Defamation Bill

Debate between Lord Ahmad of Wimbledon and Lord Browne of Ladyton

Tuesday 5th February 2013 Lords Chamber

[Lord Ahmad of Wimbledon]

My Lords, Clause 13 currently enables the court to order the operator of a website to remove defamatory material in circumstances where a claimant successfully brings proceedings against the poster of defamatory material online. In Committee, the noble Lord, Lord Browne, raised the question specifically of whether this provision could be extended to cover situations where a claimant successfully brings an action against the publisher of offline material, but a secondary publisher refuses to stop distributing, selling or exhibiting material containing the defamatory statement. Clause 10 would prevent an action for defamation being brought against the secondary publisher if it was reasonably practicable to sue the primary publisher. While in the great majority of cases it is likely that secondary publishers would act responsibly and remove material when requested to do so, we consider it desirable to close any possible loophole. Amendment 22 is intended to capture any situation where the material in question is publicly disseminated by a secondary publisher. I beg to move the amendment.

[Lord Browne of Ladyton]

My Lords, for the reasons that the Minister spelt out, I strongly welcome this amendment. I thank the Minister for listening so carefully to the argument put before him in Committee and responding in this way.

[Lord Phillips of Sudbury]

My Lords, I am just nitpicking again but we might as well get this right. I think the amendment should start by saying that in line 4 an “(a)” should be inserted after the word “order”. There is no “(a)” to balance the “(b)” introduced by Amendment 22. As I say, that is nitpicking but I am sure I am right. We better get it right for Third Reading.

Defamation Bill

Debate between Lord Ahmad of Wimbledon and Lord Browne of Ladyton

Thursday 17th January 2013 Grand Committee

[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.