Defamation Bill [HL]

Baroness Buscombe Excerpts

Friday 9th July 2010 Lords Chamber

[Baroness Buscombe]

My Lords, I join other noble Lords in congratulating the noble Baroness, Lady Hayter of Kentish Town, and the noble Lord, Lord Willis of Knaresborough, on their excellent maiden speeches. I must declare an interest as chairman of the Press Complaints Commission. In that capacity, I welcome this Bill as an important and, frankly, overdue step towards reform of our libel laws. I congratulate the noble Lord, Lord Lester, on bringing it forward.

I agree with much of what has been said in this debate, but I disagree with some of it. In my contribution, I shall focus almost entirely on one small but important aspect of the Bill: the proposal to introduce in Clause 1(4)(g) a defence of responsible publication on matters of public interest which would include consideration of the extent to which the defendant has complied with any relevant code of conduct, such as the Editors' Code of Practice.

My purpose is therefore both to support the principle of applying adherence to a code of conduct as a valid defence and further to explain to your Lordships why the PCC, as an independent regulator that enforces the Editors' Code of Practice for the newspaper and magazine industry, is well placed to work in synergy with the law. Rulings of the PCC have already been recognised by the courts, and it is right that the law should recognise the validity of the PCC system.

The Explanatory Notes attached to the Bill emphasise the tortuous process for delivering reform and the length of time that libel law reform has taken and, indeed, is taking. This contrasts sharply with the flexibility of the self-regulatory system. The PCC system allows for continuous evolution, flexibility and adaptability. We react speedily to fact and circumstance. In addition, we can adapt to cultural change, influencing and reflecting in our decisions what is, and what is not, acceptable in our society.

Lawyers are often too rule-bound and the law is too narrow when justice requires the exercise of discretion. The PCC exercises discretion in a bespoke way. Indeed, it complements a key objective of the Bill in that it strives to strike a fair balance between private reputation and freedom of expression. Self-regulation performs a critical role in filling the gap left by the law and, in the case of the PCC, fulfils an important objective of the Bill, which is to ensure the speedy resolution of disputes. Indeed, I support my noble friend Lord Hunt of Wirral’s preference for alternate dispute resolution—I must declare an interest as a founder member of the Foundation for International and Commercial Arbitration and Alternative Dispute Resolution. Much of our work is focused on mediation. The PCC is easily accessible and free to complainants to use. There is the rub for lawyers. They often prefer to say that the PCC is not a proper place for redress because as soon as complainants come to us, our services are free and the lawyer is not paid.

The PCC has authority. We demand prominence of apologies and levels of standards. We also work to prevent, indeed pre-empt, harm and to encourage editors to think before possibly breaching the code. We do this through pre-publication advice, by sending desist notices and by engaging with editors where a potential claimant fears something will be printed that they believe would breach the code. For example, today, the PCC director is in Cumbria talking to those affected by the recent shootings and the subsequent press coverage. We were first in touch with the Cumbrian police offering our services to victims and their families even before the tragic events were over and the gunman was still alive. The noble Lord, Lord Ramsbotham, used the word “equity”. That is what we are focused on.

PCC commissioners debate fully and with rigour the often difficult balance—as noble Lords have said today, it is a difficult balance—between freedom of expression and the rights of individuals. Commissioners often change their minds as a result of open debate. The system demands a degree of trust and integrity from all those who buy into it. It works because editors are held ultimately responsible.

I very much welcome the recognition in this Bill of the high professional standards that adherence to the Editors’ Code of Practice brings. By tying self-regulation into legal standards you enhance both. It is right that courts should recognise the validity of the PCC system. This Bill will benefit self-regulation and the law. We are painfully aware of how slow the law as prescribed by statute is to recognise the speed with which technology changes our behaviour and creates potential for harm. It is incredible to think that the Communications Act 2003 does not even mention the internet. In 2010, online communications is where much of the harm in this area of the law is done.

Statutory recognition of self regulation should encourage online media to sign up to the benefits of abiding by a self-regulatory system. For example, last year, the PCC’s remit was extended to those news organisations that publish only on the internet. In future it must be likely that publishers will see the value of something akin to a kitemark to show the standards to which they adhere by participating in the self-regulatory system.

In terms of compliance, the PCC system has to be the preferred route, given that we can, and we do, move so much faster than the courts. We regularly take complaints about online material and have the offending articles removed in a matter of minutes. This places a check on continued dissemination. With regard to multiple publications, the PCC’s experience will assist the law because already PCC rulings do not affect only newspaper articles but also internet versions, archives and even Google search results. It is the case that many of the circumstances prescribed for responsible publication are already considered by the editors’ code, such as checking sources and notifying an individual ahead of publication. The PCC also has a good track record in identifying differences between fact, conjecture and opinion, and establishing case law.

In making the positive case for applying compliance with the editors’ code a defence under Clause 1, it is important that I add that the PCC is not complacent and that it recognises a continuing challenge to reassure public confidence and trust in the media that they consume. Just this week an independent governance review of the PCC has been published. This gives us the impetus further to refine and renew the structures and processes of the PCC and ensure that we perform as effectively as possible.

In conclusion, there is much to commend in this Bill. In concurring with other noble Lords, I welcome this important beginning of a process and, yes, in the words of the noble and learned Lord, Lord Woolf, it must be a constructive process to reform the law of defamation.