Lord Lester of Herne Hill
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Defamation Bill
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Baroness O'Neill of Bengarve
My Lords, I have put my name to this amendment to Amendment 1, moved by the noble Lord, Lord Puttnam, because it is urgent to establish an effective, affordable and independent route for resolving claims of defamation. In doing so, I declare an interest as chair of the Equalities and Human Rights Commission. Unlike my noble friend Lady Hollins, who also brings the expertise of experience of intrusion and defamation to this debate, I bring only a track record of speaking and writing on the conflict between rights to freedom of expression and other rights, including the right to reputation.
I do not think that it is a matter of dispute that we need a cheap and effective way of resolving claims of defamation. However, the mechanism for resolving such claims needs also to be fair, and that means that it has to be independent not only of the interests of both parties but also of the Government. The noble Lord’s amendment seeks to achieve that. I think that this amendment to the amendment would do so rather more effectively; it is at least more explicit, which enables your Lordships to consider what it would actually take to achieve independence in this matter.
Both amendments build on Lord Justice Leveson’s proposal to create an independent recognition commission that will validate the standards to which any voluntary regulatory body for the media works. Lord Justice Leveson’s proposal is, as we all recognise, ingenious because it offers a way of retaining media self-regulation while requiring that self-regulation to meet adequate standards of fairness and independence as certified by a recognition body. The amendment sets out incentives for media organisations to participate in a voluntary regulatory body—it will be much cheaper for them if that body is recognised by an independent recognition body—and it also sets out incentives for claimants to use the arbitration service. Again, it will be cheaper and quicker.
The complaints system run by the PCC—or should I perhaps say the former PCC?—was in many ways cheap to use, but it had a range of deficiencies, which have been much discussed in your Lordships’ House and in Lord Justice Leveson’s report, and it lacked that crucial form of independence. I do not think that we should pass a defamation Bill that fails to address these fundamental defects. The connections between intrusion and defamation are too close for us simply to overlook them.
The detail of these amendments and of Schedule 17 is complex, although they have been much discussed by those with the relevant drafting expertise. I do not think we are likely to come much closer to satisfying the requirements of all parties. I hope very much that the Minister can indicate that the Government will accept these amendments or at least can indicate that their fundamental purpose will be secured by government amendments at Third Reading. I beg to move.
Lord Lester of Herne Hill
One can see why the other place was so well regulated.
It is essential for the three main political parties to reach agreement on what needs to be done to give effect to the recommendations of Sir Brian Leveson’s inquiry. If these amendments are designed to put pressure on the coalition Government to achieve that aim, they are most welcome. But if they are intended to become part of this Bill, then I cannot support them, despite the great authority of their supporters, including a former Lord Chancellor, a former Attorney-General, and my old friend and Cork neighbour, the noble Lord, Lord Puttnam. I am not aware that he took much part in the earlier deliberations on the Defamation Bill, and most of what he said about the Bill is wrong, but I am not going to go into the details now because I do not think it is relevant. The Government have done a great deal to secure a Bill that balances reputation and free expression, tries to deal with the abuses of costs, procedural rules, downscaling and so on and so forth. It is not a Bill, as the noble Lord suggested, that has been written by the newspaper industry. In its original form, it was written by me, and I made quite sure that the original Bill and the Government’s draft Bill were not like that at all. That is not relevant to what we are now considering.
I made clear during the debate on Leveson that I support statutory underpinning to make press self-regulation effective and that my little Bill is intended to do that. I shall, if necessary, introduce a Bill on those lines in the next Session, no doubt improved by this debate. I want to make it clear that I have strong objections to excessive statutory intervention, including the use of exemplary damages as a sanction, which was twice rejected by the previous Labour Government as punitive, but which the draft Bill put forward by the noble and learned Lord, Lord Falconer, for some reason includes. The sanction of exemplary damages is likely to be in breach of the convention right to freedom of expression, especially when read with the coercive amendment punishing publishers who fail to seek clearance pre-publication from a statutory regulatory board. During the Leveson debate, I pointed out that Mr Justice Eady had set out in detail in his judgment in the Mosley case,
“why it would be wrong in principle and a violation of free speech to extend exemplary damages”.—[Official Report, 11/1/13; col. 374.]
That was the position of the previous Labour Government.
The concept of pre-clearance and punitive damages was also rejected by the European Court of Human Rights in its judgment of 10 May 2011 in the Max Mosley case, in which I intervened for Guardian Newspapers. The European Court decided in paragraph 129:
“Although punitive fines or criminal sanctions could be effective in encouraging compliance with any pre-notification requirement, the Court considers that these would run the risk of being incompatible with the requirements of Article 10 of the Convention … It is satisfied that the threat of criminal sanctions or punitive fines would create a chilling effect which would be felt in the spheres of political reporting and investigative journalism, both of which attract a high level of protection under the Convention”.
The Leveson inquiry was concerned with serious press misconduct involving gross media intrusions on personal privacy. The Bill before the House is, as its Long Title makes clear, a Bill to amend the law of defamation. It is not a Bill to amend the law of privacy. These amendments would stretch the scope of the Bill beyond its object and purpose by referring to what is described as,
“defamation and related civil claims”,
to include, apparently, violations of personal privacy. They cannot do so, and therefore do not address the central concerns of the Leveson report, but seek to use this Bill as a vehicle which was designed for a very different journey.
Leveson recommended an arbitral process in relation to civil legal claims that, as the noble Lord, Lord Puttnam, has said, would be,
“fair, quick and inexpensive, inquisitorial and free for complainants to use … The arbitrator must have the power to hold hearings where necessary but, equally, to dispense with them where it is not necessary”.
