Defamation Bill

Lord Lester of Herne Hill Excerpts

Tuesday 15th January 2013 Grand Committee

[Lord Browne of Ladyton]

My Lords, I am very grateful to your Lordships for allowing the possibility of raising an issue that is not related to the group that we are presently discussing, but which is directly relevant to an issue that we thought we had perhaps put to bed, in terms of this Committee’s deliberations, on the previous occasion. To my surprise, on about 10 January, it was reported on the BBC that Rutland County Council, taking advantage of the general powers that have been granted to it by Section 1 of the Localism Act 2011, intended to sue for defamation three of the members of the council. This was extensively reported on the BBC and locally in the Rutland area. Happily, the Rutland County Council, to the edification of everyone interested in this, has published the legal opinion on which it based this intention on its website.

Without going into the detail, it appears that the council’s lawyers have advised it that Section 1 of the Localism Act has repealed the judgment of the House of Lords in Derbyshire County Council v Times Newspapers Ltd by granting a power for local authorities, in these circumstances, to behave as if they were individuals. I have no idea whether that is right or wrong; but whether in fact that has happened ought to be explored before we close our deliberations in Committee on this Bill. I merely draw this to the attention of Members of the Committee, in particular to the Minister, with the request that he has this matter investigated and reports back to us before we conclude our deliberations. In the mean time, I will ensure that all the information I have managed to glean over the past couple of days is sent electronically to the Minister’s private office. I do not intend to say anything further.

[Lord Lester of Herne Hill]

Assuming it is permissible for me to do so, I will say in response—because I was involved in the case—that I do not agree with Rutland at all, for reasons that I will go into hereafter, if necessary.

--- Later in debate ---

[Lord Lester of Herne Hill]

My Lords, first, perhaps I may say how glad I am that Sir Brian Neill is with us now, having recovered, and how sorry I am to have told the Minister that I was not well, as it enabled him to attempt to curtail me. On these amendments, it is extremely difficult for one country to deal with these problems on its own within its own legal system, since, by definition, we are dealing with the world wide web. Secondly, it is a question of getting this right. The Government are right to say that they are going to deal with this by regulations rather than in the Bill, and that there will be full consultation on that. Thirdly, it is a question of a balance. In view of what we have heard already, I thought that one might think of the other side of the coin; namely, that unless we get the balance right there will be interferences with free speech which ought not to be there.

Mumsnet has written to my noble friend Lord McNally about this and its approach is interesting. Although it welcomes the Government’s efforts to reform the law, it is concerned with Clause 5 having a “significant chilling effect” on free expression. It states:

“Although internet businesses would be able to benefit from new defences, the practical outcome of the procedure as it stands will be that the vast majority of complained-of posts will continue to be taken down upon receipt of a complaint”.

Mumsnet then goes into how that will be and how it will be intimidated. It says:

“As with most major internet companies, Mumsnet is a responsible organisation that has no wish to be associated with abusive or serious defamatory comments. We have always acted promptly to remove abusive or defamatory posts once they are brought to our attention, and we will continue to do so … However, we feel that legislators have yet to fully appreciate that the problem, for companies such as ours, does not lie with seriously abusive or defamatory posts; our decision to remove those, once we are made aware of them, is easy and swiftly acted upon. The difficult cases are almost always relatively low-profile, and involve claims which—while they may be potentially damaging for the claimant—represent the truthful, non-malicious opinion or experience of members of the public. We feel it is unfair and onerous, in cases such as these, to expect Mumsnet administrators or members of the public to act as legal specialists, attempting to assess whether the complained-of material might be able to benefit from any of the defences in the Bill. We also feel that it is in no way unjust or unduly burdensome to expect the claimant—who, after all, will be in possession of the facts—to provide a minimum degree of information to support his or her assertion that the material is defamatory or unlawful”,

and so on. That is the other side of the coin, which one needs to be clear about. When we come to my separate amendment, I shall address why we need to raise the standard a bit on the word unlawful.

[Lord Ahmad of Wimbledon]

My Lords, as the debate, albeit part two of the debate that we started before Christmas, has indicated again, there are wide-ranging opinions. Let me first set out that the Government agree that it is about getting this right and getting the balance right. This is an evolving area and it is important that we discuss these matters fully. My noble friend Lord McNally and I are listening carefully and intently to the arguments being made. It has never been the intention, nor should it be, that websites should be beyond the reach of the law. My noble friends Lord Mawhinney and Lord Faulks asserted that perhaps that is what this clause is trying to do. On the contrary, it is not.

