Defamation Bill

Lord Lucas Excerpts

Wednesday 19th December 2012 Grand Committee

[Lord Lucas]

My Lords, I apologise to the Committee for arriving late for a group in which I have amendments, but I am not fussed about having missed Amendment 10A. These are only for discussion anyway. I am also delighted that the Minister is not a lawyer, no more than I. We are in very intimidating company, but I shall be comforted by the thought that I am at least talking on a sort of level with him.

I declare an interest in that I run the Good Schools Guide, and therefore the whole matter of opinion is central to my life. Knowing what is and is not opinion is something to which I have to give daily consideration when I am looking at the comments that people have posted on our website and the comments that we choose to make about schools. I am conscious that I do not get good, consistent legal guidance in this area.

When things are put as they are in subsection (2)—

“the statement complained of was a statement of opinion”—

there are clearly a lot of factual statements which I treat as if they are statements of opinion. If someone says in a restaurant review that the food was cold, that is a statement of fact but the courts are going to treat it as a statement of opinion. On the other hand, if I say about a school that my child was bullied, that is not a statement of opinion but a statement of fact. Yet they both appear in the same English construction as the statement which will be taken as a statement of opinion. Dividing the two for people who are going to practically use this legislation is something which they will find difficult and I have always found difficult; it has frequently cost me lawyers’ bills to decide. I would be comforted if the Government were to make some effort, since we have a Bill on the subject, to enable ordinary users of this legislation to have some certainty as to what is an opinion and what is not. I do not see anything in this clause that makes life easier for me.

The second thing that causes me particular concern is subsection (4)(a), where it seems that in this matter of opinion we introduce the question of a fact:

“The third condition is that an honest person could have held the opinion on the basis of … any fact which existed at the time”.

Even if we go back to the restaurant review, and I say in a review on a website that the food was cold, how can I establish that fact? I am being asked by subsection (4)(a) to say that there is a fact there. I have no way of establishing that fact. If the restaurant disputes that the food was cold, how will I argue that I am dealing with opinion? In my interpretation of subsection (4)(a) as a user of this legislation, rather than being given the freedom of expressing a reasonable opinion based on my experience of something, I am being called back to establish a fact in order to justify my defence that this is an opinion. I have to establish that I have this opinion based on facts. Therefore I have to establish the fact, and I cannot, so I am not entitled to an opinion. As a lay interpreter of the Bill, I find that a worrying clause. I would be grateful if the Minister could explain why I should not be worried about it.

[Lord Lester of Herne Hill]

My Lords, first, I am glad that the noble and learned Lord, Lord Lloyd of Berwick, referred to Lord Ackner. I remember when I was arguing a case called Pepper v Hart and the Attorney-General said, “Don’t pay any attention to what Ministers say at three in the morning, it is often rubbish”. Lord Ackner looked at him and said, “Mr Attorney, is the proposition that Ministers should think before they speak incompatible with good government?”.

The purpose of Clause 3 is to get rid of the uncertain common law and make sure that the problem that the noble Lord, Lord Lucas, has just raised will not arise again. It is curious that he should mention the example of the food critic, because what convinced me that we needed a Bill, and particularly Clause 3 of the Bill—which was invented by Heather Rogers QC, in my view the most knowledgeable and open-minded of all the QCs practising at the libel Bar—was a case that I did in Northern Ireland about a food critic. A restaurant called Goodfellas, which was probably funded by the IRA, was reviewed in the Irish News by Caroline Workman, the newspaper’s food review critic. The review was very rude about the quality of the food in the restaurant. However, counsel on both sides and the trial judge—and certainly the jury—confused facts and opinion. Caroline Workman was put in the witness box for three days and cross-examined on whether the food was, or was not, of the standard that she had put in the review. When I came in on appeal, I attempted, successfully, to repair the damage by persuading the Court of Appeal in Northern Ireland that if it is a food review, and everyone can see that it is about opinion, you need very few facts in order to justify the opinion. There are, for example, food or theatre reviews that just use stars, so that no stars means that it is terrible and five stars means that it is worth eating or seeing. It is defamatory to put no stars, or only one star, but it would be absurd for the reviewer to have to prove anything more than that they were there at the time; in other words, that it was not malicious. Leaving aside for the moment the point made by the noble and learned Lord, Lord Lloyd, the beauty of Clause 3, as it stands, is that it really does, for the first time, make the distinction between honest opinion and the defence of truth as good as I think one can get it.

However, I agree with everything that the noble and learned Lord, Lord Lloyd, has said about the Telnikoff case. I am not sure about the precise words of the amendment, but if the Minister were able to make a Pepper v Hart statement to indicate that whereas in subsection (8) we overrule the common law defence of fair comment—that we abolish it and start afresh—and that the intention in doing so is, among other things, to overrule the majority decision of the House of Lords in that case, then it might not be necessary for an amendment to proceed. One of the difficulties I have with the amendment is that although it singles out newspapers, there are of course other publishers as well—but that is a matter of boring technicality. I strongly support the spirit of that amendment and I hope that I have clarified why the noble Lord, Lord Lucas, can sleep easily tonight.