It would seem that Sir Brian Leveson did not consider whether what he proposed would be compatible with Articles 6 or 10 of the convention. It is unclear whether the movers of these amendments intend Part One of the Arbitration Act to apply. It is also unclear whether they intend the arbitration arrangements to be voluntary and entered into freely. Apparently they do not intend that, and the amendments are silent on these crucial issues.
Article 6 of the convention guarantees a fair and public hearing in the determination of civil rights and obligations by an independent and impartial tribunal established by law. In Paul Stretford v Football Association—where the noble Lord, Lord Pannick, appeared for the FA—the Court of Appeal examined the relationship between an arbitration agreement and Article 6 of the convention. The Court of Appeal considered that the provisions of the Arbitration Act were important in the context of Article 6, because the Arbitration Act, unlike these amendments, provides for a fair hearing by an impartial tribunal, and its mandatory provisions ensure that the High Court has the power to put right any want of impartiality or procedural unfairness. The Court of Appeal noted that the Strasbourg jurisprudence has made it clear that the arbitration agreement must be voluntary and not compulsory. It said:
“By compulsory in this context is meant required by law”.
The scheme envisaged by these amendments is inquisitorial and not adversarial. It is not a voluntary scheme because of the threat of exemplary damages for failure to use a recognised arbitration service. The arbitrator does not satisfy the requirements of judicial process by an independent court or tribunal established by law. The arbitrator can dispense with hearings in his or her discretion. There is no right of appeal to an independent court or tribunal and the process is free for complainants but to be paid for by the press. In my view, such a scheme would be incompatible with Articles 6 and 10 of the convention. It would result in complex legal disputes.
Baroness Kennedy of The Shaws
My Lords, I, too, support these amendments. I always listen with care when I hear the noble Lord, Lord Lester, speaking about human rights because of his great experience and his important role in our nation in arguing for human rights. However, I take issue with his interpretation of Article 6 and the statement that any kind of arbitration in this field would in some way contravene that article. The whole purpose of human rights is to empower the weak and to recognise the ways in which due process can often disadvantage those who have no money. The purpose of arbitration in this context is not simply to speed things up or to move things along. Much of our arbitration concerns two parties coming together to try to find a smoother way to deal with something, but in this context the purpose of arbitration is to redress the fact that our current system disadvantages whole tracts of people who cannot afford to go to litigation at all. I think you would find that the courts would not accept the literal interpretation of this concept on the part of some of our colleagues. The noble Lord, Lord Faulks, also said that this provision would be a contravention of human rights. I think you would find that the courts would take a very different view.
Lord Lester of Herne Hill
I am grateful for that but I think the noble Baroness does not understand what I was saying, which is my fault. I was saying that the Arbitration Act is a perfectly fair way of tackling this issue but these amendments do not give effect to that Act and a right of appeal. If they did so, it would be quite a different matter. I was trying to explain why they do not. For that reason, they violate Article 6 as well as Article 8.
Lord Black of Brentwood
My Lords, I should declare an interest as chairman of the Press Standards Board of Finance and executive director of the Telegraph Media Group. I have the greatest admiration for the noble Lord, Lord Puttnam. He and I have made common cause on a number of things over the years. However, we rarely agree on issues of regulation and I am afraid that I will not disappoint him today because I believe that what he is proposing is unnecessary. It is unnecessary for this House to intervene statutorily in press regulation and to deliver an arbitration service. Actually, it would be counterproductive and set back the delivery of the arbitration system which is currently being worked on.
As noble Lords will know—my noble friend Lord Fowler mentioned it just now—I have been working with my noble friend Lord Hunt and others to build a new independent regulator with tough powers backed by the force of contract law. An arbitration system is a central part of that, and it is important that I explain how it would fit in, not least in dealing with the news blackout that my noble friend Lord Fowler mentioned.
Lord Hunt of Wirral
The noble Baroness is quite right. I have spoken many times to Professor Horgan and to the Irish press council. Much of what I am seeking to introduce in the new Leveson-compliant body will follow the lessons learnt in the Republic of Ireland. All that I was seeking to point out to Lord Justice Leveson was that as soon as you go down any statutory route, which requires a Bill—I added this after I had made my comment about the Defamation Bill—you would be opening Pandora’s box. I suppose that the proof of that is the revised Marshalled List of amendments, because we are now getting into quite complicated territory.
I think that the way forward is, yes, to hear from the Government what has been happening in these three areas—
The Countess of Mar
My Lords, this is Report, and the noble Lord has had his say.
Lord Lester of Herne Hill
Is my noble friend Lord Hunt saying that he would oppose any form of statutory underpinning, even my little Bill? Is that his position?
Baroness Hayter of Kentish Town
My Lords, after that excitement I rise to move Amendment 2 on behalf of my noble friend Lord Browne of Ladyton and the noble Lord, Lord Lester of Herne Hill. It would end the current position whereby individuals and organisations have identical hurdles to jump in an action for defamation.
Defamation is about someone’s reputation being trampled and seriously damaged by untrue statements made about them. Some commentators think that since only people and not organisations have feelings, only people should be able to sue. We do not go that far. We accept that organisations can be damaged by untrue allegations. Had horse meat not been in those burgers, or pork not in that halal food, such innocent information could have substantially and unjustifiably ruined a company’s reputation and caused untold financial harm. That would be the same if a small corner butcher, for example, was wrongly accused of having mice in the shop, if Perrier was falsely accused of being a purveyor of foul water or if a car manufacturer was said to have made a car with unsafe brakes.
