Defamation Bill

Debate between Viscount Colville of Culross and Lord Lester of Herne Hill

Tuesday 5th February 2013 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, the Government are to be commended for having dropped the checklist in Clause 4 and for introducing instead the generic test, which I think was very much the test that Sir Brian Neill, as an adviser, recommended. There are three separate issues here. I am not sympathetic to widening the reasonable test to one which “could be” rather than “is”. I think that the objective test of reasonableness is right. I am sympathetic to substituting the word “decided” for “believed”. It is about whether what was decided was reasonable and, therefore, it seems to me that decided is a better word. It is not just I who say that: as has been said, it also has been said by leading libel counsel with experience.

I very much hope to persuade the Government to drop altogether Clause 4(2) on rapportage. Rapportage was introduced in my Private Member’s Bill originally—then, with good reason. But now that we have a good public interest test in Clause 4(1), I do not understand why we need the complexity of subsection (2), which I regard as difficult to understand or apply and unnecessary. Reading Clause 4(2) and asking oneself as a lawyer or a human being what it means makes my point. Clause 4(2) states:

“If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party, the court must in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it”.

I think that I understand what is being said but I do not understand why it any longer needs to be in the Bill.

Rapportage, or reportage, covers cases in which the very fact that certain allegations are being made, or that a certain controversy exists, will constitute a matter of public interest. It is in the public interest to report what is being said, irrespective of whether it is true. In such cases, the defendant may be relieved of the normal obligation to seek appropriate verification of allegations before publishing them because the newspaper is a mere reporter. It is not adopting a defamatory position. In light of the amended Clause 4, there is no longer any need to make specific provision for rapportage because the elements of this subset of Reynolds privilege is covered by the general test of whether the statement published was on or part of a statement on a matter of public interest and the defendant reasonably believed that the publication was in the public interest.

Clause 4(2) as drafted is confusing and opaque. It has the potential to cause further confusion in the light of the redrafting of the rest of the clause. Clause 4(2) states that the court must,

“disregard any omission of the defendant to take steps to verify the truth of the imputation”.

The reference to taking “steps to verify” is there because in the checklist in the previous version, one factor was,

“whether the defendant took any other steps to verify the truth of the imputation”.

However, as Clause 4(2)(g) has now gone from the Bill, there is no need to provide that the court should disregard it. To refer to taking “steps to verify” in subsection (2) is confusing.

I very much hope that we can get rid of this altogether. We do not need it. The general standard in Clause 4(1) is good enough to cover rapportage as well. I do not expect the Minister to give me other than a bleak and wintry reply this evening but I would like to think that by the time we come to Third Reading, the shoots of spring may shoot out of the earth.

[Viscount Colville of Culross]

My Lords, I support Amendment 7. I welcome the Government’s amendment to Clause 4. However, if the change from “believed” to “decided” guarantees that the checklist does not return and that authors will not be exposed to long and expensive cases in libel courts, I as a journalist think that that must be a good thing and I support it.

Defamation Bill

Debate between Viscount Colville of Culross and Lord Lester of Herne Hill

Wednesday 19th December 2012 Grand Committee

[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.

[Viscount Colville of Culross]

I declare an interest as a journalist, producer and director at the BBC. I support Amendments 14, 16 and 21. In my Second Reading speech, I expressed concern about the chilling effects on free speech through the use of all 10 factors in the Reynolds defence as a checklist by lawyers trying to affect investigations both prior to publication and in destroying the public interest defence statement once something has been published.

In the letter sent to all Peers on 10 December, the Minister said that he was honouring his commitment given at the conclusion of Second Reading to look again at Clause 4. In the intervening period he has worked with the noble Lord, Lord Lester, and other distinguished libel lawyers to formulate a new wording for the clause. The wording they came up with to amend Clause 4 is very satisfactory and addresses my concerns.

Any amendment must not be a charter for reckless statements that hide behind the shield of a public interest defence. Amendment 14 contains the crucial words, “the defendant reasonably believed”, which replace, “acted responsibly”. Amendment 16 would drop the list of factors altogether. Some supporters of free speech fear that the words “reasonably believed” will allow the courts to work up yet another list of factors that can be used as criteria for what is reasonable. However, the amendment will allow serious journalists, NGOs and scientists who are reporting on matters that they consider to be in the public interest to use their own checklist of what is reasonable. I talked to my colleagues at the BBC who were preparing Monday’s “Panorama” programme on the Barclay brothers’ tax affairs, which had been months in preparation. They had dealt with multiple firms to get the programme on air. This would have been extremely helpful to them by bringing a very important public interest defence to a debate about tax avoidance by people who are extremely important in the affairs of our country. I am very grateful that the amendment has been brought forward.

As a journalist I do everything I can to check the veracity of claims that I intend to publish; to question at length the witnesses; to check out by any other means the truth of witnesses’ evidence; to find other supporting witnesses where possible; and to ask an individual, or an authoritative representative of an organisation being investigated, to reply. But sometimes, despite one’s best efforts, it is not possible to get a satisfactory reply from a person or an organisation being investigated. Very often that means one cannot publish. However, I am convinced that with this amendment I would be safeguarded by the Clause 4 defence when publishing a statement that would be in the public interest. I am very reassured by that.

I welcome Amendment 21, which further strengthens the hand of the author by making allowance for editorial judgment. It includes the words, “considers appropriate”, to ensure that the amendment is never used just for reckless statements. Not only will the amendment comply with the Flood decision that editorial judgment should be taken into account, but the many people who are worried by the quality of editorial judgments revealed in the report of Lord Justice Leveson will be reassured that the courts will have the final say on the nature of editorial judgments exercised in the publication of an article or statement. For far too long, responsible authors who want to publish in the public interest have been cowed by our libel laws. The people of this country have a right to be presented with matters of public interest so that they can have at least an informed choice in a debate on the subject. The amendments to Clause 4 tabled by the Government will boost democracy and accountability in this country. They are a great step forward.