Defamation Bill

Lord Ahmad of Wimbledon Excerpts

Tuesday 15th January 2013 Grand Committee

[Lord Lester of Herne Hill]

My Lords, first, perhaps I may say how glad I am that Sir Brian Neill is with us now, having recovered, and how sorry I am to have told the Minister that I was not well, as it enabled him to attempt to curtail me. On these amendments, it is extremely difficult for one country to deal with these problems on its own within its own legal system, since, by definition, we are dealing with the world wide web. Secondly, it is a question of getting this right. The Government are right to say that they are going to deal with this by regulations rather than in the Bill, and that there will be full consultation on that. Thirdly, it is a question of a balance. In view of what we have heard already, I thought that one might think of the other side of the coin; namely, that unless we get the balance right there will be interferences with free speech which ought not to be there.

Mumsnet has written to my noble friend Lord McNally about this and its approach is interesting. Although it welcomes the Government’s efforts to reform the law, it is concerned with Clause 5 having a “significant chilling effect” on free expression. It states:

“Although internet businesses would be able to benefit from new defences, the practical outcome of the procedure as it stands will be that the vast majority of complained-of posts will continue to be taken down upon receipt of a complaint”.

Mumsnet then goes into how that will be and how it will be intimidated. It says:

“As with most major internet companies, Mumsnet is a responsible organisation that has no wish to be associated with abusive or serious defamatory comments. We have always acted promptly to remove abusive or defamatory posts once they are brought to our attention, and we will continue to do so … However, we feel that legislators have yet to fully appreciate that the problem, for companies such as ours, does not lie with seriously abusive or defamatory posts; our decision to remove those, once we are made aware of them, is easy and swiftly acted upon. The difficult cases are almost always relatively low-profile, and involve claims which—while they may be potentially damaging for the claimant—represent the truthful, non-malicious opinion or experience of members of the public. We feel it is unfair and onerous, in cases such as these, to expect Mumsnet administrators or members of the public to act as legal specialists, attempting to assess whether the complained-of material might be able to benefit from any of the defences in the Bill. We also feel that it is in no way unjust or unduly burdensome to expect the claimant—who, after all, will be in possession of the facts—to provide a minimum degree of information to support his or her assertion that the material is defamatory or unlawful”,

and so on. That is the other side of the coin, which one needs to be clear about. When we come to my separate amendment, I shall address why we need to raise the standard a bit on the word unlawful.

[Lord Ahmad of Wimbledon]

My Lords, as the debate, albeit part two of the debate that we started before Christmas, has indicated again, there are wide-ranging opinions. Let me first set out that the Government agree that it is about getting this right and getting the balance right. This is an evolving area and it is important that we discuss these matters fully. My noble friend Lord McNally and I are listening carefully and intently to the arguments being made. It has never been the intention, nor should it be, that websites should be beyond the reach of the law. My noble friends Lord Mawhinney and Lord Faulks asserted that perhaps that is what this clause is trying to do. On the contrary, it is not.

My noble friend Lord Mawhinney made the point about being beyond reproach, and that what is said on the web is instantly translated and is, as we all know, retranslated and retweeted, wherever that may go. However, to draw a comparison with the printed media, while there is a source available, there are times when a story is printed on the front page of a newspaper and gets picked up on the internet. When that story is shown not to be correct, the retraction is quite limited. In the same way, I suggest that the damage is done. Too often, what is remembered is the headline which struck when the news broke, how it broke and the sensationalism behind that news story. It is not just about the website, although I concur with my noble friend in saying that the website is something which can sometimes go beyond the limits of the person who is hosting it, and the person who initially posted it, because it is replicated elsewhere.

I will take each amendment in turn. In doing so, I will pick up the various points that have been made by noble Lords and comment appropriately. First, it is absolutely right that the law on defamation should apply in relation to online as well as offline material. The Government’s proposals would enable claimants to take action against the poster of the material, the person responsible for making the defamatory statement, rather than the website operator. However—and this is a crucial point—the operator will still be liable if the operator is shown not to have followed the process which is designed to enable that to happen. That is a crucial point.

