Islam: Extremism

Debate between Lord Ahmad of Wimbledon and Lord Lester of Herne Hill

Wednesday 3rd February 2016 Lords Chamber

[Lord Ahmad of Wimbledon]

I agree on the whole issue of interpretations and the right not to be offended, because after all that is what we are protecting here in our country. I think that there is a distinct line to be drawn when it comes to any conservative practice of a particular religion. Indeed, my right honourable friend the Prime Minister is on record, when referring to Islam in particular, as saying that anyone who is devout of faith can be anything but an extremist. The right to offend someone and not to be offended remains a value that we wish to protect, but we need to stand up to those who seek to divide us and to create division between society and faiths. That is certainly what our counterextremism strategy is all about.

[Lord Lester of Herne Hill (LD)]

My Lords, is the Minister aware that I have tried four times to get a straight answer to a Parliamentary Question about whether, in countering extremist ideology, the Government are concerned about the preaching and teaching of Wahhabism in mosques and Muslim education bodies in Britain that are funded from overseas? Could he please answer that question with a yes or no?

[Lord Ahmad of Wimbledon]

We are concerned as a Government—as we all are—about any kind of funding which seeks to harm and disturb the nature of our society. The noble Lord referred to a particular issue; the review that has been set up was set up with that very intention: to look at all forms of extremism that seek to influence or distort Islam in a way which is not conducive to the fundamental shared values we enjoy in Britain today.

Defamation Bill

Debate between Lord Ahmad of Wimbledon and Lord Lester of Herne Hill

Tuesday 15th January 2013 Grand Committee

[Lord Lester of Herne Hill]

My Lords, first, perhaps I may say how glad I am that Sir Brian Neill is with us now, having recovered, and how sorry I am to have told the Minister that I was not well, as it enabled him to attempt to curtail me. On these amendments, it is extremely difficult for one country to deal with these problems on its own within its own legal system, since, by definition, we are dealing with the world wide web. Secondly, it is a question of getting this right. The Government are right to say that they are going to deal with this by regulations rather than in the Bill, and that there will be full consultation on that. Thirdly, it is a question of a balance. In view of what we have heard already, I thought that one might think of the other side of the coin; namely, that unless we get the balance right there will be interferences with free speech which ought not to be there.

Mumsnet has written to my noble friend Lord McNally about this and its approach is interesting. Although it welcomes the Government’s efforts to reform the law, it is concerned with Clause 5 having a “significant chilling effect” on free expression. It states:

“Although internet businesses would be able to benefit from new defences, the practical outcome of the procedure as it stands will be that the vast majority of complained-of posts will continue to be taken down upon receipt of a complaint”.

Mumsnet then goes into how that will be and how it will be intimidated. It says:

“As with most major internet companies, Mumsnet is a responsible organisation that has no wish to be associated with abusive or serious defamatory comments. We have always acted promptly to remove abusive or defamatory posts once they are brought to our attention, and we will continue to do so … However, we feel that legislators have yet to fully appreciate that the problem, for companies such as ours, does not lie with seriously abusive or defamatory posts; our decision to remove those, once we are made aware of them, is easy and swiftly acted upon. The difficult cases are almost always relatively low-profile, and involve claims which—while they may be potentially damaging for the claimant—represent the truthful, non-malicious opinion or experience of members of the public. We feel it is unfair and onerous, in cases such as these, to expect Mumsnet administrators or members of the public to act as legal specialists, attempting to assess whether the complained-of material might be able to benefit from any of the defences in the Bill. We also feel that it is in no way unjust or unduly burdensome to expect the claimant—who, after all, will be in possession of the facts—to provide a minimum degree of information to support his or her assertion that the material is defamatory or unlawful”,

and so on. That is the other side of the coin, which one needs to be clear about. When we come to my separate amendment, I shall address why we need to raise the standard a bit on the word unlawful.

[Lord Ahmad of Wimbledon]

My Lords, as the debate, albeit part two of the debate that we started before Christmas, has indicated again, there are wide-ranging opinions. Let me first set out that the Government agree that it is about getting this right and getting the balance right. This is an evolving area and it is important that we discuss these matters fully. My noble friend Lord McNally and I are listening carefully and intently to the arguments being made. It has never been the intention, nor should it be, that websites should be beyond the reach of the law. My noble friends Lord Mawhinney and Lord Faulks asserted that perhaps that is what this clause is trying to do. On the contrary, it is not.

