Defamation Bill [HL]

Baroness Young of Hornsey Excerpts

Friday 9th July 2010 Lords Chamber

[Baroness Young of Hornsey]

My Lords, the noble and learned Lord, Lord Woolf, suggested that there were advantages in coming so late in the debate. There are advantages, but there are also some disadvantages, particularly in trying to find further superlatives to describe the very good maiden speeches made by the noble Baroness, Lady Hayter of Kentish Town, and the noble Lord, Lord Willis of Knaresborough. All that I can do is reiterate what other noble Lords have said and say how much I look forward to their future contributions.

It is also true that many tributes have been paid to the noble Lord, Lord Lester. I will reiterate them, but I hope that it will not go to his head—I am sure that it will not. I should like to thank him for suggesting that I speak today because I would not otherwise have thought that this was something to which I could make a contribution. It has been quite gratifying that a sprinkling of non-lawyers have spoken, so I do not feel as intimidated as I might have done otherwise. It has also been gratifying to hear other Peers who are involved in the arts and the creative industries speak about the impact of the Bill. Recent examples have alluded to science, but the arts have always been in the forefront of contesting and trying to push the boundaries of the oppressive nature of some of the laws that are still on the books.

Like other noble Lords, I have been helped in what I am going to say by briefings from a range of organisations and individuals, many of which have already been mentioned, such as Mumsnet, Which?, JUSTICE, Liberty, English PEN and the Index on Censorship. However, I do not think that anyone else has referred to the National Campaign for the Arts. Just to clarify, it is the UK’s only independent campaigning organisation that represents all the arts, providing a voice for the arts world in all its diversity. Because of my own professional interest, I was particularly keen to hear its views, so I have drawn quite substantially on some of the comments it has made.

As I see it and as many other noble Lords have already said, the Bill attempts a difficult balancing act. On the one hand, there is the need to protect the right to freedom of speech and on the other there is the need to protect individuals from defamation. On one level that sounds simple, but of course it is not, otherwise we would not be debating it today. In relation to this Bill, many noble Lords have mentioned the recent case of Dr Simon Singh and the consequences of his critique of chiropractors and their claims about the ability of their practitioners to alleviate some distressing illnesses. If ever a case invoked the real meaning of what I understand is meant by the term “public interest”, this was it. I do not need to rehearse the case again because, as I say, it has already been referred to several times. Suffice it to say that exposing highly questionable health claims unsupported by rigorous scientific evidence is clearly in the public interest. However, this is sometimes used by press and media outlets as a defence on other slightly more spurious grounds.

For that matter, it can be quite a tricky area to define and to make clear to the general public what was actually meant. Although the print media have not always been successful in these cases, there have been a number of high-profile instances when such a defence has been habitually invoked by newspapers. I think particularly of the libel case involving the private life of Formula One boss Max Mosley as well as countless examples of the indiscretions of Premier League footballers. These instances have provoked public interest of an altogether different kind.

The Defamation Bill attempts to drags the libel laws into the digital age—again, this has been mentioned by several other noble Lords—although there are still concerns about where an organisation like Mumsnet stands as a site that hosts opinions and critiques from a very wide range of people over which the organisation exercises no form of editorial control. Will Mumsnet be held responsible for the content on its site? The noble Baroness, Lady McIntosh, referred to this, and I do not think that the position is as clear as might be thought. Indeed, Mumsnet has raised the issue because it does not feel that it is. I guess that this is covered by the clause that spells out the difference between a “facilitator” and a “primary publisher”. That distinction could be crucial and I would welcome some clarity on which category Mumsnet and other similar organisations might fall into.

In general, the National Campaign for the Arts welcomes the Bill inasmuch as it represents a continuing commitment to protecting freedom of speech. It believes, as I do, that it could go some way to ensure the continued protection of these freedoms. The introduction of a single publication rule overturned the 1849 case of Duke of Brunswick v Harmer. I must say that I was quite pleased with myself for being able to mention a bit of case law, but it has been deconstructed far more ably by my noble friend Lord Pannick. That case brought the ruling that refers to the number of publications. Here, again, the Bill seeks to take account of our contemporary world where many different forms of communication and distribution mean that there are often, effectively, numerous new publications over time and across boundaries. If the Bill, or something like it, becomes law, reports of academic conferences will be protected and claimants will no longer be able to rely on that age-old case to bring proceedings when stories are downloaded from web archives many years after first publication.

The Bill also extends absolute privilege to cover fair and accurate reports of proceedings in Parliament; anything published by or on the authority of Parliament; and a fair and accurate copy of, extract from or summary of anything published by or on the authority of Parliament. Again, that is welcome.

The change from the defence of “fair comment” to a defence of “honest opinion” will be welcomed by many people, and particularly by critics and reviewers of art, books, theatre and other art forms, as well as by restaurant and food critics, who increasingly come under pressure not to make adverse criticisms of what they have sampled for fear of being prosecuted. The four conditions required for a defence of “honest opinion” seem reasonable, although I am sure that in the future there will be many struggles over the meaning of the term should it become law.

The NCA is particularly concerned about the need to establish serious damage to reputation. Clause 11 potentially makes proceedings more difficult for the claimant when it stipulates that a body corporate must show that the publication,

“has caused, or is likely to cause, substantial financial loss”.

It is noteworthy that, in contrast to the position in other jurisdictions, no exception is made for small corporations or non-trading corporations. This could have an adverse impact on arts and third-sector organisations, for some of which reputational damage is considered to be a substantial risk on a par with financial loss. It could be argued that the reputation of such bodies is being treated as nothing more than a financial matter when in fact it is a considerable part of their cultural and social capital. This could be problematic for charitable bodies and NGOs, and I would be grateful if the noble Lord, Lord Lester, would clarify that point.

Another point that might affect smaller, non-media organisations is that the Bill explicitly states that the extent to which the media have complied with codes of conduct, such as that of the Press Complaints Commission, is one of the factors that the court should consider for a responsible publication defence. However, bloggers and NGOs—who are also involved in investigative reporting—do not have the same editorial codes of conduct, or sometimes even any at all. This has prompted a question about the intended target of the Bill. In the absence of codes of conduct, further clarity around what constitutes a responsible publication defence is advisable for the benefit of bloggers and NGOs. There is a need to clarify these points in order to alleviate concerns about the practical implications of some of the changes that have been mooted, particularly for organisations that do not fall into obvious categories such as the mainstream media and so on.

I support some of the comments made by the noble Lord, Lord Triesman, and the noble Baroness, Lady Kennedy of The Shaws, who said that it was essential to distinguish between journalists—whether citizen journalists or otherwise—who act with integrity and honesty in their investigations, comments and criticisms, and those who are simply set on sensationalising and traumatising vulnerable ordinary citizens in order to sell more products. In this respect, I have some sympathy with the slightly contrary position that has been adopted.

Like many others, I see the Bill as a welcome step towards legislation that is much more fit for purpose than the legislation that it is intended to amend or supersede. Like the NCA, I welcome the introduction of the Bill as it stands, with some of these interventions and comments taken on board. It is a timely intervention that goes a considerable way towards enabling legitimate and honest comment and opinion.