Defamation Bill

Lord Triesman Excerpts

Wednesday 19th December 2012 Grand Committee

[Lord Triesman]

My Lords, I join noble Lords who have thanked the noble Lord, Lord McNally, for the way in which he has approached this and the kind of solution that may now be very close to fulfilment. To be candid, it is not a position that I thought likely to be one of the outcomes, but I can see a great deal of the sense of it. I can also see that it fulfils part of his aim that there should be greater clarity for people who need to use this law; that there be a better, more effective law; and that we should not end this process with the same lack of reputation in this general field from which we have perhaps suffered in the past.

I will draw several arguments about the heart of the Bill together in a moment. I understand the strength of the proposition that if judges are to decide, in the ways that they are capable of deciding, that would be better than providing an extensive checklist.

In his opening statement, the noble Lord, Lord McNally, said that he believed that the courts and the judges would have a mind to these kinds of things as they formulated their views. That is fine up to a point. The point where I think it needs a little more testing is that it would be helpful if, when the law is on the statute book, there was a sense both of what Parliament believed were critical issues and of what the Government had said in their responses were critical issues. This is not just a matter of what the legal opinions are; views are now widespread among the public of the United Kingdom about what it is or is not legitimate to do.

Let me turn directly to Amendment 14. A short while ago, the noble Lord, Lord Phillips of Sudbury, said that there may be a clearer enunciation of at least one part of it. I do not think that he was talking specifically about his amendment; I think that he was making a general proposition about clearer enunciation. Indeed, I do not know whether his amendment is now a matter of fact or opinion, as it may or may not have been withdrawn.

Let me look at the two words “public interest”. When somebody uses those words to me, I understand them to mean that there is an entitlement by the public to learn of matters that are of the public interest in a broad sense—knowledge of policy practice and the debates on all those matters, what might be wrongdoing, malpractice or malfeasance, many aspects of social and cultural life, scientific knowledge and other scholarly knowledge. There is probably a long list and my point is not to produce a checklist. That is what I broadly understand “public interest” to mean.

What has also become entirely clear over many years is that many of the editors of newspapers—and this was also clear in the evidence that they provided to Lord Justice Leveson—do not think that that is the whole of what is meant by “public interest”. They have a fundamentally different view of what public interest is. I am not thinking of the things that Lord Justice Leveson and others have said were criminal intrusions into the privacy of individuals. Those are covered by criminal law, which is more or less adequate, although that, too, is probably a matter of debate.

My point is that common practices in parts of the press and parts of the culture of the press mean that there is a view of what is in the public interest and that it means whatever those editors believe might interest the public, whatever it is. Consequently, they can libellously or otherwise intrude into aspects of private life—as I said, I am not going into the criminality of the means by which they obtain the information—so that, for example, if they have discovered by one route or another that someone has a medical condition that they are discussing with their mum, that becomes a matter of public interest in the sense that the public in a prurient way may be interested and that it will unquestionably sell more copies of a newspaper if it is in that newspaper. That is entirely unreasonable. In some cases, of course, that may just be a matter of intrusion of privacy, but it is clear that on occasions it could have a defamatory effect on the person who is being written about.

I am not in any sense content to believe that the simple words “public interest” will convey to Paul Dacre that he is not, as he seems to believe, the ultimate arbiter of anything and everything that we should consider to be in the public domain. That should not be the last word on this and we should not allow it to be. That applies, too, to the former News of the World journalists. I say to the noble Viscount, Lord Colville—

[Lord Lester of Herne Hill]

I wonder whether it is any comfort to the noble Lord, Lord Triesman, to know that the courts have made it quite clear that there is a significant difference between what is of interest to the public and what is in the public interest. The two are not the same.

[Lord Triesman]

My Lords, I am very grateful for the intervention because it will cut out my saying a great deal more. However, it would be helpful, in the same spirit as the noble Lord, Lord Phillips, intended when he said greater enunciation might be sensible, for the legislation that we are looking at to somehow indicate what that distinction is, so that somebody who does not study law as a matter of practice can pick it up, read it and understand exactly what is meant by it. I am very grateful for the intervention because that is precisely the point that I wanted to make.

