Defamation Bill

Bob Stewart Excerpts

Tuesday 12th June 2012 Commons Chamber

[Dr Huppert]

I thank the hon. Lady for her comment. She is right that we need to encourage more educated scientific debate among the general public. That is a larger issue than the subject of the present debate. The question is how far one goes in providing the sort of privilege that we are talking about. Peer review processes are significantly better developed than what we see in newspapers. I would expect newspapers to have more access to lawyers who could advise on libel because they deal with a range of issues. But there may be ways of going slightly closer to what the hon. Lady suggests and I would encourage something like that to happen.

[Bob Stewart (Beckenham) (Con)]

Is it not possible that we could have a sort of citizens advice bureau for people who are thinking of publishing something so that they could go to someone who understands the issues, without having to go through the law to get guidance quickly, so that good debate is not stifled?

[Dr Huppert]

I thank the hon. Gentleman for his comment, and I can see where he is coming from. The clause goes further than that and it is better. It says that for peer-reviewed academic publications, unless they are malicious, there is no risk. So the citizens advice bureau approach is not necessary. Anybody publishing in this way knows that they are fine, as long as they are not being malicious, and I hope people would not seek to be malicious in this way.

However, we do see such cases, and not only the famous ones. In the past six years one in 10 of all High Court libel cases have involved an academic or scientist. It is a real issue, and I believe firmly that scientists and other academics should focus on doing research in their field, not on researching the law. That protection is very welcome.

Clause 10 is another welcome addition to the Bill, particularly because it protects booksellers. As the hon. Member for Hastings and Rye (Amber Rudd) mentioned, they sometimes face cases on questionable materials. If they are selling two such books a year and are not interested in defending the case, they just remove the book from their stock. It should be the author who is responsible, wherever possible.

I support most of the other clauses. I am pleased to see clause 7, which extends some of the privilege protections, clause 8—the single publication rule—and clauses 9, 11 and 12. I am pleased to see clause 13, which gets rid of the Slander of Women Act 1891. Society has moved on slightly in terms of gender roles since 1891.

This is a good Bill, but there are still some areas of concern. I agree with those who have said that one of the key areas that has not been looked at enough is costs. It is key to get the costs right, but that is not entirely within the Bill. Cost is not just a matter of writing legislation. Legislation alone does not solve every problem. The Government need to do a little more work to make it clear how they will reduce costs, in addition to the legislative changes that are being made.

Then there is the issue that has been touched on recently about corporations and other non-natural persons. I agree with my right hon. Friend the Member for Carshalton and Wallington (Tom Brake) that non-natural persons are not natural persons: companies are not the same as people. They do not have feelings in the same way and they could be treated differently. There have been many cases, such as the McLibel case, of corporations which abuse their power and their resources to take unreasonable libel actions.

The Joint Committee recommended that corporations should have to prove that they have actual, substantial financial loss and that they should have to get permission from the court in order to take actions. That seems a modest way to go, given some of the other proposals, which are quite tempting. An extreme view is that corporations should not be allowed to take libel action at all. This has been tried in Australia, so that only corporations with fewer than 10 employees are allowed to take any sort of libel action. I have spoken to a number of lawyers in Australia, and that does not seem to be the best way to go. I hope the Government will not go ahead with that idea, although I was initially attracted to it.

I rarely disagree with comments from the Libel Reform Campaign, but I do not like the idea of courts being asked to make declarations of falsity. I was initially persuaded of that, as people who served on the Committee are aware, but I think on balance that it is hard to expect a court to say definitively, “This statement is false,” because new evidence can come up. It is a very hard thing for any court to say.

Lastly, let me turn to clause 5, which deals with an incredibly complex area. I think that the idea of a new defence is a good approach, but it needs to be tweaked somewhat and the Government’s proposed regulations should be published and available for discussion alongside the Bill. I hope that the Government will be absolutely clear that this new defence is an optional one that website operators can use but do not have to. It does not impose on them a duty; it merely gives them a defence if they comply with some regulations. Furthermore, I hope that the Government are absolutely clear that the existing defences from the e-commerce directive remain in place and that the rules about being a mere conduit and so forth still apply in exactly the same way they have done. It is very important that we do not see any inadvertent weakening of the protections available.

