Defamation Bill

Lord Allan of Hallam Excerpts

Tuesday 15th January 2013 Grand Committee

[Lord Marks of Henley-on-Thames]

My Lords, I shall speak in broad support of the sentiment behind Amendment 27 in the names of the noble Viscount, Lord Colville of Culross, and my noble friend Lord Allan, but first I address Amendment 26, which I support as a bare minimum. I also address the point put by the noble and learned Lord, Lord Morris, to my noble friend Lord Lester. I think that my noble friend understated the position on what is defamatory and what defamatory means. As I have always understood it, a statement is defamatory if it causes the necessary damage to reputation. It may then be that under existing law, a defence of justification can be mounted which shows that the defamatory statement is justified as true. That does not stop the statement being defamatory, but it stops the statement being unlawful. In other words, it starts off as defamatory—I see learned agreement on the other side of the Room—and then one looks at the question of defences.

It follows that without the word “unlawful” in paragraph (b), the requirement that the complaint,

“sets out the statement concerned and explains why it is defamatory of the complainant”,

goes only half way and is nowhere near enough. I echo the sentiments expressed by my noble friend Lord Mawhinney about the view of the Joint Committee on the Bill and the topic: the purpose of whatever procedure we adopt is to give some protection, as far as is practicable, to persons defamed on the internet and, on the other side, to impose some responsibility on website operators, without ensuring that an operator is stuck with liability for all the material posted on his site.

I strongly supported, and indeed took some part in formulating, the notice and takedown procedure for material from unidentified authors proposed in our report, with the possibility of an operator securing a leave-up order for material that, although it was from an unidentified author, nevertheless the operator believed ought to stay up—for instance, in the case of whistleblowers. The Government have opted for a different procedure, and it is right that that procedure draws the correct distinction that we drew between the posts of identifiable authors, who can then be identified and sued, and anonymous material. Whatever system we have, though, it is important that there should be some quick and cheap option that levels the playing field between complainant and author or operator. The detailed notice of complaint as envisaged by Amendment 27, as the noble Viscount, Lord Colville, has explained, is a satisfactory first step.

I appreciate that it can be said that, subject to the point made by the noble Lord, Lord Lester, the word “unlawful” is required, but regulations could be made within the ambit of “defamatory and unlawful” that would expand upon the requirements for a detailed notice of complaint. However, I suggest that it is better that, rather than being left to regulation, the broad contents of the notice of complaint should be spelt out in statute. I say that because one of the purposes of the Bill, as we saw it in the Joint Committee, was to make the law as accessible as possible so that anyone could look up what procedures would be required by looking at the Act. By effectively leaving the requirements for a notice of complaint to delegated legislation, the simplicity of accessing the statute and accessing law on the internet is reduced.

It would then be necessary to add to the requirements for a detailed notice of complaint, something like Amendments 25A and 25B proposed by the noble Lord, Lord Browne of Ladyton, and the noble Baroness, Lady Hayter, in the previous group. I, too, was pleased to see the Minister’s response to those amendments show at least some flexibility or promise thereof. We would then have the beginnings of a system to ensure that, where defamatory material was posted by an operator, the detailed process of complaint would get some publicity because the notice of complaint would be put on the website by the operator. That would offer some partial protection to the person defamed. I applaud the suggestion that if the operator then fails to put up such a notice of complaint, which he can do, he must take his chances and accept that he is made liable to be sued by the deprivation of the Clause 5 defence.

I reiterate what has been said: neither the proposed system nor any system that we could possibly devise would be perfect, for the simple reason that my noble friend Lord Lester mentioned earlier today—namely, that we are trying to formulate a local response to an international phenomenon. However, I suggest in answer to some of the defeatism—the Minister was defeated up to a point in his earlier reply—there is no reason to give up on the problem because the system is not perfect and therefore do nothing. It is worth doing all that we can, I suggest, for two reasons. The first is that we can ensure fairness in respect of posts that are subject to our jurisdiction. The second, I suggest, is that by what we introduce in legislation, we can set an example of best practice for website operators elsewhere.

I would like to say a word or two about civil procedures that would be appropriate either under Amendment 27, under Clause 5 or under the regulations. I suggest that it is essential that any such procedures we adopt respond fully to the point made by my noble friend Lord Phillips of Sudbury that the procedures that involve going to court can be very expensive. The answer from the noble Viscount, Lord Colville, that this can be dealt with in the ordinary way before Masters is a partial answer only, because those of us who have attended before Masters, and have prepared interim applications before Masters and district judges in other cases, know that they themselves can be very expensive indeed.

What we envisaged on the Joint Committee was a quick and cheap paper-based or internet-based procedure, with specialist district judges simply looking at the case presented to them on paper and making a decision. Those specialist judges would give their decision, but it would of course be only a holding position, because action would be deferred. However, it is not right to introduce, by what we do now, a whole new level of expensive procedure in respect of internet actions, which, from the McAlpine case, we know can sometimes result in £5 awards or £5 settlements over a very large number of cases. Those cases need to be kept small, simple, quick and cheap.

[Lord Allan of Hallam]

My Lords, I remind the Committee of my earlier declaration of interest that I work for Facebook, which is a reasonable-sized website operator. In supporting the amendment that I and the noble Viscount, Lord Colville, have tabled, I first wanted to set out that we all have a common goal here, whichever side of the debate we are coming from. In a sense, it has been divided into sides, but I think that there is one common objective: unlawful defamatory material should be swiftly removed from wherever it should appear, whether in print media or on the internet. At the same time, there should be minimal collateral damage to content that is not unlawful. We want content that is lawful to stay up and people to be able to share it with each other, and content that is unlawful to come down. It is a simple objective, and both Amendments 26 and 27 are trying to take us towards that.