My noble friend Lord Faulks suggested that websites are being given protection beyond other media channels. Let me be absolutely clear: the defence for such websites only applies where website operators are not the ones who post the statement. The closest parallel might be a letter to an editor which the paper chooses to publish: it is not automatic.

Amendment 23A seeks to provide for the Clause 5 defence to apply to other “electronic platforms”, rather than simply “websites”, that have defamatory material posted upon them by third parties. The purpose of Clause 5 is to provide a defence to website operators that host third party content over which they exercise no editorial control. We chose to focus on this specific category of service providers because, as the noble Earl alluded to a moment ago, it is about definitions. How do you define things? My own background in business dictates that when I saw the words “electronic platform”, I saw them from the perspective of the world of financial services, in which it often alludes to banking platforms, which are slightly more limited than websites.

I also undertook during the summer break—apart from visiting Australia as I informed noble Lords I would—to look up definitions. How do you define an “electronic platform”? The varying degree of definition not just of electronic platforms but of platforms themselves is interesting. There is no consistent application one can put in.

Looking to the development of the world wide web, the word “website” emerges from that. The noble Lord, Lord Browne, made the point that we are living in an evolving and ever-changing world. As we are looking at this issue, as crucial and sensitive as it is, I am sure that we will return to this in the years to come.

The noble Baroness, Lady Hayter, also talked about DPP guidance on criminal prosecutions. We are certainly looking at the DPP’s guidance, but we can see nothing in our proposals that would be likely to conflict with that guidance specifically.

It is not clear what “electronic platform” in Amendment 23A is intended to cover. As I have said, it has been suggested that the term “websites” is too narrow and risks not capturing new technologies in this fast-changing marketplace. We can debate and discuss which term is more appropriate, but I go back to the words of the noble Lord, Lord Browne: we live in a changing world. If in further discussion in Committee or at Report a form of technology is brought to our attention that is akin to a website and serves the same purpose in hosting third-party content, and a suitable form of words can be found adequately to describe that in legislation, the Government are open to considering that point further.

Amendment 23B would mean that a website operator who complied with Clause 5 would have a defence only against a claim for damages in defamation. As Clause 5 stands, the website operator will have a complete defence provided that he complies with the new process. As noble Lords will know, damages are by far the most common remedy in defamation proceedings, and it is difficult to see what difference the amendment would make in practice. It appears unlikely that claimants would bring a claim for a remedy other than damages. The Clause 5 process will provide a quick and cheap means for a complainant to establish contact with the poster of the material and secure take-down. Should legal proceedings be necessary, action can be brought against the poster. In the event that such a claim succeeds, damages would be payable by the poster, and Clause 13 enables the court to order the website operator to remove the material. We therefore do not consider that the amendment is necessary.

Amendment 24 seems to stem from concern that a website operator will use associates to post defamatory material on their sites, knowing that they can hide behind the Clause 5 defence. The Government are not persuaded that there is a significant risk of that happening. The noble Earl also referred to practical issues. However, in the event of such a situation, the claimant would be able to pursue an action against the individual poster and would not be left without a remedy.

In addition, there is the obvious difficulty in respect of establishing what is an association. For example, who would qualify as an associate of the website operator and how would the claimant be expected to prove that association? Conceivably, an associate of the website operator could post something defamatory without the website operator’s knowledge. In such cases, it would seem entirely inappropriate to prevent the website operator from relying on a Clause 5 defence, provided, of course—I come back to the point I made earlier—that the operator had followed the Clause 5 process.