My noble friend Lord Mawhinney made the point about being beyond reproach, and that what is said on the web is instantly translated and is, as we all know, retranslated and retweeted, wherever that may go. However, to draw a comparison with the printed media, while there is a source available, there are times when a story is printed on the front page of a newspaper and gets picked up on the internet. When that story is shown not to be correct, the retraction is quite limited. In the same way, I suggest that the damage is done. Too often, what is remembered is the headline which struck when the news broke, how it broke and the sensationalism behind that news story. It is not just about the website, although I concur with my noble friend in saying that the website is something which can sometimes go beyond the limits of the person who is hosting it, and the person who initially posted it, because it is replicated elsewhere.

I will take each amendment in turn. In doing so, I will pick up the various points that have been made by noble Lords and comment appropriately. First, it is absolutely right that the law on defamation should apply in relation to online as well as offline material. The Government’s proposals would enable claimants to take action against the poster of the material, the person responsible for making the defamatory statement, rather than the website operator. However—and this is a crucial point—the operator will still be liable if the operator is shown not to have followed the process which is designed to enable that to happen. That is a crucial point.

My noble friend Lord Faulks suggested that websites are being given protection beyond other media channels. Let me be absolutely clear: the defence for such websites only applies where website operators are not the ones who post the statement. The closest parallel might be a letter to an editor which the paper chooses to publish: it is not automatic.

Amendment 23A seeks to provide for the Clause 5 defence to apply to other “electronic platforms”, rather than simply “websites”, that have defamatory material posted upon them by third parties. The purpose of Clause 5 is to provide a defence to website operators that host third party content over which they exercise no editorial control. We chose to focus on this specific category of service providers because, as the noble Earl alluded to a moment ago, it is about definitions. How do you define things? My own background in business dictates that when I saw the words “electronic platform”, I saw them from the perspective of the world of financial services, in which it often alludes to banking platforms, which are slightly more limited than websites.

I also undertook during the summer break—apart from visiting Australia as I informed noble Lords I would—to look up definitions. How do you define an “electronic platform”? The varying degree of definition not just of electronic platforms but of platforms themselves is interesting. There is no consistent application one can put in.

Looking to the development of the world wide web, the word “website” emerges from that. The noble Lord, Lord Browne, made the point that we are living in an evolving and ever-changing world. As we are looking at this issue, as crucial and sensitive as it is, I am sure that we will return to this in the years to come.

The noble Baroness, Lady Hayter, also talked about DPP guidance on criminal prosecutions. We are certainly looking at the DPP’s guidance, but we can see nothing in our proposals that would be likely to conflict with that guidance specifically.

It is not clear what “electronic platform” in Amendment 23A is intended to cover. As I have said, it has been suggested that the term “websites” is too narrow and risks not capturing new technologies in this fast-changing marketplace. We can debate and discuss which term is more appropriate, but I go back to the words of the noble Lord, Lord Browne: we live in a changing world. If in further discussion in Committee or at Report a form of technology is brought to our attention that is akin to a website and serves the same purpose in hosting third-party content, and a suitable form of words can be found adequately to describe that in legislation, the Government are open to considering that point further.

Amendment 23B would mean that a website operator who complied with Clause 5 would have a defence only against a claim for damages in defamation. As Clause 5 stands, the website operator will have a complete defence provided that he complies with the new process. As noble Lords will know, damages are by far the most common remedy in defamation proceedings, and it is difficult to see what difference the amendment would make in practice. It appears unlikely that claimants would bring a claim for a remedy other than damages. The Clause 5 process will provide a quick and cheap means for a complainant to establish contact with the poster of the material and secure take-down. Should legal proceedings be necessary, action can be brought against the poster. In the event that such a claim succeeds, damages would be payable by the poster, and Clause 13 enables the court to order the website operator to remove the material. We therefore do not consider that the amendment is necessary.

Amendment 24 seems to stem from concern that a website operator will use associates to post defamatory material on their sites, knowing that they can hide behind the Clause 5 defence. The Government are not persuaded that there is a significant risk of that happening. The noble Earl also referred to practical issues. However, in the event of such a situation, the claimant would be able to pursue an action against the individual poster and would not be left without a remedy.

