Defamation Bill

Lord Black of Brentwood Excerpts

Tuesday 9th October 2012 Lords Chamber

[Lord Black of Brentwood]

My Lords, I declare an interest in this subject as the executive director of the Telegraph Media Group and draw attention to my other media interests in the register.

This is a remarkably special day, for, although not quite as infrequent as the appearance of Halley’s Comet, sightings of defamation Bills are rare and equally moments of great awe and wonder. That there should have been a gap of only 16 years since the previous piece of legislation, a period of time in which there has been the most unprecedented change in the way in which people communicate, is cause for rejoicing. The Bill is long overdue and extremely welcome.

That we have got to this point is the result of a great deal of hard work by many people who have already been mentioned in the debate. I join others in noting that all those with an interest in free speech owe eternal thanks to the noble Lord, Lord Lester of Herne Hill, who has consistently championed the cause and never given up the fight. I am delighted to join everyone else in being a fully paid-up member of his fan club. I should also mention the role played by the editor of the Guardian, Alan Rusbridger, an indefatigable campaigner for reform, and by Britain’s regional and local press, which has often borne the brunt of the chilling aspects of the current legal framework, which the noble Viscount, Lord Colville of Culross, outlined so well.

I will inevitably speak about the Bill from the media perspective, but in doing so I am acutely aware that the media’s interest in this issue is but one small part of it. Defamation and freedom of speech are intimately bound together and freedom of speech is the birthright of every Briton. In the digital age, when the ability of a single citizen to publish views on a bewildering array of platforms has never been so great, the question of defamation is important for us all. While a century or more ago, it might famously have been the preserve of the Duke of Brunswick and his manservant, today everyone has a stake in it. The media might still provide the headline-grabbing cases, but never have individuals been so exposed to the threat of long drawn out legal action and the punitive costs that go with it. The changes in the Bill will clarify and simplify the law, which will be of great benefit to claimants as well as defendants.

The media are always likely to be at the sharp end of defamation because of their reach, especially in the digital era. It is the profound, breathtaking changes that have taken place in technology that must form the backdrop to the Bill. When the previous piece of legislation went on to the statute book in 1996, the media and many forms of communication in general existed in much the same form as they had for decades. Few newspapers had websites—the Telegraph was the first to launch one in 1994—and they were merely static replicas of printed products. Some 16 years later, that world is dead and a new one is in being. Today a media group such as the one I work for does not just have a 30-odd-page printed product, but a digital offering which in our case produced 408.5 million page views in August alone from across the globe, some 190 million of them from outside the UK. Even now, the manner in which people are accessing that information is changing by the month. In July 2011, 17% of page views on the Telegraph website were via an app. That figure now stands at 30% and is growing rapidly.

In many ways, this issue of technological change goes to the heart of this Bill. To stand the test of time, it must be flexible enough to accommodate rapid developments in technology, which are not just changing the face of the media but communications between citizens. We do not want the fate that befell earlier pieces of defamation legislation. A flurry of libel Acts in the 19th century were made redundant by the arrival of the mass media in the 1890s; the 1952 Act preceded the arrival of commercial broadcasting; and the 1996 Act coincided with the burgeoning of the internet.

We have a real chance in this Bill to produce something that is practical, flexible and above all durable. We must seize it. I believe that this admirable Bill goes a long way to achieving that, in particular with the introduction at long last of the test of serious harm, which is a sensible and proportionate initiative to stop trivial claims that waste the time of the courts. This is extremely welcome. Later I will suggest how it might be strengthened even further to deal with the scandal of libel tourism.

However, against the background of the changing world of communications that I have mentioned, perhaps the single most important part of this Bill is Clause 8, which introduces the single publication rule. This change is vital to the future development of the communication industries in particular, as it will protect them against the current indefinite liability arising from the application of 19th century case law in the 21st century age of tablets, smartphones, Google, Facebook and Twitter.

News no longer appears once a day or once a week, but is likely to be permanently available for updating and rereading in digital archives which are growing at an exponential rate. Indeed, consumers now expect to be able to find old news whenever and wherever they want it. Journalists prepare their work for publication accordingly, in information services disseminated across multiple media platforms, be it printed, blogged, tweeted, texted, accessed by app or mobile, broadcast or streamed, in text, sound or audio-visual media, or a combination of all of them.

