Defamation Bill

Lord Ahmad of Wimbledon Excerpts

Thursday 17th January 2013 Grand Committee

[Lord Marks of Henley-on-Thames]

My Lords, I support the principle of Amendment 44A moved by the noble Lord, Lord Browne of Ladyton. The single publication rule in this Bill is an important reform for avoiding multiplicity of actions and is thoroughly welcome, but its impact is markedly diminished by restricting its application to republication by the same publisher. I can see no justification in principle for restricting a claimant suing on a second publication by the original publisher but permitting him to sue on a publication at a later date by a second publisher.

[Lord Ahmad of Wimbledon]

In terms of audibility for all noble Lords, please could noble Lords make sure that their mobile phones are kept well away from the microphone because they cause issues with listening and difficulties for all concerned.

[Lord Marks of Henley-on-Thames]

I rather hope it was not mine, but it might have been. At any rate, it has been moved now.

The proviso of republication in a different manner as the application of the rule in my view provides sufficient protection. That was the unanimous and strongly held view of the Joint Committee, and it is one which I urge the Government to reconsider. I would add one caveat which is that, while I support the principle of this amendment, I can see the need for its qualification to ensure that this situation is addressed. It is possible to envisage a first publication by an insolvent publisher and then a second publication by a publisher who is worth suing. It would be perfectly reasonable for a claimant to take the view that he did not propose to sue the first publisher, but that he did wish to sue a publisher at a later date when the original limitation period might have expired because that publisher was worth suing and was likely to be good for the costs and the damages. It does not seem to me to be beyond the wit of draftsmen to cater for that position and to allow suing a second publisher in those circumstances. Subject to that caveat I support the amendment.

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[Lord Ahmad of Wimbledon]

My Lords, we have heard much about balance. In order to provide balance from the Dispatch Box, at least in terms of the coalition, it is only right and appropriate, after my noble friend has spoken, that I now address the Committee and deal with some of the issues that have been raised. I listened with great interest to the noble Lord, Lord Browne, proposing the amendments and noted with great care what he said. At times I felt that some of my responses had winged their way over to him.

I shall respond to the amendments in front of us and share some thoughts as well. I assure noble Lords that when looking at the tabling of an amendment and its implications, both I and my noble friend Lord McNally look at these wordings in rigorous terms to test their application, ultimately from a layman’s perspective, to try to understand and get behind the true meanings of the different clauses.

Amendment 44A would amend Clause 8(1) to provide that the single publication rule would apply to the publication of the same material by any publisher rather than by the same publisher. As noble Lords have acknowledged, this would significantly extend the scope of the single publication rule, and there are implications for the protection for claimants. I shall talk through some technicalities. First, it would mean that if the claimant were to bring an action in relation to the original publication and that action took more than a year to resolve, he would then have to rely on the court to exercise its discretion under the Limitation Act and permit him to bring a further action against another person who might have republished the material. Although the claimant may have obtained a court injunction against, say, a local newspaper in this regard to prevent further publication of the material, another newspaper under different ownership in a neighbouring town would still be free to republish it.

The scenario painted by my noble friend Lord Phillips is certainly not something that I have looked at, and I will have to refer to our officials in that regard. Sorry, it was my noble friend Lord Marks who painted the scenario on solvency, which was an interesting proposition to dwell on.

I talked about understanding what this would mean from a layman’s perspective. In our discussions, one of the things that have been conveyed to me is that the purpose behind the amendment, or at least its effect, would be, in short, that one newspaper could simply report what another one had reported without paying any due regard to whether it was defamatory. Of course, in these circumstances a court has a discretion and in some cases would be likely to exercise its discretion in favour of the claimant. However, the concern remains for the Government that this process would involve additional delay and expense. We do not believe—I am going to use the words again—that it would strike the right balance.

