tested against a different standard in these circumstances, for some of the reasons that I have articulated. For those reasons, I am extremely grateful that we have had the benefit of views that may not have been appropriately in point on the amendment before us but which, for people who are not lawyers, set the scene for the reality of the world in which we live. I am delighted that my noble friend Lady Hayter agreed to take responsibility for Clause 5 and everything associated with new media. I say to the noble Lord, Lord Lucas, that I will leave it to my noble friend to have a view on whether Twitter and retweeting, which I think is the appropriate active verb, is publication and whether it attracts the responsibilities that are necessitated by this part of the legislation.
I have no doubt that many questions will not be able to be answered, particularly in an environment that is changing as we speak. A later amendment seeks to get some clarity on the word “website”, simply on the basis that no one knows what will be a website, or the equivalent of it, in five years’ time. Yet the word is put here although it may not be litigated on, from the point of view of a definition, for another three or four years. However, this communication world, with which most of us have a passing relationship but are not intimately involved, is changing significantly. We should bear that in mind.
I think that by common consent Clause 4 is at the heart of the Bill and, quite rightly, has attracted the most attention. As the noble Lord, Lord Lester of Herne Hill, made clear, it is only part of a suite of defences. It is the most contentious and the most difficult. Effectively, it provides protection for defendants in circumstances where the publication of defamatory material, which is not necessarily true but is in the public interest, can be defended against an allegation of defamation if the publisher, in the previous wording, “acted responsibly”. However, those words are now to be amended to put a slightly different test, which probably would be an easier test for people to understand. However, we are still talking about the same combination of dual factors.
The question is whether this clause, imperfect as it almost certainly is, better meets the requirement. I think that, unanimously, we are of the view that it does. The principal reason is that it reflects better the decision in the case of Flood. It happened after the first drafting took place and, although it is a rather substantial judgment in terms of reading for someone who is not used to reading judgments, essentially it says that one should apply these two tests and that almost any circumstance that is relevant to the issue can be used to prove that the publication was in the public interest.
As one would expect, lawyers take a long time to say that, but I do the judgment no disservice if I say that that is what it says. When I first read the case I was extremely attracted by that approach. I was reinforced in my view by consistent exposure to groups of people who had had a bad experience with the existing law. This was not because they said to me that when they got to the proof or argument of a case they found judges unwilling to listen to their arguments as a whole; rather they said that they were scared to publish because when they go for advice people produce this list and if they cannot tick all the boxes in the list then the advisers say: “You may publish, but our advice would be not to because you will not be able to meet the necessary defence in these circumstances”. That is not a set of circumstances that we should allow to persist and there is no contributor to this debate who thinks that we should.
Either we try to list those factors that are relevant, leaving room for other people to add to them because of the changing world we live in, or we get rid of them altogether. The Minister argues, probably rightly in law, that if we get rid of them altogether it implies that all relevant circumstances have to be considered. The problem is that, whether or not we generate further energy for the cottage industry of lawyers arguing what is relevant to prove public interest, we may find that the courts are persuaded back towards illustrative lists in judgments which then become frozen again as being what the comparatively small number of English judges who do this work will be persuaded by. That is the reason for Amendment 23.
Of course it is unnecessary in one sense. I noted that the Minister three times used the phrase “in all the circumstances of the case”, yet those words are absent from the clause itself. On these Benches we argue that they should be included, not because we think judges or lawyers will not appreciate that that is what they are entitled to look to in order to prove that something is—or somebody reasonably believed it to be—in the public interest, but because, against the history of how we got to this stage, it is worth Parliament saying that, in changing the law, we are moving away from a checklist approach. So far, we are saying that there is no limit to the circumstances or the factors that you can bring to make your argument that something was—or you reasonably believed it was—in the public interest. We want to make that clear to everyone.
We would put this in the Bill not because anybody has cleverly suggested to us that, without it, judges would not allow us to do that. However, when you are making decisions about publishing anything, in any circumstances, you ought to know that, whatever the factors are, if you hold opinions reasonably and if they go towards the public interest, any attack that is made on you to the effect that you were not justified in publishing them will be irrelevant. I suspect, because I have stood in the position of the Minister at another Dispatch Box, that the Government will resist that. I suspect that lawyers, too, will resist it. However, my suspicion is that all the non-lawyers in the Room, and the people out there who have lived in the environment where they have been forced to engage with lists of things, would welcome it. They would think that Parliament had got it and was giving them a degree of freedom that they had not had before. I urge the Committee, and ask the Government, to consider that this, although not a necessary thing to do, would be an important thing to do.
Lord Lester of Herne Hill
Would it not be in favour of the amendment to look back at what Clause 4(2) looks like? In subsection (2), it says that the court may,
“have regard … (amongst other matters)”.
That goes, because of the way in which the amendments operate. Is the noble Lord saying more than, “The concept that the Government accept in the unamended subsection should somehow be reflected in the amended one”? It seems that what is being said represents the Government’s own view, as expressed in the unamended Bill, that the court may,
“have regard … (amongst other matters)”.
What is being said now is that that must be reflected in new wording. It therefore seems that the noble Lord may be too pessimistic in assuming that what he is proposing would not be accepted by the Government; I have no idea.
Lord Browne of Ladyton
I am grateful to the noble Lord for his intervention. Unlike a previous intervention that he made—which I thought had the distinct shape of a lifeboat being offered to someone who refused it—I am not going to reject his offer to keep my head above water. The oxygen of an intervention can quite often be helpful.
I am of course willing to discuss the mechanism for this further. I am conscious enough of the necessity sometimes not to insist on the form of words that I alight upon, allowing room for some manoeuvre. I would just make the argument on behalf of our Benches that it would be helpful to the general direction of the Bill, and on the effect that it will have on people’s behaviour, if we send a strong message in this clause that we are moving so far away from this checklist that we are prepared to countenance any relevant circumstances as being important to whether something is in the public interest or whether they reasonably believed it to be so. I am pleased that the Minister has used this form of words himself on more than one occasion, particularly when he was explaining the expectation of what the courts would do in applying this particular test.
I turn to the only other amendment apart from the Government’s three amendments, which I support. It has survived the contributions of those in whose names the amendments appeared under in the Marshalled List. It seeks to replace editorial judgment with the publisher’s judgment. I entirely understand, from the point of view of those at the sharp end, why they do not want to be hemmed in by something that is too closely associated with only one form of media. They are looking for a generic term that covers all the forms of publishing that now exist. Everyone involved in those forms now has responsibility for putting information into the public domain. I respect entirely the argument of the noble Lord, Lord May, on this.
