Defamation Bill

Debate between Baroness Hayter of Kentish Town and Lord Lester of Herne Hill

Tuesday 23rd April 2013 Lords Chamber

[Baroness Hayter of Kentish Town]

My Lords, I am grateful to the Minister for making reference to my noble friend Lord Browne of Ladyton, who has just talked about surrogate parentage. Perhaps we can all claim a little of that. However, the contributions of the noble Lords, Lord May of Oxford, Lord Lester of Herne Hill, Lord Bew, Lord Faulks and Lord Phillips of Sudbury, and the noble Viscount, Lord Colville, actually reflected what was going on in Committee and on Report. The Minister used the tactful words, “development of thinking”; we are therefore not going to talk about u-turns, but simply welcome the development of thinking behind the new government clause.

I thank the noble Lord, Lord Bew. It sounds as if Northern Ireland in itself is a bad example, let alone the suggestion that this House or Parliament should make our laws on the basis of something decided in that Province. No matter how important that Province is, that is not the right way to make our laws here.

As regards two further issues, the first was on whether permission should be sought by corporates before they start an action. I am sure that the noble Lord, Lord Lester of Herne Hill, made a slip of the tongue, for which he is not renowned, when he said that in order to bring an action, companies would have to show serious financial loss. Of course, that is not right with the Bill at the moment. Corporates do not have to show financial loss in order to bring an action, but only to succeed in one. That is the crux of the matter in terms of whether permission should be given before they are able to start an action.

[Lord Lester of Herne Hill]

I am very sorry to intervene, but Clause 1 has to be read with what we are talking about.

[Baroness Hayter of Kentish Town]

It was the word “bring”. What we are trying to say regarding permissions is that permission of the court should be required in order to bring that action. In a sense, the most effective speech about permissions was, of course, made not by me but by the noble Lord, Lord May of Oxford. He discussed the case of Wilmshurst, which involved four years, £300,000, a risk to patients and actually of course no serious case at the bottom of it, because what he said was true. That is what we are trying to get rid of.

To turn to the main issue of Derbyshire, in a sense this is quite a simple judgment. It is a judgment about whether the noble Lords, Lord Faulks, Lord Lester and Lord McNally, are right that we should leave it to the courts and to judges to decide on whether the Derbyshire principle should now apply to other organisations providing public services, or whether we as Parliament want to take that decision. My fear about leaving it to the courts is how on earth users—patients, Travellers, people who are receiving those public services, the disabled who go to Atos—are to know what their rights are if we have to wait for the court to develop the Derbyshire principles. How are parties going to know? Who will fund the test cases? What message does it give to users and patients, and indeed to journalists wanting to report their complaints, if they must wait to know what the outcome is?

[Baroness Hayter of Kentish Town]

It is interesting, but performance of public function will be under either a contract or a commission given out by the DWP or the local authority. They will be able to define that, because they do not simply stand up and say, “I am now providing a hospital”. A contract will exist with what used to be a PCT and is now a GP commissioning group. There will be a contract and it can be defined in that way. If that was the only problem and the Government wanted to concede other than on that, I would happily take that. No, the offer is not coming. I would like to conclude, if possible—

[Lord Lester of Herne Hill]

I am very grateful. The problem is that Section 6 of the Human Rights Act talks about functions of a private or public nature. That is fact-sensitive and cannot be codified, and has not been codified by Parliament in the Human Rights Act. That is why one cannot simply brush it aside and say, “Well, now Parliament must do so”, because Parliament has not done so in the Human Rights Act and cannot do so here. It has to be left to the courts to apply the test.

[Baroness Hayter of Kentish Town]

Parliament can decide that the organisations contracted to do those public functions should have the same restrictions on them, whether that be FOI or anything else, as a corporate body. That can be part of the contract. In a sense, it is a simple issue, and I mean this with absolute respect. I know that lawyers much prefer that these issues are decided in court. I think non-lawyers prefer it to be clear in law, and that is what we believe should happen. We do not want the Derbyshire principle to be eroded, in the words of the noble Lord, Lord Bew, by the threats continuing until a case is brought. For that reason we would like this to be in the Bill, and I would like to test—

Defamation Bill

Debate between Baroness Hayter of Kentish Town and Lord Lester of Herne Hill

Tuesday 5th February 2013 Lords Chamber

[Baroness Hayter of Kentish Town]

My Lords, after that excitement I rise to move Amendment 2 on behalf of my noble friend Lord Browne of Ladyton and the noble Lord, Lord Lester of Herne Hill. It would end the current position whereby individuals and organisations have identical hurdles to jump in an action for defamation.

