Assisted Dying Bill [HL]

Lord May of Oxford Excerpts

Friday 16th January 2015 Lords Chamber

[Lord Warner (Lab)]

My Lords, I have been sitting through these debates for 12 years—

[Lord May of Oxford (CB)]

My Lords—

[Lord Ashton of Hyde]

We cannot have two people speaking at once. I am sure that the noble Lords can resolve it between them.

Defamation Bill

Lord May of Oxford Excerpts

Tuesday 23rd April 2013 Lords Chamber

As we have heard again today, the Minister in the other place, Mrs Grant, reported that the Government had asked the Civil Procedure Rule Committee to consider rule changes to support a new early resolution procedure under which either party could apply at the outset of proceedings for the court to decide key issues. Although this is welcome, it simply does not answer the point and, in any event, risks a delay of some two years, as we understand that work has yet to start on this. However, in any case, it is not really the point. We want non-natural bodies to have to show a court that they have a real case before they send out those threatening and chilling letters which bully, can silence and intimidate, cost a lot in legal fees simply to rebut, and are sent out to warn off criticism rather than seriously to right a wrong. That is why we need a permission stage in the Bill before a corporation can take an action for libel. I beg to move.

[Lord May of Oxford]

I wish to make a few remarks which may embarrassingly reveal my lack of full acquaintance with the legal arcana in this case but at the same time remind us of at least one of the major reasons why we are having these discussions. I thank the noble Lord, Lord McNally, for doing a good job extremely conscientiously in complicated circumstances with a lot of opinions swirling round him.

I remind noble Lords yet again of what prompted this action in the first place: libel tourism to this country to shut up people who wish to point out instances of malpractice in pharmaceutical companies in a variety of contexts. I come mainly from the science base, where there are interminable examples, about which I could go on for hours. I will inflict one example on your Lordships and then I will speak more briefly. It is a typical example, which raises many of the issues that still concern me despite the good job that is being done. It comes from a chap called Peter Wilmshurst, who wrote to me in an e-mail:

“I am a consultant cardiologist in Shrewsbury. A US medical device corporation, NMT Medical, sued me for libel and slander three times in the High Court in England. I was the principal cardiologist in research, which was conducted on UK citizens and used a cardiac device made by NMT. At a medical conference in the USA, I expressed concern about the findings of the research and some of my comments were reported on a US cardiology website. As a result NMT sued me in England over the website article and a subsequent article. The journalist and the website were not sued. When I spoke about what happened on the Today programme on Radio 4 I was sued again, despite the interview being pre-recorded so that the BBC’s lawyers could make sure that there was no risk of further litigation. NMT did not sue the BBC. Everything that I said was provably true, but that did not prevent NMT starting expensive claims with the expectation that the cost would stop me expressing concerns about the lack of safety and lack of efficacy of their device. I know that fear of being sued by NMT prevented other doctors expressing similar concerns. The libel cases lasted almost 4 years and my legal costs were £300,000”—

which is actually low compared to some of the incidents in mind. The journal Nature, for example, spent £1.5 million successfully defending one of these libel cases.

Peter Wilmshurst continued:

“The cases ended when NMT went into liquidation as information about the problems with their devices filtered out and cardiologists stopped using them”—

something I will come back to. He continued:

“During the years when NMT silenced doctors who had legitimate concerns, the ineffective and unsafe devices were implanted in patients in the UK and elsewhere. Some patients needed urgent cardiac surgery to have devices removed and some died. That was the true cost of the English defamation laws having no adequate public interest defence to prevent spurious claims by wealthy corporations. I believe that if Parliamentarians did not have absolute privilege when speaking in Parliament”—

and that is a comfort I have here, having once been silenced in a cowardly way—

“and they had only the same protections as ordinary citizens, they would ensure that there was an adequate public interest defence and protection from corporations using the defamation laws to silence whistleblowers and prevent freedom of expression”.

We did that way back.

I mention that example in particular because, as noble Lords will notice, the original action was effective. Ultimately, it caused this company to go bust. One of the amendments we are talking about asks for a way of preventing this sort of bludgeoning of people into silence by the power of the purse and the extraordinary extravagance of our legal procedures. It comes home to us very clearly that simply saying that a company must prove you are damaging them by what you are saying is not going to prevent many of these cases because the aim of what many people are saying when they provoke these actions is, indeed, to inflict damage. The aim is to point out bad and unsafe practice and unsound publications, and to damage the people responsible. I am not clear that simply saying that companies must show they are damaged would really cure the problem at all. I may be revealing my ignorance, but I wanted to say again that this is what provoked it. In what sometimes seemed to me interminable sessions in Grand Committee, in which I took a form of perverse enjoyment, the intense arcana of the legalisms occasionally seemed—to put it gently—to distract from the essence of the problem. My understanding, imperfect though it is, is that we are going a long way to addressing this problem but not all the way that, were I supreme dictator, we would go.

[Lord Lester of Herne Hill]

My Lords, I hope, in what will be a short speech, to deal with all the amendments together. In answer to the point just raised by the noble Lord, Lord May, corporations are not the same as private individuals. They cannot have hurt feelings but they can be seriously damaged by defamatory statements. I therefore share the view of many courts across the world that corporations should be able to bring libel proceedings but on certain conditions. The short answer to Dr Wilmshurst is that we now have, in what will be Clause 4, a public interest defence which, quite apart from the other provisions in his favour, he would be able to rely upon.

I begin by dealing with the question of damages. I do not want to crow about it, but it was actually in my own Private Member’s Bill that I required corporate bodies to have to prove the likelihood of financial loss or actual financial loss. That was commended by the Joint Committee on the draft Bill and by the Joint Committee on Human Rights on which I serve and, as a member, was able to inform its report. I think that the Government have made an important concession and I am delighted that the Opposition have recognised that and, indeed, have called for it themselves. It is, of course, extremely important that corporations are able to bring libel proceedings but, as I say, are able to do so if they are trading corporations by proving serious financial loss or the likelihood of serious financial loss.

All of that is now common ground, and what is left are the two important issues of the Derbyshire principle and the notion of a special procedural step to be taken, which is set out in Amendment 2D. It requires the permission of the court before a trading corporation can sue. I am persuaded by my noble friend Lord McNally’s way of dealing with that. It is a procedural point that will be dealt with by the early resolution procedure and by proper case management. It does not require a rigid rule to be inserted into the Bill, and therefore I would not support Amendment 2D.

