(11 years, 11 months ago)
Grand CommitteeRead Hansard Text Read Debate Ministerial Extracts
The Deputy Chairman of Committees (Lord Colwyn)
My Lords, if there is a Division in the House, the Committee will adjourn for 10 minutes. This is the Grand Committee on the Defamation Bill, and we are resuming debate on Amendment 23A. The noble Baroness, Lady Hayter, moved the amendment, the Question was put, and the noble Lord, Lord Ahmad, adjourned discussion after about 50 minutes. We are now going to discuss Amendment 23A, which says:
“Page 3, line 21, leave out ‘a website’ and insert ‘an electronic platform’”.
However, I know that the noble Lord, Lord Browne, wishes to say something before we start.
Lord Browne of Ladyton
My Lords, I am very grateful to your Lordships for allowing the possibility of raising an issue that is not related to the group that we are presently discussing, but which is directly relevant to an issue that we thought we had perhaps put to bed, in terms of this Committee’s deliberations, on the previous occasion. To my surprise, on about 10 January, it was reported on the BBC that Rutland County Council, taking advantage of the general powers that have been granted to it by Section 1 of the Localism Act 2011, intended to sue for defamation three of the members of the council. This was extensively reported on the BBC and locally in the Rutland area. Happily, the Rutland County Council, to the edification of everyone interested in this, has published the legal opinion on which it based this intention on its website.
Without going into the detail, it appears that the council’s lawyers have advised it that Section 1 of the Localism Act has repealed the judgment of the House of Lords in Derbyshire County Council v Times Newspapers Ltd by granting a power for local authorities, in these circumstances, to behave as if they were individuals. I have no idea whether that is right or wrong; but whether in fact that has happened ought to be explored before we close our deliberations in Committee on this Bill. I merely draw this to the attention of Members of the Committee, in particular to the Minister, with the request that he has this matter investigated and reports back to us before we conclude our deliberations. In the mean time, I will ensure that all the information I have managed to glean over the past couple of days is sent electronically to the Minister’s private office. I do not intend to say anything further.
Lord Lester of Herne Hill
Assuming it is permissible for me to do so, I will say in response—because I was involved in the case—that I do not agree with Rutland at all, for reasons that I will go into hereafter, if necessary.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the reason I buried my head in my hands is that the noble Lord, Lord Lester, explained before the Committee started that ill health was going to prevent him from intervening very often in our proceedings today—a resolution that lasted all of five seconds. I am grateful to the noble Lord, Lord Browne, both for the intervention and for drawing this to my attention. I will have the matter examined and report back to the Committee.
The Deputy Chairman of Committees
We now resume debate on Amendment 23A.
Clause 5 : Operators of websites
Lord Faulks
My Lords, in addressing the group that includes Amendment 23A, I have had a chance to reflect on the issues raised by these amendments and to read in Hansard the speeches made in the debate before we adjourned for the Christmas Recess. This has led me strongly to support the amendments—or most of them—in this group, if not to go further. I emphasise that I am in sympathy with this Bill, in particular with the raising of the bar to prevent trivial defamation actions. I would also like a limit on the right of corporations to sue, as we discussed on a previous group. I favour the amendments to the Reynolds defence, and the protection of peer-reviewed statements in scientific and academic journals as provided by Clause 6.
However, I have real difficulties with Clause 5, which we are currently debating. It seems to be taken almost as given by those in favour of libel reform that website operators should be in a special position and separate, say, from book publishers or newspapers. The reasons for this are said to be that website operators will generally act only as a conduit and have little control over content, and that liability for defamation potentially is inimical to free speech.
Parliament does not often have an opportunity to intervene in the law of libel and, as I am sure noble Lords will agree, it is most important that we get the law right, particularly when what we decide now may not be reviewed, except by the courts interpreting the provisions of the statute, for many years to come. That particularly is a heavy responsibility where courts all over the world are currently struggling to deal with the interrelationship of the law of defamation and the operation of the internet, and it is especially challenging to us to attempt any form of future-proofing.
In his very helpful speech to the Committee, my noble friend Lord Allan of Hallam told us that e-mail is not the communication mechanism of choice for young people—they much prefer instant messaging-type applications—and that a whole new range of communication services are coming into the market. It is reasonably well known that young people do not read newspapers much. Therefore, we are potentially considering the law in relation to what is going to be the most prevalent form of communication.
In its report on the Defamation Bill, the Constitution Committee of your Lordships’ House states:
“We consider that, as a matter of constitutional principle, the relevant provision should be to the greatest extent possible on the face of the Bill, so allowing full legislative amendment and debate. Moreover, only by seeing the proposed obligations to be imposed on operators will Parliament be able to consider whether the regime proposed is fit for purpose”.
Much in the current Bill is left to regulation but even that which is already provided for by Clause 5 causes me difficulties. It is plainly in the interests of website operators that there should be a special defence. They are an extremely powerful lobby with, as the noble Lord, Lord Triesman, pointed out on the previous occasion, the capacity to generate very significant profits.
As a member of the committee which last year considered the draft Communications Data Bill, I had the opportunity to see and hear from the representatives of the industry and to hear the very cogent and forceful advancement of their commercial advantages and disadvantages which might lie in the form of any future legislation. In particular, internet service providers were very reluctant to store any information which was not commercially useful to them, albeit that it might help the security services or the police to catch criminals. By the same token, they plainly do not want to have to face defamation actions and have the administrative inconvenience of trying to prevent defamatory material being published at all—if published is indeed the correct word, which is currently the subject of much judicial doubt.
I wonder whether our response to such large commercial organisations, although I appreciate that not all are large, would be the same if they were producing oil or manufacturing on a large scale, and we were told that it was inconvenient and potentially costly to provide a meaningful remedy to those who suffer from a company’s activities.
My noble friend Lord Allan talked about the democratisation of free speech but I am not convinced that much of the careless dissemination of rumour or innuendo that takes place can properly be defended on free speech grounds. Why does a substantial commercial company not have any obligation to take appropriate steps to either prevent or limit the publication of defamatory material or—and I stress this point—take out insurance in respect of those rare circumstances in which they will be sued for defamation?
The cost of an insurance premium would simply be a business cost and would mitigate the potential unfairness of depriving someone of a remedy who has been defamed. Will this open the floodgates? The law, as it presently is with the Defamation Act 1996 and the 2002 electronic communication regulation, provides some protection. But I an unconvinced that there is or will be a great wave of litigation brought against website operators. If the Bill becomes law, it will be only for serious defamation that anyone can sue at all. Furthermore, they must have the funds to do so. If in fact a website operator responds quickly to a complaint, broadly in the way envisaged under the Bill, it will limit the damages and thus deter a potential claimant from bringing proceedings at all.
Let me give an example of a defect in the provisions as they currently stand. Say that you were a teacher who had been accused of being a paedophile and that that was placed on a website. Particularly in the current climate, this would probably cause irreparable damage to your life and career, even if the allegation was wholly unjustified and subsequently withdrawn. However, provided that the website operator responded in the way envisaged under the Bill, you would have no remedy at all. Those few complainants who have serious complaints should be able to bring a claim, even if it causes some inconvenience and expense to the website operator, who will simply have to bear the cost. It almost certainly will have broader shoulders than the potential claimant.
I am far from convinced that we should be giving website operators a special defence. I look forward to hearing the Minister’s justification of that defence and to his answer to the amendments, although I notice that there is a government amendment to which we will come in due course. At present, I am sorry that my noble friend Lord Phillips is not going to pursue the clause stand part debate. There are a number of anomalies that we could point out—there may always be anomalies—but it is a particular anomaly, for example, that someone can sue for slander if the publication is limited to one person but will not be able to sue effectively in the circumstances envisaged here.
I know that the Minister is a great fan of the Human Rights Act. I wonder whether the provision will satisfy analysis in the courts, either here or in Strasbourg, in terms of an Article 8 right. I am of course aware of Article 10, but it seems to me that if I were that hypothetical teacher or someone in that situation, I would be relying on Article 8, regardless of this defence, to outflank the provisions on defamation. I have experience of cases where courts have held that remedies under the Human Rights Act exist independently of any rights under common law or under statute.
I regard the provisions as unsatisfactory, requiring greater explanation. I fear that, unless we provide a great deal more detail to deal with some of the difficulties which will be encountered, we will make bad law.
Lord Mawhinney
My Lords, part of my role in this Committee has been, as accurately as I can, to reflect the evidence and testimony that was given to the Joint Committee. I feel the need to repeat that process this afternoon.
Lest I be accused of being unduly biased, we had representatives of modern technologies come to give evidence, including one Member of this Committee. We heard the arguments, in particular, from those who run websites and are operators and might conceivably be the focus of defamation proceedings. A number of your Lordships present today were members of Joint Committee, so I can always be corrected if my memory fails me. I think that it would be fair to say that, overall, the evidence we got was that websites ought not to be beyond the reach of the law. This may or may not be a democratisation of free speech—whatever that means. Certainly, anybody and everybody can now get themselves a worldwide audience, which did not used to be the case. Whether that is a compelling argument for saying that such people will no longer be bound by the restraints of defamation is an entirely different matter.
The Earl of Erroll
My Lords, as I was about to say when Christmas interrupted, I should like to talk about the amendments. We have Clause 5 stand part coming up later, so, rather than having a general ramble around the subject, I thought that it might be worth trying to stick to the amendments, because they are interesting.
I look at the clause from the point of view of trying to make it practical and making the system work. This set of amendments is very useful. Replacing “website” with “electronic platform” in subsection (1), as Amendment 23A proposes, will be helpful, because the remarks with which we are concerned will not always be carried exclusively on a website. What is a website? Is a Twitter feed coming to your mobile telephone a website or not? There may or may not be a website driving part of it. There are things that will not be caught by the provision.
That leads me on to the problem of definitions, because everyone is using the words to mean different things. What exactly is a website operator? Some of the stuff that we are looking at here applies to what I would regard as an ISP, an internet services provider, or a CSP, a communication service provider. To them, the “mere conduit” defence, which is in EU law, can apply, because they are not moderating stuff; they are just channelling the information as it flies through the wires. However, they at certain points become something else, because they might also be providing other services. For example, they may be hosting websites but they may not be operating them. What is their liability? Do they need to take down stuff? Are they regarded as a website operator? The websites are operating on their hardware and they would probably be capable of taking down defamatory material. Is the website operator the person who is managing the website? Is it the person providing content into the website? Where do the designers and the people who are to do bits of it come in? I ask those questions because we need at some point to clarify who will be responsible for doing what when it comes to taking things down or—here I go straight to Amendments 25A and 25B—being expected suddenly to put up a response to a notice of complaint alongside whatever is on the website.
My daughter is a graphic designer who has designed a couple of websites for organisations. They do not permit feedback on their website, and although I cannot see where that might happen, something might come up. However, if the organisation wanted to modify that website and allow that, there is no way in which they could do it without going back to her and her programmer to provide the facility to do so. These things are not quite as easy as just putting a bit of type into next day’s newspaper. Particularly if it is a large organisation, some of these things will require a whole raft of change management, interfacing with a programmer and things like that. The practicality of this whole thing is the issue.
I can see exactly what they are getting at. It is a good idea in certain cases. One might try to make it mandatory, particularly for sites which are permitting and expecting feedback from the public. The noble Lord, Lord Lucas, made a good point: we must not kill live feedback from the public about things that are going on. That is where the internet can be hugely powerful, to inform one about what you want to do. I use eBay a lot when I want to trade with someone and do business with them, and we rely on that feedback.
There is a good point but we must be practical about it. Something we have to remember is that when we talk about websites, we are not talking about three, four, five, a dozen, 20 or 50 large operators. There are half a billion websites globally, and the number is growing. There are about 100 million UK websites and growing—my figures are probably well out of date by now. It is on that sort of scale, yet most of our comments are being applied to a few large operators. Okay, they have huge profits, et cetera, but these laws will apply also to the small guys: the ones who will have to take stuff down immediately because they do not dare risk falling foul of some law, particularly if a large company pushes them into it. You can stifle the small business and the innovator very easily by having such laws. A small or medium-sized organisation or a person with a little bit of money has no recourse to the law because they cannot afford to go to the law. You have no protection, and must realise that in life—whether it is criminal or civil law, you cannot afford it.
Amendment 24 on associates: yes. Subcontractors and lots of other people are involved, and they probably need to be drawn into it. The amendments of the noble Lord, Lord Lucas, are both very sensible, particularly the business about a moderator. Nowadays, these things are so large that you cannot track everything, so I like his amendments to be made. On his Amendment 25ZA, people will need the assistance of the operator to find things out.
Amendment 25 of the noble Lord, Lord Phillips, suggests that you must be reasonable, otherwise, where do you stop trying to check things? Surely you can only ask someone to act reasonably in trying to find something out. We have this issue coming up in the modifications to copyright law coming up tomorrow in the Enterprise and Regulatory Reform Bill. Part of the reason for some of the British Library issues there is that it cannot “reasonably” find out, for instance, who is the copyright holder for some works. In some cases, you cannot reasonably find out who did something on the internet. It is not practical to do so.
Amendment 29 on the defence being defeated by malice makes a good point. If something is deliberately malicious, or in bad faith, it is quite right that that should be excluded from defences.
All I really want to say is that we must worry about practicality. The difference between the internet and normal printed media is scale and its global reach. If we are not careful, we may end up doing things which apply only to websites where the computers are subject to UK law. The easy way around it is to locate everything outside the UK. That will kill UK business, and we are seeing that in certain other things. People are just relocating overseas because it is easier than dealing with compliance with UK law. It may seem reasonable and all for the greater good of humanity, but the trouble is that in this global environment it is easy to move overseas, and you cannot block people from doing that.
I like most of these amendments. The only thing is that Amendment 25A and 25B are not practical in their current form. They would have to be restricted to websites which had a particular intention and were designed in that way.
Lord Lester of Herne Hill
My Lords, first, perhaps I may say how glad I am that Sir Brian Neill is with us now, having recovered, and how sorry I am to have told the Minister that I was not well, as it enabled him to attempt to curtail me. On these amendments, it is extremely difficult for one country to deal with these problems on its own within its own legal system, since, by definition, we are dealing with the world wide web. Secondly, it is a question of getting this right. The Government are right to say that they are going to deal with this by regulations rather than in the Bill, and that there will be full consultation on that. Thirdly, it is a question of a balance. In view of what we have heard already, I thought that one might think of the other side of the coin; namely, that unless we get the balance right there will be interferences with free speech which ought not to be there.
