Defamation Bill

Lord Lester of Herne Hill Excerpts

Tuesday 9th October 2012 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, unlike the noble Lord, Lord Sugar, I warmly welcome this much-needed Bill. Its central aim is to reform English defamation law to strike a fair balance between the fundamental right to freedom of expression, public information and the protection of a good reputation. As the noble Lords, Lord McNally and Lord Browne of Ladyton, have said, the Bill is needed to give better protection to free expression, while ensuring fairness and responsibility in journalism, the necessary protection of the right to a good reputation, and access to justice by the weak against the rich and powerful. It is not and must not be an unbalanced charter for the media. It has to protect the journalists, scientists, doctors and activists caught up in recent cases.

I very much welcomed what the noble Lord, Lord Browne, had to say. I express my admiration of Scots law, which he was too modest to mention. My experience has been that in this area Scots law and practice has been more progressive than it has been south of the border. I will always remember Lord Keith of Kinkel in a case that I argued in front of him. He was a breath of fresh air in the House of Lords in giving leadership in that case. That ought to be recorded.

The Bill has been prepared in light of the report by the well informed Joint Committee on the Government’s draft Bill, ably chaired by the noble Lord, Lord Mawhinney, the public consultation, and the views of civil society and the media. The unsatisfactory state of English defamation law is notorious and well recognised here and abroad. It is mainly based on the common law and has had very limited scrutiny by Parliament for more than a century. Its subject matter is too important to be left to the courts to reform on a piecemeal basis. That is not their function. The legal principles need to be prescribed by Parliament and guide the courts to interpret and apply the law.

English common law suffers from uncertainty and encroaches too broadly on free expression. It has failed to adapt to the changing world of communication by means of the internet and the world wide web. The litigation common law engenders is costly and often protracted. It has a severe chilling effect, as many noble Lords have said, on free speech—not only of powerful newspapers and broadcasters but of regional newspapers, NGOs and individual public critics. That chilling effect breeds self-censorship and impairs the communication of public information about matters of legitimate public interest and concern that are vital in a modern democracy. Under the previous Government, Parliament recently abolished several common law speech crimes inherited from the Court of Star Chamber, including criminal libel and judicious, blasphemous and obscene libel. I say in the presence of the Minister that I hope that we will soon, as the Law Commission suggests, abolish the archaic common law crime of scandalising the court—a crime used to punish journalists elsewhere across the common law.

However, the fear of damages and massive legal costs induced by civil libel law is markedly more inhibiting than the fear of criminal prosecution. It is the NGO, the whistleblower, the citizen critic or the website host who tends to take the line of least resistance by censoring information and opinions which the public need to know in order to avoid the costly and uncertain litigation that benefits many of my friends and fellow practitioners at the English Bar.

I will say something briefly about the Leveson inquiry. I welcome the fact that the Government have not been blown off course by the Leveson inquiry. Lord Justice Leveson’s report may have implications especially for Clause 4 on the defence of responsible publication and on whether the successor to the Press Complaints Commission should be recognised without being regulated by the Bill to enhance public confidence about its independence and effectiveness. My right honourable friend Simon Hughes MP expressed concern in the other place that, if Lord Justice Leveson does not produce recommendations until December, it may be necessary to come up with further legislation. That would be regrettable. I would hope that it might be possible for Ministers to suggest to Lord Justice Leveson that he make an interim report soon with his recommendations for better regulation of the independent press so that we may take it into account during the passage of the Bill in this House. I know that the noble Lord, Lord Hunt of Wirral, hopes this too. He is unfortunately unable to take part in this debate but he has authorised me to say this.

In scrutinising and improving the Bill, the first aim should be to strike a fair balance between private reputation and public information as protected by the common law and the constitutional right to free expression. The second aim is to simplify and clarify the law to assist the claimant whose reputation has been significantly and unjustifiably damaged. The third is to require claimants to demonstrate that they have suffered or are likely to suffer real harm as a result of the defamatory publication of which they complain. The fourth is to modernise the defences to defamation proceedings, in accordance with the overwhelming requirements of the public interest so that free expression is not chilled by self-censorship and coercive litigation. The fifth is to discourage so-called libel tourism. The sixth is to encourage the speedy resolution of disputes, including the use of mediation and alternative dispute resolution as well as wise, firm and early case management by the courts. The seventh is to make trial by judge alone the normal mode of trial, rather than trial by judge and jury. To my surprise, I discovered that the media much prefer the reasoned judgment of a judge to the uncertain and occasionally arbitrary trial by jury. The final aim is to modernise and extend statutory privilege. I hope that we will manage to get rid of what is known as the “Neil Hamilton defence” in Section 13 of the 1996 Act

The Bill does not deal with changes in the civil procedure and costs rules, which are as important as the Bill itself. As the noble Lords, Lord Browne and Lord Mawhinney, have emphasised, it is important to know how the Government intend to enhance access to justice and to create a level playing field between the strong and the weak. It is also important for the Civil Justice Council, chaired by the Master of the Rolls Lord Dyson, to begin its work urgently on the new procedures during the passage of the Bill. I very much hope that it might be possible to do that before the Bill leaves this House—at least in some draft form.

