Defamation Bill [HL]

Lord Lester of Herne Hill Excerpts

Friday 9th July 2010 Lords Chamber

Moved By

[Lord Lester of Herne Hill]

That the Bill be read a second time.

[Lord Lester of Herne Hill]

My Lords, I beg to move that this Bill be read a second time. Its central aim is to reform English defamation law so that it strikes a fair balance between the fundamental right to freedom of expression and public information and the protection of a good reputation. It seeks to give better protection to free expression, while ensuring fairness and responsibility in journalism, and necessary protection of the right to a good reputation. It is a measure of the importance of the Bill's subject-matter that so many noble Lords, from such a rich diversity of knowledge and experience, are taking part. At least as many others have expressed regret that they are unable to be here to support the Bill. We will be enriched by two maiden speeches—from the noble Baroness, Lady Hayter, a long-standing champion of consumer interests, and the noble Lord, Lord Willis, who has, among his other qualifications, chaired the Commons Science and Technology Committee.

I believe strongly in self-regulation, provided that it is supervised by an independent Press Complaints Commission, able to provide effective access and to avoid unnecessary litigation. I am therefore glad that the noble Baroness, Lady Buscombe, will be able to explain what she sees as the role of the PCC in relation to the Bill. I hope that it will not be necessary to have a statutory commission and hope that the PCC may have an enhanced role which commands wide public confidence.

The unsatisfactory state of English defamation law is notorious and well recognised both here and abroad. It suffers from the twin vices of legal uncertainty and over-breadth. It has failed to adapt to the changed world of communication by means of the internet and worldwide web. The litigation it engenders is costly and often protracted, and it has a severe chilling effect on the freedom of expression not only of powerful newspapers and broadcasters, but of regional newspapers, NGOs and individual public critics. That chilling effect, well recognised by our most senior courts, encourages self-censorship and impairs the communication of public information about matters of legitimate public interest and concern.

Last year, Parliament abolished criminal libel. But the fear of damages and massive legal costs induced by civil libel law is markedly more inhibiting than the fear of criminal prosecution. It is the NGO, the whistleblower or the citizen critic who tends to take the line of least resistance by censoring information and opinions which the public have need to know. Many examples are likely to be given in this debate.

The Liberal Democrat autumn 2009 conference called for the,

“protection of freedom of expression by reforming the libel laws of England and Wales to ensure a better balance is provided between free speech, responsible journalism, scientific discourse and the public interest on the one hand and powerful corporations, wealthy individuals and vested interests on the other”.

After a public campaign which mobilised 52,000 people across the country, all three main political parties recognised in their recent election manifestos that defamation law needs further reform. The coalition Government have pledged to reform the law to protect freedom of speech.

The Bill recognises that defamation law serves an important public interest in protecting a person's good reputation against unfair attack and calumny. It seeks to strike a fair balance between free expression and the protection of one's good reputation. That is why the Bill does not, as some free speech NGOs would wish, follow the American approach and tilt the burden of proof away from those responsible for defamatory publications.

The Bill has not been designed by or for the media or to permit irresponsible journalism. It has been developed crucially with the expert advice of Sir Brian Neill, the distinguished Lord Justice and editor of the leading textbook on defamation, and Heather Rogers QC, a libel law specialist. Sir Brian, who I am delighted to say is present for this debate, chaired the Supreme Court Procedure Committee on Practice and Procedure in Defamation, whose report was implemented five years later by the noble and learned Lord, Lord Mackay of Clashfern, in his Defamation Bill in 1996. As the noble and learned Lord, Lord Hoffmann, once noted, Sir Brian Neill’s knowledge of libel law is second to none. At the end of his recent lecture on so-called “libel- tourism”, the noble and learned Lord, soon to speak in this debate, explained that he did not want to suggest that English libel law was perfect. We look forward to hearing his views about what is wrong with the current law.

