Defamation Bill

Lord Morris of Aberavon Excerpts

Tuesday 15th January 2013 Grand Committee

[Viscount Colville of Culross]

Clause 5 is very welcome as it recognises the huge problems facing both complainants and defendants in libel cases with the introduction of the internet and its increasingly important position, as we have all discussed, in the arena for the dissemination of information. I want this amendment to build on the amendment put forward by the noble Lord, Lord Lester. I hope that Amendment 27, in the names of myself and the noble Lord, Lord Allan, will expand the discussion and set out the criteria for the definition of “unlawful”.

I am acutely aware of the ability of the internet to cause great damage to an individual’s reputation, as we have seen with the dreadful case of libel committed against Lord McAlpine, who has sued against many people who defamed him on Twitter. It is easy to focus on the high profile and serious cases such as that of Lord McAlpine and not on the many thousands of other libel complaints about online material where the distinctions between fact and opinion are more difficult to ascertain. We do not hear about these cases because, when in doubt, the website operators’ practice has been, in far too many cases, simply to remove the materials.

Smaller websites, such as Mumsnet and news and business blogs supported by WebPress, both of which support this amendment—indeed, they are not Goliaths, as the noble Lord, Lord Mawhinney, suggested—do not have the knowledge and capability to give their complaints proper scrutiny; nor do they have the legal resources to fight libel action and risk liability. The safest thing for them and many other internet intermediaries is just to take down the postings, which I believe would be damaging to free speech. It is therefore very important that Clause 5 strikes the correct balance between the right to protect the reputation of the individual and the freedom of expression on the internet. I want the notice of complaint procedure to be a cheap and easy means of striking this balance.

In Committee on the Defamation Bill in the other place, the Government rejected an amendment rather along the lines that I am putting forward today on the basis that it would be too onerous on claimants to have to consider the potential defences to defamation. The Joint Committee on Human Rights acknowledges this argument but considers the risk of website operators simply removing the material, rather than engaging in a proper analysis on the merits, as being too great.

The Government are correct to worry about whether claimants can be expected to understand the subtleties of libel defences, honest opinion and qualified privilege, and should not be forced to take legal advice in order to put forward the initial notice of complaint. However, complainants should at least be able to address the factual matters relevant to the complaint, including stating why any comments are unsupportable and why the claimant is likely to suffer serious harm. I want all the conditions to reach the threshold for the notice of complaint to be on the face of the Bill. Surely, if claimants are required first to check the Bill and then the regulations to find out what to put in the notice of complaint, as Clause 5(6)(d) suggests, it will only complicate matters.

I hope that the sub-paragraphs in my amendment will allow claimants to state basic factual information within their knowledge in relation to their complaint without having the need for lawyers. Paragraph (e)(i) under Amendment 27 asks the complainant why the allegations against them are defamatory. This already exists under Clause 5. Factor (ii) asks the complainant to state why the statement complained about is “inaccurate or untrue”. This addresses the possible defence of truth.

Factor (iii) asks the complainant to state why “any opinion” in the words complained of is “unsupportable”. It also might play in favour of the complainant because it asks them to provide any evidence to show that the comments in the posting are unsupportable. That would enable website operators to have some regard to the available defences of truth and honest opinion. This simply requires that the complainant provides factual evidence and so not have to get into a legal debate about whether the words complained of are statements of fact or comment.

Factor (iv) seems to be in line with the spirit of the Bill outlined in Clause 1, which ensures claimants should show that “serious harm” has been done to their reputation. It also fits with the interim guidelines put forward by the DPP on 19 December, which suggest that prosecutors should proceed against authors on social media only if the communication is more than offensive, shocking, disturbing, or satirical, or is more than the expression of unpopular or unfashionable opinion about serious or trivial matters, or banter or humour, even if distasteful to some or painful to those subjected to it.

The noble Baroness, Lady Hayter, suggested that Amendment 4 was a better way of dealing with this issue of seriousness. My concern is that that amendment is about commercial bodies, and not all comments on a site such as Mumsnet will be against commercial bodies; they might be against authors or experts in a field. It seems wise to have a seriousness threshold included in the notice of complaint.

In December last year I expressed my concerns to the Minister about the criteria for the notices of complaint. They are addressed in paragraphs 8 and 9 of the Ministry of Justice consultation sent out last week. I am grateful to the Minister for having included three of these factors from my amendment in subsection 9. However, I am concerned, as the noble Lord, Lord Lester, suggested, that the two paragraphs might add to the confusion over the difference between the words defamatory and unlawful. Paragraph 8 sets out what are called the core elements to be included in the notice of complaint, which are the same as those stated in Clause 5(6) of the Bill, which will raise them to a defamatory standard. Paragraph 9 goes on to state that the regulations have the option of looking at other factors, including the three that I have suggested, which would make them unlawful. Surely this would only compound the confusion between UK and EU standards, which I have already expressed.

