Defamation Bill

Lord Ahmad of Wimbledon Excerpts

Tuesday 5th February 2013 Lords Chamber

[Lord Puttnam]

My Lords, I shall speak to Amendments 1, 24 and 25 and associate myself with those tabled by the noble Baronesses, Lady O’Neill and Lady Hollins.

Four months have passed since the Second Reading of this Bill—

[Lord Ahmad of Wimbledon]

My Lords, I ask those who are leaving the Chamber to, as a courtesy to the noble Lord, do so quietly.

[Lord Puttnam]

My Lords, four months have passed since Second Reading; two days earlier, on 7 October, the Prime Minister had committed to implement the Leveson recommendations so long as they were not, as he put it, “bonkers”. Since returning from the Christmas Recess, I do not believe myself to be the only Member of your Lordships’ House to have felt a little like the principal characters in Samuel Beckett’s tragicomedy Waiting for Godot. As your Lordships will remember, they came even to contemplate suicide—anything, as they put it,

“to hold the terrible silence at bay”.

These amendments are designed to break that terrible silence.

Like my fellow signatories I was moved to act following the remarkable display of unity mixed with frustration that typified the delayed debate on the Leveson inquiry that was held in your Lordships’ House on Friday, 11 January. This mood was, I felt, brilliantly summed up by my noble friend Lord Alli when he concluded:

“I … say to my fellow Back-Benchers on all sides of the House that leadership … does not always come from … the Front Benches. We, too, have our role to play … this would … be a good time to intervene on timing. If we believe that the recommendations of Lord Justice Leveson require action, we on the Back Benches in this place have a … constitutional role to play in making that happen”.

He went on to say:

“There is an onus on us to ensure change. In doing so, we can help to restore trust in the press, in the police and in … Parliament”.—[Official Report, 11/1/13; col. 381.]

He is right, of course. I believe that we, as active Members of this House, have an obligation to act, and to be seen to act, on behalf of victims past, present and future.

I am no lawyer, but my concern to create movement has been enormously buttressed by the support of the noble and learned Lord, Lord Mackay of Clashfern, the noble Baroness, Lady Boothroyd, and the noble and learned Baroness, Lady Scotland, all of whose exemplary careers and knowledge more than compensate for my legal and constitutional inadequacies.

The Bill before us contains a fatal flaw: it does not deal with the manner in which ordinary citizens will be able to utilise the protection that it offers. The Bill has been drawn up with the help of newspapers, which understandably see the world through their own looking glass. Anyone who reads the Bill as it stands will not find so much as a hint of the fact that we live in a country that has spent much of the past two years debating the fall-out directly attributable to the unaccountable power of newspapers over our public life and over the lives of ordinary citizens. It is almost as if Leveson never happened.

In his reply, the noble Lord, Lord McNally, might wish to recall the absurd situation that he and I were placed in 10 years ago when we were asked to scrutinise the then Communications Bill but not to debate or discuss the implications of the emerging digital world. That was pushed safely back into the “too difficult” drawer. We have all looked a little daft ever since. These amendments seek to address those real-world concerns. They put into effect an arbitration system that would allow ordinary people to get redress if they are defamed under the new definitions that we are passing into law within the body of this Bill.

The Bill may deal with some of the perversities of the current libel system, which is largely to be welcomed, and it can be reasonably expected to lead to fewer defamation actions against newspapers. However, for the citizen who has a case in law that suggests they have been wronged by the press, the Bill has absolutely nothing to say about access to justice or the costs of seeking that justice in the courts, all of which is plainly unaffordable except for the very wealthy. After everything that we heard at the Leveson inquiry, the problems of access to justice and to remedies are far too important to be left unresolved. It is fundamental to the issue of balancing the rights of the citizen against the rights of the press; it cannot continue to be overlooked or shoved off to form part of some future piece of legislation.

Fortunately for us, Lord Justice Leveson has already proposed a ready-made and carefully considered solution. The advantage of our simple amendments is that they closely follow those recommendations, which laid out exactly the way in which this system of low-cost arbitration should be introduced to deal with legal disputes involving newspapers. They also have the merit of showing that the arbitration service proposed by Lord Justice Leveson can be put into effect in a remarkably simple and straightforward manner.