Finally, I will say something about the list that is about to be removed. It goes back to the point that I was trying to make about Parliament and the Government giving at least some indication of the things that might concern them. I was intrigued by—and at one stage convinced of the importance of having in subsections (2)(d) and (2)(e)—the words that appear there. Even if the words do not finally appear in the Bill, it should be understood, under subsection (2)(e), that when somebody publishes information, the reliability of the information is capable of being subjected to some real test. I do not know whether that is another point that the argument of the noble Lord, Lord Lester, may have in part answered. However, what seems to be true is that there are often few demonstrations of the sanity or motives of those who have provided information that simply gets reproduced and, on occasions, is not withdrawn. I say to my noble friend Lady Bakewell and to the noble Viscount, Lord Colville, that not every journalist uses the standards that I am pleased to acknowledge that they plainly do. Not every journalist does that by a long chalk.

In those cases, knowing about the credibility of the information seems important. It is something that one would want Parliament to have expressed, even if it does not appear as a list in the Bill. Equally, in subsection (2)(f), although I am conscious that bad experiences should not be promoted into the making of law, it seems important that people about whom things are to be written should have at least some knowledge of them or some opportunity to say something about them before the event happens. If those were the ways in which interpretation of the law by judges were achieved, that would amount to great progress here. I conclude by stating that if judges do that, and if lawyers put arguments to the judges, my anxiety—which I guess I will just have to live with—is that we will not be talking about a cottage industry but rather a major multinational for the time being.

[Lord Lloyd of Berwick]

To correct the record, the noble Lord, Lord Lester, referred to Sir Brian Neill and the huge contribution that he made to this part of the law, but he did say that he was in hospital. I am happy to tell the Committee that he is now back home and will no doubt be following this debate with the greatest interest, either in Hansard or possibly—he is sufficiently technically minded—on television.

--- Later in debate ---

[Lord Allan of Hallam]

I shall aim to do so. I turn specifically to the amendments. Let me work through those. There is a lot of merit in Amendment 23A, on the electronic platform. I am interested in the Government's response about what they perceive the legal definition of a website to include. It is certainly the case, and the expectation in the technology community, that most content will be accessed within as short a space as two to three years, primarily through untethered mobile devices and applications—specific applications tied to a particular service. The traditional notion of going to a web browser and typing in a web address will not necessarily be the dominant form of accessing information. It is a fact that most information and contact will be delivered in a different and more sophisticated way, and it is important to ask the question now as to whether the definition of website that the Government intend covers this wide range of information services or is intended to cover stuff delivered by the http protocol; the traditional web browser.

In the context of Amendment 25A and the notice to be posted alongside the publication, I have concerns about how realistic that is. I disagree with the noble Lord, Lord Lucas, about how straightforward that might be. Given the different formats out there and the wide range and type of contact that may be posted, to be able to guarantee that a notice of complaint is posted alongside the original content may prove to be much more technically complex than has been imagined. I wonder about the value of doing that given how people access content through small-screen devices and the way in which the content scrolls and moves rapidly these days. The idea of a notice next to a piece of content is again looking back to the newspaper model, where you have something much more static and in a much more defined format. I have questions about the workability of the notice in Amendment 25A.

The e-mail contact in Amendment 25B goes back to the website versus platform debate. It may come as a surprise to the Committee but e-mail is a dying communications mechanism. Young people do not use e-mail. E-mail is for work and if you want to communicate with people whom you know and like and with organisations, you use different forms of communication—instant messaging-type applications and a whole range of new communications services. In the context of how website operators might receive complaints, e-mail is probably for a large operator one of the least efficient ways of doing this. It is relatively unstructured and people will send anything to an e-mail address.