Mumsnet has written to my noble friend Lord McNally about this and its approach is interesting. Although it welcomes the Government’s efforts to reform the law, it is concerned with Clause 5 having a “significant chilling effect” on free expression. It states:
“Although internet businesses would be able to benefit from new defences, the practical outcome of the procedure as it stands will be that the vast majority of complained-of posts will continue to be taken down upon receipt of a complaint”.
Mumsnet then goes into how that will be and how it will be intimidated. It says:
“As with most major internet companies, Mumsnet is a responsible organisation that has no wish to be associated with abusive or serious defamatory comments. We have always acted promptly to remove abusive or defamatory posts once they are brought to our attention, and we will continue to do so … However, we feel that legislators have yet to fully appreciate that the problem, for companies such as ours, does not lie with seriously abusive or defamatory posts; our decision to remove those, once we are made aware of them, is easy and swiftly acted upon. The difficult cases are almost always relatively low-profile, and involve claims which—while they may be potentially damaging for the claimant—represent the truthful, non-malicious opinion or experience of members of the public. We feel it is unfair and onerous, in cases such as these, to expect Mumsnet administrators or members of the public to act as legal specialists, attempting to assess whether the complained-of material might be able to benefit from any of the defences in the Bill. We also feel that it is in no way unjust or unduly burdensome to expect the claimant—who, after all, will be in possession of the facts—to provide a minimum degree of information to support his or her assertion that the material is defamatory or unlawful”,
and so on. That is the other side of the coin, which one needs to be clear about. When we come to my separate amendment, I shall address why we need to raise the standard a bit on the word unlawful.
Lord Ahmad of Wimbledon
My Lords, as the debate, albeit part two of the debate that we started before Christmas, has indicated again, there are wide-ranging opinions. Let me first set out that the Government agree that it is about getting this right and getting the balance right. This is an evolving area and it is important that we discuss these matters fully. My noble friend Lord McNally and I are listening carefully and intently to the arguments being made. It has never been the intention, nor should it be, that websites should be beyond the reach of the law. My noble friends Lord Mawhinney and Lord Faulks asserted that perhaps that is what this clause is trying to do. On the contrary, it is not.
My noble friend Lord Mawhinney made the point about being beyond reproach, and that what is said on the web is instantly translated and is, as we all know, retranslated and retweeted, wherever that may go. However, to draw a comparison with the printed media, while there is a source available, there are times when a story is printed on the front page of a newspaper and gets picked up on the internet. When that story is shown not to be correct, the retraction is quite limited. In the same way, I suggest that the damage is done. Too often, what is remembered is the headline which struck when the news broke, how it broke and the sensationalism behind that news story. It is not just about the website, although I concur with my noble friend in saying that the website is something which can sometimes go beyond the limits of the person who is hosting it, and the person who initially posted it, because it is replicated elsewhere.
I will take each amendment in turn. In doing so, I will pick up the various points that have been made by noble Lords and comment appropriately. First, it is absolutely right that the law on defamation should apply in relation to online as well as offline material. The Government’s proposals would enable claimants to take action against the poster of the material, the person responsible for making the defamatory statement, rather than the website operator. However—and this is a crucial point—the operator will still be liable if the operator is shown not to have followed the process which is designed to enable that to happen. That is a crucial point.
My noble friend Lord Faulks suggested that websites are being given protection beyond other media channels. Let me be absolutely clear: the defence for such websites only applies where website operators are not the ones who post the statement. The closest parallel might be a letter to an editor which the paper chooses to publish: it is not automatic.
Amendment 23A seeks to provide for the Clause 5 defence to apply to other “electronic platforms”, rather than simply “websites”, that have defamatory material posted upon them by third parties. The purpose of Clause 5 is to provide a defence to website operators that host third party content over which they exercise no editorial control. We chose to focus on this specific category of service providers because, as the noble Earl alluded to a moment ago, it is about definitions. How do you define things? My own background in business dictates that when I saw the words “electronic platform”, I saw them from the perspective of the world of financial services, in which it often alludes to banking platforms, which are slightly more limited than websites.
I also undertook during the summer break—apart from visiting Australia as I informed noble Lords I would—to look up definitions. How do you define an “electronic platform”? The varying degree of definition not just of electronic platforms but of platforms themselves is interesting. There is no consistent application one can put in.
Looking to the development of the world wide web, the word “website” emerges from that. The noble Lord, Lord Browne, made the point that we are living in an evolving and ever-changing world. As we are looking at this issue, as crucial and sensitive as it is, I am sure that we will return to this in the years to come.
The noble Baroness, Lady Hayter, also talked about DPP guidance on criminal prosecutions. We are certainly looking at the DPP’s guidance, but we can see nothing in our proposals that would be likely to conflict with that guidance specifically.
It is not clear what “electronic platform” in Amendment 23A is intended to cover. As I have said, it has been suggested that the term “websites” is too narrow and risks not capturing new technologies in this fast-changing marketplace. We can debate and discuss which term is more appropriate, but I go back to the words of the noble Lord, Lord Browne: we live in a changing world. If in further discussion in Committee or at Report a form of technology is brought to our attention that is akin to a website and serves the same purpose in hosting third-party content, and a suitable form of words can be found adequately to describe that in legislation, the Government are open to considering that point further.
Amendment 23B would mean that a website operator who complied with Clause 5 would have a defence only against a claim for damages in defamation. As Clause 5 stands, the website operator will have a complete defence provided that he complies with the new process. As noble Lords will know, damages are by far the most common remedy in defamation proceedings, and it is difficult to see what difference the amendment would make in practice. It appears unlikely that claimants would bring a claim for a remedy other than damages. The Clause 5 process will provide a quick and cheap means for a complainant to establish contact with the poster of the material and secure take-down. Should legal proceedings be necessary, action can be brought against the poster. In the event that such a claim succeeds, damages would be payable by the poster, and Clause 13 enables the court to order the website operator to remove the material. We therefore do not consider that the amendment is necessary.
Amendment 24 seems to stem from concern that a website operator will use associates to post defamatory material on their sites, knowing that they can hide behind the Clause 5 defence. The Government are not persuaded that there is a significant risk of that happening. The noble Earl also referred to practical issues. However, in the event of such a situation, the claimant would be able to pursue an action against the individual poster and would not be left without a remedy.
In addition, there is the obvious difficulty in respect of establishing what is an association. For example, who would qualify as an associate of the website operator and how would the claimant be expected to prove that association? Conceivably, an associate of the website operator could post something defamatory without the website operator’s knowledge. In such cases, it would seem entirely inappropriate to prevent the website operator from relying on a Clause 5 defence, provided, of course—I come back to the point I made earlier—that the operator had followed the Clause 5 process.
Amendment 24A, tabled by my noble friend Lord Lucas, would mean that a website operator would not lose their defence if they had moderated the statement or had made or suggested alterations to the content. We do not believe that the amendment would be appropriate. Subsection (10) already makes clear that an operator would not lose the defence simply by reason of the fact that they moderated statements posted on the site by others. That will ensure that operators are not discouraged from moderating their sites in a responsible way. However, the amendment would go further and allow them a defence if they moderated in a way which changed the content of the statement. In practical terms, this could mean that an operator who changes the statement in a way which made it—dare I say?— defamatory, or makes the defamation worse, would be protected. I fully accept that that is not my noble friend’s intention.
I believe that my noble friend Lord Phillips seeks by Amendment 25 to add clarity. However, we do not believe that the amendment is necessary. I shall explain why. The Government’s view is that subsection (4) already provides that test. For the purposes of subsection (3)(a), it is possible for a claimant to identify a person only if the claimant has sufficient information to bring proceedings against the person. As such, the Government’s view is that the insertion of “reasonably” would not make it any clearer, because it is clear from the clause as it stands.
Lord Phillips of Sudbury
Does my noble friend have any comprehension of just what that last process would require from the complainant—the time that it would take and the costs that would be incurred in getting the court order to reveal the identity of the poster? In reality, that puts an absolutely impossible barrier against anything like a reasonable remedy for the complainant.
Lord Ahmad of Wimbledon
As I alluded to in my opening comments, this is about getting the balance right. If there were such a case, and I totally accept that there are issues that would arise here, there would be a cost element to this process. At the same time, there are many occasions when a balance must be struck on this, whether we are looking at professional websites or websites where people often post under a pseudonym and may be posting for good reasons of safety and security to protect themselves. That being said, though, I hear what my noble friend has said. I assure him again that we continue to consult with stakeholders across the board on the contents of such regulations and have sought their views on the practicality aspect of this new process. As I have said, this is something that we are looking at, and any suggestions that are made are looked at and discussed. I am sure that we will return to this, if not in Committee then on Report.
As I have said, we are looking at the issue of whistleblowing and the necessity at times to protect confidentiality, and setting that against the very arguments that have just been put forward by my noble friend. We feel that Clause 5 strikes the right balance. As my noble friend Lord Lester said earlier, there are two sides to the coin. The process set out in Clause 5 provides a quick and easy way for the claimant to obtain the necessary detail where the poster has no objection to providing it, but then places responsibility back on the claimant to secure a court order where the poster is unwilling to share the detail. This broadly reflects the position that applies in relation to anonymous material published offline. Where a claimant is unable to identify the author of a defamatory statement, and in the offline context does not wish to pursue the publisher, they can seek a court order for release of that information by whoever is in possession of it.
Amendment 26A would make a drafting amendment to Clause 5(4), replacing “was” with “is”. I can understand why this amendment has been brought forward, but I hope that I can reassure the noble Lords on this point. When the clause refers to posting, it is the act of posting with which we are concerned. No matter whether the posting stays up or comes down, that act has happened in the past, so it is our view that “was” is the most appropriate word. The amendment however raises important questions about what a website operator’s responsibility should be where a posting has already been removed. We are seeking views as to the content of proposed regulations and will take that issue away and consider it alongside the responses that we receive.
Finally, Amendment 29, in the name of my noble friend Lord Phillips, provides that a Clause 5 defence be defeated in cases where the claimant can prove malice by or on behalf of the website operator. The Clause 5 process requires the website operator to act in accordance with the process and entirely neutrally. It is difficult to foresee circumstances in which a website operator who complied with the Clause 5 process could do so maliciously. If it is the poster who is acting with malicious intent on behalf of the website operator, the claimant will still be able to bring proceedings against the person responsible for posting the statement. Therefore, we do not see what an amendment such as this would add to the clause.
Lord Mawhinney
My noble friend started by saying that it was the Government’s policy to achieve a balance and he repeated that as he made his way through the amendments. It was mildly ironic that he followed immediately after the noble Lord, Lord Lester of Herne Hill, who read a rehash of Mumsnet evidence to the Joint Committee and finished by saying that he was doing it just to ensure balance.
On the one hand, as has been made clear, lots of organisations are saying, “Free the shackles; let us do this and that; there should be no, or minimum, restriction”. We know who is arguing for freedom to defame. On the other hand, there will be lots of individuals who find their reputations tarnished or trashed, and they will have no organisations standing up for them. Will the Government therefore argue for the individuals whose reputations are at stake to ensure that the end point is balanced? If not, how do they envisage balance, when you have got Goliath on one side and not even a mini Goliath on the other?
Lord Ahmad of Wimbledon
I thank my noble friend for his intervention, although my recollection of the David and Goliath story is that David ended up winning. Divine intervention is always something that one should bear in mind.
Coming back to the point raised by my noble friend Lord Mawhinney about clarity and balance, as my noble friend—and indeed the whole Committee— recognises, this is a difficult area. I reiterate that the Government want to get this right and we are still taking views, as we are in this Committee, on this area. We are consulting stakeholders, as I have already said, on the content of the regulations provided for under Clause 5 and have extended the deadline for responses in this respect to 31 January. I reassure my noble friend Lord Mawhinney, whose guidance and mentoring I always welcome, that this is about ensuring that, when it comes to issues of defamation, those people who have been proven to have fallen victim are properly protected and that recourse is available. However, the balance of that has to be in ensuring that there is not too much of a burden on website operators. In some cases, as has been illustrated by other noble Lords, it is something that is, at times, beyond their control. What is important is to ensure that website operators follow the appropriate process. That said—
Lord Mawhinney
I thank my noble friend but encourage him to edge slightly closer to answering my question. He said a very interesting thing: that we are consulting with stakeholders and, indeed, have extended the time for consultation. That actually makes my point. The stakeholders are on one side of the argument, and the individual whose reputation is at stake is on the other side of the argument. The consultation is not even balanced. That causes, I think, concern to a number of noble Lords in this Committee. It certainly does to me, and I would like to know what constitutes balance in the mind of the Government. Incidentally, I will just throw in that we are going to have plenty of opportunity shortly to debate this Government’s theological position, and perhaps my noble friend would take a little advice: I would not go there if I was him.
Lord Ahmad of Wimbledon
Theology is always one to park, but, as a man of faith—and as a fellow man of faith—I take my noble friend’s guidance on that. The point I am making is about stakeholders—those people who are looking at this issue. Yes, it involves website operators, but the point of this clause is that it is not the website operators doing the defaming, it is the person who has written the statement. That is the person who should be held accountable and responsible. Where the website operators’ obligations come in is whether they have followed the process as detailed in Clause 5.
Coming back to the point about balance that my noble friend made, this is not just about talking to website operators but about talking as well to people who represent claimants, to ensure that those people who represent the body that feels it may be subject to such actions are also heard and that their case is also made. However, I am sure that my noble friend would agree with me that, if we started consulting every single individual who may or may not be concerned on an individual basis with this, our Committee would continue for a very long time. Nevertheless, as I have alluded to several times—and I repeat the point again—in speaking to all these amendments it is important for me to place on record that the Government are aware of the pace of change in internet and electronic communications. Even as perhaps one of the younger Members of your Lordships’ House, I remember in my professional life when the internet first came alive. Things are changing by the minute, and the pace of change is somewhat beyond even my comprehension. There are innovations in electronic communications and, as I have indicated in all my responses, in particular in response to Amendment 23A, we have an open mind in respect of terminology. In addition, we believe that putting the details of the Clause 5 process in the regulations provides greater flexibility to adjust aspects of the new procedure should that prove necessary as technology develops.
Lord Faulks
I am grateful to the Minister for giving way; he has been patient and has had to deal with a lot of amendments. He was dealing a little while ago with Amendment 29 in the name of my noble friend Lord Phillips of Sudbury. I understood his answer to be that he could not conceive of circumstances in which an operator of a website could be malicious, and this amendment was therefore not necessary. However, operators of a website are given an admittedly qualified privilege by Clause 5 which puts them in exactly the same position as those in other fields of the law who have a qualified privilege, the defence of which is defeated by malice. Is it not therefore inconsistent that such a remedy should not be available in the terms of this amendment? It may not happen very often, but that is no reason for it not existing at all.
