Defamation Bill

Lord Taverne Excerpts

Tuesday 5th February 2013 Lords Chamber

Moved by

[Lord Taverne]

6: Clause 4, page 2, line 37, leave out “reasonably” and insert “could reasonably have”

[Lord Taverne]

My Lords, I shall speak also to Amendment 7. I have taken no part in Committee. I should explain why I am moving this amendment today. I tabled my amendments at the request of Sense about Science, a charity which I founded just over 10 years ago, and from which I have recently retired. It has certainly played a prominent part in the proceedings on the reform of libel law, and I have followed its progress with keen interest. I first thank the Government for their helpful approach throughout, and say how much I appreciate the changes which they have made.

However, there are still some improvements to be made. I was encouraged to table Amendment 7 because it is based on the advice of senior counsel. The point can be made briefly. Under Clause 4, the defendant must show that he, she or they, as the case may be,

“reasonably believed that publishing the statement complained of was in the public interest”.

The amendment would replace “believed” with “decided”. I submit that it would make the clause clearer and simpler. Belief is subjective, much more so than decision. It is often hard to prove belief. It would be open to, possibly endless, argument and discussion, and could well lead us back in the direction of the checklist, which I am sure that all noble Lords wish to avoid.

Further, it may be the case that the defendant is a newspaper. That could make belief even harder to prove. For these simple reasons, I hope that the Government will favourably consider these amendments.

[Baroness Bakewell]

My Lords, in speaking to Amendments 6, 7 and 9, I declare an interest. I am a member of PEN, the defender of writers’ rights, and have been briefed by it in the matter of public interest defence. However, I speak as a journalist of some four decades’ experience, schooled in what were at the time the exacting standards of BBC journalistic behaviour. If that sounds rather smug or perhaps even naïve, following the earlier debate on Leveson today in which enormous generalisations about the nature of the press and its wickedness passed unchallenged, I am aware and proud of the many high standards of journalism in this country, which has served in part to disclose the scoundrels in the industry whom we wish to call to account.

It is against that background that I seek to make the matter of public interest foolproof against capricious and expensive litigation and extended and opportunistic probing of journalists’ subjective motives.

The advantage of the small but significant changes proposed in these amendments is that the defence can still benefit from a subjective element that would require the court to consider the defendant’s state of knowledge at the time of publication, but would limit the claimant’s ability to spin a long and expensive case by probing the defendant’s motives. It is the decision to publish rather than the belief that is critical.

Matters of public interest require objective judgments reasonably arrived at. Journalists must be held to such judgments. The issue of subjective motives is simply not relevant to the case. As Lord Justice Dyson found in the case of Flood:

“The mere fact that an article is published because the journalist or publisher wants to hurt the subject of the article is not material to whether the publication is in the public interest”.

As long-serving practitioners in the area of defamation law have advised the Libel Reform Campaign, an opportunity on the part of an aggressive, outraged claimant to use the litigation to probe into, to prise open and to seek to expose as flawed the motives and good faith of a defendant, including editors and journalists, may be readily exploited. As a writer of fiction, I am well aware of the complexity of human motive and its expression, including my own. But as a journalist, I acknowledge that my examination and exposure of a story must answer the strictest tests of reason and objective judgment. The law must safeguard my right to do so. In leaving open the option of what I might believe and why, some major intentions of the Bill—to reduce the length of cases and their prohibitive expense so as to enable those without means to get redress—would be damaged. I support the Bill.

--- Later in debate ---

On the other hand, I take on board the comments of my noble friends Lord Phillips and Lord Lester about the elegance of the clause. Without any indication of a change of mind, I say that I will look at it again. However, I have fully explained our reasons for retaining it and I stand by them. In the light of my reply, I ask the proposers of Amendments 6, 7 and 9 not to press their amendments. At the appropriate time, I shall move Amendment 8.

[Lord Taverne]

My Lords, I appreciate my noble friend’s determination to give effect to the Flood judgment. I am not sure that the advice that he has received from his department on interpretation is the right view and I hope that he will not just look at the elegance and the style but consider the remarks made by my noble friend Lord Lester. In the circumstances, I shall withdraw the amendment but it may be a matter to which we will return.