It is therefore a vitally important step to ensure that there will be protection for subsequent publication of a statement,

“which is substantially the same”,

as that first published to the public. If there is one slight problem with the Bill, against the background I have mentioned, it is with Clause 8(4), which waters down this protection. Subsection (4) says that the rule does not apply,

“in relation to the subsequent publication if the manner of that publication is materially different from the manner of the first publication”.

That subsection takes no account of the fact that content is now published simultaneously on a range of different platforms; this means, arguably, that the manner of publication is almost inevitably different. To be effective, this clause needs to be crystal clear and at the moment it is not. I hope that my noble friend will look at this again in Committee to ensure that Clause 8 is genuinely fit for purpose in the digital age.

There are a number of other important issues to look at in Committee. The introduction of the responsible publication rule in Clause 4 is, in principle, very welcome; it seeks to import into statute the defences established in Reynolds. Those defences are of massive importance, not least to investigative journalism. Reynolds itself is an objective test. We need to ensure that this Bill neither undermines it nor, worse, neuters it by introducing a new set of defences which the courts may then spend another decade interpreting and the uncertainty of which could be profoundly damaging. I wholly agree with the points that my noble friend Lord Mawhinney made on this. Current case law makes clear that all the relevant factors can be taken into consideration by the court. Like the noble Lord, Lord Lester, I do not believe that there is a need for a tick-box checklist of factors. Setting them out in Clause 4(2) of the Bill is a high-risk strategy. I believe that to avoid potentially dangerous instability in this area, this list should be removed and the courts should be allowed to rely on and refer to the existing Reynolds criteria.

On one issue where I have concerns about the Bill, I will share the points made by the noble Viscount, Lord Colville of Culross. Clause 12 hands to the courts the power to order the publication of the summary of a judgment. This is potentially tantamout to giving judges the power to dictate the content of a newspaper or magazine front page or the running order of the 10 o’clock news, and is inimical to any basic concept of editorial and press freedom or indeed of an independent media. It is also a matter that is already covered by the appropriate media regulatory codes of the BBC Trust, Ofcom and the PCC successor body. There is no evidence that these have ever failed to produce a satisfactory publication of the summary of a judgment in a defamation case. The clause is both otiose and odious, and it should go.

I make a couple of general points in closing. I am concerned that the Bill does not do enough to tackle the issue of libel tourism. Clause 9 of the Bill does not deal satisfactorily with it because it is about claimants domiciled outside the EU, not defendants. It therefore does not address the problem of media companies in an age of global media being vulnerable to being sued in different jurisdictions under different laws for the same publication. I wonder whether the way to deal with this modern scourge might be to amend Clause 1 by making clear that publication is likely to cause serious harm to the reputation of a claimant only in England and Wales. I hope that the Minister will be able to look at that.

Like a number of others who have spoken, I must mention in passing the issue of high costs, which are still a problem in libel cases. I very much welcome the Government’s intention to bring in CFA reform in April, and indeed the work of the costs management pilot scheme dealing with defamation. For all this to be meaningful, though, the Bill needs to be complemented by changes to the rules of court to ensure that cost controls become the norm, not the exception, and that the new procedure is adopted to allow matters such as meaning, or whether something is comment, to be determined early. In the mean time, both claimants and defendants could be greatly assisted by the immediate removal of the practice direction that limits cost-capping to exceptional cases, as the Joint Committee on Privacy and Injunctions, of which I was a member, recommended. I urge speedy progress on this front.

In a recent lecture on this subject, Alan Rusbridger said, quite rightly:

“The truth is libel doesn’t exist in a vacuum”.

You cannot discuss one thing, he said, without looking at other issues that impact on freedom of speech, and that is absolutely right, a point also made with great clarity by the noble Lord, Lord Mawhinney.

This is a welcome, liberalising measure that, especially if amended under your Lordships’ eagle-eyed scrutiny, will have a positive impact, not just on investigative journalism but on every citizen’s rights to free expression. However, all that would be for naught if the current debate about press regulation led to the implementation of some form of statutory press controls, which would point very much in the opposite direction—it would be giving with one hand and taking away with the other. I know that the Minister will not be able to comment on that, but I hope that he will, with his customary cheeriness, simply note the point. The Bill is an enormous step forward, and one that every citizen should welcome.