Defamation Bill

Baroness Hayter of Kentish Town Excerpts

Tuesday 5th February 2013 Lords Chamber

Moved by

[Baroness Hayter of Kentish Town]

11: Clause 5, page 3, line 19, at end insert—
“(3A) Where a complaint is received by an operator under subsection (3), the operator must publish on their website a notice of complaint alongside the relevant statement and, if the operator fails to do so within seven days of notice of the complaint, the operator will only be entitled to rely on the standard defences available to a primary publisher, if sued for defamation.”

[Baroness Hayter of Kentish Town]

My Lords, this amendment simply asks that where a properly constituted complaint is received, the website operator must post a notice alongside the allegedly defamatory material within seven days, signifying that it is being challenged. Should the website operator fail to do so, he or she would forfeit their particular defence under this clause, although they could still rely on the standard defences available to the primary publisher.

The amendment arises from a recommendation of the Joint Committee on the draft Bill, in response to which the Government seemed to cite only “issues of practicality”. In Committee, the Minister said that internet organisations,

“identified significant practical and technical difficulties with the proposal relating to the posting of a notice of complaint alongside defamatory material”.

He did, however, have the good grace to add that noble Lords may be saying,

“‘Well, they would say that’”.—[Official Report, 15/1/13; col. GC192.],

although he did not quite add, “wouldn’t they?”. However, when we met with Yahoo, it did not see a problem with our proposal. If it is so easy for an operator to post a comment, it should be no more difficult for it to add a rider simply stating that it is being challenged as defamatory by the person concerned.

Within this group we very much welcome government Amendment 17, which the Minister tabled and will no doubt shortly move. The aim of Clause 5 is simply to ensure that a claimant can find out from the web operator the name and contact details of the person who posted the comment so that they can sort it out between themselves. Provided that they do this, the operator has the defence that the author is the person to be sued. The exception for malice would cover where the operator in some way connived or encouraged the trouncing of someone’s reputation. I take this opportunity to congratulate the noble Lord, Lord Phillips, on his work in Committee, which I think led to this provision.

For the purposes of time, we did not speak to the amendment just before the dinner break but we were similarly concerned that that might detract from the centrality of this clause, which is to allow the operator to stand back and let the two primary parties resolve the dispute between them. Therefore, although we very much welcomed parts of that amendment, which incorporated the idea of a code, we hope that the operator will wash their hands of the matter unless and until the court finds the defamation proved, when the operator will have to take down the defamation or, assuming that the Government accept our amendment, they will have to put up a note reflecting the fact that there has been a challenge.

I hope very much that the Minister will put the excuse of practicalities to one side and accept Amendment 11. Certainly, we have received no lobbying from any operator arguing against it. It would contribute to dealing with these matters openly, as well as speedily. I beg to move.

[Lord Allan of Hallam]

My Lords, in speaking to Amendment 11, I declare an interest in that my day job is working for Facebook—a company that operates a website.

I think that there are some challenges around this proposal. In Grand Committee, in response to amendments proposed by the noble Baroness and her colleagues, we discussed the variety of web services and websites that exist today, and that is where I think there may be a challenge. There are indeed a number of websites that would be amenable to the posting of a notice and where that would be quite straightforward. However, when we consider the vast scope of speech that may exist across the internet, it is clear that we are dealing with a wide variety of services.

The intention behind Clause 5—and it is one that I support—is to make sure that we maximise the opportunities for people to speak freely. There may be cases where we need to interfere but we do not want to overly restrict the opportunities to speak freely and, as we discussed in the previous debate, the intention behind the clause is to ensure that a defence is widely available to such services.

My concern is that, while Amendment 11 would work perfectly well for a number of web services—I suspect the larger, more mature and more sophisticated could implement a system of posting notices in a relatively straightforward manner—there is a whole host of web services of varying shapes and sizes for which this would present a barrier. That would effectively mean that those services would lose the defence—a defence which I think we agreed in a previous debate is important to sustain the notion of free speech.

I understand the noble Baroness’s intention behind the amendment and I imagine that, as a matter of good practice, operators should post such notices where it is reasonable for them to do so. Indeed, Wikipedia has implemented a good practice system so that when content is contested, people are able to discuss it. That kind of good practice is reasonable but I think that restricting the scope of the defence only to services that are able to do that goes further than is sensible if we are to maintain a broad ecosystem of services in which a citizen of the United Kingdom can speak freely without excessive interference from people bringing complaints.

The only other point that I would note from an operator perspective is that every system that is put in place is abused. My noble friend Lord Phillips of Sudbury has talked about the interests of the “little man” or individual who wishes to make a complaint of defamation. That is absolutely right. However, the experience of web service operators is that some people will try to use any system that you put in place for their own purposes, and I can immediately see the scope for that when I look at this amendment. If you can guarantee that a notice will be published on a website simply by filing a complaint, I can see huge scope for it to be used by those who wish to be aggressive towards people who post content on the internet that they do not like, irrespective of whether there is any kind of substantive defamation claim. Given that the individual filing the complaint faces no penalty in this regime, a complaint can be found groundless but there will be no comeback on the individual who filed it. It would effectively create an avenue for that person to have their content posted alongside that which they do not like. I can certainly imagine that there would be significant instances when it was used in that manner. For those reasons, Amendment 11 would not be helpful to fulfilling the intention of Clause 5.

