Defamation Bill

Lord Allan of Hallam Excerpts

Wednesday 19th December 2012 Grand Committee

[Lord Lucas]

We are dealing with the web operator as a conduit and not as a publisher. If I want to make a particular statement about a company that I feel has wronged me, I will do so using public media such as Facebook, Twitter or other sites on which I might post a comment. That is me making that statement. If I am identifiable, which I think is quite proper, then the action should be against me. Otherwise, it means that those who are behaving badly and wish to hide that bad behaviour can simply wipe all record of my complaint off all public websites without any risk or trouble to themselves. I would say that it is in the public interest that I make my views on this particular company known, but I am going to be deprived of all means of doing so in an electronic world because I will have no access to what becomes the medium of communication, because as soon as I say anything there the company that I have complained about can wipe it out. That seems to me an entirely unreasonable situation.

We have to recognise that we are dealing, as the noble Baroness, Lady Hayter, said, with a different world and a different way of doing things and that if we want news of bad practice to spread, we have to allow it to be published. Allowing it to be published means holding harmless those who are acting as a conduit. I am a publisher and recognise that if I publish something unpleasant about some school or person then I, as a publisher, take that on the chin. That is part of my remunerated business. However, the owners of Twitter are getting no benefit from the fact that I have tweeted something on it—there is no revenue with which to offset the cost of establishing that I have a right under law to say what I have said, so they will immediately take it down, if complained against, unless we provide them with some kind of “hold harmless” defence. So it is very important that the conduits, if they behave well, establish the identity and share it with the complainant, and can continue to publish until the point has been reached where it has been established in a court of law, or by agreement or otherwise, that what has been said is defamatory.

I agree with the noble Baroness, Lady Hayter, that it is very important that, where something has been said about a company or a person that is considered defamatory, a statement from the person who is being defamed should be published alongside the original statement. That is a relatively easy technical thing to do, and I do not think people should have to wait seven days. It should be relatively automatic. These days, one day—certainly one working day—is enough to do that. That should be an automatic right, because it is easy to do and balances things reasonably.

I am also interested in the question of moderation, which has been referred to. The status of moderation under this clause seems to be very uncertain. By moderating to any extent, do you become the publisher of what has been said? A lot of sites will just allow unrestricted publication, and that appears to be safe, but we and many other sites will moderate; that is, we will want to see what has been said before we decide that it can be published. If we moderate and then publish, have we assumed liability for what is said? Have we assumed a liability for checking it? If not, it becomes impossible to moderate and you are saying, “We wish the web to be entirely unmoderated and we think that the process of moderation is undesirable”. I am not sure that that is what the Government intend to say.

If you allow moderation, do you allow within that any kind of editing or advice? If someone posts a comment and it appears to be a statement of fact rather than opinion, are you allowed to say to that person, “You have not phrased this as a statement of opinion. If you resubmit it as a statement of opinion, we will publish it”. Is that taking responsibility for what as been said? I think of moderation as something we should encourage. It improves the quality of the web as a whole, although it is an expensive thing to do. We should be clear in this clause about the extent to which we are prepared to support and protect the process of moderation.

Lastly, I come back to what the noble Baroness, Lady Hayter, said about TripAdvisor. I think that it is barking up the wrong tree. I suggest that it employs what we have effectively used over many years and I will call the Good Schools Guide defence. If a school starts to complain about comments we have made, we merely post the fact that we are not prepared to allow comments on this school because we do not agree with the school’s policy on taking down comments. That is as good as anything. If TripAdvisor were to do that to a hotel, that would be worse than any comment that anyone could possibly publish. It would achieve the end result it wanted without pain.

[Lord Allan of Hallam]

My Lords, I also declare a considerable interest in that I work for Facebook, one of the web operators which may receive notices under subsection (5). In contributing to the debate, I am trying to bring some of the expertise that we have as operators of internet websites more generally to what is, I know, a complex and difficult debate and one which we make more complex and difficult by having fast-moving technology. In that respect, I shall touch first on the amendment which proposes that we should talk about electronic platforms rather than websites per se. In doing so, I will pick up on some of the other points made in the debate around whether websites are different and special; they may be or they may not.

