Lord Phillips of Sudbury
Main Page: Lord Phillips of Sudbury (Liberal Democrat - Life peer)Department Debates - View all Lord Phillips of Sudbury's debates with the Ministry of Justice
Defamation Bill
Lord Phillips of Sudbury Excerpts(11 years, 10 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Phillips of Sudbury
My Lords, Amendment 11 seeks to amend the second condition of the defence to libel of honest opinion. This requires that the statement complained of “indicated” in general or specific terms the background to the supposedly defamatory statement. The importance of that is very evident and I acknowledge that this clause is largely codificatory of existing law.
My concern is simple, as the amendment indicates. There needs to be a qualifying adjective before “indicated”. I do not believe that left on its own it necessarily carries any qualification as to adequacy or sufficiency of the indication given about the basis of the opinion that is supposedly defamatory. I am reinforced in my sense that we need the qualificatory adjective by reference to other parts of this short Bill. For example, Clause 4(3) refers to “accurate and impartial”. Clause 6 refers to “fair and accurate”. Indeed, there are multitudinous references to that phrase in Clause 7. On its own, “indicated” is a rather bleak word which needs the qualification of “adequately” to do justice to the parties.
Amendment 12 again is designed to provide a more satisfactory outcome in terms of this clause, “Honest opinion”. Clause 3(6) states that a person sued for a libellous statement does not lose his or her defence if that person was not “the author” of the libel but only a secondary publisher and that they published the original statement. My amendment would extend that protection to a situation where the publisher does not simply republish the original statement but publishes it,
“in a form which is substantially the same”.
Again, this qualification is necessary.
Clause 8 deals with the statute of limitations and how to assess when a publication shall run from in terms of the limitation. Clause 8(1)(b) refers to a publication that,
“subsequently publishes (whether or not to the public) that statement or a statement which is substantially the same”.
My amendment seeks to introduce the qualification of a statement which is “substantially the same”. As worded, under Clause 3, the defence would be lost unless it was a statement precisely the same as the original statement.
The Minister may tell the Committee that the Government believe that the provisions in Clause 8 under the single publication rule should be read into Clause 3. If that is what he says, I find it difficult to reach that construction given the way in which Clause 8 is worded, with no reference to Clause 3 and vice versa. I hope that whatever the noble Lord, Lord McNally, says on Report, we can make this clear on the face of the Bill. I beg to move.
Lord Lloyd of Berwick
Amendment 13, in my name, has been grouped with this amendment, but it raises a separate point. It is concerned with the defence of honest opinion or fair comment, as it used to be called. In 1975, the Faulks committee described fair comment as the bulwark of free speech and so, indeed, it is. A few years earlier, that great defender of free speech, Lord Denning, had made exactly the same point, adding that fair comment as a defence must not be whittled down by legal refinement.
My case will be that the defence of fair comment has been whittled down not, I hasten to add, by Clause 3 of the Bill, but by a decision of the House of Lords in 1992. The name of that case was Telnikoff v Matusevitch and I must declare an interest, since I gave the leading judgment in the Court of Appeal in that case, together with Lord Justice Glidewell and Lord Justice Woolf, as he then was. We were, unfortunately, reversed in the House of Lords, so I have a rather selfish interest in satisfying myself and, I hope, persuading the Committee that the Court of Appeal was right and the House of Lords was wrong.
The facts of the case were very simple and typical. The plaintiff wrote an article, published in the Daily Telegraph, criticising the BBC’s Russian service for recruiting its staff entirely “from Russian-speaking ethnic minorities”. The defendant, an emigré Russian Jew, took great exception to the article and, five days later, wrote a letter to the Daily Telegraph referring to the article by title and giving the date on which it had appeared. The letter contained the following sentence:
“Mr Telnikoff demands that [the BBC] should switch from professional testing to a blood test”.
As it stands, that statement looks, on the face of it, like a statement of fact: that that is what he had demanded. If so it was clearly defamatory, if untrue. However, if you look at the same sentence in its context, including the article to which the letter had referred, it looks very different. It was obvious, looking at the article, that the plaintiff had not demanded a blood test, so the words complained of were not a statement of fact at all but a comment. It was a strongly worded comment, but a comment none the less.
