Defamation Bill

Baroness Hayter of Kentish Town Excerpts

Wednesday 19th December 2012 Grand Committee

[Lord Browne of Ladyton]

I am very pleased to have given the noble Lord an opportunity to make a very good and common-sense suggestion that I am sure the Government will take on board. They have taken on board quite a lot of what he has suggested in relation to this particular area of the law. In general, I agree that Explanatory Notes should not be set in stone at the point of publication of a Bill and not revisited, because Bills are often changed substantially during their passage through Parliament. It would be helpful to have revised Explanatory Notes. I agree with the noble Lord that sometimes the Explanatory Notes do not take one very much further forward than the Bill itself. This Bill has been significantly changed and the notes could do with some revision.

I will just point out that as a Scottish lawyer there is no conceit on my part about the state of Scots law. Clauses 6, 7, 15, 16 and 17 of the Bill extend to Scotland. When we reach a discussion of something that is directly relevant to Scotland, I will express my regret that there does not seem to be any parallel movement on the part of the Scottish Government to find time in their Parliament to bring the law up to the improved state that it will be in down here when the Bill becomes law.

[Baroness Hayter of Kentish Town]

It affects Wales, too.

[Lord Browne of Ladyton]

Of course it does. I am sorry.

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Moved by

[Baroness Hayter of Kentish Town]

23A: Clause 5, page 3, line 21, leave out “a website” and insert “an electronic platform”

[Baroness Hayter of Kentish Town]

My Lords, I have lost my support team. The amendment is in the name of my noble friend Lord Browne and myself, and I shall speak to the other amendments in the group. The amendment, as my noble friend suggested earlier, is by way of a probe. It would replace the word “website” with “electronic platform”. It is seeking clarification from the Government about what they mean by website and to ensure it is sufficient to make the Bill future proof. We might also consider whether the common definition of, for example, “journal” includes electronic peer-reviewed offerings, which might deal with some of the later amendments.

As the Minister indicated earlier, we can probably assume that “website” covers Facebook, blogs and Twitter, but we need some clarification on that. I did not have a chance this morning to study the DPP’s guidelines released earlier about when legal action would be taken on harassment and similar issues on electronic platforms. Perhaps the Minister can reassure us that these two initiatives, albeit one on criminal prosecutions and one about defamation, are moving in harmony. Amendment 23B specifies that the defence applies only in relation to damages and not, for example, in an application for an injunction. This was probably addressed in Clause 13, but it would again be helpful for it to be part of this clause. Amendment 26A simply replaces “was” with “is” for clarification. “Was” implies that a post used to be on the website and has been taken down. That amendment would clarify that no action would be needed if it had been removed.

I turn now to our main amendments in this group, Amendments 25A and 25B. I shall first refer to a letter from the then Parliamentary Under-Secretary for Justice, Jonathan Djanogly, on 13 June, which included a helpful attachment indicating the department’s thinking about the procedure to be followed under Clause 5. There was a subsequent letter on 10 December from the noble Lord, Lord McNally, with that attachment. It states that:

“Website operators will be encouraged to set up and publicise a designated email address”—

that is, for complaints—

“as a matter of good practice”.

Is it not time to make a real difference to the whole business of reputation and innuendo by establishing a need, not just a request, that if website operators want to take advantage of the defences to defamation then, through them, the authors must be easily contactable by anyone with a potential claim? Neither authors nor website operators should be able to hide behind some electronic wall to avoid receiving a writ.

We seek the easiest possible route between the defamed and the author of the offending words by, we hope, virtually bypassing the website operators. We do not want the defamed, as in the Government’s suggested outline, to have to go round the houses, waiting here for 72 hours, waiting there for seven days and possibly applying to a court before even finding out who has written the alleged libel or where that person can be contacted. We therefore want it to be obligatory for a well publicised e-mail address to be on the website, for use where the author is not already identifiable and contactable. It is slightly strange that in the Government’s appendix to those letters, they seem to ask that the complainants should identify themselves and give their address and everything to the poster, with no such reverse obligation on the author.

It is not good enough for authors to hide behind anonymity. This has not been allowed to the defamed person and it is hard to see why it should be available to the alleged slanderer. I shall leave whistleblowers to one side at the moment. I shall come back to them, but we should not allow that tiny number of people who can be safeguarded by other means to act as a cover for the anonymity of the millions who trounce other people’s reputations. It is hard to understand the Government’s proposal to allow the author to refuse to reveal his or her identity, with no excuse having to be given. This would therefore make the complainant seek a court order to locate the author.

If the provision were to be enacted, no author would ever have any reason to give out their name, knowing that no action could even be started against them without a court order. We have to change this around. Either the author puts up his or her hands and says, “It was me who wrote it and it is not defamatory”, or the website operator must take the hit and stand in the shoes of the secret writer. I leave whistleblowers to one side for the moment.

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[Lord Ahmad of Wimbledon]

My Lords, I am sure that the Committee will agree that, in light of the other contributions that remain to be made and of the time, further debate on Amendment 23A should be adjourned. Perhaps it would be a convenient moment to suggest that we adjourn this debate until Tuesday 15 January at 3.30 pm.

[Baroness Hayter of Kentish Town]

Before we put that to the Committee, perhaps we may take this opportunity to thank the Deputy Chairman and all Members for what they have done so far and wish everybody a very happy Christmas.

[The Deputy Chairman of Committees]

In adjourning the debate until the day specified, I wish you all a very happy Christmas and new year. We will no doubt have more fun discussing this in January.