Defamation Bill

Lindsay Hoyle Excerpts

Wednesday 12th September 2012 Commons Chamber

[The Parliamentary Under-Secretary of State for Justice (Jeremy Wright)]

I beg to move, That the clause be read a Second time.

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

With this it will be convenient to discuss the following:

Amendment 7, page 3, line 22, leave out clause 5.

Government amendments 5 and 6.

[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.