Amendment 6 withdrawn.

Defamation Bill

Lord Taverne Excerpts

Tuesday 9th October 2012 Lords Chamber

[Lord Taverne]

My Lords, I shall be very brief. As I explained at the Second Reading of the Bill of my noble friend Lord Lester two years ago, I no longer regard myself as a lawyer because I ceased to practise in 1966 and, when I did practise, I knew nothing about libel law.

I want to make a brief point about safeguarding freedom of scientific publication in relation to Clause 4. The magazine Nature recently won a case in which it was sued by a man called El Nashi, the retired editor of a publication called Chaos, Solitons and Fractals. Nature reported criticisms of improper self-publication during his time as editor. In its defence, Nature pleaded truth and justification and also sought to rely on the Reynolds defence. It offered a right of reply, which was not taken up. The plaintiff unfortunately pursued his case in person, which greatly complicated the proceedings. The case took four years. It involved getting expert witnesses from different parts of the world and contacting staff who had moved on. It cost £1.5 million and took up a huge amount of management time.

I am advised that a new and effective public interest defence would have avoided that ordeal but that the Bill as it stands, with its new definition of the Reynolds defence, would not. Nor, I am told, would the Bill as it stands have benefited Ben Goldacre or Peter Wilmshurst, or Simon Singh in his dispute with chiropractors, in their ordeals. If the Minister, my noble friend Lord McNally, can show that this is wrong, I shall be delighted. If not, the Bill should be amended, and it seems that the Neill amendment, as mentioned by my noble friend Lord Lester, would be the answer.

Prisoner Transfer Agreements

Lord Taverne Excerpts

Tuesday 15th February 2011 Lords Chamber

[Lord McNally]

I agree. I am not a lawyer, but I am advised that that is exactly the position we have in this country: the people in jail on very long fixed terms and those on life sentences are treated differently when trying to vary those sentences. I go back to the central issue, which is that the transfer of prisoners home is to allow them to serve their sentences back home, not to benefit from a review of sentences. However, I acknowledge that the points made by my noble friend Lord Avebury and the right reverend Prelate are worthy of review by Ministers. We have now received a submission from officials on this, which we will study along with the remarks made in these exchanges. When possible, we will make the House aware of our conclusions.

[Lord Taverne]

My Lords—

[Lord Ramsbotham]

My Lords, when discussing this matter with some overseas territories from where foreign nationals have come, there has always been a sticking point over the length of sentence and the length of time that people might be expected to serve. If people go back from this country, there has been a fear that they might be released before the end of the sentence awarded by our courts. The key part of the sentence that we are talking about is at the end, when people are appropriately resettled into their country of origin. Can the Minister confirm that it is the resettlement end of the sentence which will be the subject of the discussions in the review that he mentioned?

Defamation Bill [HL]

Lord Taverne Excerpts

Friday 9th July 2010 Lords Chamber

[Lord Taverne]

My Lords, I join in congratulating the maiden speakers. The noble Baroness, Lady Hayter, gave a warming and very telling speech, and my noble friend Lord Willis of Knaresborough made a delightful speech. He has an outstanding record as chairman of the House of Commons Science and Technology Committee and will be a great asset to this House. I will also say something about my noble friend Lord Lester. He has done a huge amount of work on the Bill, strongly supported by others, and this is only one example, as other speakers have pointed out, of the unique contribution that he makes through his expertise, energy and application. I do not know of any other Member of this House who has done more to prevent bad laws being passed and to see bad laws repealed. I also thank the author of the House of Lords' Library’s Explanatory Notes on the Bill, which many of us have found extraordinarily helpful.

Libel law is a complex subject. In my relative youth, more than 44 years ago, I was a lawyer, and even then I knew little about libel law, so I will not speak as a lawyer. In recent years, my main interest has been the promotion of the evidence-based approach in the public discussion of scientific issues and public policy-making. I declare an interest as chair of the charity Sense About Science, which was founded for this purpose and which has played a prominent part in the campaign to change the libel laws. I make it clear that the other prime movers were PEN and the Index on Censorship. It was not a campaign by newspaper magnates to enable them to continue their irresponsible attacks on individuals, which are a disgrace to our society and from which many have suffered, including the noble Lord, Lord Triesman.