My noble friend Lord Mawhinney made the point about being beyond reproach, and that what is said on the web is instantly translated and is, as we all know, retranslated and retweeted, wherever that may go. However, to draw a comparison with the printed media, while there is a source available, there are times when a story is printed on the front page of a newspaper and gets picked up on the internet. When that story is shown not to be correct, the retraction is quite limited. In the same way, I suggest that the damage is done. Too often, what is remembered is the headline which struck when the news broke, how it broke and the sensationalism behind that news story. It is not just about the website, although I concur with my noble friend in saying that the website is something which can sometimes go beyond the limits of the person who is hosting it, and the person who initially posted it, because it is replicated elsewhere.

I will take each amendment in turn. In doing so, I will pick up the various points that have been made by noble Lords and comment appropriately. First, it is absolutely right that the law on defamation should apply in relation to online as well as offline material. The Government’s proposals would enable claimants to take action against the poster of the material, the person responsible for making the defamatory statement, rather than the website operator. However—and this is a crucial point—the operator will still be liable if the operator is shown not to have followed the process which is designed to enable that to happen. That is a crucial point.

My noble friend Lord Faulks suggested that websites are being given protection beyond other media channels. Let me be absolutely clear: the defence for such websites only applies where website operators are not the ones who post the statement. The closest parallel might be a letter to an editor which the paper chooses to publish: it is not automatic.

Amendment 23A seeks to provide for the Clause 5 defence to apply to other “electronic platforms”, rather than simply “websites”, that have defamatory material posted upon them by third parties. The purpose of Clause 5 is to provide a defence to website operators that host third party content over which they exercise no editorial control. We chose to focus on this specific category of service providers because, as the noble Earl alluded to a moment ago, it is about definitions. How do you define things? My own background in business dictates that when I saw the words “electronic platform”, I saw them from the perspective of the world of financial services, in which it often alludes to banking platforms, which are slightly more limited than websites.

I also undertook during the summer break—apart from visiting Australia as I informed noble Lords I would—to look up definitions. How do you define an “electronic platform”? The varying degree of definition not just of electronic platforms but of platforms themselves is interesting. There is no consistent application one can put in.

Looking to the development of the world wide web, the word “website” emerges from that. The noble Lord, Lord Browne, made the point that we are living in an evolving and ever-changing world. As we are looking at this issue, as crucial and sensitive as it is, I am sure that we will return to this in the years to come.

The noble Baroness, Lady Hayter, also talked about DPP guidance on criminal prosecutions. We are certainly looking at the DPP’s guidance, but we can see nothing in our proposals that would be likely to conflict with that guidance specifically.

It is not clear what “electronic platform” in Amendment 23A is intended to cover. As I have said, it has been suggested that the term “websites” is too narrow and risks not capturing new technologies in this fast-changing marketplace. We can debate and discuss which term is more appropriate, but I go back to the words of the noble Lord, Lord Browne: we live in a changing world. If in further discussion in Committee or at Report a form of technology is brought to our attention that is akin to a website and serves the same purpose in hosting third-party content, and a suitable form of words can be found adequately to describe that in legislation, the Government are open to considering that point further.

Amendment 23B would mean that a website operator who complied with Clause 5 would have a defence only against a claim for damages in defamation. As Clause 5 stands, the website operator will have a complete defence provided that he complies with the new process. As noble Lords will know, damages are by far the most common remedy in defamation proceedings, and it is difficult to see what difference the amendment would make in practice. It appears unlikely that claimants would bring a claim for a remedy other than damages. The Clause 5 process will provide a quick and cheap means for a complainant to establish contact with the poster of the material and secure take-down. Should legal proceedings be necessary, action can be brought against the poster. In the event that such a claim succeeds, damages would be payable by the poster, and Clause 13 enables the court to order the website operator to remove the material. We therefore do not consider that the amendment is necessary.

Amendment 24 seems to stem from concern that a website operator will use associates to post defamatory material on their sites, knowing that they can hide behind the Clause 5 defence. The Government are not persuaded that there is a significant risk of that happening. The noble Earl also referred to practical issues. However, in the event of such a situation, the claimant would be able to pursue an action against the individual poster and would not be left without a remedy.

In addition, there is the obvious difficulty in respect of establishing what is an association. For example, who would qualify as an associate of the website operator and how would the claimant be expected to prove that association? Conceivably, an associate of the website operator could post something defamatory without the website operator’s knowledge. In such cases, it would seem entirely inappropriate to prevent the website operator from relying on a Clause 5 defence, provided, of course—I come back to the point I made earlier—that the operator had followed the Clause 5 process.