I noted that in the Minister’s introductory remarks—I hope that he will find a few moments to reinforce this—he referred to the phrase “editorial discretion” as intending to give latitude to the judgment of how a story should be presented. From that I took the view that “editorial” is an adjective relating to an action rather than a job description. I think that it already covers all the different kinds of people who are, in legal terms, “publishers”. If that can be made crystal clear in an easily accessible way, the concerns that were properly expressed by those who think that perhaps this is too newspaper-oriented in its terminology can be dealt with.
I am grateful for the contributions of all noble Lords, and I hope that they will forgive me if I do not mention them individually. They have substantially enriched our debate, even if only two supported the amendment in my name and that of my noble friend. I am grateful in particular for the support of the noble Lord, Lord Mawhinney, because he comes at this with a view that is born out of his intense relationship with the issue over a concentrated period as chair of the Joint Committee. He speaks with authority, so when I get support from that quarter, I value it. The same gratitude applies to my noble friend Lady Bakewell for her support. She speaks for many people who have to make these decisions without constantly having lawyers by their side, and sometimes in comparatively difficult circumstances. I am grateful to her for saying that my amendment would be of assistance to them.
I have little to add and I will not go into the detail, but on the point made by my noble friend about the definition of “public interest”, I would draw the attention of the Committee to the Guidelines for Prosecutors on Assessing the Public Interest in Cases Affecting the Media, which is published by the Director of Public Prosecutions. Paragraph 31 on page 9 gives a set of examples of conduct that is capable of serving the public interest. It is designed to instruct prosecutors on how they should approach decisions that affect the media, particularly on the question of whether a prosecution is required in the public interest. These considerations are helpful because they clearly show the distinction between what the public are interested in and what is in the public interest. At some stage when we come to consider guidelines or government expressions of what they think they have achieved with this legislation, drawing on that sort of information will be helpful when addressing the issue identified by my noble friend Lord Triesman. It is a serious and important point in the challenge of finding a balance.
Lord Lester of Herne Hill
Not only do I agree but I wonder whether the following might meet that need. The Explanatory Notes on the Equality Act are the best example that I have ever seen. They are particularly good because they give illustrative examples of the application of particular clauses. As I understand it, it is now good practice when a Bill has completed its stages for the Explanatory Notes to be revised in the light of the debates, so that the courts and public have an authoritative guide. The Explanatory Notes to this Bill are accurate but not in any way verbose; they are sufficient to provide that kind of guidance. It might be worth thinking about ways of including such examples in the Explanatory Notes. I know that they are not the kind of things that normally one reads on the train, but it might be one way of encouraging public understanding. I am sorry to have interrupted the noble Lord, but it occurred to me that that might be a way forward.
Lord Browne of Ladyton
I am very pleased to have given the noble Lord an opportunity to make a very good and common-sense suggestion that I am sure the Government will take on board. They have taken on board quite a lot of what he has suggested in relation to this particular area of the law. In general, I agree that Explanatory Notes should not be set in stone at the point of publication of a Bill and not revisited, because Bills are often changed substantially during their passage through Parliament. It would be helpful to have revised Explanatory Notes. I agree with the noble Lord that sometimes the Explanatory Notes do not take one very much further forward than the Bill itself. This Bill has been significantly changed and the notes could do with some revision.
I will just point out that as a Scottish lawyer there is no conceit on my part about the state of Scots law. Clauses 6, 7, 15, 16 and 17 of the Bill extend to Scotland. When we reach a discussion of something that is directly relevant to Scotland, I will express my regret that there does not seem to be any parallel movement on the part of the Scottish Government to find time in their Parliament to bring the law up to the improved state that it will be in down here when the Bill becomes law.
Lord Brown of Eaton-under-Heywood
My Lords, I come very late to this legislation, having devoted myself over recent years merely to deciding defamatory cases. I am enormously glad that the House is proposing to simplify and clarify the law and, in that respect, to raise the bar. However, noble Lords should recognise—as assuredly the courts will recognise, if and when they come to apply the clause—that it is implicit that the defence will apply even when it is assumed that the defamatory statement is wholly untrue, even when there is no possibility of it attracting the Clause 3 defence of honest opinion, and even when assuming that it is not privileged. Amendment 14 to Clause 4(1)(b) inserts a defence that,
“the defendant reasonably believed that publishing the statement complained of was in the public interest”,
notwithstanding that it was untrue, not the subject of honest opinion, and unprivileged.
I support Amendment 14, although not Amendment 23, because I value freedom of expression and freedom of speech so highly as to justify, on occasion, the destruction of an individual’s reputation without his having any opportunity whatever to vindicate himself. Noble Lords should recognise that that is the price exacted for the provision of a defence in the interest of freedom of speech.
There can be no question that in applying such a clause the court is bound to have regard to all the circumstances. Time and again it has been made perfectly plain that the Reynolds list is non-exhaustive. The noble and learned Lord, Lord Nicholls, said so, and in the recent Flood case in the Supreme Court, in which I was involved, not only did we say that in terms, but we brought into account various factors and considerations that did not feature in the Reynolds list.
Lord McNally
My Lords, my first thought is about the wish that Sir Brian Neill, having just been released from hospital, should follow closely our proceedings. If you are, Sir Brian, please switch off. It is not conducive to recuperation.
I said at the beginning that this clause is at the very heart of the Bill and the contributions have been extremely useful. Since noble Lords have been dishing compliments around, I am very grateful to the noble Lord, Lord Browne, for the attitude that he and the noble Baroness, Lady Hayter, have taken. Of course, in our system, the job of the Opposition is to oppose, and we understand that. However, I think that the more we can produce a Bill that is the result of all-party work and contributions, the better we get something that sticks. This is not an area for party games. When there is a campaign such as the Libel Reform Campaign, it is sometimes tempting for opposition parties simply to espouse the campaign and go down to the last with them. I appreciate where the noble Lord, Lord Browne, has been willing to tell the campaign that it cannot deliver. As we keep on saying, we are trying to get a balance between the right to free speech and the proper protection of reputation. If I can send a message to the Libel Reform Campaign, it is not to indulge in an exercise in impossibilism. We are trying to get this right. As the noble Lord, Lord Browne, and others who have had these responsibilities know, for every concession I make and every amendment that is carried, I have to write to Cabinet colleagues, not all of whom are as enthusiastic about reform as perhaps I am. That is the nature of things, and the way that this Committee is approaching it is helpful in that respect.