Lord Ahmad of Wimbledon
I hear what my noble friend says. Perhaps we can refer to this matter; he makes a valid point. As he rightly acknowledges, we would not see this issue occurring on a regular basis, but I will certainly reflect on his comments on this.
A variety of amendments has been tabled. On “balance”, I suppose it depends how you define the word. However, in seeking to bring the Bill forward, and particularly with this clause, the Government are seeking to strike the right balance. We continue to listen, hear and consult with all parties on both sides of the coin. We are working to ensure that something practical and workable, which protects those who are subject to such actions, comes out of this process.
Lord Lucas
My Lords, I was encouraged by my noble friend’s response, and by his batting at the subsequent bowling. It is clear that we are both aiming in the same direction and that, given the expertise of his colleagues and the good will of the Government, we may get somewhere interesting. I would be grateful if he would allow me to come in for a meeting with officials, preferably before the end of January if that is his consultation deadline, to pursue some of the practicalities; a nod will do on these occasions.
We should be more robust in talking to website operators about right of reply. This is merely a question of tweaking a few lines of code. It may be inconvenient for people to do it, but it is essentially practical. It is such a fundamental thing, given the way in which views, opinions and statements travel now, that one should be able to attach a reply to it and deal with it robustly in that way. To have a statement with a reply available to people as soon as they pick something up is a powerful thing in the internet world. That is has not been provided for is merely that it has not been coded. It is essentially not impossible under any circumstances with any website if people put their mind to it. It will not happen immediately, but it should certainly happen within a year if that is a requirement. I would be chary about accepting excuses on that.
There is something to be said for looking at different arrangements for statements about real persons as opposed to statements about businesses. Picking up on the points made correctly and forcefully by my noble friend Lord Faulks, if someone is accused of something which goes to their person, that cannot be allowed to hang around for seven days, or even seven hours, without being dealt with. It should not be within the policies of any reputable web operator that such statements are allowed on their website. These things belong in the hands of the police if there are real accusations. It should not be part of our view of electronic media that it is there to give currency to that sort of statement, whether true or not.
On the other hand, we must be powerful in allowing people to make statements about businesses or the way in which people do business, and to allow website operators to be robust in their defence of people who have made those statements on their websites. As Mumsnet said, the easy answer is to take them down. The only way to defeat that easy answer is to make very clear and very practical the responses that are available to the website operator so that they can have certainty in knowing whether a comment is sensible and that the law allows them to stand by it. That is what I want to pursue with the Minister when we have our meeting. On the point about maliciousness, we are talking about a lot of little website operators and not just the big guys, and there are some very malicious ones out there.
Lord Ahmad of Wimbledon
I would of course be happy to arrange a meeting. The benefit of being in the Moses Room is that your officials are right behind you, and I am sure that they have noted it as I have.
Baroness Hayter of Kentish Town
My Lords, as in December I wished the Committee a happy Christmas, maybe now that the Minister is back from Australia I can wish the Committee a happy new year. I thank the Minister not only for coming back from Australia to address us but for his response. I thank also everyone who has spoken, particularly my noble friend Lord Triesman and the noble Lords, Lord Phillips of Sudbury, Lord Lucas, Lord Faulks and Lord Mawhinney, for their support. I am grateful also for the contributions of the noble Lord, Lord Lester, and the noble Earl, Lord Erroll. I am sure that the noble Lord, Lord Mawhinney, does not need reassurance that his summary of the Joint Committee was, as always, spot on and symptomatic of what he did in that committee, focusing straight in on the victim, who often has no recourse to law.
There is a view that somehow the web is less serious than the printed word, but when I was learning my journalism, I was told, “Remember that today’s newspapers are tomorrow’s fish and chips wrappers”. Actually, some printed words are so ephemeral that the web is more serious rather than less serious.
I am still not quite sure what the Minister thinks is a website. Perhaps he will tell us in a moment whether Facebook is a website, whether a Tweet is a website and whether our Lords blog—which I recommend to you all—is a website, because it would be useful to know.
Given that we are in the slightly unusual position of having previously adjourned in the middle of an amendment and having the Hansard for part of it, perhaps I might quote what the noble Lord, Lord Phillips of Sudbury, said on 19 December. He said:
“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 … They are the Goliath in the defamatory relationship … and … their impunity is not justified in terms of freedom of speech”.—[Official Report, 19/12/12; col. GC568.]
That is really the nub of what we are talking about. Along with the noble Lord, Lord Mawhinney, I cannot agree with the view of the noble Lord, Lord Allan of Hallam, that, with the web, we are talking just about private speech in a public space. We are talking about a publication, whether it arrives on your iPad, on a laptop or on something else. The issue of anonymity arises more frequently on a website than it does in a publication, which is perhaps why we concentrate on it, but if what the Government are suggesting—the 72 hours, the seven days and then going to court—is accepted, everyone who wants to defame will just go anonymous. Why should they not just go anonymous, knowing that they will basically be beyond the reach of the law?
Some of our amendments to which the Minister has referred are fairly uncontroversial. I would have thought that the “electronic platform” proposal is surely worthy of consideration. We may not have got it right, but I hope that what we have at the end is robust even if it is done by attached guidance. However, I will concentrate on two of these amendments.
Lord Lester of Herne Hill
Lord Lester of Herne Hill
My Lords, the amendment is grouped with Amendment 27 in the names of by the noble Viscount, Lord Colville and the noble Lord, Lord Allan, to which I shall also speak.
My amendment is at least easy to understand. It would simply add the words “and unlawful” on page 4, so that the notice of complaint under Clause 5(6) would require the complainant to specify a name, set out the statement concerned and explain why it is defamatory of the complainant—and, I would add, “and unlawful”—and then specify where on the website the statement was posted and contain such other information as may be specified in regulations.
Amendment 27 is much more prescriptive. I will not develop that argument because it is not my amendment, but Members of the Committee will notice it sets out in some detail what it is that the complainant is required to explain. Looking at the two amendments, mine is much less prescriptive than Amendment 27, although that does not make it necessarily better. The amendment gives effect to the recommendation of the Joint Committee on Human Rights, on which I serve, that,
“the threshold for a Clause 5 notice should be elevated to ‘unlawful’, which would also ensure consistency with the E-Commerce Directive and the Pre-Action Protocol for defamation”.
The committee noted that the Government said in response that they were,
“concerned that to adopt the higher threshold would overcomplicate the process”,
because,
“requiring complainants to provide details of why they consider the posting to be unlawful, rather than just defamatory, would make it more difficult for a layman to make a complaint without first having sought legal advice, and would add to the cost and difficulty involved”.
The Government sought to distinguish,
“between the purposes of the E-Commerce (EU Directive)”—
which uses the word unlawful—and Clause 5, so as to seek to “justify” the apparent “inconsistency”.
Under article 19 of the e-commerce directive, a website operator acting as an intermediary hosting material is potentially liable once notified that a statement is unlawful, as it would be under my amendment. By contrast, a website operator is not liable under Clause 5, provided that it does not post the defamatory material. The Government say that the website operator acts merely as a middleman or go-between and does not need to consider the merits of the complaint in order to protect itself from liability. However, the Joint Committee on Human Rights concluded that:
“We are not satisfied with the Government’s distinction in this matter. We think there is a real risk that website operators will be forced to arbitrate on whether something is defamatory or lawful, and will to readily make decisions on commercial grounds to remove allegedly defamatory material rather than engage with the process. As drafted, Clause 5 risks removing material from the internet, which, although it may be defamatory, may be lawful if a relevant defence applies. Material which is lawful may be suppressed because website operators are served with such notices”.
The Libel Reform Campaign supports this amendment, which allows me to make an apology to both the noble Lord, Lord May of Oxford, and to it. Last time in Committee, I became grumpy when the noble Lord, Lord May, appeared, on its behalf, to suggest that the “responsible publication” defence in Clause 4 was not good enough. I think there was a misunderstanding. I have now received the briefing from the Libel Reform Campaign and realise that it supported the amendments being made to Clause 4 and that the remarks of the noble Lord, Lord May, were not intended to say anything other than that. Because of the sensitivity of the matter, I thought it right to make that clear at this stage.
I am trying to keep this brief, and not succeeding very well, but I should also add one other point. I need to quote the Ministry of Justice’s consultation on the Clause 5 regulations—the regulations, not Clause 5 as it is—because it seems inconsistent with the Government’s position on my amendment. It says, at paragraph 9, that:
“We propose that the following should be included in a notice of complaint (this is a combination of what is already listed in clause 5, and other points that we think should be in the regulations)”.
Here the Ministry is telling us what they think should be in the regulations. It has,
“the complainant’s name and a means of contact … specific information to direct the operator to where the post can be found on the website … the statement complained of together with an explanation of how the statement is defamatory of the complainant, including (as appropriate) details of any factual inaccuracies or unsupportable comment within the words complained of”,
and then other matters as well.
The Government apparently have it in mind that the regulations will require quite a lot from the complainant. I agree with that, but I am troubled that unless my amendment inserting the phrase “and unlawful” is accepted, the draft regulations will go further than is permitted by Clause 5. Although that sounds very technical, it is quite important to ensure that that is not so. It does not seem to be enough that the complainant can simply say that the complaint is defamatory. All that “defamatory” means is that the complainant is saying that it is not true and it affects reputation. That does not seem to me enough—and it does not seem to the Government to be enough, considering their view of the regulations—for that to trigger responsibility on the website operator. At least the complainant should have thought about whether it is not merely harming reputation but also in some way unlawful. This does not have to be done with great legal analysis, but there should be some such indication.
Lord Browne of Ladyton
I do not wish to interfere with the noble Lord’s attempt to be brief. Will he consider the observations that he has made, which he draws from paragraph 9 of the consultation document of which we have all been sent a copy, in the context of the words of the Bill itself—in particular, the words of Clause 5(6)(b) which require that the complainant in the notice, among other things,
“sets out the statement concerned and explains why it is defamatory”.
Would that not be a basis for a set of regulations that expand on it in the way in which this paragraph sets out?
Lord Lester of Herne Hill
My Lords, that may be so, in which case I made a false point on that. However, my main point is that it is not enough—and the regulations seem to accept this, in draft—to simply say that it is defamatory. It must in some way indicate that it is unlawful. That is probably common ground in the way in which I read the draft regulations. If that is so, and that is what we are told in our reply, it may well be that my amendment will not be necessary.
In my attempt to be brief, I appear to be arousing too much interest. I give way to my noble friend.
Lord Phillips of Sudbury
I think I know what my noble friend means in the distinction between what is defamatory and what is unlawful. However, it would be helpful to be clear with the Committee what distinction he sees between “defamatory” on the one hand and “unlawful” on the other.
Lord Lester of Herne Hill
I am sure my noble friend Lord Phillips understands that I am speaking clothed in the majesty of the Joint Committee on Human Rights as well as my personal view. That committee and its advisers came to the view that simply saying “defamatory” was not good enough. All that “defamatory” means is that there is a false statement which is seriously harmful to the reputation of the claimant, whereas “unlawful” means that one also looks at what the Bill defines as unlawful and what the defences are. We are attempting to make that as clear as possible. Therefore, the complainant, in order to invoke this whole procedure, ought to do something more. It seems as through the draft regulations are aimed in that direction. I beg to move.
The Deputy Chairman of Committees (Viscount Simon)
Before I propose Amendment 26, perhaps I may ask noble Lords to curtail their enthusiasm in asking questions before the amendment has been proposed.
Viscount Colville of Culross
Clause 5 is very welcome as it recognises the huge problems facing both complainants and defendants in libel cases with the introduction of the internet and its increasingly important position, as we have all discussed, in the arena for the dissemination of information. I want this amendment to build on the amendment put forward by the noble Lord, Lord Lester. I hope that Amendment 27, in the names of myself and the noble Lord, Lord Allan, will expand the discussion and set out the criteria for the definition of “unlawful”.
I am acutely aware of the ability of the internet to cause great damage to an individual’s reputation, as we have seen with the dreadful case of libel committed against Lord McAlpine, who has sued against many people who defamed him on Twitter. It is easy to focus on the high profile and serious cases such as that of Lord McAlpine and not on the many thousands of other libel complaints about online material where the distinctions between fact and opinion are more difficult to ascertain. We do not hear about these cases because, when in doubt, the website operators’ practice has been, in far too many cases, simply to remove the materials.
Smaller websites, such as Mumsnet and news and business blogs supported by WebPress, both of which support this amendment—indeed, they are not Goliaths, as the noble Lord, Lord Mawhinney, suggested—do not have the knowledge and capability to give their complaints proper scrutiny; nor do they have the legal resources to fight libel action and risk liability. The safest thing for them and many other internet intermediaries is just to take down the postings, which I believe would be damaging to free speech. It is therefore very important that Clause 5 strikes the correct balance between the right to protect the reputation of the individual and the freedom of expression on the internet. I want the notice of complaint procedure to be a cheap and easy means of striking this balance.
In Committee on the Defamation Bill in the other place, the Government rejected an amendment rather along the lines that I am putting forward today on the basis that it would be too onerous on claimants to have to consider the potential defences to defamation. The Joint Committee on Human Rights acknowledges this argument but considers the risk of website operators simply removing the material, rather than engaging in a proper analysis on the merits, as being too great.
The Government are correct to worry about whether claimants can be expected to understand the subtleties of libel defences, honest opinion and qualified privilege, and should not be forced to take legal advice in order to put forward the initial notice of complaint. However, complainants should at least be able to address the factual matters relevant to the complaint, including stating why any comments are unsupportable and why the claimant is likely to suffer serious harm. I want all the conditions to reach the threshold for the notice of complaint to be on the face of the Bill. Surely, if claimants are required first to check the Bill and then the regulations to find out what to put in the notice of complaint, as Clause 5(6)(d) suggests, it will only complicate matters.
I hope that the sub-paragraphs in my amendment will allow claimants to state basic factual information within their knowledge in relation to their complaint without having the need for lawyers. Paragraph (e)(i) under Amendment 27 asks the complainant why the allegations against them are defamatory. This already exists under Clause 5. Factor (ii) asks the complainant to state why the statement complained about is “inaccurate or untrue”. This addresses the possible defence of truth.
Factor (iii) asks the complainant to state why “any opinion” in the words complained of is “unsupportable”. It also might play in favour of the complainant because it asks them to provide any evidence to show that the comments in the posting are unsupportable. That would enable website operators to have some regard to the available defences of truth and honest opinion. This simply requires that the complainant provides factual evidence and so not have to get into a legal debate about whether the words complained of are statements of fact or comment.