The crucial question on which the Court of Appeal and the House of Lords differed was whether you could look at the article as part of the context in which the letter was written. In the Court of Appeal we held, without much difficulty, that you could and should. Accordingly, we upheld the defence of fair comment in the interest of free speech and the action failed.
The case went to the House of Lords and there we were reversed. The only reason that their Lordships gave was that somebody might read the letter without having read the article. To such a reader, the letter would indeed appear defamatory, even though it would not appear defamatory to anyone who had read both the letter and the article. Therefore it followed that the writer of such a letter, if he was going to take a safe course, should set out the whole of the article, or the substance of the article, on which he proposed to comment—or, if he was even more determined to take a safe course, should consult a lawyer.
It seemed to me at the time that the decision was wrong. It did exactly what Lord Denning said one should not do: namely, whittle down the defence of fair comment by a legal refinement. Even so, I might not have been bold enough to table my amendment but for one other factor: the dissenting speech of Lord Ackner in the House of Lords. If ever there was a tour de force, this was it. I should like to quote the whole speech—I had the whole speech before me on Monday of this week—but perhaps I should confine myself to the two sentences that contain the answer. Lord Ackner said that,
“the defence of fair comment is not based on the proposition that every person who reads a criticism should be in a position to judge for himself. It would be absurd to suggest that a critic may not say what he thinks of a play performed only once, because the public cannot go and see it to judge for themselves”.
There could not be a stronger support for the amendment than the speech of Lord Ackner in the House of Lords in that case.
It is true that Lord Ackner was only one of five Law Lords—but five judges in all were in favour of the amendment, if one includes Mr Justice Drake, a great expert in this field, together with the three of us in the Court of Appeal. That makes five in favour of the amendment, with only four against. I hope that the noble Lord, Lord McNally, will find time during the Christmas vacation to read the judgment of Lord Ackner. He may well have time on his hands from now on. At Second Reading, the Minister went as far as to say that he thought that the view of Lord Ackner was probably right. I hope that he is still of that view and will maintain it when he has read Lord Ackner’s speech.
This brings me to the question that I asked at the end of my speech: is the wording of Clause 3(3) sufficiently clear and specific to enable the court to say—and in particular, to enable textbooks to say—that the decision of the House of Lords in Telnikoff v Matusevitch is no longer good law? The noble Lord said that his officials wished to consider the question and would write, but unfortunately they never did. If they had, I feel sure that we could have agreed. My view is that Clause 3(3) is not sufficiently precise. If Parliament is going to reverse an important decision of the House of Lords—and it was an important decision—in the field of defamation, as I hope we will, we must make it absolutely clear that that is what we are doing in the Bill. That is the only purpose of my amendment. The point would then be picked up by the textbooks—this is an important argument—so that we will not have to wait until a decision of the court, which would only add to the waste of time and money involved. We can do this now, and I hope that the noble Lord will agree to do so and accept the amendment. It will in no way detract from Clause 3(3), but it will cover a specific case, as we often do. I can think of literally no good reason why the Government should not accept the amendment now. I hope that the Opposition will take the same view.
Lord May of Oxford
I suspect that I am the only non-lawyer around the table but I wish to express my enthusiasm for the amendment.
Lord Phillips of Sudbury
My Lords, I should be interested whether the Minister who is to sum up can tell the Committee whether there has previously been a conspiracy of judges frustrated in the manner that we have seen today.
Lord Ahmad of Wimbledon
My Lords, I note with great interest that everyone referred to my noble friend Lord McNally, but it falls upon me at least to attempt to address some of the issues raised. I am mindful also of the fact that some holiday reading was put forward, and I now realise why my noble friend suggested that I deal with these amendments—I will be travelling to Australia and, rather erroneously, I asked him to suggest some reading for my long trip. Now I know what it will be.
I should like to respond to the various amendments in the group, Amendments 11, 11A, 12 and 13. Amendments 11 and 13 relate to Clause 3(3). The subsection reflects the test that has been approved by the Supreme Court in the case of Spiller v Joseph. This provision has been included to address the concern of the Joint Committee on the draft Bill that unless an indication of the subject matter on which the opinion is based is included it is difficult to assess the real nature of the criticism that has been made.
Including the word “adequately”, as proposed by Amendment 11 in the name of my noble friend Lord Phillips, would make no difference to how the provision would operate in practice. In order to succeed in establishing the defence, or indeed any other defence, the defendant will have to show that all the conditions attached to the defence are adequately met. If the way in which they are met is not adequate, it will be inadequate and by definition will fail. We therefore do not consider that this amendment is necessary at this time.