Amendment 24A, tabled by my noble friend Lord Lucas, would mean that a website operator would not lose their defence if they had moderated the statement or had made or suggested alterations to the content. We do not believe that the amendment would be appropriate. Subsection (10) already makes clear that an operator would not lose the defence simply by reason of the fact that they moderated statements posted on the site by others. That will ensure that operators are not discouraged from moderating their sites in a responsible way. However, the amendment would go further and allow them a defence if they moderated in a way which changed the content of the statement. In practical terms, this could mean that an operator who changes the statement in a way which made it—dare I say?— defamatory, or makes the defamation worse, would be protected. I fully accept that that is not my noble friend’s intention.

I believe that my noble friend Lord Phillips seeks by Amendment 25 to add clarity. However, we do not believe that the amendment is necessary. I shall explain why. The Government’s view is that subsection (4) already provides that test. For the purposes of subsection (3)(a), it is possible for a claimant to identify a person only if the claimant has sufficient information to bring proceedings against the person. As such, the Government’s view is that the insertion of “reasonably” would not make it any clearer, because it is clear from the clause as it stands.

--- Later in debate ---

[Lord Phillips of Sudbury]

Does my noble friend have any comprehension of just what that last process would require from the complainant—the time that it would take and the costs that would be incurred in getting the court order to reveal the identity of the poster? In reality, that puts an absolutely impossible barrier against anything like a reasonable remedy for the complainant.

[Lord Ahmad of Wimbledon]

As I alluded to in my opening comments, this is about getting the balance right. If there were such a case, and I totally accept that there are issues that would arise here, there would be a cost element to this process. At the same time, there are many occasions when a balance must be struck on this, whether we are looking at professional websites or websites where people often post under a pseudonym and may be posting for good reasons of safety and security to protect themselves. That being said, though, I hear what my noble friend has said. I assure him again that we continue to consult with stakeholders across the board on the contents of such regulations and have sought their views on the practicality aspect of this new process. As I have said, this is something that we are looking at, and any suggestions that are made are looked at and discussed. I am sure that we will return to this, if not in Committee then on Report.

As I have said, we are looking at the issue of whistleblowing and the necessity at times to protect confidentiality, and setting that against the very arguments that have just been put forward by my noble friend. We feel that Clause 5 strikes the right balance. As my noble friend Lord Lester said earlier, there are two sides to the coin. The process set out in Clause 5 provides a quick and easy way for the claimant to obtain the necessary detail where the poster has no objection to providing it, but then places responsibility back on the claimant to secure a court order where the poster is unwilling to share the detail. This broadly reflects the position that applies in relation to anonymous material published offline. Where a claimant is unable to identify the author of a defamatory statement, and in the offline context does not wish to pursue the publisher, they can seek a court order for release of that information by whoever is in possession of it.

Amendment 26A would make a drafting amendment to Clause 5(4), replacing “was” with “is”. I can understand why this amendment has been brought forward, but I hope that I can reassure the noble Lords on this point. When the clause refers to posting, it is the act of posting with which we are concerned. No matter whether the posting stays up or comes down, that act has happened in the past, so it is our view that “was” is the most appropriate word. The amendment however raises important questions about what a website operator’s responsibility should be where a posting has already been removed. We are seeking views as to the content of proposed regulations and will take that issue away and consider it alongside the responses that we receive.

Finally, Amendment 29, in the name of my noble friend Lord Phillips, provides that a Clause 5 defence be defeated in cases where the claimant can prove malice by or on behalf of the website operator. The Clause 5 process requires the website operator to act in accordance with the process and entirely neutrally. It is difficult to foresee circumstances in which a website operator who complied with the Clause 5 process could do so maliciously. If it is the poster who is acting with malicious intent on behalf of the website operator, the claimant will still be able to bring proceedings against the person responsible for posting the statement. Therefore, we do not see what an amendment such as this would add to the clause.