In addition, there is the obvious difficulty in respect of establishing what is an association. For example, who would qualify as an associate of the website operator and how would the claimant be expected to prove that association? Conceivably, an associate of the website operator could post something defamatory without the website operator’s knowledge. In such cases, it would seem entirely inappropriate to prevent the website operator from relying on a Clause 5 defence, provided, of course—I come back to the point I made earlier—that the operator had followed the Clause 5 process.

Amendment 24A, tabled by my noble friend Lord Lucas, would mean that a website operator would not lose their defence if they had moderated the statement or had made or suggested alterations to the content. We do not believe that the amendment would be appropriate. Subsection (10) already makes clear that an operator would not lose the defence simply by reason of the fact that they moderated statements posted on the site by others. That will ensure that operators are not discouraged from moderating their sites in a responsible way. However, the amendment would go further and allow them a defence if they moderated in a way which changed the content of the statement. In practical terms, this could mean that an operator who changes the statement in a way which made it—dare I say?— defamatory, or makes the defamation worse, would be protected. I fully accept that that is not my noble friend’s intention.

I believe that my noble friend Lord Phillips seeks by Amendment 25 to add clarity. However, we do not believe that the amendment is necessary. I shall explain why. The Government’s view is that subsection (4) already provides that test. For the purposes of subsection (3)(a), it is possible for a claimant to identify a person only if the claimant has sufficient information to bring proceedings against the person. As such, the Government’s view is that the insertion of “reasonably” would not make it any clearer, because it is clear from the clause as it stands.

--- Later in debate ---

Moved by

[Lord Lester of Herne Hill]

26: Clause 5, page 4, line 2, at end insert “and unlawful”

[Lord Lester of Herne Hill]

My Lords, the amendment is grouped with Amendment 27 in the names of by the noble Viscount, Lord Colville and the noble Lord, Lord Allan, to which I shall also speak.

My amendment is at least easy to understand. It would simply add the words “and unlawful” on page 4, so that the notice of complaint under Clause 5(6) would require the complainant to specify a name, set out the statement concerned and explain why it is defamatory of the complainant—and, I would add, “and unlawful”—and then specify where on the website the statement was posted and contain such other information as may be specified in regulations.

Amendment 27 is much more prescriptive. I will not develop that argument because it is not my amendment, but Members of the Committee will notice it sets out in some detail what it is that the complainant is required to explain. Looking at the two amendments, mine is much less prescriptive than Amendment 27, although that does not make it necessarily better. The amendment gives effect to the recommendation of the Joint Committee on Human Rights, on which I serve, that,

“the threshold for a Clause 5 notice should be elevated to ‘unlawful’, which would also ensure consistency with the E-Commerce Directive and the Pre-Action Protocol for defamation”.

The committee noted that the Government said in response that they were,

“concerned that to adopt the higher threshold would overcomplicate the process”,

because,

“requiring complainants to provide details of why they consider the posting to be unlawful, rather than just defamatory, would make it more difficult for a layman to make a complaint without first having sought legal advice, and would add to the cost and difficulty involved”.

The Government sought to distinguish,

“between the purposes of the E-Commerce (EU Directive)”—

which uses the word unlawful—and Clause 5, so as to seek to “justify” the apparent “inconsistency”.

Under article 19 of the e-commerce directive, a website operator acting as an intermediary hosting material is potentially liable once notified that a statement is unlawful, as it would be under my amendment. By contrast, a website operator is not liable under Clause 5, provided that it does not post the defamatory material. The Government say that the website operator acts merely as a middleman or go-between and does not need to consider the merits of the complaint in order to protect itself from liability. However, the Joint Committee on Human Rights concluded that:

“We are not satisfied with the Government’s distinction in this matter. We think there is a real risk that website operators will be forced to arbitrate on whether something is defamatory or lawful, and will to readily make decisions on commercial grounds to remove allegedly defamatory material rather than engage with the process. As drafted, Clause 5 risks removing material from the internet, which, although it may be defamatory, may be lawful if a relevant defence applies. Material which is lawful may be suppressed because website operators are served with such notices”.

