Defamation Bill

Debate between Lord Mawhinney and Lord Faulks

Tuesday 15th January 2013 Grand Committee

[Lord Faulks]

My Lords, in addressing the group that includes Amendment 23A, I have had a chance to reflect on the issues raised by these amendments and to read in Hansard the speeches made in the debate before we adjourned for the Christmas Recess. This has led me strongly to support the amendments—or most of them—in this group, if not to go further. I emphasise that I am in sympathy with this Bill, in particular with the raising of the bar to prevent trivial defamation actions. I would also like a limit on the right of corporations to sue, as we discussed on a previous group. I favour the amendments to the Reynolds defence, and the protection of peer-reviewed statements in scientific and academic journals as provided by Clause 6.

However, I have real difficulties with Clause 5, which we are currently debating. It seems to be taken almost as given by those in favour of libel reform that website operators should be in a special position and separate, say, from book publishers or newspapers. The reasons for this are said to be that website operators will generally act only as a conduit and have little control over content, and that liability for defamation potentially is inimical to free speech.

Parliament does not often have an opportunity to intervene in the law of libel and, as I am sure noble Lords will agree, it is most important that we get the law right, particularly when what we decide now may not be reviewed, except by the courts interpreting the provisions of the statute, for many years to come. That particularly is a heavy responsibility where courts all over the world are currently struggling to deal with the interrelationship of the law of defamation and the operation of the internet, and it is especially challenging to us to attempt any form of future-proofing.

In his very helpful speech to the Committee, my noble friend Lord Allan of Hallam told us that e-mail is not the communication mechanism of choice for young people—they much prefer instant messaging-type applications—and that a whole new range of communication services are coming into the market. It is reasonably well known that young people do not read newspapers much. Therefore, we are potentially considering the law in relation to what is going to be the most prevalent form of communication.

In its report on the Defamation Bill, the Constitution Committee of your Lordships’ House states:

“We consider that, as a matter of constitutional principle, the relevant provision should be to the greatest extent possible on the face of the Bill, so allowing full legislative amendment and debate. Moreover, only by seeing the proposed obligations to be imposed on operators will Parliament be able to consider whether the regime proposed is fit for purpose”.

Much in the current Bill is left to regulation but even that which is already provided for by Clause 5 causes me difficulties. It is plainly in the interests of website operators that there should be a special defence. They are an extremely powerful lobby with, as the noble Lord, Lord Triesman, pointed out on the previous occasion, the capacity to generate very significant profits.

As a member of the committee which last year considered the draft Communications Data Bill, I had the opportunity to see and hear from the representatives of the industry and to hear the very cogent and forceful advancement of their commercial advantages and disadvantages which might lie in the form of any future legislation. In particular, internet service providers were very reluctant to store any information which was not commercially useful to them, albeit that it might help the security services or the police to catch criminals. By the same token, they plainly do not want to have to face defamation actions and have the administrative inconvenience of trying to prevent defamatory material being published at all—if published is indeed the correct word, which is currently the subject of much judicial doubt.

I wonder whether our response to such large commercial organisations, although I appreciate that not all are large, would be the same if they were producing oil or manufacturing on a large scale, and we were told that it was inconvenient and potentially costly to provide a meaningful remedy to those who suffer from a company’s activities.

My noble friend Lord Allan talked about the democratisation of free speech but I am not convinced that much of the careless dissemination of rumour or innuendo that takes place can properly be defended on free speech grounds. Why does a substantial commercial company not have any obligation to take appropriate steps to either prevent or limit the publication of defamatory material or—and I stress this point—take out insurance in respect of those rare circumstances in which they will be sued for defamation?

The cost of an insurance premium would simply be a business cost and would mitigate the potential unfairness of depriving someone of a remedy who has been defamed. Will this open the floodgates? The law, as it presently is with the Defamation Act 1996 and the 2002 electronic communication regulation, provides some protection. But I an unconvinced that there is or will be a great wave of litigation brought against website operators. If the Bill becomes law, it will be only for serious defamation that anyone can sue at all. Furthermore, they must have the funds to do so. If in fact a website operator responds quickly to a complaint, broadly in the way envisaged under the Bill, it will limit the damages and thus deter a potential claimant from bringing proceedings at all.

Let me give an example of a defect in the provisions as they currently stand. Say that you were a teacher who had been accused of being a paedophile and that that was placed on a website. Particularly in the current climate, this would probably cause irreparable damage to your life and career, even if the allegation was wholly unjustified and subsequently withdrawn. However, provided that the website operator responded in the way envisaged under the Bill, you would have no remedy at all. Those few complainants who have serious complaints should be able to bring a claim, even if it causes some inconvenience and expense to the website operator, who will simply have to bear the cost. It almost certainly will have broader shoulders than the potential claimant.

I am far from convinced that we should be giving website operators a special defence. I look forward to hearing the Minister’s justification of that defence and to his answer to the amendments, although I notice that there is a government amendment to which we will come in due course. At present, I am sorry that my noble friend Lord Phillips is not going to pursue the clause stand part debate. There are a number of anomalies that we could point out—there may always be anomalies—but it is a particular anomaly, for example, that someone can sue for slander if the publication is limited to one person but will not be able to sue effectively in the circumstances envisaged here.

I know that the Minister is a great fan of the Human Rights Act. I wonder whether the provision will satisfy analysis in the courts, either here or in Strasbourg, in terms of an Article 8 right. I am of course aware of Article 10, but it seems to me that if I were that hypothetical teacher or someone in that situation, I would be relying on Article 8, regardless of this defence, to outflank the provisions on defamation. I have experience of cases where courts have held that remedies under the Human Rights Act exist independently of any rights under common law or under statute.

I regard the provisions as unsatisfactory, requiring greater explanation. I fear that, unless we provide a great deal more detail to deal with some of the difficulties which will be encountered, we will make bad law.

[Lord Mawhinney]

My Lords, part of my role in this Committee has been, as accurately as I can, to reflect the evidence and testimony that was given to the Joint Committee. I feel the need to repeat that process this afternoon.

Lest I be accused of being unduly biased, we had representatives of modern technologies come to give evidence, including one Member of this Committee. We heard the arguments, in particular, from those who run websites and are operators and might conceivably be the focus of defamation proceedings. A number of your Lordships present today were members of Joint Committee, so I can always be corrected if my memory fails me. I think that it would be fair to say that, overall, the evidence we got was that websites ought not to be beyond the reach of the law. This may or may not be a democratisation of free speech—whatever that means. Certainly, anybody and everybody can now get themselves a worldwide audience, which did not used to be the case. Whether that is a compelling argument for saying that such people will no longer be bound by the restraints of defamation is an entirely different matter.