Defamation Bill

Julian Huppert Excerpts

Tuesday 12th June 2012 Commons Chamber

[Mr Clarke]

I cannot possibly comment on an individual case and individual possible action. I anticipate that the difficulty may be that the defaming of a deceased person always gives rise to questions of whether any action is possible. Trolling is an extremely unpleasant, curious activity which some very nasty people appear to be going into. There have already been quite a lot of prosecutions for trolling, but we think the public are entitled to proper protection against it.

Our proposed approach, under clause 5, will provide website operators with a defence against libel, provided they follow a procedure to put complainants in touch with the author of allegedly defamatory material. This will strengthen freedom of expression by ensuring that material is not taken down without the author being given an opportunity to defend it. Conversely, it will strengthen protections by enabling people who have had their reputation seriously harmed online to take action against the real author and bring proceedings against them if the matter cannot be resolved by other means.

[Dr Julian Huppert (Cambridge) (LD)]

This is indeed a complex issue. Can the Justice Secretary confirm that this is an optional defence and that web operators would be entitled not to follow those regulations and not to use the defence, and that they would still be covered by the defences available under the e-commerce directive if they so chose?

[Mr Clarke]

That is entirely correct, but of course those web operators would also be vulnerable to possible action because they had not availed themselves of the process, which would give them one way of proceeding if they chose to do so. We are not replacing other remedies which might well be available against a publisher who took no steps to inform the defamed person of where the defamatory matter was coming from.

It will be very important to ensure that these measures—clause 5 and those associated with it—do not inadvertently expose genuine whistleblowers, and we are committed to getting the detail right to minimise that risk. We will continue to consider that and eventually some of it will have to be covered by regulation.

Concern has also been expressed about the impact of the current law on secondary publishers more generally, including booksellers and newsagents. In accordance with our aim of ensuring that secondary publishers are not unfairly targeted and action is taken against the primary publisher wherever possible, clause 10 removes the possibility of an action for defamation being brought against a secondary publisher except where it is not reasonably practicable for the claimant to bring the action against the author, editor or commercial publisher of the material.

A further related proposal to modernise the libel regime is the introduction of a so-called single publication rule. Information online can be copied instantly, stored indefinitely and accessed long after physical forms of publication, yet the current regime allows additional claims for such cases of “republishing”. The proposed rule seeks to reconcile the need to protect individuals from repeatedly having to face the same defamatory comments with the need to avoid open-ended liability for publishers when old material is accessed years later, which has the potential severely to inhibit freedom of expression. Therefore, the Bill includes a provision that will prevent an action being brought in relation to publication by the same publisher of the same, or substantially the same, material after a one-year limitation period has passed.

Agreeing a libel regime fit for the realities of the 21st century is not straightforward, but these steps constitute sensible reform to ensure that freedom of expression and protection of reputation are possible both online and offline. Modernisation, however, must also extend to the cost and length of libel cases, which are increased in current law by the presumption of jury trial. I am normally a strong defender of the principle of jury trial in criminal cases and always have been—I assure my right hon. and hon. Friends and everyone else that my political arteries have not suddenly hardened and affected my views on that.

In practice, jury trials have been infrequently used in libel cases in recent years and the majority of cases are now heard by judges alone. I believe that it makes sense to recognise that reality in law by discontinuing the presumption of jury trial, which in this case has become a kind of noble fiction that creates real practical problems for one or other of the parties. It greatly increases the cost and time taken in defamation proceedings, which can be done deliberately to advantage one or other of the parties in negotiations and bargaining. Many basic legal issues that could otherwise quickly be sorted out by a judge sitting alone, such as deciding the meaning that allegedly defamatory material can have, cannot be resolved until full trial, whether or not a jury is ultimately used. That causes unnecessary delay and expense, to everyone’s detriment.

Recognising that judges should normally rule on libel cases is also part of the wider package of procedural proposals, to which I referred a few minutes ago, that we are taking forward alongside the Bill to help reduce costs and encourage settlements. It goes hand in hand with a new preliminary procedure that we are developing to resolve key issues, such as meaning, at as early a stage as possible. Of course, there might remain occasions when jury trial is appropriate, so the Bill retains the court’s discretion to order that when it considers it appropriate to do so.

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[Sadiq Khan]

A chilling effect can sometimes be a good thing. A prosecution brought against someone involved in such behaviour can lead to others not doing the same thing for fear of prosecution. The Justice Secretary is right to remind the authorities, who might be watching the debate or might read of it, that they have tools at their disposal to bring criminal prosecutions.