--- Later in debate ---

[Lord Lucas]

My Lords, perhaps I may first ask a question on the matter raised by the noble and learned Lord, Lord Lloyd of Berwick. The Minister said in his reply that he thought that it would now, under this Bill, be fine if someone reading the letter could refer to the article, because that was referenced, and that would cover things. Would that be the case if the letter concerned was behind a paywall? As would commonly be the case on Twitter or blogs or whatever, you might well find that the letter had been published in the Times or the Financial Times or some other place which is only accessible if you pay some mogul a large sum of money annually, and is therefore not in a practical sense accessible to someone who just happens to read the letter and react to it. Would that mean that if you published behind a paywall and then commented on it you were not protected by the law as it is set out in this Bill?

Secondly, I turn to the subject of my amendments. As a practical user of the Bill, I am going to find it very difficult to know what is opinion and what is not. At the moment one has to go through ridiculous and convoluted forms of language such as, “I felt that the food was cold” or “I believe that my son was bullied”, in order to make it clear that you are talking about opinion. It does not say clearly anywhere in this Bill that when you are talking of personal experience, that is equivalent to opinion. We are coming to the effects of this clause on Clause 5 concerning website operators when judging whether an incoming comment is a comment or a statement of fact. It is very important to have rules and to know where the law lies, but at the moment Clause 3 does not make that clear. I continue to have a problem with the way paragraph (4)(a) is expressed. Something is not an honestly held opinion,

“on the basis of any fact which existed at the time”.

That does not appear to have any application to whether the person who held the opinion was aware of the fact, or indeed was even capable of being aware of the fact. If the fact existed, that makes the opinion a dishonest one and therefore not protected. Again, I find that concept very difficult.

I shall certainly bring these matters back on Report, but I will be grateful for any guidance and perhaps the opportunity to go through these things with officials before the next stage.

[Lord Ahmad of Wimbledon]

I thank my noble friend for his questions. I can give him an assurance that we will write to him on the specific points that he raised. That will allow for a proper period of reflection.

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[Lord Lloyd of Berwick]

To correct the record, the noble Lord, Lord Lester, referred to Sir Brian Neill and the huge contribution that he made to this part of the law, but he did say that he was in hospital. I am happy to tell the Committee that he is now back home and will no doubt be following this debate with the greatest interest, either in Hansard or possibly—he is sufficiently technically minded—on television.

[Lord Lucas]

My Lords, my noble friend in his speech, and my other noble friend subsequently, convinced me that my Amendment 16A was misguided, so I shall not pursue it. However, I will ask my noble friend how he thinks his Amendment 14, and in particular the words “reasonably believed”, will apply to Twitter. It is a common function of Twitter that one passes on interesting news, sometimes with an added comment of one’s own, attributing it to a source generally rather than appropriating it for oneself. Would one be expected, under this amendment, to pursue inquiries as to whether one believed the source, or the particular information; or will it be sufficient to reasonably believe that the place you got it from is likely to be reliable?

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[Lord Lucas]

My Lords, I shall address my amendments in this group and reiterate that I have a considerable interest to declare in that I run the Good Schools Guide and, therefore, a website on which such comments are regularly posted.

So far as identity is concerned, I have a lot of sympathy with what the noble Baroness, Lady Hayter, said. I do not generally like people who hide behind anonymity on the web, although it has become a habit. One generally knows who one is talking to on Twitter, at least after a while, but there are other areas of the web, such as Mumsnet, where you do not have a clue and there is no indication of the identity of the person. Often that is just because people are talking more openly than they might if they were to be identified. They might say something about a shop that they use regularly or a school which their children attend which is helpful to other people to know, but which they would find it embarrassing to be linked back to.

--- Later in debate ---

[Lord Phillips of Sudbury]

Why should the expense and risk be on the side of the citizen?

[Lord Lucas]

Absolutely—the expense should be on the citizen who, having made the comment, is the target of the defamation action; but the website should not be forced to take down the comment just by the threat of a defamation action against the person who originated the comment. Otherwise, it becomes all too easy to wipe complaints off the public record. It is not that I wish the person complained against not to have any means of action but it should be against the person posting the comment and not against the website that is hosting the comment, until it has been proved to be defamation and a court order comes saying, “You must take this down”.

[Lord Phillips of Sudbury]

My noble friend is putting forward a situation which has no parallel, for example, in newspapers, or radio or television. It is no good the newspaper saying, “Well, this isn’t my letter, this is the letter of John Smith and therefore it is nothing to do with me”. Why should it be any different for the web operator?

[Lord Lucas]

We are dealing with the web operator as a conduit and not as a publisher. If I want to make a particular statement about a company that I feel has wronged me, I will do so using public media such as Facebook, Twitter or other sites on which I might post a comment. That is me making that statement. If I am identifiable, which I think is quite proper, then the action should be against me. Otherwise, it means that those who are behaving badly and wish to hide that bad behaviour can simply wipe all record of my complaint off all public websites without any risk or trouble to themselves. I would say that it is in the public interest that I make my views on this particular company known, but I am going to be deprived of all means of doing so in an electronic world because I will have no access to what becomes the medium of communication, because as soon as I say anything there the company that I have complained about can wipe it out. That seems to me an entirely unreasonable situation.

