Defamation Bill

Baroness Bakewell Excerpts

Tuesday 5th February 2013 Lords Chamber

[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.

[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.