Defamation Bill

Lord Hodgson of Astley Abbotts Excerpts

Tuesday 5th February 2013 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, I have the misfortune to be opposed to the amendment, and I shall try very briefly to explain why this is so. As I said in Grand Committee, there is across the world a fundamental difference between on the one hand the Chinese and, on the other, the United States. The Chinese position on the world wide web is to create the great firewall of China and the Chinese intranet and to do whatever it can to be able to censor the use of the web by dissidents of one kind or another. The position of the United States, ever since Bill Clinton’s statute, gives an absolute immunity to United States internet service providers. The European compromise is contained in the e-commerce directive, as the noble Lord, Lord Faulks, indicated, and seeks to strike a fair balance between freedom of speech and personal privacy and reputation in the structure of the regulations. Although it is vague, it is fairly balanced.

The world wide web is, on the one hand, of vast benefit not only to website operators but to the public and the citizens of the world in terms of free expression, which it enhances. On the other hand, the web creates much more capacity to damage reputation and personal privacy. That is the other side of the story. The puzzle is, given that this is a transnational, worldwide problem, what can any one country do to try to strike a fair balance? How can we devise a system that will encourage operators such as Google and Yahoo in this respect, given that they have no particular commercial interest in keeping up anything they post which is controversial? For example, if they post criticisms of Ruritania as a corrupt, disgraceful and oppressive Government, and then a threat is made to them to take it down, they have no commercial interest in keeping it up, even though we as citizens have every interest in their doing so. That is the free speech side of the argument.

I perfectly agree that one must do what one can to provide effective remedies in privacy and defamation claims. I admire the boldness of this amendment, which seeks to take out of the Bill altogether subsections (1) to (5) of Clause 5—that is, the entire carefully formulated procedure, including, in subsection (5), the regulations and what they may provide—and to put in place instead a structure which it is suggested will tip the balance better in favour of the claimant. I will not take the time of the House in going through that except to say that the more I read the burdens that the amendment would place on the operator, the more unbalanced I think they are in what they seek to do.

Furthermore, words such as “reasonable care”, with the burden being on the operator, or,

“did not know and had no reason to believe”,

comprise burdensome tests. I fully realise why my noble friends think that that wording is better than what is in the Bill. However, I do not think that it is. I think that it would give rise to litigation and would unduly fetter freedom of expression not for the website operators—I do not mind about them—but for us, the people who receive information and ideas on the web.

I like what the Government have done which I think strikes a perfectly fair balance. It is a good scheme. I am glad that they will introduce regulations. I very much hope that they will not accept this amendment.

[Lord Hodgson of Astley Abbotts]

My Lords, I have not taken part in debates on the Bill so far, so I shall be brief. However, I want to say a word or two in support of Amendment 10 in the names of my noble friends Lord Phillips and Lord Faulks. I do so on the non-legalistic issue of equality of arms, which I do not believe currently exists on my reading of the Bill and the comments that my noble friends have made. There is an important issue to be addressed here. Rather to my shame, I had not until recently realised that the Bill provided an opportunity to address this growing challenge.

I have raised this issue before at Second Reading of the Protection of Freedoms Bill on 8 November 2011. I said then:

“It is a small issue, but one that is growing in importance. In future, how are we going to ensure the accuracy of information placed on social networking websites and who will be responsible for this? This is a freedom which is increasingly going to need protecting. … A situation can now arise where people and their businesses can be irredeemably damaged by completely inaccurate statements that are put up on these websites and for which they can obtain no redress. … People are entitled to some clear way of challenging these statements and, where appropriate, of obtaining redress. I would be interested to hear whether my noble friend”—

that was the noble Lord, Lord Henley—

“has any policy developments under consideration to deal with this issue, one that is surely going to increase in importance in the future”.—[Official Report, 8/11/11; cols. 187-88.]

I am afraid that answer came there none. Therefore, I am glad that my noble friends have taken up the cudgels to try to achieve a better equality of arms, as I said.

My noble friend Lord Faulks referred to the power of website operators. I have seen the power of website operators in interviewing talented young people; I can think of one or two who had disobliging statements posted about them which have had a very deleterious effect on their career. The website operators—this is perhaps more the case now than it used to be—have not been too quick to try to remove this information and cleanse the websites.

As I was preparing my speech on the aforementioned Second Reading debate, a case arose of a Portsmouth plumber whose business had been completely wrecked because he was accused of being a paedophile. It turned out that the statement had been posted by a competitor firm. Holiday companies and hotels have been damaged in the same way. However, I have to admit that on certain occasions people have written bullish accounts of their own hotel in an attempt to increase trade.

It was in connection with this last category that I mentioned in my Second Reading speech the role of the website TripAdvisor. A short 24 hours passed before it asked for a meeting. Its approach in discussions with me showed the challenges the Government face—challenges which I think they have not so far tackled but which my noble friends’ amendment does.

First, the TripAdvisor representatives argued that there was no problem and that their customer surveys showed a high level of customer satisfaction. Secondly, when pressed about the response to those who were unhappy, even if they were a small minority, it seemed that for every solution there was a problem: a problem of jurisdiction, given the international nature of website operators, as my noble friend Lord Lester said; a problem of identification—who posts what about whom; a problem of competitive disadvantage as a result of a checking system which could be portrayed as intrusive; and, finally, when all else failed, a problem of data protection, the reasons for this being slightly less clear to me. I said to the representatives that in my view there was an issue of increasing public concern and that the industry—if that is the right collective noun for website operators—needed to agree to establish, publicise and enforce a code of practice which had a suitable element of representation of the public interest in any disciplinary procedures.

So, in enthusiastically supporting this entire amendment, I particularly support its provision in subsection (2) regarding the value to be placed on the defence of having an anti-defamation code of practice.