Subsections of clause 5 set out the circumstances in which the defence could be defeated. This is a key area in which technological developments have outstripped our laws. As has been said, a duty will be placed on internet service providers to identify internet trolls without victims needing to resort to costly legal action. The Opposition welcome that development, but the detail will be provided in regulations that we have not seen. It is important that this well intentioned clause does not inadvertently lead to a website being required to disclose the identity of a whistleblower when they are the source of a post on a website, or to websites being easily censored by casual threats of litigation against their operators.

[Dr Huppert]

All hon. Members accept that getting this right is complex. Does the right hon. Gentleman accept that he was not quite accurate in saying that there will be duty on websites to reveal who trolls are? If operators choose to use the defence in clause 5, they will be required to follow the regulations. If they choose not to use that defence, there would be no such duty, and therefore some protection.

[Sadiq Khan]

The hon. Gentleman is probably right, but as we have not seen the regulations—they have probably not been drafted—I am not sure. I commend him for his work on this. He has been involved in this issue since he was first elected, as have many colleagues on both sides of the House.

As has been said, many proposals in the Bill, including clause 5, will be introduced by regulations, probably via a negative resolution of the House, meaning, as I have just said, that we are in the dark on exactly how the measure will operate in practice; how a website operator is expected to respond, which was the point raised by the hon. Gentleman; and what protections are given to whistleblowers. For the sake of proper parliamentary scrutiny, it is imperative that the Government publish their regulations before Committee and subject resolutions to the positive procedure. That will allow Parliament properly to consider detailed plans that will have huge impacts on the operation of the Bill and defamation procedures.

Clause 6 creates a new defence of qualified privilege on peer-reviewed material in scientific or academic journals. We welcome the adoption of that recommendation from the Joint Committee.

Clause 8 introduces a single publication rule so that the one-year limitation period in which libel action can be brought will run from the date of the first publication of material, even if the same article is subsequently published on a website on a later date. The reform intends to end the current situation in which material in online archives is regarded as being re-published every time it is downloaded, which, in effect, leaves the archive operator with a limitless risk of being sued.

The Opposition also welcome clause 9, which seeks to deter those eyeing London as a location to pursue libel actions that they would not dream of pursuing in other jurisdictions. In recent years, our courts have clamped down on libel tourism, and I hope the measure, which gives courts more power to decide whether a case can be heard, will help. We need to reduce the potential for trivial claims and address the perception that English courts are an attractive forum for libel claimants with little connection to this country. We welcome steps to tighten the test to be applied by the courts in relation to actions brought against people who are not domiciled in the UK. I am, however, concerned about cases brought by EU citizens or in a state that is, for the time being, a contracting party to the Lugano convention.

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[Ian Paisley]

As with all these matters, it is a question of balance. Those 15 followers could be influential individuals who are hiding under their anonymity—perhaps they are journalists—and could use their standing and anonymity in different ways, so that has to be addressed. We must consider the balance of who the 15 individuals in the hon. Gentleman’s example are, because there could be abuse of other individuals through the internet system. Indeed, in the example I cited earlier only nine people saw the photograph, but it was so damaging for the person concerned that, in my view, the person responsible deserves to be severely punished. It is not necessarily the quantity that we need to look at, but the quality.

I want to look at the issue of anonymity in relation to clause 5. Currently, websites operate with impunity. I do not know whether the proposed change will prevent that abuse of the internet. If someone is able to hide away and become anonymous so that the internet operator is unable to find them, I do not believe that the operator should have an excuse. We need to be very careful about making sure that website operators take control of what is said on blogs and the other things that appear on websites. I should declare that I once sued the BBC for a comment that appeared on a blog—successfully, I might add. We need to ensure that someone operating a website recognises that the buck stops with them if they are going to mediate these comments. I am yet to be convinced that clause 5 will have a significant effect on the abuse that can follow.

[Dr Huppert]

The hon. Gentleman suggests that websites can currently act with impunity, but does he recognise that a huge number of sites, whether Mumsnet or almost any other, face a constant deluge of unfounded claims, which they simply do not have the resources to defend, so they are forced to take down things that may not be defamatory in any way, shape or form? Does he think that that is appropriate?

[Ian Paisley]

Again, it is a question of balance, but I would far rather such sites were more defensive of their own reputation and standing than they allowed something to slip through which damaged, lied about or hurt someone in an unfounded or unfair way. I understand that there are huge difficulties, but, if someone is going to set themselves up as a website operator in the 21st century, in the new media, they have to take responsibility for their actions. That is the responsibility that should fall to people and make them consider what they do. Members of my party will support the general thrust of this change to the defamation laws, but we are yet to be convinced on some points, which we look forward to being thrashed out in more detail in another place.