Factor (iv) seems to be in line with the spirit of the Bill outlined in Clause 1, which ensures claimants should show that “serious harm” has been done to their reputation. It also fits with the interim guidelines put forward by the DPP on 19 December, which suggest that prosecutors should proceed against authors on social media only if the communication is more than offensive, shocking, disturbing, or satirical, or is more than the expression of unpopular or unfashionable opinion about serious or trivial matters, or banter or humour, even if distasteful to some or painful to those subjected to it.
The noble Baroness, Lady Hayter, suggested that Amendment 4 was a better way of dealing with this issue of seriousness. My concern is that that amendment is about commercial bodies, and not all comments on a site such as Mumsnet will be against commercial bodies; they might be against authors or experts in a field. It seems wise to have a seriousness threshold included in the notice of complaint.
In December last year I expressed my concerns to the Minister about the criteria for the notices of complaint. They are addressed in paragraphs 8 and 9 of the Ministry of Justice consultation sent out last week. I am grateful to the Minister for having included three of these factors from my amendment in subsection 9. However, I am concerned, as the noble Lord, Lord Lester, suggested, that the two paragraphs might add to the confusion over the difference between the words defamatory and unlawful. Paragraph 8 sets out what are called the core elements to be included in the notice of complaint, which are the same as those stated in Clause 5(6) of the Bill, which will raise them to a defamatory standard. Paragraph 9 goes on to state that the regulations have the option of looking at other factors, including the three that I have suggested, which would make them unlawful. Surely this would only compound the confusion between UK and EU standards, which I have already expressed.
I move on to factor (f) of my Amendment 27. I gather that there is a technical problem, and that it should in fact be in subsection (7), so it is perhaps more of a probing amendment. I will, in any case, put it forward for the Committee to consider. It will make provision for a procedure whereby a complainant, a website operator or an author who wants to dispute whether the contents of a notice of complaint under subsection 3(b) have met the requirements of subsection (6). This is meant to deal not with serious allegations of libel, which will have to end up in court, but with grey areas of more trivial cases.
After all, the notice of complaint will only contain the information provided by the complainant. The website operator or author could have reasons to question these contents; for instance, where there is a dispute about whether the original posting is defended by fair comment or is a statement of fact.
The Ministry of Justice, in its consultation paragraphs 23 and 24, explains what will happen if the author refuses to give full contact details to the operator. In that case, the website operator will be required to take the posting down, if it is to rely on this Clause 5 defence. This will leave them in much the same position as they are now—needing to remove large amounts of potentially non-defamatory material in order to avoid liability.
Paragraph 24 suggests—and the noble Lord, Lord Phillips, picked up on this—that if the complainant wishes to take further action, he will need to seek a Norwich Pharmacal Order for the website operator to release the identity and contact details that it has in relation to the author. My concern, and that expressed by the noble Lord, Lord Phillips, is that this order can cost at least £3,000 in legal fees and may not deliver the identity of the author in the end. The complainant could end up with an IP address through the broadband provider, but that will not guarantee that the identity can be uncovered. It might in fact be necessary to get another Norwich Pharmacal order to trace the IP address through a further website, which may turn out to be an internet café, the email of which may be mickeymouse@hotmail.com. The complainant would then be out of pocket and still unable to contact the author.
Commercial sites such as TripAdvisor, as well as non-commercial websites such as Mumsnet, support this suggested procedure, as do commercial platforms like WordPress, which host small blogging sites, covering a wide range of subjects, some of which I hope your Lordships would regard as being in the public interest, such as news from Nigeria, advice on spare car parts and even which baby lotion to use. Many of these small websites and blogs cannot afford lawyers to defend a libel action, but would like to have a legal view on a disputed notice of complaint from a legal authority.
This procedure would also benefit the complainant, who would then be able to use the declaration by the master or a procedural judge, if it is in their favour, to deal with the problem of anonymous internet users repeatedly reposting the same material on other websites once the original website operator has decided to take it down. However, the noble Lord, Lord McNally, in his letter to me last month, and the noble Baroness, Lady Hayter, in her speech of 19 December, expressed concerns that the procedure would allow any author to hide behind anonymity by claiming that they were whistleblowers, while placing an extra burden on the complainant to fund the procedure. I want to emphasise that the procedure would be a means for dispute resolution about the contents of the notice of complaint, and one which could be initiated by the claimant, the author or the website operator. I hope that this goes some way to mitigating their concerns.
I am not a lawyer, I am just a journalist, but I am advised that the new procedure could simply latch on to the present master’s application procedure on the Queen’s Bench Division of the High Court. There could be a new section to the Queen’s Bench Division website with simple, procedural guidelines and copies of the standard form application and draft declaration for the claimant. The claimant could fill out the form, provide a copy of his notice of complaint and explain why it needs the Clause 5 criteria. That could be put before a master, who would decide whether to grant the declaration that the Clause 5 criteria have been met. Claimants would not need to lodge hard copy documents with the courts, as under the existing application procedure.
The master could ensure not just that the claimant had complied with the requirements of Clause 5 but that the claim met the basic requirements of a libel claim: that the words are defamatory, likely to cause serious harm and have no obvious defence. I ask noble Lords to consider my amendment favourably.
Lord Morris of Aberavon
My Lords, I make a brief intervention. I listened very carefully to what the noble Lord, Lord Lester, said, in moving his amendment, but I need a little further assistance. I am not quite clear about his purpose. I do not think that he specified—I was listening as best I can—the distinction that he makes between a statement which is defamatory and a statement which, additionally, might be unlawful. The danger I see, if they have the same meaning, is that the courts will look at the provisions very carefully and regard them as otiose. What purpose is intended? Does it create an additional burden on the complainant? When he makes his representations under the clause, will the complainant have to define in what way the statement is unlawful? Perhaps we could have assistance on that score.
Lord Marks of Henley-on-Thames
My Lords, I shall speak in broad support of the sentiment behind Amendment 27 in the names of the noble Viscount, Lord Colville of Culross, and my noble friend Lord Allan, but first I address Amendment 26, which I support as a bare minimum. I also address the point put by the noble and learned Lord, Lord Morris, to my noble friend Lord Lester. I think that my noble friend understated the position on what is defamatory and what defamatory means. As I have always understood it, a statement is defamatory if it causes the necessary damage to reputation. It may then be that under existing law, a defence of justification can be mounted which shows that the defamatory statement is justified as true. That does not stop the statement being defamatory, but it stops the statement being unlawful. In other words, it starts off as defamatory—I see learned agreement on the other side of the Room—and then one looks at the question of defences.
It follows that without the word “unlawful” in paragraph (b), the requirement that the complaint,
“sets out the statement concerned and explains why it is defamatory of the complainant”,
goes only half way and is nowhere near enough. I echo the sentiments expressed by my noble friend Lord Mawhinney about the view of the Joint Committee on the Bill and the topic: the purpose of whatever procedure we adopt is to give some protection, as far as is practicable, to persons defamed on the internet and, on the other side, to impose some responsibility on website operators, without ensuring that an operator is stuck with liability for all the material posted on his site.
I strongly supported, and indeed took some part in formulating, the notice and takedown procedure for material from unidentified authors proposed in our report, with the possibility of an operator securing a leave-up order for material that, although it was from an unidentified author, nevertheless the operator believed ought to stay up—for instance, in the case of whistleblowers. The Government have opted for a different procedure, and it is right that that procedure draws the correct distinction that we drew between the posts of identifiable authors, who can then be identified and sued, and anonymous material. Whatever system we have, though, it is important that there should be some quick and cheap option that levels the playing field between complainant and author or operator. The detailed notice of complaint as envisaged by Amendment 27, as the noble Viscount, Lord Colville, has explained, is a satisfactory first step.
I appreciate that it can be said that, subject to the point made by the noble Lord, Lord Lester, the word “unlawful” is required, but regulations could be made within the ambit of “defamatory and unlawful” that would expand upon the requirements for a detailed notice of complaint. However, I suggest that it is better that, rather than being left to regulation, the broad contents of the notice of complaint should be spelt out in statute. I say that because one of the purposes of the Bill, as we saw it in the Joint Committee, was to make the law as accessible as possible so that anyone could look up what procedures would be required by looking at the Act. By effectively leaving the requirements for a notice of complaint to delegated legislation, the simplicity of accessing the statute and accessing law on the internet is reduced.
It would then be necessary to add to the requirements for a detailed notice of complaint, something like Amendments 25A and 25B proposed by the noble Lord, Lord Browne of Ladyton, and the noble Baroness, Lady Hayter, in the previous group. I, too, was pleased to see the Minister’s response to those amendments show at least some flexibility or promise thereof. We would then have the beginnings of a system to ensure that, where defamatory material was posted by an operator, the detailed process of complaint would get some publicity because the notice of complaint would be put on the website by the operator. That would offer some partial protection to the person defamed. I applaud the suggestion that if the operator then fails to put up such a notice of complaint, which he can do, he must take his chances and accept that he is made liable to be sued by the deprivation of the Clause 5 defence.
I reiterate what has been said: neither the proposed system nor any system that we could possibly devise would be perfect, for the simple reason that my noble friend Lord Lester mentioned earlier today—namely, that we are trying to formulate a local response to an international phenomenon. However, I suggest in answer to some of the defeatism—the Minister was defeated up to a point in his earlier reply—there is no reason to give up on the problem because the system is not perfect and therefore do nothing. It is worth doing all that we can, I suggest, for two reasons. The first is that we can ensure fairness in respect of posts that are subject to our jurisdiction. The second, I suggest, is that by what we introduce in legislation, we can set an example of best practice for website operators elsewhere.
I would like to say a word or two about civil procedures that would be appropriate either under Amendment 27, under Clause 5 or under the regulations. I suggest that it is essential that any such procedures we adopt respond fully to the point made by my noble friend Lord Phillips of Sudbury that the procedures that involve going to court can be very expensive. The answer from the noble Viscount, Lord Colville, that this can be dealt with in the ordinary way before Masters is a partial answer only, because those of us who have attended before Masters, and have prepared interim applications before Masters and district judges in other cases, know that they themselves can be very expensive indeed.
What we envisaged on the Joint Committee was a quick and cheap paper-based or internet-based procedure, with specialist district judges simply looking at the case presented to them on paper and making a decision. Those specialist judges would give their decision, but it would of course be only a holding position, because action would be deferred. However, it is not right to introduce, by what we do now, a whole new level of expensive procedure in respect of internet actions, which, from the McAlpine case, we know can sometimes result in £5 awards or £5 settlements over a very large number of cases. Those cases need to be kept small, simple, quick and cheap.
Lord Allan of Hallam
My Lords, I remind the Committee of my earlier declaration of interest that I work for Facebook, which is a reasonable-sized website operator. In supporting the amendment that I and the noble Viscount, Lord Colville, have tabled, I first wanted to set out that we all have a common goal here, whichever side of the debate we are coming from. In a sense, it has been divided into sides, but I think that there is one common objective: unlawful defamatory material should be swiftly removed from wherever it should appear, whether in print media or on the internet. At the same time, there should be minimal collateral damage to content that is not unlawful. We want content that is lawful to stay up and people to be able to share it with each other, and content that is unlawful to come down. It is a simple objective, and both Amendments 26 and 27 are trying to take us towards that.
Amendment 27, in particular, is crafted in the context where we have people who are prepared to use any legal tools that we make available in ways that we did not perhaps intend, and will use them maliciously. There is no doubt that tools that are made available for people to request take-downs of internet content are used, and will be used, by people who are seeking to interfere with the freedom of speech of others. We must make sure that we have crafted the tools in such a way that we minimise that possibility, as well as maximising the opportunity for people to get content taken down that should be taken down. The objective is that 100% of the requests made through this process should result in the right form of action and that that action should be swift. I think the amendment, by specifying in more detail the form which the notice should take, is aimed to create what one might call a well formed notice. A well formed notice that has all the necessary information will be able to be acted on swiftly by the recipient of that information—in this case, the website operator—and the solution can be reached more speedily.
Lord May of Oxford
This is possibly a stupid point, and it may reveal my misunderstanding, but as I look at this—I said this during our first Sitting—there are occasions, particularly in the scientific sphere, when the intent is correctly defamatory, where one is saying, “This is wrong”, “This is dishonest” or, “This experiment has been faked”, and the like. Much of the wording of this assumes that if it is harming you, then you have rights, as it were, to stop the harm. However, I can think of lots of examples where the intention is deliberately and properly defamatory.
Lord Allan of Hallam
I think that the noble Lord, Lord May, is correct. If I understand the intent of the amendment of the noble Lord, Lord Lester, it is precisely to address those circumstances where, again, somebody who intends to create a defamatory statement that is lawful is not prevented from doing so. For that reason, I support Amendment 26 as well.
In setting out the various criteria that we have included in Amendment 27, I hope that these will also address similar concerns, in that they will require the complainant to go into a little more detail about why their complaint constitutes unlawful content as opposed to simply content that they do not like. The reality today is that people will simply fire off a letter to a website operator, saying, “I allege that this is defamatory”, with very little more detail than that. It is very hard then for the website operator to act swiftly, which we all want, and to guarantee fairness, which I think that we also want, between the two parties involved.
Lord Phillips of Sudbury
My Lords, I persist in seeing this Bill from the point of view of the little man. Others tend to see it more from the point of view of web operators—I refer not only to my noble friend who has just spoken. One has constantly to bear in mind the hardest case. Unless we get it right for the hardest case—that is, a person of few means but a reputation that he or she cherishes who is grotesquely, viciously, maliciously and intentionally libelled—and unless there is some protection in this measure against the web spreading it at rapid rate across the world, we will not have done our job properly.
I strongly support Amendment 26, although I wonder whether my noble friend thinks that the lay person would find the clause easier to understand if it said “unlawfully defamatory” rather than “defamatory and unlawful”. However, that is a small point.
On Amendment 27, I was most grateful to the noble Viscount, Lord Colville of Culross, for what he said about the cost problems of a Norwich Phamarcal application. It is a great tribute to his fair-mindedness that he made that point. I tried to make it when responding to the Minister, who dismissed my earlier amendments. We have had a case in my office just recently in which there were four separate applications to the High Court to get at the identity of the defamer. Each time, it has led on to another anonymous name, and another and another. I think that the client has now given up, but the costs are in excess of £12,000. We cannot allow that state of affairs to persist, but I must move on, as that relates to other amendments.
The only point that I will make on Amendment 27 is that I have a certain anxiety about paragraph (f), which says that the regulations,
“may make provision for a procedure whereby a complainant can obtain from the court a declaration that his notice of complaint under subsection (3)(b) has met the requirements of this subsection”.