In preparing the Bill during the past eight months, I have also been helped by advice from a coalition of NGOs: English PEN, Article 19, Index on Censorship, Sense About Science, and in-house lawyers from the BBC, the Guardian and News International. I am grateful to all of them and to former parliamentary counsel, Stephanie Grundy, who has drafted my previous Private Member’s Bills, and to Joanna Dawson, who has led the work in my parliamentary office. However, I emphasise that responsibility for the Bill is mine.

The Bill covers a technical and specialised area of law that has been developed largely by the courts for centuries with little intervention by Parliament. However, the underlying issues are of constitutional importance and concern matters of public policy. They are within the proper province of Parliament as well as the courts. Yet, remarkably, this is the first occasion in modern times on which Parliament has had the opportunity to examine the substance of English defamation law. The Bill does not impose a rigid and inflexible code. It provides a framework of principles and rules within which courts interpret and apply the law on a case-by-case basis. It builds on what is best in current law, and brings that law up to date with the effects of electronic communication via the internet.

I have published full Explanatory Notes setting out the background history, the state of the law and the changes proposed by the Bill. The notes are important in unpacking the Bill’s contents and I hope that they will be read within and well beyond this House. We also have the benefit of a useful note prepared by Mr Patrick Vollmer of the House Library staff.

Although the Government cannot, of course, commit themselves to the detailed provisions of the Bill, I hope that the Minister will be able to indicate that the Government share the aims of the Bill set out in paragraph 7 of the Explanatory Notes—namely, to,

“strike a fair balance between private reputation and public information as protected by the common law and constitutional right to freedom of expression … modernise the defences to defamation proceedings of privilege, fair comment, justification, and innocent dissemination, in accordance with the overriding requirements of the public interest … require claimants to demonstrate that they have suffered or are likely to suffer real harm as a result of the defamatory publication of which they complain … require corporate claimants to prove financial loss (or the likelihood of such loss) as a condition of establishing liability … encourage the speedy resolution of disputes … make the normal mode of trial, trial by judge alone rather than by judge and jury … enable the Speaker of either House of Parliament to waive Parliamentary privilege as regards evidence concerning proceedings in Parliament; and … modernise statutory privilege”.

The Bill does not cover media intrusions on personal privacy, data protection and breach of confidence, which are beyond its scope. Nor does the Bill deal with the regulation of costs in defamation proceedings for which statutory powers exist, and will, I trust, soon be exercised to tackle the abuse of conditional fee agreements and success fees. CFAs mainly benefit wealthy claimants and their lawyers, and result in unjust enrichment and inequality of arms.

The coalition Government’s programme rightly promises to protect historic freedoms through the defence of trial by jury, which is an important safeguard in serious criminal cases. Jury trial has been abolished for most civil cases but is retained for libel cases. It is important for juries to be retained for some cases of defamation, but the presumption should be that the normal mode of trial will be by judge alone. That will promote effective case management and encourage the early settlement of cases without need for costly and protracted litigation. I note that Justice, the advisory council of which I am a member, favours that, whereas Liberty, of which I am a friend, takes a traditional view in favour of trial by jury. I do not think that one could manage to reform this area without changing the presumption.

The European Parliament’s Committee on Legal Affairs published a working document on 22 June on the law applicable to non-contractual obligations, known as Rome II. In it, the Committee mistakes me for the Earl of Leicester, and describes my Bill as a measure that,

“counteracts libel tourism with cost-cutting measures such as the abolition of jury trials”.

However, the Bill does not abolish jury trials. Nor does the change in relation to jury trials address so-called “libel tourism”. The same working document argues complacently that no new provisions are needed to deal with defamation via the internet or what it describes as the,

“much maligned multiple publications rule”.

I am glad that the Minister, my noble friend Lord McNally, replied to my Written Question on Wednesday that the Government, like the previous Labour Government, are committed to protecting free speech against unnecessary interference from the European Parliamentary Committee and the European Commission.

Turning to the Bill’s contents, I will briefly refer to the passages in the Explanatory Notes where they are described in more detail. This will enable me to speed up.