There are essentially two classes of website. There are websites which are owned by a single organisation and over which that organisation has editorial control. It could be argued that such websites should be treated like a newspaper or any other form of media. Indeed, those websites are specifically excluded from having this defence because, under subsection (2), they are clearly the organisation that posted the statement in question to the website, so it runs the website and creates the content for it.

There is a whole class of other websites or platforms where the body which produces that platform has no direct interest in the content, exercises no editorial control and simply exists, as the noble Lord, Lord Lucas, described it, as a conduit that enables a citizen to speak with other citizens all over the world. These platforms have become tremendously successful precisely because they democratise speech in a way that was not previously possible because you needed a printing press or other expensive equipment. It is right that in the context of Clause 5 we should think about the position of those operators. That is much more widely recognised in law, if we look at the e-commerce directive, which has been very successful. It was designed precisely with the fact in mind that we have on the internet platforms the job of which is to connect people, but which are not responsible for the content being shared between the people connecting through these platforms. This covers a whole range of other areas such as copyright, illegal content and so on.

However, this does not mean it is a lawless space —that discussion was held earlier—in fact, it is a very lawful space. The operators have responsibility but the primary responsibility for content shared across a platform has to reside with the person who posted and shared that content. In that respect, Clause 5 takes us absolutely in the right direction. It directs platforms—the second type of website that is not editorially responsible—towards a regime within which it is in their interests to connect the poster of the content with the complainer about it and to seek to resolve the dispute between the two parties. Where that dispute cannot be resolved between them, the operator then has some responsibilities.

--- Later in debate ---

[Lord Phillips of Sudbury]

To equate the world wide web with a pub discussion is bizarre. The thing about a pub discussion is that it goes no further than the pub and it is all within a context that people understand. The problem with the web is that the defamation can shoot around the world in 24 hours and remain out there for years.

[Lord Allan of Hallam]

I agree with the noble Lord. The new concept has been described. There is a lot of thinking and literature being developed around this. We are talking about private speech in a public space. Essentially, the speech is made in a private tone but the reality is that the speech is publicly accessible, because of the nature of the technology, to anyone in the world. That does not mean that we ignore it, with which I completely agree. In this clause, we are aiming to get towards a sensible way of dealing with that speech and recognising that it is different from the speech traditionally regulated through defamation law, which was speech through editorialised large organisations.

[Lord Mawhinney]

I am grateful that the noble Lord made this argument because of all the arguments we heard in the committee this was the one we thought probably had the least validity. If you make a statement and it goes round the world, who—I was almost tempted to say a naughty word—cares whether it is made in a pub, in Tesco or anywhere else? Who cares if it is made by a friend to a friend? To use that argument is to somehow say there is a qualitative difference. I will speak later in this debate at greater length but I want my noble friend to think carefully before relying on what is almost a patently non-sustainable argument.

[The Deputy Chairman of Committees (Lord Brougham and Vaux)]

I want to remind the Committee that the Chamber will be rising in about five minutes and, in the spirit of Christmas, if noble Lords can keep their comments short we will finish after the end of this group.

[Lord Allan of Hallam]

I shall aim to do so. I turn specifically to the amendments. Let me work through those. There is a lot of merit in Amendment 23A, on the electronic platform. I am interested in the Government's response about what they perceive the legal definition of a website to include. It is certainly the case, and the expectation in the technology community, that most content will be accessed within as short a space as two to three years, primarily through untethered mobile devices and applications—specific applications tied to a particular service. The traditional notion of going to a web browser and typing in a web address will not necessarily be the dominant form of accessing information. It is a fact that most information and contact will be delivered in a different and more sophisticated way, and it is important to ask the question now as to whether the definition of website that the Government intend covers this wide range of information services or is intended to cover stuff delivered by the http protocol; the traditional web browser.

