Queen’s Speech

Lord Marks of Henley-on-Thames Excerpts

Tuesday 15th May 2012 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, I shall use my time to welcome the commitment to introduce legislation to protect freedom of speech and to reform the law of defamation. I was a member of the Joint Committee on the draft Defamation Bill under the excellent chairmanship of my noble friend Lord Mawhinney, who guided us and the many witnesses who gave evidence to us courteously and patiently but always incisively through some difficult areas.

Not only will the Bill implement the commitment in the coalition agreement mentioned by the Minister to revise our libel laws to protect freedom of speech, it will build on the firm cross-party consensus on the Joint Committee, which produced a unanimous report in favour of reform. The driver of reform is a general and justified view that the present operation of the law on defamation inhibits free speech.

There are a number of areas of particular concern. The first is that libel litigation—or, more insidiously, because it cannot be statistically measured, the threat of such litigation—can be and is frequently used to stifle discussion and legitimate criticism: the so-called chilling effect. The second is that the present threshold of seriousness for cases is far too low, which adds to the chilling effect, threatening scientific and academic debate in particular. The third is that the cost and complexity of defamation proceedings present insuperable obstacles to people of modest means who are therefore unprepared to risk or resist libel proceedings even when they are in the right. Fourthly, as my noble friend Lord Thomas of Gresford mentioned, recourse to the English courts, or the threat of such recourse, has encouraged potential claimants to bring or threaten proceedings in this country which are not in fact suitably at home in this jurisdiction. On the other side of the balance between free speech and reputation, there is concern that the same obstacles that inhibit freedom of speech are faced by individuals of modest means who are themselves defamed and have no chance of invoking the law to assist them to protect or recover their reputations.

The chilling effect is addressed in several of the provisions of the Bill published in the House of Commons last week. The raising of the threshold for bringing claims by the serious harm test; the honest opinion defence; the single publication rule; the privilege for peer-reviewed academic or scientific statements; and the new statutory defence of responsible publication in a matter of public interest will do much to reduce the chilling effect, helping to prevent frivolous or trivial claims being brought or threatened which inhibit free discussion.

I add one point here. It can be and has been argued, particularly in relation to the serious harm test and the responsible publication defence, that the common law was improving already and that the courts have been rejecting more trivial cases and have developed the Reynolds defence of responsible journalism. The argument continues that therefore codification in statute is unnecessary and—which is worse—that codification stifles the development of common law. However, that argument misses the essential point, which is that making the law accessible does not mean making it accessible to lawyers. Members of the public should be able to look at the law simply on the internet and get a clear idea of where the law stands from statute, not have to go to their lawyers to get a detailed analysis of the way the law is moving in the light of recent cases.

The cost and complexity of defamation proceedings needs to be addressed. The Joint Committee report went into some detail on this, and the Government’s response has been sympathetic. The restriction of jury trials to exceptional cases will go a long way towards making early resolution more achievable. The promise to introduce a more effective early resolution procedure involving the determination of meaning and the narrowing of the issues together with more effective case management, strengthening of the pre-action protocol and greater encouragement of mediation and other dispute resolution procedures should all help to reduce costs. However, one has to accept that going to law in defamation cases is never going to be inexpensive and that a great deal of work will be required to make the law more accessible in this area, over and above these statutory reforms.

One reform that I believe should be universally welcomed is the introduction of a general power in the court to order an unsuccessful defendant who loses defamation proceedings to publish a summary of the judgment against them. That answers the criticism that you cannot order a defendant to make an apology that is plainly forced and insincere, but recognises that the defamer who is successfully sued can and should be obliged to play some part in the vindication of the person who was defamed.

The Bill attempts to tackle internet defamation in a novel way. This is an area where legislation is very difficult. The Government have not accepted precisely the scheme suggested by the Joint Committee but I firmly believe that we are right not simply to admit defeat and say that it is all too difficult to strike a reasonable balance on the internet between permitting freedom of expression, on the one hand, and allowing those who are defamed an opportunity to have offensive and defamatory material taken down, on the other. The provisions for notices of complaint in the Bill and for website operators to have an opportunity to respond to them seem to be a sensible attempt to strike that balance. I look forward to debating those provisions, and others, in the Bill in due course.