Defamation Bill

Debate between Lord May of Oxford and Lord Lester of Herne Hill

Tuesday 23rd April 2013 Lords Chamber

[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.

Defamation Bill

Debate between Lord May of Oxford and Lord Lester of Herne Hill

Wednesday 19th December 2012 Grand Committee

[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.

Defamation Bill

Debate between Lord May of Oxford and Lord Lester of Herne Hill

Monday 17th December 2012 Grand Committee

[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.