A much better approach, if we want to include something in the Bill, is to say that there must be an efficient contact mechanism and then allow the website operators to determine the most efficient contact mechanism for them. In the case of a lot of the large providers, their preference, rather than e-mail, would be for people to use a contact form. A contact form allows you to give guidance to the person. You can have a very simple flow. Somebody types a defamation on a website. The website says, “Hey. If you want to report defamation go here”, and they are given a screen that takes them through all the information that they need to provide in careful detail and then offers them a form that they can send in. The great advantage of that method is that the form then sends the information to the legal team to do an assessment, with all the relevant contact information. A smaller operator may choose to use e-mail because they have nothing else and they do not have the technology, but we should not specify the technology used for contact in the Bill. We should leave that up to the operators.

Those are my comments on this group of amendments. I know that we will come back to the larger issues of principle and the balance of power between the complainant and the website operator in the next group.

[Lord Triesman]

My Lords, I will try to do this as briefly as possible. I support my noble friend Lady Hayter’s amendments and also—I hope it does him no harm—the amendment and comment of the noble Lord, Lord Phillips of Sudbury. I was responsible for intellectual property at the relatively short lived Department for Innovation, Universities and Skills. One of the things that I found completely astounding, almost every day, was that when we tried to deal with widespread theft of other people's intellectual property, and the propensity of some people to use the internet for serious criminal purposes involving children or whatever, one argument always and consistently was put to us. “We are only a conduit. We are no different from the Post Office. It went through in a sealed envelope in the mail. Who would know? Why on earth should we take any responsibility?”.

What I observed, as noble Lords may expect, from this sequence of events was that it was perfectly okay for people who are creating music, film, literature or many other products that are vital to the creative output of the United Kingdom—and very successful in the interests of the economy of the United Kingdom. But their interests were as nothing when compared with this apparent complete barrier to dealing with anything that happened to be done through a web platform or internet company. They had no responsibility in any circumstances. I have never bought that argument, which is why I agree so strongly with the noble Lord, Lord Phillips, on the matter. It may be very complex and it may be that the technology keeps advancing, but the reality is that, unless there are some restraints on what people can do with this form of technology, the argument inevitably goes to the point where it is possible to protect individuals, even with inequality of arms, from some forms of publication but they are completely and inevitably lost when it comes to electronic publication. That is a very dangerous and damaging concept for our society.

I know the importance of the businesses and the value of the work conducted by the noble Lord, Lord Lucas, and others, but I respectfully say that the idea that Twitter or anybody else is not making money out of it is completely bizarre. It is not, of course, making money in the sense that people who post anything on Twitter are paying for it; at least in general they are not. However, advertising revenues are created around these new media platforms, including, pre-eminently, Facebook. The ability of companies to be able to track people’s interests and identify how to approach them with commercial products—I have seen this in sports websites that are associated with Facebook, for example—is an amazing way of generating vast amounts of money. It is no surprise that the companies have become worth so much money in their quoted positions as well.

[The Earl of Erroll]

The noble Lord, Lord Triesman, had Second Reading to say all this. I have some points on the amendments.

[Lord Triesman]

My Lords, I do not accept that supporting the amendment in the name of the noble Lord, Lord Phillips, is a Second Reading proposition. It may be very difficult, in a number of contexts, to achieve what the noble Lord, Lord Phillips, is suggesting, but it is well worth doing it. A comparison can be made with somebody at a football match. I heard over very many years that when people made loud, offensive, grotesque, racist comments in a football crowd you could do nothing because of the great mass of faces. Then CCTV came along and we were able to do something about it—and it was quite right that we did, though apparently not yet fully successfully. There will be technical means—there probably already are. That is why the amendment should be supported.

[Lord Ahmad of Wimbledon]

My Lords, I am sure that the Committee will agree that, in light of the other contributions that remain to be made and of the time, further debate on Amendment 23A should be adjourned. Perhaps it would be a convenient moment to suggest that we adjourn this debate until Tuesday 15 January at 3.30 pm.