Defamation Bill

Lord Phillips of Sudbury Excerpts

Tuesday 9th October 2012 Lords Chamber

[Lord Phillips of Sudbury]

My Lords, to be the 13th speaker in this distinguished list is not the best of positions but I promise to try to avoid repeating what others have so eloquently said. I think I may be the only solicitor speaking in this Second Reading debate, which is perhaps surprising but it does give me a particular view of the issues in hand because for a number of years part of my practice was defamation work. Indeed, I am happy to report that I managed to sustain the reputation and the bank balances of four of my former leaders in the course of that time.

I absolutely take on board what a fiendishly difficult topic this is to deal with and how the great clash between the freedom of speech of the press on the one hand and the right of any man and woman to have his or her reputation reasonably sustained on the other is exceedingly difficult to resolve. I hope noble Lords will not mind my saying that many who have contributed their thoughts to this debate seem to me to have overstretched the first principle at the expense of the latter. For the life of me I cannot see how the freedom of the press can be exercised at the expense of the freedom of any man or woman to have his or her reputation maintained—if you like, at the expense of honest and responsible reporting and speech. Trying to bridge those two is, as we all know and are finding today, very difficult. But I, like others, support 90% of this Bill very strongly. I have a considerable number of detailed points but I will not burden the House with them tonight; I will raise them at the appropriate time in Committee.

I thank the many contributors, not just in this debate but the many outside organisations. There is a panel of libertarians called the Libel Reform Campaign which has done great and important work. The fact that I do not agree with all of its outcomes is neither here nor there. I also thank my noble friend Lord Lester, the Minister and the shadow Minister for the way in which they have dealt with this matter. It is a great credit to the House that we have in our ranks such an extraordinary array of extraordinary experience which will stand us in good stead as we go along. I declare an interest, as I have already said, as a solicitor. My firm, Bates, Wells & Braithwaite, still does a lot of libel law work, although I have not been in that field for 10 or 15 years. I will also say in the light of the remarks I am about to make that I was for 10 years a member of the Scott Trust and am wholly apprised of the difficulties the press face. I heard particularly what the noble Viscount, Lord Colville, said about the BBC and the way that it is inundated with futile but expensive claims.

There is a David and Goliath aspect in libel in my experience. I have mainly acted for individual claimants and theirs is an infinitely more frightening position than is that of the media outlet which they are suing or being sued by. Some of the contributors today have not really understood just how formidable it is to pursue a libel claim. I have to say from hard experience that the number of claims that I have seen dropped—good claims by good people against bad journalism—grieves my heart. One of the unresolved dilemmas for us all, which I do not think we have come near resolving because I do not know that there is a resolution for it, is the sheer cost factor. I happen to believe that the LASPO reforms were necessary to preserve the integrity of the process and the profession but I readily accept that this is the most expensive field in which to get engaged as a litigant on either side, and if we can come up with some thoughts on that I would be delighted. At the moment I do not see them, except the vital point made by a number of Peers in this debate about simplifying, speeding up and consensualising as far as possible the preliminary stages in libel claims. I believe that we can hope to achieve a much better resolution than we currently do under this extremely classic system which lumbers along at an extraordinarily steady amble at an amazingly high cost.

I want to say a few words before finishing on Clause 5 which deals with operators of websites. Quite a number of pressure groups and interest groups which contributed to all of us prior to this debate are anxious about the terms of Clause 5. Indeed, the website operators themselves are, not surprisingly, extremely miffed about some of its provisions. I happen to think that it is one of the most important provisions in the Bill because it gives the individual who has been defamed on a website a chance of getting some solace—some satisfaction. The clause requires the operator of a website to reveal to the claimant the identity of the person who posted the defamatory statement. That is an immensely important requirement. Without the internet operator being able to do that, he or she will lose the defence given them by Clause 5 against the claimant.

I have to tell noble Lords that I spoke last week with one of my colleagues in the office regarding the cost of getting from internet operators the particulars to enable the claimant who has been grotesquely libelled to get at the person who made the statement and obtain an apology, a retraction and, in certain circumstances, damages. The difficulties of doing that are almost impossible to exaggerate. It is not just a steeplechase; it is in some cases like climbing Everest. It takes years because, just as you obtain a court order that requires the internet service provider to reveal the particulars of the person who has made the defamatory comments, you find that the particulars given are not sufficient. You need a further court order and a further order. Spending £10,000 or £15,000 getting to the identity of the person is not uncommon. That is ludicrous and unfair.

I should like briefly to touch on two points in Clause 5, because it should be strengthened. First, Clause 5(2) states:

“It is a defence for the operator to show that it was not the operator who posted the statement”,

on the website. That is insufficiently sophisticated because it would be possible in some circumstances for the internet operator to be complicit with the person, who may be a foreign company, putting the libellous material on the web without being caught by subsection (3)(a). That needs to be changed.

The other thing that is plainly wrong, and to which my noble friend Lord Lester and the noble Lord, Lord Browne, referred, is that regulations under Clause 5, which are important and provide a lot of the pith and bone of this part of the Bill, are to be made by the negative annulment procedure. That is not adequate. I note, surprisingly and sadly, that our own Delegated Powers and Regulatory Reform Committee said that it thought that that procedure was all right because the clause is detailed, difficult and so on. The complexity and detail made it inappropriate for us to deal with under the positive procedure. That seems to me to be a good argument the other way. In any event, really important matters are left for regulations. For example, one of the elements of defence for the operator is that,

“the operator failed to respond to the notice of complaint in accordance with any provision contained in the regulations”.

Noble Lords can see there that what the regulations will allow is absolutely crucial to the nature and strength of the two parties who are arguing over whether or not the operator of the website is or is not liable for defamation.

Lastly, is it not odd that a local newspaper should be liable for libel in respect of a defamatory letter written to it, yet if someone posts an anonymous statement on a website that goes international, where the potential damage to an individual can be vast, that is said to be less important than your little local newspaper? There is a double standard at work. I understand that people like to keep the web free and open and so on, and no one stands up for free speech more than I, but we have to have a better balance than that. Given the grievous damage that can be done to an individual, which it is never entirely possible to erase, even if you obtain apologies and the rest, we have not only to stand by Clause 5 but to make it stronger.