The Libel Reform Campaign supports this amendment, which allows me to make an apology to both the noble Lord, Lord May of Oxford, and to it. Last time in Committee, I became grumpy when the noble Lord, Lord May, appeared, on its behalf, to suggest that the “responsible publication” defence in Clause 4 was not good enough. I think there was a misunderstanding. I have now received the briefing from the Libel Reform Campaign and realise that it supported the amendments being made to Clause 4 and that the remarks of the noble Lord, Lord May, were not intended to say anything other than that. Because of the sensitivity of the matter, I thought it right to make that clear at this stage.

I am trying to keep this brief, and not succeeding very well, but I should also add one other point. I need to quote the Ministry of Justice’s consultation on the Clause 5 regulations—the regulations, not Clause 5 as it is—because it seems inconsistent with the Government’s position on my amendment. It says, at paragraph 9, that:

“We propose that the following should be included in a notice of complaint (this is a combination of what is already listed in clause 5, and other points that we think should be in the regulations)”.

Here the Ministry is telling us what they think should be in the regulations. It has,

“the complainant’s name and a means of contact … specific information to direct the operator to where the post can be found on the website … the statement complained of together with an explanation of how the statement is defamatory of the complainant, including (as appropriate) details of any factual inaccuracies or unsupportable comment within the words complained of”,

and then other matters as well.

The Government apparently have it in mind that the regulations will require quite a lot from the complainant. I agree with that, but I am troubled that unless my amendment inserting the phrase “and unlawful” is accepted, the draft regulations will go further than is permitted by Clause 5. Although that sounds very technical, it is quite important to ensure that that is not so. It does not seem to be enough that the complainant can simply say that the complaint is defamatory. All that “defamatory” means is that the complainant is saying that it is not true and it affects reputation. That does not seem to me enough—and it does not seem to the Government to be enough, considering their view of the regulations—for that to trigger responsibility on the website operator. At least the complainant should have thought about whether it is not merely harming reputation but also in some way unlawful. This does not have to be done with great legal analysis, but there should be some such indication.

[Lord Browne of Ladyton]

I do not wish to interfere with the noble Lord’s attempt to be brief. Will he consider the observations that he has made, which he draws from paragraph 9 of the consultation document of which we have all been sent a copy, in the context of the words of the Bill itself—in particular, the words of Clause 5(6)(b) which require that the complainant in the notice, among other things,

“sets out the statement concerned and explains why it is defamatory”.

Would that not be a basis for a set of regulations that expand on it in the way in which this paragraph sets out?

[Lord Lester of Herne Hill]

My Lords, that may be so, in which case I made a false point on that. However, my main point is that it is not enough—and the regulations seem to accept this, in draft—to simply say that it is defamatory. It must in some way indicate that it is unlawful. That is probably common ground in the way in which I read the draft regulations. If that is so, and that is what we are told in our reply, it may well be that my amendment will not be necessary.

In my attempt to be brief, I appear to be arousing too much interest. I give way to my noble friend.

[Lord Phillips of Sudbury]

I think I know what my noble friend means in the distinction between what is defamatory and what is unlawful. However, it would be helpful to be clear with the Committee what distinction he sees between “defamatory” on the one hand and “unlawful” on the other.

[Lord Lester of Herne Hill]

I am sure my noble friend Lord Phillips understands that I am speaking clothed in the majesty of the Joint Committee on Human Rights as well as my personal view. That committee and its advisers came to the view that simply saying “defamatory” was not good enough. All that “defamatory” means is that there is a false statement which is seriously harmful to the reputation of the claimant, whereas “unlawful” means that one also looks at what the Bill defines as unlawful and what the defences are. We are attempting to make that as clear as possible. Therefore, the complainant, in order to invoke this whole procedure, ought to do something more. It seems as through the draft regulations are aimed in that direction. I beg to move.

[The Deputy Chairman of Committees (Viscount Simon)]

Before I propose Amendment 26, perhaps I may ask noble Lords to curtail their enthusiasm in asking questions before the amendment has been proposed.

--- Later in debate ---

[Baroness Hayter of Kentish Town]

It has to be substantially true, actually; he had only to be a bit of a paedophile, had you had the information there.

