Defamation Bill [HL]

Lord Pannick Excerpts

Friday 9th July 2010 Lords Chamber

[Lord Pannick]

My Lords, I, too, warmly welcome the Bill brought forward by the noble Lord, Lord Lester of Herne Hill, and I congratulate him on doing so. I should confess to your Lordships that I was the unfortunate advocate for the United Kingdom Government in the European Court of Human Rights in the case of Lord Aldington, which was mentioned by the noble and learned Lord, Lord Hoffmann, in which the court held that damages of the magnitude of £1.5 million, which were awarded by the jury, were a breach of the right to free speech. I hope that does not, as the libel lawyers would say, lower me in the estimation of right-thinking people in your Lordships' House. I should also mention that the successful advocate in those proceedings, who acted for Count Tolstoy, was the noble Lord, Lord Lester of Herne Hill.

Libel lawyers often begin their submissions to the jury by quoting from Ecclesiastes:

“A good name smells sweeter than the finest ointment”.

The problem is that the current state of the law has odorous consequences. It undoubtedly allows the rich and the powerful to prevent or at least dilute critical comments about their activities by bringing, or even threatening to bring, libel proceedings, which impose a crippling cost on the author or the newspaper concerned, even if the libel proceedings fail.

In 1964, Lord Devlin said in a speech in the Appellate Committee that,

“a man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire, but it can be done”.

The problem is that it can be done only by walking a legal tightrope, which imposes a very substantial cost bill.

I much enjoyed, as I know the whole House much enjoyed, the speech of the noble and learned Lord, Lord Hoffmann. I can best summarise my reaction to what he said by recalling one of his speeches in the Appellate Committee in 2006. He said that it was,

“with a reluctance verging on disbelief that one is driven to conclude that the deliberate opinions of Lord Wilberforce and Lord Diplock were quite wrong”.

The noble and learned Lord, Lord Hoffmann, spoke of the different approach in the United States, even though he accepted that this Bill does not echo at all the provisions of United States law. He then described—critically, I think—what he said was a campaign by the media to reform the law, as if there were something reprehensible about those who have the vital function of communicating ideas and information drawing our attention from their vast experience to the damage done by the current state of the law.

The noble and learned Lord objected to Clause 1, which deals with the defence of responsible publication on matters of public interest. He objected on the basis that the courts have already recognised such a defence. They have, but Clause 1 serves a most valuable function because it clarifies the criteria, which are—with all due respect—confusingly stated in a number of judgments, many of which are conflicting.

He was concerned about hasty reform; namely, that we should not act too speedily. Let us look at Clause 10, which will remove the rule derived from the Duke of Brunswick’s case in 1849. There is no question here of reform being rushed. That case established that each fresh publication of the same material gives rise to a new cause of action with its own limitation period. The rule is a substantial impediment to free speech because newspapers and others who make archive information available on websites are at real risk of being sued when material is downloaded from the internet, however many years have passed since the original publication.

The noble and learned Lord, Lord Hoffmann, also said that we must remember the interests of those who are the victims of libel. Of course we should, but we do not assist the interests of libel claimants by maintaining legal provisions which are slow, expensive and obscure. Why should we allow libel claimants to bring proceedings unless they have suffered, or they are likely to suffer, substantial harm to their reputation? Clause 12 will remedy that defect. Indeed, I suggest that Clause 12 does not go far enough. I do not understand why Clause 12(2) allows for exceptional cases where it is in the interests of justice for the libel claim to proceed even though there is no substantial harm or likelihood of it. Perhaps the noble Lord, Lord Lester, in his reply, can explain what these cases are.

The noble Baroness, Lady McIntosh of Hudnall, cited from “Othello”. Of course, there is another famous quotation from “Othello”, which is Iago’s plea:

“he that filches from me my good name

Robs me of that which not enriches him,

And makes me poor indeed”.

The problem is that the Iagos of the 21st century bring libel proceedings and they deter newspapers, publishers and others from commenting on their behaviour. The current state of the law of libel damages the good name of the English legal system.

I much enjoyed the moving maiden speech of the noble Baroness, Lady Hayter of Kentish Town, and I very much look forward to hearing the maiden speech of the noble Lord, Lord Willis of Knaresborough.