Amendment 47A relates to the provision in subsection (5) that the single publication rule does not apply where the manner of the subsequent publication is materially different from the manner of the first publication. As the noble Lord, Lord Browne, acknowledged, unless considered in conjunction with Amendment 44A, it is difficult to see how this amendment would apply. When a statement is published for a second time by the same publisher, as Clause 8 provides, the comparative quality and credibility of the source will, in most cases, always be the same, even though the place where the subsequent publication appears may be different.

In any event, the Government do not consider that the amendment is necessary. Subsection (5) identifies certain matters to which the court may have regard in considering whether publication is made in a materially different manner. It is difficult to see what relevance the fact that a subsequent publication has been made in a more credible place has to the question of whether a claimant should bring a claim.

The noble Lord, Lord Browne, raised the question: what does “materially different” mean? The noble and learned Lord, Lord Browne, acknowledged that to define “materially different” may be a little fact-sensitive. We believe that the question of whether the publication is materially different should be decided by the courts rather than that we should attempt to provide a definition in the Bill. In the unlikely event that the court considered issues such as those contained in Amendment 47A to be relevant, there is nothing to prevent the court taking them into account.

Amendment 47B provides that subsequent publication shall not be deemed to be materially different in two specific instances: first, where the statement is part of an academic or scientific journal and goes from being accessible only on payment of a fee to being accessible free of charge; and, secondly, where the subsequent publication is as a result of an archive accessible on the internet. We recognise that concerns have been expressed about the importance of archives and material in scientific and academic journals. We have taken action elsewhere in the Bill to protect material which has been properly peer-reviewed.

However, there may be circumstances in which making previously subscription-based journal articles freely available could significantly increase the extent of the publication and could cause serious harm to the claimant. This is also the case where the material was previously available only in an off-line publication and is placed on an archive accessible on the internet as this may bring it to the attention of a much wider audience. We do not consider that it would be right to say that a claimant should never be able to bring an action in these cases, which would be the effect of the amendment.

In any event, the court would need to be satisfied that the publication has been made in a materially different manner, and how that test is applied is, again, best left to the court to determine in each individual circumstance. In the event that the court decides to allow a claim to proceed, the serious harm test would have to be satisfied for the claim to succeed. We, again, believe that this strikes the right balance.

On Amendments 45, 46 and 47, I cannot add much more to the words of my noble friend Lord Lester in describing the Government’s position. We believe that there is clarity in the Bill as drafted. On that basis, I hope the noble Lord will withdraw his amendment.

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[Lord Mawhinney]

If peer-review is one of the principles that we want to hang on to, combating chilling effect should be another that we want to hang on to. I have no idea, and I am not competent to judge, whether the wording of the amendment tabled by the noble Lord, Lord Browne, is right and precise, but combating chilling effect ought to be deemed to be so.

[Lord Ahmad of Wimbledon]

My Lords, I will take all three amendments together as they have been grouped. In doing so, I will refer first to Amendments 50B and 50D. They seek to provide that Clause 10 should prevent an action for damages for defamation being brought against a person who was not the author, editor or publisher of the statement complained of unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher, but should not prevent a court from granting any injunction or order requiring a person to cease publishing a defamatory statement.

As the noble Lord, Lord Browne, indicated, the amendments were originally tabled in Committee in the other place by the honourable Member for Newcastle-under-Lyme. His concern was that circumstances could arise where a claimant who had successfully brought an action against the author of defamatory material on a website was left in the position of being unable to secure removal of the given material. This situation might arise as a result of the fact that an author may not always be in a position to remove material which has been found to be defamatory from a website, and the new defence in Clause 5—together with the more general protection provided to secondary publishers in Clause 10—might prevent the website operator from being required to do so. As the noble Lord acknowledged, it was precisely for this reason that the Government introduced Clause 13 into the Bill on Report in the other place.

In an offline context where a successful action is brought against an author, editor or publisher and a secondary publisher is made aware of the successful action, we believe that in the great majority of cases the secondary publisher would act responsibly and remove the defamatory material from sale.