We have to recognise that we are dealing, as the noble Baroness, Lady Hayter, said, with a different world and a different way of doing things and that if we want news of bad practice to spread, we have to allow it to be published. Allowing it to be published means holding harmless those who are acting as a conduit. I am a publisher and recognise that if I publish something unpleasant about some school or person then I, as a publisher, take that on the chin. That is part of my remunerated business. However, the owners of Twitter are getting no benefit from the fact that I have tweeted something on it—there is no revenue with which to offset the cost of establishing that I have a right under law to say what I have said, so they will immediately take it down, if complained against, unless we provide them with some kind of “hold harmless” defence. So it is very important that the conduits, if they behave well, establish the identity and share it with the complainant, and can continue to publish until the point has been reached where it has been established in a court of law, or by agreement or otherwise, that what has been said is defamatory.

I agree with the noble Baroness, Lady Hayter, that it is very important that, where something has been said about a company or a person that is considered defamatory, a statement from the person who is being defamed should be published alongside the original statement. That is a relatively easy technical thing to do, and I do not think people should have to wait seven days. It should be relatively automatic. These days, one day—certainly one working day—is enough to do that. That should be an automatic right, because it is easy to do and balances things reasonably.

I am also interested in the question of moderation, which has been referred to. The status of moderation under this clause seems to be very uncertain. By moderating to any extent, do you become the publisher of what has been said? A lot of sites will just allow unrestricted publication, and that appears to be safe, but we and many other sites will moderate; that is, we will want to see what has been said before we decide that it can be published. If we moderate and then publish, have we assumed liability for what is said? Have we assumed a liability for checking it? If not, it becomes impossible to moderate and you are saying, “We wish the web to be entirely unmoderated and we think that the process of moderation is undesirable”. I am not sure that that is what the Government intend to say.

If you allow moderation, do you allow within that any kind of editing or advice? If someone posts a comment and it appears to be a statement of fact rather than opinion, are you allowed to say to that person, “You have not phrased this as a statement of opinion. If you resubmit it as a statement of opinion, we will publish it”. Is that taking responsibility for what as been said? I think of moderation as something we should encourage. It improves the quality of the web as a whole, although it is an expensive thing to do. We should be clear in this clause about the extent to which we are prepared to support and protect the process of moderation.

Lastly, I come back to what the noble Baroness, Lady Hayter, said about TripAdvisor. I think that it is barking up the wrong tree. I suggest that it employs what we have effectively used over many years and I will call the Good Schools Guide defence. If a school starts to complain about comments we have made, we merely post the fact that we are not prepared to allow comments on this school because we do not agree with the school’s policy on taking down comments. That is as good as anything. If TripAdvisor were to do that to a hotel, that would be worse than any comment that anyone could possibly publish. It would achieve the end result it wanted without pain.

[Lord Allan of Hallam]

My Lords, I also declare a considerable interest in that I work for Facebook, one of the web operators which may receive notices under subsection (5). In contributing to the debate, I am trying to bring some of the expertise that we have as operators of internet websites more generally to what is, I know, a complex and difficult debate and one which we make more complex and difficult by having fast-moving technology. In that respect, I shall touch first on the amendment which proposes that we should talk about electronic platforms rather than websites per se. In doing so, I will pick up on some of the other points made in the debate around whether websites are different and special; they may be or they may not.

There are essentially two classes of website. There are websites which are owned by a single organisation and over which that organisation has editorial control. It could be argued that such websites should be treated like a newspaper or any other form of media. Indeed, those websites are specifically excluded from having this defence because, under subsection (2), they are clearly the organisation that posted the statement in question to the website, so it runs the website and creates the content for it.

There is a whole class of other websites or platforms where the body which produces that platform has no direct interest in the content, exercises no editorial control and simply exists, as the noble Lord, Lord Lucas, described it, as a conduit that enables a citizen to speak with other citizens all over the world. These platforms have become tremendously successful precisely because they democratise speech in a way that was not previously possible because you needed a printing press or other expensive equipment. It is right that in the context of Clause 5 we should think about the position of those operators. That is much more widely recognised in law, if we look at the e-commerce directive, which has been very successful. It was designed precisely with the fact in mind that we have on the internet platforms the job of which is to connect people, but which are not responsible for the content being shared between the people connecting through these platforms. This covers a whole range of other areas such as copyright, illegal content and so on.

However, this does not mean it is a lawless space —that discussion was held earlier—in fact, it is a very lawful space. The operators have responsibility but the primary responsibility for content shared across a platform has to reside with the person who posted and shared that content. In that respect, Clause 5 takes us absolutely in the right direction. It directs platforms—the second type of website that is not editorially responsible—towards a regime within which it is in their interests to connect the poster of the content with the complainer about it and to seek to resolve the dispute between the two parties. Where that dispute cannot be resolved between them, the operator then has some responsibilities.