What, then, about the Derbyshire principle? The House has the benefit of having as a Member of the House of Lords the judge who decided Derbyshire when he was even younger than he now is, my noble and learned kinsman Lord Woolf of Barnes, and I am sure that he will correct anything I am about to say. I want to say something about Derbyshire because I think that it has been misunderstood. It has been misunderstood by the Government because they seem to think that if one were to codify—I am now against codifying for a reason I shall come to—that would be in some way rigid and inflexible because it would prevent a body exercising functions of a public nature being able to vindicate its reputation. That is wrong because, as the Derbyshire case establishes and makes clear, unlike the position in the United States where no one can sue to vindicate the reputation of a government body, it is always open to a body exercising public functions through its officers or any individual who is defamed to bring their own defamation proceedings. It also makes it perfectly clear through Lord Keith of Kinkel in his speech for the House of Lords that there is also the tort of malicious falsehood. This means that if a government body can prove bad faith or reckless disregard for the truth, it can also bring proceedings. The Government are therefore mistaken in thinking that to codify in the way that the Opposition wish to do—with my support the last time round—would create a rigid and inflexible position. That is not so, but the question is whether we were right last time to try to codify the principle.

Since then, something has happened which has caused me to think again. It is the situation in Northern Ireland, and I hope very much that the noble Lord, Lord Bew, will say something about it. Since the last occasion, the governing authorities in Northern Ireland have decided in their wisdom that the Defamation Bill should not apply to the Province. NGOs, newspapers, broadcasters and citizen critics often convey information and ideas which are not confined to any particular part of the United Kingdom but extend to the whole of it.

What troubles me about codification is not what troubles the Government. What troubles me is that, were we to codify in the way that is now suggested, in Northern Ireland, Mr Paul Tweed, in particular, who is the king of libel suits in that part of the United Kingdom, would argue, “This is codified in England and Wales but it is common law in Northern Ireland and the way in which it is codified suggests that Parliament had serious doubts about what Derbyshire meant. Now we are going to seek to apply a narrower view than Derbyshire itself”. That has made me think about the whole issue in this context of codification versus common law.

Arctic Report Card

Lord May of Oxford Excerpts

Monday 28th January 2013 Lords Chamber

[Baroness Verma]

Yes, my Lords; the noble Lord is right that the United States has reduced its carbon emissions and increased its production of shale gas. However, this country takes the view that we need to ensure that our energy supplies are a mix of renewables and traditional fossil-fuel based. Therefore, although we are looking at shale gas, it will be part of a mix of energy rather than our having a dependency on it.

[Lord May of Oxford]

My Lords, is the Minister aware that the cost of the actions that we should be energetically taking against climate change—the need for which is underlined by the faster than previously expected melting of Arctic ice—is significantly smaller than the discounted present value of the much more difficult actions that we will be faced with in future if we do not act? I declare an interest as a member of the Committee on Climate Change.

[Baroness Verma]

The noble Lord is of course right that we need to take action. I am pleased to say that this Government are taking action and working very hard with all partner countries to ensure that this global issue is tackled with a global response.

Defamation Bill

Lord May of Oxford Excerpts

Tuesday 15th January 2013 Grand Committee

[Lord Allan of Hallam]

My Lords, I remind the Committee of my earlier declaration of interest that I work for Facebook, which is a reasonable-sized website operator. In supporting the amendment that I and the noble Viscount, Lord Colville, have tabled, I first wanted to set out that we all have a common goal here, whichever side of the debate we are coming from. In a sense, it has been divided into sides, but I think that there is one common objective: unlawful defamatory material should be swiftly removed from wherever it should appear, whether in print media or on the internet. At the same time, there should be minimal collateral damage to content that is not unlawful. We want content that is lawful to stay up and people to be able to share it with each other, and content that is unlawful to come down. It is a simple objective, and both Amendments 26 and 27 are trying to take us towards that.

Amendment 27, in particular, is crafted in the context where we have people who are prepared to use any legal tools that we make available in ways that we did not perhaps intend, and will use them maliciously. There is no doubt that tools that are made available for people to request take-downs of internet content are used, and will be used, by people who are seeking to interfere with the freedom of speech of others. We must make sure that we have crafted the tools in such a way that we minimise that possibility, as well as maximising the opportunity for people to get content taken down that should be taken down. The objective is that 100% of the requests made through this process should result in the right form of action and that that action should be swift. I think the amendment, by specifying in more detail the form which the notice should take, is aimed to create what one might call a well formed notice. A well formed notice that has all the necessary information will be able to be acted on swiftly by the recipient of that information—in this case, the website operator—and the solution can be reached more speedily.

[Lord May of Oxford]

This is possibly a stupid point, and it may reveal my misunderstanding, but as I look at this—I said this during our first Sitting—there are occasions, particularly in the scientific sphere, when the intent is correctly defamatory, where one is saying, “This is wrong”, “This is dishonest” or, “This experiment has been faked”, and the like. Much of the wording of this assumes that if it is harming you, then you have rights, as it were, to stop the harm. However, I can think of lots of examples where the intention is deliberately and properly defamatory.

--- Later in debate ---

[Baroness Hayter of Kentish Town]

My Lords, perhaps I may slightly correct the noble Viscount, Lord Colville of Culross, who I think said, “I am not a lawyer, I am just a journalist”. At the risk of upsetting a lot of other people in the Room, I do not think that he has that the right way round. The Bill is for you who write and we who read what you write or produce on television.

I thank the noble Lord, Lord Allan of Hallam, for clarifying that Facebook is indeed a website, which answers my earlier question. I use his words: we want swift removal of defamatory material with minimum collateral damage to lawful material. We may have to come back to that again at the end of the Bill’s proceedings. We can call it the Allan test and see whether we meet it.

I still have a problem with the question that my noble and learned friend, Lord Morris of Aberavon, raised earlier, which is about the distinction between lawful and defamatory. I found the evidence to the Joint Committee on Human Rights by Professor Phillipson on this compelling. Clearly, the whole of the committee did not, and I am not a member of the committee. The issues I want to raise are not legalistic but more about ethics and fairness, although I thank my colleagues, who have provided me with a little more legal background.

