Defamation Bill

Debate between Lord Allan of Hallam and Lord Triesman

Wednesday 19th December 2012 Grand Committee

[Lord Allan of Hallam]

I shall aim to do so. I turn specifically to the amendments. Let me work through those. There is a lot of merit in Amendment 23A, on the electronic platform. I am interested in the Government's response about what they perceive the legal definition of a website to include. It is certainly the case, and the expectation in the technology community, that most content will be accessed within as short a space as two to three years, primarily through untethered mobile devices and applications—specific applications tied to a particular service. The traditional notion of going to a web browser and typing in a web address will not necessarily be the dominant form of accessing information. It is a fact that most information and contact will be delivered in a different and more sophisticated way, and it is important to ask the question now as to whether the definition of website that the Government intend covers this wide range of information services or is intended to cover stuff delivered by the http protocol; the traditional web browser.

In the context of Amendment 25A and the notice to be posted alongside the publication, I have concerns about how realistic that is. I disagree with the noble Lord, Lord Lucas, about how straightforward that might be. Given the different formats out there and the wide range and type of contact that may be posted, to be able to guarantee that a notice of complaint is posted alongside the original content may prove to be much more technically complex than has been imagined. I wonder about the value of doing that given how people access content through small-screen devices and the way in which the content scrolls and moves rapidly these days. The idea of a notice next to a piece of content is again looking back to the newspaper model, where you have something much more static and in a much more defined format. I have questions about the workability of the notice in Amendment 25A.

The e-mail contact in Amendment 25B goes back to the website versus platform debate. It may come as a surprise to the Committee but e-mail is a dying communications mechanism. Young people do not use e-mail. E-mail is for work and if you want to communicate with people whom you know and like and with organisations, you use different forms of communication—instant messaging-type applications and a whole range of new communications services. In the context of how website operators might receive complaints, e-mail is probably for a large operator one of the least efficient ways of doing this. It is relatively unstructured and people will send anything to an e-mail address.

A much better approach, if we want to include something in the Bill, is to say that there must be an efficient contact mechanism and then allow the website operators to determine the most efficient contact mechanism for them. In the case of a lot of the large providers, their preference, rather than e-mail, would be for people to use a contact form. A contact form allows you to give guidance to the person. You can have a very simple flow. Somebody types a defamation on a website. The website says, “Hey. If you want to report defamation go here”, and they are given a screen that takes them through all the information that they need to provide in careful detail and then offers them a form that they can send in. The great advantage of that method is that the form then sends the information to the legal team to do an assessment, with all the relevant contact information. A smaller operator may choose to use e-mail because they have nothing else and they do not have the technology, but we should not specify the technology used for contact in the Bill. We should leave that up to the operators.

Those are my comments on this group of amendments. I know that we will come back to the larger issues of principle and the balance of power between the complainant and the website operator in the next group.

[Lord Triesman]

My Lords, I will try to do this as briefly as possible. I support my noble friend Lady Hayter’s amendments and also—I hope it does him no harm—the amendment and comment of the noble Lord, Lord Phillips of Sudbury. I was responsible for intellectual property at the relatively short lived Department for Innovation, Universities and Skills. One of the things that I found completely astounding, almost every day, was that when we tried to deal with widespread theft of other people's intellectual property, and the propensity of some people to use the internet for serious criminal purposes involving children or whatever, one argument always and consistently was put to us. “We are only a conduit. We are no different from the Post Office. It went through in a sealed envelope in the mail. Who would know? Why on earth should we take any responsibility?”.

What I observed, as noble Lords may expect, from this sequence of events was that it was perfectly okay for people who are creating music, film, literature or many other products that are vital to the creative output of the United Kingdom—and very successful in the interests of the economy of the United Kingdom. But their interests were as nothing when compared with this apparent complete barrier to dealing with anything that happened to be done through a web platform or internet company. They had no responsibility in any circumstances. I have never bought that argument, which is why I agree so strongly with the noble Lord, Lord Phillips, on the matter. It may be very complex and it may be that the technology keeps advancing, but the reality is that, unless there are some restraints on what people can do with this form of technology, the argument inevitably goes to the point where it is possible to protect individuals, even with inequality of arms, from some forms of publication but they are completely and inevitably lost when it comes to electronic publication. That is a very dangerous and damaging concept for our society.

I know the importance of the businesses and the value of the work conducted by the noble Lord, Lord Lucas, and others, but I respectfully say that the idea that Twitter or anybody else is not making money out of it is completely bizarre. It is not, of course, making money in the sense that people who post anything on Twitter are paying for it; at least in general they are not. However, advertising revenues are created around these new media platforms, including, pre-eminently, Facebook. The ability of companies to be able to track people’s interests and identify how to approach them with commercial products—I have seen this in sports websites that are associated with Facebook, for example—is an amazing way of generating vast amounts of money. It is no surprise that the companies have become worth so much money in their quoted positions as well.