Amendment 2 would allow such cases to be brought, provided that the allegations would cause substantial financial harm. The approach came from the Joint Committee. The amendment was moved in Committee on this Bill by its chair, the noble Lord, Lord Mawhinney, who cannot be in his place today. It is supported by Liberty, the Libel Reform Campaign, the Media Lawyers Association, Which? and the Commons Culture, Media and Sport Committee, which noted the mismatch of resources in a libel action between large corporations, for which money may be no object, and a small newspaper or NGO, which has had a stifling effect on freedom of expression.
In their response to the Joint Committee, the Government said that it was unacceptable that corporations were able to silence critical reporting by threatening or starting libel actions that they knew the publisher could not afford to defend but where there was no realistic prospect of financial loss.
This morning on the “Today” programme, John Humphrys, normally not afraid of anything, commented on a piece about branding and said that he dared not say anything derogatory about Coca-Cola because it would sue. John Humphrys may be powerful, but clearly not powerful enough to damage Coke’s profits. Even he knew the chill factor of a threatened action.
In Committee, our amendment was supported by my noble friend Lord Triesman and the noble Lords, Lord Faulks and Lord May of Oxford. It is no secret that the noble Lord, Lord McNally, shared this view until his then boss, Ken Clarke, took him into a quiet room, sat him down and, with the persuasiveness for which he is renowned, convinced him that corporations have reputations. The words are those used by the Minister in Committee on 17 December.
The cases that led to much of the pressure for libel reform were largely brought by corporations, using deep pockets and expensive lawyers to stifle criticism. An American corporation sued Dr Peter Wilmshurst, the British Chiropractic Association sued Simon Singh, Trafigura sued the BBC, manufacturers are for ever threatening Which?, and McDonald’s infamously and stupidly sued two individuals.
The Joint Committee on Human Rights called for the Bill to be amended so that non-natural persons would be required to establish substantial financial loss in any claim for defamation. Its report stated:
“Professor Phillipson … suggests that the failure to impose any restrictions on corporations’ ability to sue in defamation renders the law on reputation inconsistent and incoherent. Defamation law and the protection afforded under Article 8 has developed on the basis that the protection of an individual’s reputation is a significant human rights issue. Corporate claimants have neither personal emotions nor dignity, and yet are treated as natural persons for the purposes of defamation”.
The Commons Culture, Media and Sport Committee also called for a requirement on a corporation to prove actual damage to its business before an action could be brought. Regrettably, the Government opposed this on the grounds that a corporation does have a reputation. Our amendment does not contradict that. It simply requires companies to obtain the court’s permission to sue by showing that it has been, or is likely to be, caused substantial financial loss. This has widespread support and we hope that the Minister will think again.
The second part of our amendment extends the bar on public authorities being able to take action to other organisations performing a public function. The Derbyshire principle is a legal precedent that a government authority cannot be sued for libel. There are good reasons for this. First, it is a body corporate and thus, under the first part of the amendment, it should be debarred since it cannot show financial loss, given that all of us must pay its levy, whether by income tax or rates. The second reason is the comparative resources of any government body compared with those of an individual. The third is that such an authority had a monopoly over education, street cleaning, social care, parking and myriad other services, so any damage to a its reputation would not dent its market, while publicity was a key driver of improved services or access to redress, since users were unable to take their custom elsewhere. That world has changed. We now have free schools in competition with those run by local authorities, while the voluntary sector and private companies run myriad services on behalf of public authorities and paid for by public funds.
First, users need to be able to comment on such services without fear of a defamation action. Secondly, ratepayers and taxpayers must similarly be able to comment without fear of action. Thirdly, since such services are won through competitive tendering, it seems extraordinary that in compiling their bids, private or voluntary sector organisations can say what they like about the local authority against which they are bidding, but could take action for defamation if the local authority or any of its service users said a critical word about them. Are these providers spending taxpayers’ money on services, including issues such as the Border Agency, adoption and care homes, really to be protected from criticism by hiding behind the threat of defamation? Surely we should be able to hear questions about standards, complaints or conduct without lawyers bullying commentators into silence.
Our amendment would cover only those parts of a corporation performing a public function. Thus, Virgin Care would lose its right to sue over its commissioned work but Mr Branson could still protect his brand’s name where Virgin’s profitability was at risk. In the Commons, the Government rejected this on the excuse that the court in Derbyshire had rejected it. However, that was 20 years ago, when outsourcing was a fraction of what it is today. Now we have one lot of bidders—public bodies—at a disadvantage compared with others because one side can sue for libel but not the other.
In Committee, the Minister, the noble Lord, Lord Ahmad, said that,
“legislation could remove the flexibility that exists under the common law for the courts to develop the Derbyshire principle … in the light of individual cases … it is better to allow the courts to do this rather than introduce … statutory provision”.—[Official Report, 17/12/12; col. GC 467.]
This is a decision that Parliament should take, not the courts. Why do a 2013 Government, pledged to update our defamation laws, feel bound by a 1993 ruling when new legislation is exactly the time to make good any shortfall in the law? The Derbyshire case upheld the right for uninhibited public criticism of public authorities. We should extend this to organisations carrying out those services which were once the monopoly of public authorities.
The amendment is not unfair to corporations. It allows them access to the courts to pursue a defamation case where there is a risk of substantial financial harm to their business. It would remove that right only from those providing public services, akin to the existing bar on public authorities. I beg to move.
