Defamation Bill

Debate between Baroness Bakewell and Lord Lester of Herne Hill

Tuesday 5th February 2013 Lords Chamber

[Baroness Bakewell]

My Lords, in speaking to Amendments 6, 7 and 9, I declare an interest. I am a member of PEN, the defender of writers’ rights, and have been briefed by it in the matter of public interest defence. However, I speak as a journalist of some four decades’ experience, schooled in what were at the time the exacting standards of BBC journalistic behaviour. If that sounds rather smug or perhaps even naïve, following the earlier debate on Leveson today in which enormous generalisations about the nature of the press and its wickedness passed unchallenged, I am aware and proud of the many high standards of journalism in this country, which has served in part to disclose the scoundrels in the industry whom we wish to call to account.

It is against that background that I seek to make the matter of public interest foolproof against capricious and expensive litigation and extended and opportunistic probing of journalists’ subjective motives.

The advantage of the small but significant changes proposed in these amendments is that the defence can still benefit from a subjective element that would require the court to consider the defendant’s state of knowledge at the time of publication, but would limit the claimant’s ability to spin a long and expensive case by probing the defendant’s motives. It is the decision to publish rather than the belief that is critical.

Matters of public interest require objective judgments reasonably arrived at. Journalists must be held to such judgments. The issue of subjective motives is simply not relevant to the case. As Lord Justice Dyson found in the case of Flood:

“The mere fact that an article is published because the journalist or publisher wants to hurt the subject of the article is not material to whether the publication is in the public interest”.

As long-serving practitioners in the area of defamation law have advised the Libel Reform Campaign, an opportunity on the part of an aggressive, outraged claimant to use the litigation to probe into, to prise open and to seek to expose as flawed the motives and good faith of a defendant, including editors and journalists, may be readily exploited. As a writer of fiction, I am well aware of the complexity of human motive and its expression, including my own. But as a journalist, I acknowledge that my examination and exposure of a story must answer the strictest tests of reason and objective judgment. The law must safeguard my right to do so. In leaving open the option of what I might believe and why, some major intentions of the Bill—to reduce the length of cases and their prohibitive expense so as to enable those without means to get redress—would be damaged. I support the Bill.

[Lord Lester of Herne Hill]

My Lords, the Government are to be commended for having dropped the checklist in Clause 4 and for introducing instead the generic test, which I think was very much the test that Sir Brian Neill, as an adviser, recommended. There are three separate issues here. I am not sympathetic to widening the reasonable test to one which “could be” rather than “is”. I think that the objective test of reasonableness is right. I am sympathetic to substituting the word “decided” for “believed”. It is about whether what was decided was reasonable and, therefore, it seems to me that decided is a better word. It is not just I who say that: as has been said, it also has been said by leading libel counsel with experience.

I very much hope to persuade the Government to drop altogether Clause 4(2) on rapportage. Rapportage was introduced in my Private Member’s Bill originally—then, with good reason. But now that we have a good public interest test in Clause 4(1), I do not understand why we need the complexity of subsection (2), which I regard as difficult to understand or apply and unnecessary. Reading Clause 4(2) and asking oneself as a lawyer or a human being what it means makes my point. Clause 4(2) states:

“If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party, the court must in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it”.

I think that I understand what is being said but I do not understand why it any longer needs to be in the Bill.

Rapportage, or reportage, covers cases in which the very fact that certain allegations are being made, or that a certain controversy exists, will constitute a matter of public interest. It is in the public interest to report what is being said, irrespective of whether it is true. In such cases, the defendant may be relieved of the normal obligation to seek appropriate verification of allegations before publishing them because the newspaper is a mere reporter. It is not adopting a defamatory position. In light of the amended Clause 4, there is no longer any need to make specific provision for rapportage because the elements of this subset of Reynolds privilege is covered by the general test of whether the statement published was on or part of a statement on a matter of public interest and the defendant reasonably believed that the publication was in the public interest.

Clause 4(2) as drafted is confusing and opaque. It has the potential to cause further confusion in the light of the redrafting of the rest of the clause. Clause 4(2) states that the court must,

“disregard any omission of the defendant to take steps to verify the truth of the imputation”.

The reference to taking “steps to verify” is there because in the checklist in the previous version, one factor was,

“whether the defendant took any other steps to verify the truth of the imputation”.

However, as Clause 4(2)(g) has now gone from the Bill, there is no need to provide that the court should disregard it. To refer to taking “steps to verify” in subsection (2) is confusing.

I very much hope that we can get rid of this altogether. We do not need it. The general standard in Clause 4(1) is good enough to cover rapportage as well. I do not expect the Minister to give me other than a bleak and wintry reply this evening but I would like to think that by the time we come to Third Reading, the shoots of spring may shoot out of the earth.

Defamation Bill

Debate between Baroness Bakewell and Lord Lester of Herne Hill

Monday 17th December 2012 Grand Committee

[Lord Lester of Herne Hill]

My Lords—

[Baroness Bakewell]

My Lords, my contribution to this debate will be anecdotal. I am a lay person. I am not a very experienced parliamentarian. I am a journalist. Even as we were debating the Second Reading of this Bill, events were engulfing the BBC in the most significant scandal of recent years, involving all the very issues that concern us here.

