Defamation Bill

Debate between Lord Faulks and Lord Lucas

Tuesday 15th January 2013 Grand Committee

[Lord Faulks]

My Lords, because of my general opposition to this clause, it is obvious that I would also oppose these very well meaning and well articulated suggestions of a mode of complaining by someone who feels that they have been defamed on a website. The debate has thrown up the fact that the industry is in the process of developing a response to this new problem, and I respectfully suggest to your Lordships that that is where the development should come from, not by means of legislation—we are bound to get it wrong and to be out of date. Rather, it calls for a response to a developing situation. If a code of practice is developed that provides an appropriate response, that will deter people from suing, certainly for anything other than the most serious defamations.

As for the amendment put forward by my noble friend Lord Lester, I entirely understand it and the fact that he wears his cloak from the JCHR. If there is to be such a procedure, however, it is asking quite a lot of an individual to make some form of assessment as to, first, whether it is defamatory and, secondly, whether it is unlawful. That would involve them reviewing possible defences: whether or not it was justified, which is an absolute defence; whether or not there was qualified privilege; whether there was responsible publication. That is a considerable series of hurdles for someone to overcome before deciding on and setting out the nature of their complaint.

On the alternative dispute resolution, of course I understand what animates that. It is very easy to sit around in a committee of any sort and suggest that something can be done quickly, cheaply and easily. The reality, of course, is that there are short cuts even within the current framework. People can get preliminary rulings on meaning and whether something is capable of being defamatory within the existing mechanism. I fear that what is suggested may sound like a good idea but may in fact simply be superorgative. It may add to what is already there and not provide the sort of cheap alternative mechanism that plainly is desirable. I respectfully suggest that the amendment should not be pursued.

[Lord Lucas]

My Lords, I support what my noble friend has just said. Having listened to the various alternatives, I think that the idea of having to involve the courts is just going to freak out any website operator, particularly those who deal in any volume. You are asking for some sort of cheap way to get to a judgment that is essentially expensive because there are a lot of things to be considered.

I think that the right answer to this, as my noble friend just said, lies in giving really good guidance to the courts and to website operators as to what is protected under the Bill and what is not. That comes back to points that I made under previous clauses. I do not understand what is going to be protected under the Bill; what is going to be regarded as fair comment; what is going to be required in terms of the person making the complaint or statement stating the basis on which they have made it; or the references to “fact” that creep in, which is something that you as a website operator know that you can never establish. As my noble friend said earlier, we all have insurance to cover those things. I am sure that the same applies to Facebook as it does at the bottom end, which I occupy. That insurance is not vastly expensive and is available on sensible terms from sensible insurers. As long as you have reasonable systems to ensure that you are doing your best not to publish things for which you may be sued, you are protected.

Defamation Bill

Debate between Lord Faulks and Lord Lucas

Monday 17th December 2012 Grand Committee

[Lord Lucas]

My Lords, if this amendment was passed, it would make my life notably more comfortable, but none the less I do not think it should be. In my business of running The Good Schools Guide, I spend a lot of time being uncomfortable to schools and we have on regular occasions in the past 27 years been threatened more or less successfully with legal action for defamation. That seems reasonable. I do not see why schools should not react to what I say because what I allow to be published can have a considerable effect, not just on independent schools, which obviously rely on parents paying fees, but on state schools as well. That is because if children are discouraged from going to a particular state school, that school will suffer.

There are many occasions when parents say things about schools which are entirely unjustified and it is therefore proper that I or anyone else in my position should be careful of what we say and the basis on which something is said. We must ensure that we can reasonably believe that there is some truth behind what is being said. Although I agree that one should be uninhibited in one’s attacks on political parties and government generally, as you move away from them, you reach institutions that are smaller and more personal. An unjustified attack could have a very damaging effect, and so the law of defamation probably should apply. I would much rather see defences against the right to protest against bad public services as part of Clause 4; indeed, I think that Clause 4 could be made more specific so that it is clear that raucous views about public services are to be encouraged and given a wide latitude by the courts. Only under exceptional circumstances should those views be stamped upon. That puts the rights of the public in the context where they belong in this Bill, but to have a blanket prohibition would make schools and universities vulnerable to unjustified attacks. There has to be some form of protection against the most vitriolic.

[Lord Faulks]

Would not my noble friend’s criticisms in the capacity in which he has described them be protected in any event by qualified privilege? In the absence of malice, he or anyone in his position is able to express their view without fear or favour.

[Lord Lucas]

Yes, but that is not the way things operate in practice. A lot of the time, the views expressed by someone like me are second-hand, while the views expressed by parents are perhaps not backed up by fact. It is not that we cannot comment, but in my view schools should have a defence against something that is unreasonable. At one point we had to pulp an edition of the guide because of what we had said, and I accept that as a proper interpretation of the law. To have a situation where no school can sue under any circumstances would put them at an unreasonable disadvantage. I appreciate that someone in my position has many privileges, but they should not be absolute.