Defamation Bill

Earl of Erroll Excerpts

Tuesday 15th January 2013 Grand Committee

I say to my noble friend the Minister that this clause was always likely to be the most difficult. He recognised that because he did not offer a draft clause for the Joint Committee to consider; it was one of those “consultation” things. We could all benefit from some clarity from him today, not because the Government are not being helpful and constructive—they are—but because this is going to be difficult to get right. There will be amendments on Report and there may be amendments at Third Reading, but it would help enormously if, starting with today’s amendments, the Government could give us as much clarity as they feel they can on these specific amendments and as a guide to how those principles that I have enunciated should be made to work in the real world.

[The Earl of Erroll]

My Lords, as I was about to say when Christmas interrupted, I should like to talk about the amendments. We have Clause 5 stand part coming up later, so, rather than having a general ramble around the subject, I thought that it might be worth trying to stick to the amendments, because they are interesting.

I look at the clause from the point of view of trying to make it practical and making the system work. This set of amendments is very useful. Replacing “website” with “electronic platform” in subsection (1), as Amendment 23A proposes, will be helpful, because the remarks with which we are concerned will not always be carried exclusively on a website. What is a website? Is a Twitter feed coming to your mobile telephone a website or not? There may or may not be a website driving part of it. There are things that will not be caught by the provision.

That leads me on to the problem of definitions, because everyone is using the words to mean different things. What exactly is a website operator? Some of the stuff that we are looking at here applies to what I would regard as an ISP, an internet services provider, or a CSP, a communication service provider. To them, the “mere conduit” defence, which is in EU law, can apply, because they are not moderating stuff; they are just channelling the information as it flies through the wires. However, they at certain points become something else, because they might also be providing other services. For example, they may be hosting websites but they may not be operating them. What is their liability? Do they need to take down stuff? Are they regarded as a website operator? The websites are operating on their hardware and they would probably be capable of taking down defamatory material. Is the website operator the person who is managing the website? Is it the person providing content into the website? Where do the designers and the people who are to do bits of it come in? I ask those questions because we need at some point to clarify who will be responsible for doing what when it comes to taking things down or—here I go straight to Amendments 25A and 25B—being expected suddenly to put up a response to a notice of complaint alongside whatever is on the website.

My daughter is a graphic designer who has designed a couple of websites for organisations. They do not permit feedback on their website, and although I cannot see where that might happen, something might come up. However, if the organisation wanted to modify that website and allow that, there is no way in which they could do it without going back to her and her programmer to provide the facility to do so. These things are not quite as easy as just putting a bit of type into next day’s newspaper. Particularly if it is a large organisation, some of these things will require a whole raft of change management, interfacing with a programmer and things like that. The practicality of this whole thing is the issue.

I can see exactly what they are getting at. It is a good idea in certain cases. One might try to make it mandatory, particularly for sites which are permitting and expecting feedback from the public. The noble Lord, Lord Lucas, made a good point: we must not kill live feedback from the public about things that are going on. That is where the internet can be hugely powerful, to inform one about what you want to do. I use eBay a lot when I want to trade with someone and do business with them, and we rely on that feedback.

There is a good point but we must be practical about it. Something we have to remember is that when we talk about websites, we are not talking about three, four, five, a dozen, 20 or 50 large operators. There are half a billion websites globally, and the number is growing. There are about 100 million UK websites and growing—my figures are probably well out of date by now. It is on that sort of scale, yet most of our comments are being applied to a few large operators. Okay, they have huge profits, et cetera, but these laws will apply also to the small guys: the ones who will have to take stuff down immediately because they do not dare risk falling foul of some law, particularly if a large company pushes them into it. You can stifle the small business and the innovator very easily by having such laws. A small or medium-sized organisation or a person with a little bit of money has no recourse to the law because they cannot afford to go to the law. You have no protection, and must realise that in life—whether it is criminal or civil law, you cannot afford it.

Amendment 24 on associates: yes. Subcontractors and lots of other people are involved, and they probably need to be drawn into it. The amendments of the noble Lord, Lord Lucas, are both very sensible, particularly the business about a moderator. Nowadays, these things are so large that you cannot track everything, so I like his amendments to be made. On his Amendment 25ZA, people will need the assistance of the operator to find things out.

Amendment 25 of the noble Lord, Lord Phillips, suggests that you must be reasonable, otherwise, where do you stop trying to check things? Surely you can only ask someone to act reasonably in trying to find something out. We have this issue coming up in the modifications to copyright law coming up tomorrow in the Enterprise and Regulatory Reform Bill. Part of the reason for some of the British Library issues there is that it cannot “reasonably” find out, for instance, who is the copyright holder for some works. In some cases, you cannot reasonably find out who did something on the internet. It is not practical to do so.