That is couched in discretionary terms—the regulations “may”. If the Government take this up in the regulations, it must remain discretionary. To force every person to lodge a notice of complaint through a High Court procedure—albeit before a Master and albeit, as my noble friend Lord Marks suggests, a special procedure—would in my view simply be impractical for the vast majority of individuals. They will not get near it. It is terribly easy for us lawyers to forget how formidable and forbidding it can be—
Viscount Colville of Culross
I emphasise that this must be a voluntary process. I said that this was a probing suggestion for people to talk about. It should be voluntary and the ability to use the procedure should be open to all parties.
Lord Phillips of Sudbury
I simply wrap up my point by saying that I am anxious about having this paragraph in the amendment, because I think that it could give the wrong idea to those who have to interpret it in future. I would be wholly against a way of lodging a complaint that involved a formal legal process, even of a stripped-down kind, if I can call it that, because it would, I suggest, make remedy more or less impossible for the vast majority of people.
The Earl of Erroll
I shall make a couple of comments about Amendment 27, particularly after the remarks of the noble Lord, Lord Phillips of Sudbury. Given the expense of trying to track someone down on the internet and finding out who is who, it will be impossible to identify absolutely reliably everyone who logs on. Unless we put a chip inside everybody and log that, it will not work. There are too many ways of concealing who you are. The banks have enough trouble with their “know your client” procedures, so what kind of trouble will an internet service provider have? It is not realistic to be able to nail down identity over the internet at the moment in the way that some people think that you can.
The point about expensive resolution led me to think about what the noble Lord, Lord Allan of Hallam, said about alternative dispute resolution. The website operator needs somehow to know whether to take something down. If a claimant is not willing to reveal who they are, there may be a public interest reason for it to stay up and there may be support from other places for its staying there. Nominet is operating a successful service for alternative dispute resolution on domain name conflicts. Otelo—the Office of the Telecommunications Ombudsman—also works terribly well in resolving disputes in an inexpensive way. In fact, the industry in each case bears the costs and it is not expensive. I wonder whether it would be worth exploring that.
Amendment 27 is interesting because it could provide some of the information that would be the framework on which a judgment could be made. For instance, a website operator could apply and say, “We would like to know”, through the alternative dispute service. Personally, I think that going through the courts every time would be far too expensive for all the small organisations and ordinary people trying to defend themselves against something malicious that was online.
I was amused by the concept of whether or not regulations could be used maliciously. That is an interesting concept and it probably has wings, as well as legs. There is an old saying that regulations are for your enemies, and it is amazing how maliciously you can use them.
Lord Faulks
My Lords, because of my general opposition to this clause, it is obvious that I would also oppose these very well meaning and well articulated suggestions of a mode of complaining by someone who feels that they have been defamed on a website. The debate has thrown up the fact that the industry is in the process of developing a response to this new problem, and I respectfully suggest to your Lordships that that is where the development should come from, not by means of legislation—we are bound to get it wrong and to be out of date. Rather, it calls for a response to a developing situation. If a code of practice is developed that provides an appropriate response, that will deter people from suing, certainly for anything other than the most serious defamations.
As for the amendment put forward by my noble friend Lord Lester, I entirely understand it and the fact that he wears his cloak from the JCHR. If there is to be such a procedure, however, it is asking quite a lot of an individual to make some form of assessment as to, first, whether it is defamatory and, secondly, whether it is unlawful. That would involve them reviewing possible defences: whether or not it was justified, which is an absolute defence; whether or not there was qualified privilege; whether there was responsible publication. That is a considerable series of hurdles for someone to overcome before deciding on and setting out the nature of their complaint.
On the alternative dispute resolution, of course I understand what animates that. It is very easy to sit around in a committee of any sort and suggest that something can be done quickly, cheaply and easily. The reality, of course, is that there are short cuts even within the current framework. People can get preliminary rulings on meaning and whether something is capable of being defamatory within the existing mechanism. I fear that what is suggested may sound like a good idea but may in fact simply be superorgative. It may add to what is already there and not provide the sort of cheap alternative mechanism that plainly is desirable. I respectfully suggest that the amendment should not be pursued.
Lord Lucas
My Lords, I support what my noble friend has just said. Having listened to the various alternatives, I think that the idea of having to involve the courts is just going to freak out any website operator, particularly those who deal in any volume. You are asking for some sort of cheap way to get to a judgment that is essentially expensive because there are a lot of things to be considered.
I think that the right answer to this, as my noble friend just said, lies in giving really good guidance to the courts and to website operators as to what is protected under the Bill and what is not. That comes back to points that I made under previous clauses. I do not understand what is going to be protected under the Bill; what is going to be regarded as fair comment; what is going to be required in terms of the person making the complaint or statement stating the basis on which they have made it; or the references to “fact” that creep in, which is something that you as a website operator know that you can never establish. As my noble friend said earlier, we all have insurance to cover those things. I am sure that the same applies to Facebook as it does at the bottom end, which I occupy. That insurance is not vastly expensive and is available on sensible terms from sensible insurers. As long as you have reasonable systems to ensure that you are doing your best not to publish things for which you may be sued, you are protected.
Baroness Hayter of Kentish Town
My Lords, perhaps I may slightly correct the noble Viscount, Lord Colville of Culross, who I think said, “I am not a lawyer, I am just a journalist”. At the risk of upsetting a lot of other people in the Room, I do not think that he has that the right way round. The Bill is for you who write and we who read what you write or produce on television.
I thank the noble Lord, Lord Allan of Hallam, for clarifying that Facebook is indeed a website, which answers my earlier question. I use his words: we want swift removal of defamatory material with minimum collateral damage to lawful material. We may have to come back to that again at the end of the Bill’s proceedings. We can call it the Allan test and see whether we meet it.
I still have a problem with the question that my noble and learned friend, Lord Morris of Aberavon, raised earlier, which is about the distinction between lawful and defamatory. I found the evidence to the Joint Committee on Human Rights by Professor Phillipson on this compelling. Clearly, the whole of the committee did not, and I am not a member of the committee. The issues I want to raise are not legalistic but more about ethics and fairness, although I thank my colleagues, who have provided me with a little more legal background.
I want to go into a couple of cases which may be akin to what the noble Lord, Lord Faulks, mentioned on an earlier amendment about a teacher. I give two case studies. First, there is an Ofsted report on a school, and the local website reveals an affair between the head teacher and a parent, which is going on, but the evidence for it was found by Ofsted in its study, so it is a breach of privacy, because it was found by inspection and was then given without permission to the website. It then seems, under the privacy work being done by Leveson, that a case could be taken. Secondly, there is a separate case, where there is an Ofsted report on a school and a local website reveals an affair between a head teacher and a parent; however, it turns out not to be true.
If I have understood the difference with this higher hurdle, if what the noble Lord, Lord Lester, says is true, before the parent could take an action for defamation, they would have to know whether it was more than just untrue and bad for their reputation; they would also have to ask themselves, “Well now, was it in the public interest because the other party was a head teacher and therefore there could be a public issue?”. Or perhaps there is a defence because the claim was incredibly well researched and the head teacher was having an affair with a different parent, also called Smith, in the same street, and it was just a small technical error that caused the confusion, so it was responsible journalism. A hurdle is being asked for where that the parent, the claimant, would have to go and do some legal homework to try to think through what the defences were that the person who had written the untrue thing about them could put up against their action before they could actually start a claim—by which time their spouse would have left them. In fact, it would probably be better if the affair were true, because then they could get an action on privacy.
That brings me to a comment made by the noble Lord, Lord May. He seemed to be suggesting that as soon as you say something nasty about someone, it is defamatory. That is not my understanding. If I call him a rotten scientist, that is seriously defamatory, but if he calls me a rotten scientist, it is so patently true that it cannot be defamatory. I am not sure that some of the examples given would actually be defamatory; if you say that someone has been forging their research results and they have been, that is not defamatory because it is not untrue.
Lord May of Oxford
Many of the more celebrated cases in the libel tourism that has generated all this activity, such as the £1.5 million spent by the journal Nature in defending a plainly factual but defamatory statement about an Asian journal that was created simply to publish the papers of the sponsor, are of just that character. The statement were plain fact, but the action brought in this country by people outside it cost huge sums of money. The action involving Simon Singh was another example. What he was saying was plainly factual but was defamatory; it was intended to be so in every meaningful sense, and properly so. Somehow we keep losing sight of this in the legal elegances.
Lord Marks of Henley-on-Thames
I trespass on the noble Baroness’s time by giving another simple contemporary example. If I had said during his lifetime that Jimmy Savile was a horrible paedophile, that would have been seriously defamatory. Had I had access then to the information that we have now and he had sued me, I could have justified that. It therefore would have been defamatory but not unlawful. It is as simple as that.
Baroness Hayter of Kentish Town
It has to be substantially true, actually; he had only to be a bit of a paedophile, had you had the information there.
The point that I am trying to make is that the person making the claim knows whether or not it is true. I know that I am a rotten scientist, and therefore to be able to make the claim I would have to try to find some evidence that I was a brilliant one, which might be a bit difficult. Asking someone to have to argue through the defences of the person against whom they want to take the action before they can start a case, if I have understood the amendment right, would create a higher hurdle for stuff on the web than for printed material, because the clause refers only to the web.
Lord Lester of Herne Hill
The noble Baroness has misunderstood. Clause 5 is not about whether you can bring a claim. It states:
“This section applies where an action for defamation is brought against the operator of a website”.
It is intended to allocate responsibility between the alleged victim and the website operator, and to decide when the website operator has some kind of duty to keep up because of free speech or to take down, and what information must be provided under the e-commerce directive regulations and under the Bill. It is not asking a whole lot of questions as some kind of new barrier. It is about a proper procedure balancing. I hope that that is clear.
Baroness Hayter of Kentish Town
That is clear, but it still seems to be a higher barrier to take action against an operator of a website than you would have against the editor of a newspaper. The amendment only covers operators of websites, unlike the rest of the Bill. According to Judge Eady,
“a person would need to know something of the strength or weakness of available defences”,
in order to know whether it was unlawful before going ahead. That seems a higher hurdle to ask a claimant to go through than if they were taking an action for something else. That may be what is wanted, but if so, we need to be very clear that this is a higher hurdle for a claimant in the case of operators of websites than for any other action for defamation. It seems to tilt the balance very much against the claimant being able to take any action in that case.
With regard to Amendment 27, which would add the list, the issue is the one that my noble friend Lord Browne raised at the beginning: whether this adds anything to Clause 5(6)(b), which states that, in taking an action, the complainant, in addition to giving their name, must set out,
“the statement concerned and explains why it is defamatory”.
That would go through points such as, “Well, it is untrue, it harms my reputation and it was published in a form that people could read”. Again, I wonder whether, having got rid of the long list that we had in Clause 4—because that was a box-ticking exercise, or feared to be one, about what was in the public interest—we are now doing exactly the reverse and trying to specify all the things that we have taken out of Clause 4. That seems to run counter to the idea of a very simple Bill, albeit that guidelines or regulations may go with it. Although there is nothing in the requirements that seems unacceptable, I am not sure that, having now made the other part so clear and simple, we want to put another list back in this part of the Bill.
Other noble Lords have discussed going to a Master, but in addition to the complications of that, and the costs, I also have worries about the timing. Again, in two or three weeks—I do not know how quick it would be—some things on the web will have gone around and been taken up. My major issue is whether the Committee is absolutely sure that it does want a different hurdle against website operators such that one has to go through all the defences that someone could have before being able to start an action. At the moment, we are not persuaded of that.
Lord Ahmad of Wimbledon
My Lords, I thank all noble Lords who have taken part in this detailed debate. Arguments have again been presented to show both sides of the coin. Amendment 26, in the name of my noble friend Lord Lester, would require a claimant to set out in a notice of complaint why the statement complained of was not merely defamatory but also unlawful.
Our clear aim in bringing forward the Bill is, as the noble Baroness, Lady Hayter, has said, to make the law on defamation clearer, cheaper and easier for the ordinary citizen to use. It is perhaps reasonably easy for an ordinary person to understand and explain why a statement may be regarded as defamatory; it is quite another for the same person to explain, without recourse to legal advice, how that could be deemed unlawful. That arguably would involve a thorough knowledge of the law, both statute and common, and a rebuttal of the various defences that might be available to the person making the statement. The aim is to avoid putting lawyers rather than the parties at the heart of the argument. For those reasons, the Government are opposed to the amendment.
That said, we of course share the concern of those who argue that complainants should give some explanation as to why they think a statement is defamatory. The note that we have provided to the House on the content of the regulations makes clear that, where appropriate, complainants should, in a notice of complaint, provide details such as the meaning attributed to the words complained of and why they are defamatory, including any factual inaccuracies or unsupportable comment. This reflects the wording in the defamation pre-action protocol in relation to the contents of a letter before a claim, and we believe that this is an appropriate level of detail to expect complainants to provide.
Amendment 27, in the names of the noble Viscount, Lord Colville, and the noble Lord, Lord Allan of Hallam, has two purposes. First, it seeks to place in the Bill, as the noble Baroness, Lady Hayter, suggested, a number of requirements that a complainant’s notice of complaint should meet. As I indicated in speaking to Amendment 26, we share the concerns of those who argue that complainants should have to give some explanation as to why they think a statement is defamatory of them. I have explained the level of detail that we think is reasonable to expect a complainant to provide in order to enable the poster of the material to understand the basis of the complaint.
As I have also said, we believe that to require a claimant to go further and prove that the statement was unlawful would make it more onerous and difficult for a layman to make a complaint without first having sought sound legal advice, nor do we see how it would be in the interests of website operators, who would also have to seek legal advice, and could end up in litigation over the validity of notices that they chose to reject.
My noble friend Lord Marks talked about the need for as much detail as possible to be put in the Bill so that people can readily understand what is required. We believe that the regulations are the appropriate way to deal with the issues of detail within the framework established by Clause 5. However, we will ensure, after listening to the debate as well, that detailed guidance is published prior to the commencement of any new provisions to assist complainants, posters and website operators in understanding and following the new process.
The second part of Amendment 27 would allow the Secretary of State to make a provision in regulations for a procedure whereby a complainant can obtain from the court a declaration that his notice of complaint is valid—namely, that it meets the requirements of subsection (6). It has been indicated with regard to amendment that the procedure would also be available where either the poster of the material or the website operator wishes to apply for such a declaration.
I referred to the contribution made by the noble Viscount, Lord Colville. I agree with him that the whole purpose of Clause 5 is to provide a simple, quick, cheap and effective means for the complainant to request the removal of potentially defamatory material and for the poster to engage with this request for removal and stand by his posting if he wishes to do so. It was suggested that the Norwich Pharmacal process may not be effective in securing the necessary information on the poster. We propose in the consultation that the poster should be required to provide the full legal name and contact details, including their postal address. If they fail to do so, the website operator would have to take the material down. This, we believe, should help to ensure that the Norwich Pharmacal process enables the complainant to obtain sufficient information to enable him to bring proceedings against the poster.