[Lord Mawhinney]

My noble friend started by saying that it was the Government’s policy to achieve a balance and he repeated that as he made his way through the amendments. It was mildly ironic that he followed immediately after the noble Lord, Lord Lester of Herne Hill, who read a rehash of Mumsnet evidence to the Joint Committee and finished by saying that he was doing it just to ensure balance.

On the one hand, as has been made clear, lots of organisations are saying, “Free the shackles; let us do this and that; there should be no, or minimum, restriction”. We know who is arguing for freedom to defame. On the other hand, there will be lots of individuals who find their reputations tarnished or trashed, and they will have no organisations standing up for them. Will the Government therefore argue for the individuals whose reputations are at stake to ensure that the end point is balanced? If not, how do they envisage balance, when you have got Goliath on one side and not even a mini Goliath on the other?

[Lord Ahmad of Wimbledon]

I thank my noble friend for his intervention, although my recollection of the David and Goliath story is that David ended up winning. Divine intervention is always something that one should bear in mind.

Coming back to the point raised by my noble friend Lord Mawhinney about clarity and balance, as my noble friend—and indeed the whole Committee— recognises, this is a difficult area. I reiterate that the Government want to get this right and we are still taking views, as we are in this Committee, on this area. We are consulting stakeholders, as I have already said, on the content of the regulations provided for under Clause 5 and have extended the deadline for responses in this respect to 31 January. I reassure my noble friend Lord Mawhinney, whose guidance and mentoring I always welcome, that this is about ensuring that, when it comes to issues of defamation, those people who have been proven to have fallen victim are properly protected and that recourse is available. However, the balance of that has to be in ensuring that there is not too much of a burden on website operators. In some cases, as has been illustrated by other noble Lords, it is something that is, at times, beyond their control. What is important is to ensure that website operators follow the appropriate process. That said—

[Lord Mawhinney]

I thank my noble friend but encourage him to edge slightly closer to answering my question. He said a very interesting thing: that we are consulting with stakeholders and, indeed, have extended the time for consultation. That actually makes my point. The stakeholders are on one side of the argument, and the individual whose reputation is at stake is on the other side of the argument. The consultation is not even balanced. That causes, I think, concern to a number of noble Lords in this Committee. It certainly does to me, and I would like to know what constitutes balance in the mind of the Government. Incidentally, I will just throw in that we are going to have plenty of opportunity shortly to debate this Government’s theological position, and perhaps my noble friend would take a little advice: I would not go there if I was him.

[Lord Ahmad of Wimbledon]

Theology is always one to park, but, as a man of faith—and as a fellow man of faith—I take my noble friend’s guidance on that. The point I am making is about stakeholders—those people who are looking at this issue. Yes, it involves website operators, but the point of this clause is that it is not the website operators doing the defaming, it is the person who has written the statement. That is the person who should be held accountable and responsible. Where the website operators’ obligations come in is whether they have followed the process as detailed in Clause 5.

Coming back to the point about balance that my noble friend made, this is not just about talking to website operators but about talking as well to people who represent claimants, to ensure that those people who represent the body that feels it may be subject to such actions are also heard and that their case is also made. However, I am sure that my noble friend would agree with me that, if we started consulting every single individual who may or may not be concerned on an individual basis with this, our Committee would continue for a very long time. Nevertheless, as I have alluded to several times—and I repeat the point again—in speaking to all these amendments it is important for me to place on record that the Government are aware of the pace of change in internet and electronic communications. Even as perhaps one of the younger Members of your Lordships’ House, I remember in my professional life when the internet first came alive. Things are changing by the minute, and the pace of change is somewhat beyond even my comprehension. There are innovations in electronic communications and, as I have indicated in all my responses, in particular in response to Amendment 23A, we have an open mind in respect of terminology. In addition, we believe that putting the details of the Clause 5 process in the regulations provides greater flexibility to adjust aspects of the new procedure should that prove necessary as technology develops.