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[Amber Rudd (Hastings and Rye) (Con)]

This is a timely debate. The Bill might be uncontested, as we have heard from many Members, but it is not uncontroversial. Free speech and freedom of expression have been brought to the forefront by the Leveson inquiry, which is happening a mile down the road. In this House, we know that there is a fine balance to be struck in weighing the right to freedom of speech and expression against the right to privacy. As my right hon. and learned Friend the Secretary of State said in his opening remarks, when it comes to the law on defamation it is vital that we get the balance right. Every Member who has spoken has mentioned the difficulty of getting it right. The solution is not a simple one and great care and caution must be taken.

I, like many other Members, believe that our libel laws are outdated and have made it far too easy for the rich and powerful to suppress and stifle criticism. Even many small-time bloggers, journalists and academic professors are afraid to tackle important issues for fear of being sued—a sad reflection of the current law’s unintended consequences. The Government’s reforms seek to redress the balance, maintaining the importance of free speech while giving people the opportunity to defend themselves against unfair and malicious allegations.

We have heard a lot today about libel tourism. I appreciate that there are mixed views on the matter and on how much of a problem it is in the UK. Some Members have felt that it is overstated, others that it is not, but I think we all agree that it is a problem that London has been labelled in such a way. It is crucial to emphasise that not only the number of cases reflect the problem caused by the libel tourism tag. The threat of proceedings can be used to stifle much-needed investigative journalism, regardless of whether a case is ultimately brought.

I agree with the comments made by my hon. Friend the Member for South Swindon (Mr Buckland), who spoke so eloquently about libel, that it is important that everybody from every walk of life should have access to protection from libel. Libel tourism is hardly an attractive label to be attached to the UK. Here we are, in the mother of Parliaments, standing up for our country, and we do not want to hear that label used. We have so many wonderful attractions in this country—and, dare I say it, in Hastings—so let us try to lose the tag as a destination for libel tourism as we tackle the issue of defamation. I therefore strongly welcome the provision in clause 9 to tighten the test applied by the courts in cases brought against people who are not domiciled in the UK or the EU.

I support the provisions in clause 11 on the presumption against a jury trial in defamation cases. Of course, I understand the importance of trial by jury in most cases, where it provides a fair hearing for all concerned. Many Members have spoken about the importance of maintaining the true and honest right of British citizens to be tried by their peers, but the existence of the right for either party to opt for trial with a jury has its problems. As we heard earlier, it can often impede settlements, create additional costs and increase the length of cases which, on average, take about 12 months from the issue of court proceedings to trial.

The outdated law surrounding privacy and defamation is highlighted by the online traffic that many Members have discussed. Our internet hosting sites are a particular example. Twitter and Facebook especially have driven a significant rise in online libel claims. For example, last year a county councillor was ordered to pay £3,000 in damages and costs to a political rival over false claims made on Twitter. Operators of websites, both large and small, are also at risk of action against them in respect of comments posted by a third party. It is almost impossible for many websites, such as social networking sites, to police that. The owner of a book store would not be prosecuted for a sentence contained within a book sold at the shop, so why should online sites be fearful of such action being taken against them?

[Dr Huppert]

The hon. Lady is making an excellent point about how a bookshop should be treated, but unfortunately that is not what happens at the moment. Bookshops are subject to libel cases about books they are trying to sell, which they have no ability to defend.

[Amber Rudd]

I thank the hon. Gentleman for that intervention. That is a broader point about some books, but there are quite a lot of books that are not subject to such analysis. I am sure that the Minister will address that point later.

At the moment, internet hosting sites are obliged to remove allegedly defamatory material from their website when they receive a complaint, often without knowing whether the comments are defamatory. That is an attack on free speech and the Bill addresses that issue. The provision in clause 5, which offers website owners a new process governing the responsibility for publication on the internet, will undoubtedly give websites greater protection against a threat of legal action. I am sure that is welcomed by Members on both sides of the House.

Above all, I welcome, as I know my constituents in Hastings and Rye will, the clarity that the Bill will provide in an area that remains unsettled and unclear to many.

Let me mention clause 13, which repeals the Slander of Women Act 1891.

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[Dr Julian Huppert (Cambridge) (LD)]

It is a great pleasure to speak in this debate. We face a tough challenge in trying to write defamation laws. On the one hand, we want freedom of expression and, on the other, we want protection of reputation. We want to get the balance right while ensuring that the system is affordable, because the law should support whoever is right rather than whoever is wealthiest. We should also ensure that the law is accessible to all, not just to lawyers, and we simply do not have that balance. The costs are not right—they are far too high—and there is what has been described today as the chilling effect of people being silenced for fear of large costs, even in thoroughly unmerited cases. That happens. We have heard about a number of cases, including those that involved Simon Singh and Peter Wilmshurst. We have heard of publications such as Nature, Which? and the British Medical Journal, which do not feel that they can publish articles out of fear. It applies online as well—Mumsnet, WhatDoTheyKnow and many others.