Defamation is about someone’s reputation being trampled and seriously damaged by untrue statements made about them. Some commentators think that since only people and not organisations have feelings, only people should be able to sue. We do not go that far. We accept that organisations can be damaged by untrue allegations. Had horse meat not been in those burgers, or pork not in that halal food, such innocent information could have substantially and unjustifiably ruined a company’s reputation and caused untold financial harm. That would be the same if a small corner butcher, for example, was wrongly accused of having mice in the shop, if Perrier was falsely accused of being a purveyor of foul water or if a car manufacturer was said to have made a car with unsafe brakes.

Amendment 2 would allow such cases to be brought, provided that the allegations would cause substantial financial harm. The approach came from the Joint Committee. The amendment was moved in Committee on this Bill by its chair, the noble Lord, Lord Mawhinney, who cannot be in his place today. It is supported by Liberty, the Libel Reform Campaign, the Media Lawyers Association, Which? and the Commons Culture, Media and Sport Committee, which noted the mismatch of resources in a libel action between large corporations, for which money may be no object, and a small newspaper or NGO, which has had a stifling effect on freedom of expression.

In their response to the Joint Committee, the Government said that it was unacceptable that corporations were able to silence critical reporting by threatening or starting libel actions that they knew the publisher could not afford to defend but where there was no realistic prospect of financial loss.

This morning on the “Today” programme, John Humphrys, normally not afraid of anything, commented on a piece about branding and said that he dared not say anything derogatory about Coca-Cola because it would sue. John Humphrys may be powerful, but clearly not powerful enough to damage Coke’s profits. Even he knew the chill factor of a threatened action.

In Committee, our amendment was supported by my noble friend Lord Triesman and the noble Lords, Lord Faulks and Lord May of Oxford. It is no secret that the noble Lord, Lord McNally, shared this view until his then boss, Ken Clarke, took him into a quiet room, sat him down and, with the persuasiveness for which he is renowned, convinced him that corporations have reputations. The words are those used by the Minister in Committee on 17 December.

The cases that led to much of the pressure for libel reform were largely brought by corporations, using deep pockets and expensive lawyers to stifle criticism. An American corporation sued Dr Peter Wilmshurst, the British Chiropractic Association sued Simon Singh, Trafigura sued the BBC, manufacturers are for ever threatening Which?, and McDonald’s infamously and stupidly sued two individuals.

The Joint Committee on Human Rights called for the Bill to be amended so that non-natural persons would be required to establish substantial financial loss in any claim for defamation. Its report stated:

“Professor Phillipson … suggests that the failure to impose any restrictions on corporations’ ability to sue in defamation renders the law on reputation inconsistent and incoherent. Defamation law and the protection afforded under Article 8 has developed on the basis that the protection of an individual’s reputation is a significant human rights issue. Corporate claimants have neither personal emotions nor dignity, and yet are treated as natural persons for the purposes of defamation”.

The Commons Culture, Media and Sport Committee also called for a requirement on a corporation to prove actual damage to its business before an action could be brought. Regrettably, the Government opposed this on the grounds that a corporation does have a reputation. Our amendment does not contradict that. It simply requires companies to obtain the court’s permission to sue by showing that it has been, or is likely to be, caused substantial financial loss. This has widespread support and we hope that the Minister will think again.

The second part of our amendment extends the bar on public authorities being able to take action to other organisations performing a public function. The Derbyshire principle is a legal precedent that a government authority cannot be sued for libel. There are good reasons for this. First, it is a body corporate and thus, under the first part of the amendment, it should be debarred since it cannot show financial loss, given that all of us must pay its levy, whether by income tax or rates. The second reason is the comparative resources of any government body compared with those of an individual. The third is that such an authority had a monopoly over education, street cleaning, social care, parking and myriad other services, so any damage to a its reputation would not dent its market, while publicity was a key driver of improved services or access to redress, since users were unable to take their custom elsewhere. That world has changed. We now have free schools in competition with those run by local authorities, while the voluntary sector and private companies run myriad services on behalf of public authorities and paid for by public funds.

First, users need to be able to comment on such services without fear of a defamation action. Secondly, ratepayers and taxpayers must similarly be able to comment without fear of action. Thirdly, since such services are won through competitive tendering, it seems extraordinary that in compiling their bids, private or voluntary sector organisations can say what they like about the local authority against which they are bidding, but could take action for defamation if the local authority or any of its service users said a critical word about them. Are these providers spending taxpayers’ money on services, including issues such as the Border Agency, adoption and care homes, really to be protected from criticism by hiding behind the threat of defamation? Surely we should be able to hear questions about standards, complaints or conduct without lawyers bullying commentators into silence.