My noble friend also referred to Clause 8, which deals with a different situation, where the material is republished by the same publisher. Clause 3(6), however, deals with situations where the defendant is not the author of the statement—that is, where the newspaper editor publishes a comment piece written by someone else.
I move on to Amendment 13, in the name of the noble and learned Lord, Lord Lloyd of Berwick. It is true that this issue was flagged up at Second Reading. He referred to the specific assurance that he suggested was given, whereby a detailed letter was to be sent to him. If that has been overlooked, I am sure that the officials and my noble friend have noted that, and we will write to him quite specifically.
Lord Lloyd of Berwick
I am very grateful to the noble Lord, Lord Lester, for his support for this amendment, and indeed to other Members of the Committee, some of whom have spoken with particular knowledge of this aspect of the law. The noble Lord, Lord Lester, was concerned about the language of the amendment, and of course I accept that the wording could be improved. It may be that it is in fact too narrow in the sense that it refers only to newspapers and not to other places where articles might be published. It is the sort of thing that can be dealt with very easily if only one could have some sort of conversation on these matters with Ministers.
The noble Lord also said that it might be dealt with sufficiently with a statement under Pepper v Hart. There I think I would disagree with him. The point in Telnikoff v Matusevitch is so important in the law of defamation that it ought to be dealt with specifically so that it is on the face of the Bill, not just through a statement from the Minister. Nevertheless, I am grateful for his support.
As to the reply, of course I accept the apology offered by the noble Lord, Lord Ahmad. However, these things should not happen and it is not the first time it has happened, even to me. One is told that one is going to be written to, but then one is not, so it is important that when the Government say that they are going to write, they should in fact do so. There is simply no purpose in raising points at Second Reading unless they can be dealt with properly at the Committee stage. In this case, of course, that has not been possible.
There were two questions for the Government to consider. First, do they accept that the decision of the House of Lords was erroneous? They have not dealt with that at all. Secondly, if it was erroneous, is that point made sufficiently clear in Clause 3 as it stands? On that I very much echo the statement of the noble Earl on the other side of the table. My view is that it is not sufficiently clear and I can see no reason why it should not be made sufficiently clear. It does not cost the Government anything to accept an amendment of this kind. Although I necessarily will not press the amendment, I intend to raise the matter at the next stage.
Lord Phillips of Sudbury
My Lords, to be frank with my noble friend, I do not feel that his response to Amendments 11 and 12 really addressed the case I was making. However, I do not propose to say anything further today. I will reread what he said; I hope he will reread what I have said; and I hope that there may be discussions before Report, when I can perhaps convince him otherwise.
The Deputy Chairman of Committees
Page 2, line 34, leave out paragraph (b) and insert the new paragraph (b) as printed on the Marshalled List. As an amendment to that amendment, I call the noble Lord, Lord Phillips of Sudbury, to move Amendment 15.
Lord Phillips of Sudbury
My Lords, I was going to ask my noble friend a question. Is it too late to ask him?
Lord Phillips of Sudbury
In that case, it is very important, in the light of the amendment in my name, to know whether the words, “the defendant reasonably believed”, inserted by Amendment 14 to Clause 4(1)(b), are construed in an objective or a subjective way. If that is an unfair question then we will have to wait for a reply, but it is very important.
The Deputy Chairman of Committees
My Lords, to get us back on to the straight and narrow, an amendment to Amendment 14 has been proposed.
Amendment 15 (to Amendment 14)
(c) the defendant acted fairly as to the manner, balance and content of such a statement”
Lord Phillips of Sudbury
I have rather lost the plot. Can the Minister reply to my question before I move my amendment? I may not have to move it if he answers in a certain way.
Lord McNally
I would have to take advice on those matters. In a room full of lawyers, I am not going to make comments ex cathedra, ad hoc, on the hoof, or whatever description they might say. Why not ask your questions? By the time I come to reply I might even give you an answer.
Lord Phillips of Sudbury
My Lords, I am grateful to my noble friend and sympathise with his predicament. In the light of what he has said, and as we have an opportunity to discuss this at a further stage, I will not move Amendment 15 at this time.
Lord Lester of Herne Hill
I am sorry—I am always very bad on procedure.