Lord Lester of Herne Hill
My Lords, I have added my name in support of the amendment, which would reinstate a provision from my Private Member’s Bill preventing profit-making bodies from suing in defamation except where they can show substantial financial loss or the likelihood of it. As the noble Baroness, Lady Hayter, has indicated, it would extend the Derbyshire principle to bodies performing public functions. It does not seek to prevent companies from suing. It simply requires that they show harm where they feel it most—in the pocket. I do not believe that companies should not be allowed to sue for libel. They have no feelings but they and their shareholders are able to be hurt in their pocket book. If we were to bar companies altogether from suing, that would clearly violate the European Convention on Human Rights because it would be discriminatory.
That is why, in my Private Member’s Bill and in these amendments, I have supported the right of corporations and trading companies to sue provided that they can show actual, or the likelihood of, serious financial loss. As the noble Baroness, Lady Hayter, indicated, the Joint Committee on the draft Bill concluded:
“It is unacceptable that corporations are able to silence critical reporting by threatening or starting libel claims which they know the publisher cannot afford to defend and where there is no realistic prospect of serious financial loss. However, we do not believe that corporations should lose the right to sue for defamation altogether … we favour the approach which limits libel claims to situations where the corporation can prove the likelihood of ‘substantial financial loss’ … corporations should be required to obtain the permission of the court before bringing a libel claim. This would encourage robust and decisive action by the courts to prevent trivial and abusive litigation from being commenced at all”.
Before I turn to the second limb of the amendment, I wish to make it clear that there is nothing to stop the directors or officers of a company from suing in their own right; it simply hampers the ability of the corporate body, the trading body, to do so itself. So it is conspicuously moderate and balanced and I hope that it will be acceptable to the Government.
Baroness Hayter of Kentish Town
My Lords, perhaps I can be very naughty and thank the House for its support on that Division.
The intention behind Amendment 3, which I move on behalf of my noble friend Lord Browne of Ladyton and myself, sets out a vital procedure—the ability of a court to strike out an action for defamation. This power is vital. Everything that the Bill seeks to achieve has been about reducing costs—which have completely distorted the law on defamation—by facilitating early resolution, as the Minister said in response to an earlier amendment. If the key issues can be decided early on—which the virtual ending of jury trials enables—then lawyers’ time is diminished and costs are brought down.
The costs in these cases, as we have heard, are such that they put the use of the law to protect reputation beyond the reach of all but the richest. The only others who have been able to make use of this law are those who have used no-win no-fee cases to do so—arrangements which are shortly to be ended. This law has been beyond the reach of most people. Virtually no defendant can contest a case, or claimants bring one, as they risk being crippled not just by their own legal costs but by those of the other side. I heard just today of a case involving one day in court which cost £40,000 on each side.
So costs are vital, as is early resolution. Up against a rich newspaper, no one without sizeable means can consider taking on a case. With a multimillionaire, an oligarch or a company even threatening an action, journalists, papers, NGOs or Which? will be reluctant to publish anything, no matter how true, that is going to tie them up in legal and financial nightmares.
The amendment is about the last part of the jigsaw. Having enabled early decision of most issues by clarity of the law and the reduction of the use of juries, we now need active case management and the clear authority of the court to strike out before trial actions that fail the test of serious harm based on a falsehood, or where other jurisdiction is more appropriate.
That clear ability of a court to strike out an action is what we want written into the Bill. It would allow either side to apply for this strike-out or for the judge to start the process. At one level, the amendment would write into the Bill what in effect exists in the Civil Procedure Rules but which will not be evident to the ordinary member of the public, be they a potential claimant or a defendant. Non-lawyers do not even know of the existence of the Civil Procedure Rules, much less what they say.
The Bill has aimed to provide for a lay person—an author or the defamed—a clear statement of what the law on defamation is, without recourse to a lawyer or a legal textbook. Our description of the power of a court to stop an action is clear. It would show to the claimant that unless they could show serious harm to their reputation, and a tort—that it was wrongful—then they should proceed no further. It would indicate to the defendant that they could go to the court and ask for such a strike-out when it was obvious to them either that the claimant had no relevant reputation here or that any such reputation had not been caused serious damage. This is clarity; it would add to the Bill a power that is already there, and it would be a signal that we want early case management so that as many of these issues as possible can be dealt with and, where appropriate, struck out. I beg to move.
Lord Lester of Herne Hill
My Lords, I cannot support the amendment. One of the difficult things about having a Bill like this is to decide what Parliament should be doing and what the courts should be doing. Parliament has put into Clause 1 this very important barrier of serious harm. In his important reply to the previous debate, the Minister helpfully indicated that serious harm—for example, with a corporate body—would include the likelihood of serious financial loss as one of the factors to take into account. Obviously this is a preliminary hurdle, and obviously the procedure rules, which are not in the Bill but will be in the Civil Procedure Rules, and case management will ensure that a party can come before the judge at the beginning and say, “Strike this out because the serious harm test is not satisfied”.
My first reason for not supporting this is that it deals with matters of procedure that will be dealt with, I think, by the Civil Procedure Rules themselves, a pre-action protocol and case management. The second reason is that the factors that are listed here,
“caused or is likely to cause serious harm … and … a real and substantial tort in the jurisdiction”,
are exactly the kinds of issues that one would expect the judge to have regard to, but the Government have very wisely decided to move against having a checklist—for example, in Clause 4. I think that our judges can be well trusted to be able to apply the serious harm test in Clause 1 without a checklist and without being fettered in any way.