[Lord Faulks]

I am grateful to the Minister for giving way; he has been patient and has had to deal with a lot of amendments. He was dealing a little while ago with Amendment 29 in the name of my noble friend Lord Phillips of Sudbury. I understood his answer to be that he could not conceive of circumstances in which an operator of a website could be malicious, and this amendment was therefore not necessary. However, operators of a website are given an admittedly qualified privilege by Clause 5 which puts them in exactly the same position as those in other fields of the law who have a qualified privilege, the defence of which is defeated by malice. Is it not therefore inconsistent that such a remedy should not be available in the terms of this amendment? It may not happen very often, but that is no reason for it not existing at all.

[Lord Ahmad of Wimbledon]

I hear what my noble friend says. Perhaps we can refer to this matter; he makes a valid point. As he rightly acknowledges, we would not see this issue occurring on a regular basis, but I will certainly reflect on his comments on this.

A variety of amendments has been tabled. On “balance”, I suppose it depends how you define the word. However, in seeking to bring the Bill forward, and particularly with this clause, the Government are seeking to strike the right balance. We continue to listen, hear and consult with all parties on both sides of the coin. We are working to ensure that something practical and workable, which protects those who are subject to such actions, comes out of this process.

[Lord Lucas]

My Lords, I was encouraged by my noble friend’s response, and by his batting at the subsequent bowling. It is clear that we are both aiming in the same direction and that, given the expertise of his colleagues and the good will of the Government, we may get somewhere interesting. I would be grateful if he would allow me to come in for a meeting with officials, preferably before the end of January if that is his consultation deadline, to pursue some of the practicalities; a nod will do on these occasions.

We should be more robust in talking to website operators about right of reply. This is merely a question of tweaking a few lines of code. It may be inconvenient for people to do it, but it is essentially practical. It is such a fundamental thing, given the way in which views, opinions and statements travel now, that one should be able to attach a reply to it and deal with it robustly in that way. To have a statement with a reply available to people as soon as they pick something up is a powerful thing in the internet world. That is has not been provided for is merely that it has not been coded. It is essentially not impossible under any circumstances with any website if people put their mind to it. It will not happen immediately, but it should certainly happen within a year if that is a requirement. I would be chary about accepting excuses on that.

There is something to be said for looking at different arrangements for statements about real persons as opposed to statements about businesses. Picking up on the points made correctly and forcefully by my noble friend Lord Faulks, if someone is accused of something which goes to their person, that cannot be allowed to hang around for seven days, or even seven hours, without being dealt with. It should not be within the policies of any reputable web operator that such statements are allowed on their website. These things belong in the hands of the police if there are real accusations. It should not be part of our view of electronic media that it is there to give currency to that sort of statement, whether true or not.

On the other hand, we must be powerful in allowing people to make statements about businesses or the way in which people do business, and to allow website operators to be robust in their defence of people who have made those statements on their websites. As Mumsnet said, the easy answer is to take them down. The only way to defeat that easy answer is to make very clear and very practical the responses that are available to the website operator so that they can have certainty in knowing whether a comment is sensible and that the law allows them to stand by it. That is what I want to pursue with the Minister when we have our meeting. On the point about maliciousness, we are talking about a lot of little website operators and not just the big guys, and there are some very malicious ones out there.

[Lord Ahmad of Wimbledon]

I would of course be happy to arrange a meeting. The benefit of being in the Moses Room is that your officials are right behind you, and I am sure that they have noted it as I have.

[Baroness Hayter of Kentish Town]

My Lords, as in December I wished the Committee a happy Christmas, maybe now that the Minister is back from Australia I can wish the Committee a happy new year. I thank the Minister not only for coming back from Australia to address us but for his response. I thank also everyone who has spoken, particularly my noble friend Lord Triesman and the noble Lords, Lord Phillips of Sudbury, Lord Lucas, Lord Faulks and Lord Mawhinney, for their support. I am grateful also for the contributions of the noble Lord, Lord Lester, and the noble Earl, Lord Erroll. I am sure that the noble Lord, Lord Mawhinney, does not need reassurance that his summary of the Joint Committee was, as always, spot on and symptomatic of what he did in that committee, focusing straight in on the victim, who often has no recourse to law.