Clause 1, paragraphs 47 to 60, define the defence of responsible publication on a matter of public interest. It builds on the common-law defence developed in Reynolds, emphasising the need for flexibility in taking account of the circumstances of publication, ensuring that the defence can cover expressions of opinion as well as assertions of fact, and making clear that the defence applies to neutral reportage. I am glad to note that yesterday the Constitutional Court of South Africa, led by Justice Kate O’Regan came to a similar conclusion in a matter of South African constitutional law.

Clauses 2 and 3, paragraphs 61 to 71, rename the defence of fair comment as “honest opinion”. The clauses strip out unnecessary technical difficulties and make the defence user-friendly. They update and simplify, clarifying what the defendant must prove to establish a sufficient factual basis, and stating the elements of the defence in clear terms.

Clauses 4 and 5, paragraphs 72 to 83, rename the justification defence as a defence of truth. They update and clarify the defence in significant respects, making it clear that the defence is based on proof of the substantial truth of what has been published and that this can be not only where the defendant proves the truth of some, but not all, of a series of allegations, but where the defendant proves the truth of some, but not the whole, of a single allegation.

Clauses 6 to 8, paragraphs 84 to 98, cover statutory privilege. Absolute privilege is preserved for fair, accurate and contemporaneous reports of court proceedings. This privilege is extended to various international and regional courts across the world.

Clause 7 gives effect to the recommendations of the Joint Committee on Parliamentary Privilege and the Culture, Media and Sport Select Committee of the other place, by replacing the Parliamentary Papers Act 1840 with a modern provision, emphasising that reports of parliamentary proceedings are privileged and that this cannot be fettered by court order.

Clause 8 and Schedule 1 update the qualified privilege scheme under Schedule 1 to the 1996 Act. The present state of the law on statutory qualified privilege lacks logic and is internally inconsistent. The new schedule resolves these inconsistencies.

Clause 9, paragraphs 99 to 109, determines responsibility for publication. It replaces the innocent dissemination defence under the 1996 Act, setting out a framework of liability for publishers which is capable of dealing flexibly with technological advances in the transmission and storage of information, providing that those involved in these activities should be liable only in circumstances in which they exert some influence or control over the content of the publication. That is particularly important in the modern technological age.

Clause 10, paragraphs 110 to 121, deals with the problem that each fresh communication of defamatory material is treated as a new publication, and so gives rise to a separate cause of action. It creates a single publication rule for the original publisher but the court may disapply this rule where it would be contrary to the interests of justice. This would allow publishers to retain archives without the fear of open-ended liability, while leaving open the prospect of redress for claimants in appropriate cases.

Clause 11, paragraphs 122 to 129, prevents a corporate claimant bringing an action in defamation unless it can prove that it has suffered, or is likely to suffer, financial loss. There would clearly be arguments about whether one should go further than a corporate claim, but that is a Committee point.

Clauses 12 and 13, paragraphs 130 to 144, deal with the problem of claimants who bring cases where there is nothing substantial at stake. The clauses require the court to strike out claims where no substantial harm has been caused, or is realistically likely to be caused, to the claimant’s reputation by the publication; and to consider whether substantial harm has been caused to the claimant’s reputation in the jurisdiction, taking account of the impact of publication elsewhere.

Clauses 14 and 15, paragraphs 145 to 156, reverse the presumption in favour of jury trial to promote effective case management and to reduce costs in defamation cases.

Clause 16, paragraphs 157 to 159, gives effect to the recommendations of the Joint Committee on Parliamentary Privilege, made in March 1999, that Section 13 of the 1996 Act be replaced with a provision empowering each House to waive Article 9 of the Bill of Rights of 1688-89 for the purpose of court proceedings where the speaker would not be exposed to any legal liability. The authoritative Joint Committee was chaired by the noble and learned Lord, Lord Nicholls of Birkenhead, and included the noble and learned Lords, Lord Archer of Sandwell and Lord Mayhew of Twysden, the noble Lord, Lord Waddington, and Lord Wigoder. It received evidence from our most senior judges as well as the Law Officers.