I sympathise with the aim of the amendment, but it is an example of overreach. We should not be writing this kind of procedural detail into the Bill; we should leave it to the wise discretion of the judiciary.
Lord Faulks
My Lords, I agree with my noble friend Lord Lester. It is possible that the House may remember the contribution that I made to the first debate when I drew the House’s attention to the protocol, which does very much what the amendment seeks to do. Under the current law it is perfectly possible, and indeed it happens on a regular basis, that a court will rule on a preliminary basis and will strike out claims, either pursuant to the CPR or under the inherent jurisdiction. They will manage the case so that preliminary matters are heard—for example, an issue as to meaning—without a full-scale trial. Judges and masters are experienced in dealing with this, and that is a matter that should be left to the protocol and to the masters to develop as a matter of practice. With respect, it is not a matter that should be put in the Bill.
Lord Lester of Herne Hill
My Lords, I move Amendment 4 essentially on behalf of the noble and learned Lord, Lord Lloyd of Berwick, who cannot be here this evening. In the light of what has just been said by the noble Baroness, Lady Hayter, I am hoping that when the Explanatory Notes to the Bill are brought up to date when the Bill becomes law, some of these points will be dealt with in them, which is an authoritative way of doing so.
There are two ways in which I can move this amendment: the long way and the short way. Since I detect in my noble friend Lord McNally’s previous reply not exactly bitterness but a sort of cynicism about certain attitudes, I shall do it the short way because I think we can cut the cackle on this by coming to the point that was troubling the noble and learned Lord, Lord Lloyd of Berwick, and Sir Brian Neill.
The amendment turns on a case called Telnikoff in the context of the honest opinion defence in Clause 3. In Telnikoff, the House of Lords decided that it was insufficient for a letter commenting on a newspaper article to refer to the article in order to establish that it was opinion, not fact. The letter had to be recognisable as opinion on its own rather than in the context of the article. My noble friend wrote to the noble and learned Lord, Lord Lloyd, on 9 January. I shall not repeat what he wrote, nor will I repeat what was said by the Minister. It did not satisfy the noble and learned Lord, which is why he wished to come back to it on Report.
I suggest that if the Minister in his reply can clear up any further confusion by making it clear that in the light of the Bill the Government do not regard Telnikoff as good law, so that if the same facts were to come before the courts under Clause 3(3), a reference to the original newspaper article on which the letter was commenting should be enough to establish the first and second conditions in Clause 3, that would be most helpful. When the noble and learned Lord, Lord Lloyd of Berwick, returns, if he does not find the answer sufficiently clear I will leave it to him to decide what to do at Third Reading. I beg to move.
Lord Browne of Ladyton
I support of this amendment and do so by adopting the argument put forward by the noble Lord, Lord Lester of Herne Hill, which, I think, in turn adopts what I described as the compelling argument put forward by the noble and learned Lord, Lord Lloyd of Berwick, in Grand Committee on 19 December at col. GC 522. I commend the recommendation of the noble Lord, Lord Lester, to the Minister.
In rereading the debate in Grand Committee, I am reminded that he offered a very similar opportunity to the Minister on that occasion, which the Minister scorned. I think that the noble and learned Lord, Lord Lloyd of Berwick, was awaiting the letter that became the letter of 9 January 2013. I recollect that in col. GC 528 in the same debate the noble Lord, Lord Ahmad, indicated that he might be able, in the same vein as was suggested by the noble Lord, Lord Lester, to give the comfort that the noble and learned Lord was seeking. I have to say—this should not surprise anybody—that we were all, I think, persuaded by the noble and learned Lord’s argument in relation to Telnikoff and why it should not still be considered to be the law in the same circumstances. I hope that the Minister will be able to respond to the opportunity that he has on this occasion to resolve this issue once and for all.
Lord McNally
My Lords, I indeed hope that this will be resolved once and for all. If my noble friend is going to withdraw under the temptation that the noble and learned Lord, Lord Lloyd, can bring this back at Third Reading, I would rather that he tested the opinion of the House. I will try to make as clear as possible on the record the Government’s opinion on this, but I cannot start trying to rerun 20 year-old legal battles.
Clause 3 provides for the honest opinion defence to be available if three conditions are met. Amendment 5 provides that the second condition in subsection (3)— that the statement complained of indicated, whether in general or specific terms, the basis of the opinion—is met if the defendant indicates the subject matter of a letter or article appearing in a newspaper or other publication and the date when it appeared.
On the basis of our discussions with the noble and learned Lord, Lord Lloyd, on whose behalf my noble friend is speaking this evening, we understand that the core issue underlying the amendment relates to what should be taken into account in determining whether the statement complained of is one of fact or opinion. We consider that this goes to the first condition in Clause 3(2)—that the statement complained of was one of opinion—rather than to the second condition in subsection (3).
At common law, when deciding whether a statement is one of fact or opinion, the court can look at the statement only in its immediate context. So if the statement appears in a news story or in a letter to an editor, the court can look only at the particular news story or the particular letter. The intention behind Amendment 5 is to change this so that the court can also look at other documents that provide a context for the statement.
This is a difficult issue, as is evidenced by the varying judicial opinions that were expressed when this was considered by the Court of Appeal and the House of Lords some 20 years ago in the case of Telnikoff v Matusevitch, to which my noble friend has referred. However, on balance, and with the greatest respect to the noble and learned Lord, Lord Lloyd of Berwick, the Government believe that the current law is in the right place. We consider that it should be clear from the document in which the statement appears that the author is expressing an opinion, otherwise a reader cannot know that there is a judgment to be made. They must be entitled to accept as a fact something that is presented as a fact. It follows from this that we cannot accept Amendment 5. Although the Bill abolishes the common law, we can see no reason why the courts would depart from the current approach.