As to the amendment in the name of the noble Lord, Lord Browne, the noble and learned Lord, Lord Brown, has just said that he does not support it. I fear that that is part of the dilemma. However, I will think about it. As a layman, I tend towards thinking that there is nothing intrinsically wrong in writing the bleeding obvious into a Bill. I understand when people say, “Well, it’s covered in another Bill or elsewhere in this Bill et cetera”, but it is reassuring if the public can read very simply what we intend.
The noble Lord, Lord Browne, made the point that within the Bill there are a suite of defences. It is also worth reminding ourselves—the noble and learned Lord, Lord Brown of Eaton-under-Heywood, has just reminded us of it very clearly—that in the end we will be subject to interpretation by judges. We had a short debate yesterday about it, and that is what the separation of powers is all about. Of course this will be tested, and that is the challenge to the work we do. We will have a look at the phrase, “all the circumstances”. We have quite a long time until we meet again, and perhaps we can have some further talks about it.
Lord Mawhinney
Before my noble friend leaves this point, who are the Cabinet Ministers who fail the McNally test of enthusiasm?
Lord McNally
I will publish them on the MoJ website. Even better, I will tweet them. No, I will not. Now I am trying to run through in my head who they are.
It is interesting that the recently departed Solicitor-General, who was and is a practising libel lawyer, thought that this was entirely irrelevant, unneeded and so on, and argued very strongly against it. He felt strongly about it, although that is not the reason why he is now an ex-Solicitor-General.
Lord May of Oxford
Would the Minister’s decision have been difficult if a huge sum of money had hinged upon it?
Lord McNally
I was just going to pay the noble Lord, Lord May, a compliment. When he spoke about the fact that some of our colleagues are noble and learned, I was thinking that that goes with the rations, whereas I think that he is extremely learned, and that goes with reputation. I am not sure who he was thinking would take such a sum of money.
Lord May of Oxford
It is a question of solving the Simon Singh problem. However well we draft the legislation, if the hurdle is not high enough to justify—
Lord McNally
This is interesting. There is a suite of protections in this legislation, and I want to test it. I have had Simon Singh say to me, “Oh, this wouldn’t have protected me”. First, I have been here long enough to realise that you cannot draft law for one particular case, nor can you deal with particular circumstances that may have ratcheted up. However, what I want to do, and I mean this absolutely sincerely—I look particularly at the noble Lords, Lord May and Lord Bew—is to be able to meet senior academics and scientists and for them to say, “Yes, this does help”. This is the process that we are going through now. I hope that what the noble Lord, Lord Brown, referred to as the suite of protections that are built into the Bill will give a lot more protection to what we are doing.
To clarify the editorial matter, editorial discretion is not just about editors. The courts have used the term to refer to matters of judgment about how a story is presented, its tone and its timing. The courts recognise that there may be legitimately different views about this and that some allowances may be necessary but we do not think that publishers’ discretion is any clearer. Under the Government’s amendment, the courts will already need to look at the reasonable belief of the publisher. The reason we also proposed amendments referring to “editorial judgment” was to put this in the Bill to respond to concerns that we were not sufficiently reflecting Flood. It is better to use the language of Flood. At the same time, I can assure the Committee of our view that the term “editorial” is not limited to editors or newspapers. It is a more flexible term that leaves it open to the court to develop as necessary.
The noble Lord, Lord Phillips, wanted a clarification of “reasonable belief”. That phrase brings out more clearly the subjective element of what the defendant believed at the time, while retaining the objective element of whether the belief was a reasonable one to hold. I hope that that clarifies the matter; I shall read through it a few times myself over Christmas.
However, let us also be clear. The noble Lord, Lord Browne, referred to us introducing a liberalising defence, and the noble and learned Lord, Lord Brown, made this point. Yes, we are lifting the bar or moving the goal posts, as the noble and learned Lord, Lord Brown, helpfully explained as regards his thinking in the Flood judgment. There is a lot of talk about attempts to shackle the press; a lot of it is misguided. However, Clause 4 is a genuine attempt to strengthen freedom of speech and should be seen as such. The noble Lord, Lord Triesman, among others, raised important issues about the public interest. It remains the case that it will be for the court to determine the first limb of the test; that is, whether the statement complained of was, or formed part of, a statement which was a matter of public interest. Again, the noble and learned Lord, Lord Brown, helpfully let us into his thoughts on this matter.
That is a matter that we must think of. The noble Viscount, Lord Colville, and the noble Baroness, Lady Bakewell, explained to us what the responsible journalist does in these matters. The noble Lord, Lord Triesman, rightly reminded us of the question of what to do when the intention of the publisher or owner is to destroy a reputation. Do we give impunity to that? That is why, when our friends in the Libel Reform Campaign come close to asking for a blank cheque, I have to say that we cannot give it to them. We also have a responsibility, as well as a recognition that there is irresponsible publication.
We are moving on to new media, and my noble friend Lord Lucas will be pleased to know that that is another hospital pass that I have left for my noble friend Lord Ahmad. I would say to Twitterers the Twittering equivalent of “caveat emptor”: “Twitterer beware”. Twittering is not beyond the law. We somehow got the idea that new media is a law-free area. People are going to find that it is not.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall)
Perhaps I could assist the Committee by suggesting that the noble Lord, Lord Phillips of Sudbury, has proposed an amendment as an amendment to Clause 14. Does he wish to move it?
Lord Phillips of Sudbury
I do not. The noble Lord, Lord McNally, has given as satisfactory a reply as is possible in the circumstances.
The Deputy Chairman of Committees
My Lords, perhaps I may suggest to the noble Lord, Lord Phillips, that if he is not going to move his amendment he should not speak to it.
Lord McNally
Lord Lester of Herne Hill
Lord Lester of Herne Hill
My Lords, I am sorry that the Minister has put me in the position of Scrooge by suggesting that his officials should waste their time over Christmas amending the Explanatory Notes. They can do that over Easter when, it is hoped, the Bill will have received Royal Assent.
I am going to suggest something which I hope will go down well with my noble friend Lord McNally and with the Committee. I suggest that we should simplify what at the moment is completely unnecessary and should be deleted from the Bill. It concerns reportage and what should happen when a publisher publishes a report fairly and accurately. My original Bill, which I do not have with me, dealt with reportage, and subsections (3) and (4) explain how the Government see the position. We now have government Amendment 19 in this group, which is a new version of reportage. However, I have to say that it is completely unnecessary because now that Clause 4 is in a very satisfactory form, I do not think that we need to include anything at all about reportage.
