Defamation Bill

Debate between Baroness Hayter of Kentish Town and Lord Allan of Hallam

Tuesday 5th February 2013 Lords Chamber

[Baroness Hayter of Kentish Town]

My Lords, this amendment simply asks that where a properly constituted complaint is received, the website operator must post a notice alongside the allegedly defamatory material within seven days, signifying that it is being challenged. Should the website operator fail to do so, he or she would forfeit their particular defence under this clause, although they could still rely on the standard defences available to the primary publisher.

The amendment arises from a recommendation of the Joint Committee on the draft Bill, in response to which the Government seemed to cite only “issues of practicality”. In Committee, the Minister said that internet organisations,

“identified significant practical and technical difficulties with the proposal relating to the posting of a notice of complaint alongside defamatory material”.

He did, however, have the good grace to add that noble Lords may be saying,

“‘Well, they would say that’”.—[Official Report, 15/1/13; col. GC192.],

although he did not quite add, “wouldn’t they?”. However, when we met with Yahoo, it did not see a problem with our proposal. If it is so easy for an operator to post a comment, it should be no more difficult for it to add a rider simply stating that it is being challenged as defamatory by the person concerned.

Within this group we very much welcome government Amendment 17, which the Minister tabled and will no doubt shortly move. The aim of Clause 5 is simply to ensure that a claimant can find out from the web operator the name and contact details of the person who posted the comment so that they can sort it out between themselves. Provided that they do this, the operator has the defence that the author is the person to be sued. The exception for malice would cover where the operator in some way connived or encouraged the trouncing of someone’s reputation. I take this opportunity to congratulate the noble Lord, Lord Phillips, on his work in Committee, which I think led to this provision.

For the purposes of time, we did not speak to the amendment just before the dinner break but we were similarly concerned that that might detract from the centrality of this clause, which is to allow the operator to stand back and let the two primary parties resolve the dispute between them. Therefore, although we very much welcomed parts of that amendment, which incorporated the idea of a code, we hope that the operator will wash their hands of the matter unless and until the court finds the defamation proved, when the operator will have to take down the defamation or, assuming that the Government accept our amendment, they will have to put up a note reflecting the fact that there has been a challenge.

I hope very much that the Minister will put the excuse of practicalities to one side and accept Amendment 11. Certainly, we have received no lobbying from any operator arguing against it. It would contribute to dealing with these matters openly, as well as speedily. I beg to move.

[Lord Allan of Hallam]

My Lords, in speaking to Amendment 11, I declare an interest in that my day job is working for Facebook—a company that operates a website.

I think that there are some challenges around this proposal. In Grand Committee, in response to amendments proposed by the noble Baroness and her colleagues, we discussed the variety of web services and websites that exist today, and that is where I think there may be a challenge. There are indeed a number of websites that would be amenable to the posting of a notice and where that would be quite straightforward. However, when we consider the vast scope of speech that may exist across the internet, it is clear that we are dealing with a wide variety of services.

The intention behind Clause 5—and it is one that I support—is to make sure that we maximise the opportunities for people to speak freely. There may be cases where we need to interfere but we do not want to overly restrict the opportunities to speak freely and, as we discussed in the previous debate, the intention behind the clause is to ensure that a defence is widely available to such services.

My concern is that, while Amendment 11 would work perfectly well for a number of web services—I suspect the larger, more mature and more sophisticated could implement a system of posting notices in a relatively straightforward manner—there is a whole host of web services of varying shapes and sizes for which this would present a barrier. That would effectively mean that those services would lose the defence—a defence which I think we agreed in a previous debate is important to sustain the notion of free speech.

I understand the noble Baroness’s intention behind the amendment and I imagine that, as a matter of good practice, operators should post such notices where it is reasonable for them to do so. Indeed, Wikipedia has implemented a good practice system so that when content is contested, people are able to discuss it. That kind of good practice is reasonable but I think that restricting the scope of the defence only to services that are able to do that goes further than is sensible if we are to maintain a broad ecosystem of services in which a citizen of the United Kingdom can speak freely without excessive interference from people bringing complaints.

The only other point that I would note from an operator perspective is that every system that is put in place is abused. My noble friend Lord Phillips of Sudbury has talked about the interests of the “little man” or individual who wishes to make a complaint of defamation. That is absolutely right. However, the experience of web service operators is that some people will try to use any system that you put in place for their own purposes, and I can immediately see the scope for that when I look at this amendment. If you can guarantee that a notice will be published on a website simply by filing a complaint, I can see huge scope for it to be used by those who wish to be aggressive towards people who post content on the internet that they do not like, irrespective of whether there is any kind of substantive defamation claim. Given that the individual filing the complaint faces no penalty in this regime, a complaint can be found groundless but there will be no comeback on the individual who filed it. It would effectively create an avenue for that person to have their content posted alongside that which they do not like. I can certainly imagine that there would be significant instances when it was used in that manner. For those reasons, Amendment 11 would not be helpful to fulfilling the intention of Clause 5.