Amendment 27, in particular, is crafted in the context where we have people who are prepared to use any legal tools that we make available in ways that we did not perhaps intend, and will use them maliciously. There is no doubt that tools that are made available for people to request take-downs of internet content are used, and will be used, by people who are seeking to interfere with the freedom of speech of others. We must make sure that we have crafted the tools in such a way that we minimise that possibility, as well as maximising the opportunity for people to get content taken down that should be taken down. The objective is that 100% of the requests made through this process should result in the right form of action and that that action should be swift. I think the amendment, by specifying in more detail the form which the notice should take, is aimed to create what one might call a well formed notice. A well formed notice that has all the necessary information will be able to be acted on swiftly by the recipient of that information—in this case, the website operator—and the solution can be reached more speedily.

[Lord May of Oxford]

This is possibly a stupid point, and it may reveal my misunderstanding, but as I look at this—I said this during our first Sitting—there are occasions, particularly in the scientific sphere, when the intent is correctly defamatory, where one is saying, “This is wrong”, “This is dishonest” or, “This experiment has been faked”, and the like. Much of the wording of this assumes that if it is harming you, then you have rights, as it were, to stop the harm. However, I can think of lots of examples where the intention is deliberately and properly defamatory.

--- Later in debate ---

[Lord Allan of Hallam]

I think that the noble Lord, Lord May, is correct. If I understand the intent of the amendment of the noble Lord, Lord Lester, it is precisely to address those circumstances where, again, somebody who intends to create a defamatory statement that is lawful is not prevented from doing so. For that reason, I support Amendment 26 as well.

In setting out the various criteria that we have included in Amendment 27, I hope that these will also address similar concerns, in that they will require the complainant to go into a little more detail about why their complaint constitutes unlawful content as opposed to simply content that they do not like. The reality today is that people will simply fire off a letter to a website operator, saying, “I allege that this is defamatory”, with very little more detail than that. It is very hard then for the website operator to act swiftly, which we all want, and to guarantee fairness, which I think that we also want, between the two parties involved.

--- Later in debate ---

Those two issues got most attention in our committee. I have made it clear that this is a probing amendment to put those issues on the table for the Government to think about and for other noble Lords to comment on if they wish. At this stage, the committee was not seeking to persuade the Government specifically but it was anxious that the Government should not simply follow those who say, “Leave us alone; it’s worldwide; it’s totally impossible; walk away”. Perhaps, ultimately, your Lordships will come to the view that the decision has to be to walk away. But we thought that some other issues should be explored before that decision was reached. I beg to move.

[Lord Allan of Hallam]

My Lords, I am glad that the noble Lord, Lord Mawhinney, said that this was a probing amendment and I will speak to it in that spirit. It needs a response to clarify the concerns that there might be on behalf of the noble Lord, Lord McNally’s “little man” who uses the internet if we were ever to go down a route where there were these broader requirements for people always to identify themselves when speaking across the internet. As I read the amendment, there would be an absolute requirement for people in the United Kingdom always to identify themselves if they wished to avail themselves of internet platforms.

We need to bear in mind the key concepts in the context of other areas where government has quite rightly identified a need to be able to detect wrongdoing on the internet and to go after those who are carrying out that wrongdoing, whatever form it may take. Those are the basic concepts that we think about when considering the right to privacy and the necessity of proportionality. We certainly should not have a counsel of despair; we should try to identify people and make them own their own content in the circumstance of an allegation of defamation. I think that we are agreed across the Committee about that basic principle of trying to connect the people who have a complaint with those who have made that speech.

I certainly would not hold to a counsel of despair that says, “This is impossible”. In most cases, people can be identified. Most of the cases that we will be dealing with will be arguments between people who are identified and known to each other and who have an issue around whether the speech that one has made about the other is unlawful and defamatory and whether one of them wishes to take some action over that. In some of the cases that we have seen recently and that people have quoted, such as the Lord McAlpine case, it is clear that there has been an ability to identify and go after the principal people complained against.

When we think about those who genuinely are going to be able to hide behind anonymity, we are talking about a minority of instances. That is why I ask whether the test of requiring everyone to identify themselves whenever they speak would be a proportionate response to what will be a relatively small set of circumstances and whether it is necessary to do that.

Where I certainly have some sympathy, and we have had some reference to this already in today’s debate, is with regard to the cost of getting orders to disclose identity details. Again, we should be clear that those who provide internet services need some form of judicial authority to be able to disclose people’s personal data. I hope that we would all agree on the basic principle that it would be inappropriate for a service provider to disclose personal data about an individual simply on request; there has to be some kind of process that enables that release to be lawful and to be lawfully made. However, the current circumstances, as we have heard today, make that very expensive.

There is probably a lot of mileage that we could cover in terms of using legal processes that require the disclosure of data to narrow down the cases that we are talking about, where someone is genuinely and maliciously hiding behind anonymity, but I consider, as I referenced earlier, that those cases will be very much a minority. When we consider the measures that we should take in response, we should bear in mind that they should be proportionate and not do something excessive to deal with that tiny minority of problematic cases.

[Lord Lester of Herne Hill]

The Libel Reform Campaign is strongly opposed to this amendment but I shall not elaborate on what it says about it. I want to draw attention to one thing that may not have occurred to some Members of the Committee, which is how this debate will be regarded in Beijing. In Beijing, they have precisely this kind of amendment in their extraordinary firewall regulations because what they most want to do is identify political dissidents of one kind or another and then go after them for violating their internet regulations. This is exactly what they have and want to maintain, and if we give it any currency at all, they will use the fact that the United Kingdom has done so, even though our context is entirely different and we are not doing it to persecute dissidents and so on. I suggest that we should be very careful, in the lawmaking that we are indulging in now, to think about the transnational implications.