Early in October, a programme on ITV disclosed that Jimmy Savile had been abusing young girls for over 40 years in his television career. He had died in October 2011 and within two months BBC “Newsnight” was embarked on a programme disclosing these allegations. That programme was dropped and never transmitted for reasons that are even now the subject of two BBC inquiries; one conducted by Nick Pollard and one under Dame Janet Smith. Everyone must agree that it would have been in the public interest if the activities of this man could have been brought to light much earlier in his career without having to wait for his death.

Disasters continue to pile up at the BBC. On 2 November, “Newsnight” broadcast a report of abuse at a children’s home, in which the claims of one of the victims led to widespread dissemination of false allegations against Lord McAlpine. These allegations against an individual, who was not named by the BBC, proliferated fast and far on social networks, with individuals simply retweeting on their own sites to their many followers, who did the same. Five days later, the Guardian named Lord McAlpine as the subject of mistaken identity. Numerous law cases have ensued. The wider public has been excited by all these goings on and confused about what is and is not allowed in law. Lord McAlpine has gone to law, and substantial costs are being awarded to him in cases of defamation, but we still have a case in which several hundred girls who were abused over a period of 50 years have not been able to get redress. I cannot address the detail of this Bill, but I know that the public must be allowed to bring to law those who have caused damage and pain. Journalists and people who report in good faith what they know or believe must be allowed to do so.

[Lord Lester of Herne Hill]

I do not know whether my noble friend Lord Hunt knows the history of this interesting idea. In 1990, when the noble and learned Lord, Lord Mackay, was Lord Chancellor, he issued a consultation paper, and it was announced on 14 May 1991 that he had decided not to recommend any change in the law. In 1948, Lord Porter’s committee came to the same conclusion, but the majority in the Faulks report—the chairman was the uncle of my noble friend Lord Faulks—came to a different conclusion, with Kimber and Rubinstein dissenting. It came to the same conclusion that the law should not be extended in this way. Sir Brian Neill’s committee looked at it much more extensively than any previous committee and it reported in July 1991. The standard textbook—Gatley—refers to that and to the way it looked at it so thoroughly. Of course, Sir Brian Neill has been invaluable on this Bill because he was one of the expert advisers, just as he was on the Bill on defamation proposed by the noble and learned Lord, Lord Mackay, in 1996. I thought it might be useful to the Committee to recall what the Neill committee stated in July 1991.

“In any event, we have come to the conclusion that the hurdles in the way of doing justice, in any of these circumstances, would be so formidable that there should be no change in the law. The difficulties, of course, primarily relate to establishing liability. The defendants would be placed at a very serious disadvantage for the reasons outlined above, principally though being deprived of the right, in relation to the alleged ‘victim’, to interrogate, to obtain admissions, to obtain discovery of documents and to cross-examine.

There might also be substantial difficulties for those suing to protect his reputation, but that in itself weights less heavily with us since they (unlike the hapless defendants) would have chosen to put themselves in that predicament. Nevertheless, we bear in mind that it is not only their interests which could be affected since difficulties in prosecuting the suit”—

that is after death, of course—

“could adversely affect the best interests of the deceased person whose reputation they would claim to be projecting.

Perhaps the most poignant example would be that where the defendants have chosen to pleased justification or fair comment. Not infrequently such a please will involve charges of grave misconduct against the plaintiff. When the subject of the libel is dead, however, there would be infinite possibilities for injustice. His reputation would be put in jeopardy not only without his consent but also without an opportunity to answer as he might have wished during this lifetime”—

as it were, Jimmy Savile. It continues:

“In our view it would be as repugnant to permit such an exercise as to allow criminal proceedings to survive beyond the death of the accused”.

It goes on:

“The majority of the Faulks Committee drew a distinction between the situation where proceedings have been commenced prior to death and that where they have not, such that in the former case the representatives would be able after death to pursue both general and special damages. In the latter case, however, only a claim for economic loss would be permitted”.

I hope the noble Lord, Lord Faulks, will not be upset by this.

“We cannot see the logic of this. It is just as difficult to pursue a claim for general damages after death, whether proceedings have been started beforehand or not. One argument put forward was that the wrongdoer should not escape having to pay general damages if the victim had formulated his claim. We do not understand why the mere formulation of a claim should change the parties’ rights and liabilities.

More importantly, since the difficulties inherent in this kind of exercise relate primarily to liability, the injustice would accrue whether the claim was limited to special damages or not. Even, however, where only damages were in issue, there could still be significant injustice in relation to quantification through the defendants being deprived of the opportunities normally open to litigants, namely with regard to interrogation, discovery and cross-examination.

We agree with the recommendation contained in … the Report of the Porter Committee … and with the minority report … of the Faulks Committee, written by Messrs Kimber and Rubinstein. We are of the opinion that no change is required to the present law, whether to enable proceeding to be brought, or to enable them to be continued, after the death of a person who is alleged to have been defamed”.

I do not apologise for reading that in because it is quite hard to get hold of the report of the Supreme Court Procedure Committee. I thought it right to do that.

Finally, I would say to the Watsons’ tragic example—and to my noble friend—that hard cases make bad law. For the reasons that Sir Brian Neill’s committee and others have said, this would make bad law.