I want to go into a couple of cases which may be akin to what the noble Lord, Lord Faulks, mentioned on an earlier amendment about a teacher. I give two case studies. First, there is an Ofsted report on a school, and the local website reveals an affair between the head teacher and a parent, which is going on, but the evidence for it was found by Ofsted in its study, so it is a breach of privacy, because it was found by inspection and was then given without permission to the website. It then seems, under the privacy work being done by Leveson, that a case could be taken. Secondly, there is a separate case, where there is an Ofsted report on a school and a local website reveals an affair between a head teacher and a parent; however, it turns out not to be true.

If I have understood the difference with this higher hurdle, if what the noble Lord, Lord Lester, says is true, before the parent could take an action for defamation, they would have to know whether it was more than just untrue and bad for their reputation; they would also have to ask themselves, “Well now, was it in the public interest because the other party was a head teacher and therefore there could be a public issue?”. Or perhaps there is a defence because the claim was incredibly well researched and the head teacher was having an affair with a different parent, also called Smith, in the same street, and it was just a small technical error that caused the confusion, so it was responsible journalism. A hurdle is being asked for where that the parent, the claimant, would have to go and do some legal homework to try to think through what the defences were that the person who had written the untrue thing about them could put up against their action before they could actually start a claim—by which time their spouse would have left them. In fact, it would probably be better if the affair were true, because then they could get an action on privacy.

That brings me to a comment made by the noble Lord, Lord May. He seemed to be suggesting that as soon as you say something nasty about someone, it is defamatory. That is not my understanding. If I call him a rotten scientist, that is seriously defamatory, but if he calls me a rotten scientist, it is so patently true that it cannot be defamatory. I am not sure that some of the examples given would actually be defamatory; if you say that someone has been forging their research results and they have been, that is not defamatory because it is not untrue.

[Lord May of Oxford]

Many of the more celebrated cases in the libel tourism that has generated all this activity, such as the £1.5 million spent by the journal Nature in defending a plainly factual but defamatory statement about an Asian journal that was created simply to publish the papers of the sponsor, are of just that character. The statement were plain fact, but the action brought in this country by people outside it cost huge sums of money. The action involving Simon Singh was another example. What he was saying was plainly factual but was defamatory; it was intended to be so in every meaningful sense, and properly so. Somehow we keep losing sight of this in the legal elegances.

[Lord Marks of Henley-on-Thames]

I trespass on the noble Baroness’s time by giving another simple contemporary example. If I had said during his lifetime that Jimmy Savile was a horrible paedophile, that would have been seriously defamatory. Had I had access then to the information that we have now and he had sued me, I could have justified that. It therefore would have been defamatory but not unlawful. It is as simple as that.

--- Later in debate ---

[Lord McNally]

No, I do not want him to stay; I really think that he should go back to his sickbed, although his recovery during the course of the debate was significant. He said, “This short debate” but I humbly refer the Committee to the fact that our two debates today on a single clause of the Bill, which we have still not yet completed, have taken us two hours and 40 minutes in a 17-clause Bill, of whose Committee stage we are on day three of four.

[Lord May of Oxford]

This gives us some idea of why legal costs are so high.

[Lord McNally]

I hope that Hansard noted that comment from a sedentary position and the general approval from the non-lawyers in the Committee for that observation.

At some stages during those debates, as a non-lawyer, I thought of John Wilkes, the famous radical. When he was about to publish his newspaper, the North Briton, he was asked by a French acquaintance, “Is the press free in your country?”. “I am about to find out,” said Wilkes. I think, having listened to this debate, that in some respects the internet is going to find out whether or not it is free. My noble friend Lord Mawhinney asked me where we were with regard to balance. It is not a question of balance between right and wrong, but the debates that we have had today show that there is a balance.

One of the great things about continuity in this House is that I was on the pre-legislative scrutiny committee that looked at the Communications Bill, where we deliberately advised against trying to legislate for the internet. On reflection, I think that we were right. My noble friend Lord Phillips said that he was on the side of the little man. On reflection, one of the greatest boons to the rights of the little man over the past decade or so has been the worldwide web and its freedoms. While I hear the passion and the righteous indignation of those who have been defamed and hurt, we as a Committee have to be careful not to overlegislate something that on the plus side has some considerable benefits for the little man.

That was a complete abuse of procedure, because I am moving a government amendment of some simplicity. It was also because I am wracked by guilt: at one point during the debates, the noble Baroness, Lady Hayter, helpfully sent me a note saying, “Are you on holiday?”. The truth is that when we were setting out who was going to handle what, I thought, “Clause 5 will be a nice snappy debate, since my noble friend Lord Ahmad—although he is learning disturbingly fast—should be given some experience of Bill-handling”. Little did I realise that he was going to have such a baptism of fire.

Amendment 28 provides for the affirmative resolution procedure to apply to the scrutiny of the regulations to be made under Clause 5 of the Bill, rather than the negative resolution procedure as the Bill currently provides. That is in the light of views put forward on this issue by the Delegated Powers and Regulatory Reform Committee, the Joint Committee on Human Rights and others. The affirmative procedure will ensure that the regulations receive more thorough parliamentary scrutiny. I hope that, as such, it will be acceptable to this Committee and to the House. I beg to move.

--- Later in debate ---

[Lord Lucas]

My Lords, speaking again as a web operator, I do not know any way of establishing a person’s identity just because they are posting. One could establish a web identity, but that may have a very fuzzy relationship with any individual. If someone posts, gives me an e-mail address and I verify that e-mail address, that is about as far as I can get. However, I think that we can reasonably insist on that. If we are offering website operators the protection of this Bill against being sued for what is posted on their sites, we can ask them at least to have verified a web identity. We can ask that they take some steps to have a method of communication with this person and do not just allow straightforward anonymous postings. Then, something put up on the net should come from someone with whom the website operator knows that they have an established means of communication. Whether or not that works, is fake or just ends in silence, I do not think you can ask the website operator to determine. But you can at least make them take the first step.

[Lord May of Oxford]

This is a sensitive and difficult issue but I find myself in agreement with the noble Lord, Lord Lester, and others that the downside of doing this outweighs the upside. However, it was also my impression—which may just reveal that I did not understand what was going on—that quite a significant recourse is already given by what we were discussing under Clause 5.

[Lord Phillips of Sudbury]

Not if the complainant does not know the name of the author of the posting.

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[Lord May of Oxford]

No, but they complain to the people who should not have allowed it to be posted. That is my understanding, which means there is a responsibility—

[The Deputy Chairman of Committees (Lord Brougham and Vaux)]

Order.