However, there are issues that still appear pending and this point has been reiterated by my noble friend Lord McNally and made by me as well. We are listening in great detail to the debates and discussions in Committee. As has been illustrated from the Government’s perspective in the other place, appropriate clauses and amendments are being introduced to refine this particular Bill if and when they are needed.

Amendment 50C is identical to the one tabled on Report in the other place. It was said then that it was in part an attempt to codify the defence of innocent dissemination. As the Government explained then, Clause 10 is about jurisdiction. To require the court, as part of an assessment on jurisdiction, to assess the merits of the case before it in the manner proposed would be highly unusual and potentially confusing. Furthermore, it would involve additional evidence and expense, which would be wasted in the event that it was held that it was reasonably practicable for the claimant to pursue the primary publisher. Such arguments are properly pursued once it is established that the court indeed has jurisdiction. Subsection (1)(c) would also put the onus on the claimant to show what was in the knowledge of the secondary publisher, which, as well as being practically very difficult, would be a significant shift in the current law.

The noble Lord, Lord Browne, drew to the Committee’s attention the fact that there is a debate over the terms of Section 1 of the 1996 Act—the noble Lord, Lord Lester, referred to this as well—and how that compares to the common-law defence. A question was raised about the Government’s position. The Government believe that it is preferable to adopt the approach in Clause 10 of directing claimants towards those who are actually responsible for defamatory material. This reflects the approach that we have taken elsewhere in the Bill. In the unlikely event that it is not reasonably practicable to sue the author, editor or publisher, Clause 10 allows a claimant to bring an action against a secondary publisher, such as a bookseller. However, nothing in the clause would then prevent that bookseller from deploying any defences available to him them.

We believe that this approach strikes a fair balance that provides substantial protection for secondary publishers while not denying claimants a means of redress where this is deemed appropriate. I hope that on that basis of these explanations, the noble Lord will agree to withdraw his amendment.

[Lord Browne of Ladyton]

My Lords, I am grateful to the noble Lord, Lord Lester of Herne Hill, for his intervention and for indicating the value of at least one of my amendments in a broader, international sense. I think that that will help to concentrate our minds on the value of looking with some care at the provisions of Clause 10. I am grateful to the noble Lord, Lord Mawhinney, for his reminder that we should be seeking a direction of travel away from what may inadvertently have been created by the effect of Section 1 of the 1996 Act on the common-law defence that existed.

I am grateful, too, to the Minister, although I have to say that I am disappointed in his articulation of the Government’s position. There is a lack of courage on their part if, even in these circumstances where we are all agreed on the direction of travel, they are not willing to say that the law in relation to secondary publishers is moving in the direction of undermining the chilling effect of the behaviour of lawyers, who often act for very wealthy clients, intimidating small people from pursuing business because to some degree it involves an expression of free speech.

The appropriate response to this short debate is to indicate to the Minister that I will go away and think about this again. With regard to the first of our amendments, Amendment 50B, after this debate I am minded to consider whether Section 13 should be broader in scope. That may be the answer to the problem and a more appropriate way of dealing with it—not to restrict it only to secondary publishers and the web but to seek that it be broader in scope. That might be a simpler way of addressing at least part of the problem.

On the pre-1996 common-law position being better and less chilling than the present situation, even when improved by Clause 10, I am not sure that I will abandon my attempt to persuade the Government that something must be done. I now have the difficult job of solving how one can do that without challenging the court to deal with jurisdiction and the substance of the case at the same time. My limited experience of practising before the courts—limited by being elected to the House of Commons, although it was 20 years’ experience—suggested that once one started to make arguments about preliminary issues, one often got far into the substance of the case to do. In making arguments before the court, it was quite difficult to do the sort of thing that we suggest is possible here, by keeping these two issues separate. Apart from anything else, you often do not understand the arguments until you understand the facts and where the credible argument likely lies in a set of circumstances well enough. Anyway, never mind that.