It is also important that we are clear that the good practice of post-comment moderation used by some website operators, whereby they try to do their bit to filter out the things they can tell are inappropriate, does not itself bring about liability, so long as that does not change the meaning in a damaging way or significantly increase the scale of publication. This was recommended by the Joint Committee and accepted by the Government, because if the BBC, for example, spots something inappropriate and removes it, it is important that that does not render it more liable to the thing that they could not have spotted because they would not know the facts of a case.

It is also important that there is an ability to preserve some anonymity. It is right that action should be taken against a person who posts something online, but there will be cases, such as those of whistleblowers and dissidents, in which there is a real reason why anonymity should be preserved. The key point is that there should be a communication channel between the person complaining and the original author, even if that is mediated by a third party.

This is a very complex area, and I welcome the fact that the Secretary of State said at the beginning of the debate that he was open to considerations to try to get it right. I hope that either he or the Minister will be able to arrange for the Bill team to meet me and the Libel Reform Campaign, internet service providers and organisations we have been talking with, such as Facebook, Google, Yahoo and Mumsnet, to discuss how we can get this right so that we get what we all want: something that works in a clear and simple way and gives the right protection to the people we wish to be protected. This is a good Bill and I am delighted to support its Second Reading.

--- Later in debate ---

[Michael Ellis]

I recognise my hon. Friend’s point, and the common law will no doubt develop in this area, but I hope that, if this Bill becomes law and removes the presumption in favour of jury trials, judges will recognise that jury trials will be less frequent than heretofore. I will be corrected if I am wrong, but I seem to recall that until relatively recently juries in defamation cases had a part to play in deciding the quantum of damages after successful defamation proceedings, and I recall also some rather large figures for damages awarded against various periodicals. I am a great fan of Private Eye, possibly because I have not featured in it—[Interruption.] I am not inviting it, and I emphasise that!

[Bob Stewart]

I have, and you are about to.

[Mr Deputy Speaker (Mr Nigel Evans)]

Order. “He” is about to.

--- Later in debate ---

[Guy Opperman]

I accept the possibility that my hon. Friend was not referring to that, but was referring to the development of events over the past few years.

It is absolutely vital to ensure that we have a free press and an ability to speak out without fear or favour—that is fundamental—but justice must be accessible to the people who receive comments from such a press. The Bill definitely increases that accessibility, and I welcome that wholeheartedly. Any interpretation of such legislation must take account of the countless stories told throughout this debate of people whose reputations have been annihilated on the internet and elsewhere.

[Bob Stewart]

Would it not be fair for people of little means to have the opportunity to go to, say, a defamation ombudsman who could give them advice and help them before they spend one penny? At the moment, the law seems to be available only to those who can afford it, and that is wrong. It should be possible for a man or woman of no means to be able to go and get decent advice from someone who knows what they are talking about.

[Guy Opperman]

I am delighted to say that to a certain extent such advice does exist. There more developed citizens advice bureaux and victim support organisations are able to provide such assistance, as are the Bar Pro Bono Unit and the Free Representation Unit. I have represented individuals in libel cases as part of the Bar Pro Bono Unit, and there will certainly continue to be such accessibility. However, my hon. Friend identifies one of the fundamental flaws in the Bill, which I hope will be remedied in Committee.

The Jackson report that was instituted by reason of the Legal Aid, Sentencing and Punishing of Offenders Act 2012, which we passed on 1 May, ensured that there is no ability to recover the cost of insurance for the litigation. The consequence of that is that individuals who wish to bring such litigation against a newspaper would have to risk a great deal were they unsuccessful. There is a way round that. The way forward is for the courts is to develop what they have developed in other branches of the civil litigation arena—a protective costs order. In the case of Compton v. Wiltshire primary care trust, the protective costs order was extended to a local group of individuals to make the case a matter of public interest. This means that were someone to wish to bring a civil action against a public organisation or a newspaper and it was in the public interest for them to do so, they would be protected were they to lose the case because the very fact of bringing that action constituted something that was in the public interest. I suggest that we will see that development in libel and defamation law. As my hon. Friend the Member for Northampton North said, common law will develop to accommodate the fact that, sadly, there is no legal aid and precious little to assist the individual litigant in taking a case against the newspaper or public institution that has defamed them.