Our amendment would cover only those parts of a corporation performing a public function. Thus, Virgin Care would lose its right to sue over its commissioned work but Mr Branson could still protect his brand’s name where Virgin’s profitability was at risk. In the Commons, the Government rejected this on the excuse that the court in Derbyshire had rejected it. However, that was 20 years ago, when outsourcing was a fraction of what it is today. Now we have one lot of bidders—public bodies—at a disadvantage compared with others because one side can sue for libel but not the other.

In Committee, the Minister, the noble Lord, Lord Ahmad, said that,

“legislation could remove the flexibility that exists under the common law for the courts to develop the Derbyshire principle … in the light of individual cases … it is better to allow the courts to do this rather than introduce … statutory provision”.—[Official Report, 17/12/12; col. GC 467.]

This is a decision that Parliament should take, not the courts. Why do a 2013 Government, pledged to update our defamation laws, feel bound by a 1993 ruling when new legislation is exactly the time to make good any shortfall in the law? The Derbyshire case upheld the right for uninhibited public criticism of public authorities. We should extend this to organisations carrying out those services which were once the monopoly of public authorities.

The amendment is not unfair to corporations. It allows them access to the courts to pursue a defamation case where there is a risk of substantial financial harm to their business. It would remove that right only from those providing public services, akin to the existing bar on public authorities. I beg to move.

[Lord Lester of Herne Hill]

My Lords, I have added my name in support of the amendment, which would reinstate a provision from my Private Member’s Bill preventing profit-making bodies from suing in defamation except where they can show substantial financial loss or the likelihood of it. As the noble Baroness, Lady Hayter, has indicated, it would extend the Derbyshire principle to bodies performing public functions. It does not seek to prevent companies from suing. It simply requires that they show harm where they feel it most—in the pocket. I do not believe that companies should not be allowed to sue for libel. They have no feelings but they and their shareholders are able to be hurt in their pocket book. If we were to bar companies altogether from suing, that would clearly violate the European Convention on Human Rights because it would be discriminatory.

That is why, in my Private Member’s Bill and in these amendments, I have supported the right of corporations and trading companies to sue provided that they can show actual, or the likelihood of, serious financial loss. As the noble Baroness, Lady Hayter, indicated, the Joint Committee on the draft Bill concluded:

“It is unacceptable that corporations are able to silence critical reporting by threatening or starting libel claims which they know the publisher cannot afford to defend and where there is no realistic prospect of serious financial loss. However, we do not believe that corporations should lose the right to sue for defamation altogether … we favour the approach which limits libel claims to situations where the corporation can prove the likelihood of ‘substantial financial loss’ … corporations should be required to obtain the permission of the court before bringing a libel claim. This would encourage robust and decisive action by the courts to prevent trivial and abusive litigation from being commenced at all”.

Before I turn to the second limb of the amendment, I wish to make it clear that there is nothing to stop the directors or officers of a company from suing in their own right; it simply hampers the ability of the corporate body, the trading body, to do so itself. So it is conspicuously moderate and balanced and I hope that it will be acceptable to the Government.

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[Baroness Hayter of Kentish Town]

My Lords, perhaps I can be very naughty and thank the House for its support on that Division.

The intention behind Amendment 3, which I move on behalf of my noble friend Lord Browne of Ladyton and myself, sets out a vital procedure—the ability of a court to strike out an action for defamation. This power is vital. Everything that the Bill seeks to achieve has been about reducing costs—which have completely distorted the law on defamation—by facilitating early resolution, as the Minister said in response to an earlier amendment. If the key issues can be decided early on—which the virtual ending of jury trials enables—then lawyers’ time is diminished and costs are brought down.

The costs in these cases, as we have heard, are such that they put the use of the law to protect reputation beyond the reach of all but the richest. The only others who have been able to make use of this law are those who have used no-win no-fee cases to do so—arrangements which are shortly to be ended. This law has been beyond the reach of most people. Virtually no defendant can contest a case, or claimants bring one, as they risk being crippled not just by their own legal costs but by those of the other side. I heard just today of a case involving one day in court which cost £40,000 on each side.

So costs are vital, as is early resolution. Up against a rich newspaper, no one without sizeable means can consider taking on a case. With a multimillionaire, an oligarch or a company even threatening an action, journalists, papers, NGOs or Which? will be reluctant to publish anything, no matter how true, that is going to tie them up in legal and financial nightmares.