While I was writing this, a case came up in my constituency, Cambridge. Richard Taylor, a local blogger and an extremely assiduous attender of council meetings who writes them up in immense detail, described a council meeting which was looking at enforcement action against a property in Cambridge being used as a bed and breakfast without the benefit of planning permission. This has led to a rather bizarre libel threat from an organisation known as WWFS Ltd or UK Law Consultants Company, who say they are consultant solicitors. Though I am not an expert in the field, the claim appears to me to be baseless, especially since the people making the claim refuse to say which part of his description they find defamatory. They have gone on to threaten other commentators.

Mr Taylor writes on his blog—all this is there, if anybody would like to look at www.rtaylor.co.uk—and this should worry all of us:

“My view is that this kind of thing is one of the reasons people shy away from entering discussion of how we run our society, be it at the local level in Cambridge or more broadly.

Having received the threat of legal action I have had to consider if I am prepared to risk everything I have in order to do what I consider to be the right thing and continue to publish the material. This is to an extent the question which has to be asked before publishing any material, every blog post and every tweet could potentially be personally ruinous.

Should the case reach court, the cost of defending it, even if the judgment was in my favour, could exceed my resources.”

A number of people with legal training and others are assisting Mr Taylor in the case and I think he will be all right. He is also determined enough to get through.

The current position is not acceptable. The Libel Reform Campaign was established in 2009 to try to make a difference. Lord Lester proposed his Bill in 2010. There was a Government draft Bill in 2011, and I had the great privilege of serving, with other Members who have spoken, on the Committee which considered that. The full Bill was tabled in 2012, led by the Minister, Lord McNally. It has been nice to see how this has captured the imagination. As John Kampfner, the chief executive of Index on Censorship, said,

“When we launched the Libel Reform Campaign in 2009, only the Liberal Democrats backed change. Now the cause has cross party support.”

That is absolutely correct. I pay great tribute to him and to everybody in the Libel Reform Campaign—Index on Censorship, English PEN, Sense about Science and all the other supporters that they have.

I would like particularly to mention one extremely dogged individual who has been involved with that, as well as with the Hacked Off campaign, Dr Evan Harris. I suspect that Members in all parts of the House will have heard his comments on the issue. I am delighted by the cross-party support that we have.

This is a good Bill, but with some tweaks it could be a great Bill. I am delighted by clause 1. The serious harm test is right, but it should be coupled with a strike-out power so that cases could be quickly ended where there is no serious harm to consider. I support clauses 2, 3 and 4 as they codify the common law, which means that non-lawyers such as myself can find out what the rules are, without having to plough through case law after case law.

With regard to clause 4, I am pleased about the codification of Reynolds, but it is still a complex defence. Some improvements can be made, as Members have mentioned. I hope the Government will consider the possibility of a simpler, clearer public interest defence which would apply where defendants take appropriate action to correct any errors or inaccuracies that they have made, as has been suggested by the Libel Reform Campaign. I do not expect the Government immediately to say yea or nay to any such proposal. It needs to be considered very carefully, but I hope they will look at it. If we could find something like that, it would be an excellent improvement.

Clause 6 is a key change from the draft Bill and shows the value of pre-legislative scrutiny, which I hope will be applied to a number of other Bills, as it is shortly to be applied to the draft communications data Bill. Clause 6 is extremely welcome. I pressed hard for this. My experience as an academic scientist made me particularly concerned and I was especially pleased when the Secretary of State announced, in response to a question that I asked him, that there would be a change to give protection to academics and scientists publishing peer-reviewed articles.

Currently, journals are afraid of publishing peer-reviewed statements, and academics can be afraid of making the statements that they need to make. There has been an insidious silencing of rigorous scientific debate. A survey conducted by Sense about Science in 2010 found that 38% of editors of scientific journals have chosen not to publish certain articles because of a perceived risk of libel, and 44% have asked for changes to the way articles are written to protect themselves, not necessarily because they thought there was a genuine case to answer. Journals such as Nature, the British Medical Journal and a range of others are not libel experts and should not be expected to be libel experts.

[Dr Sarah Wollaston (Totnes) (Con)]

Does my hon. Friend accept that that should be extended to national newspapers? There is indeed a stifling of debate about scientific issues in the national press, and very many of our constituents do not read the scientific press and need access to good scientific debate in the national press.

[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.