Clause 4 is at the heart of the Bill. The Government have done an extremely good thing. Originally, like my Bill, and like the judgment in Reynolds of the noble and learned Lord, Lord Nicholls of Birkenhead, there was a checklist of factors. In practice, the checklist proved unworkable. It was a list of factors that could not be weighed one against another. As the noble Lord, Lord McNally, said, there was great opposition to it. The Joint Committee on Human Rights, on which I serve, expressed the conclusion in paragraph 15 that the checklist was inappropriate and that we needed instead a generic test. The Constitution Committee expressed the same conclusion in paper 86.
The inventor of Clause 3 was Heather Rogers QC. The inventor of Clause 4—as it is proposed that it should be amended—is neither me nor the Government but Sir Brian Neill. He is in hospital at the moment, otherwise he would be here, but he will be delighted to know what is happening today. It was he who asked why on earth judges would need a checklist of factors when one could produce a proper, objective test coupled with a reasonable belief. One can then leave it to judges to decide on a case by case basis whether there has been responsible publication. Whether there has been such publication requires the answer to two simple questions. At least, the questions are simply stated; they are not always simply answered.
The first is whether, objectively, the publication is about something of public interest. The second is whether there has been responsible publication—I do not say responsible journalism because this applies to everybody, not just the press—in that in newsgathering, editorial judgment and the rest of it there has been compliance with the professional standards appropriate to a newspaper or to other circumstances. That means that this is not a charter for irresponsible publication. For example, if a newspaper publishes something that is defamatory and untrue, it cannot be covered by Clause 2. If it is not just a matter of opinion, it cannot be covered by Clause 3. If it is not covered by statutory or common-law qualified privilege, it cannot be covered by that. It can be covered only by Clause 4—and it has to earn it because this is a privilege that is being given in the public interest. It is not a privilege because the newspaper or whatever should have a special right. It is a privilege because the public, through the eyes and ears on the media, are entitled to have information provided to them on matters of public interest.
This is a far better solution than the one I tried to persuade the Law Lords of when I did Reynolds, which was the New York Times v Sullivan approach in the United States. What came out of Reynolds was a compromise on the American position. The reason why the American position does not make much sense—with respect to the great court that decided New York Times v Sullivan—is that it focuses on the identity of the publisher and not the content of the publication. It asks: is the publisher a public figure? That is the wrong question. It does not matter whether the publisher is a public figure. What matters is whether it is in the public interest to publish what is in the publication. In the United States—I say this as someone who greatly admires the American legal system—not just, for example, a servant of the state but a basketball coach or a restaurant owner is defined as a public figure because they want to find a way to say rude things about restaurant owners. The beauty of Clause 4 is that we have now got rid of the checklists, we leave it to the courts which are well capable of considering matters on a case-by-case basis, and there is a generic formula. I pay great tribute to my noble friend Lord McNally, under whose leadership all this has become possible. We have had great arguments about this in the past few months and he has listened. What has been produced, thanks to Sir Brian Neill, does not need any further amendment. It is fine as it stands.
Lord Marks of Henley-on-Thames
My Lords, I found the question of whether we should or should not have a list of factors in Clause 4 a very difficult one. In the Joint Committee I was certainly of the view—a view I expressed at Second Reading—that a list of factors would be helpful, primarily because it would enable members of the public to look at the statute on the internet to see what kind of factors might or might not be important in determining whether a publisher would be held to have acted responsibly.
I remember the arguments around this issue in Joint Committee, and my noble friend Lord Mawhinney may like to think back to them. However, I have now been persuaded that the list of factors arising out of the Reynolds case has been treated as a checklist and used by claimants and defendants alike, and by their solicitors, to put their opponents to very costly proof at the pre-action stage in a way that has tended to be oppressive and increase costs. There is a serious risk that a codified list of factors as set out in the unamended Bill would have the same effect. I now accept that a statement of general principle is the right approach, but I have reached that conclusion with some difficulty.