I will go away and think about this again. We may have room for some progress in extending the scope of Clause 13. I am not sure that I will ever persuade the Government to move beyond, with all due respect, a slightly timid position on innocent dissemination, but we may have to return to this issue on Report. In the mean time, I beg leave to withdraw the amendment.

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[Lord Ahmad of Wimbledon]

My Lords, I thank the noble Baroness for introducing the amendments. I want to revert to the broadening of the scope which was talked about in Clause 13. Again, in the spirit of what has been said before by my noble friend Lord McNally, if that is required and desired, the Government are happy to contemplate it.

Amendment 51A envisages introducing a regulation-making power to set out the specific procedure to be followed in relation to the making of an application for an order under Clause 13(1). We do not believe that this amendment is necessary. Clause 13, as the noble Baroness acknowledged, was introduced in the other place to address the concern that the claimant who had successfully brought an action against the author of defamatory material online may be left in the position of being unable to secure removal of the material. This situation might arise as a result of the fact that an author may not always be in a position to remove the material and the new Clause 5 defence might prevent the website operator being required to do so. The clause, therefore, applies only where the claimant has brought proceedings against the author and is completely separate from the process under Clause 5. As drafted, it enables an order for removal of the material to be made during or shortly after the conclusion of those proceedings, or on a separate application under Part 23 of the Civil Procedure Rules. Part 23 governs applications for court orders and sets out in detail how the process should work, including rules in respect of how an application is to be made, where it should be filed, what information should be included and how it should comply with any relevant time limits, among other matters. To the extent that any supplementary provision might be required, it is the Government’s view that the existing power to make rules of court is entirely sufficient to enable such a provision to be made. A regulation-making power is therefore unnecessary and could perhaps add confusion about the relationship with Part 23 and possibly cast doubt on the scope and applicability of the existing power in the Civil Procedure Rules.

Amendment 51B provides that the removal of allegedly defamatory material from a website and the publication of an apology or correction should not prevent an action for damages being brought. It is not clear how this amendment fits specifically with Clause 13. As I have said, this clause is to address situations where a claimant brings a successful action against the author of defamatory material online but where the author may not be in a position to remove material which has been found to be defamatory from a website. Where the content is removed by website operators in other circumstances—for example, after following the Clause 5 process where the poster chooses not to engage or agrees to removal—there is nothing in either Clause 5 or Clause 13 which would prevent a claimant bringing a defamation action seeking damages against the poster. Clearly, there may be cases where the damage caused by a defamatory statement is so serious that simply having it removed from the website will not provide the claimant with sufficient remedy. In these cases, it is right that the claimant should be able to pursue an action against the poster, and if that is the intention behind this amendment, then we agree entirely with the principle and the sentiment. However, we do not believe this amendment works in conjunction with existing provisions in Clause 13 and, for the reasons I have given, such a provision is deemed unnecessary. Where a statement is removed by a website and the claimant still wishes to pursue an action against the author, there is nothing to prevent them doing so.

In light of the assurances I have given and coming back to the issue of the scope, which the noble Lord, Lord Browne of Ladyton, addressed earlier, I hope the noble Baroness will agree to withdraw the amendments.

[Baroness Hayter of Kentish Town]

I thank the Minister for that. He is right about Amendment 51B; that was the intention. His assurance that although defamatory material has been taken down there can still be an action for damages meets the point that we were trying to raise. On regulations and his reference to Civil Procedure Rules, the problem is the same. To expect an ordinary citizen to know that there are even such things as Civil Procedure Rules, let alone where to find them or what they say, is difficult. When the Government come to look at the guidance and other regulations attached to this, I urge them to look at whether the Civil Procedure Rules may be incorporated, even if they are word-for-word the same. Asking ordinary folk to go through lots of rules or even to know that they exist is a tall order. I will leave that thought with the Minister. I beg to withdraw the amendment.