As I have said, a defendant who satisfies the first condition that the statement is one of opinion must also satisfy the second condition that the statement must indicate, whether in general or specific terms, the basis of the opinion. Amendment 4 would replace the word “basis” with the words “subject matter”. The provisions in the Bill reflect the test approved by the Supreme Court in Spiller v Joseph that,
“the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based”.
We consider that the word “basis” more accurately captures the essence of that test.
I hope that, on that basis, not only will the noble Lord withdraw this amendment, but that when the noble and learned Lord, Lord Lloyd of Berwick, returns to these shores and reads Hansard, he will accept that he has had a good run for his money but that this is where the Government’s view is and where it will remain.
Lord Lester of Herne Hill
I am grateful to the Minister for his reply. The further the Bill proceeds through this House, the more I am convinced that he would have made a superb Queen’s Counsel. Maybe as a result of his experience, that will be his next career.
I have no idea whether the noble and learned Lord, Lord Lloyd of Berwick, will be satisfied by the Minister’s answer. I cannot control or fetter him in any way. As I understand it, the Government’s position is that the second condition—
“that the statement complained of indicated, whether in general or specific terms, the basis of the opinion”—
was based on the judgment of the noble and learned Lord, Lord Phillips of Worth Matravers, in Spiller v Joseph, in which he held that it is not a prerequisite of the defence that readers should be in a position to evaluate the comment for themselves. My understanding is that the Government’s position is that Clause 3(3) has been prepared on that basis, and that the amendment of the noble and learned Lord, Lord Lloyd, is therefore unnecessary.
I see the Minister nodding. I hope that the ministerial nod, which I now record in Hansard, will cause the noble and learned Lord, Lord Lloyd of Berwick, to treat it as sufficient for his purposes and for those of Pepper v Hart. On that basis, I beg leave to withdraw the amendment.
Baroness Bakewell
My Lords, in speaking to Amendments 6, 7 and 9, I declare an interest. I am a member of PEN, the defender of writers’ rights, and have been briefed by it in the matter of public interest defence. However, I speak as a journalist of some four decades’ experience, schooled in what were at the time the exacting standards of BBC journalistic behaviour. If that sounds rather smug or perhaps even naïve, following the earlier debate on Leveson today in which enormous generalisations about the nature of the press and its wickedness passed unchallenged, I am aware and proud of the many high standards of journalism in this country, which has served in part to disclose the scoundrels in the industry whom we wish to call to account.
It is against that background that I seek to make the matter of public interest foolproof against capricious and expensive litigation and extended and opportunistic probing of journalists’ subjective motives.
The advantage of the small but significant changes proposed in these amendments is that the defence can still benefit from a subjective element that would require the court to consider the defendant’s state of knowledge at the time of publication, but would limit the claimant’s ability to spin a long and expensive case by probing the defendant’s motives. It is the decision to publish rather than the belief that is critical.
Matters of public interest require objective judgments reasonably arrived at. Journalists must be held to such judgments. The issue of subjective motives is simply not relevant to the case. As Lord Justice Dyson found in the case of Flood:
“The mere fact that an article is published because the journalist or publisher wants to hurt the subject of the article is not material to whether the publication is in the public interest”.
As long-serving practitioners in the area of defamation law have advised the Libel Reform Campaign, an opportunity on the part of an aggressive, outraged claimant to use the litigation to probe into, to prise open and to seek to expose as flawed the motives and good faith of a defendant, including editors and journalists, may be readily exploited. As a writer of fiction, I am well aware of the complexity of human motive and its expression, including my own. But as a journalist, I acknowledge that my examination and exposure of a story must answer the strictest tests of reason and objective judgment. The law must safeguard my right to do so. In leaving open the option of what I might believe and why, some major intentions of the Bill—to reduce the length of cases and their prohibitive expense so as to enable those without means to get redress—would be damaged. I support the Bill.
Lord Lester of Herne Hill
My Lords, the Government are to be commended for having dropped the checklist in Clause 4 and for introducing instead the generic test, which I think was very much the test that Sir Brian Neill, as an adviser, recommended. There are three separate issues here. I am not sympathetic to widening the reasonable test to one which “could be” rather than “is”. I think that the objective test of reasonableness is right. I am sympathetic to substituting the word “decided” for “believed”. It is about whether what was decided was reasonable and, therefore, it seems to me that decided is a better word. It is not just I who say that: as has been said, it also has been said by leading libel counsel with experience.
I very much hope to persuade the Government to drop altogether Clause 4(2) on rapportage. Rapportage was introduced in my Private Member’s Bill originally—then, with good reason. But now that we have a good public interest test in Clause 4(1), I do not understand why we need the complexity of subsection (2), which I regard as difficult to understand or apply and unnecessary. Reading Clause 4(2) and asking oneself as a lawyer or a human being what it means makes my point. Clause 4(2) states:
“If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party, the court must in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it”.
I think that I understand what is being said but I do not understand why it any longer needs to be in the Bill.
Rapportage, or reportage, covers cases in which the very fact that certain allegations are being made, or that a certain controversy exists, will constitute a matter of public interest. It is in the public interest to report what is being said, irrespective of whether it is true. In such cases, the defendant may be relieved of the normal obligation to seek appropriate verification of allegations before publishing them because the newspaper is a mere reporter. It is not adopting a defamatory position. In light of the amended Clause 4, there is no longer any need to make specific provision for rapportage because the elements of this subset of Reynolds privilege is covered by the general test of whether the statement published was on or part of a statement on a matter of public interest and the defendant reasonably believed that the publication was in the public interest.