It is important to note that the way the test is now expressed in government Amendment 14 combines an element of subjectivity with an element of objectivity. That is really the answer to the question put by my noble friend Lord Phillips of Sudbury to my noble friend Lord McNally when he decided not to move his amendment. I am bound to say that I thought that my noble friend Lord McNally did himself an injustice in declining to answer the question because he had in fact already answered it in his opening remarks on his own amendment. The element of subjectivity is that the court will have to look at what the defendant believed, and that is a subjective test. It will then have to look at whether that belief was reasonable, and that is an objective test. That combination will enable the court to develop the law on the basis that it is an issue of fact which will necessarily take into account all the circumstances of the case. My concern is allayed by that because it seems unlikely that the case-by-case development—the cottage industry development to which the noble and learned Lord, Lord Morris, referred—will not create too much difficulty. However, it is a danger, and I hope that it is one that the courts will be careful to consider.
Amendment 15, tabled by my noble friend Lord Phillips—
Lord Phillips of Sudbury
I entirely take what my noble friend has said and agree with it. However, would it not be advisable, if only to help the general public and the lawyers? Under Amendment 14, in the name of the noble Lord, Lord McNally, the double test—the subjective and objective tests—which he outlined, could be more clearly enunciated.
Lord Marks of Henley-on-Thames
I am bound to say that I am worried about the way in which the amendment in the name of my noble friend Lord Phillips makes that suggestion. I appreciate that he does not intend to move it. It seems to me that one can do no better than require the court to look at all the circumstances of the case. As a matter of drafting, I am not entirely sure that the amendment in the names of the noble Lord, Lord Browne, and the noble Baroness, Lady Hayter, is necessary. It seems to me implicit that,
“all the circumstances of the case”,
have to be taken into account. That phrase is usually used in statute to say that all the circumstances of the case “included but not limited to”, and then it goes on to a checklist. We are not having the checklist so I am not sure that that requirement is necessary to be expressed.
My worry about the way in which my noble friend Lord Phillips—
The Deputy Chairman of Committees
Before we go on, perhaps I should remind the Grand Committee that we are discussing an amendment to a government amendment in the name of the noble Lord, Lord Phillips of Sudbury. It was called and therefore it will need to be withdrawn. Since it is in the same group, it does not particularly matter for the purposes of the debate. But that is the position.
Lord Marks of Henley-on-Thames
I would rather that my noble friend Lord Phillips did not withdraw it. I was about to address it in terms that agree precisely with the interruption helpfully made by my noble friend Lord Lester but at a little more length. It seems to me that the amendment in the name of my noble friend Lord Phillips invites the judge to enter into a critique of the position of the defendant and, in using the words “manner, balance and content”, one is requiring the court to decide on whether the defendant should have written what he has written. That seems to me to be inimical to freedom of speech and to go very much against what this defence is trying to do. The importance of the defence is that it is a liberalising defence. It seems to me that that would narrow it in an unacceptable way.
Finally, I turn to Amendment 22, which, rather unfairly, I will comment on before the noble Lord, Lord May, has spoken to it. The question is whether the words used should be “editorial” judgment or “the publisher’s” judgment. It may be that one could argue for the use of both phrases but it seems to me that we need these concepts to go wider than simply editorial judgment. We live in a world where many of the statements to which this defence will be referable will never go anywhere near an editor: they will be published on the internet by individuals and will not bring editorial judgment to bear. It seems to me that the beauty of the amendment in the name of the noble Lord, Lord May, or something very like it, is that it allows for a publication with a much wider ambit than the government amendment. However, by and large, I support the government amendment wholeheartedly.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall)
Perhaps I could assist the Committee by suggesting that the noble Lord, Lord Phillips of Sudbury, has proposed an amendment as an amendment to Clause 14. Does he wish to move it?
Lord Phillips of Sudbury
I do not. The noble Lord, Lord McNally, has given as satisfactory a reply as is possible in the circumstances.
The Deputy Chairman of Committees
My Lords, perhaps I may suggest to the noble Lord, Lord Phillips, that if he is not going to move his amendment he should not speak to it.
Lord Phillips of Sudbury
My Lords, I shall speak to Amendments 24, 25 and 29 in my name. I agree with virtually every word that the noble Baroness, Lady Hayter of Kentish Town, has just delivered to the Committee. I should also say—and I think this will come as some relief to the Committee—that, in the spirit of Christmas, I do not propose to oppose the Question that Clause 5 stand part of the Bill. However, that is not to say that my discontent with the position of web operators is in any way lessened by what has been heard, because I believe that the one weakness of the status quo is just that—web operators have a degree of impunity that is not justified in the public interest.