Let us look forward to Amendment 19, which has not yet been moved. It is not something that the man or woman on the Glasgow omnibus would understand. It states:
“If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party,”—
The noble Lord, Lord Browne, does not like the words “to which the claimant was a party”, and I do not much like them myself—
“the court must in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest disregard any omission”—
that is something of a double negative—
“of the defendant to take steps to verify the truth of the imputation conveyed by it”.
With great affection and respect for parliamentary counsel, I have to say that I find it very hard to understand what is being said here. While I think I understand it, I do not see why it is needed at all. A proper public interest defence, as we now have in Clause 4, covers all publications, including reportage. We could go into the tricky thing about whether it should or should not cover someone who is not a party to a dispute, but I suggest that we should consider that hereafter—I say that not just because I have had no lunch. I do not see the necessity of including anything special on reportage, given the clarity with which the Clause 4 defence is now worded. I seek, therefore, to leave out subsections (3) and (4) and I would oppose putting anything like Amendment 19 in their place. I would certainly regard it as unnecessary to consider an amendment to widen this further. Rather idiotically, I think I have just said the opposite of what I wanted to say. I suggest that we leave out subsections (3) and (4) because they are not necessary and that we do not put anything in their place. I beg to move.
Lord Browne of Ladyton
I shall speak to Amendment 20, tabled in my name and that of my noble friend Lady Hayter, simply because I have no idea where these particular words came from. They qualify the dispute that has been reported as being one to which the claimant had to be a party. Shortly I will explain why that is, but having listened to the noble Lord, Lord Lester of Herne Hill—I wish that I had added my name as well to his amendment—on reflection I really do not understand why these two subsections were included in Clause 4 in the first place. I have no particular objection to the attempt in the government amendment to concentrate them into one subsection, although the language is cumbersome. However, I would never underestimate the ability of the ordinary man on the Glasgow bus to understand verbiage.
I do not understand why these subsections were included in the Bill in the first place and I cannot find any debate about it other than that the initial attempt was a codification of the existing law. As I understand it, this element or refinement of the defence about reportage came from a case called Al-Faghi v a Saudi newspaper, or something. Essentially, this offers the opportunity of a qualified privilege defence to the reporting of a dispute, when it is the reporting of the dispute that is the issue of public interest rather than the truth of the allegations that may have been made between the parties to the dispute.
I will not detain the Committee by going through the distillation of the principles on which I have worked from the Al-Faghi case to see where the idea came from that the dispute had to be one to which the claimant was a party before it attracted this qualified privilege. I am pretty certain that the Minister will not be able to find in Al-Faghi a principle that requires that the dispute that is being reported be a dispute to which the claimant was a party. I can think of circumstances where the claimant could be defamed by statements made in a dispute to which he or she, the claimant, was not a party but where the reporting of that dispute could be in the public interest. So it seems unnecessary to qualify this defence, or subset of the defence, if it is to continue to exist, by requiring it to arise out of a dispute to which the claimant was a party. That is my argument. I see from his body language that the noble Lord, Lord Lester, is about to make another helpful intervention.
Lord Lester of Herne Hill
It might be helpful to the Minister as well, because I did a pretty sloppy job just now in my desire to be quick. Under existing case law, it is true that the claimant has generally been involved in the dispute reported, either through being personally and directly involved as a party or through membership of a faction or group that is a party. But the principles are applicable when, especially in a political context, both sides of a dispute are being reported. According to Lord Justice Sedley, in a case called Charman v Orion, from 2008, 1 All ER 750, there is no need for reciprocal allegations. There can be a reportage defence for what he called a unilateral libel. He said that the reportage defence,
“developed in Al-Faghi”—
to which the noble Lord, Lord Browne, referred—
“cannot logically be confined to the reporting of reciprocal allegations. A unilateral libel, reported disinterestedly, will be equally protected”.
That is, I think, in the amendment of the noble Lord, Lord Browne. There is no express statement in case law that the claimant must be a party to a dispute, and it would be unfortunate if the new statutory effects were more restrictive than the common-law position. That is why all of this is present. As the noble Lord, Lord Browne, said, it is not to undermine something in the common law. The problem is that the common law is pretty uncertain. It seems to me that we can do away with all this by not having subsections there at all. I hope that that helps. The new subsection has the potential to cause confusion in the light of the rest of the clause by stating that,
“the court must disregard any omission of the defendant to take steps to verify the truth of the imputation”.
The reference to taking steps to verify is there because the checklist in the current version of Clause 4(2)(g), provides, as one of the factors,
“whether the defendant took any other steps to verify the truth”.
If subsection (2)(g) goes, there is no need to provide for the court to disregard that, and any reference to taking steps to verify in subsection (3) would be confusing. I am sorry to go through all this but I think that in the interests of simplifying the law we can get rid of it altogether.
Lord Browne of Ladyton
I am very grateful to the noble Lord and am pleased to have given him the opportunity to make the speech that he wished he had made in supporting his amendment. Now that I have the noble Lord’s support, I can summarise my argument in relation to my amendment by saying that I am reinforced in the view that it would appear the common law is still developing. The Government’s wording in the draft Bill, and even the wording proposed in the noble Lord’s amendment—I sympathise with his attempt to try to make two subsections one subsection—broadly restricts the defence specifically in relation to the reporting of a dispute to which the claimant has to be a party. I did not understand that to be the common law of England and I now have support for that view. If there was a justification and a necessity for this provision, I suspect that it arose from the way in which the clause was framed previously. For the reasons expounded by the noble Lord, Lord Lester, it is no longer necessary.
I hope that the Government will go away and think about that but if they insist on retaining this subsection in the Bill, I propose that we should delete the qualification of the dispute because it does not refer to the common law and is a restriction. I do not think that the Government intend to restrict this defence.
The Earl of Erroll
I intervene with great temerity given this incredibly legal provision. However, as an outsider, I cannot understand why the courts should not be allowed to determine whether or not someone has behaved responsibly. If a large organisation is involved, it should have to verify the information or take some reasonable steps before repeating an appalling slander, libel or whatever it may be. I cannot see why we should restrict the courts’ ability to look at all the circumstances by retaining the relevant measure. Therefore, I support Amendment 18 in the name of the noble Lord, Lord Lester.
