Defamation Bill

Debate between Earl of Erroll and Lord McNally

Wednesday 19th December 2012 Grand Committee

[The Earl of Erroll]

I intervene with great temerity given this incredibly legal provision. However, as an outsider, I cannot understand why the courts should not be allowed to determine whether or not someone has behaved responsibly. If a large organisation is involved, it should have to verify the information or take some reasonable steps before repeating an appalling slander, libel or whatever it may be. I cannot see why we should restrict the courts’ ability to look at all the circumstances by retaining the relevant measure. Therefore, I support Amendment 18 in the name of the noble Lord, Lord Lester.

[Lord McNally]

My Lords, when both the noble Lord, Lord Browne, and the noble Lord, Lord Lester, tell me that we are getting this matter wrong, I have to think very hard. However, I shall respond to it and then provide some further thoughts.

Amendment 19 is a government amendment and is grouped with Amendments 18 and 20, as we have heard. Amendment 19 makes drafting changes to bring the provisions on reportage, which were previously in subsections (3) and (4) of the clause, into one subsection in order to improve the overall clarity of the clause. It makes changes to refer to the test of “reasonable belief”, to which I spoke in the previous group of amendments.

“Reportage” has been described by the courts as,

“a convenient word to describe the neutral reporting of attributed allegations rather than their adoption by the newspaper”.

Clause 4 is intended to catch the core elements of reportage as articulated by the courts. These are that where the defendant publishes an accurate and impartial account of a dispute between two or more parties, the defendant does not need to have verified the information reported before publication. This would not, however, absolve the defendant from the need to satisfy the court that, in all the other circumstances of the case, it was reasonable to believe that the publication was in the public interest.

Amendment 18 would remove the provisions relating to reportage. Conversely, Amendment 20 would extend their application. We do not consider that removal of the reportage provision altogether would be desirable, as is proposed by my noble friend Lord Lester in his amendment. As I indicated in speaking to Amendment 14 in the previous group of amendments, for the operation of Clause 4 generally, in assessing the reasonableness of the defendant’s belief that publication was in the public interest, the court will be looking at the conduct of the publisher. Often that will include examination of the steps the publisher took to verify the information. We would not want the clause’s silence on the matter to suggest that there may in future be a need to verify in reportage cases whereas now there is not.

However, nor do the Government think it right to extend reportage more widely, as is proposed by the noble Lord, Lord Browne, in Amendment 20. We consider that it should, as now, be limited to circumstances where the claimant is a party to the dispute. The reason that we adopted this approach is because if the claimant is a party, for the account to be “accurate and impartial”, his side of the story would be likely to have been reflected in the published article. On the other hand, where the claimant is not a party, that would not necessarily be the case. We believe, on balance, that where the claimant is a third party, the defendant should have to satisfy the court that in all the circumstances of the case it was reasonable to believe that publication was in the public interest. This should properly include consideration of steps taken to verify, should the court decide that is relevant. That point was made latterly by my noble friend. On this basis I hope that the noble Lord will be prepared to withdraw his amendment.

I am not sure which noble Lords made the accusations that the amendment will cause confusion, is unnecessary because the common law is already developing or overly restrictive, but I shall look at those criticisms. I hope that my noble friend will withdraw his amendment and that he and the noble Lord will allow the government amendment to stand. I will look very carefully at this amendment, and the points that have been made. I give an assurance that I will take another look between now and Report.