The amendment is about the last part of the jigsaw. Having enabled early decision of most issues by clarity of the law and the reduction of the use of juries, we now need active case management and the clear authority of the court to strike out before trial actions that fail the test of serious harm based on a falsehood, or where other jurisdiction is more appropriate.

That clear ability of a court to strike out an action is what we want written into the Bill. It would allow either side to apply for this strike-out or for the judge to start the process. At one level, the amendment would write into the Bill what in effect exists in the Civil Procedure Rules but which will not be evident to the ordinary member of the public, be they a potential claimant or a defendant. Non-lawyers do not even know of the existence of the Civil Procedure Rules, much less what they say.

The Bill has aimed to provide for a lay person—an author or the defamed—a clear statement of what the law on defamation is, without recourse to a lawyer or a legal textbook. Our description of the power of a court to stop an action is clear. It would show to the claimant that unless they could show serious harm to their reputation, and a tort—that it was wrongful—then they should proceed no further. It would indicate to the defendant that they could go to the court and ask for such a strike-out when it was obvious to them either that the claimant had no relevant reputation here or that any such reputation had not been caused serious damage. This is clarity; it would add to the Bill a power that is already there, and it would be a signal that we want early case management so that as many of these issues as possible can be dealt with and, where appropriate, struck out. I beg to move.

[Lord Lester of Herne Hill]

My Lords, I cannot support the amendment. One of the difficult things about having a Bill like this is to decide what Parliament should be doing and what the courts should be doing. Parliament has put into Clause 1 this very important barrier of serious harm. In his important reply to the previous debate, the Minister helpfully indicated that serious harm—for example, with a corporate body—would include the likelihood of serious financial loss as one of the factors to take into account. Obviously this is a preliminary hurdle, and obviously the procedure rules, which are not in the Bill but will be in the Civil Procedure Rules, and case management will ensure that a party can come before the judge at the beginning and say, “Strike this out because the serious harm test is not satisfied”.

My first reason for not supporting this is that it deals with matters of procedure that will be dealt with, I think, by the Civil Procedure Rules themselves, a pre-action protocol and case management. The second reason is that the factors that are listed here,

“caused or is likely to cause serious harm … and … a real and substantial tort in the jurisdiction”,

are exactly the kinds of issues that one would expect the judge to have regard to, but the Government have very wisely decided to move against having a checklist—for example, in Clause 4. I think that our judges can be well trusted to be able to apply the serious harm test in Clause 1 without a checklist and without being fettered in any way.

I sympathise with the aim of the amendment, but it is an example of overreach. We should not be writing this kind of procedural detail into the Bill; we should leave it to the wise discretion of the judiciary.

Defamation Bill

Debate between Baroness Hayter of Kentish Town and Lord Lester of Herne Hill

Thursday 17th January 2013 Grand Committee

[Lord Lester of Herne Hill]

My Lords, I rise in support of the amendment and what I will say briefly has some relevance to my later Amendments 43 and 44, dealing with parliamentary privilege. I am very sympathetic to the idea explained by the noble Lord, Lord Mawhinney, that we should not wait for some future legislation as a result of the consideration of parliamentary privilege generally, but that where there is an issue that properly falls within the scope of defamation and nothing else, we should take advantage in this legislation to make the necessary amendments. I regard this as one necessary amendment for the reasons given by the Joint Committee on the draft Bill.

The Government stated in their response that this was best left to the forthcoming Green Paper and draft parliamentary privilege Bill. The Green Paper concluded that while some forms of correspondence between constituents were already protected by common law qualified privilege, it would be inappropriate to extend qualified privilege to all forms of correspondence as it would run the risk of potentially encouraging correspondence to MPs intended to circumvent court orders and damage the privacy or reputation of third parties. The Government expressed the view the it would better to continue to enable the courts to determine the boundaries of privilege in individual cases.

I understand that and it is an objection to a wider issue than liability and defamation procedures. It is all about breach of privacy and contempt of court. However, given that the amendment of the noble Lord, Lord Mawhinney, seeks only to provide qualified privilege in defamation proceedings and that there seems to be agreement that it is already covered by the common law in appropriate circumstances, I see no good reason in principle to oppose it. I note that the Libel Reform Campaign supports it. It suggested adding “Private” at the start of the amendment to distinguish between letters and e-mail and social media.

[Baroness Hayter of Kentish Town]

On behalf of my noble friend Lord Browne, I thank the Minister—and, even more perhaps, his officials who did the hard work—for bringing so promptly to us the response on Rutland. Perhaps I should declare an interest as someone who is married to a member of the Institute of Physics.