The point that I am trying to make is that the person making the claim knows whether or not it is true. I know that I am a rotten scientist, and therefore to be able to make the claim I would have to try to find some evidence that I was a brilliant one, which might be a bit difficult. Asking someone to have to argue through the defences of the person against whom they want to take the action before they can start a case, if I have understood the amendment right, would create a higher hurdle for stuff on the web than for printed material, because the clause refers only to the web.

[Lord Lester of Herne Hill]

The noble Baroness has misunderstood. Clause 5 is not about whether you can bring a claim. It states:

“This section applies where an action for defamation is brought against the operator of a website”.

It is intended to allocate responsibility between the alleged victim and the website operator, and to decide when the website operator has some kind of duty to keep up because of free speech or to take down, and what information must be provided under the e-commerce directive regulations and under the Bill. It is not asking a whole lot of questions as some kind of new barrier. It is about a proper procedure balancing. I hope that that is clear.

[Baroness Hayter of Kentish Town]

That is clear, but it still seems to be a higher barrier to take action against an operator of a website than you would have against the editor of a newspaper. The amendment only covers operators of websites, unlike the rest of the Bill. According to Judge Eady,

“a person would need to know something of the strength or weakness of available defences”,

in order to know whether it was unlawful before going ahead. That seems a higher hurdle to ask a claimant to go through than if they were taking an action for something else. That may be what is wanted, but if so, we need to be very clear that this is a higher hurdle for a claimant in the case of operators of websites than for any other action for defamation. It seems to tilt the balance very much against the claimant being able to take any action in that case.

With regard to Amendment 27, which would add the list, the issue is the one that my noble friend Lord Browne raised at the beginning: whether this adds anything to Clause 5(6)(b), which states that, in taking an action, the complainant, in addition to giving their name, must set out,

“the statement concerned and explains why it is defamatory”.

That would go through points such as, “Well, it is untrue, it harms my reputation and it was published in a form that people could read”. Again, I wonder whether, having got rid of the long list that we had in Clause 4—because that was a box-ticking exercise, or feared to be one, about what was in the public interest—we are now doing exactly the reverse and trying to specify all the things that we have taken out of Clause 4. That seems to run counter to the idea of a very simple Bill, albeit that guidelines or regulations may go with it. Although there is nothing in the requirements that seems unacceptable, I am not sure that, having now made the other part so clear and simple, we want to put another list back in this part of the Bill.

Other noble Lords have discussed going to a Master, but in addition to the complications of that, and the costs, I also have worries about the timing. Again, in two or three weeks—I do not know how quick it would be—some things on the web will have gone around and been taken up. My major issue is whether the Committee is absolutely sure that it does want a different hurdle against website operators such that one has to go through all the defences that someone could have before being able to start an action. At the moment, we are not persuaded of that.

--- Later in debate ---

[Lord Ahmad of Wimbledon]

The noble and learned Lord makes a valid point, which we shall certainly consider.

[Lord Lester of Herne Hill]

My Lords, I am grateful to everyone who has taken part in this brief debate and particularly to the Minister for his reply, with which I do not agree and will have to come back at a later stage to explain in more detail why.

I should like to talk about the wider world, because what we are debating today will be of interest not only in this country but in Beijing and Washington DC. Noble Lords will probably understand that in the United States, on the one hand, the extreme position is adopted that there is absolute immunity, subject to malice, for website defamation. You cannot sue an American website operator under federal statute law, state statute law or common law in the United States. On the other hand, in China you have the opposite position, and the same is true in the former Soviet Union. In China in particular, the great firewall of China and the Chinese intranet prevent proper access to an uncensored website within China. Noble Lords will have read what happened last week, deplorably.

In Europe, we have a compromise. We have the e-commerce directive, which has a notice and take-down procedure in general terms. We have to obey EU law. We have e-commerce directive regulations. The balance is put in very broad terms and can be fleshed out in various ways, but it does not allow either an absolute immunity on website operators, American style, nor does it allow the extraordinary regulation by the state that obtains in the People’s Republic of China.

Curiously, the noble Lord, Lord Faulks, suggests that we do not need any law on this at all. That will make the noble Lord, Lord McNally, smile, if he remembers that when we discussed all of this many months ago, he quite rightly said that we have to try to clarify the internet position and we cannot just duck it; we need to have reasonable legal certainty in order to include it in the Bill. He was right, and it was quite right of the Government to seek to do that. It is extremely difficult, which is why most of this will have to be done by way of regulations and not in statute.