Lord McNally
My Lords, when both the noble Lord, Lord Browne, and the noble Lord, Lord Lester, tell me that we are getting this matter wrong, I have to think very hard. However, I shall respond to it and then provide some further thoughts.
Amendment 19 is a government amendment and is grouped with Amendments 18 and 20, as we have heard. Amendment 19 makes drafting changes to bring the provisions on reportage, which were previously in subsections (3) and (4) of the clause, into one subsection in order to improve the overall clarity of the clause. It makes changes to refer to the test of “reasonable belief”, to which I spoke in the previous group of amendments.
“Reportage” has been described by the courts as,
“a convenient word to describe the neutral reporting of attributed allegations rather than their adoption by the newspaper”.
Clause 4 is intended to catch the core elements of reportage as articulated by the courts. These are that where the defendant publishes an accurate and impartial account of a dispute between two or more parties, the defendant does not need to have verified the information reported before publication. This would not, however, absolve the defendant from the need to satisfy the court that, in all the other circumstances of the case, it was reasonable to believe that the publication was in the public interest.
Amendment 18 would remove the provisions relating to reportage. Conversely, Amendment 20 would extend their application. We do not consider that removal of the reportage provision altogether would be desirable, as is proposed by my noble friend Lord Lester in his amendment. As I indicated in speaking to Amendment 14 in the previous group of amendments, for the operation of Clause 4 generally, in assessing the reasonableness of the defendant’s belief that publication was in the public interest, the court will be looking at the conduct of the publisher. Often that will include examination of the steps the publisher took to verify the information. We would not want the clause’s silence on the matter to suggest that there may in future be a need to verify in reportage cases whereas now there is not.
However, nor do the Government think it right to extend reportage more widely, as is proposed by the noble Lord, Lord Browne, in Amendment 20. We consider that it should, as now, be limited to circumstances where the claimant is a party to the dispute. The reason that we adopted this approach is because if the claimant is a party, for the account to be “accurate and impartial”, his side of the story would be likely to have been reflected in the published article. On the other hand, where the claimant is not a party, that would not necessarily be the case. We believe, on balance, that where the claimant is a third party, the defendant should have to satisfy the court that in all the circumstances of the case it was reasonable to believe that publication was in the public interest. This should properly include consideration of steps taken to verify, should the court decide that is relevant. That point was made latterly by my noble friend. On this basis I hope that the noble Lord will be prepared to withdraw his amendment.
I am not sure which noble Lords made the accusations that the amendment will cause confusion, is unnecessary because the common law is already developing or overly restrictive, but I shall look at those criticisms. I hope that my noble friend will withdraw his amendment and that he and the noble Lord will allow the government amendment to stand. I will look very carefully at this amendment, and the points that have been made. I give an assurance that I will take another look between now and Report.
Lord Lester of Herne Hill
My Lords, I am grateful to the Minister for his explanation. The criteria in Clause 4, as it now stands, are objective public interest and reasonable belief, and I simply do not understand why those criteria are not sufficient to deal with reportage publication, as with any other publication. I am not clear as to what we are trying to save by putting these words in and I quite understand the point of view of the noble Lord, Lord Browne, which does accord with developing common law. All of this is unnecessary and I enthusiastically withdraw my amendment, knowing that all this will be thought about during the Christmas holiday of the noble Lord, Lord McNally.
Lord McNally
“( ) If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party, the court must in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it.”
Lord McNally
“( ) In determining whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest, the court must make such allowance for editorial judgement as it considers appropriate.”
Baroness Hayter of Kentish Town
My Lords, I have lost my support team. The amendment is in the name of my noble friend Lord Browne and myself, and I shall speak to the other amendments in the group. The amendment, as my noble friend suggested earlier, is by way of a probe. It would replace the word “website” with “electronic platform”. It is seeking clarification from the Government about what they mean by website and to ensure it is sufficient to make the Bill future proof. We might also consider whether the common definition of, for example, “journal” includes electronic peer-reviewed offerings, which might deal with some of the later amendments.
As the Minister indicated earlier, we can probably assume that “website” covers Facebook, blogs and Twitter, but we need some clarification on that. I did not have a chance this morning to study the DPP’s guidelines released earlier about when legal action would be taken on harassment and similar issues on electronic platforms. Perhaps the Minister can reassure us that these two initiatives, albeit one on criminal prosecutions and one about defamation, are moving in harmony. Amendment 23B specifies that the defence applies only in relation to damages and not, for example, in an application for an injunction. This was probably addressed in Clause 13, but it would again be helpful for it to be part of this clause. Amendment 26A simply replaces “was” with “is” for clarification. “Was” implies that a post used to be on the website and has been taken down. That amendment would clarify that no action would be needed if it had been removed.
I turn now to our main amendments in this group, Amendments 25A and 25B. I shall first refer to a letter from the then Parliamentary Under-Secretary for Justice, Jonathan Djanogly, on 13 June, which included a helpful attachment indicating the department’s thinking about the procedure to be followed under Clause 5. There was a subsequent letter on 10 December from the noble Lord, Lord McNally, with that attachment. It states that:
“Website operators will be encouraged to set up and publicise a designated email address”—
that is, for complaints—
“as a matter of good practice”.
Is it not time to make a real difference to the whole business of reputation and innuendo by establishing a need, not just a request, that if website operators want to take advantage of the defences to defamation then, through them, the authors must be easily contactable by anyone with a potential claim? Neither authors nor website operators should be able to hide behind some electronic wall to avoid receiving a writ.
We seek the easiest possible route between the defamed and the author of the offending words by, we hope, virtually bypassing the website operators. We do not want the defamed, as in the Government’s suggested outline, to have to go round the houses, waiting here for 72 hours, waiting there for seven days and possibly applying to a court before even finding out who has written the alleged libel or where that person can be contacted. We therefore want it to be obligatory for a well publicised e-mail address to be on the website, for use where the author is not already identifiable and contactable. It is slightly strange that in the Government’s appendix to those letters, they seem to ask that the complainants should identify themselves and give their address and everything to the poster, with no such reverse obligation on the author.
It is not good enough for authors to hide behind anonymity. This has not been allowed to the defamed person and it is hard to see why it should be available to the alleged slanderer. I shall leave whistleblowers to one side at the moment. I shall come back to them, but we should not allow that tiny number of people who can be safeguarded by other means to act as a cover for the anonymity of the millions who trounce other people’s reputations. It is hard to understand the Government’s proposal to allow the author to refuse to reveal his or her identity, with no excuse having to be given. This would therefore make the complainant seek a court order to locate the author.