I spent a few years as a libel solicitor—not exclusively so but I had a steady diet of libel work, always for individuals. I reiterate what I said at Second Reading: there is an unintended bias in the Bill and in much comment in favour of the media and journalists. I have as much commitment to the free press as anyone. For 10 years, I was a member of the Scott Trust, which owns the Observer and the Guardian. However, when I heard the noble Baroness, Lady Bakewell, talk about the millstones around the necks of journalists, I have to be frank and say that if you look at it from the point of view of the individual—particularly the individual who is not affluent—the millstones all seem to be on the other side.
The disparity of arms between claimant and defendant is nowhere more vivid than in relation to the web operators, many of which are huge multinational companies. They do not do this for fun—they are not like a village notice board. They do it for profits, and mighty big profits, and some of them do not even like paying taxes on those very big profits. They are the Goliath in the defamatory relationship, so to speak, and in my view their impunity is not justified in terms of freedom of speech. Freedom of speech has to be balanced by respect for truth and protection of the reputations of individual citizens. I know that this is common ground between us and I should say—because I do not think it has been fairly represented—that the Libel Reform Campaign itself makes that point. Freedom of speech has to be balanced by a countervailing duty of responsibility and truth, otherwise one has a tyranny. I cannot understand how we got into the position in Clause 5 of web operators having no responsibility whatever for defamation, however grotesque and damaging, so long as they do not originate the defamation on their website—that is in Clause 5(2)—and so long as, if and when they receive a notice of complaint, they act in accordance with the regulations still to be made under Clause 5. I am delighted that the Government have listened to what was said at Second Reading and have now prescribed a positive procedure for those vital regulations under Clause 5 (5).
However, one can imagine a rerun of something comparable to the recent BBC-McAlpine debacle, or imagine that the most sordid and graphic statements are posted on the web about a public figure, statements that would inevitably be taken up and repeated across the wide world of the internet, with or without embellishment. Under this clause, such defamatory statements—the damage of which will, in the nature of things, linger for ever and cause the acutest pain and damage to the reputation of the person concerned—do not touch the operators of the websites that first published the statements. Under Clause 5, the operator will not even have to moderate the libels until it receives a notice of complaint. Indeed, an operator with an axe to grind against the person who is defamed may even welcome or encourage the posting of the defamations. That is a situation to which my Amendment 25 refers. It would dislodge the defence under Clause 5(2) if there was any malice or bad faith at behind the defamations.
Consider this: if a person or company associated with the operator—whether by way of partnership, joint venture, interlinked companies or however—posts defamatory statements on a website, the operator, under Clause 5, still has impunity. That cannot be right. My Amendment 24 deals with that. I am the first to confess that if my amendment is acceptable to the Government, one will need on Report to refine what is meant by an associate. However, I thought that at this stage it would be satisfactory to leave the amendment as it is.
The phrase “chilling effect” has been much used in these debates, and that is fair enough. However, I again remind the Committee that the chilling effect is on both sides of the fence. If Goliath has a chill running down his spine, as was notably enunciated by the noble Viscount, Lord Colville, think of the individual who is facing up to this media behemoth. I have been in the position again and again of dealing with individuals who have been grotesquely libelled. I am not talking about the responsible media but, let us face it, parts of the media in this country will resist the most rightful claim, knowing that they can get away with it because the costs are simply way beyond their reach. They can delay and string out the case, and I have experienced that. This Clause 5 puts a web operator into a wholly unwarranted position of unreasonable strength against the public interest. I therefore hope that the amendments to moderate that impunity will be taken on board by the Government. From everything that I have heard so far, I do not believe that they will be content for this imbalance to remain.
Lord Phillips of Sudbury
Why should the expense and risk be on the side of the citizen?
Lord Lucas
Absolutely—the expense should be on the citizen who, having made the comment, is the target of the defamation action; but the website should not be forced to take down the comment just by the threat of a defamation action against the person who originated the comment. Otherwise, it becomes all too easy to wipe complaints off the public record. It is not that I wish the person complained against not to have any means of action but it should be against the person posting the comment and not against the website that is hosting the comment, until it has been proved to be defamation and a court order comes saying, “You must take this down”.
Lord Phillips of Sudbury
My noble friend is putting forward a situation which has no parallel, for example, in newspapers, or radio or television. It is no good the newspaper saying, “Well, this isn’t my letter, this is the letter of John Smith and therefore it is nothing to do with me”. Why should it be any different for the web operator?