The burden of proof in all defamation cases under English law will remain upon the defendant. We have not adopted the Sullivan rule in this country and put the burden of proof on the claimant. The defendant therefore starts off and finishes with having the burden of proving the various defences. All that we are considering is what is appropriate for a complainant to have to provide to the website operator. The great problem is that the website operator—if it is Google, Yahoo! or Amazon, or a newspaper with a website—has no commercial interest in keeping matter that is in the public interest on the website if they are threatened with litigation or, worse, “unreasonably”.

Suppose, for example, that Google were to make serious allegations of corruption in the state of Ruritania, and someone from the state of Ruritania then complained about it being on the web. Google would have no commercial interest in maintaining that very important public-interest statement on the web, especially if it was going to be faced with multiple claims to take down without any obligation on the complainant. We are therefore trying to find a balance in a way that we protect free speech by not encouraging unnecessary take-down, while at the same time providing effective remedies to the serious victims of violations of reputation on the net.

The reason I do not agree with the Government’s present position is not just an argument about whether or not it is compatible with the e-commerce directive to leave out the word “unlawful”. It is also because the Government give the game away in indicating that the regulations that they are proposing will, in effect, do precisely what the words “and unlawful” will—or, as my noble friend Lord Phillips suggested, “unlawfully defamatory”; that would do perfectly well. However, there must be something more than a simple statement that something is defamatory.

I am sure that we will need to come back to this, because it is very important and difficult. I am not dogmatic about a solution. I beg leave to withdraw the amendment.

Amendment 26 withdrawn.

--- Later in debate ---

[Lord Browne of Ladyton]

My Lords, those of us on this side of the Committee welcome this amendment because it follows the advice and recommendation of the Delegated Powers and Regulatory Reform Committee and the advice of the Joint Committee on Human Rights, but mostly because an amendment—identical in effect if not in words—was moved by my honourable friend Rob Flello in Committee in the House of Commons and was rejected by the Government. The reason given by the then Minister Mr Djanogly was that:

“The Government consider that the detailed and technical nature of the proposed regulations, and the fact that they will govern procedural issues, means that the negative resolution procedure is more appropriate, and provides the appropriate level of parliamentary scrutiny”.—[Official Report, Commons, Defamation Bill Committee, 21/6/12; col. 122.]

That sentence, in itself, argued for why that was exactly the wrong procedure for these regulations. I am pleased to see that the Government have accepted that that was the case and have now welcomed this provision into the Bill.

Having listened to the debate on Clause 5, I do not share the level of guilt that the noble Lord has for having had his colleague deal with it. I am delighted that my noble friend Lady Hayter has agreed to do this. She is well equipped for the job and, indeed, has much greater experience than I have in your Lordships’ House, which makes her better equipped for this complicated part of the Bill than I am.

I believe that the most important part of Clause 5 will be the consultation on the regulations, which everyone who has come to lobby me about this part of the Bill seems to be a part of. I understand that the noble Lord, Lord Lucas, may well become part of this consultation process. Maybe it is time for all of us to become part of this consultation process, because looking as I do now, in the light of the discussion that has taken place in your Lordships’ Committee, at the 26 paragraphs of this consultation document, I would like to have my say about what should be in these regulations.

It might be helpful if some process was set in place so that those from all the various interests that are represented in your Lordships’ Committee who have shown an interest in this Bill could have an active role in a process of discussion in respect of these regulations. Otherwise, I suspect that at some stage in the progress of this Bill—perhaps on Report—we may find ourselves timetabling insufficient time for the debate that will ensue in relation to Clause 5.

[Lord Lester of Herne Hill]

I agree with that.

Amendment 28 agreed.

--- Later in debate ---

[Lord Allan of Hallam]

My Lords, I am glad that the noble Lord, Lord Mawhinney, said that this was a probing amendment and I will speak to it in that spirit. It needs a response to clarify the concerns that there might be on behalf of the noble Lord, Lord McNally’s “little man” who uses the internet if we were ever to go down a route where there were these broader requirements for people always to identify themselves when speaking across the internet. As I read the amendment, there would be an absolute requirement for people in the United Kingdom always to identify themselves if they wished to avail themselves of internet platforms.

