Defamation Bill [HL]

Baroness D'Souza Excerpts

Friday 9th July 2010 Lords Chamber

[Baroness D'Souza]

My Lords, I add my congratulations to the noble Baroness, Lady Hayter, on an inspiring comaiden speech.

What needs to be said on this wide-reaching and vital aspect of freedom of expression has already been said by the noble Lord, Lord Lester of Herne Hill, and other noble Lords. They all spoke with great eloquence. I confess that I have nothing much more to add. However, I add my support to this Bill and will take up one or two points. Before doing so, I shall state my position. Long experience of defending free speech as the cornerstone of democracy has led me to the conclusion that there should in all cases everywhere be a presumption of transparency, free speech and access to information, unless and until a clear infringement of another fundamental individual right can be demonstrated. In the case of defamation, as we have learnt today, that would mean that reputation has been wilfully damaged or financial loss suffered, unless one is dealing with matters of serious public interest.

A number of landmark judgments by the European Court of Human Rights, admittedly based largely on criminal defamation, nevertheless helped to establish a set of principles. They include: the pre-eminent role of the media in informing public opinion on matters of public interest and in acting as the public watchdog, which requires that the media be accorded particular latitude; that a defendant must not be required to prove the truth of value judgments, statements reflecting public opinion or allegations based on rumours or the statements of others; and that private individuals have a much narrower limit of acceptable criticism than governmental bodies or political figures. The underlying rationale is that the public interest in the widest sense cannot be supported in the absence of these freedoms.

Defamation laws as they presently exist undoubtedly have a chilling effect on freedom of expression, as has been said by almost everyone. The enormous costs involved alone cause the less wealthy among us to agree to the suppression of the truth. Even the costs of finding out whether a given statement or article might be defamatory can be prohibitively expensive.

The incidence of failure to report on matters clearly in the public interest because legal bargaining intervenes is large, as is the number of cases settled pre-trial, and inevitably there will be an even larger number that never come to light. I am thinking of reporting of medical and pharmaceutical information, environmental threats, information on the fitness to lead of political and other leaders, revelations on corruption and the like. One of the longest running cases in legal history concerned criticism of a technique of dental anaesthesia to which some patients reacted adversely. Some of them even died. A dentist associated with this method managed to convince the courts that the article was defamatory of him. The case ran for over three years and cost the medical journal involved millions of pounds at current rates.

It appears that judgments now tend to favour free speech, but the costs of getting to the stage of a court case, no matter that the defendant is ultimately vindicated, are huge and exert a chilling effect. Moreover, the width of potential liability is very great and involves everyone who has had a part in a supposedly defamatory publication. It can include the publisher, the author and even the printers. How many editors of scientific journals are there who have to ponder every word of a given critique before publishing? A small specialist journal, which will be well known to all the lawyers in this House, Tobacco Control, was almost put out of business by libel laws without any action being taken against it. The insurers of the journal, which was inevitably critical of tobacco companies, decided that the risk of being sued was too great as a possible £2 million action was at stake. Eventually the journal went ahead on the basis that every article was read by a libel lawyer. The conditions were strict: even material ualready published in the US was disallowed since that is not considered to be a defence.

Current laws in the UK are unsatisfactory on several counts and do not reflect the explosion in electronic communication such as the internet. Furthermore, the law needs to deal with the multiple publication rule. One of the most egregious aspects of our law is that it fails to protect the whistleblower. The noble and learned Lord, Lord Hoffmann, has expressed concerns about libel tourism and the potential Americanisation of UK defamation laws. British libel law is undoubtedly antithetical to the protections afforded the press by the US constitution, but this Bill is not about libel tourism and seeks only to protect the free expression of those within the borders of the UK.

However, as in everything, there is a balance to be struck. What is needed above all is clarification of the current laws and their application to allow individuals and corporations to protect themselves from malicious attacks, and to enable fair comment and the absence of enforced self-censorship. The Bill goes some way in achieving this and is a welcome addition to the armoury required to protect the vital right to freedom of expression.