[Lord May of Oxford]

I apologise. I forget the curious thing that you must stand up, thus rendering the microphone less effective. Be that as it may, I thought that there was some recourse and a real encouragement to the person running the thing not to permit really bad behaviour, because there is that recourse against the person who owns the website.

[Lord Phillips of Sudbury]

With respect, there is no recourse against the person who runs the website if they take the posting down. However, by that time, the damage to the complainant will have been done and will have reverberated around the world—and there will be no redress.

[Lord May of Oxford]

Did I misunderstand the part of Clause 5 that said there was a responsibility on the owner of the website not to permit outrages of the kind that the noble Lord just referred to? If there is, can you not sue?

[Lord Phillips of Sudbury]

I am afraid that the noble Lord did misunderstand.

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[Lord Hunt of Chesterton]

My Lords, that was the first time I have moved an amendment, so I hope you will excuse me.

This is an important amendment in an important Bill, particularly for scientists, engineers, doctors and writers, who approached me to take up the issue, particularly regarding the internet when used in a rather specialised way by these organisations. I have met many engineering and science institutions, whose membership comes to around 450,000 people, and on whose behalf they speak. I was also contacted by the coalition of Sense About Science, the Penn Club and the Index on Censorship.

This Bill offers legal protection, and in this clause there is emphasis on the peer-review process, which as a scientist and former editor I am very familiar with. I am also familiar with the fact that many scientists and engineers who are involved in public debate use the internet. The internet that they use is regulated by the institutions involved. We are talking about a much narrower brief; I do not know whether these people count as “little people” as mentioned by the noble Lord, Lord Phillips, but they are pretty important people and there are quite a lot of them.

This clause refers to the words “scientific or academic”, and I understand from earlier discussions that this includes engineers, medics and technologists. The amendment proposes that the privilege enjoyed by peer-reviewed articles should be extended to websites controlled and edited by chartered organisations and professional bodies. It attempts to build upon the current system, which is practical and financially supported.

The Institution of Civil Engineers, of which I am an honorary fellow, having studied engineering as a student, and the Institution of Structural Engineers have highly regulated websites on which people can make comments about, for example, a structure such as a bridge or some machinery. Those comments are then edited very vigorously, they talk to their lawyers so that they will not be defamatory or cause any difficulty and then they put the comments on their website, so it is a highly controlled system. They would welcome a clause along these lines, because they would then spend less time talking with their learned friends and would perhaps save money. They feel that this clause would put what they already do into practice or into a legal framework, which is a good way to proceed.

Some noble Lords have said in discussions this afternoon that we do not need this because it happens already. This is an example where things are happening already but they could work better and more effectively. Some people wrote to me from some institutions to say, “We’re not doing this very much; this would enable us to provide a better service to our members, who are very worried about a slightly increasingly litigious world”.

I will go through the clauses and will read each clause, as that will make it easier to understand. Clause 1 as amended would read:

“The publication of a statement in a scientific or academic journal or on a website edited and controlled by a chartered professional or learned body (a ‘recognised website’) is privileged if the following conditions are met”.

In a sense, some of the work has been done for this Parliament by the Privy Council procedure of providing chartering to professional bodies. Some of these professional bodies, of course, may be in considerable conflict with other professional bodies. The chiropractors, for example, are now a chartered body, and not all other scientific bodies are entirely in agreement with what they do. Nevertheless, this could still be within that framework.

The first condition, as we read this,

“is that the statement relates to a scientific or academic matter”.

“Scientific”, as I commented, includes engineering, technological and medical matters. If my amendments were accepted, subsection (3) would read:

“The second condition is that before the statement was published in the journal or on the recognised website an independent review of the statement’s scientific or academic merit was carried out by … the editor of the journal or recognised website, and … one or more persons with expertise in the scientific or academic matter concerned”.

If my amendments were accepted, subsection (4) would read:

“Where the publication of a statement in a scientific or academic journal or on the recognised website is privileged by virtue of subsection (1), the publication in the same journal or recognised website … is also privileged if”—

and then there are three conditions, the third of which is added by my amendment—

“the assessment was written by one or more of the persons who carried out the independent review of the statement; and … the assessment was written in the course of that review”—

and—

“the assessment was written by one or more persons with expertise in the scientific or academic matter concerned and was approved by the editor of the journal or recognised website”.

As I understand it from these institutions, this is all quite a rigorous process. Subsections (5) to (8) are also modified in that way.

This amendment is in the spirit of the clause, but it would extend it and would certainly be very much welcomed by these institutions.

[Lord May of Oxford]

I agree with all of this. It is very good and I want to do something, if I am allowed, that is probably improper. There are two issues in Clause 6 that I would like to have clarified, but I did not see the need to put down an amendment merely to raise the issue. Clause 6(6) says:

“A publication is not privileged by virtue of this section if it is shown to be made with malice”.

Am I correct that the word “malice” has a fairly explicit legal meaning? Anybody familiar with the academic world will know—

[Noble Lords]

Oh!

[Lord May of Oxford]

I can give the Committee many examples. One that does not reflect directly on me was during the GM controversy, when there was an experiment by Pusztai that claimed to show that GM foods killed rats. The Royal Society did a review of it that said that these experiments were so flawed,

“in many aspects of design, execution and analysis”,

that no conclusion could possibly be drawn. I have a sneaking sympathy for poor Mr Pusztai. He was a sad but well intentioned little man who did silly things. I am sure that he felt that that quote was malicious. I would like to be reassured that there is a legal sense to “malice” that means “consciously unkind”, as it were. If these amendments had been in place, Nature would have saved £1.5 million fighting a simple case.

When Clause 6 says,

“relates to a scientific or academic matter”,

I take it that that means that, by definition, everything in the journals is of a scientific or academic matter. Often they will be opinionated editorials about issues of interest to the academic community. I thought that I would raise those issues rather than trying to grab someone afterwards.

[Lord Mawhinney]

My Lords, I support the amendments of the noble Lord, Lord Hunt of Chesterton. Were I surrounded by the Joint Committee, it would be in agreement with my wanting to do so. I say to the noble Lord and, indeed, to my noble friend that the definition of “recognised” may need to be examined a little further and tightened just a little more, not least bearing in mind the point that the noble Lord, Lord May, has just made, but that is relatively straightforward. The principle seems to be a good one, in line with what we in the committee produced, and I commend the noble Lord.