I move on to factor (f) of my Amendment 27. I gather that there is a technical problem, and that it should in fact be in subsection (7), so it is perhaps more of a probing amendment. I will, in any case, put it forward for the Committee to consider. It will make provision for a procedure whereby a complainant, a website operator or an author who wants to dispute whether the contents of a notice of complaint under subsection 3(b) have met the requirements of subsection (6). This is meant to deal not with serious allegations of libel, which will have to end up in court, but with grey areas of more trivial cases.

After all, the notice of complaint will only contain the information provided by the complainant. The website operator or author could have reasons to question these contents; for instance, where there is a dispute about whether the original posting is defended by fair comment or is a statement of fact.

The Ministry of Justice, in its consultation paragraphs 23 and 24, explains what will happen if the author refuses to give full contact details to the operator. In that case, the website operator will be required to take the posting down, if it is to rely on this Clause 5 defence. This will leave them in much the same position as they are now—needing to remove large amounts of potentially non-defamatory material in order to avoid liability.

Paragraph 24 suggests—and the noble Lord, Lord Phillips, picked up on this—that if the complainant wishes to take further action, he will need to seek a Norwich Pharmacal Order for the website operator to release the identity and contact details that it has in relation to the author. My concern, and that expressed by the noble Lord, Lord Phillips, is that this order can cost at least £3,000 in legal fees and may not deliver the identity of the author in the end. The complainant could end up with an IP address through the broadband provider, but that will not guarantee that the identity can be uncovered. It might in fact be necessary to get another Norwich Pharmacal order to trace the IP address through a further website, which may turn out to be an internet café, the email of which may be [e-mail]. The complainant would then be out of pocket and still unable to contact the author.

Commercial sites such as TripAdvisor, as well as non-commercial websites such as Mumsnet, support this suggested procedure, as do commercial platforms like WordPress, which host small blogging sites, covering a wide range of subjects, some of which I hope your Lordships would regard as being in the public interest, such as news from Nigeria, advice on spare car parts and even which baby lotion to use. Many of these small websites and blogs cannot afford lawyers to defend a libel action, but would like to have a legal view on a disputed notice of complaint from a legal authority.

This procedure would also benefit the complainant, who would then be able to use the declaration by the master or a procedural judge, if it is in their favour, to deal with the problem of anonymous internet users repeatedly reposting the same material on other websites once the original website operator has decided to take it down. However, the noble Lord, Lord McNally, in his letter to me last month, and the noble Baroness, Lady Hayter, in her speech of 19 December, expressed concerns that the procedure would allow any author to hide behind anonymity by claiming that they were whistleblowers, while placing an extra burden on the complainant to fund the procedure. I want to emphasise that the procedure would be a means for dispute resolution about the contents of the notice of complaint, and one which could be initiated by the claimant, the author or the website operator. I hope that this goes some way to mitigating their concerns.

I am not a lawyer, I am just a journalist, but I am advised that the new procedure could simply latch on to the present master’s application procedure on the Queen’s Bench Division of the High Court. There could be a new section to the Queen’s Bench Division website with simple, procedural guidelines and copies of the standard form application and draft declaration for the claimant. The claimant could fill out the form, provide a copy of his notice of complaint and explain why it needs the Clause 5 criteria. That could be put before a master, who would decide whether to grant the declaration that the Clause 5 criteria have been met. Claimants would not need to lodge hard copy documents with the courts, as under the existing application procedure.

The master could ensure not just that the claimant had complied with the requirements of Clause 5 but that the claim met the basic requirements of a libel claim: that the words are defamatory, likely to cause serious harm and have no obvious defence. I ask noble Lords to consider my amendment favourably.

[Lord Morris of Aberavon]

My Lords, I make a brief intervention. I listened very carefully to what the noble Lord, Lord Lester, said, in moving his amendment, but I need a little further assistance. I am not quite clear about his purpose. I do not think that he specified—I was listening as best I can—the distinction that he makes between a statement which is defamatory and a statement which, additionally, might be unlawful. The danger I see, if they have the same meaning, is that the courts will look at the provisions very carefully and regard them as otiose. What purpose is intended? Does it create an additional burden on the complainant? When he makes his representations under the clause, will the complainant have to define in what way the statement is unlawful? Perhaps we could have assistance on that score.