Clause 4(2) as drafted is confusing and opaque. It has the potential to cause further confusion in the light of the redrafting of the rest of the clause. Clause 4(2) states that the court must,
“disregard any omission of the defendant to take steps to verify the truth of the imputation”.
The reference to taking “steps to verify” is there because in the checklist in the previous version, one factor was,
“whether the defendant took any other steps to verify the truth of the imputation”.
However, as Clause 4(2)(g) has now gone from the Bill, there is no need to provide that the court should disregard it. To refer to taking “steps to verify” in subsection (2) is confusing.
I very much hope that we can get rid of this altogether. We do not need it. The general standard in Clause 4(1) is good enough to cover rapportage as well. I do not expect the Minister to give me other than a bleak and wintry reply this evening but I would like to think that by the time we come to Third Reading, the shoots of spring may shoot out of the earth.
Viscount Colville of Culross
My Lords, I support Amendment 7. I welcome the Government’s amendment to Clause 4. However, if the change from “believed” to “decided” guarantees that the checklist does not return and that authors will not be exposed to long and expensive cases in libel courts, I as a journalist think that that must be a good thing and I support it.
Lord McNally
My Lords, I am grateful to the contributors to the debate. The noble Lord, Lord Taverne, expressed the concerns of Sense about Science, and the noble Baroness, Lady Bakewell, spoke on behalf of, or was briefed by, PEN. These are organisations that I have listened to, and have had contact and dialogue with, throughout the two years’ gestation of the Bill. My aim remains to get as close as possible to the aspirations of those organisations. I suspect that in the end they will still say that we have fallen short but, particularly in Clause 4, we have tried to move in a direction that makes the law better and clearer. I am grateful to the noble Lord, Lord Browne, for his comment on our work on recasting it.
Amendment 8 is a government amendment that owes its authorship to the noble Lord. I am grateful for that and I hope that our acceptance of it is a demonstration of my willingness to listen as the Bill has proceeded. Our amendment provides for the court to have regard to all the circumstances of the case in deciding whether the requirements for the public interest defence under Clause 4 to be satisfied have been met. This amendment responds to concerns raised by the noble Lord, Lord Browne, in Committee that following government amendments to Clause 4 which, among other things, removed the list of factors for the courts to consider, there was a risk that the courts would simply invent a new checklist in interpreting and applying the new defence—a point made by the noble Lord, Lord Taverne.
In the context of that debate, I indicated that we did not believe that a provision requiring the court to consider all the circumstances was strictly necessary, because the courts would do this in any event. I also indicated that in developing a body of case law the courts may inevitably decide that particular factors are relevant in determining whether the defence has been established in a case. That remains our view. However, on reflection, I believe that it would be helpful to send a signal to the courts and practitioners to make clear the wish of Parliament that the new defence should be applied in as flexible a way as possible in light of the circumstances.
Amendments 6 and 7 would change the second limb of the test for establishing the public interest defence under Clause 4, whereby it would be satisfied if the defendant could show that he could reasonably have decided that publishing the statement was in the public interest, rather than that he reasonably believed that that was the case. This is intended to make the test more objective, as noble Lords have indicated. It reflects concern that the provision as currently drafted could lead to claimants seeking to introduce arguments relating to the defendant’s motive, which the courts have indicated is not relevant in relation to the common-law defence. While a claimant might seek to introduce arguments about the defendant’s motive, given the strong signal given by the courts in cases such as Flood to the effect that such considerations are usually irrelevant, we think it highly unlikely that the courts would entertain them.
Let me say here—the noble Lord, Lord Browne, has indicated that he is listening carefully to this—that my absolute intention is for this part of the legislation to embrace and reflect Flood. We are concerned that adopting the wording of the amendment could shift the focus more towards what a hypothetical defendant might have known or what steps they might have taken. This would not reflect the Flood judgment. In Flood, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said that the courts were examining whatever the defendant,
“knew (and did not know) and whatever they had done (and had not done)”.
To paraphrase, the courts have to focus on what the defendant’s state of knowledge was and what steps they took prior to publication. We consider that the current wording in Clause 4(1) better captures this test and better reflects Flood.
Lord Lester of Herne Hill
Perhaps the Minister could be referred by his officials to what the noble and learned Lord, Lord Brown, actually said in paragraph 113 of the judgment, where he said that there was a single question, which was,
“could whoever published the defamation, given whatever they knew (and did not know) and whatever they had done (and had not done) to guard so far as possible against the publication of untrue defamatory material, properly have considered the publication in question to be in the public interest?”.
As I read that, it is very close to Amendment 6. I mention it because this is a question purely of what was meant, as the noble Lord, Lord Browne, indicated.
Lord McNally
I shall certainly draw that intervention to the attention of my officials. My briefing poses the question: does the new reasonable belief test reflect the current law or change it? It then goes on to say that our intention is to reflect the current law as articulated in cases such as Flood and we believe that it does so. It states that the test draws in particular on the way in which the noble and learned Lord, Lord Brown, approached the question in Flood. It then quotes exactly the same section of the judgment. As an innocent in this jungle of legal jargon and judgments, it does not surprise me that two sides of the case should quote the same judgment. We think that we have got it right and that what we have reflects the view of the noble and learned Lord, Lord Brown. We were doubly blessed in our Committee because we had both the noble Lord, Lord Browne, and the noble and learned Lord, Lord Brown, to give us wise legal advice. It is interesting that, in anticipating a question on that, my briefing should draw on exactly the same quote from the noble and learned Lord, Lord Brown, to defend what we have done as my noble friend Lord Lester claims for his amendment.
