Defamation Bill

Lord Lucas Excerpts

Tuesday 5th February 2013 Lords Chamber

[Lord Lucas]

My Lords, as a website operator, I urge my noble friend the Minister to take no rubbish from website operators. I have great sympathy with the purpose of this amendment. There are a lot of people out there who are essentially defenceless when things appear about them on the web. We need to make sure that the regulations enable them to get easy redress and relief and that we do not allow long timescales to suit operators when short timescales would suit the people who have been defamed. At the same time, as my noble friend said, we have to balance that with our freedom to be rude about people who we need to be rude about and to say nasty things about Ruritania or anywhere else, and to keep the powerful under control. It is a difficult balancing act. I think that the right way to deal with this is in the regulations under Clause 5(5), which can go into some detail and some precision about this. I would hate to be subject to this amendment. As a website operator I really would not know where I was, or what I was or was not allowed to do, particularly with no supporting regulations. Therefore, I cannot support the amendment but I very much support the spirit behind it.

[Lord Ahmad of Wimbledon]

My Lords, I thank all noble Lords who have taken part in this debate. I particularly thank my noble friend Lord Lester for his intervention.

Clause 5 provides a defence to website operators if, upon receipt of a notice of complaint, they follow a process designed to ensure that the issue is resolved with the poster of the material. My noble friends Lord Faulks and Lord Phillips raised concerns in Committee about Clause 5, and my noble friend Lord McNally and I met them to discuss those concerns. I am pleased to say that, as has been acknowledged, as a result of those discussions the Government have been able to bring forward Amendment 17 on the issue of malice, which I shall speak to in the next group of amendments. However, this amendment takes a different approach to that taken by the Government in Clause 5. As has been said, it would replace the Clause 5 defence and the accompanying process with provisions which substantially replicate the defence for secondary publishers currently found under Section 1 of the Defamation Act 1996 but with one important addition. New subsection (1)(d) would require the operator, on receipt of a complaint, to respond with expedition and to take such action as is reasonable in the circumstances.

This additional requirement would mean that, in order to have a defence, the operator would, on receipt of a complaint, need to make a judgment on what action it was reasonable to take. This would inevitably involve them reaching a view on the merits of the case, which in most instances they would not be in a position to do. The fact that they would lose the defence if a court decided that they had not acted reasonably would create a great deal of uncertainty for website operators, and we believe that in practice it would mean that many operators would simply choose to take the material down. That would result in exactly the same situation that we have now—an approach which has been criticised as unsatisfactory not only by a large majority of the responses to our public consultation but by the Joint Committee on the draft Bill and by the Law Commission in its 2002 scoping study on defamation and the internet.

Subsection (2) in the amendment would require the court, in considering whether or not the defence was made out, to take account of any steps taken by the operator to have and comply with a code of practice in relation to defamation, a complaints procedure or a system for providing identity details of posters to claimants to enable them to bring proceedings against the poster. I totally understand the intention behind the proposed subsection but Clause 5 already sets out a simple process in relation to the handling of complaints and the provision of identity details. In the event that a complainant brings proceedings against a website operator, the court will be able to assess whether the operator has complied with that process. This will ensure that the court takes into account how the operator has responded to the complaint. Perhaps I may also inform noble Lords that we will be publishing specific guidance on how the new process will operate for all those involved.

We have heard a great deal about balance. This new approach is about striking the correct balance and also providing protection to website operators. It is about striking a fair balance between those who have allegedly been subject to defamation and freedom of expression and speech. We believe that the defence in Clause 5 strikes a fair balance between all the interests involved. It will help freedom of expression by giving the poster of allegedly defamatory material an opportunity to stand up for it if they wish to do so, and it will give greater certainty to website operators. At the same time, it will enable claimants to secure take-down of the material on a short fixed timescale in the event that the poster does not wish to defend it. Where the poster does wish to defend it, it will also ensure that the Norwich Pharmacal process is more likely to give the claimant the information they need to pursue proceedings. I hope that on that basis my noble friend will be prepared to withdraw his amendment.