If the provision were to be enacted, no author would ever have any reason to give out their name, knowing that no action could even be started against them without a court order. We have to change this around. Either the author puts up his or her hands and says, “It was me who wrote it and it is not defamatory”, or the website operator must take the hit and stand in the shoes of the secret writer. I leave whistleblowers to one side for the moment.
Lord Phillips of Sudbury
My Lords, I shall speak to Amendments 24, 25 and 29 in my name. I agree with virtually every word that the noble Baroness, Lady Hayter of Kentish Town, has just delivered to the Committee. I should also say—and I think this will come as some relief to the Committee—that, in the spirit of Christmas, I do not propose to oppose the Question that Clause 5 stand part of the Bill. However, that is not to say that my discontent with the position of web operators is in any way lessened by what has been heard, because I believe that the one weakness of the status quo is just that—web operators have a degree of impunity that is not justified in the public interest.
I spent a few years as a libel solicitor—not exclusively so but I had a steady diet of libel work, always for individuals. I reiterate what I said at Second Reading: there is an unintended bias in the Bill and in much comment in favour of the media and journalists. I have as much commitment to the free press as anyone. For 10 years, I was a member of the Scott Trust, which owns the Observer and the Guardian. However, when I heard the noble Baroness, Lady Bakewell, talk about the millstones around the necks of journalists, I have to be frank and say that if you look at it from the point of view of the individual—particularly the individual who is not affluent—the millstones all seem to be on the other side.
The disparity of arms between claimant and defendant is nowhere more vivid than in relation to the web operators, many of which are huge multinational companies. They do not do this for fun—they are not like a village notice board. They do it for profits, and mighty big profits, and some of them do not even like paying taxes on those very big profits. They are the Goliath in the defamatory relationship, so to speak, and in my view their impunity is not justified in terms of freedom of speech. Freedom of speech has to be balanced by respect for truth and protection of the reputations of individual citizens. I know that this is common ground between us and I should say—because I do not think it has been fairly represented—that the Libel Reform Campaign itself makes that point. Freedom of speech has to be balanced by a countervailing duty of responsibility and truth, otherwise one has a tyranny. I cannot understand how we got into the position in Clause 5 of web operators having no responsibility whatever for defamation, however grotesque and damaging, so long as they do not originate the defamation on their website—that is in Clause 5(2)—and so long as, if and when they receive a notice of complaint, they act in accordance with the regulations still to be made under Clause 5. I am delighted that the Government have listened to what was said at Second Reading and have now prescribed a positive procedure for those vital regulations under Clause 5 (5).
However, one can imagine a rerun of something comparable to the recent BBC-McAlpine debacle, or imagine that the most sordid and graphic statements are posted on the web about a public figure, statements that would inevitably be taken up and repeated across the wide world of the internet, with or without embellishment. Under this clause, such defamatory statements—the damage of which will, in the nature of things, linger for ever and cause the acutest pain and damage to the reputation of the person concerned—do not touch the operators of the websites that first published the statements. Under Clause 5, the operator will not even have to moderate the libels until it receives a notice of complaint. Indeed, an operator with an axe to grind against the person who is defamed may even welcome or encourage the posting of the defamations. That is a situation to which my Amendment 25 refers. It would dislodge the defence under Clause 5(2) if there was any malice or bad faith at behind the defamations.
Consider this: if a person or company associated with the operator—whether by way of partnership, joint venture, interlinked companies or however—posts defamatory statements on a website, the operator, under Clause 5, still has impunity. That cannot be right. My Amendment 24 deals with that. I am the first to confess that if my amendment is acceptable to the Government, one will need on Report to refine what is meant by an associate. However, I thought that at this stage it would be satisfactory to leave the amendment as it is.
The phrase “chilling effect” has been much used in these debates, and that is fair enough. However, I again remind the Committee that the chilling effect is on both sides of the fence. If Goliath has a chill running down his spine, as was notably enunciated by the noble Viscount, Lord Colville, think of the individual who is facing up to this media behemoth. I have been in the position again and again of dealing with individuals who have been grotesquely libelled. I am not talking about the responsible media but, let us face it, parts of the media in this country will resist the most rightful claim, knowing that they can get away with it because the costs are simply way beyond their reach. They can delay and string out the case, and I have experienced that. This Clause 5 puts a web operator into a wholly unwarranted position of unreasonable strength against the public interest. I therefore hope that the amendments to moderate that impunity will be taken on board by the Government. From everything that I have heard so far, I do not believe that they will be content for this imbalance to remain.
Lord Lucas
My Lords, I shall address my amendments in this group and reiterate that I have a considerable interest to declare in that I run the Good Schools Guide and, therefore, a website on which such comments are regularly posted.
So far as identity is concerned, I have a lot of sympathy with what the noble Baroness, Lady Hayter, said. I do not generally like people who hide behind anonymity on the web, although it has become a habit. One generally knows who one is talking to on Twitter, at least after a while, but there are other areas of the web, such as Mumsnet, where you do not have a clue and there is no indication of the identity of the person. Often that is just because people are talking more openly than they might if they were to be identified. They might say something about a shop that they use regularly or a school which their children attend which is helpful to other people to know, but which they would find it embarrassing to be linked back to.
Lord Phillips of Sudbury
Why should the expense and risk be on the side of the citizen?
Lord Lucas
Absolutely—the expense should be on the citizen who, having made the comment, is the target of the defamation action; but the website should not be forced to take down the comment just by the threat of a defamation action against the person who originated the comment. Otherwise, it becomes all too easy to wipe complaints off the public record. It is not that I wish the person complained against not to have any means of action but it should be against the person posting the comment and not against the website that is hosting the comment, until it has been proved to be defamation and a court order comes saying, “You must take this down”.
Lord Phillips of Sudbury
My noble friend is putting forward a situation which has no parallel, for example, in newspapers, or radio or television. It is no good the newspaper saying, “Well, this isn’t my letter, this is the letter of John Smith and therefore it is nothing to do with me”. Why should it be any different for the web operator?
