Defamation Bill

Lord May of Oxford Excerpts

Tuesday 15th January 2013 Grand Committee

[Lord Allan of Hallam]

My Lords, I remind the Committee of my earlier declaration of interest that I work for Facebook, which is a reasonable-sized website operator. In supporting the amendment that I and the noble Viscount, Lord Colville, have tabled, I first wanted to set out that we all have a common goal here, whichever side of the debate we are coming from. In a sense, it has been divided into sides, but I think that there is one common objective: unlawful defamatory material should be swiftly removed from wherever it should appear, whether in print media or on the internet. At the same time, there should be minimal collateral damage to content that is not unlawful. We want content that is lawful to stay up and people to be able to share it with each other, and content that is unlawful to come down. It is a simple objective, and both Amendments 26 and 27 are trying to take us towards that.

Amendment 27, in particular, is crafted in the context where we have people who are prepared to use any legal tools that we make available in ways that we did not perhaps intend, and will use them maliciously. There is no doubt that tools that are made available for people to request take-downs of internet content are used, and will be used, by people who are seeking to interfere with the freedom of speech of others. We must make sure that we have crafted the tools in such a way that we minimise that possibility, as well as maximising the opportunity for people to get content taken down that should be taken down. The objective is that 100% of the requests made through this process should result in the right form of action and that that action should be swift. I think the amendment, by specifying in more detail the form which the notice should take, is aimed to create what one might call a well formed notice. A well formed notice that has all the necessary information will be able to be acted on swiftly by the recipient of that information—in this case, the website operator—and the solution can be reached more speedily.

[Lord May of Oxford]

This is possibly a stupid point, and it may reveal my misunderstanding, but as I look at this—I said this during our first Sitting—there are occasions, particularly in the scientific sphere, when the intent is correctly defamatory, where one is saying, “This is wrong”, “This is dishonest” or, “This experiment has been faked”, and the like. Much of the wording of this assumes that if it is harming you, then you have rights, as it were, to stop the harm. However, I can think of lots of examples where the intention is deliberately and properly defamatory.

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[Baroness Hayter of Kentish Town]

My Lords, perhaps I may slightly correct the noble Viscount, Lord Colville of Culross, who I think said, “I am not a lawyer, I am just a journalist”. At the risk of upsetting a lot of other people in the Room, I do not think that he has that the right way round. The Bill is for you who write and we who read what you write or produce on television.

I thank the noble Lord, Lord Allan of Hallam, for clarifying that Facebook is indeed a website, which answers my earlier question. I use his words: we want swift removal of defamatory material with minimum collateral damage to lawful material. We may have to come back to that again at the end of the Bill’s proceedings. We can call it the Allan test and see whether we meet it.

I still have a problem with the question that my noble and learned friend, Lord Morris of Aberavon, raised earlier, which is about the distinction between lawful and defamatory. I found the evidence to the Joint Committee on Human Rights by Professor Phillipson on this compelling. Clearly, the whole of the committee did not, and I am not a member of the committee. The issues I want to raise are not legalistic but more about ethics and fairness, although I thank my colleagues, who have provided me with a little more legal background.

I want to go into a couple of cases which may be akin to what the noble Lord, Lord Faulks, mentioned on an earlier amendment about a teacher. I give two case studies. First, there is an Ofsted report on a school, and the local website reveals an affair between the head teacher and a parent, which is going on, but the evidence for it was found by Ofsted in its study, so it is a breach of privacy, because it was found by inspection and was then given without permission to the website. It then seems, under the privacy work being done by Leveson, that a case could be taken. Secondly, there is a separate case, where there is an Ofsted report on a school and a local website reveals an affair between a head teacher and a parent; however, it turns out not to be true.