There is a view that somehow the web is less serious than the printed word, but when I was learning my journalism, I was told, “Remember that today’s newspapers are tomorrow’s fish and chips wrappers”. Actually, some printed words are so ephemeral that the web is more serious rather than less serious.

I am still not quite sure what the Minister thinks is a website. Perhaps he will tell us in a moment whether Facebook is a website, whether a Tweet is a website and whether our Lords blog—which I recommend to you all—is a website, because it would be useful to know.

Given that we are in the slightly unusual position of having previously adjourned in the middle of an amendment and having the Hansard for part of it, perhaps I might quote what the noble Lord, Lord Phillips of Sudbury, said on 19 December. He said:

“The disparity of arms between claimant and defendant is nowhere more vivid than in relation to the web operators, many of which are huge multinational companies. They do not do this for fun—they are not like a village notice board. They do it for profits, and mighty big profits … They are the Goliath in the defamatory relationship … and … their impunity is not justified in terms of freedom of speech”.—[Official Report, 19/12/12; col. GC568.]

That is really the nub of what we are talking about. Along with the noble Lord, Lord Mawhinney, I cannot agree with the view of the noble Lord, Lord Allan of Hallam, that, with the web, we are talking just about private speech in a public space. We are talking about a publication, whether it arrives on your iPad, on a laptop or on something else. The issue of anonymity arises more frequently on a website than it does in a publication, which is perhaps why we concentrate on it, but if what the Government are suggesting—the 72 hours, the seven days and then going to court—is accepted, everyone who wants to defame will just go anonymous. Why should they not just go anonymous, knowing that they will basically be beyond the reach of the law?

Some of our amendments to which the Minister has referred are fairly uncontroversial. I would have thought that the “electronic platform” proposal is surely worthy of consideration. We may not have got it right, but I hope that what we have at the end is robust even if it is done by attached guidance. However, I will concentrate on two of these amendments.

--- Later in debate ---

[Lord Ahmad of Wimbledon]

My Lords, I thank all noble Lords who have taken part in this detailed debate. Arguments have again been presented to show both sides of the coin. Amendment 26, in the name of my noble friend Lord Lester, would require a claimant to set out in a notice of complaint why the statement complained of was not merely defamatory but also unlawful.

Our clear aim in bringing forward the Bill is, as the noble Baroness, Lady Hayter, has said, to make the law on defamation clearer, cheaper and easier for the ordinary citizen to use. It is perhaps reasonably easy for an ordinary person to understand and explain why a statement may be regarded as defamatory; it is quite another for the same person to explain, without recourse to legal advice, how that could be deemed unlawful. That arguably would involve a thorough knowledge of the law, both statute and common, and a rebuttal of the various defences that might be available to the person making the statement. The aim is to avoid putting lawyers rather than the parties at the heart of the argument. For those reasons, the Government are opposed to the amendment.

That said, we of course share the concern of those who argue that complainants should give some explanation as to why they think a statement is defamatory. The note that we have provided to the House on the content of the regulations makes clear that, where appropriate, complainants should, in a notice of complaint, provide details such as the meaning attributed to the words complained of and why they are defamatory, including any factual inaccuracies or unsupportable comment. This reflects the wording in the defamation pre-action protocol in relation to the contents of a letter before a claim, and we believe that this is an appropriate level of detail to expect complainants to provide.

Amendment 27, in the names of the noble Viscount, Lord Colville, and the noble Lord, Lord Allan of Hallam, has two purposes. First, it seeks to place in the Bill, as the noble Baroness, Lady Hayter, suggested, a number of requirements that a complainant’s notice of complaint should meet. As I indicated in speaking to Amendment 26, we share the concerns of those who argue that complainants should have to give some explanation as to why they think a statement is defamatory of them. I have explained the level of detail that we think is reasonable to expect a complainant to provide in order to enable the poster of the material to understand the basis of the complaint.