After his exhaustive and searching inquiry into the newspapers and their relationship with politicians, Lord Justice Leveson’s written recommendations said that the board, by which he means the new independent self-regulation body to be set up by the newspapers,

“should provide an arbitral process in relation to civil legal claims against subscribers, drawing on independent legal experts of high reputation and ability on a cost-only basis to the subscribing member. The process should be fair, quick and inexpensive, inquisitorial and free for complainants to use (save for a power to make an adverse order for the costs of the arbitrator if proceedings are frivolous or vexatious). The arbitrator must have the power to hold hearings where necessary but, equally, to dispense with them where it is not necessary. The process must have a system to allow frivolous or vexatious claims to be struck out at an early stage”.

That is the system that these amendments seek to put into effect. It also happens to be the system for which the newspapers have shown broad support, and it closely resembles the system welcomed by the noble Lord, Lord Hunt of Wirral, who is holding the national newspapers’ negotiations with the Government. In his evidence to the Leveson inquiry, the noble Lord said:

“It could prove extremely valuable to the UK system of self-regulation if such a provision could be inserted as an amendment to the current government Bill”.

He went on to say:

“I do not believe this in any way crosses a ‘red line’ for those of us who have serious qualms about a statutory regulator”.

The newspapers also know only too well that an arbitration service could save them collectively hundreds of millions of pounds a year in legal costs.

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[Lord Faulks]

My Lords, of course, there is in the Bill a significant hurdle for any claimant, whether a non-natural person or a natural person: they have to show serious harm, so that is a hurdle of itself.

I supported the general tenor of this amendment in Committee but expressed a reservation at that time. Indeed, the Joint Committee on Human Rights expressed a similar reservation, which is: what about the small companies? Of course, I accept that the individual can sue if he or she is sufficiently identified, but if it is a small business—say, the local ice cream vendor; maybe nobody knows them by name but they have a valuable local business reputation—it will have to overcome considerable hurdles before suing. It will have to show substantial financial loss; it may not be very substantial objectively but it may be very substantial to that business. The hurdle of serious harm added to this procedure seems to prevent it recovering in circumstances where it should be able to recover.

Malicious falsehood may be difficult to prove, in the sense that malice is always difficult to establish. None the less, if I say that Hayter & Co. is going out of business, when it plainly is not, it is not difficult to infer malice from that pronouncement. It would be unfortunate if companies had to resort to the alternative tort in circumstances where they should, in my view, be able to rely on ordinary defamation.

My final observation relates to proposed new subsection (4). I accept what my noble friend Lord Lester said about the public function. Deciding whether somebody performs a public function is not necessarily very easy, just as deciding whether something is a public authority for the purposes of the Human Rights Act has caused the courts considerable distress.

I have sympathy with the general tenor of this amendment but I cannot go all the way with it.

[Lord Ahmad of Wimbledon]

My Lords, I thank all noble Lords who have taken part in this short debate. As has been pointed out, Amendment 2 concerns two distinct but related issues. Indeed, my noble friend Lord Lester, who I greatly respect with regard to this Bill in particular, described it as two limbs. That is a nice way of reflecting on the current Government, in having two arms to the same body, and we are seeking to move forward on these matters.

The issues that have been raised again this afternoon were extensively debated during the previous stages of this Bill. These are whether there should be restrictions on the right of bodies corporate and other non-natural persons to bring an action in defamation, and whether any non-natural person which is performing a public function should be prevented from bringing a claim in relation to a statement concerning that function.

In relation to the first issue, the Government have made it clear in previous debates that there is a difficult balance to be struck, as the most reverend Primate articulated. Considerable damage can be done to the reputation of a business by unjustified and defamatory allegations, and this has an impact on all those involved with the business, including its shareholders and employees. On the other hand, we fully recognise the need to ensure that powerful businesses are not able to—for want of a better term—bully individuals or organisations with limited means into remaining silent on issues of public importance by the threat of libel proceedings.

However, if that is the problem we are trying to solve, imposing specific restrictions on the ability of businesses to sue does not seem justified. Wealthy individuals can equally send threatening letters to those with limited means. This is why we think the twin-track approach we are proposing is preferable. It embraces both elements within the Bill and procedural changes alongside it.

First, all claimants—corporate or otherwise—will have to satisfy the new test of serious harm, as my noble friend just mentioned. As we have made clear, it is our intention that the serious harm test will raise the hurdle for bringing a claim and will ensure that trivial claims do not proceed. In order to satisfy the serious harm test, businesses are likely in practice to have to show some form of actual or likely financial loss. The courts have talked in terms of,

“a tendency to directly affect its credit or property or cause it pecuniary damage”.

