Defamation Bill [HL]

Lord Goodhart Excerpts

Friday 9th July 2010 Lords Chamber

[Lord Goodhart]

My Lords, I am proud to be able to speak in support of the Bill introduced by my noble friend Lord Lester. He and I were friends long before either of us was ennobled. He has a remarkable record of Bills introduced to your Lordships' House, where the Government of the day have adopted the Bill, provided it with time to enable it to go through the House of Commons or produced their own legislation for the same purpose. I hope and expect that this Bill will fall into one of these groups and will in due course—and I hope fairly rapidly—become law.

I will start with a comment on the speech made by the noble and learned Lord, Lord Hoffmann, who said that he approved of a number of matters in the Bill. However, his speech was concerned almost entirely with attacking the way in which defamation is handled in the American courts. That is well outside anything that is relevant to this Bill. The noble and learned Lord referred to the fact that the law in the United States was very favourable to the media. There is a good reason for this, which goes back to the 1950s and 1960s, when there was a great deal of agitation in the south of the US by people pressing for full civil rights to be given to the black citizens of that part of the country. Newspapers such as the New York Times, which supported the movement for civil rights for black people, were sued in state courts in the south that were wholly hostile to this view and imposed enormous damages for defamation on those newspapers.

The law in the USA was then changed to make it impossible for courts in the southern states to consider this. There has been no similar provision in this country, so whether or not one approves of what happens in the USA, it is based on entirely different reasons. The Bill is not concerned entirely with the media—far from it; it is also concerned with the rights of all people to avoid being overthreatened by the prospect of an action for defamation. One should look not at what happens in the USA but at what happens in this country.

The law of defamation in this country is complicated—probably unavoidably, because it involves the collision of tectonic plates. Article 10.1 of the European Convention on Human Rights states:

“Everyone has the right to freedom of expression. This right shall include freedom. … to receive and impart information and ideas without interference by public authority”.

Article 10.2, however, goes on to say that the rights under Article 10.1,

“may be subject to … restrictions or penalties as are … necessary in a democratic society … for the protection of the reputation or rights of others”.

Article 8 states:

“Everyone has the right to respect for his private and family life,”

but subject to,

“the protection of the rights and freedoms of others”.

There are very difficult problems where these tectonic plates collide. I give the American example of Tiger Woods—although there are similar examples in the UK involving people with careers in sport. Is his misbehaviour part of his private life? Yes, of course it is. Would media coverage in Europe of his misbehaviour be in breach of Article 8? Hardly, because the right to receive information in this case would be seen to outweigh the right to privacy. These are very difficult issues and will continue to be so. The result is that we have a very complicated and out of date law of defamation. As a lawyer who practised in fields other than that of defamation, I find it very complicated. However, we can work it out with help from briefings. I found extremely helpful a briefing by JUSTICE. I should say that I am a former chairman of that organisation. There are also excellent notes in the Library of your Lordships' House, and a very good briefing from Liberty.

Liberty disagrees with Clause 14, which reduces the number of cases where a decision will be made by a jury. I support Clause 14. Defamation is now the only type of civil case where juries may still make the decision. I believe in principle that jury trials should be confined to cases that may result in convictions for a serious crime. The use of juries in civil cases has been a complete disaster in the USA. Clause 14 retains access to a jury trial in some cases where the special circumstances justify it.

The briefings recognise the value of the Bill. Clause 1 strengthens the defence of public interest; Clause 8 extends the defence of qualified privilege; Clause 9 gives further defence to internet service providers and similar organisations; Clause 12 requires the courts to strike out cases where defamatory statements are unlikely to cause substantial damage to the claimant; Clause 13 gives power to limit libel tourism by refusing to hear cases where the defamation is published outside England and Wales and no substantial harm can be established in England or Wales.

The Bill refrains from some of the more radical changes—for example, while Clause 5 may make it easier for a defendant to prove the truth of the alleged defamatory statement, it does not propose that the burden should be on the claimant to prove the untruth of the allegations. That would indeed be a very controversial issue—too much so, I think, for inclusion in this Bill.

The Bill does not tackle two of the main problems for litigants in defamation cases: the risk that, if, as defendants, they lose, they will have to pay excessive costs, and the risk that they may also have an excessive liability for damages. Statutory instruments to reduce the level of contingency fees failed to get through the House of Commons before the election—perhaps because they went a bit too far. However, these are matters not for this Bill but for elsewhere.

I believe that the Bill will be a great improvement in a section of a legal system that, as it stands, is unpredictable and too expensive. I end by saying that I look forward to the maiden speech of the noble Baroness, Lady Hayter of Kentish Town, which will immediately follow this speech, and that of my noble friend Lord Willis of Knaresborough.