Lord Lucas
We are dealing with the web operator as a conduit and not as a publisher. If I want to make a particular statement about a company that I feel has wronged me, I will do so using public media such as Facebook, Twitter or other sites on which I might post a comment. That is me making that statement. If I am identifiable, which I think is quite proper, then the action should be against me. Otherwise, it means that those who are behaving badly and wish to hide that bad behaviour can simply wipe all record of my complaint off all public websites without any risk or trouble to themselves. I would say that it is in the public interest that I make my views on this particular company known, but I am going to be deprived of all means of doing so in an electronic world because I will have no access to what becomes the medium of communication, because as soon as I say anything there the company that I have complained about can wipe it out. That seems to me an entirely unreasonable situation.
We have to recognise that we are dealing, as the noble Baroness, Lady Hayter, said, with a different world and a different way of doing things and that if we want news of bad practice to spread, we have to allow it to be published. Allowing it to be published means holding harmless those who are acting as a conduit. I am a publisher and recognise that if I publish something unpleasant about some school or person then I, as a publisher, take that on the chin. That is part of my remunerated business. However, the owners of Twitter are getting no benefit from the fact that I have tweeted something on it—there is no revenue with which to offset the cost of establishing that I have a right under law to say what I have said, so they will immediately take it down, if complained against, unless we provide them with some kind of “hold harmless” defence. So it is very important that the conduits, if they behave well, establish the identity and share it with the complainant, and can continue to publish until the point has been reached where it has been established in a court of law, or by agreement or otherwise, that what has been said is defamatory.
I agree with the noble Baroness, Lady Hayter, that it is very important that, where something has been said about a company or a person that is considered defamatory, a statement from the person who is being defamed should be published alongside the original statement. That is a relatively easy technical thing to do, and I do not think people should have to wait seven days. It should be relatively automatic. These days, one day—certainly one working day—is enough to do that. That should be an automatic right, because it is easy to do and balances things reasonably.
I am also interested in the question of moderation, which has been referred to. The status of moderation under this clause seems to be very uncertain. By moderating to any extent, do you become the publisher of what has been said? A lot of sites will just allow unrestricted publication, and that appears to be safe, but we and many other sites will moderate; that is, we will want to see what has been said before we decide that it can be published. If we moderate and then publish, have we assumed liability for what is said? Have we assumed a liability for checking it? If not, it becomes impossible to moderate and you are saying, “We wish the web to be entirely unmoderated and we think that the process of moderation is undesirable”. I am not sure that that is what the Government intend to say.
If you allow moderation, do you allow within that any kind of editing or advice? If someone posts a comment and it appears to be a statement of fact rather than opinion, are you allowed to say to that person, “You have not phrased this as a statement of opinion. If you resubmit it as a statement of opinion, we will publish it”. Is that taking responsibility for what as been said? I think of moderation as something we should encourage. It improves the quality of the web as a whole, although it is an expensive thing to do. We should be clear in this clause about the extent to which we are prepared to support and protect the process of moderation.
Lastly, I come back to what the noble Baroness, Lady Hayter, said about TripAdvisor. I think that it is barking up the wrong tree. I suggest that it employs what we have effectively used over many years and I will call the Good Schools Guide defence. If a school starts to complain about comments we have made, we merely post the fact that we are not prepared to allow comments on this school because we do not agree with the school’s policy on taking down comments. That is as good as anything. If TripAdvisor were to do that to a hotel, that would be worse than any comment that anyone could possibly publish. It would achieve the end result it wanted without pain.
Lord Allan of Hallam
My Lords, I also declare a considerable interest in that I work for Facebook, one of the web operators which may receive notices under subsection (5). In contributing to the debate, I am trying to bring some of the expertise that we have as operators of internet websites more generally to what is, I know, a complex and difficult debate and one which we make more complex and difficult by having fast-moving technology. In that respect, I shall touch first on the amendment which proposes that we should talk about electronic platforms rather than websites per se. In doing so, I will pick up on some of the other points made in the debate around whether websites are different and special; they may be or they may not.
There are essentially two classes of website. There are websites which are owned by a single organisation and over which that organisation has editorial control. It could be argued that such websites should be treated like a newspaper or any other form of media. Indeed, those websites are specifically excluded from having this defence because, under subsection (2), they are clearly the organisation that posted the statement in question to the website, so it runs the website and creates the content for it.
There is a whole class of other websites or platforms where the body which produces that platform has no direct interest in the content, exercises no editorial control and simply exists, as the noble Lord, Lord Lucas, described it, as a conduit that enables a citizen to speak with other citizens all over the world. These platforms have become tremendously successful precisely because they democratise speech in a way that was not previously possible because you needed a printing press or other expensive equipment. It is right that in the context of Clause 5 we should think about the position of those operators. That is much more widely recognised in law, if we look at the e-commerce directive, which has been very successful. It was designed precisely with the fact in mind that we have on the internet platforms the job of which is to connect people, but which are not responsible for the content being shared between the people connecting through these platforms. This covers a whole range of other areas such as copyright, illegal content and so on.
However, this does not mean it is a lawless space —that discussion was held earlier—in fact, it is a very lawful space. The operators have responsibility but the primary responsibility for content shared across a platform has to reside with the person who posted and shared that content. In that respect, Clause 5 takes us absolutely in the right direction. It directs platforms—the second type of website that is not editorially responsible—towards a regime within which it is in their interests to connect the poster of the content with the complainer about it and to seek to resolve the dispute between the two parties. Where that dispute cannot be resolved between them, the operator then has some responsibilities.
Lord Phillips of Sudbury
To equate the world wide web with a pub discussion is bizarre. The thing about a pub discussion is that it goes no further than the pub and it is all within a context that people understand. The problem with the web is that the defamation can shoot around the world in 24 hours and remain out there for years.
Lord Allan of Hallam
I agree with the noble Lord. The new concept has been described. There is a lot of thinking and literature being developed around this. We are talking about private speech in a public space. Essentially, the speech is made in a private tone but the reality is that the speech is publicly accessible, because of the nature of the technology, to anyone in the world. That does not mean that we ignore it, with which I completely agree. In this clause, we are aiming to get towards a sensible way of dealing with that speech and recognising that it is different from the speech traditionally regulated through defamation law, which was speech through editorialised large organisations.
Lord Mawhinney
I am grateful that the noble Lord made this argument because of all the arguments we heard in the committee this was the one we thought probably had the least validity. If you make a statement and it goes round the world, who—I was almost tempted to say a naughty word—cares whether it is made in a pub, in Tesco or anywhere else? Who cares if it is made by a friend to a friend? To use that argument is to somehow say there is a qualitative difference. I will speak later in this debate at greater length but I want my noble friend to think carefully before relying on what is almost a patently non-sustainable argument.