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[Lord Bew]

My Lords, I thank the noble Lord, Lord Hunt of Chesterton, for putting forward this amendment, and I am very sympathetic to his efforts. However, the noble Lord, Lord Browne of Ladyton, has asked one question and I will ask two questions in the same vein. This is just for reassurance, because I think that we understand that there could be great benefit from this amendment, and a powerful case has been made.

First, the noble Lord knows this world and the world of academic journals. Is he sure that the person editing a website for a chartered professional association is necessarily of the same calibre as the person editing a peer-reviewed academic journal? The second question is related, and perhaps more profound: is he sure that there is the same requirement for qualified privilege as there is in certain areas for academic journals, where there clearly is a severe chilling effect? The questions are in the same vein as those posed by the noble Lord, Lord Browne, but are in the vein of a very sympathetic interest in the proposal that the noble Lord has put to us. He is quite right to say that he is speaking entirely in the spirit of Clause 6. I would like to have a little more reflection on the detail.

[Lord May of Oxford]

It is perhaps a little more complicated than some people think. I am not sure that people understand that some journals are purely electronic. Some of the major journals—PLOS ONE, for example—are online, while most of the conventional, older journals offer an option to publish additional material electronically. More than half the journals are run by the same learned societies that the noble Lord, Lord Hunt, is talking about, so it is not a juxtaposition of things that you can physically hold up and others. It is a seamless continuum, and the spirit of this definitely needs some refining to make central what has been said so clearly: that the issue is peer review.

[Lord Mawhinney]

My Lords, I will chip in again. When I responded to the amendment from the noble Lord, Lord Hunt of Chesterton, I said that it was subject to further work being done on the definition of recognition. I know that the noble Lord, Lord Browne, said that he was talking about something different, but I think that he and I are basically saying the same thing. In light of this further conversation, I say to the noble Lord, Lord Hunt, that if his amendment is saying that the existing people become the judge and jury for their own individual production, then I am not sure that that is in keeping with the spirit of what the Joint Committee said.

A redefinition, or indeed a definition, of “recognised” has to have some element of other people endorsing the view of those who want to produce. I encapsulated that in referring to a clearer definition of “recognition”. The noble Lord, Lord Browne, and I are probably saying much the same thing, and I hope that those who spoke to the noble Lord, Lord Hunt, recognise that being in a learned society is not in itself sufficient. There has got to be further definition of the word “recognition”. However, subject to that, which does not seem to me to be an insurmountable problem, I still welcome the amendment.

--- Later in debate ---

[Lord Hunt of Chesterton]

I thank noble Lords for their very constructive response. I want to emphasise the respective memberships of the institutions which wrote to me. The Institution of Civil Engineers has 80,000 members; the Institute of Physics has 45,000 members; the Institution of Chemical Engineers has 35,000 members; the Institution of Mechanical Engineers has 100,000 members; the Institution of Engineering and Technology has 150,000 members; the Royal College of Physicians has 30,000 members; and the Institution of Agricultural Engineers has not so many.

I have published papers in the scientific literature and for those institutions, and I can tell your Lordships that the standard of refereeing in most of our engineering institutions is extremely high. There are excellent scientific journals, but there are an awful lot of scientific journals with peer review in them that are pretty poor. That is why I was surprised that the clause as originally drafted set no quality level for the journals; no quality level has been supplied. It is not as if these are journals of institutions. The quality level that I want to introduce for the websites—“chartered”—is a great deal higher than is the case for the journals.

[Lord May of Oxford]

Some of the journals.

[Lord Hunt of Chesterton]

Some—I apologise to the noble Lord, Lord May.

This is an extremely rigorous process, so I do not recognise the notion of dilution suggested by the noble Lord, Lord McNally. This is not a free-for-all. If one civil engineer writes a letter to a journal about, let us say, a bridge, it is an extremely serious matter. This is now done regularly without many court cases, but it would be better if it were in the legal framework. We would be building on an established tradition.

However, time has been running on. I am appreciative of the Minister’s constructive response. I should like to talk to the drafters, and I hope that this matter will come back. I beg leave to withdraw the amendment.

Defamation Bill

Lord May of Oxford Excerpts

Wednesday 19th December 2012 Grand Committee

[Lord May of Oxford]

I suspect that I am the only non-lawyer around the table but I wish to express my enthusiasm for the amendment.

[Lord Phillips of Sudbury]

My Lords, I should be interested whether the Minister who is to sum up can tell the Committee whether there has previously been a conspiracy of judges frustrated in the manner that we have seen today.

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[Lord Marks of Henley-on-Thames]

My Lords, of course I accept that. I would like to say that I am grateful for the apology, but I am not sure that I am. I had worked out that there were four of us and I had not worked out who was left out, but now I know that it was me. It matters not, perhaps, what the conversations were, as I think that I have made the point.

[Lord May of Oxford]

My Lords, I wish to speak to Amendment 22 but in a broader context, as I believe that it relates directly to some of what many people feel to be the unsatisfactory elements of the Bill in its present form and Clause 4 in particular. In saying that, I express my appreciation of the noble Lord, Lord McNally, and the Government generally for helpfully moving things forward in response to earlier worries. I much appreciated the noble Lord’s comments, particularly in connection with Clause 4.

The Government’s proposed amendment to Clause 4 is a big improvement. The proposal significantly to modify Clause 4, which in its original form was largely an unhelpful codification of existing law, has been widely welcomed by those campaigning for a public interest defence—some 60,000 people have been involved one way or another. They and many of those involved in the awful cases that have given rise to the broad campaign for reform have been unable effectively to use a defence that was designed for newspapers. It is too complex and usually hugely expensive. It is certainly not suited to what medical specialists say at a conference, to reports on consumer issues or to reports on human rights.

Given that the Government appear to have recognised this fundamental point, I believe that they should clarify things further by changing the wording of Amendment 21. It says:

“In determining whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest, the court must make such allowance for editorial judgement as it considers appropriate”.

The phrase “editorial judgement” has the subtext of newspapers. That covers much of the matter, although not necessarily legalistically. It would be much clearer if it said, “such allowance for the publisher’s judgement as it considers appropriate”. I notice that, despite the many sensitive comments that the noble Lord, Lord McNally, has made, he was not minded to accept this amendment, but I will persist with it.