I turn briefly to one or two aspects of the Bill that have been mentioned and need to be explored in Committee. I shall concentrate mainly on Clause 4—the defence of responsible publication—which, as currently drafted, is regressive. My right honourable friend Simon Hughes MP noted that the Reynolds defence does not work and that we need to move from the common law position. As counsel in Reynolds, I enthusiastically agree. I was unsuccessful in persuading the Law Lords to adopt a workable public interest defence for responsible publication. Instead, they adopted a list of factors which have made the defence virtually unworkable. In my Bill, we attempted to produce a shorter list of factors, and the Government have made a similar attempt in Clause 4. However, the clause has been widely, and rightly, criticised by the Official Opposition and Simon Hughes in the other place and by the Libel Reform Campaign.

Clause 4 rightly abolishes the common law Reynolds defence but it does so without adequately reflecting the importance of editorial discretion, as emphasised by Lord Dyson and by the Supreme Court in Flood. That increases the likelihood that judges will revert to treating the list of relevant factors as a check-list and be tempted to put themselves in the position of editor when determining whether or not publication was responsible, rather than respecting a range of permissible editorial judgments.

Various proposals have been put forward—I shall not bore the House by going into them at this stage—but I suggest that what is needed is a clause that sets out the principles of protecting honest and reasonable publication in the public interest, which deals with mistakes and ongoing publication, and which respects editorial discretion. We need what the Guardian editorial describes today as:

“A robust public interest defence that offers some security where matters under debate are of public concern and are the subject of honest opinion”.

As the noble Lord, Lord Mawhinney, and the noble Viscount, Lord Colville, have said, the trouble with listing factors is that they become a check-list that may be underinclusive or overinclusive and they lack legal certainty. In my view—and, more importantly, in the view of the leading experts on defamation law, Sir Brian Neill and Heather Rogers QC, to whom I express admiration and gratitude—it is far better to articulate the general principles of this key public interest defence without setting out a list of factors, leaving it to the courts to interpret and apply the principles on a case-by-case basis.

I suggest—it is only to get the civil servants thinking that I mention it at this stage—that Clause 4 might be replaced by a provision on the following lines. This does not come from me; Sir Brian Neill suggested it. First, it might say that it is a defence in an action for defamation (a) for the defendant to show that the statement complained of was on, or formed part of a publication on, a matter of public interest, and (b) if the defendant honestly and reasonably believed at the time of publication that the making of the statement was in the public interest.

Secondly, in the case of publication for the purposes of journalism, the court shall, in determining whether the requirements of (a) and (b) are satisfied, give a wide discretion to the editor or other person responsible for the publication as to the content of the statement, the form in which the statement was made and the timing of the publication. That really comes from Lord Dyson in Flood.

Thirdly, for the avoidance of doubt, the defence under this section may be relied upon irrespective of whether the statement complained of is a statement of fact or a statement of opinion. Fourthly, a defence under this section shall not succeed—I repeat: shall not succeed—if the claimant shows that he asked the defendant for the publication of a correction of the statement complained of and that the request was unreasonably refused or granted subject to unreasonable conditions. In my view, that encapsulates what should be the defence without the need for a check-list of exhaustive or non-exhaustive factors.

On a different point, Clause 5 deals with the liability of website operators for material posted by third parties. The detail of the new rules has wisely been left to be dealt with by regulations, as we have heard. That is sensible, given the complexity and changing nature of the issues involved. However, like, the noble Lord, Lord Browne, I suggest that the draft regulations should be published when we consider Clause 5 in this House. As he has indicated, regulations should be subject to the affirmative resolution procedure because of their importance in this country and internationally.

Perhaps I may say a word about Clause 9 that the Media Lawyers Association drew to my attention and which no one has mentioned so far. Clause 9 deals with proceedings against a person who is not domiciled in the UK or in a member state of the EU or of the Lugano convention. I am not sure why it deals only with that and not with proceedings brought “by a person”. Clause 9 should deal with both “by” and “against”, unless there is some good reason to the contrary.

The Bill provides a once-in-a-generation opportunity to reform this area of the law. We are being watched attentively across the common law world where English law has had a bad influence, to the point where the United States Congress and President Obama legislated to prevent English libel judgments from being enforced there. American media lawyers have told me that they wish that they could do in the United States the kind of reforms that we are contemplating here. In the words of today’s Guardian editorial:

“The better free expression is protected here, the better the UK can argue internationally against oppression and persecution”.