On Amendment 9, my noble friend Lord Phillips joined my noble friend Lord Lester in general castigation, and the noble Lord, Lord Browne, gave them some qualified support. I have warned my noble friends to be wary of qualified support from the noble Lord, Lord Browne; it leads them only into bad ways.
The amendment would remove Clause 4(2), which deals with reportage. “Reportage” has been described by the courts as,
“a convenient word to describe the neutral reporting of attributed allegations rather than their adoption by the newspaper”.
Subsection (2) is intended to catch the core elements of reportage as articulated by the courts. These are that where the defendant publishes an accurate and impartial account of a dispute between two or more parties, the defendant does not need to have verified the information reported before publication. This would not, however, absolve the defendant from the need to satisfy the court that, in all the other circumstances of the case, it was reasonable to believe that the publication was in the public interest.
Lord Faulks
My Lords, the law has been struggling for a little while now, both here and across the world, in trying to find the correct solution to the question of whether, and the extent to which, website operators should be liable for defamation. At the moment, there is no bespoke provision dealing with website operators.
Section 1 of the Defamation Act 1996 was passed to deal with the position of wholesalers, booksellers, newsagents and libraries. It provides a possible defence for website operators, but this defence failed in the case of Godfrey v Demon in 2001 when a website operator did not remove the posting immediately upon being aware of its defamatory content. There is also a potential answer provided by the Electronic Commerce (EC Directive) Regulations 2002, but there is doubt about the level of protection this provides for so-called hosting. There is equally considerable doubt as to what does or does not constitute publication. Therefore, I congratulate the Government on not simply ducking the issue but seeking to address specifically the position of the operators of websites in the Bill.
I also generally applaud the Bill for the reasons that have been given in the course of debates. However, I am concerned that in the provisions of Clause 5 it is too generous to website operators. There is no doubt in my mind that these provisions are the most significant in the Bill. As we were reminded in Committee, nowadays the internet is the main form of communication used by people under a certain age. Even e-mails are something of a thing of the past. So that we can be confident that what we provide by this clause is going to be central in relation to defamatory communications in future, it is particularly important that we get this right.
The terms of Clause 5 leave much to regulations. I would not relish the role of parliamentary draughtsmen in trying to come up with appropriate regulations. It is almost certain that whatever emerges will be out of date almost immediately because of the fast-moving nature of this form of communication. The Constitution Committee of your Lordships’ House, in paragraph 15 of its report on the Defamation Bill, was wise when it said:
“We consider that, as a matter of constitutional principle, the relevant provision should be to the greatest extent possible on the face of the Bill, so allowing full legislative amendment and debate. Moreover, only by seeing the proposed obligations to be imposed on operators will Parliament be able to consider whether the regime proposed is fit for purpose”.
That is why our amendment leaves much to the judge, so as to prevent obsolescence in the law.
The amendment attempts to provide a special defence to website operators, acknowledging the vulnerable position that they may be in but none the less specifically echoing the legislative language of the 1996 Act, placing the burden upon the defendant to show that he, the website operator, exercised reasonable care. What worries me about the current drafting is that the burden is very much on the claimant to surmount a series of hurdles before he can overcome the prima facie defence provided to the operator of a website. This seems to me to be getting the balance wrong and places the website operator in a unique position in the law of defamation.
When the Law Commission in 2002 examined the law of defamation on the internet, it came up with various recommendations, including amending the 1996 Act which is effectively what this amendment does. It also recommended that the industry should adopt a code of practice. My noble friend Lord Phillips and I think that is critical, and it is unfortunate that no such code of practice has emerged. As our amendment is framed, it would place a considerable onus on website operators in general to arrive at a code of practice which, if sensible and reasonable and followed in an individual case, would provide a solid defence to claims in defamation.
There is I think consensus that we should be trying to keep defamation claims out of court, if at all possible. The position after this Bill becomes law means only a well funded claimant with a serious complaint can even dream of bringing proceedings. In respect of that rather small risk, it is clear that website operators can take out insurance in respect of which only modest premiums would be payable. That seems to me a small price to pay for the protection of those who are genuinely aggrieved at defamatory content being posted on a website. In Grand Committee I gave the example of a teacher being accused of being a paedophile—almost certainly fatal to their career and their life.
Nobody should under-estimate the power exercised by website operators. I was a member of the Joint Committee subjecting the Data Communications Bill to prelegislative scrutiny last year, and we heard a great deal of evidence from website operators. It was impressive in terms of the quality, and no doubt expense, of those assigned to advance their position. They did not want to have to store any information which was not commercially useful to them even if it helped government agencies to track down and prosecute criminals. Much was made of their users’ rights to privacy. This is something of an irony since the information that users of websites provide is of course extremely valuable commercially. Website operators now say that it is very inconvenient to take down potentially defamatory material and that it compromises free speech. It is perhaps a little easy to deploy free speech in this context, but let us not get too misty eyed about this in the light of the careless and often ill thought out comments that find themselves on websites.
I fear that this clause as currently framed favours the powerful—namely, the website operators—who have a strong lobby, as opposed to the much less powerful, who might be defamed in the future. Our amendment does something to try and redress the balance. On considering the respective positions of the very powerful and the almost powerless, I know which side I am on.
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.