Defamation Bill

Baroness O'Neill of Bengarve Excerpts

Tuesday 9th October 2012 Lords Chamber

[Baroness O'Neill of Bengarve]

My Lords, it is a great honour to speak after the noble Lord, Lord Lester of Herne Hill. We all owe him a great debt for his persistence, his focus and his depth of knowledge on these topics. I shall be briefer but I have two interests to declare. First, I am a trustee of Sense about Science, which has worked to improve the ways in which scientists and science writers communicate with the public and to reduce the risk thereby of them being taken to court for defamation if they are challenged by received views or very often by commercial interests. My second interest is perhaps proleptic: I have been nominated, but not yet confirmed, to chair the Equality and Human Rights Commission.

Defamation raises extraordinarily complex issues and the Bill not only has to deal with the deficiencies of current legislation, on which there is a considerable measure of agreement—its costs, its delays, its uncertainties and its clarities—but it has to do so, as many noble Lords have noted, in the context of huge transformations in communications technologies, about which I shall say nothing in detail. However, these changes are central to many other pieces of legislation that we have considered and shall be considering. We need to take a consistent view across different pieces of legislation. For example, I have in mind legislation that bears on copyright in the digital age and on the need to reformat material—for example, for archiving, preservation or republication—but not on material that is deemed thereby to have breached copyright or to have published a new work.

We need to take account of that in debates about the draft regulations for data protection, which, if implemented, will lead to a uniform approach to data protection across the EU. We need to bear that in mind in all legislation that bears, or purports to bear, on forms of transparency and openness and on the protection not only of rights of reputation but of rights of privacy. I believe that this is a central piece in a jigsaw of legislation that has come before us, and will come before us, which makes it all the more complex and important to get it right and to test it in a full range of ways.

It has been widely said, and it is expected, that your Lordships’ House will insert a public interest defence into the Bill to distinguish between different types of communication, with the aim of protecting those in the public interest from accusations of defamation—at least up to a point. For example, communicating scientific findings needs protection precisely because some may think that this is very unwelcome and may harm certain reputations, including, of course, commercial reputations. I believe that Karl Popper’s famous claims in The Open Society and Its Enemies are still a landmark in liberal society because of his insistence that science and the public understanding of it proceeds by conjecture and refutation. Science is not a matter of discovering and then asserting what is true, but a systematic practice of identifying claims that might be true, testing them against evidence, seeking new evidence if necessary, and discarding claims that fail the test of evidence. Scientifically impressive claims are those that survive energetic attempts at refutation, so we must allow the statement of scientific claims that might turn out to be false in order to test them.

Unless we allow the publication and promulgation of claims that may be false, science cannot proceed and communicating science to wider audiences will be severely harmed. However, I do not think this means that anything goes. While the legislation provides for protecting peer-reviewed scientific publication, which is very important, it does not yet offer ways to protect science journalism, other science writing and other journalism that seeks to investigate matters of academic substance from the risk of silencing by corporate or other interests. Given the costs—of which we have heard a certain amount—to those sued for defamation, such silencing is likely to be mainly invisible: a matter of subtle deterrence that prevents the public knowing what is not published.

Of course, we cannot demand that science writing, science journalism or other journalism on matters of fact should undergo peer-review processes. Peer review has different aims and is too slow and too costly, although I accept that the reality is that much of this writing and journalism is done by practising scientists and reflects a culture that takes those standards seriously. However, we can say something about some of the more elementary standards which science writing and other serious writing should meet if it is to be protected by any public interest defence. Even if we cannot immediately set out sufficient conditions for publication to count as a matter of public interest, we can set out some necessary conditions for it to do so.

A few years ago, as all of us remember with some nostalgia—or perhaps not—we were fairly good at distinguishing between gossip and publication. Publication could be regulated to prevent defamation if one knew who the publisher was. Defamatory gossip often did not travel far and was dealt with by local social sanctions. Gossips acquired a bad reputation and malicious gossips acquired a poisonous reputation. Malicious gossip traditionally became a matter for legal action only in unusual cases. Today that boundary is eroded. As the noble Lord, Lord Mawhinney, said, we encounter anonymised publication on a global scale and with global reach. These waters can be dangerous. Anonymised communication may cloak poison pens, those bent on revenge, those with undeclared financial interests and, of course, good old malicious gossip. Anonymity with global reach is available and makes defamatory communication much easier. A problem that we must address in passing this legislation is first to distinguish communication that is in the public interest—and so should receive protection—from quasi-communication that should not.

Let me explain quasi-communication. Part of the remedy here is quite simple; any speech or writing that is in the public interest should at least meet minimal standards to count as communication and not the lower standards required for mere dissemination or disclosure of content, whose origins, assumptions and authors can remain hidden and immune from questions about their methods and assumptions, their claims and their evasions. The public interest is indeed an interest in openness but not an interest in mere disclosure. That, so to speak, is the unintelligent form of openness. The intelligent form of openness meets more than those minimal standards; it opens matters to check and challenge by members of the public.

The communication, as I see it, that deserves protection is forthright and challengeable. It is designed to be accessible to others, is intelligible to them and provides adequate information for readers, listeners or viewers to assess the evidence and assumptions on which it was based and, if they choose, to respond. I do not see a case for protecting quasi-communication that does not meet the adequate standards for the openness to check and challenge, except in a limited number of cases, which I will come to.

A great deal of content that floats around the internet may be accessible. Some of it of course is very hard to find. Much of it is intelligible, at least to some, and often to many, audiences. However, anonymised content often is simply not assessable. By contrast, responsible journalism and other writing, including science writing and broadcasting, are both intelligible and assessable by others. There may, as I suggested, be limited exemptions, for example for highly sensitive types of investigative journalism, which we shall have to consider, but by and large anonymised communication is simply not assessable by the public. They cannot tell whether it is rumour—and if so, malicious rumour—or whether it is the smoke of a burning fire that they need to look at closely. When a query about data, evidence or measurement arises, no one can seek clarification because the information is just floating around as mere content and no one’s word.

The communication that we need therefore to protect is not mere dissemination or disclosure but genuine communication that seeks to reach its audience, aims to be intelligible to them and is assessable by them. That, I think, is the starting point for public interest defence that would reach into many of the areas that have worried many Members of your Lordships’ House who have spoken in today’s debate and many members of the public.