Defamation Bill

Debate between Lord Allan of Hallam and Lord Lester of Herne Hill

Tuesday 5th February 2013 Lords Chamber

[Lord Allan of Hallam]

The right way is to keep Clause 5 as it is currently drafted. The Government have done a good job in drafting the scope of this defence as an additional measure to those currently available under the e-commerce directive. It makes sense to have this additional defence. My concern is that Amendment 11 would be an additional burden and further restrict the defence only to websites that have the ability to post a notice in this way. I imagine that a significant number of websites which could avail themselves of the defence in Clause 5 would not be able to do so if there were a requirement to post a notice. I can also imagine instances when such a requirement would be abused. It makes sense to leave it to the website operator, once they have received a complaint, to deal with it under Clause 5 as it is. I also think that it would be sufficient to encourage website operators to post notices when things are contested and they believe that a notice would fit with their environment and be helpful. There are instances when you need to mandate something and instances when you want to encourage it as a model of good practice. In the context of notices, the mandated option is wrong and the good practice option is correct.

[Lord Lester of Herne Hill]

Having spent about three and a half years attempting to reform the law of defamation, and in the light of what happened on the first amendment today, my overriding objective is to get the Bill through. I want to make it clear that I shall not be moving any of the amendments in my name this evening. I say that now in case anyone else, in their sad lives, wishes to do so. Having thought about it, I take the view that the regime as it stands, with regulations, will be perfectly capable of accommodating some of these issues properly and that we are now being overcareful and overprescriptive. I know that it is very unusual for a member of the Bar to indicate that he is under a decree of self-imposed silence, but that is my position.

Defamation Bill

Debate between Lord Allan of Hallam and Lord Lester of Herne Hill

Tuesday 15th January 2013 Grand Committee

[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.