--- Later in debate ---

[Lord Ahmad of Wimbledon]

My Lords, again I thank all noble Lords who took part in the debate. I will turn first to government Amendment 17 in the name of my noble friend Lord McNally. I shall speak also to Amendment 11 in this group.

Amendment 17 provides for the defence under Clause 5 to be defeated if the claimant shows that the website operator has acted with malice in relation to the posting of the statement concerned. We tabled this amendment in response to the concern raised in Committee by my noble friend Lord Phillips of Sudbury that situations might arise in which a website operator acts maliciously, for example by inciting the poster to make the posting or otherwise colluding with him. While we consider that these situations are unlikely to be common, on reflection we agreed that in circumstances where a website operator acts maliciously it is right that the defence should be defeated. I thank my noble friend for bringing this issue to the fore.

Amendment 11 was also tabled in Committee. It would require a website operator who wished to rely on the Clause 5 defence to publish a notice of complaint alongside the material complained of within seven days of receipt of the complaint. The amendment also provides that if the website operator fails to post a notice within the set period, they will forfeit this defence and will be able to rely solely on the standard defences available to a primary publisher.

The basis for this amendment is a recommendation of the Joint Committee on the Bill that website operators should attach notices to online material when complaints are received. The Government’s position on this proposal was first set out in our response to the Joint Committee’s report. We repeated our position during the passage of the Bill in this House and the other place. The issue is one of practicality. Ministry of Justice officials received representations from internet organisations following publication of the Joint Committee’s report, highlighting the practical and technical difficulties with the proposal relating to the posting of a notice of complaint alongside defamatory material.

I will go through some obvious concerns that were raised, which may underline the practical issues. First, the point was raised that complained-about content might be embedded in a number of different sites, making it unclear who should be responsible for attaching the notice, where it should be placed and how it could be transferred across to other sites on which the material might subsequently appear. Again, as I said in Committee, I fully appreciate that the argument presents itself as one that it is in the interests of internet organisations.

In Committee we heard various arguments on both sides. My noble friend Lord Allan of Hallam highlighted practical issues from his own experience in the field. The noble Earl, Lord Erroll, talked about his daughter’s experience as a graphic designer for websites, and of the complexities of an operator attaching additional content without going back to the original programmer. I also acknowledge fully that my noble friend Lord Lucas expressed the view that it was far from impossible for website operators to attach such notices.

However, I will repeat on the Floor of the House what I said in Committee. The Government’s concerns around the practicality of this proposal have been clear from the publication of our response to the Joint Committee report almost a year ago. In that time nobody has presented to us any persuasive evidence to suggest that those concerns are not warranted.

On the issues raised by my noble friends Lord Allan and Lord Phillips about regulation, perhaps I may come back to them in writing to clarify the position. I have made a note of the suggestions that have been made.

I have listened, as ever, to all of the noble Baroness’s contributions and I am sure that she will say that our position has not changed since Committee stage, which I accept. However, we are where we are on this proposal. I repeat that no one has come to us to present a counterargument. Certainly if they have come forward, their arguments have not been of a persuasive nature. For those reasons, the Government cannot support Amendment 11 and I hope that the noble Baroness will see fit to withdraw it.

[Baroness Hayter of Kentish Town]

I thank all noble Lords who have spoken and, obviously, particularly the noble Lord, Lord Phillips, for his support and the interesting suggestion about it being in regulations. I congratulate the Government on their consistency. If that is all they have to offer, they may wish to look further.

The amendment relates only to subsection (3). In a situation where it was not possible for the claimant to identify the person who posted the statement, the claimant has given the operator a notice of complaint and the operator failed to respond to that in accordance with regulations, we ask that a notice is posted—it could be just a little red spot—that says “challenged by”.

I am concerned that the Government have met with the internet operators and, with no one else coming forward—we did not know that the meetings were taking place and were not asked to produce extra information—that they have taken the internet operators’ view on this as the one which will guide their hands.

[Lord Hunt of Chesterton]

In today’s International Herald Tribune there was a long editorial about the great superiority of the European approach to dealing with privacy on the internet compared with how the American Government were dealing with their internet operators. I support the noble Baroness, Lady Hayter. Just talking to internet operators suggests that you are not agreeing with even the opinions of the New York Times.

[Baroness Hayter of Kentish Town]

I am always happy to have the New York Times on my side. Clearly, however, the Government value internet operators and particularly value being consistent. On that basis, I fear that I must withdraw the amendment this evening.

Amendment 11 withdrawn.

--- Later in debate ---

[Lord Phillips of Sudbury]

My Lords, I am grateful for the amendment.

[Baroness Hayter of Kentish Town]

I cannot be briefer than that, my Lords. We also welcome the amendment. It is small and sensible, and it reflects the Government’s willingness to listen to the House. In case I do not have the time to say that on another occasion on this Bill, I would like to say that there has been a lot of listening. More should be expected of auditors and their records should be open to scrutiny, so anything which allows wider discussions of their shortcomings can only be a good thing.

Amendment 19 agreed.