If I have understood the difference with this higher hurdle, if what the noble Lord, Lord Lester, says is true, before the parent could take an action for defamation, they would have to know whether it was more than just untrue and bad for their reputation; they would also have to ask themselves, “Well now, was it in the public interest because the other party was a head teacher and therefore there could be a public issue?”. Or perhaps there is a defence because the claim was incredibly well researched and the head teacher was having an affair with a different parent, also called Smith, in the same street, and it was just a small technical error that caused the confusion, so it was responsible journalism. A hurdle is being asked for where that the parent, the claimant, would have to go and do some legal homework to try to think through what the defences were that the person who had written the untrue thing about them could put up against their action before they could actually start a claim—by which time their spouse would have left them. In fact, it would probably be better if the affair were true, because then they could get an action on privacy.

That brings me to a comment made by the noble Lord, Lord May. He seemed to be suggesting that as soon as you say something nasty about someone, it is defamatory. That is not my understanding. If I call him a rotten scientist, that is seriously defamatory, but if he calls me a rotten scientist, it is so patently true that it cannot be defamatory. I am not sure that some of the examples given would actually be defamatory; if you say that someone has been forging their research results and they have been, that is not defamatory because it is not untrue.

[Lord May of Oxford]

Many of the more celebrated cases in the libel tourism that has generated all this activity, such as the £1.5 million spent by the journal Nature in defending a plainly factual but defamatory statement about an Asian journal that was created simply to publish the papers of the sponsor, are of just that character. The statement were plain fact, but the action brought in this country by people outside it cost huge sums of money. The action involving Simon Singh was another example. What he was saying was plainly factual but was defamatory; it was intended to be so in every meaningful sense, and properly so. Somehow we keep losing sight of this in the legal elegances.

[Lord Marks of Henley-on-Thames]

I trespass on the noble Baroness’s time by giving another simple contemporary example. If I had said during his lifetime that Jimmy Savile was a horrible paedophile, that would have been seriously defamatory. Had I had access then to the information that we have now and he had sued me, I could have justified that. It therefore would have been defamatory but not unlawful. It is as simple as that.

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[Lord McNally]

No, I do not want him to stay; I really think that he should go back to his sickbed, although his recovery during the course of the debate was significant. He said, “This short debate” but I humbly refer the Committee to the fact that our two debates today on a single clause of the Bill, which we have still not yet completed, have taken us two hours and 40 minutes in a 17-clause Bill, of whose Committee stage we are on day three of four.

[Lord May of Oxford]

This gives us some idea of why legal costs are so high.

[Lord McNally]

I hope that Hansard noted that comment from a sedentary position and the general approval from the non-lawyers in the Committee for that observation.

At some stages during those debates, as a non-lawyer, I thought of John Wilkes, the famous radical. When he was about to publish his newspaper, the North Briton, he was asked by a French acquaintance, “Is the press free in your country?”. “I am about to find out,” said Wilkes. I think, having listened to this debate, that in some respects the internet is going to find out whether or not it is free. My noble friend Lord Mawhinney asked me where we were with regard to balance. It is not a question of balance between right and wrong, but the debates that we have had today show that there is a balance.

One of the great things about continuity in this House is that I was on the pre-legislative scrutiny committee that looked at the Communications Bill, where we deliberately advised against trying to legislate for the internet. On reflection, I think that we were right. My noble friend Lord Phillips said that he was on the side of the little man. On reflection, one of the greatest boons to the rights of the little man over the past decade or so has been the worldwide web and its freedoms. While I hear the passion and the righteous indignation of those who have been defamed and hurt, we as a Committee have to be careful not to overlegislate something that on the plus side has some considerable benefits for the little man.

That was a complete abuse of procedure, because I am moving a government amendment of some simplicity. It was also because I am wracked by guilt: at one point during the debates, the noble Baroness, Lady Hayter, helpfully sent me a note saying, “Are you on holiday?”. The truth is that when we were setting out who was going to handle what, I thought, “Clause 5 will be a nice snappy debate, since my noble friend Lord Ahmad—although he is learning disturbingly fast—should be given some experience of Bill-handling”. Little did I realise that he was going to have such a baptism of fire.