I will concentrate on the effect of the law on scientific and medical publishing. I will start with examples and then draw general conclusions. Fiona Godlee, the editor in chief of the British Medical Journal, is a powerful witness for reform of the law. She has complained that the British Medical Journal has had to turn down important papers on legal advice. She states:

“One of our specialist journals would have published a series of case reports illustrating clinical signs suggestive of child abuse, but had to reject it on legal advice. The information was clinically important and should have been available to clinicians in the UK”.

She also cited the case of tobacco control, to which the noble Baroness, Lady D’Souza, also referred.

Professor Holm, editor of the Journal of Medical Ethics, has spoken about the unrealistic demands on time, manpower and finance from ensuring that articles are not liable to libel actions. He states:

“The very nature of the JME means that we deal with papers that are critical and that take a certain position about something or someone”.

He went on to explain that they got three or four cases a year where a laywer thought there could be a case for libel, then stating:

“We are part-owned by a research and educational charity, the Institute of Medical Ethics—we can't bankrupt them! We have to be careful and avoid libel action”.

He gave an example of a paper that he wanted to publish which alleged that the University of Toronto had suppressed research showing that a drug used to treat people with excess iron in their blood and liver was not as effective as had been claimed. After protests from the university, the journal’s lawyer suggested changes in the paper that the author refused to accept, so it could not publish the paper.

Another case concerned Professor Lacerda and the lie detector. Professor Lacerda, who is a professor of linguistics at Stockholm University, co-authored a review article on lie detectors that was published in the International Journal of Speech, Language and the Law in 2007. The article concluded that there was no scientific evidence to show that a particular lie detection technology actually worked. However, an Israeli manufacturer of lie detectors demanded that the article be removed. The journal complied. The journal’s editor was angry and upset that he was forced to remove a peer-reviewed paper from the public record, but he could not put the livelihoods of the journal’s staff at risk. He said:

“The company has not put forward any counter arguments, but has chosen to simply try to silence us”.

These are only a few of numerous examples that can be cited, but they have profound consequences. In some respects, the worst effects are the hidden ones that do not emerge into the public domain. The noble Baroness, Lady Bonham-Carter, gave some important examples of those. A huge amount of time is spent on libel reading and discussion with editors and lawyers about changes that might have to be made. The costs and time involved may be higher than a journal can afford. Important articles and papers may be delayed for years by the threat of legal action. Legal negotiations are often given as much weight in deciding whether to publish as peer review. Editors do not pursue stories that are scientifically important because they know that lawyers will not let them be published, while editorials are often inhibited from commenting freely on contentious issues by the threat of legal action. An article that has been shown to have been plagiarised or even fraudulent may not be withdrawn because withdrawal may lead to a libel suit for damage to the author’s reputation. To summarise, what choice does an editor have when forced to choose between an article that may lead to a ruinous libel suit and one that is safe but less contentious?

Finally, all the aces are in the hands of wealthy plaintiffs. Rich organisations know that they do not have to respond to a critical article or publication by argument and evidence; they can sue the author or the publisher and force them to withdraw and apologise. Numerous authors and editors have testified that they have had no choice but apology and withdrawal. Very few have fought and won. Ben Goldacre and the Guardian did recently. Simon Singh’s case was another. What is more, in that case, the plaintiff sued him personally rather than the newspaper. His heroic stand on principle prevailed in the end rather against the odds, as it seemed at first, thanks to an historic judgment by three of our leading judges. Even so, he paid a heavy financial price.

It cannot reasonably be contested that the law as it stands inhibits free scientific publication and debate. We should not exaggerate. Fortunately, we are still miles away from the kind of suppression of free criticism that marked the Lysenko era in the Soviet Union or Hitler’s announcement of the end of reason and the Nazis’ denunciation of orthodox science as Jewish science, which had a devastating effect on science in a country that, before the Nazis, had won more Nobel prizes per head than any other nation. Generally, science and free speech flourish in our democracy. However, the growing inhibition on some forms of free scientific expression generally, which has been demonstrated by the Libel Reform Campaign, is a step in the wrong direction along a very dangerous road.