In the context of Amendment 25A and the notice to be posted alongside the publication, I have concerns about how realistic that is. I disagree with the noble Lord, Lord Lucas, about how straightforward that might be. Given the different formats out there and the wide range and type of contact that may be posted, to be able to guarantee that a notice of complaint is posted alongside the original content may prove to be much more technically complex than has been imagined. I wonder about the value of doing that given how people access content through small-screen devices and the way in which the content scrolls and moves rapidly these days. The idea of a notice next to a piece of content is again looking back to the newspaper model, where you have something much more static and in a much more defined format. I have questions about the workability of the notice in Amendment 25A.

The e-mail contact in Amendment 25B goes back to the website versus platform debate. It may come as a surprise to the Committee but e-mail is a dying communications mechanism. Young people do not use e-mail. E-mail is for work and if you want to communicate with people whom you know and like and with organisations, you use different forms of communication—instant messaging-type applications and a whole range of new communications services. In the context of how website operators might receive complaints, e-mail is probably for a large operator one of the least efficient ways of doing this. It is relatively unstructured and people will send anything to an e-mail address.

A much better approach, if we want to include something in the Bill, is to say that there must be an efficient contact mechanism and then allow the website operators to determine the most efficient contact mechanism for them. In the case of a lot of the large providers, their preference, rather than e-mail, would be for people to use a contact form. A contact form allows you to give guidance to the person. You can have a very simple flow. Somebody types a defamation on a website. The website says, “Hey. If you want to report defamation go here”, and they are given a screen that takes them through all the information that they need to provide in careful detail and then offers them a form that they can send in. The great advantage of that method is that the form then sends the information to the legal team to do an assessment, with all the relevant contact information. A smaller operator may choose to use e-mail because they have nothing else and they do not have the technology, but we should not specify the technology used for contact in the Bill. We should leave that up to the operators.

Those are my comments on this group of amendments. I know that we will come back to the larger issues of principle and the balance of power between the complainant and the website operator in the next group.

[Lord Triesman]

My Lords, I will try to do this as briefly as possible. I support my noble friend Lady Hayter’s amendments and also—I hope it does him no harm—the amendment and comment of the noble Lord, Lord Phillips of Sudbury. I was responsible for intellectual property at the relatively short lived Department for Innovation, Universities and Skills. One of the things that I found completely astounding, almost every day, was that when we tried to deal with widespread theft of other people's intellectual property, and the propensity of some people to use the internet for serious criminal purposes involving children or whatever, one argument always and consistently was put to us. “We are only a conduit. We are no different from the Post Office. It went through in a sealed envelope in the mail. Who would know? Why on earth should we take any responsibility?”.

What I observed, as noble Lords may expect, from this sequence of events was that it was perfectly okay for people who are creating music, film, literature or many other products that are vital to the creative output of the United Kingdom—and very successful in the interests of the economy of the United Kingdom. But their interests were as nothing when compared with this apparent complete barrier to dealing with anything that happened to be done through a web platform or internet company. They had no responsibility in any circumstances. I have never bought that argument, which is why I agree so strongly with the noble Lord, Lord Phillips, on the matter. It may be very complex and it may be that the technology keeps advancing, but the reality is that, unless there are some restraints on what people can do with this form of technology, the argument inevitably goes to the point where it is possible to protect individuals, even with inequality of arms, from some forms of publication but they are completely and inevitably lost when it comes to electronic publication. That is a very dangerous and damaging concept for our society.

I know the importance of the businesses and the value of the work conducted by the noble Lord, Lord Lucas, and others, but I respectfully say that the idea that Twitter or anybody else is not making money out of it is completely bizarre. It is not, of course, making money in the sense that people who post anything on Twitter are paying for it; at least in general they are not. However, advertising revenues are created around these new media platforms, including, pre-eminently, Facebook. The ability of companies to be able to track people’s interests and identify how to approach them with commercial products—I have seen this in sports websites that are associated with Facebook, for example—is an amazing way of generating vast amounts of money. It is no surprise that the companies have become worth so much money in their quoted positions as well.