Amendment 28 provides for the affirmative resolution procedure to apply to the scrutiny of the regulations to be made under Clause 5 of the Bill, rather than the negative resolution procedure as the Bill currently provides. That is in the light of views put forward on this issue by the Delegated Powers and Regulatory Reform Committee, the Joint Committee on Human Rights and others. The affirmative procedure will ensure that the regulations receive more thorough parliamentary scrutiny. I hope that, as such, it will be acceptable to this Committee and to the House. I beg to move.

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[Lord Lucas]

My Lords, speaking again as a web operator, I do not know any way of establishing a person’s identity just because they are posting. One could establish a web identity, but that may have a very fuzzy relationship with any individual. If someone posts, gives me an e-mail address and I verify that e-mail address, that is about as far as I can get. However, I think that we can reasonably insist on that. If we are offering website operators the protection of this Bill against being sued for what is posted on their sites, we can ask them at least to have verified a web identity. We can ask that they take some steps to have a method of communication with this person and do not just allow straightforward anonymous postings. Then, something put up on the net should come from someone with whom the website operator knows that they have an established means of communication. Whether or not that works, is fake or just ends in silence, I do not think you can ask the website operator to determine. But you can at least make them take the first step.

[Lord May of Oxford]

This is a sensitive and difficult issue but I find myself in agreement with the noble Lord, Lord Lester, and others that the downside of doing this outweighs the upside. However, it was also my impression—which may just reveal that I did not understand what was going on—that quite a significant recourse is already given by what we were discussing under Clause 5.

[Lord Phillips of Sudbury]

Not if the complainant does not know the name of the author of the posting.

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[Lord May of Oxford]

No, but they complain to the people who should not have allowed it to be posted. That is my understanding, which means there is a responsibility—

[The Deputy Chairman of Committees (Lord Brougham and Vaux)]

Order.

[Lord May of Oxford]

I apologise. I forget the curious thing that you must stand up, thus rendering the microphone less effective. Be that as it may, I thought that there was some recourse and a real encouragement to the person running the thing not to permit really bad behaviour, because there is that recourse against the person who owns the website.

[Lord Phillips of Sudbury]

With respect, there is no recourse against the person who runs the website if they take the posting down. However, by that time, the damage to the complainant will have been done and will have reverberated around the world—and there will be no redress.

[Lord May of Oxford]

Did I misunderstand the part of Clause 5 that said there was a responsibility on the owner of the website not to permit outrages of the kind that the noble Lord just referred to? If there is, can you not sue?

[Lord Phillips of Sudbury]

I am afraid that the noble Lord did misunderstand.

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[Lord Hunt of Chesterton]

My Lords, that was the first time I have moved an amendment, so I hope you will excuse me.

This is an important amendment in an important Bill, particularly for scientists, engineers, doctors and writers, who approached me to take up the issue, particularly regarding the internet when used in a rather specialised way by these organisations. I have met many engineering and science institutions, whose membership comes to around 450,000 people, and on whose behalf they speak. I was also contacted by the coalition of Sense About Science, the Penn Club and the Index on Censorship.

This Bill offers legal protection, and in this clause there is emphasis on the peer-review process, which as a scientist and former editor I am very familiar with. I am also familiar with the fact that many scientists and engineers who are involved in public debate use the internet. The internet that they use is regulated by the institutions involved. We are talking about a much narrower brief; I do not know whether these people count as “little people” as mentioned by the noble Lord, Lord Phillips, but they are pretty important people and there are quite a lot of them.

This clause refers to the words “scientific or academic”, and I understand from earlier discussions that this includes engineers, medics and technologists. The amendment proposes that the privilege enjoyed by peer-reviewed articles should be extended to websites controlled and edited by chartered organisations and professional bodies. It attempts to build upon the current system, which is practical and financially supported.

The Institution of Civil Engineers, of which I am an honorary fellow, having studied engineering as a student, and the Institution of Structural Engineers have highly regulated websites on which people can make comments about, for example, a structure such as a bridge or some machinery. Those comments are then edited very vigorously, they talk to their lawyers so that they will not be defamatory or cause any difficulty and then they put the comments on their website, so it is a highly controlled system. They would welcome a clause along these lines, because they would then spend less time talking with their learned friends and would perhaps save money. They feel that this clause would put what they already do into practice or into a legal framework, which is a good way to proceed.

