Defamation Bill

Lord McCrea of Magherafelt and Cookstown Excerpts

Tuesday 12th June 2012 Commons Chamber

[Ian Paisley (North Antrim) (DUP)]

I must say at the outset that I agree with the Secretary of State’s point that introducing law fit for the 21st century in this subject area is not straightforward. I think we would all say a hearty “Hear, hear” to that. It is not straightforward and it is right that this House should start to tackle it. I also believe that we should ensure that our defamation laws are not subject to abuse by those who bring forward trivial matters to block proper freedom of speech and freedom of expression on very important issues.

Like some Members, however, I am concerned by clause 1, which introduces the serious harm test. We should recognise that no matter how we cut this, a serious harm test will raise the bar for bringing a claim so that any case involving serious harm to the reputation of an individual can be brought only once serious harm is clearly established. That raises the bar for many people.

I asked an eminent lawyer in Belfast about that particular issue. Paul Tweed is the author of a seminal book called “Privacy and Libel Law” and practises in three jurisdictions. I asked him about that specific point and his answer was quite chilling. He said that

“anything short of being called an axe-murderer probably falls short of the requirement”.

We should therefore seriously consider the serious harm test, because it will have significant consequences not for people of reputation but for ordinary people who will have to consider very carefully whether to invoke the law to protect themselves.

Mark Twain wryly observed:

“There are laws to protect the freedom of the press’s speech, but none that are worth anything to protect the people from the press.”

We should enact laws that actually protect people, but the press has become so powerful across the United Kingdom that ordinary people feel that they have no protection when they are smeared or slimed by the media, which has all too often been the case. We regularly see the withdrawal of a statement or a front-page story resulting not in a front-page apology but in a postage stamp of an apology beside the advertisements. Many ordinary folk feel that that is grossly unfair.

This law could have the effect of creating even greater freedom for the press. The general public find it more difficult to secure access to justice at present and I am concerned that we should ensure that access to justice is liberated and that people feel that they can use the courts to protect them when they are under attack.

Let me quote again from the letter I received from Paul Tweed, the solicitor in Belfast. He said:

“As a media lawyer of more than thirty years standing, and practising in three jurisdictions from offices in London, Belfast and Dublin, I can testify that it is now becoming almost impossible for a Claimant without substantial financial means to contemplate a libel action. Even before the introduction of any new legislation, the financial odds are stacked heavily against the ordinary man”

and they will not go to court.

Before changing our defamation laws, the Government should consider other matters. They should, for example, consider our privacy laws and try to clarify, consolidate and codify them. The press has the modus operandi that they can publish and be damned, knowing that many individuals are too intimidated to take, or financially deterred from taking, legal action, leaving their reputation sullied and scarred by the further accusation, “Sure, if it’s not true, sue them.” If people cannot afford to take legal action or are too intimidated by the prospect of going to court, the scar is all the deeper.

Not only should we codify our privacy laws, but we should have statutory regulation of the press. That should be considered in tandem with these changes to defamation law. This should be done completely, not piecemeal, as was suggested. The Press Complaints Commission has been a complete failure for individuals, whether people have an inflated reputation or otherwise. Ofcom has demonstrated that it can regulate slightly better than the PCC. The broadcast media generally are more responsible, as a result of the robust stance of Ofcom, not of the media.

Internet service providers operate in jurisdictions where they are immune from prosecution, so many ISPs are moving their activities to the United States of America, where they can publish whatever the heck they want and get away with it in the full knowledge that they will not be sued and that they cannot be touched. That breaches our law and undermines the rule of law in this country. We need some sort of cross-jurisdictional approach that allows us to approach our American neighbours and create a pact that prevents such abuse of our laws.

[Dr William McCrea (South Antrim) (DUP)]

When my hon. Friend speaks about the scar that people can endure through defamation, does he realise that that scar can be so deep for some people that they are driven to suicide?