I want to go little more widely. This amendment addresses part of a more general problem, in that the Bill still seems to many readers to focus on newspapers, editors and corporations. We need to recognise that the central need that has provoked the entire issue of the revision of the Bill is for a well drafted protection of individuals acting in the public interest. It needs to correct the current internationally notorious and embarrassing situation which is being abused by those with deep pockets who travel to the UK with the specific aim of using our existing legislation and its whacking great costs to prevent individuals speaking out on issues of public interest, particularly in biomedical and other scientific contexts. I realise fully that this is only part of a larger problem.

[Lord Lester of Herne Hill]

I am grateful to the noble Lord. I am sorry, but Clause 4 in its present form and in its amended form could not be clearer. It does not apply only to newspapers and the media as it refers to:

“Responsible publication … for the defendant to show”.

That applies to me, to an NGO and to anyone at all. Criticisms of the law of libel in general are a different matter. On this specific point, I do not know who these people are who think that it does not apply to anyone but the media, but they are mistaken unless they cannot take the opportunity of reading the words themselves.

[Lord May of Oxford]

I realise that the situation is more complicated than I may have portrayed it. One of the more fascinating and charming things I have learnt in the course of these procedures is that if one is a member of the legal profession, one is not merely a noble Lord, but a noble and learned Lord. As an unlearned Lord, it does not seem that the bulk of the discussion has focused on what I understand to have been the moving issue here in the first place. In large part, it is a response to the Libel Reform Campaign which involves almost 100 organisations and, as I said a moment ago, some 60,000 supporters, including leading names from the sciences, the arts and public life. They have been calling for legislation to reform the libel laws since December 2009. The committee took that on board. I am not familiar with the committee because I was not a part of it, but it seems to have addressed the issue by and large in a sensible way and it has brought forward the Bill before us.

The Bill contains many welcome proposals—the single publication rule and some measures to reduce libel tourism, which is rarely referred to—but what it does not contain are measures to limit corporations’ use of the law in what I think are dodgy ways, or clear provisions for online hosts and intermediaries because it still assumes that publication means print rather than online. Until it provides a strong public interest offence, scientists, human rights groups, NGOs, consumer groups, authors and doctors will continue to be silenced by a piece of legal machinery that we should be more embarrassed about than we seem to be.

[Lord Lester of Herne Hill]

I am sorry, but if the Libel Reform Campaign has been briefing in that way, it is completely wrong, and it is time that it realised that it is completely wrong. As I have said before, the whole purpose of this defence is to protect NGOs, consumers and individuals, not only the media. So far as I am aware, the Libel Reform Campaign has not come up with anything better than the amendments to Clause 4, and I have been waiting for it to do so. Since I began to prepare my Bill, for a year I made quite sure that all the NGOs met me every month or so in order to reach a high common factor of agreement. The Libel Reform Campaign did a great job of publicising the need for reform but, with respect, it is not good enough for the campaign to make a root and branch statement of that kind without giving proper credit to all the ways in which this Bill dramatically and importantly reforms the law and creates a better balance between free speech and reputation. I have to say all of this because sometimes even NGOs need to be accountable.

--- Later in debate ---

[Lord McNally]

I will publish them on the MoJ website. Even better, I will tweet them. No, I will not. Now I am trying to run through in my head who they are.

It is interesting that the recently departed Solicitor-General, who was and is a practising libel lawyer, thought that this was entirely irrelevant, unneeded and so on, and argued very strongly against it. He felt strongly about it, although that is not the reason why he is now an ex-Solicitor-General.

[Lord May of Oxford]

Would the Minister’s decision have been difficult if a huge sum of money had hinged upon it?

[Lord McNally]

I was just going to pay the noble Lord, Lord May, a compliment. When he spoke about the fact that some of our colleagues are noble and learned, I was thinking that that goes with the rations, whereas I think that he is extremely learned, and that goes with reputation. I am not sure who he was thinking would take such a sum of money.

[Lord May of Oxford]

It is a question of solving the Simon Singh problem. However well we draft the legislation, if the hurdle is not high enough to justify—

[Lord McNally]

This is interesting. There is a suite of protections in this legislation, and I want to test it. I have had Simon Singh say to me, “Oh, this wouldn’t have protected me”. First, I have been here long enough to realise that you cannot draft law for one particular case, nor can you deal with particular circumstances that may have ratcheted up. However, what I want to do, and I mean this absolutely sincerely—I look particularly at the noble Lords, Lord May and Lord Bew—is to be able to meet senior academics and scientists and for them to say, “Yes, this does help”. This is the process that we are going through now. I hope that what the noble Lord, Lord Brown, referred to as the suite of protections that are built into the Bill will give a lot more protection to what we are doing.

To clarify the editorial matter, editorial discretion is not just about editors. The courts have used the term to refer to matters of judgment about how a story is presented, its tone and its timing. The courts recognise that there may be legitimately different views about this and that some allowances may be necessary but we do not think that publishers’ discretion is any clearer. Under the Government’s amendment, the courts will already need to look at the reasonable belief of the publisher. The reason we also proposed amendments referring to “editorial judgment” was to put this in the Bill to respond to concerns that we were not sufficiently reflecting Flood. It is better to use the language of Flood. At the same time, I can assure the Committee of our view that the term “editorial” is not limited to editors or newspapers. It is a more flexible term that leaves it open to the court to develop as necessary.

The noble Lord, Lord Phillips, wanted a clarification of “reasonable belief”. That phrase brings out more clearly the subjective element of what the defendant believed at the time, while retaining the objective element of whether the belief was a reasonable one to hold. I hope that that clarifies the matter; I shall read through it a few times myself over Christmas.

However, let us also be clear. The noble Lord, Lord Browne, referred to us introducing a liberalising defence, and the noble and learned Lord, Lord Brown, made this point. Yes, we are lifting the bar or moving the goal posts, as the noble and learned Lord, Lord Brown, helpfully explained as regards his thinking in the Flood judgment. There is a lot of talk about attempts to shackle the press; a lot of it is misguided. However, Clause 4 is a genuine attempt to strengthen freedom of speech and should be seen as such. The noble Lord, Lord Triesman, among others, raised important issues about the public interest. It remains the case that it will be for the court to determine the first limb of the test; that is, whether the statement complained of was, or formed part of, a statement which was a matter of public interest. Again, the noble and learned Lord, Lord Brown, helpfully let us into his thoughts on this matter.