Amendment 29 on the defence being defeated by malice makes a good point. If something is deliberately malicious, or in bad faith, it is quite right that that should be excluded from defences.

All I really want to say is that we must worry about practicality. The difference between the internet and normal printed media is scale and its global reach. If we are not careful, we may end up doing things which apply only to websites where the computers are subject to UK law. The easy way around it is to locate everything outside the UK. That will kill UK business, and we are seeing that in certain other things. People are just relocating overseas because it is easier than dealing with compliance with UK law. It may seem reasonable and all for the greater good of humanity, but the trouble is that in this global environment it is easy to move overseas, and you cannot block people from doing that.

I like most of these amendments. The only thing is that Amendment 25A and 25B are not practical in their current form. They would have to be restricted to websites which had a particular intention and were designed in that way.

--- Later in debate ---

[Lord Phillips of Sudbury]

I simply wrap up my point by saying that I am anxious about having this paragraph in the amendment, because I think that it could give the wrong idea to those who have to interpret it in future. I would be wholly against a way of lodging a complaint that involved a formal legal process, even of a stripped-down kind, if I can call it that, because it would, I suggest, make remedy more or less impossible for the vast majority of people.

[The Earl of Erroll]

I shall make a couple of comments about Amendment 27, particularly after the remarks of the noble Lord, Lord Phillips of Sudbury. Given the expense of trying to track someone down on the internet and finding out who is who, it will be impossible to identify absolutely reliably everyone who logs on. Unless we put a chip inside everybody and log that, it will not work. There are too many ways of concealing who you are. The banks have enough trouble with their “know your client” procedures, so what kind of trouble will an internet service provider have? It is not realistic to be able to nail down identity over the internet at the moment in the way that some people think that you can.

The point about expensive resolution led me to think about what the noble Lord, Lord Allan of Hallam, said about alternative dispute resolution. The website operator needs somehow to know whether to take something down. If a claimant is not willing to reveal who they are, there may be a public interest reason for it to stay up and there may be support from other places for its staying there. Nominet is operating a successful service for alternative dispute resolution on domain name conflicts. Otelo—the Office of the Telecommunications Ombudsman—also works terribly well in resolving disputes in an inexpensive way. In fact, the industry in each case bears the costs and it is not expensive. I wonder whether it would be worth exploring that.

Amendment 27 is interesting because it could provide some of the information that would be the framework on which a judgment could be made. For instance, a website operator could apply and say, “We would like to know”, through the alternative dispute service. Personally, I think that going through the courts every time would be far too expensive for all the small organisations and ordinary people trying to defend themselves against something malicious that was online.

I was amused by the concept of whether or not regulations could be used maliciously. That is an interesting concept and it probably has wings, as well as legs. There is an old saying that regulations are for your enemies, and it is amazing how maliciously you can use them.

[Lord Faulks]

My Lords, because of my general opposition to this clause, it is obvious that I would also oppose these very well meaning and well articulated suggestions of a mode of complaining by someone who feels that they have been defamed on a website. The debate has thrown up the fact that the industry is in the process of developing a response to this new problem, and I respectfully suggest to your Lordships that that is where the development should come from, not by means of legislation—we are bound to get it wrong and to be out of date. Rather, it calls for a response to a developing situation. If a code of practice is developed that provides an appropriate response, that will deter people from suing, certainly for anything other than the most serious defamations.

As for the amendment put forward by my noble friend Lord Lester, I entirely understand it and the fact that he wears his cloak from the JCHR. If there is to be such a procedure, however, it is asking quite a lot of an individual to make some form of assessment as to, first, whether it is defamatory and, secondly, whether it is unlawful. That would involve them reviewing possible defences: whether or not it was justified, which is an absolute defence; whether or not there was qualified privilege; whether there was responsible publication. That is a considerable series of hurdles for someone to overcome before deciding on and setting out the nature of their complaint.

On the alternative dispute resolution, of course I understand what animates that. It is very easy to sit around in a committee of any sort and suggest that something can be done quickly, cheaply and easily. The reality, of course, is that there are short cuts even within the current framework. People can get preliminary rulings on meaning and whether something is capable of being defamatory within the existing mechanism. I fear that what is suggested may sound like a good idea but may in fact simply be superorgative. It may add to what is already there and not provide the sort of cheap alternative mechanism that plainly is desirable. I respectfully suggest that the amendment should not be pursued.