Amendment 24A, tabled by my noble friend Lord Lucas, would mean that a website operator would not lose their defence if they had moderated the statement or had made or suggested alterations to the content. We do not believe that the amendment would be appropriate. Subsection (10) already makes clear that an operator would not lose the defence simply by reason of the fact that they moderated statements posted on the site by others. That will ensure that operators are not discouraged from moderating their sites in a responsible way. However, the amendment would go further and allow them a defence if they moderated in a way which changed the content of the statement. In practical terms, this could mean that an operator who changes the statement in a way which made it—dare I say?— defamatory, or makes the defamation worse, would be protected. I fully accept that that is not my noble friend’s intention.

I believe that my noble friend Lord Phillips seeks by Amendment 25 to add clarity. However, we do not believe that the amendment is necessary. I shall explain why. The Government’s view is that subsection (4) already provides that test. For the purposes of subsection (3)(a), it is possible for a claimant to identify a person only if the claimant has sufficient information to bring proceedings against the person. As such, the Government’s view is that the insertion of “reasonably” would not make it any clearer, because it is clear from the clause as it stands.

--- Later in debate ---

[Lord Ahmad of Wimbledon]

The noble and learned Lord makes a valid point, which we shall certainly consider.

[Lord Lester of Herne Hill]

My Lords, I am grateful to everyone who has taken part in this brief debate and particularly to the Minister for his reply, with which I do not agree and will have to come back at a later stage to explain in more detail why.

I should like to talk about the wider world, because what we are debating today will be of interest not only in this country but in Beijing and Washington DC. Noble Lords will probably understand that in the United States, on the one hand, the extreme position is adopted that there is absolute immunity, subject to malice, for website defamation. You cannot sue an American website operator under federal statute law, state statute law or common law in the United States. On the other hand, in China you have the opposite position, and the same is true in the former Soviet Union. In China in particular, the great firewall of China and the Chinese intranet prevent proper access to an uncensored website within China. Noble Lords will have read what happened last week, deplorably.

In Europe, we have a compromise. We have the e-commerce directive, which has a notice and take-down procedure in general terms. We have to obey EU law. We have e-commerce directive regulations. The balance is put in very broad terms and can be fleshed out in various ways, but it does not allow either an absolute immunity on website operators, American style, nor does it allow the extraordinary regulation by the state that obtains in the People’s Republic of China.

Curiously, the noble Lord, Lord Faulks, suggests that we do not need any law on this at all. That will make the noble Lord, Lord McNally, smile, if he remembers that when we discussed all of this many months ago, he quite rightly said that we have to try to clarify the internet position and we cannot just duck it; we need to have reasonable legal certainty in order to include it in the Bill. He was right, and it was quite right of the Government to seek to do that. It is extremely difficult, which is why most of this will have to be done by way of regulations and not in statute.

The burden of proof in all defamation cases under English law will remain upon the defendant. We have not adopted the Sullivan rule in this country and put the burden of proof on the claimant. The defendant therefore starts off and finishes with having the burden of proving the various defences. All that we are considering is what is appropriate for a complainant to have to provide to the website operator. The great problem is that the website operator—if it is Google, Yahoo! or Amazon, or a newspaper with a website—has no commercial interest in keeping matter that is in the public interest on the website if they are threatened with litigation or, worse, “unreasonably”.

Suppose, for example, that Google were to make serious allegations of corruption in the state of Ruritania, and someone from the state of Ruritania then complained about it being on the web. Google would have no commercial interest in maintaining that very important public-interest statement on the web, especially if it was going to be faced with multiple claims to take down without any obligation on the complainant. We are therefore trying to find a balance in a way that we protect free speech by not encouraging unnecessary take-down, while at the same time providing effective remedies to the serious victims of violations of reputation on the net.

The reason I do not agree with the Government’s present position is not just an argument about whether or not it is compatible with the e-commerce directive to leave out the word “unlawful”. It is also because the Government give the game away in indicating that the regulations that they are proposing will, in effect, do precisely what the words “and unlawful” will—or, as my noble friend Lord Phillips suggested, “unlawfully defamatory”; that would do perfectly well. However, there must be something more than a simple statement that something is defamatory.

I am sure that we will need to come back to this, because it is very important and difficult. I am not dogmatic about a solution. I beg leave to withdraw the amendment.

Defamation Bill

Debate between Lord Ahmad of Wimbledon and Lord Lester of Herne Hill

Wednesday 19th December 2012 Grand Committee

[Lord Ahmad of Wimbledon]

I hear what the noble Earl says. We shall return to this point in writing. If the noble and learned Lord wishes to return to this point, it can be debated more extensively at a later stage of the Bill.

[Lord Lester of Herne Hill]

We know that the common law is being overruled by this clause. As I understand the Minister’s reply, it is that, without saying that the majority opinion in Telnikoff has been overruled, this clause effectively no longer reflects that narrow view of the majority of the Law Lords. Is this right?