Some noble Lords have said in discussions this afternoon that we do not need this because it happens already. This is an example where things are happening already but they could work better and more effectively. Some people wrote to me from some institutions to say, “We’re not doing this very much; this would enable us to provide a better service to our members, who are very worried about a slightly increasingly litigious world”.

I will go through the clauses and will read each clause, as that will make it easier to understand. Clause 1 as amended would read:

“The publication of a statement in a scientific or academic journal or on a website edited and controlled by a chartered professional or learned body (a ‘recognised website’) is privileged if the following conditions are met”.

In a sense, some of the work has been done for this Parliament by the Privy Council procedure of providing chartering to professional bodies. Some of these professional bodies, of course, may be in considerable conflict with other professional bodies. The chiropractors, for example, are now a chartered body, and not all other scientific bodies are entirely in agreement with what they do. Nevertheless, this could still be within that framework.

The first condition, as we read this,

“is that the statement relates to a scientific or academic matter”.

“Scientific”, as I commented, includes engineering, technological and medical matters. If my amendments were accepted, subsection (3) would read:

“The second condition is that before the statement was published in the journal or on the recognised website an independent review of the statement’s scientific or academic merit was carried out by … the editor of the journal or recognised website, and … one or more persons with expertise in the scientific or academic matter concerned”.

If my amendments were accepted, subsection (4) would read:

“Where the publication of a statement in a scientific or academic journal or on the recognised website is privileged by virtue of subsection (1), the publication in the same journal or recognised website … is also privileged if”—

and then there are three conditions, the third of which is added by my amendment—

“the assessment was written by one or more of the persons who carried out the independent review of the statement; and … the assessment was written in the course of that review”—

and—

“the assessment was written by one or more persons with expertise in the scientific or academic matter concerned and was approved by the editor of the journal or recognised website”.

As I understand it from these institutions, this is all quite a rigorous process. Subsections (5) to (8) are also modified in that way.

This amendment is in the spirit of the clause, but it would extend it and would certainly be very much welcomed by these institutions.

[Lord May of Oxford]

I agree with all of this. It is very good and I want to do something, if I am allowed, that is probably improper. There are two issues in Clause 6 that I would like to have clarified, but I did not see the need to put down an amendment merely to raise the issue. Clause 6(6) says:

“A publication is not privileged by virtue of this section if it is shown to be made with malice”.

Am I correct that the word “malice” has a fairly explicit legal meaning? Anybody familiar with the academic world will know—

[Noble Lords]

Oh!

[Lord May of Oxford]

I can give the Committee many examples. One that does not reflect directly on me was during the GM controversy, when there was an experiment by Pusztai that claimed to show that GM foods killed rats. The Royal Society did a review of it that said that these experiments were so flawed,

“in many aspects of design, execution and analysis”,

that no conclusion could possibly be drawn. I have a sneaking sympathy for poor Mr Pusztai. He was a sad but well intentioned little man who did silly things. I am sure that he felt that that quote was malicious. I would like to be reassured that there is a legal sense to “malice” that means “consciously unkind”, as it were. If these amendments had been in place, Nature would have saved £1.5 million fighting a simple case.

When Clause 6 says,

“relates to a scientific or academic matter”,

I take it that that means that, by definition, everything in the journals is of a scientific or academic matter. Often they will be opinionated editorials about issues of interest to the academic community. I thought that I would raise those issues rather than trying to grab someone afterwards.

[Lord Mawhinney]

My Lords, I support the amendments of the noble Lord, Lord Hunt of Chesterton. Were I surrounded by the Joint Committee, it would be in agreement with my wanting to do so. I say to the noble Lord and, indeed, to my noble friend that the definition of “recognised” may need to be examined a little further and tightened just a little more, not least bearing in mind the point that the noble Lord, Lord May, has just made, but that is relatively straightforward. The principle seems to be a good one, in line with what we in the committee produced, and I commend the noble Lord.