[Lord Marks of Henley-on-Thames]

My Lords, I shall speak in broad support of the sentiment behind Amendment 27 in the names of the noble Viscount, Lord Colville of Culross, and my noble friend Lord Allan, but first I address Amendment 26, which I support as a bare minimum. I also address the point put by the noble and learned Lord, Lord Morris, to my noble friend Lord Lester. I think that my noble friend understated the position on what is defamatory and what defamatory means. As I have always understood it, a statement is defamatory if it causes the necessary damage to reputation. It may then be that under existing law, a defence of justification can be mounted which shows that the defamatory statement is justified as true. That does not stop the statement being defamatory, but it stops the statement being unlawful. In other words, it starts off as defamatory—I see learned agreement on the other side of the Room—and then one looks at the question of defences.

It follows that without the word “unlawful” in paragraph (b), the requirement that the complaint,

“sets out the statement concerned and explains why it is defamatory of the complainant”,

goes only half way and is nowhere near enough. I echo the sentiments expressed by my noble friend Lord Mawhinney about the view of the Joint Committee on the Bill and the topic: the purpose of whatever procedure we adopt is to give some protection, as far as is practicable, to persons defamed on the internet and, on the other side, to impose some responsibility on website operators, without ensuring that an operator is stuck with liability for all the material posted on his site.

I strongly supported, and indeed took some part in formulating, the notice and takedown procedure for material from unidentified authors proposed in our report, with the possibility of an operator securing a leave-up order for material that, although it was from an unidentified author, nevertheless the operator believed ought to stay up—for instance, in the case of whistleblowers. The Government have opted for a different procedure, and it is right that that procedure draws the correct distinction that we drew between the posts of identifiable authors, who can then be identified and sued, and anonymous material. Whatever system we have, though, it is important that there should be some quick and cheap option that levels the playing field between complainant and author or operator. The detailed notice of complaint as envisaged by Amendment 27, as the noble Viscount, Lord Colville, has explained, is a satisfactory first step.

I appreciate that it can be said that, subject to the point made by the noble Lord, Lord Lester, the word “unlawful” is required, but regulations could be made within the ambit of “defamatory and unlawful” that would expand upon the requirements for a detailed notice of complaint. However, I suggest that it is better that, rather than being left to regulation, the broad contents of the notice of complaint should be spelt out in statute. I say that because one of the purposes of the Bill, as we saw it in the Joint Committee, was to make the law as accessible as possible so that anyone could look up what procedures would be required by looking at the Act. By effectively leaving the requirements for a notice of complaint to delegated legislation, the simplicity of accessing the statute and accessing law on the internet is reduced.

It would then be necessary to add to the requirements for a detailed notice of complaint, something like Amendments 25A and 25B proposed by the noble Lord, Lord Browne of Ladyton, and the noble Baroness, Lady Hayter, in the previous group. I, too, was pleased to see the Minister’s response to those amendments show at least some flexibility or promise thereof. We would then have the beginnings of a system to ensure that, where defamatory material was posted by an operator, the detailed process of complaint would get some publicity because the notice of complaint would be put on the website by the operator. That would offer some partial protection to the person defamed. I applaud the suggestion that if the operator then fails to put up such a notice of complaint, which he can do, he must take his chances and accept that he is made liable to be sued by the deprivation of the Clause 5 defence.

I reiterate what has been said: neither the proposed system nor any system that we could possibly devise would be perfect, for the simple reason that my noble friend Lord Lester mentioned earlier today—namely, that we are trying to formulate a local response to an international phenomenon. However, I suggest in answer to some of the defeatism—the Minister was defeated up to a point in his earlier reply—there is no reason to give up on the problem because the system is not perfect and therefore do nothing. It is worth doing all that we can, I suggest, for two reasons. The first is that we can ensure fairness in respect of posts that are subject to our jurisdiction. The second, I suggest, is that by what we introduce in legislation, we can set an example of best practice for website operators elsewhere.

I would like to say a word or two about civil procedures that would be appropriate either under Amendment 27, under Clause 5 or under the regulations. I suggest that it is essential that any such procedures we adopt respond fully to the point made by my noble friend Lord Phillips of Sudbury that the procedures that involve going to court can be very expensive. The answer from the noble Viscount, Lord Colville, that this can be dealt with in the ordinary way before Masters is a partial answer only, because those of us who have attended before Masters, and have prepared interim applications before Masters and district judges in other cases, know that they themselves can be very expensive indeed.

What we envisaged on the Joint Committee was a quick and cheap paper-based or internet-based procedure, with specialist district judges simply looking at the case presented to them on paper and making a decision. Those specialist judges would give their decision, but it would of course be only a holding position, because action would be deferred. However, it is not right to introduce, by what we do now, a whole new level of expensive procedure in respect of internet actions, which, from the McAlpine case, we know can sometimes result in £5 awards or £5 settlements over a very large number of cases. Those cases need to be kept small, simple, quick and cheap.