Defamation Bill

Debate between Lord Ahmad of Wimbledon and Lord Lucas

Tuesday 5th February 2013 Lords Chamber

[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.

Defamation Bill

Debate between Lord Ahmad of Wimbledon and Lord Lucas

Tuesday 5th February 2013 Lords Chamber

[Lord Ahmad of Wimbledon]

My Lords, Amendment 16 would allow the regulations governing the Clause 5 process to provide for a procedure for a complainant, website operator or person who posted the statement complained of to seek a court declaration as to whether the complaint meets the basic requirements of a libel claim.

This amendment seems to envisage the creation of a system whereby, alongside the Clause 5 process, any party can seek a court declaration on a prima facie basis. It is difficult to see what incentive there would be for a complainant to do this. Such a declaration would not be determinative of the merits of the case or affect the availability of the Clause 5 defence, and so it would potentially just be an additional—and costly—step before registering a notice of complaint. Instead, the proposal appears primarily to be aimed at helping website operators to make informed decisions as to the strength of complaints so that they can be more confident in removing material or leaving it online depending on whether or not a declaration is granted.

We have serious practical concerns about this proposal. It has been suggested that the process could operate through consideration by a High Court master, on the papers, at very short notice and on payment of a nominal court fee. That seems unrealistic. We consider that it does not adequately take account of the time the process would take, given the significant additional burden on the courts, the extent of the evidence that could be needed to reach a decision and the consequent costs to the parties involved. There is also the possibility of rulings being appealed, which could add to the time and costs involved. Bearing in mind that the prima facie declaration would not be determinative of the merits of a case, it is difficult to see how that is warranted.

In any event, we do not consider that this additional process is needed. Clause 5 is intended to operate in such a way as to avoid website operators having to make decisions about the merits of defamatory complaints. The representations we received from many website operators during consultation on the draft Bill indicated that they did not have sufficient knowledge to make these judgments and that it was not appropriate for them to be doing so.

In response, we have sought to create a simple, quick, cheap and effective means for the complainant to request the removal of defamatory material and for the poster to engage with this request and stand by his posting if he wishes to do so. We think it is right to remove the website operator from the process as far as possible, so that if they follow the process as will be set out in regulations they will have a defence against a defamation action.

Of course, if for business reasons a website operator wishes to protect their users because doing so helps them financially, there is nothing in Clause 5 that will stop them from doing so. However, we do not think that an amendment to support them in doing so is appropriate.

I say again that the Government believe that the Clause 5 process, which, as I explained, focuses on creating a system under which website operators do not have to reach judgments on the validity of complaints, is a preferable approach which will be fair to all parties involved and will deliver additional certainty and protection for website operators. We believe that it is simpler and will not involve the cost and delay of the system envisaged under Amendment 16. With the explanation that I have given, I hope that the noble Lord will withdraw his amendment.

[Lord Lucas]

My Lords, I am grateful to my noble friend for that. I say as an aside that I always considered that the business of this House was to consider a Bill properly, not to get home to bed, and that we should take the time that it takes. Perhaps my noble friend will give me at least a short explanation of Amendment 22 when we get there, but meanwhile I beg leave to withdraw the amendment.

Defamation Bill

Debate between Lord Ahmad of Wimbledon and Lord Lucas

Tuesday 15th January 2013 Grand Committee

[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.

--- 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.

Defamation Bill

Debate between Lord Ahmad of Wimbledon and Lord Lucas

Wednesday 19th December 2012 Grand Committee

[Lord Lucas]

My Lords, perhaps I may first ask a question on the matter raised by the noble and learned Lord, Lord Lloyd of Berwick. The Minister said in his reply that he thought that it would now, under this Bill, be fine if someone reading the letter could refer to the article, because that was referenced, and that would cover things. Would that be the case if the letter concerned was behind a paywall? As would commonly be the case on Twitter or blogs or whatever, you might well find that the letter had been published in the Times or the Financial Times or some other place which is only accessible if you pay some mogul a large sum of money annually, and is therefore not in a practical sense accessible to someone who just happens to read the letter and react to it. Would that mean that if you published behind a paywall and then commented on it you were not protected by the law as it is set out in this Bill?

Secondly, I turn to the subject of my amendments. As a practical user of the Bill, I am going to find it very difficult to know what is opinion and what is not. At the moment one has to go through ridiculous and convoluted forms of language such as, “I felt that the food was cold” or “I believe that my son was bullied”, in order to make it clear that you are talking about opinion. It does not say clearly anywhere in this Bill that when you are talking of personal experience, that is equivalent to opinion. We are coming to the effects of this clause on Clause 5 concerning website operators when judging whether an incoming comment is a comment or a statement of fact. It is very important to have rules and to know where the law lies, but at the moment Clause 3 does not make that clear. I continue to have a problem with the way paragraph (4)(a) is expressed. Something is not an honestly held opinion,

“on the basis of any fact which existed at the time”.

That does not appear to have any application to whether the person who held the opinion was aware of the fact, or indeed was even capable of being aware of the fact. If the fact existed, that makes the opinion a dishonest one and therefore not protected. Again, I find that concept very difficult.

I shall certainly bring these matters back on Report, but I will be grateful for any guidance and perhaps the opportunity to go through these things with officials before the next stage.

[Lord Ahmad of Wimbledon]

I thank my noble friend for his questions. I can give him an assurance that we will write to him on the specific points that he raised. That will allow for a proper period of reflection.

Defamation Bill

Debate between Lord Ahmad of Wimbledon and Lord Lucas

Monday 17th December 2012 Grand Committee

[Lord Lucas]

Yes, but that is not the way things operate in practice. A lot of the time, the views expressed by someone like me are second-hand, while the views expressed by parents are perhaps not backed up by fact. It is not that we cannot comment, but in my view schools should have a defence against something that is unreasonable. At one point we had to pulp an edition of the guide because of what we had said, and I accept that as a proper interpretation of the law. To have a situation where no school can sue under any circumstances would put them at an unreasonable disadvantage. I appreciate that someone in my position has many privileges, but they should not be absolute.

[Lord Ahmad of Wimbledon]

My Lords, listening to our debate with great attention means that one defines it almost along the line of whether or not you are a lawyer. I am also conscious that we have heard an array of accents, including both Scottish and Northern Irish. I will do my best to explain the Government’s position in whatever accent noble Lords believe mine to be.

As has already been said, and as I am sure noble Lords appreciate, this is an area where the law is still developing. In Derbyshire County Council v Times Newspapers, the House of Lords held that local authorities and government bodies are already prevented from bringing actions for defamation. My noble friend Lord Lester of Herne Hill said that he was involved in that case. Therefore, I speak with a degree of trepidation. However, I heard him express support for the position that I am going to outline. My noble friend referred to the Government’s consultation paper in which we sought views on the suggestion that this principle should be put in statute and on whether it should be extended to a wider range of bodies exercising public functions. A clear majority of the responses considered that wider statutory extension of the Derbyshire principle would not be appropriate and took the view that this would represent a significant restriction on the right of a wide range of organisations to defend their reputation. Indeed, my noble friend Lord Lucas expressed that view. We share that concern. We also consider that a statutory provision would be too rigid and could also lead to litigation and uncertainty over whether particular bodies and functions fell within its scope.

As I have said, the law in this area is still developing and legislation could remove the flexibility that exists under the common law for the courts to develop the Derbyshire principle as they consider appropriate in the light of individual cases. We believe that it is better to allow the courts to do this rather than introduce a rigid and restrictive statutory provision. On that basis, I hope that the noble Baroness, Lady Hayter, will agree to withdraw the amendment.