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[Lord Bew]

My Lords, I thank the noble Lord, Lord Hunt of Chesterton, for putting forward this amendment, and I am very sympathetic to his efforts. However, the noble Lord, Lord Browne of Ladyton, has asked one question and I will ask two questions in the same vein. This is just for reassurance, because I think that we understand that there could be great benefit from this amendment, and a powerful case has been made.

First, the noble Lord knows this world and the world of academic journals. Is he sure that the person editing a website for a chartered professional association is necessarily of the same calibre as the person editing a peer-reviewed academic journal? The second question is related, and perhaps more profound: is he sure that there is the same requirement for qualified privilege as there is in certain areas for academic journals, where there clearly is a severe chilling effect? The questions are in the same vein as those posed by the noble Lord, Lord Browne, but are in the vein of a very sympathetic interest in the proposal that the noble Lord has put to us. He is quite right to say that he is speaking entirely in the spirit of Clause 6. I would like to have a little more reflection on the detail.

[Lord May of Oxford]

It is perhaps a little more complicated than some people think. I am not sure that people understand that some journals are purely electronic. Some of the major journals—PLOS ONE, for example—are online, while most of the conventional, older journals offer an option to publish additional material electronically. More than half the journals are run by the same learned societies that the noble Lord, Lord Hunt, is talking about, so it is not a juxtaposition of things that you can physically hold up and others. It is a seamless continuum, and the spirit of this definitely needs some refining to make central what has been said so clearly: that the issue is peer review.

[Lord Mawhinney]

My Lords, I will chip in again. When I responded to the amendment from the noble Lord, Lord Hunt of Chesterton, I said that it was subject to further work being done on the definition of recognition. I know that the noble Lord, Lord Browne, said that he was talking about something different, but I think that he and I are basically saying the same thing. In light of this further conversation, I say to the noble Lord, Lord Hunt, that if his amendment is saying that the existing people become the judge and jury for their own individual production, then I am not sure that that is in keeping with the spirit of what the Joint Committee said.

A redefinition, or indeed a definition, of “recognised” has to have some element of other people endorsing the view of those who want to produce. I encapsulated that in referring to a clearer definition of “recognition”. The noble Lord, Lord Browne, and I are probably saying much the same thing, and I hope that those who spoke to the noble Lord, Lord Hunt, recognise that being in a learned society is not in itself sufficient. There has got to be further definition of the word “recognition”. However, subject to that, which does not seem to me to be an insurmountable problem, I still welcome the amendment.

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[Lord Hunt of Chesterton]

I thank noble Lords for their very constructive response. I want to emphasise the respective memberships of the institutions which wrote to me. The Institution of Civil Engineers has 80,000 members; the Institute of Physics has 45,000 members; the Institution of Chemical Engineers has 35,000 members; the Institution of Mechanical Engineers has 100,000 members; the Institution of Engineering and Technology has 150,000 members; the Royal College of Physicians has 30,000 members; and the Institution of Agricultural Engineers has not so many.

I have published papers in the scientific literature and for those institutions, and I can tell your Lordships that the standard of refereeing in most of our engineering institutions is extremely high. There are excellent scientific journals, but there are an awful lot of scientific journals with peer review in them that are pretty poor. That is why I was surprised that the clause as originally drafted set no quality level for the journals; no quality level has been supplied. It is not as if these are journals of institutions. The quality level that I want to introduce for the websites—“chartered”—is a great deal higher than is the case for the journals.

[Lord May of Oxford]

Some of the journals.

[Lord Hunt of Chesterton]

Some—I apologise to the noble Lord, Lord May.

This is an extremely rigorous process, so I do not recognise the notion of dilution suggested by the noble Lord, Lord McNally. This is not a free-for-all. If one civil engineer writes a letter to a journal about, let us say, a bridge, it is an extremely serious matter. This is now done regularly without many court cases, but it would be better if it were in the legal framework. We would be building on an established tradition.

However, time has been running on. I am appreciative of the Minister’s constructive response. I should like to talk to the drafters, and I hope that this matter will come back. I beg leave to withdraw the amendment.