Quite what that will require will depend on the type of business concerned and the facts of the particular case, and we do not think that it is helpful to attempt to define explicit restrictions in the Bill.

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[Lord Lucas]

My Lords, as a website operator, I urge my noble friend the Minister to take no rubbish from website operators. I have great sympathy with the purpose of this amendment. There are a lot of people out there who are essentially defenceless when things appear about them on the web. We need to make sure that the regulations enable them to get easy redress and relief and that we do not allow long timescales to suit operators when short timescales would suit the people who have been defamed. At the same time, as my noble friend said, we have to balance that with our freedom to be rude about people who we need to be rude about and to say nasty things about Ruritania or anywhere else, and to keep the powerful under control. It is a difficult balancing act. I think that the right way to deal with this is in the regulations under Clause 5(5), which can go into some detail and some precision about this. I would hate to be subject to this amendment. As a website operator I really would not know where I was, or what I was or was not allowed to do, particularly with no supporting regulations. Therefore, I cannot support the amendment but I very much support the spirit behind it.

[Lord Ahmad of Wimbledon]

My Lords, I thank all noble Lords who have taken part in this debate. I particularly thank my noble friend Lord Lester for his intervention.

Clause 5 provides a defence to website operators if, upon receipt of a notice of complaint, they follow a process designed to ensure that the issue is resolved with the poster of the material. My noble friends Lord Faulks and Lord Phillips raised concerns in Committee about Clause 5, and my noble friend Lord McNally and I met them to discuss those concerns. I am pleased to say that, as has been acknowledged, as a result of those discussions the Government have been able to bring forward Amendment 17 on the issue of malice, which I shall speak to in the next group of amendments. However, this amendment takes a different approach to that taken by the Government in Clause 5. As has been said, it would replace the Clause 5 defence and the accompanying process with provisions which substantially replicate the defence for secondary publishers currently found under Section 1 of the Defamation Act 1996 but with one important addition. New subsection (1)(d) would require the operator, on receipt of a complaint, to respond with expedition and to take such action as is reasonable in the circumstances.

This additional requirement would mean that, in order to have a defence, the operator would, on receipt of a complaint, need to make a judgment on what action it was reasonable to take. This would inevitably involve them reaching a view on the merits of the case, which in most instances they would not be in a position to do. The fact that they would lose the defence if a court decided that they had not acted reasonably would create a great deal of uncertainty for website operators, and we believe that in practice it would mean that many operators would simply choose to take the material down. That would result in exactly the same situation that we have now—an approach which has been criticised as unsatisfactory not only by a large majority of the responses to our public consultation but by the Joint Committee on the draft Bill and by the Law Commission in its 2002 scoping study on defamation and the internet.

Subsection (2) in the amendment would require the court, in considering whether or not the defence was made out, to take account of any steps taken by the operator to have and comply with a code of practice in relation to defamation, a complaints procedure or a system for providing identity details of posters to claimants to enable them to bring proceedings against the poster. I totally understand the intention behind the proposed subsection but Clause 5 already sets out a simple process in relation to the handling of complaints and the provision of identity details. In the event that a complainant brings proceedings against a website operator, the court will be able to assess whether the operator has complied with that process. This will ensure that the court takes into account how the operator has responded to the complaint. Perhaps I may also inform noble Lords that we will be publishing specific guidance on how the new process will operate for all those involved.

We have heard a great deal about balance. This new approach is about striking the correct balance and also providing protection to website operators. It is about striking a fair balance between those who have allegedly been subject to defamation and freedom of expression and speech. We believe that the defence in Clause 5 strikes a fair balance between all the interests involved. It will help freedom of expression by giving the poster of allegedly defamatory material an opportunity to stand up for it if they wish to do so, and it will give greater certainty to website operators. At the same time, it will enable claimants to secure take-down of the material on a short fixed timescale in the event that the poster does not wish to defend it. Where the poster does wish to defend it, it will also ensure that the Norwich Pharmacal process is more likely to give the claimant the information they need to pursue proceedings. I hope that on that basis my noble friend will be prepared to withdraw his amendment.

[Lord Phillips of Sudbury]

I am grateful to those who took part in this debate. I heard what the Minister said but I fear that I remain completely unassuaged. I think that we will rue the day that the Bill goes through in this form. All I can say is that I hope very much that when the regulations come to be drafted and debated, they will in some way compensate for what seems to my noble friend Lord Faulks, myself and indeed others to be a serious misbalance. On that basis, I beg leave to withdraw the amendment.