We need to bear in mind the key concepts in the context of other areas where government has quite rightly identified a need to be able to detect wrongdoing on the internet and to go after those who are carrying out that wrongdoing, whatever form it may take. Those are the basic concepts that we think about when considering the right to privacy and the necessity of proportionality. We certainly should not have a counsel of despair; we should try to identify people and make them own their own content in the circumstance of an allegation of defamation. I think that we are agreed across the Committee about that basic principle of trying to connect the people who have a complaint with those who have made that speech.

I certainly would not hold to a counsel of despair that says, “This is impossible”. In most cases, people can be identified. Most of the cases that we will be dealing with will be arguments between people who are identified and known to each other and who have an issue around whether the speech that one has made about the other is unlawful and defamatory and whether one of them wishes to take some action over that. In some of the cases that we have seen recently and that people have quoted, such as the Lord McAlpine case, it is clear that there has been an ability to identify and go after the principal people complained against.

When we think about those who genuinely are going to be able to hide behind anonymity, we are talking about a minority of instances. That is why I ask whether the test of requiring everyone to identify themselves whenever they speak would be a proportionate response to what will be a relatively small set of circumstances and whether it is necessary to do that.

Where I certainly have some sympathy, and we have had some reference to this already in today’s debate, is with regard to the cost of getting orders to disclose identity details. Again, we should be clear that those who provide internet services need some form of judicial authority to be able to disclose people’s personal data. I hope that we would all agree on the basic principle that it would be inappropriate for a service provider to disclose personal data about an individual simply on request; there has to be some kind of process that enables that release to be lawful and to be lawfully made. However, the current circumstances, as we have heard today, make that very expensive.

There is probably a lot of mileage that we could cover in terms of using legal processes that require the disclosure of data to narrow down the cases that we are talking about, where someone is genuinely and maliciously hiding behind anonymity, but I consider, as I referenced earlier, that those cases will be very much a minority. When we consider the measures that we should take in response, we should bear in mind that they should be proportionate and not do something excessive to deal with that tiny minority of problematic cases.

[Lord Lester of Herne Hill]

The Libel Reform Campaign is strongly opposed to this amendment but I shall not elaborate on what it says about it. I want to draw attention to one thing that may not have occurred to some Members of the Committee, which is how this debate will be regarded in Beijing. In Beijing, they have precisely this kind of amendment in their extraordinary firewall regulations because what they most want to do is identify political dissidents of one kind or another and then go after them for violating their internet regulations. This is exactly what they have and want to maintain, and if we give it any currency at all, they will use the fact that the United Kingdom has done so, even though our context is entirely different and we are not doing it to persecute dissidents and so on. I suggest that we should be very careful, in the lawmaking that we are indulging in now, to think about the transnational implications.

[Lord Phillips of Sudbury]

My Lords, I hear what my noble friend Lord Lester of Herne Hill has just said, and it is a very strong point. None the less, we have to legislate for our own circumstances. I come back to the point that we cannot leave the Bill in a state where individuals can be grotesquely, viciously and intentionally defamed, where huge platforms—website operators—can grow rich in allowing that to happen with total impunity and with no possible remedy for the individuals concerned. That cannot be right. I am reminded slightly of some of the arguments about the banking sector and the banks that are “too big to fail”. We cannot get into a mentality where website operators are too big to pay. We have never had a satisfactory answer for why website operators could not take out comprehensive insurance so that, if they were sued by individuals because of the defamations of those who post on their platforms, they could pay up in the normal way.

I have great sympathy for the way in which the noble Lord, Lord Mawhinney, put his case for Amendment 30, not least because we are all grappling with fiendish and unprecedented problems with no easy answer. Generally, I come down on the side of saying that nobody should have the right to defame others—in a way, incidentally, that will travel further and faster than any other system of publication in the history of the world—and be able to say, “Ooh, no, you can’t reveal my name; that’s a breach of my human rights”. There is another breach of human rights involved in defamation—indeed, it is worse because the defamer is doing it intentionally. I am, of course, taking the worst case. If you have to place in juxtaposition the vicious defamer on the one hand and on the other the possibility that that defamer’s particulars may have to be revealed by the website operator in the process of complying with our new legislation, I am afraid that I have to come down on the side of the person who has been defamed.