I support the thrust of the amendment, but will the Minister, or perhaps the noble Lord, Lord Mawhinney, clarify whether it would cover all letters from MPs to constituents? We had a case locally where an MP attached to a letter a copy of a letter that they had received from another constituent—a row was going on between two constituents, as often happens. Would attaching that letter be similarly covered by privilege if it was then given, as it was, to the press? However, we undoubtedly support the intention of the amendment.

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[Lord Lester of Herne Hill]

I am grateful to the deputy chairman. I am sorry to be unusual, but I normally am. Not only do I agree with what has been said but, in my mind, extending statutory qualified privilege in the schedule is one of the most useful things that the Bill does. We are dealing there with clearly prescribed situations, of which this is one, where, if the press gives a fair and accurate report, it will be protected, as will the public interest. The fact that this has been extended extremely broadly, as my Bill sought to do, whereas the 1996 Act did not do so, is a matter for congratulation.

[Baroness Hayter of Kentish Town]

I was going to use two words I now know I should not: they were simply “thank you”. I am not allowed to say that. I thank the Minister for his answer and beg leave to withdraw the amendment.

Defamation Bill

Debate between Baroness Hayter of Kentish Town and Lord Lester of Herne Hill

Tuesday 15th January 2013 Grand Committee

[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.

Public Bodies Bill [HL]

Debate between Baroness Hayter of Kentish Town and Lord Lester of Herne Hill

Tuesday 23rd November 2010 Lords Chamber

[Lord Lester of Herne Hill]

The noble Baroness makes a powerful case, but can she help me? The powers in the Bill are wide enough to deal with bodies that have outlived their useful life or are in need of substantial and radical reform. My idea is that it would be a sensible way forward to hedge the powers with sufficient safeguards. What about the noble Baroness’s approach? What happens if Ministers rationally and proportionately decide that body X has outlived its useful purpose or needs radical reform? Would not her Amendment 107 produce a situation of fossilisation?

[Baroness Hayter of Kentish Town]

The idea is that they should have regard to those objectives. If the objectives are no longer required, or if they could be dealt with in a different way by a different body, that would be one thing. My concern is that if we look only at the issue of independence—which I spoke about, and stressed the importance of, at Second Reading—this will not be sufficient if the power given by the Bill to a body to make sure something happens is still needed. There is nothing else in the Bill as it stands—and even with the other amendments—to make sure that those duties, for example to look after the interests of consumers in rural areas, or of vulnerable consumers, are still carried out. They must have regard to those interests, but my concern is that the purpose for which primary legislation set up these bodies, and the duties which it gave them, should be considered by the Minister before he exercises his power. In passing the Bill, Parliament must be confident that where the functions are still needed, they will still exist under the new body, which will have the same strength to safeguard whichever group of users or vulnerable people or pension members whose interests are covered by the 150 groups listed in Schedule 7. Therefore, the amendments in this group seek to ensure not only that the new bodies are independent, but that the purposes for which Parliament set up the old bodies, if they are still needed, will be retained by the new bodies, which will have the relevant powers.

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[Lord Lester of Herne Hill]

I am grateful to the noble Lord for asking a question which I am trying to answer as I speak. The Minister will have heard everyone around the Committee. I am sure that some of us recall what was once said by Archbishop William Temple in a famous lecture: “Whenever I travel on the Underground I always intend to buy a ticket, but the fact that there is a ticket collector at the other end just clinches it”. The Minister has heard the voice of a united Committee, and I am going to be pusillanimous and much criticised for my moderation in not dividing it. However, I do so as a friend and supporter of the coalition. Unless we get the amendments that have been asked for on all sides of the Committee, this Committee will act as the ticket collector rather than myself. If we are trying to achieve a constitutional Bill that we can pass, the right way to do that is not by flexing our muscles on Amendment 1 and proceeding on that basis.

[Baroness Hayter of Kentish Town]

Can the noble Lord explain the difference between the strength of feeling at Second Reading—which we agreed was very strong and very united, but not tested because of the protocols of this House—and the strength of feeling today? If I understand him, he feels that he has not yet been heard properly by the Government. Why does he think that the strength of feeling today is different from that on the previous occasion and, therefore, that it will be heeded on this occasion?

[Lord Lester of Herne Hill]

I do not think that it is different. If anything, it is stronger; but it is certainly as strong as it was on Second Reading. I am trying to consider how best to persuade the coalition Government, whom I support, to make these changes. I believe that we will have more influence by not dividing the Committee. Having said what I have said, I hope that noble Lords, except those who are dying to win a vote, will hold off for now so that we can come back quite strongly—