Defamation Bill [HL]

Baroness McIntosh of Hudnall Excerpts

Friday 9th July 2010 Lords Chamber

[Baroness McIntosh of Hudnall]

My Lords, standing up at this point in such illustrious company teaches me the perils of asking to speak early in a debate. Be careful what you wish for. However, it gives me an opportunity to be the first to congratulate the noble Lord, Lord Lester, on bringing forward the Bill and to say how much I am looking forward to the maiden speeches of my noble friend Lady Hayter and the noble Lord, Lord Willis, both of whom, I am sure, will make distinguished contributions to the debate, no matter how nervous they are feeling at this moment.

I know that the House is hugely indebted to the noble Lord, Lord Lester, not only for this Bill but for other pieces of enlightened legislation for which he has been responsible in the past. I hope that if the Bill or something like it is enacted, his name will be for ever attached to it. Given the number and quality of the speakers the noble Lord has attracted today, I am aware that I can contribute little more to the debate than my support for his enterprise. I do so with great humility, having no special experience or expertise—only a long-standing awareness of the inadequacies of the current state of the law. Those inadequacies are hugely magnified now by the impact of the internet.

I come from a background in theatre and the performing arts. You might think that it is an area wherein the laws of defamation would not have any particular traction, but, of course, they do. I spent a significant part of my time while I had executive responsibility for theatres worrying about the work of playwrights who were writing about contemporary events or living people, and whether those writings might incur the kind of action which this Bill is partly designed to prevent. However, it is not new writing that I want to quote from in starting my remarks; it is old writing from probably the best of old writers; namely, William Shakespeare. At a crisis moment in Act 2 of his great play Othello, Cassio—who is one of several hapless victims of Iago’s malice—says:

“Reputation, reputation, reputation! O, I have lost my reputation! I have lost the immortal part of myself, and what remains is bestial”.

These are very powerful words. They reminded audiences then—as they still do—how vulnerable and exposed we are when our reputation is called into question, even when, like Michael Cassio, who was induced by Iago to drink too much and started a fight, we are partly the architects of our own disaster; the more so when we are not. That phrase,

“the immortal part of myself”

is peculiarly resonant, so it is perhaps no surprise that, historically, reputation has been defended at least as fiercely as property—it seems to be what duelling was mostly about, for example—or that the urge to defend even indefensible reputation has led people to bring libel actions—I think of Oscar Wilde, but there are other notable examples—with disastrous consequences. Therefore, it is no surprise also that over time the law has developed strong protections for those who are attacked in this way. Loss of reputation is no small matter.

But who is being protected by the law as it is applied today? It seems pretty clear from what we have heard from the noble Lord, Lord Lester—I am sure that we shall hear much more of the same from other noble Lords as the debate continues—and from the mass of evidence provided by the many individuals and organisations supporting the introduction of his Bill, that it is not always the right people. As the noble Lord has pointed out, this Bill is not intended to limit the ability of those, whether individuals or corporations, who have been defamed to go to law, but it is intended to bring some balance into a system which presently favours the plaintiff in libel cases—as is plainly evident from the amount of so-called “libel tourism”—not only because the burden of proof lies with the defendant but because the costs of mounting a defence are so prohibitively high that those accused often prefer to settle out of court.

I am particularly concerned about the effect on writers and publishers, among whom the “chilling” effect already referred to by the noble Lord, Lord Lester, has become a serious problem. Although the full impact of self-censorship is impossible to quantify, it is plainly at work, judging from the evidence collected not only by the noble Lord but by the many supporters of his campaign. I draw your Lordships’ attention, for example, to a briefing I received yesterday from Mumsnet.com, somewhat to my surprise as I did not have them down as particularly given to sedition. But there we are; what do I know? They support the Bill but make the point that there is further to go in protecting websites such as theirs. They say:

“Mumsnet welcomes this serious engagement with the need for reform of our antiquated libel laws ... However we are sorry to see that the Bill does not provide explicit cover for hosts of third-party content. Sites like Mumsnet provide a great deal of authored editorial information, as well as hosting unmoderated discussion; as such we are concerned that our status as innocent facilitators (as opposed to editors or primary publishers) is unclear. A statement in the Bill that ‘hosts of unmoderated third-party comments will be considered innocent facilitators’ would clarify matters. If uncertainty remains and the Bill becomes law we are concerned that Mumsnet would have to continue to remove potentially defamatory material, even when we are not convinced that it represents a breach of the law, thus severely curtailing freedom of speech”.

We should particularly note the words “continue” and “potentially” in this submission. Caution is already the watchword of these people and many others. When the noble Lord replies to the debate, will he say whether there is any reason why the Bill, or a subsequent Bill, should not be amended to meet this point?

The Libel Reform Coalition, to which the noble Lord, Lord Lester, has already referred, made up of Index on Censorship, Sense About Science and English PEN, among others, tells us in its excellent briefing:

“Fighting a libel case in England costs 140 times the European average and routinely costs £1M”,

and that,

“out of 158 cases from 2008 identified in Justice Jackson's review of civil litigation costs, none was won by the defendant”.

I do not want to take up time citing examples of recent cases although, having had the privilege of working with Dr Simon Singh when we were both trustees of NESTA, I watched the progress of his recent appearance before the courts with dismay, even though he won his case. Nor can I add anything to the important questions around legitimate defences or jury trial versus hearing before judge alone, with which the Bill deals and the noble Lord, Lord Lester has outlined. I simply observe, before sitting down, that the figures from the briefing to which I have just referred are enough on their own, even without all the other evidence before us, to indicate that something is grievously wrong. Writers on all subjects—scientists, biographers, reviewers—now live in a world where avoiding the risk of libel action is more important than telling the truth. This is a bad state of affairs. The enactment of the Bill, or something like it, would go a considerable way to putting it right. I wish it a fair wind from the Government, who really should take this opportunity to do something about a long-neglected problem, and a safe passage through your Lordships’ House and beyond.