That is a matter that we must think of. The noble Viscount, Lord Colville, and the noble Baroness, Lady Bakewell, explained to us what the responsible journalist does in these matters. The noble Lord, Lord Triesman, rightly reminded us of the question of what to do when the intention of the publisher or owner is to destroy a reputation. Do we give impunity to that? That is why, when our friends in the Libel Reform Campaign come close to asking for a blank cheque, I have to say that we cannot give it to them. We also have a responsibility, as well as a recognition that there is irresponsible publication.

We are moving on to new media, and my noble friend Lord Lucas will be pleased to know that that is another hospital pass that I have left for my noble friend Lord Ahmad. I would say to Twitterers the Twittering equivalent of “caveat emptor”: “Twitterer beware”. Twittering is not beyond the law. We somehow got the idea that new media is a law-free area. People are going to find that it is not.

Defamation Bill

Lord May of Oxford Excerpts

Monday 17th December 2012 Grand Committee

[Lord Faulks]

I declare an interest as a practising barrister. I practise principally in the law of tort, which includes, but does not specialise in, defamation. I am sorry that I was not here at Second Reading, but I have had the opportunity of reading the Second Reading speeches.

The aim of this group of amendments is clearly to provide a further hurdle to prevent vexatious and frivolous actions. I am sure all noble Lords agree that that is a desirable aim, but a claimant already has to cross a considerable hurdle in establishing that something is potentially defamatory. With great respect to the noble and learned Lord, Lord Scott, many of the decisions about meaning and whether something is potentially serious—if this amendment is accepted—will be taken without a formal rehearsal of evidence, simply on the pleadings, the submissions, by both sides.

I respectfully say that it seems to me that the word “serious” embraces “substantial”. It is a simple word which, after all, we ask juries to consider in cases of serious bodily harm. I entirely agree with the noble and learned Lord, Lord Scott, about the lack of need for guidance. It is something that judges would be perfectly capable of deciding without any such guidance. The question is whether the plaintive has a substantial hurdle to overcome. The word “serious” seems to me to provide a substantial hurdle.

I entirely agree with what my noble friend Lord Mawhinney says about funding, which is critical to this. Much of the problem in this area has been caused by CFAs and the immense bill of costs that tends to mount up for claimants who then sue defendants of perhaps fairly modest means who have been unable to fight cases because of the threat of those costs. After the LASPO Act comes into force in April, this will be much less of an issue, but it is important. I know that my noble friend the Minister will be answering on this. It is important that there should be some means of pursuing these cases when they have crossed the various hurdles which will, no doubt, be in the Bill when it is enacted, and I ask the Minister to do what he promised at an earlier stage in the legislative process. It is all very well to have a proper inhibition, but there should nevertheless be a meaningful remedy.

[Lord May of Oxford]

I shall offer some thoughts as a practising scientist who on one occasion only was confronted with a legal letter of, essentially, a threatening kind because I had accurately described something as a bunch of garbage. I promptly folded. I did not have the courage of Simon Singh or the principle that lead the journal Nature to spend £1.5 million on a ludicrous suit. We have a very tricky thing to try to solve. We are internationally known. The Americans have passed legislation to cut themselves loose from us. The United Nations has formally criticised what we have been doing. We are known as the place where you come if somebody living in Iceland has irritated you in Australia because of the extravagant and extraordinary costs, which have no analogue anywhere in the world, of dealing with these issues.

My father was a lawyer, and I have every sympathy and understanding that we are wrestling with a very difficult problem. One or two words will not capture it, but the spirit is sensible enough. Part of the problem is the legal costs, and they are something that we are clearly not going to legislate about. As we look at this, we should not look at this through a purely legalistic prism. We should try to see a way forward to have sensible legislation that means that if you criticise on valid scientific grounds the chimerical claims of someone—I shall not name an example—you will not be confronted with the dilemma of principle that people are being confronted with now. This is what has brought this. I see the problem, but the issues raised by the legalistic arguments that are not sensitive to the underlying facts are substantial and difficult to solve but need to be confronted. Do not just explain to us what we all understand. Of course there has to be some careful examination of it by competent people, but that is not necessarily served by the way we use expert witnesses in these legalistic things.

--- Later in debate ---

[Lord Browne of Ladyton]

I accept what the noble Lord has said and I respect it enormously. I do not treat it light-heartedly. I think he makes a serious point. I feel I may have lost my powers of advocacy actually because I was not seeking to argue to change the words. I was seeking simpler clarification of the words and was using the only device that is open to me in these circumstances. I may not have served that purpose and may have opened up the opportunity for debate, but I do not think that I have done anything other than give some people who are not lawyers a window into the world that we will be living in when lawyers get hold of what we produce.

[Lord May of Oxford]

I do bear in mind that we want to move on. I may well have missed some of the points, but I think part of the missing of points is cultural sliding past each other. I completely agree with what the noble Lord has just said. One ideally wants a simple procedure where a good judge hears what it is all about from well-chosen people. However, I reel back in dismay when I hear other people who said that he examines the material that has been assembled. The noble Lord clearly does not mean that and if it is going to be like that then I am with him.

My one experience of this kind comes out of the Meadow case. Noble Lords may remember this incompetent statistician who created a quite serious set of problems. In the wake of it, some of the medical statisticians at the Royal Society said, “Why don’t we make a report on it?”. I said, “No, why don’t I talk to Hayden Phillips and we will get together with some legal people to ask how we can be more helpful?”. Indeed, we got together with Igor Judge, the noble and learned Lord, Lord Judge, this was before he was Lord Chief Justice, and had a very interesting conversation but it was slightly strange.

I do not apologise for boring noble Lords with this because I think it is illustrative. When I was in school, we had a rather good debating team which consistently beat the debating team led by Murray Gleeson. The captain of our team is now a High Court judge in New South Wales. They have a new way of handling expert witnesses, which is along the lines that the noble Lord just advocated. Instead of getting a credentialed expert witness such as Meadow or somebody else from a company that gives credentialed expert witnesses who are often not very expert, the judge asks appropriate people who would be a good person to bring in. Then he holds a mini tutorial in which the two sides are able to ask questions, but one seeks understanding. The whole Meadow thing would never have happened had that been done.

However, after we had presented this idea and a willingness to help do it, it was explained to us that we simply did not understand. We were missing the point of the legal system. What would be really appreciated would be if the Royal Society would set up a committee to formally accredit expert witnesses, which did not seem to us what the debate was about. I am worried that what is being described and what is in your Lordships’ minds are not easily going to be translated into anything that is not almost as expensive as what is currently being used as a weapon. In the situation involving Nature and Simon Singh, the people who were being criticised did stand to lose by the criticism, but the expert opinion was that the criticism was valid. It could have been settled by a judge in half an hour, but the defence cost Nature £1.5 million.