I am grateful to the Minister and his excellent team of advisers for having met to discuss the Bill in advance with me and my team. I have explained that there needs to be full public consultation on the issues raised by my Bill, either by means of a Select Committee on the Bill, or on a draft Bill fashioned by the Government that builds on our work. The preparation of wise and enduring legislation takes time and needs to be based on informed consultation outside as well as within Parliament. This House, with its great expertise, has a special role to play, but so does the other House. In my view, the best way ahead would be a draft government Bill, subjected to pre-legislative scrutiny by a Joint Committee of both Houses, resulting in a Bill that would begin its passage in this House. If the Bill is read a second time today, I hope we may work with the Government to achieve balanced legislation of which we may be proud and which may become a model across the common law world and beyond. I beg to move.

--- Later in debate ---

[Lord Lester of Herne Hill]

My Lords, the noble Lord, Lord Campbell of Alloway, once rebuked me for making a serious speech after the dinner hour and I am very aware that I am about to make a short speech after the lunch hour. Let me make a few points very quickly.

On the subject of compliments and flattery—this House is an admirable example—I say, with the noble Lord, Lord Bew, in mind, that there were two 19th-century historians, Freeman and Stubbs. A wit wrote of their reviews of each other’s work:

“Ladling butter from alternate tubs,

Stubbs butters Freeman and Freeman butters Stubbs”.

Having said that, I should say that the two maiden speakers deserve all the compliments that have been paid to them.

On the subject of my becoming the Earl of Leicester, I should add not only that there is already a noble Earl, which is why my name is Lord Lester of Herne Hill, so that people who cannot differentiate spellings can understand, but also that I am reminded of Sir Stephen Sedley, who, when faced with a pompous colleague of mine who had made himself honorary life president of a lawyers’ body, said: “Why only life?”.

I pay tribute to the noble Lord, Lord Bach, to Jack Straw and to the former Government, who initiated serious reforms in this area. I was glad to hear what the noble Lord said today. I agree with him very much on the need for urgency on costs; we should not wait for wholesale reform.

I say to the noble Baroness, Lady Hayter, that I thought that I was chairman of the Fabian Society and not its treasurer. I should like that to be looked at.

Let me quickly deal with a few points. I thought that we had covered Mumsnet but, if we have not, plainly it should be regarded as a mere facilitator and therefore not liable.

The speech made by the noble Baroness, Lady Hayter, as a consumer champion was extremely important. I agree with what was said about self-regulation and the role of the PCC. I also agree with the scepticism of the noble Lord, Lord McNally, about where we are with the PCC. I hope that it can be strengthened.

I agree with the noble and learned Lord, Lord Hoffmann, that the problem of libel tourism has been greatly exaggerated. The real problem is not so much libel tourism as our domestic libel law. He may not know this, but we dealt with a form of libel tourism when the noble and learned Lord, Lord Mackay, was Lord Chancellor. We were worried about Singapore bringing its libel law into this country. When we harmonised tort law, we retained the double actionability rule for defamation cases, so that a foreign claimant could bring a libel claim in this country only if they could show that the case was actionable under English law and not merely under Singaporean law. That was one way in which we dealt with that form of libel tourism.

The noble Lord, Lord Willis of Knaresborough, in his most memorable speech, made an important point. He asked why we had not confined companies to malicious falsehood. That is an interesting idea. In a case that I did, the Derbyshire case, the House of Lords decided that public authorities—Governments—could not use the law of libel but had to proceed under the tort of malicious falsehood, which makes me wonder whether we have got that right in the Bill. Perhaps the right thing to do would be to extend the notion of public authority to certain classes of corporation and treat them in the same way. However, that is a difficult area and I am sure that we should all like to think about it more.

Of course, ADR and mediation are vital. However, we have not dealt with that area in the Bill because a distinguished former libel judge, Sir Charles Gray, is chairing a working party on that subject, although I do not think that it has yet produced its report. When it does, we very much hope that that will happen, so legislation is not needed.