The Deputy Chairman of Committees (Lord Brougham and Vaux)
I want to remind the Committee that the Chamber will be rising in about five minutes and, in the spirit of Christmas, if noble Lords can keep their comments short we will finish after the end of this group.
Lord Allan of Hallam
I shall aim to do so. I turn specifically to the amendments. Let me work through those. There is a lot of merit in Amendment 23A, on the electronic platform. I am interested in the Government's response about what they perceive the legal definition of a website to include. It is certainly the case, and the expectation in the technology community, that most content will be accessed within as short a space as two to three years, primarily through untethered mobile devices and applications—specific applications tied to a particular service. The traditional notion of going to a web browser and typing in a web address will not necessarily be the dominant form of accessing information. It is a fact that most information and contact will be delivered in a different and more sophisticated way, and it is important to ask the question now as to whether the definition of website that the Government intend covers this wide range of information services or is intended to cover stuff delivered by the http protocol; the traditional web browser.
In the context of Amendment 25A and the notice to be posted alongside the publication, I have concerns about how realistic that is. I disagree with the noble Lord, Lord Lucas, about how straightforward that might be. Given the different formats out there and the wide range and type of contact that may be posted, to be able to guarantee that a notice of complaint is posted alongside the original content may prove to be much more technically complex than has been imagined. I wonder about the value of doing that given how people access content through small-screen devices and the way in which the content scrolls and moves rapidly these days. The idea of a notice next to a piece of content is again looking back to the newspaper model, where you have something much more static and in a much more defined format. I have questions about the workability of the notice in Amendment 25A.
The e-mail contact in Amendment 25B goes back to the website versus platform debate. It may come as a surprise to the Committee but e-mail is a dying communications mechanism. Young people do not use e-mail. E-mail is for work and if you want to communicate with people whom you know and like and with organisations, you use different forms of communication—instant messaging-type applications and a whole range of new communications services. In the context of how website operators might receive complaints, e-mail is probably for a large operator one of the least efficient ways of doing this. It is relatively unstructured and people will send anything to an e-mail address.
A much better approach, if we want to include something in the Bill, is to say that there must be an efficient contact mechanism and then allow the website operators to determine the most efficient contact mechanism for them. In the case of a lot of the large providers, their preference, rather than e-mail, would be for people to use a contact form. A contact form allows you to give guidance to the person. You can have a very simple flow. Somebody types a defamation on a website. The website says, “Hey. If you want to report defamation go here”, and they are given a screen that takes them through all the information that they need to provide in careful detail and then offers them a form that they can send in. The great advantage of that method is that the form then sends the information to the legal team to do an assessment, with all the relevant contact information. A smaller operator may choose to use e-mail because they have nothing else and they do not have the technology, but we should not specify the technology used for contact in the Bill. We should leave that up to the operators.
Those are my comments on this group of amendments. I know that we will come back to the larger issues of principle and the balance of power between the complainant and the website operator in the next group.
Lord Triesman
My Lords, I will try to do this as briefly as possible. I support my noble friend Lady Hayter’s amendments and also—I hope it does him no harm—the amendment and comment of the noble Lord, Lord Phillips of Sudbury. I was responsible for intellectual property at the relatively short lived Department for Innovation, Universities and Skills. One of the things that I found completely astounding, almost every day, was that when we tried to deal with widespread theft of other people's intellectual property, and the propensity of some people to use the internet for serious criminal purposes involving children or whatever, one argument always and consistently was put to us. “We are only a conduit. We are no different from the Post Office. It went through in a sealed envelope in the mail. Who would know? Why on earth should we take any responsibility?”.
What I observed, as noble Lords may expect, from this sequence of events was that it was perfectly okay for people who are creating music, film, literature or many other products that are vital to the creative output of the United Kingdom—and very successful in the interests of the economy of the United Kingdom. But their interests were as nothing when compared with this apparent complete barrier to dealing with anything that happened to be done through a web platform or internet company. They had no responsibility in any circumstances. I have never bought that argument, which is why I agree so strongly with the noble Lord, Lord Phillips, on the matter. It may be very complex and it may be that the technology keeps advancing, but the reality is that, unless there are some restraints on what people can do with this form of technology, the argument inevitably goes to the point where it is possible to protect individuals, even with inequality of arms, from some forms of publication but they are completely and inevitably lost when it comes to electronic publication. That is a very dangerous and damaging concept for our society.
I know the importance of the businesses and the value of the work conducted by the noble Lord, Lord Lucas, and others, but I respectfully say that the idea that Twitter or anybody else is not making money out of it is completely bizarre. It is not, of course, making money in the sense that people who post anything on Twitter are paying for it; at least in general they are not. However, advertising revenues are created around these new media platforms, including, pre-eminently, Facebook. The ability of companies to be able to track people’s interests and identify how to approach them with commercial products—I have seen this in sports websites that are associated with Facebook, for example—is an amazing way of generating vast amounts of money. It is no surprise that the companies have become worth so much money in their quoted positions as well.
The Earl of Erroll
The noble Lord, Lord Triesman, had Second Reading to say all this. I have some points on the amendments.
Lord Triesman
My Lords, I do not accept that supporting the amendment in the name of the noble Lord, Lord Phillips, is a Second Reading proposition. It may be very difficult, in a number of contexts, to achieve what the noble Lord, Lord Phillips, is suggesting, but it is well worth doing it. A comparison can be made with somebody at a football match. I heard over very many years that when people made loud, offensive, grotesque, racist comments in a football crowd you could do nothing because of the great mass of faces. Then CCTV came along and we were able to do something about it—and it was quite right that we did, though apparently not yet fully successfully. There will be technical means—there probably already are. That is why the amendment should be supported.
Lord Ahmad of Wimbledon
My Lords, I am sure that the Committee will agree that, in light of the other contributions that remain to be made and of the time, further debate on Amendment 23A should be adjourned. Perhaps it would be a convenient moment to suggest that we adjourn this debate until Tuesday 15 January at 3.30 pm.
Baroness Hayter of Kentish Town
Before we put that to the Committee, perhaps we may take this opportunity to thank the Deputy Chairman and all Members for what they have done so far and wish everybody a very happy Christmas.
The Deputy Chairman of Committees
In adjourning the debate until the day specified, I wish you all a very happy Christmas and new year. We will no doubt have more fun discussing this in January.