The nature of this Bill is such that there is general agreement that we need to move forward and have a better understanding of such access to justice, which is patently not there at the moment. I should make a declaration as a trained mediator and as someone who was at the Bar and has earned a moderate living as a barrister. [Interruption.] I was not a very good libel lawyer, I hasten to add. The shadow Minister just said that I used to practice extensively at the Bar in this field, but I assure him that I was of no quality whatsoever in libel cases; I got far too irate. A greater use of mediation at an early stage can only assist. Looking at the various problems that arise in libel, the mediation and the apology at the early stages are most important, not necessarily the damages that are ultimately sought, but we get so enmeshed in the process of litigation that we end up with a case that has mushroomed way beyond the reality of the loss entailed. I therefore welcome the extra mediation and alternative dispute resolution processes that the Bill will bring about.

I warn that there can be a sad tendency to have a great deal of discussion at the early stages of the litigation process. I have witnessed that in many a case. One has to clear hurdles at the outset to prove that the nature of one’s case gets over a certain threshold and it would be not unheard of for a newspaper or a public organisation with deep pockets suddenly to attack the individual and say, “We don’t accept the judge’s finding that you’ve got over this hurdle—we shall appeal this.”

I represented Mrs Compton in the case of Compton v. Wiltshire primary care trust, which concerned the health services in the constituency of my hon. Friend the Member for South Swindon (Mr Buckland). There were 14 separate pieces of litigation involving the primary care trust that went all the way to the House of Lords on seven separate occasions. Her original hurdle was overcome and tested all the way to the House of Lords. These early hurdles must have a finite end. If one has a preliminary hurdle to get over in a defamation case, as is now set by the Bill, there should be one single right of appeal and then the matter moves on. Without that sort of process, an individual may find themselves enmeshed in ever-deeper litigation before the case has even got off the ground. By that stage, years have passed, their reputation is gone, and their ability to respond to the libel or defamation has totally dissipated. I warn the Minister that there needs to be strict guidance on the maintenance of the alternative dispute resolution process as it goes through.

I am glad that my hon. Friend the Member for South Swindon has returned to his seat. I sat through his lengthy and impressive speech, in which he said, if I remember correctly, “The law, like the Ritz, is always open.”

--- Later in debate ---

[Heather Wheeler (South Derbyshire) (Con)]

It is a pleasure to follow my hon. Friend the Member for Hexham (Guy Opperman). I come at the Bill from a completely different perspective, because I am definitely not a lawyer. I am very much a poacher turned gamekeeper on this matter, because in another life I was an insurance broker—even worse than a lawyer—and I used to place libel and slander policies at Lloyd’s. When I saw this debate on the Order Paper, I therefore thought, “You know what? This is one for me.”

Having sat here since half past 3, I have been considering whether to give the five-minute speech, the 10-minute speech or the 15-minute speech. I have not had the nod and the wink from the Whips to say that it should be the three-minute one because we are getting to the later stages of the debate. As has been said, there is cross-party agreement on this matter. Is that not a breath of fresh air in this Chamber?

Clauses 2, 3, 4 and 9 are particularly helpful. They have all been expanded on by learned friends, so as a mere humble Back-Bencher and political hack, and not a lawyer, I do not need to expand on them further.

[Bob Stewart]

And not learned.

[Heather Wheeler]

Indeed, not learned at all.

What is fascinating to me is that the Bill is drafted so clearly that the person on the Clapham omnibus will be able to understand it. Two years into this glorious coalition Government, is it not something that we are finally getting a Bill about which the person on the Clapham omnibus will be able to say, “That protects me. I understand that.”? It can be understood not only by lawyers, but by MPs and ordinary people who do not earn their money by standing before people with wigs—you are not wearing a wig tonight, Mr Deputy Speaker, so I can genuinely say that. We have found a Bill that the people will rejoice at. There should be greater publicity about the process by which this Bill has come about. It should be held up as a burning light to demonstrate what Parliament can do when it does the right thing and gets behind something.

It is an even better Bill because it fits with the great coalition pledge of one-in, one-out. We are getting rid of a horrendous piece of law that has been in force since goodness knows when.