As several noble Lords have noted, the system that Amendment 27 proposes would seem to require complainants to go to court at the outset, prior to making a complaint, to obtain a court declaration that their notice of complaint is valid. Presumably, any complainant who did not have such a declaration would not have their complaint processed by the website operator. It is unclear to us how this procedure could be adapted to deal with applications by posters or website operators, and at what stage these would be made. In any event, and as the noble Baroness, Lady Hayter, has mentioned, this additional process is likely to add unnecessary cost, delay and burden for the individual. In at least some cases, we believe that posters will be content for their statements to come down. Under this system, complainants would have to incur the time and expense of going to court irrespective of the attitude of the poster. Additional burdens would be created for the court system. The proposed amendments do not strike a fair and appropriate—we come back to that word again—balance between the interests of freedom of expression and complainants’ rights to reputation.
I concur with many of the points made by other noble Lords, including my noble friend Lord Faulks, and hope on the basis of the explanation that I have given that noble Lords will not press their amendments.
Lord Lucas
My Lords, my noble friend has got his answer to Amendment 26 completely wrong, particularly so far as website operators are concerned. I do not care a fig about knowing whether a comment is defamatory; it is obvious that “The food was filthy” is defamatory. What I want to know is whether I can publish it or whether the restaurant says, “No such meal was served on that evening” or “We know this fellow from before and he has been completely unreasonable on other occasions” or gives us some reason that the comment is fair. It is absolutely crucial that Amendment 26 is accepted. Just to know that something is defamatory gives you no information and you can see that with your own eyes; it is obvious. What is not obvious is why it is unlawful. In order to take a reasonably robust attitude to standing between a complainant and the person who has made the posting, and who may well quite reasonably wish to be shy, not least because they think that they have sinned against some large corporation that will skin them in the courts if they are identified, I would want as a website operator, as I imagine other website operators do, too—certainly, those to whom I have talked do—to be in a position to stand behind something that we consider to be fair comment. We need to know why the complainant thinks that it is unlawful. We all know why it is defamatory.
Lord Brown of Eaton-under-Heywood
My Lords, it may be a response to the noble Lord, Lord Lucas, to say that while there is of course a distinction between what is defamatory and what is illegal, it is not necessarily for the complainant to dictate why it is illegal. Thought might perhaps be given to making a regulation under Clause 5(3)(c) that put on the operator who sought to invoke this defence the need to say why, notwithstanding that the statement was defamatory, it was none the less lawful to publish it. That might be a better way of achieving the balance than putting, as other noble Lords have recognised, the often financially onerous burden on the complainant to anticipate and meet in advance the several defences that may or may not be urged as justification for the publication.
Lord Ahmad of Wimbledon
The noble and learned Lord makes a valid point, which we shall certainly consider.
Lord Lester of Herne Hill
My Lords, I am grateful to everyone who has taken part in this brief debate and particularly to the Minister for his reply, with which I do not agree and will have to come back at a later stage to explain in more detail why.
I should like to talk about the wider world, because what we are debating today will be of interest not only in this country but in Beijing and Washington DC. Noble Lords will probably understand that in the United States, on the one hand, the extreme position is adopted that there is absolute immunity, subject to malice, for website defamation. You cannot sue an American website operator under federal statute law, state statute law or common law in the United States. On the other hand, in China you have the opposite position, and the same is true in the former Soviet Union. In China in particular, the great firewall of China and the Chinese intranet prevent proper access to an uncensored website within China. Noble Lords will have read what happened last week, deplorably.
In Europe, we have a compromise. We have the e-commerce directive, which has a notice and take-down procedure in general terms. We have to obey EU law. We have e-commerce directive regulations. The balance is put in very broad terms and can be fleshed out in various ways, but it does not allow either an absolute immunity on website operators, American style, nor does it allow the extraordinary regulation by the state that obtains in the People’s Republic of China.
Curiously, the noble Lord, Lord Faulks, suggests that we do not need any law on this at all. That will make the noble Lord, Lord McNally, smile, if he remembers that when we discussed all of this many months ago, he quite rightly said that we have to try to clarify the internet position and we cannot just duck it; we need to have reasonable legal certainty in order to include it in the Bill. He was right, and it was quite right of the Government to seek to do that. It is extremely difficult, which is why most of this will have to be done by way of regulations and not in statute.
The burden of proof in all defamation cases under English law will remain upon the defendant. We have not adopted the Sullivan rule in this country and put the burden of proof on the claimant. The defendant therefore starts off and finishes with having the burden of proving the various defences. All that we are considering is what is appropriate for a complainant to have to provide to the website operator. The great problem is that the website operator—if it is Google, Yahoo! or Amazon, or a newspaper with a website—has no commercial interest in keeping matter that is in the public interest on the website if they are threatened with litigation or, worse, “unreasonably”.
Suppose, for example, that Google were to make serious allegations of corruption in the state of Ruritania, and someone from the state of Ruritania then complained about it being on the web. Google would have no commercial interest in maintaining that very important public-interest statement on the web, especially if it was going to be faced with multiple claims to take down without any obligation on the complainant. We are therefore trying to find a balance in a way that we protect free speech by not encouraging unnecessary take-down, while at the same time providing effective remedies to the serious victims of violations of reputation on the net.
The reason I do not agree with the Government’s present position is not just an argument about whether or not it is compatible with the e-commerce directive to leave out the word “unlawful”. It is also because the Government give the game away in indicating that the regulations that they are proposing will, in effect, do precisely what the words “and unlawful” will—or, as my noble friend Lord Phillips suggested, “unlawfully defamatory”; that would do perfectly well. However, there must be something more than a simple statement that something is defamatory.
I am sure that we will need to come back to this, because it is very important and difficult. I am not dogmatic about a solution. I beg leave to withdraw the amendment.
Lord McNally
Lord McNally
My Lords, I do not in any way want to provoke the Committee, but I am pleased to see that my noble friend Lord Lester is leaving, due to the stimulus of the debate.
Lord McNally
No, I do not want him to stay; I really think that he should go back to his sickbed, although his recovery during the course of the debate was significant. He said, “This short debate” but I humbly refer the Committee to the fact that our two debates today on a single clause of the Bill, which we have still not yet completed, have taken us two hours and 40 minutes in a 17-clause Bill, of whose Committee stage we are on day three of four.
Lord McNally
I hope that Hansard noted that comment from a sedentary position and the general approval from the non-lawyers in the Committee for that observation.
At some stages during those debates, as a non-lawyer, I thought of John Wilkes, the famous radical. When he was about to publish his newspaper, the North Briton, he was asked by a French acquaintance, “Is the press free in your country?”. “I am about to find out,” said Wilkes. I think, having listened to this debate, that in some respects the internet is going to find out whether or not it is free. My noble friend Lord Mawhinney asked me where we were with regard to balance. It is not a question of balance between right and wrong, but the debates that we have had today show that there is a balance.
One of the great things about continuity in this House is that I was on the pre-legislative scrutiny committee that looked at the Communications Bill, where we deliberately advised against trying to legislate for the internet. On reflection, I think that we were right. My noble friend Lord Phillips said that he was on the side of the little man. On reflection, one of the greatest boons to the rights of the little man over the past decade or so has been the worldwide web and its freedoms. While I hear the passion and the righteous indignation of those who have been defamed and hurt, we as a Committee have to be careful not to overlegislate something that on the plus side has some considerable benefits for the little man.
That was a complete abuse of procedure, because I am moving a government amendment of some simplicity. It was also because I am wracked by guilt: at one point during the debates, the noble Baroness, Lady Hayter, helpfully sent me a note saying, “Are you on holiday?”. The truth is that when we were setting out who was going to handle what, I thought, “Clause 5 will be a nice snappy debate, since my noble friend Lord Ahmad—although he is learning disturbingly fast—should be given some experience of Bill-handling”. Little did I realise that he was going to have such a baptism of fire.
Amendment 28 provides for the affirmative resolution procedure to apply to the scrutiny of the regulations to be made under Clause 5 of the Bill, rather than the negative resolution procedure as the Bill currently provides. That is in the light of views put forward on this issue by the Delegated Powers and Regulatory Reform Committee, the Joint Committee on Human Rights and others. The affirmative procedure will ensure that the regulations receive more thorough parliamentary scrutiny. I hope that, as such, it will be acceptable to this Committee and to the House. I beg to move.
Lord Lucas
My Lords, I am very grateful to my noble friend for that explanation. Our noble friend Lord Ahmad has been doing a superb job, and I have been immensely impressed. I had assumed that my noble friend Lord McNally was silent because he was serving time in the penalty box after voting against the Government yesterday.
Lord Browne of Ladyton
My Lords, those of us on this side of the Committee welcome this amendment because it follows the advice and recommendation of the Delegated Powers and Regulatory Reform Committee and the advice of the Joint Committee on Human Rights, but mostly because an amendment—identical in effect if not in words—was moved by my honourable friend Rob Flello in Committee in the House of Commons and was rejected by the Government. The reason given by the then Minister Mr Djanogly was that:
“The Government consider that the detailed and technical nature of the proposed regulations, and the fact that they will govern procedural issues, means that the negative resolution procedure is more appropriate, and provides the appropriate level of parliamentary scrutiny”.—[Official Report, Commons, Defamation Bill Committee, 21/6/12; col. 122.]
That sentence, in itself, argued for why that was exactly the wrong procedure for these regulations. I am pleased to see that the Government have accepted that that was the case and have now welcomed this provision into the Bill.
Having listened to the debate on Clause 5, I do not share the level of guilt that the noble Lord has for having had his colleague deal with it. I am delighted that my noble friend Lady Hayter has agreed to do this. She is well equipped for the job and, indeed, has much greater experience than I have in your Lordships’ House, which makes her better equipped for this complicated part of the Bill than I am.
I believe that the most important part of Clause 5 will be the consultation on the regulations, which everyone who has come to lobby me about this part of the Bill seems to be a part of. I understand that the noble Lord, Lord Lucas, may well become part of this consultation process. Maybe it is time for all of us to become part of this consultation process, because looking as I do now, in the light of the discussion that has taken place in your Lordships’ Committee, at the 26 paragraphs of this consultation document, I would like to have my say about what should be in these regulations.
It might be helpful if some process was set in place so that those from all the various interests that are represented in your Lordships’ Committee who have shown an interest in this Bill could have an active role in a process of discussion in respect of these regulations. Otherwise, I suspect that at some stage in the progress of this Bill—perhaps on Report—we may find ourselves timetabling insufficient time for the debate that will ensue in relation to Clause 5.
Lord Phillips of Sudbury
My Lords, the clause stand part debate notice is in my name and that of the noble Lord, Lord Browne of Ladyton, and the noble Baroness, Lady Hayter of Kentish Town. I consulted them when we last considered the clause—it seems aeons ago. The feeling between us was that, in view of the extended consideration of Clause 5—we have had two and three-quarter hours today and I think that we had an hour or two last time—it might be appropriate not to debate the Motion given that so many aspects to Clause 5 need further consideration.
Clause 5 is central to the Bill and, as my noble friend Lord McNally just said, the little man is liberated as well as in jeopardy. I am the first to accept that, but a great deal more thought needs to be given to it and I see no point at this juncture in debating whether the clause should stand part of the Bill, because it is at the heart of the Bill. I suggest that those of us who feel that we need to consult the Ministers and their team do so. I entirely concur with what the noble Lord, Lord Browne, said about the consultation, because the regulations will themselves be at the heart of the Bill, in a way that they rarely are. If some formal means could be found to enable the Committee to look at a preliminary draft of the regulations, that might be appropriate and helpful to all.
Lord Mawhinney
“Unattributed website content
The Secretary of State shall publish guidance for the operators of websites designed to ensure that unattributed material is not published on any website.”
Lord Mawhinney
Conscious of the time, I shall give a quick summary of what the Joint Committee decided by way of stimulating thought on this particularly tricky issue. I think that it is fair to say—I suspect that my noble friend Lord McNally will agree—that this is the single most difficult issue in the whole Bill: what you do about those who post on the internet anonymously? We have already had a considered view from the noble Lord, Lord Phillips of Sudbury, and the noble Earl, Lord Erroll, pointing out the costs attached and how difficult or, perhaps, impossible, it is to identify people who are anonymous.
The committee was given a lot of evidence from people who ran websites saying, “Leave us alone”. We heard evidence from newspaper editors saying, “Leave us alone”. We heard evidence from academics saying, “Don’t leave us alone”. We heard very little evidence from individuals crying “Help!”, but that is what we thought we were empowered to do. We were quite clear about posting on the web. If the name is attached, the law should apply and be pursued. Notwithstanding the self-evident self-interest of some people who gave evidence, we thought that if we know who has done it, they should be held to account for what they did. We did not get into the detail that the Committee has got into, nor should we, but that was the basic position.
When it came to anonymous contributions, everybody told us, “There is nothing you can do about it; it is a world wide web; they could be anywhere. The website could be attached to another website, buried in a third website, ad infinitum. It cannot be handled legally, period. Forget it, Joint Committee, and move on”.
We came to the view that it was pretty difficult to handle this from a legislative point of view. We did not want to engage in argument with those who kept telling us that. On the other hand, we were not willing to just forget about it. Two ideas surfaced. One of them is incorporated in the amendment, which is, in effect, a probing amendment. One way to deal with anonymity would be to rule it out: to say that you can take part only if you are willing to say who you are. That would be a relatively simple solution. I can hear some of the arguments against it even as I stand here, but that does not negate the fact that it is at least an option for the Government to consider.
Lord Allan of Hallam
My Lords, I am glad that the noble Lord, Lord Mawhinney, said that this was a probing amendment and I will speak to it in that spirit. It needs a response to clarify the concerns that there might be on behalf of the noble Lord, Lord McNally’s “little man” who uses the internet if we were ever to go down a route where there were these broader requirements for people always to identify themselves when speaking across the internet. As I read the amendment, there would be an absolute requirement for people in the United Kingdom always to identify themselves if they wished to avail themselves of internet platforms.
We need to bear in mind the key concepts in the context of other areas where government has quite rightly identified a need to be able to detect wrongdoing on the internet and to go after those who are carrying out that wrongdoing, whatever form it may take. Those are the basic concepts that we think about when considering the right to privacy and the necessity of proportionality. We certainly should not have a counsel of despair; we should try to identify people and make them own their own content in the circumstance of an allegation of defamation. I think that we are agreed across the Committee about that basic principle of trying to connect the people who have a complaint with those who have made that speech.