As I have also said, we believe that to require a claimant to go further and prove that the statement was unlawful would make it more onerous and difficult for a layman to make a complaint without first having sought sound legal advice, nor do we see how it would be in the interests of website operators, who would also have to seek legal advice, and could end up in litigation over the validity of notices that they chose to reject.

My noble friend Lord Marks talked about the need for as much detail as possible to be put in the Bill so that people can readily understand what is required. We believe that the regulations are the appropriate way to deal with the issues of detail within the framework established by Clause 5. However, we will ensure, after listening to the debate as well, that detailed guidance is published prior to the commencement of any new provisions to assist complainants, posters and website operators in understanding and following the new process.

The second part of Amendment 27 would allow the Secretary of State to make a provision in regulations for a procedure whereby a complainant can obtain from the court a declaration that his notice of complaint is valid—namely, that it meets the requirements of subsection (6). It has been indicated with regard to amendment that the procedure would also be available where either the poster of the material or the website operator wishes to apply for such a declaration.

I referred to the contribution made by the noble Viscount, Lord Colville. I agree with him that the whole purpose of Clause 5 is to provide a simple, quick, cheap and effective means for the complainant to request the removal of potentially defamatory material and for the poster to engage with this request for removal and stand by his posting if he wishes to do so. It was suggested that the Norwich Pharmacal process may not be effective in securing the necessary information on the poster. We propose in the consultation that the poster should be required to provide the full legal name and contact details, including their postal address. If they fail to do so, the website operator would have to take the material down. This, we believe, should help to ensure that the Norwich Pharmacal process enables the complainant to obtain sufficient information to enable him to bring proceedings against the poster.

As several noble Lords have noted, the system that Amendment 27 proposes would seem to require complainants to go to court at the outset, prior to making a complaint, to obtain a court declaration that their notice of complaint is valid. Presumably, any complainant who did not have such a declaration would not have their complaint processed by the website operator. It is unclear to us how this procedure could be adapted to deal with applications by posters or website operators, and at what stage these would be made. In any event, and as the noble Baroness, Lady Hayter, has mentioned, this additional process is likely to add unnecessary cost, delay and burden for the individual. In at least some cases, we believe that posters will be content for their statements to come down. Under this system, complainants would have to incur the time and expense of going to court irrespective of the attitude of the poster. Additional burdens would be created for the court system. The proposed amendments do not strike a fair and appropriate—we come back to that word again—balance between the interests of freedom of expression and complainants’ rights to reputation.

I concur with many of the points made by other noble Lords, including my noble friend Lord Faulks, and hope on the basis of the explanation that I have given that noble Lords will not press their amendments.

[Lord Lucas]

My Lords, my noble friend has got his answer to Amendment 26 completely wrong, particularly so far as website operators are concerned. I do not care a fig about knowing whether a comment is defamatory; it is obvious that “The food was filthy” is defamatory. What I want to know is whether I can publish it or whether the restaurant says, “No such meal was served on that evening” or “We know this fellow from before and he has been completely unreasonable on other occasions” or gives us some reason that the comment is fair. It is absolutely crucial that Amendment 26 is accepted. Just to know that something is defamatory gives you no information and you can see that with your own eyes; it is obvious. What is not obvious is why it is unlawful. In order to take a reasonably robust attitude to standing between a complainant and the person who has made the posting, and who may well quite reasonably wish to be shy, not least because they think that they have sinned against some large corporation that will skin them in the courts if they are identified, I would want as a website operator, as I imagine other website operators do, too—certainly, those to whom I have talked do—to be in a position to stand behind something that we consider to be fair comment. We need to know why the complainant thinks that it is unlawful. We all know why it is defamatory.

