Defamation Bill

Lord Lucas Excerpts

Tuesday 5th February 2013 Lords Chamber

Moved by

[Lord Lucas]

16: Clause 5, page 3, line 37, at end insert—
“( ) Regulations may make provision for a procedure whereby—
(a) a complainant may apply to the court for a declaration that his complaint meets the basic requirements of a libel claim; or(b) a website operator or the person who posted the statement complained of may apply to the court for a negative declaration that a notice of complaint fails to meet the basic requirements of a libel claim,provided in each case that the party making the application complies with the procedure laid down in any such regulations.”

[Lord Lucas]

My Lords, I was hoping to get some explanation of Amendment 15 as we have not debated it. I rather wonder why it was moved formally.

[The Minister of State, Ministry of Justice (Lord McNally)]

Because we want to get home before 3 am.

[Lord Lucas]

Well, let me delay things a little—but not for long.

We have had a long debate and a great deal of discussion about this but it appears to me that the regulations as they are will not allow the Government to give website operators, such as myself and others, the comfort we need to be able to keep postings in place when we are challenged as to whether they should be and we think that they are fair comment. We need some way of discovering whether the law is on our side or against us. The amendment is intended to allow the Government to frame regulations that would give us that comfort and allow us to allow others freedom of speech. I beg to move.

--- Later in debate ---

[Lord Ahmad of Wimbledon]

My Lords, Amendment 16 would allow the regulations governing the Clause 5 process to provide for a procedure for a complainant, website operator or person who posted the statement complained of to seek a court declaration as to whether the complaint meets the basic requirements of a libel claim.

This amendment seems to envisage the creation of a system whereby, alongside the Clause 5 process, any party can seek a court declaration on a prima facie basis. It is difficult to see what incentive there would be for a complainant to do this. Such a declaration would not be determinative of the merits of the case or affect the availability of the Clause 5 defence, and so it would potentially just be an additional—and costly—step before registering a notice of complaint. Instead, the proposal appears primarily to be aimed at helping website operators to make informed decisions as to the strength of complaints so that they can be more confident in removing material or leaving it online depending on whether or not a declaration is granted.

We have serious practical concerns about this proposal. It has been suggested that the process could operate through consideration by a High Court master, on the papers, at very short notice and on payment of a nominal court fee. That seems unrealistic. We consider that it does not adequately take account of the time the process would take, given the significant additional burden on the courts, the extent of the evidence that could be needed to reach a decision and the consequent costs to the parties involved. There is also the possibility of rulings being appealed, which could add to the time and costs involved. Bearing in mind that the prima facie declaration would not be determinative of the merits of a case, it is difficult to see how that is warranted.

In any event, we do not consider that this additional process is needed. Clause 5 is intended to operate in such a way as to avoid website operators having to make decisions about the merits of defamatory complaints. The representations we received from many website operators during consultation on the draft Bill indicated that they did not have sufficient knowledge to make these judgments and that it was not appropriate for them to be doing so.

In response, we have sought to create a simple, quick, cheap and effective means for the complainant to request the removal of defamatory material and for the poster to engage with this request and stand by his posting if he wishes to do so. We think it is right to remove the website operator from the process as far as possible, so that if they follow the process as will be set out in regulations they will have a defence against a defamation action.

Of course, if for business reasons a website operator wishes to protect their users because doing so helps them financially, there is nothing in Clause 5 that will stop them from doing so. However, we do not think that an amendment to support them in doing so is appropriate.

I say again that the Government believe that the Clause 5 process, which, as I explained, focuses on creating a system under which website operators do not have to reach judgments on the validity of complaints, is a preferable approach which will be fair to all parties involved and will deliver additional certainty and protection for website operators. We believe that it is simpler and will not involve the cost and delay of the system envisaged under Amendment 16. With the explanation that I have given, I hope that the noble Lord will withdraw his amendment.

[Lord Lucas]

My Lords, I am grateful to my noble friend for that. I say as an aside that I always considered that the business of this House was to consider a Bill properly, not to get home to bed, and that we should take the time that it takes. Perhaps my noble friend will give me at least a short explanation of Amendment 22 when we get there, but meanwhile I beg leave to withdraw the amendment.

Amendment 16 withdrawn.