I certainly would not hold to a counsel of despair that says, “This is impossible”. In most cases, people can be identified. Most of the cases that we will be dealing with will be arguments between people who are identified and known to each other and who have an issue around whether the speech that one has made about the other is unlawful and defamatory and whether one of them wishes to take some action over that. In some of the cases that we have seen recently and that people have quoted, such as the Lord McAlpine case, it is clear that there has been an ability to identify and go after the principal people complained against.
When we think about those who genuinely are going to be able to hide behind anonymity, we are talking about a minority of instances. That is why I ask whether the test of requiring everyone to identify themselves whenever they speak would be a proportionate response to what will be a relatively small set of circumstances and whether it is necessary to do that.
Where I certainly have some sympathy, and we have had some reference to this already in today’s debate, is with regard to the cost of getting orders to disclose identity details. Again, we should be clear that those who provide internet services need some form of judicial authority to be able to disclose people’s personal data. I hope that we would all agree on the basic principle that it would be inappropriate for a service provider to disclose personal data about an individual simply on request; there has to be some kind of process that enables that release to be lawful and to be lawfully made. However, the current circumstances, as we have heard today, make that very expensive.
There is probably a lot of mileage that we could cover in terms of using legal processes that require the disclosure of data to narrow down the cases that we are talking about, where someone is genuinely and maliciously hiding behind anonymity, but I consider, as I referenced earlier, that those cases will be very much a minority. When we consider the measures that we should take in response, we should bear in mind that they should be proportionate and not do something excessive to deal with that tiny minority of problematic cases.
Lord Lester of Herne Hill
The Libel Reform Campaign is strongly opposed to this amendment but I shall not elaborate on what it says about it. I want to draw attention to one thing that may not have occurred to some Members of the Committee, which is how this debate will be regarded in Beijing. In Beijing, they have precisely this kind of amendment in their extraordinary firewall regulations because what they most want to do is identify political dissidents of one kind or another and then go after them for violating their internet regulations. This is exactly what they have and want to maintain, and if we give it any currency at all, they will use the fact that the United Kingdom has done so, even though our context is entirely different and we are not doing it to persecute dissidents and so on. I suggest that we should be very careful, in the lawmaking that we are indulging in now, to think about the transnational implications.
Lord Phillips of Sudbury
My Lords, I hear what my noble friend Lord Lester of Herne Hill has just said, and it is a very strong point. None the less, we have to legislate for our own circumstances. I come back to the point that we cannot leave the Bill in a state where individuals can be grotesquely, viciously and intentionally defamed, where huge platforms—website operators—can grow rich in allowing that to happen with total impunity and with no possible remedy for the individuals concerned. That cannot be right. I am reminded slightly of some of the arguments about the banking sector and the banks that are “too big to fail”. We cannot get into a mentality where website operators are too big to pay. We have never had a satisfactory answer for why website operators could not take out comprehensive insurance so that, if they were sued by individuals because of the defamations of those who post on their platforms, they could pay up in the normal way.
I have great sympathy for the way in which the noble Lord, Lord Mawhinney, put his case for Amendment 30, not least because we are all grappling with fiendish and unprecedented problems with no easy answer. Generally, I come down on the side of saying that nobody should have the right to defame others—in a way, incidentally, that will travel further and faster than any other system of publication in the history of the world—and be able to say, “Ooh, no, you can’t reveal my name; that’s a breach of my human rights”. There is another breach of human rights involved in defamation—indeed, it is worse because the defamer is doing it intentionally. I am, of course, taking the worst case. If you have to place in juxtaposition the vicious defamer on the one hand and on the other the possibility that that defamer’s particulars may have to be revealed by the website operator in the process of complying with our new legislation, I am afraid that I have to come down on the side of the person who has been defamed.
Lord Lucas
My Lords, speaking again as a web operator, I do not know any way of establishing a person’s identity just because they are posting. One could establish a web identity, but that may have a very fuzzy relationship with any individual. If someone posts, gives me an e-mail address and I verify that e-mail address, that is about as far as I can get. However, I think that we can reasonably insist on that. If we are offering website operators the protection of this Bill against being sued for what is posted on their sites, we can ask them at least to have verified a web identity. We can ask that they take some steps to have a method of communication with this person and do not just allow straightforward anonymous postings. Then, something put up on the net should come from someone with whom the website operator knows that they have an established means of communication. Whether or not that works, is fake or just ends in silence, I do not think you can ask the website operator to determine. But you can at least make them take the first step.
Lord May of Oxford
This is a sensitive and difficult issue but I find myself in agreement with the noble Lord, Lord Lester, and others that the downside of doing this outweighs the upside. However, it was also my impression—which may just reveal that I did not understand what was going on—that quite a significant recourse is already given by what we were discussing under Clause 5.
Lord Phillips of Sudbury
Not if the complainant does not know the name of the author of the posting.
Lord May of Oxford
No, but they complain to the people who should not have allowed it to be posted. That is my understanding, which means there is a responsibility—
Lord May of Oxford
I apologise. I forget the curious thing that you must stand up, thus rendering the microphone less effective. Be that as it may, I thought that there was some recourse and a real encouragement to the person running the thing not to permit really bad behaviour, because there is that recourse against the person who owns the website.
Lord Phillips of Sudbury
With respect, there is no recourse against the person who runs the website if they take the posting down. However, by that time, the damage to the complainant will have been done and will have reverberated around the world—and there will be no redress.
Lord May of Oxford
Did I misunderstand the part of Clause 5 that said there was a responsibility on the owner of the website not to permit outrages of the kind that the noble Lord just referred to? If there is, can you not sue?
Lord Phillips of Sudbury
I am afraid that the noble Lord did misunderstand.
Baroness Hayter of Kentish Town
This is an interesting one, particularly in respect of the use of the word “unattributed”, as opposed to “anonymous”. It seems to signify that you are looking at attribution, which may be to a group or something like that, and that it is about trying to find out who was responsible for this without necessarily naming them; I mean that it is about method, not necessarily the actual name. We are interested in the Government’s response to this, because it clearly highlights an ongoing view that what we do not want from the Bill—any more than we want what the noble Lord, Lord Lester, is afraid of—is to give a signal that the more anonymous the better.
Lord McNally
My Lords, I am grateful for this debate. The more I listen to it, the more I realise that we are, consciously, going into unknown territory. As I said previously, we are taking a different approach from that we took 10 years ago with the Communications Bill, when the Government of the day, and Parliament as a whole, took the view that the internet should be left free for us to get the full benefits. Within the judgment of history that was probably the right thing to do. It allowed the massive growth of initiative and new companies and services, and the liberating effect I referred to for the individual citizen.
The most hopeful thing that I have heard today, because I respect his knowledge of this sector, is my noble friend Lord Allan’s comment that we should not follow a counsel of despair. That gives me great encouragement. There are, as has been said a number of times, those who say that the internet is beyond any single parliament or jurisdiction to control, and it is a global phenomenon that will just roam free. I do not believe that there are any man-made institutions which cannot be brought within the realm of governance, particularly democratic governance.
We face balances and different arguments. I have been in debates where the whistleblower has been the hero. The noble Lord, Lord May, has pointed out that, quite often when talking or trying to criticise, it is the powerful vested interests—not just the internet companies—that will try to close down criticism by intimidating the means of that information being disseminated. I am determined to try and get this right, but I am aware that we are going into areas where there are upsides and downsides to whatever we do.
I know of my noble friend Lord Phillips’s lifelong commitment to defending the rights of the little man, but I fear overlegislating in this area. We are just emerging from a debate in which it was suggested that our libel laws have become a bonanza for lawyers. I am worried that, in the concern to deal with some of the problems that have been raised, we might create another bonanza for lawyers. I sincerely believe that the contribution of lawyers to this debate has been extremely helpful, but I ask for time to study this debate in Hansard. As my noble friend Lord Phillips said, we have spent nearly five hours on this clause, and rightly so. It is the one in which we are going into untested territory. I want to see how it stands up to the criticisms that have come from both sides.
Amendment 30 goes much wider than issues of defamation, and is therefore beyond the scope of the Bill. It relates to broader issues concerning how the internet could and should be regulated. However, even if this new clause were to be limited only to defamatory material, it has been suggested that there has always been a tradition of being able to publish comment under pseudonyms or anonymously. My noble friend Lord Mawhinney has suggested that we should try to build some change in that culture, so that people are willing to put names to their criticism, and that that is a way forward. However, the practice is widespread. Like my noble friend Lord Lucas, I quite often go on to sites about hotels and restaurants where you get the most insulting comments about the levels of service, and sometimes they are very helpful when you are making your decision. It is also true that in the vast majority of cases it is entirely unproblematic; the hotels and restaurants live with the good and the bad, and leave it to common sense.
My noble friend Lord Mawhinney said that this was a probing amendment. It has produced strong arguments on both sides. I would like to study this issue. I also take the point about the consultation. The paper that noble Lords have received is not going to be very different from the consultation, but I understand the point made by the noble Lord, Lord Browne of Ladyton, that he would like to join the game as well. I am going to look at what we can do in that respect.
It is obvious that we have to get this into better shape by Report. We have only four or five months until the end of this parliamentary year and, at the pace that we are going, we will need every day of that. I will take this amendment away in the probing spirit in which it has been moved; indeed, I will take the whole debate away. I have already agreed bilateral discussions on specific issues of concern with a number of colleagues, but I will see if there is some other way of bringing together a fuller debate on the contents and direction of the guidance. In that light, I hope that my noble friend will agree to withdraw his amendment.
Lord Mawhinney
My Lords, I thank my noble friend for his helpful response. I would like to start where he finished. I particularly welcome the fact that he said that after he had given it serious consideration, he would produce something relatively definitive by Report. That is absolutely right, and it is extremely helpful. If I have learnt anything about this issue, it is that if we get it right in one go, we will be lucky rather than seriously impressive. That means something reasonably definitive on Report, which would allow for a second bite of the cherry at Third Reading, were that to prove necessary. I welcome what he has said, and I encourage him to continue with that thought.
We have had an interesting debate. I am grateful to my noble friend Lord Phillips; part of our experience as a committee was that it was hard to find people to identify with the little man. The organisations were well organised, powerful, articulate and pressured, so part of our work was always to try for the elusive balance that we have talked about today. He has helped us enormously, as did the suggestion from my noble friend Lord Lucas about some sort of intermediate step, and I hope that he will think further on that.
I admit to being surprised that the Joint Committee should have taken China into consideration, and I apologise to those who feel that we were too constricted in our view. I have never been called a little Englander, nor even a little Irelander, so I apologise. I understand the point that my noble friend Lord Lester, was making, but I have to be honest and say that this is complicated enough without worrying what other countries are going to use as an excuse if and when we come to a judgment. That is not meant to be in any sense a little Englander type of comment.
At the end of the day, people’s reputations are on the line. We have already established that the cost of trying to get behind anonymity or lack of attribution goes against one of the principles of the work that the Joint Committee did, the work of which is shared by Members on all sides of this Committee. I thank my noble friend for his response and I beg leave to withdraw my amendment.
Lord Hunt of Chesterton
Lord Hunt of Chesterton
My Lords, that was the first time I have moved an amendment, so I hope you will excuse me.
This is an important amendment in an important Bill, particularly for scientists, engineers, doctors and writers, who approached me to take up the issue, particularly regarding the internet when used in a rather specialised way by these organisations. I have met many engineering and science institutions, whose membership comes to around 450,000 people, and on whose behalf they speak. I was also contacted by the coalition of Sense About Science, the Penn Club and the Index on Censorship.
This Bill offers legal protection, and in this clause there is emphasis on the peer-review process, which as a scientist and former editor I am very familiar with. I am also familiar with the fact that many scientists and engineers who are involved in public debate use the internet. The internet that they use is regulated by the institutions involved. We are talking about a much narrower brief; I do not know whether these people count as “little people” as mentioned by the noble Lord, Lord Phillips, but they are pretty important people and there are quite a lot of them.
This clause refers to the words “scientific or academic”, and I understand from earlier discussions that this includes engineers, medics and technologists. The amendment proposes that the privilege enjoyed by peer-reviewed articles should be extended to websites controlled and edited by chartered organisations and professional bodies. It attempts to build upon the current system, which is practical and financially supported.
The Institution of Civil Engineers, of which I am an honorary fellow, having studied engineering as a student, and the Institution of Structural Engineers have highly regulated websites on which people can make comments about, for example, a structure such as a bridge or some machinery. Those comments are then edited very vigorously, they talk to their lawyers so that they will not be defamatory or cause any difficulty and then they put the comments on their website, so it is a highly controlled system. They would welcome a clause along these lines, because they would then spend less time talking with their learned friends and would perhaps save money. They feel that this clause would put what they already do into practice or into a legal framework, which is a good way to proceed.
Some noble Lords have said in discussions this afternoon that we do not need this because it happens already. This is an example where things are happening already but they could work better and more effectively. Some people wrote to me from some institutions to say, “We’re not doing this very much; this would enable us to provide a better service to our members, who are very worried about a slightly increasingly litigious world”.
I will go through the clauses and will read each clause, as that will make it easier to understand. Clause 1 as amended would read:
“The publication of a statement in a scientific or academic journal or on a website edited and controlled by a chartered professional or learned body (a ‘recognised website’) is privileged if the following conditions are met”.
In a sense, some of the work has been done for this Parliament by the Privy Council procedure of providing chartering to professional bodies. Some of these professional bodies, of course, may be in considerable conflict with other professional bodies. The chiropractors, for example, are now a chartered body, and not all other scientific bodies are entirely in agreement with what they do. Nevertheless, this could still be within that framework.
The first condition, as we read this,
“is that the statement relates to a scientific or academic matter”.
“Scientific”, as I commented, includes engineering, technological and medical matters. If my amendments were accepted, subsection (3) would read:
“The second condition is that before the statement was published in the journal or on the recognised website an independent review of the statement’s scientific or academic merit was carried out by … the editor of the journal or recognised website, and … one or more persons with expertise in the scientific or academic matter concerned”.
If my amendments were accepted, subsection (4) would read:
“Where the publication of a statement in a scientific or academic journal or on the recognised website is privileged by virtue of subsection (1), the publication in the same journal or recognised website … is also privileged if”—
and then there are three conditions, the third of which is added by my amendment—
“the assessment was written by one or more of the persons who carried out the independent review of the statement; and … the assessment was written in the course of that review”—
and—
“the assessment was written by one or more persons with expertise in the scientific or academic matter concerned and was approved by the editor of the journal or recognised website”.
As I understand it from these institutions, this is all quite a rigorous process. Subsections (5) to (8) are also modified in that way.
This amendment is in the spirit of the clause, but it would extend it and would certainly be very much welcomed by these institutions.