[Lord Brown of Eaton-under-Heywood]

My Lords, it may be a response to the noble Lord, Lord Lucas, to say that while there is of course a distinction between what is defamatory and what is illegal, it is not necessarily for the complainant to dictate why it is illegal. Thought might perhaps be given to making a regulation under Clause 5(3)(c) that put on the operator who sought to invoke this defence the need to say why, notwithstanding that the statement was defamatory, it was none the less lawful to publish it. That might be a better way of achieving the balance than putting, as other noble Lords have recognised, the often financially onerous burden on the complainant to anticipate and meet in advance the several defences that may or may not be urged as justification for the publication.

[Lord Ahmad of Wimbledon]

The noble and learned Lord makes a valid point, which we shall certainly consider.

[Lord Lester of Herne Hill]

My Lords, I am grateful to everyone who has taken part in this brief debate and particularly to the Minister for his reply, with which I do not agree and will have to come back at a later stage to explain in more detail why.

I should like to talk about the wider world, because what we are debating today will be of interest not only in this country but in Beijing and Washington DC. Noble Lords will probably understand that in the United States, on the one hand, the extreme position is adopted that there is absolute immunity, subject to malice, for website defamation. You cannot sue an American website operator under federal statute law, state statute law or common law in the United States. On the other hand, in China you have the opposite position, and the same is true in the former Soviet Union. In China in particular, the great firewall of China and the Chinese intranet prevent proper access to an uncensored website within China. Noble Lords will have read what happened last week, deplorably.

In Europe, we have a compromise. We have the e-commerce directive, which has a notice and take-down procedure in general terms. We have to obey EU law. We have e-commerce directive regulations. The balance is put in very broad terms and can be fleshed out in various ways, but it does not allow either an absolute immunity on website operators, American style, nor does it allow the extraordinary regulation by the state that obtains in the People’s Republic of China.

Curiously, the noble Lord, Lord Faulks, suggests that we do not need any law on this at all. That will make the noble Lord, Lord McNally, smile, if he remembers that when we discussed all of this many months ago, he quite rightly said that we have to try to clarify the internet position and we cannot just duck it; we need to have reasonable legal certainty in order to include it in the Bill. He was right, and it was quite right of the Government to seek to do that. It is extremely difficult, which is why most of this will have to be done by way of regulations and not in statute.

The burden of proof in all defamation cases under English law will remain upon the defendant. We have not adopted the Sullivan rule in this country and put the burden of proof on the claimant. The defendant therefore starts off and finishes with having the burden of proving the various defences. All that we are considering is what is appropriate for a complainant to have to provide to the website operator. The great problem is that the website operator—if it is Google, Yahoo! or Amazon, or a newspaper with a website—has no commercial interest in keeping matter that is in the public interest on the website if they are threatened with litigation or, worse, “unreasonably”.

Suppose, for example, that Google were to make serious allegations of corruption in the state of Ruritania, and someone from the state of Ruritania then complained about it being on the web. Google would have no commercial interest in maintaining that very important public-interest statement on the web, especially if it was going to be faced with multiple claims to take down without any obligation on the complainant. We are therefore trying to find a balance in a way that we protect free speech by not encouraging unnecessary take-down, while at the same time providing effective remedies to the serious victims of violations of reputation on the net.

The reason I do not agree with the Government’s present position is not just an argument about whether or not it is compatible with the e-commerce directive to leave out the word “unlawful”. It is also because the Government give the game away in indicating that the regulations that they are proposing will, in effect, do precisely what the words “and unlawful” will—or, as my noble friend Lord Phillips suggested, “unlawfully defamatory”; that would do perfectly well. However, there must be something more than a simple statement that something is defamatory.

I am sure that we will need to come back to this, because it is very important and difficult. I am not dogmatic about a solution. I beg leave to withdraw the amendment.