My noble friend Lady Bonham-Carter, speaking with a marvellously husky voice and sacrificing her health, mentioned a number of matters. I was reminded that Quilliam, a body dealing with extremist activity, especially among Islamic fundamentalists, told me that when it made criticism of the Islam Channel, it was threatened in a very coercive way with libel proceedings—that is, Islam Channel, the broadcaster, was threatening action against Quilliam as a small NGO. When journalists writing for the LSE’s Beaver magazine criticised a lecturer for allegedly spreading fundamentalist views, the threat was made that, unless they disowned Quilliam and what had been said, it would be all the worse for them. Those are examples of, as it were, the other side of the equation.

I want to mention two examples from my practical experience of my attempts, in the words of the noble and learned Lord, Lord Woolf, to persuade the courts to reform the law. I suspect that the first will amuse the noble and learned Lord, Lord Hoffmann. When I was arguing the Reynolds case, the noble and learned Lord, Lord Steyn, looked at me and said, “What about German ad hoc balancing law?”. I asked, “What about it?”. He said, “Do you know about it?”. I said that I did not, to which he replied, “Well, you had better know by tomorrow morning”. I knew then that I had lost. He was referring to a notion in German constitutional law about which his co-pupil, Basil Markesinis, had published a book dealing with what is known as ad hoc balancing. The trouble with Reynolds was that it applied German constitutional law—ad hoc balancing—to English libel law. The result was to create great uncertainty, which the noble and learned Lord, Lord Hoffmann, and others sought to address in the Jameel case. However, the continental and German approach triumphed over a more common law approach.

The other example was brought to mind by what the noble Lord, Lord Bew, said regarding Northern Ireland. I was in a case called Convery v Irish News, in which a food critic, Caroline Workman, was cross-examined for more than three days as to whether the vegetables in the restaurant about which she had written a disrespectful review were or were not as she said they were. The judge, jury and counsel all misunderstood the true nature of the defence of fair comment and treated it as though it were the defence of truth. She was cross-examined for four days. The newspaper was made to pay, I think, £25,000 in damages and £100,000 in legal costs but it won on the appeal, in which I appeared. Caroline Workman was so distressed by her experience as a victim of libel law that she gave up her profession of journalism altogether.

That is the other side of the coin compared with the description given by the noble Lord, Lord Triesman, of claimant victims who are not treated justly. I am grateful to the noble Lord, Lord Triesman, for his criticism of the Bill; one needs to hear that. However, if he is so concerned about claimants, I wonder why he does not deal with poor claimants. They are not the ones who go to court, and there is no legal aid for poor claimants. The problem with the conditional fee agreement and the 100 per cent success fee is that they are not normally for poor claimants, but for very rich ones. If we ask the claimants’ lawyers for particulars on their success rate, we find that the CFA people are on the side of rich claimants, and that is where the law is profoundly unequal.

I am not concerned with producing a Bill for the entertainment industry or the media; I am concerned with producing a Bill that protects the ordinary, individual citizen/critic, the small NGO, the regional newspaper, those from the arts and sciences, and so on. I am very glad that the noble Baroness, Lady Young of Hornsey, agreed to take part in this debate, and I am glad that others who are not lawyers took part. This is too important a subject to be left even to the legal profession. The noble Lord, Lord Pannick, asked why Clause 12(2) is necessary. I think that he is right that it is not necessary, but we put it in to show how conspicuously moderate we are. We may have been too moderate in that respect.

Finally, I must say that when I hear my noble friend Lord McNally speak as he did just now, I wonder whether I am alive at all or whether I am in heaven. I never thought to hear such a reply. His remarks are extremely encouraging because they indicate an open-mindedness to reform, a willingness to get on and to listen. I am sure that it is better for the Government to have a draft Bill and a Joint Committee of both Houses to look at it; and then, hoping that we are in good health, we could have an actual Bill, which I hope will start in this House rather than in the other place. This House, as we know, has very special qualities. On that basis, I ask the House to give the Bill a Second Reading.

Bill read a second time.