Lord May of Oxford
I agree with all of this. It is very good and I want to do something, if I am allowed, that is probably improper. There are two issues in Clause 6 that I would like to have clarified, but I did not see the need to put down an amendment merely to raise the issue. Clause 6(6) says:
“A publication is not privileged by virtue of this section if it is shown to be made with malice”.
Am I correct that the word “malice” has a fairly explicit legal meaning? Anybody familiar with the academic world will know—
Lord May of Oxford
I can give the Committee many examples. One that does not reflect directly on me was during the GM controversy, when there was an experiment by Pusztai that claimed to show that GM foods killed rats. The Royal Society did a review of it that said that these experiments were so flawed,
“in many aspects of design, execution and analysis”,
that no conclusion could possibly be drawn. I have a sneaking sympathy for poor Mr Pusztai. He was a sad but well intentioned little man who did silly things. I am sure that he felt that that quote was malicious. I would like to be reassured that there is a legal sense to “malice” that means “consciously unkind”, as it were. If these amendments had been in place, Nature would have saved £1.5 million fighting a simple case.
When Clause 6 says,
“relates to a scientific or academic matter”,
I take it that that means that, by definition, everything in the journals is of a scientific or academic matter. Often they will be opinionated editorials about issues of interest to the academic community. I thought that I would raise those issues rather than trying to grab someone afterwards.
Lord Mawhinney
My Lords, I support the amendments of the noble Lord, Lord Hunt of Chesterton. Were I surrounded by the Joint Committee, it would be in agreement with my wanting to do so. I say to the noble Lord and, indeed, to my noble friend that the definition of “recognised” may need to be examined a little further and tightened just a little more, not least bearing in mind the point that the noble Lord, Lord May, has just made, but that is relatively straightforward. The principle seems to be a good one, in line with what we in the committee produced, and I commend the noble Lord.
Lord Lucas
My Lords, I am slightly sad that this privilege should not be extended to the Daily Mail, if one can imagine how that would work. I am concerned that the definition of “journal” should be wide enough. There are a lot of what might be called open-access journals now, rather than just the ones that are paid for, and I find them much more useful because I can actually get to read what is in them rather than being asked to pay £20 a time to see if what is in there is of interest to me. As the amendments point out, there are a number of websites that serve very similar functions, where intense discussions take place.
Even with regard to the Bill, how much does the word “journal” cover? Would it include Scientific American, for instance, or similar publications? At what point does something stop being a journal and start being a magazine or a publication that is ineligible under this part of the Bill?
Lord Browne of Ladyton
My Lords, I support the direction of travel that the amendment proposes, but this is not yet a complete process. Let me explain. I had the benefit of a long engagement with the noble Lord, Lord Hunt, in the early stages of the evolution of this amendment, and I gave him my views on this issue, which were quite strong. My understanding was that the purpose of the early amendment that was put to me was to create an environment in which there could be a debate or dialogue on an issue of controversy, in the public domain and in a moderated fashion, but which would attract privilege.
I expressed my concerns to him about that as an idea, and I summarise them in this fashion: while I agree that there needs to be the sort of debate among scientists, technical people and academics that the noble Lord, Lord May, robustly describes regularly to us, to the benefit of our deliberations, I am not entirely sure that it is in the interests of everyone who is affected by that for it be taking place in public. To give an example off the top of my head, if someone had concerns, based on good technical analysis and engineering understanding about the braking system of a mass-produced motor vehicle, then if I were a shareholder in that firm I would be very unhappy if that debate took place in the public domain before it was settled. I would be equally unhappy if we as legislators allowed that public debate to have privilege, because one could guarantee that no one would buy that motor vehicle while that debate was taking place and it could ruin a business. I am sure that others can think of many other examples that would be entirely inappropriate. So I have reservations about that.
However, if the amendment is not seeking to generate that sort of debate or a forum for that sort of debate and to allow it to attract privilege, and I do not hear that it is, there is now an interesting evolution of the peer-reviewed statement in scientific and academic journals that Clause 6 was designed to create the opportunity for, and to allow there to be privilege. It could properly reflect the changing, modern environment that we live in, where there is the possibility that the organisations that have been given this role, if they all accept it, could provide an opportunity for healthy debate and discussion—an appropriate point in the public domain that would aid academic consideration, and which would aid technical and scientific discussion. I have a number of problems with that and I do not think that we should conclude our debate on this issue at this stage. I hope that the Minister will approach this in the way in which he approached Clause 5 and say that the Government will take this away and think about it.
My understanding of Clause 6 is that it depends on the fact that what is published in scientific or academic journals—they could be e-journals—is entitled to privilege because it is peer reviewed. It does not reach the public, a wider audience, until a controlled discussion has taken place among those people qualified to do so. People who work at that level in a discipline are used to reviewing each other at peer level. We have significant confidence in them. Those of us who do not have the expertise in particular disciplines rely on them heavily as regards what, for example, the BMJ, will allow to be published.
If another institution, or a set of institutions—for example, the institutions identified by these amendments —is willing to take on the responsibility of that level of peer review before it allows these statements to be published, I am entirely in agreement. If that generates a controversial debate, we should consider whether that debate started by a peer-reviewed assessment should attract a level of privilege. I do not know whether other Members of the Committee will share my view that this is a really interesting idea but that it needs a lot more work. I am not in a position to do that significant amount of work but the one question that I ask the noble Lord, Lord Hunt, is: what is the equivalent of this addition of peer review? We on these Benches could not support a view on an issue of controversy, which potentially could be defamatory, being exercised in a privileged environment just because it was a view held among technically gifted people, scientists or academics. I think that it could be just as damaging.
Lord Mawhinney
Listening carefully to what the noble Lord, Lord Browne, has said, would it be fair to summarise that he is saying that further work needs to be done on the definition of the word “recognised”?
Lord Browne of Ladyton
With respect to the noble Lord—I am always anxious to agree with him because of the role that he played in relation to the formation of this area of policy—it may be my fault, although I am not sure whether it is my accent or the content of what I am saying. Perhaps I have not explained myself well enough.
The noble Lord’s summary is part of my concern, although I have a broader concern. In the light of the hour and the amount of time that we have already spent on this matter, and the fact that I suspect that we will find time to get back to this in more detail—perhaps offline, as it were, from the Committee—I will not lay out all the detail of my concerns about this. I have a number of them and that is one of them. My fundamental concern is that there is a hurdle to overcome before publication in the clauses as drafted: peer review. I am not entirely sure that, if we expand it into statements that are published on websites belonging to those other institutions, those statements will have the same imprimatur of peer review before they are published. If we could find a way to do that, I would be happy to support the proposal but it is complicated.
Lord Bew
My Lords, I thank the noble Lord, Lord Hunt of Chesterton, for putting forward this amendment, and I am very sympathetic to his efforts. However, the noble Lord, Lord Browne of Ladyton, has asked one question and I will ask two questions in the same vein. This is just for reassurance, because I think that we understand that there could be great benefit from this amendment, and a powerful case has been made.
First, the noble Lord knows this world and the world of academic journals. Is he sure that the person editing a website for a chartered professional association is necessarily of the same calibre as the person editing a peer-reviewed academic journal? The second question is related, and perhaps more profound: is he sure that there is the same requirement for qualified privilege as there is in certain areas for academic journals, where there clearly is a severe chilling effect? The questions are in the same vein as those posed by the noble Lord, Lord Browne, but are in the vein of a very sympathetic interest in the proposal that the noble Lord has put to us. He is quite right to say that he is speaking entirely in the spirit of Clause 6. I would like to have a little more reflection on the detail.
Lord May of Oxford
It is perhaps a little more complicated than some people think. I am not sure that people understand that some journals are purely electronic. Some of the major journals—PLOS ONE, for example—are online, while most of the conventional, older journals offer an option to publish additional material electronically. More than half the journals are run by the same learned societies that the noble Lord, Lord Hunt, is talking about, so it is not a juxtaposition of things that you can physically hold up and others. It is a seamless continuum, and the spirit of this definitely needs some refining to make central what has been said so clearly: that the issue is peer review.
Lord Mawhinney
My Lords, I will chip in again. When I responded to the amendment from the noble Lord, Lord Hunt of Chesterton, I said that it was subject to further work being done on the definition of recognition. I know that the noble Lord, Lord Browne, said that he was talking about something different, but I think that he and I are basically saying the same thing. In light of this further conversation, I say to the noble Lord, Lord Hunt, that if his amendment is saying that the existing people become the judge and jury for their own individual production, then I am not sure that that is in keeping with the spirit of what the Joint Committee said.
A redefinition, or indeed a definition, of “recognised” has to have some element of other people endorsing the view of those who want to produce. I encapsulated that in referring to a clearer definition of “recognition”. The noble Lord, Lord Browne, and I are probably saying much the same thing, and I hope that those who spoke to the noble Lord, Lord Hunt, recognise that being in a learned society is not in itself sufficient. There has got to be further definition of the word “recognition”. However, subject to that, which does not seem to me to be an insurmountable problem, I still welcome the amendment.
Lord Phillips of Sudbury
My Lords, I strongly support this group of amendments in the name of the noble Lord, Lord Hunt. I am sure that all the academics at the University of Essex, of which I am chancellor, would be cheering on their stools if they could hear this.
I just have one question for my noble friend Lord McNally, which may seem rather an odd one. This is all built around scientific or academic journals. That seems an odd pairing to me because I would have thought that most scientific journals were academic journals, although not vice versa. If there is to be a careful consideration of the terminology in the amendment tabled by the noble Lord, Lord Hunt, which I think is necessary and indeed essential, the Minister might consider whether or not “scientific or academic” is the happiest wording, as if one excluded the other.
Lord McNally
My Lords, the more that I hear about academia from the noble Lord, Lord May, and about the law from other Members, I am glad that I am in such a straightforward profession as politics.
This debate, again, has been extremely helpful. I worry, as I think a number of contributors have, that if the concept of “journals” includes those online, there is a question of how and where it stops. That is why we have tried to consult on this issue. It is interesting that when the legislation was first put forward by my noble friend Lord Lester, he did not make any provision for the protection of scientific journals, but particular concerns were expressed about the impact of the threat of libel proceedings on scientific and academic debate. We therefore believe that the addition to the general protections offered by the Bill of a specific defence of peer-reviewed material is appropriate. Other aspects of the Bill and work associated with it, such as the serious harm test and actions on cost protection, will also help to support free speech in these areas.
Let us be clear: right from the start, I wanted to provide protection for genuine academic and scientific debate. I have to say to my noble friend Lord Phillips that “academic and scientific” is a term that is generally understood—it does not mean the Beano. People know one when they see one. Within that, there is also the important context that we are looking for genuine peer review, which, again, is understood. I worry, as I think the noble Lord, Lord Bew, does—I will also be interested in the response from the noble Lord, Lord Hunt, to the specific questions—that we must not push the envelope too far on this, otherwise we will run into some of the problems that the noble Lord, Lord Browne, raised. We are right to be cautious.
As I say, the issue featured prominently in our discussions with the scientific community. We also held discussions with the editors of all the key journals to ensure that appropriate conditions were attached, so that the clause applied only where responsible peer-review process was used. We shared the relevant aspect of the clause with those editors to confirm that this was achieved.
Amendment 31 would extend the defence to peer-reviewed material on,
“a website edited and controlled by a chartered professional or learned body”.
We are concerned that this would make the defence too widely available. We believe that it is important to ensure that only bona fide publications with appropriate procedures are given the protection of the new defence. That is why we have focused the clause on scientific and academic journals, where there is a well established process for peer review. I can confirm that the existing clause would cover peer-reviewed material that was published by such a journal in an electronic form. However, a potentially wide range of bodies may fall within the categories proposed by the noble Lord, and we are concerned that this would extend the defence into areas where peer review is not a common practice. That may lead to the defence being available in instances where it is more likely that the peer-review process will not have been applied sufficiently robustly.
The other substantive amendment in this group, Amendment 35, would privilege any assessment of a peer-reviewed statement’s scientific or academic merit if it was written by one or more persons with expertise in the scientific or academic matter concerned and was approved by the editor of the journal or website. This would appear to be aimed at extending the defence to statements such as replies to or commentaries on peer-reviewed material without the requirement that they themselves be peer-reviewed. Again, we consider that this would extend the scope of the defence too widely.
I was asked a couple of specific questions. The noble Lord, Lord May, was worried about the meaning of “malice”. We would expect courts to use the same test as applied in other forms of qualified privilege; that is, a defendant would forfeit the defence if they could be shown to have acted with ill will or improper motive. On the points made by my noble friends Lord Phillips and Lord Lucas about the term “scientific and academic journal”, we believe that the term is widely understood and that a definition of “journal” is unnecessary.
I think that I have covered the points raised; indeed, I think that some of the most pertinent questions were addressed to the noble Lord, Lord Hunt, who may take the opportunity to make a brief reply. However, as the noble Lords, Lord Browne and Lord Mawhinney, invited us to do, we will look at this matter. As I said in discussion with the noble Lord, Lord May, I genuinely want to get this legislation right for the scientific and academic community; indeed, it is one of the most important challenges for the legislation. I am certainly willing to examine whether we have got our definitions and our scope exactly right, and I welcome the debate that the noble Lord has provoked with his amendment. I ask him to withdraw it.
Lord Hunt of Chesterton
I thank noble Lords for their very constructive response. I want to emphasise the respective memberships of the institutions which wrote to me. The Institution of Civil Engineers has 80,000 members; the Institute of Physics has 45,000 members; the Institution of Chemical Engineers has 35,000 members; the Institution of Mechanical Engineers has 100,000 members; the Institution of Engineering and Technology has 150,000 members; the Royal College of Physicians has 30,000 members; and the Institution of Agricultural Engineers has not so many.
I have published papers in the scientific literature and for those institutions, and I can tell your Lordships that the standard of refereeing in most of our engineering institutions is extremely high. There are excellent scientific journals, but there are an awful lot of scientific journals with peer review in them that are pretty poor. That is why I was surprised that the clause as originally drafted set no quality level for the journals; no quality level has been supplied. It is not as if these are journals of institutions. The quality level that I want to introduce for the websites—“chartered”—is a great deal higher than is the case for the journals.
Lord Hunt of Chesterton
Some—I apologise to the noble Lord, Lord May.
This is an extremely rigorous process, so I do not recognise the notion of dilution suggested by the noble Lord, Lord McNally. This is not a free-for-all. If one civil engineer writes a letter to a journal about, let us say, a bridge, it is an extremely serious matter. This is now done regularly without many court cases, but it would be better if it were in the legal framework. We would be building on an established tradition.
However, time has been running on. I am appreciative of the Minister’s constructive response. I should like to talk to the drafters, and I hope that this matter will come back. I beg leave to withdraw the amendment.