[Lord Browne of Ladyton]

I am again grateful to the noble Lord, Lord May, whom I think I misnamed earlier. However, I have no intention of going any further with this, having made the point I want to make at this stage. I am grateful to the Minister for his response. He has added to my understanding of what the Government are seeking to achieve, and I broadly support that. If it achieves the objective, I will go away and think long and hard about what is now on the public record. If that is sufficient, I will abandon my search for any further clarity in this area. If it is not, I may of course return to this issue at some later stage in the Bill, but for the moment I beg leave to withdraw the amendment.

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[Lord Lester of Herne Hill]

I should be careful what I say, because I shall now offend some members of what is known as the libel Bar. I am not a proper defamation lawyer, although I have dabbled in it. My dealings with my colleagues at the libel Bar have led me to conclude that the great technicality and obscurity of elements in the existing law are no fault of the judges but are very much the fault of my colleagues who have enjoyed very inward introspective legal practices that have added to the problems. In the framework we now have, it is extremely hard for the judiciary to cut out the nonsense that is there as a result of my fellow practitioners. I am sorry to defame a group of them, but there it is.

The other thing I wanted to say, which my noble friend Lord Faulks has referred to, is about the unsatisfactory idea of focusing on the company as though the company is a monolithic concept. If you focus just on the company, you leave out all kinds of other powerful bodies that are not companies at all: a trade union is a good example, although that has been dealt with in the case law in a particular way; many unincorporated associations; and many bodies that are very powerful NGOs, for example. The problem with the word “company” is that it is both underinclusive and overinclusive. It is underinclusive because it does not catch other powerful bodies that are not in corporate form, and it is overinclusive because the little dress shop company that my noble friend Lord Faulks has in mind—a one-director company—is in a completely different position from McDonald’s. That is why it is fact-sensitive and can be dealt with by the judiciary only on a case-by-case basis.

The amendments that we are now considering do not trespass on the courts in overreach. They are dealing with one aspect of the problem. The holistic approach involves case management, procedural rules and guidance in order to counter the kind of problems that the noble Lord, Lord Triesman, had in mind.

I am therefore enthusiastic about these amendments, but they do not and cannot deal with the whole of the problem.

[Lord May of Oxford]

I am wholly in favour of these two amendments. I want to raise one question that probably illustrates one of my many areas of ignorance. I worry a little bit that saying a statement is not defamatory unless it has caused substantial financial loss will run up against classic examples of where a large organisation, like a corporation, has used costs to silence someone, but there are many examples of where people have persisted in their criticism. If anyone who is interested in these case horror stories e-mails me, I can send them a list of a dozen different illustrative stories. Despite costs of £500,000 or £1.5 million, and the loss of time to the person involved, the better cases, such as those involving an unsafe medical device or people in South Africa being told that they should buy a particular person’s vitamin pills and that AIDS medicines are ineffective, have been effective and have inflicted serious loss on companies that should have been put out of business.

That brings us back to our very first issue. In most of these cases, a good judge, with two or three experts, could have settled the matter in half an hour. Whether AIDS drugs or vitamin pills are effective is beyond dispute; yet it took 17 months and £500,000 to settle it. I suspect that I am, in some sense, out of order by raising this, but there is a slight overtone that causing substantial damage gives you a reason to start suing someone. I think that we need to go right back to our first discussion about having to ask whether the damage was based on an accurate description of untruths or unknowing or knowing faults and lies in what was being marketed.

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[Lord Faulks]

My Lords, I understand what is behind these amendments and of course I share the desire of other noble Lords that matters should be settled or litigation avoided if that is at all possible. My noble friend Lord Mawhinney said that his committee on the whole eschewed recommendations for case management. However, by this amendment he seeks to go into that area.

A word of caution might be appropriate. There is always a danger if you set up a series of procedures to be undertaken because you will frontload costs and increase the overall bill of litigation. Although I accept what my noble friend Lord Lester said about the libel Bar and its propensity to make rather arcane rules on pleading, for example, there are specialist libel judges who are well aware of all the issues, and defendants and claimants regularly bring matters to a judge at an early stage for determination in order to serve their clients well.

I do not think that we should proceed on the basis that this is an entirely unco-ordinated, inelegant process. No doubt, improvements can be made, as the Minister will tell us. I await with interest to hear what is suggested. But I respectfully suggest that these are rather cumbersome amendments which will not, I fear, achieve what they intend to do.

[Lord May of Oxford]

I commend very highly subsections (5)(c) and (d) of the new clause proposed under Amendment 7. This is the first mention that I have come across—although I have not read every word—of “public interest”. As many noble Lords will know, there has been a lot of pressure from many sectors of the outside community that the Bill does not do enough in looking at public interest as an offsetting factor. As regards subsection (5)(c), I wonder whether the words “complained of” are “a statement of fact or opinion”. If they are a statement of fact, it seems to me that, defamatory or not, or financially injurious or not, a fact is a fact and no one should be liable for stating a fact. Yet—I am becoming parrot-like in repeating again and again—I can give many examples where people have had huge pressure on their time and been put to ludicrous expense in defending a matter of fact. I hugely welcome those two proposals.

[Lord McNally]

My Lords, again, I want to be able to think about and to look at the arguments that have been deployed. As I have said, I am not so experienced in the law as to know where this balance is, particularly on case management. I know that the Select Committee and a lot of the evidence given by individuals and organisations as this Bill progressed emphasised that good case management was part of the key to dealing with early resolution and the problem of cost. Whether it is wise or even proper to try to write these matters into an Act of Parliament rather than trust the judiciary to deal with these matters, certainly I look forward to a meeting with the Master of the Rolls early in the new year and to talk to others about this.

In the mean time, let me put on record the responses to these two amendments. Amendment 5 would make it compulsory for the parties to use a form of alternative dispute resolution before a defamation claim could come before the court. The Government are firmly committed to reducing the costs of defamation proceedings and to resolving legal disputes by techniques other than litigation wherever possible. The overriding objective of the Civil Procedure Rules puts the onus on courts to encourage and facilitate the use of alternative dispute resolution, and the Pre-action Protocol for Defamation already requires parties to consider some form of alternative dispute resolution, including mediation or early neutral evaluation.