Defamation Bill

Debate between Denis MacShane and Jeremy Wright

Wednesday 12th September 2012 Commons Chamber

[Jeremy Wright]

New clause 1 deals with an issue raised in Committee by the hon. Member for Newcastle-under-Lyme (Paul Farrelly). He was concerned that circumstances could arise in which a claimant who had successfully brought an action against the author of defamatory material online could be left unable to secure the removal of the material. That situation might arise as a result of the fact that an author might not always be in a position to remove material that had been found to be defamatory from a website, while the new defence in clause 5 might prevent the website operator from being required to do so. The Government indicated in Committee that we would consider whether anything further was needed to address such situations.

We have concluded that although such situations are likely to be rare, it would be appropriate to include a provision in the Bill to ensure that claimants in such cases do not experience any difficulty in securing the removal of material that has been found to be defamatory. New clause 1 therefore provides that where a court gives a judgment for the claimant in a defamation action, it may order the operator of a website on which the defamatory statement is posted to remove that statement. Such an order could be made either during proceedings or on a separate application. New clause 1(2) ensures that the provision does not have any wider effect on the inherent jurisdiction of the High Court.

In speaking to new clause 1, it may be helpful if I speak also to Government amendments 5 and 6, and to amendment 7, which has been tabled by the hon. Member for Stoke-on-Trent South (Robert Flello). Government amendment 5 relates to the circumstances in which a claimant might defeat the defence set out in clause 5. Such circumstances are set out in clause 5(3), paragraphs (b) and (c) of which require a claimant to show that he gave the operator a notice of complaint in relation to the statement in question and that the operator failed to respond to it in accordance with provisions to be set out in regulations. In addition, paragraph (a) requires that a claimant must show that it was not possible for him to identify the person who posted the statement. Amendment 5 clarifies what is meant in paragraph (a) by the word “identify”. Again, concerns were raised in Committee by the hon. Members for Newcastle-under-Lyme and for Stoke-on-Trent South that the meaning of the word “identify” was unclear and that possible difficulties in obtaining the true identity of the author—for example, when he was using a pseudonym—might mean that the claimant was left without a remedy. In the light of those concerns, we undertook to consider the position further.

Amendment 5 clarifies that, for the purposes of subsection 3(a), it is possible for a claimant to “identify” a person only if they have sufficient information to bring proceedings against that person. The amendment will ensure that claimants are not left in limbo, unable to bring proceedings against an author because they lack information that would enable them to do so, but also unable to defeat the defence of the website operator if the operator failed to take steps to assist. We consider that that will ensure that the new process operates fairly and effectively and strikes an appropriate balance between the interests of claimants and those of website operators.

Amendment 6 makes it clear that if the website operator moderates material posted by third-party users on his site, that fact alone will not defeat the defence that is available under clause 5 to a website operator who can show that he did not post the statement complained about on his website. We share the view, expressed by the Joint Committee on the draft Bill and Members of this House, that responsible moderation of content should be encouraged. We have listened to the concerns raised in Committee and consider that it would be helpful to include a provision giving reassurance on that point. Amendment 6 therefore provides that the defence under clause 5 is not defeated by reason only of the fact that the website operator moderates the statements posted on the site by others.

There might of course be situations when an operator goes too far. They might, for example, moderate content on the website so much as to change the meaning of what the author had posted in a way that makes it defamatory or increases the seriousness of the defamation. In such cases, the courts will have to consider whether the operator’s actions were sufficient for them to be regarded as having posted the material.

We have considered carefully the merits of seeking to prescribe the particular circumstances in which moderation might or might not lead to the operator being regarded as having posted the material. Precisely when an operator should become responsible for a statement they moderate will depend heavily on the individual circumstances of the case. On balance, we think it is right that the courts should have flexibility in making that assessment. We consider that these are sensible and helpful amendments that will aid the effective operation of the new process under clause 5.

Amendment 7, by contrast, would remove clause 5 from the Bill. I will of course listen carefully to what the hon. Member for Bishop Auckland (Helen Goodman) has to say on the matter, but I am sorry to say that we do not consider removing the clause to be an appropriate move. The current law in this area is unsatisfactory and has created a situation in which website operators, to avoid any risk of being sued, choose to remove material from sites they host on receipt of a complaint, whether or not the material is actually defamatory. That chills free speech.

However, we recognise that when people are defamed online they need to be able to take prompt and effective action to protect their reputation. Including clause 5 in the Bill will mean that the author of a statement is given an opportunity to defend it, rather than it simply being taken down on receipt of a complaint. Should the need arise, complainants will be able to bring proceedings against those truly responsible for statements.

[Mr Denis MacShane (Rotherham) (Lab)]

What comment will the Minister make on the fact that Wikipedia publishes biographies of people that are then regularly amended to include untrue, defamatory and unpleasant language? Does he think that Wikipedia should inform those people whose biographies have been re-written in such a way that causes them damage and then allow a truthful statement to be made? At the moment, Wikipedia is an absolute disgrace, allowing the British National party, fascists, anti-Semites and other extremists to alter people’s personal entries.

[Jeremy Wright]

I understand exactly what the right hon. Gentleman is saying, but he will appreciate that the limits of the Bill are quite constrained, and it is difficult within the confines of our discussion on Report to cover all the issues he raises. What I will say is that clause 5 attempts to strike a balance between protecting freedom of speech on the internet, which he and I are both in favour of, as I am sure is the whole House, and ensuring that there is a quick and effective method by which those who, for example, have their biographies on Wikipedia amended can address the wrong that is done to them. That is the balance we are attempting to strike and that we believe is struck by clause 5 as it stands, which is why I am afraid we cannot support amendment 7. We stand by clause 5 but believe that it can be improved, which is why we ask the House not only to reject amendment 7, but to accept amendments 5 and 6 and new clause 1.

--- Later in debate ---

[Mr MacShane]

Inadvertently, the Minister has just torn up, buried, driven a stake through one of the oldest principles of journalism: when in doubt, leave it out. That has saved a lot of newspapers in a lot of countries from defamation cases, so it is a very good idea. He is reversing that by saying, “Let it be published. If you have doubts, let’s see whether the person we are defaming can get an action and then a decision from a court judge.” I hope that when the Bill goes to the other place we will enshrine the very good principle of journalism: when in doubt, do not publish and leave it out.

[Jeremy Wright]

The right hon. Gentleman slightly over-dramatises the position; I am not saying that at all. I am saying that particular circumstances apply to the clause dealing with website operators. New clause 1 is designed to assist us in striking the balance that I have mentioned several times. We hope that the effect of the Bill as a whole will be to encourage all those inclined towards publishing statements that are potentially defamatory to think carefully before they do so. However, we want to strike the right balance between that and ensuring that people are not so afraid of having actions brought against them that they do not allow free speech to operate, either on the internet or elsewhere. I have accepted many times that this is a delicate balance to strike, but we believe that we have done our best to strike it.