Lord Lucas
We are dealing with the web operator as a conduit and not as a publisher. If I want to make a particular statement about a company that I feel has wronged me, I will do so using public media such as Facebook, Twitter or other sites on which I might post a comment. That is me making that statement. If I am identifiable, which I think is quite proper, then the action should be against me. Otherwise, it means that those who are behaving badly and wish to hide that bad behaviour can simply wipe all record of my complaint off all public websites without any risk or trouble to themselves. I would say that it is in the public interest that I make my views on this particular company known, but I am going to be deprived of all means of doing so in an electronic world because I will have no access to what becomes the medium of communication, because as soon as I say anything there the company that I have complained about can wipe it out. That seems to me an entirely unreasonable situation.
We have to recognise that we are dealing, as the noble Baroness, Lady Hayter, said, with a different world and a different way of doing things and that if we want news of bad practice to spread, we have to allow it to be published. Allowing it to be published means holding harmless those who are acting as a conduit. I am a publisher and recognise that if I publish something unpleasant about some school or person then I, as a publisher, take that on the chin. That is part of my remunerated business. However, the owners of Twitter are getting no benefit from the fact that I have tweeted something on it—there is no revenue with which to offset the cost of establishing that I have a right under law to say what I have said, so they will immediately take it down, if complained against, unless we provide them with some kind of “hold harmless” defence. So it is very important that the conduits, if they behave well, establish the identity and share it with the complainant, and can continue to publish until the point has been reached where it has been established in a court of law, or by agreement or otherwise, that what has been said is defamatory.
I agree with the noble Baroness, Lady Hayter, that it is very important that, where something has been said about a company or a person that is considered defamatory, a statement from the person who is being defamed should be published alongside the original statement. That is a relatively easy technical thing to do, and I do not think people should have to wait seven days. It should be relatively automatic. These days, one day—certainly one working day—is enough to do that. That should be an automatic right, because it is easy to do and balances things reasonably.
I am also interested in the question of moderation, which has been referred to. The status of moderation under this clause seems to be very uncertain. By moderating to any extent, do you become the publisher of what has been said? A lot of sites will just allow unrestricted publication, and that appears to be safe, but we and many other sites will moderate; that is, we will want to see what has been said before we decide that it can be published. If we moderate and then publish, have we assumed liability for what is said? Have we assumed a liability for checking it? If not, it becomes impossible to moderate and you are saying, “We wish the web to be entirely unmoderated and we think that the process of moderation is undesirable”. I am not sure that that is what the Government intend to say.
If you allow moderation, do you allow within that any kind of editing or advice? If someone posts a comment and it appears to be a statement of fact rather than opinion, are you allowed to say to that person, “You have not phrased this as a statement of opinion. If you resubmit it as a statement of opinion, we will publish it”. Is that taking responsibility for what as been said? I think of moderation as something we should encourage. It improves the quality of the web as a whole, although it is an expensive thing to do. We should be clear in this clause about the extent to which we are prepared to support and protect the process of moderation.
Lastly, I come back to what the noble Baroness, Lady Hayter, said about TripAdvisor. I think that it is barking up the wrong tree. I suggest that it employs what we have effectively used over many years and I will call the Good Schools Guide defence. If a school starts to complain about comments we have made, we merely post the fact that we are not prepared to allow comments on this school because we do not agree with the school’s policy on taking down comments. That is as good as anything. If TripAdvisor were to do that to a hotel, that would be worse than any comment that anyone could possibly publish. It would achieve the end result it wanted without pain.
Lord Phillips of Sudbury
To equate the world wide web with a pub discussion is bizarre. The thing about a pub discussion is that it goes no further than the pub and it is all within a context that people understand. The problem with the web is that the defamation can shoot around the world in 24 hours and remain out there for years.
Lord Allan of Hallam
I agree with the noble Lord. The new concept has been described. There is a lot of thinking and literature being developed around this. We are talking about private speech in a public space. Essentially, the speech is made in a private tone but the reality is that the speech is publicly accessible, because of the nature of the technology, to anyone in the world. That does not mean that we ignore it, with which I completely agree. In this clause, we are aiming to get towards a sensible way of dealing with that speech and recognising that it is different from the speech traditionally regulated through defamation law, which was speech through editorialised large organisations.