Defamation Bill

Lord Phillips of Sudbury Excerpts

Tuesday 15th January 2013 Grand Committee

Under the system that we are proposing, the poster would be required to provide his name and contact details to the website operator. If he refused to do so, the posting would have to be taken down for the website operator to retain the Clause 5 defence. However, if the poster provided his contact details but indicated that he did not wish those details to be released to the complainant, the website operator would be required to inform the complainant of this. If the complainant then wished to take further action, he would be able to seek a court order for the website operator to release the name and contact details that it had in relation to the poster.

[Lord Phillips of Sudbury]

Does my noble friend have any comprehension of just what that last process would require from the complainant—the time that it would take and the costs that would be incurred in getting the court order to reveal the identity of the poster? In reality, that puts an absolutely impossible barrier against anything like a reasonable remedy for the complainant.

[Lord Ahmad of Wimbledon]

As I alluded to in my opening comments, this is about getting the balance right. If there were such a case, and I totally accept that there are issues that would arise here, there would be a cost element to this process. At the same time, there are many occasions when a balance must be struck on this, whether we are looking at professional websites or websites where people often post under a pseudonym and may be posting for good reasons of safety and security to protect themselves. That being said, though, I hear what my noble friend has said. I assure him again that we continue to consult with stakeholders across the board on the contents of such regulations and have sought their views on the practicality aspect of this new process. As I have said, this is something that we are looking at, and any suggestions that are made are looked at and discussed. I am sure that we will return to this, if not in Committee then on Report.

As I have said, we are looking at the issue of whistleblowing and the necessity at times to protect confidentiality, and setting that against the very arguments that have just been put forward by my noble friend. We feel that Clause 5 strikes the right balance. As my noble friend Lord Lester said earlier, there are two sides to the coin. The process set out in Clause 5 provides a quick and easy way for the claimant to obtain the necessary detail where the poster has no objection to providing it, but then places responsibility back on the claimant to secure a court order where the poster is unwilling to share the detail. This broadly reflects the position that applies in relation to anonymous material published offline. Where a claimant is unable to identify the author of a defamatory statement, and in the offline context does not wish to pursue the publisher, they can seek a court order for release of that information by whoever is in possession of it.

Amendment 26A would make a drafting amendment to Clause 5(4), replacing “was” with “is”. I can understand why this amendment has been brought forward, but I hope that I can reassure the noble Lords on this point. When the clause refers to posting, it is the act of posting with which we are concerned. No matter whether the posting stays up or comes down, that act has happened in the past, so it is our view that “was” is the most appropriate word. The amendment however raises important questions about what a website operator’s responsibility should be where a posting has already been removed. We are seeking views as to the content of proposed regulations and will take that issue away and consider it alongside the responses that we receive.

Finally, Amendment 29, in the name of my noble friend Lord Phillips, provides that a Clause 5 defence be defeated in cases where the claimant can prove malice by or on behalf of the website operator. The Clause 5 process requires the website operator to act in accordance with the process and entirely neutrally. It is difficult to foresee circumstances in which a website operator who complied with the Clause 5 process could do so maliciously. If it is the poster who is acting with malicious intent on behalf of the website operator, the claimant will still be able to bring proceedings against the person responsible for posting the statement. Therefore, we do not see what an amendment such as this would add to the clause.

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[Lord Lester of Herne Hill]

My Lords, that may be so, in which case I made a false point on that. However, my main point is that it is not enough—and the regulations seem to accept this, in draft—to simply say that it is defamatory. It must in some way indicate that it is unlawful. That is probably common ground in the way in which I read the draft regulations. If that is so, and that is what we are told in our reply, it may well be that my amendment will not be necessary.

In my attempt to be brief, I appear to be arousing too much interest. I give way to my noble friend.

[Lord Phillips of Sudbury]

I think I know what my noble friend means in the distinction between what is defamatory and what is unlawful. However, it would be helpful to be clear with the Committee what distinction he sees between “defamatory” on the one hand and “unlawful” on the other.

[Lord Lester of Herne Hill]

I am sure my noble friend Lord Phillips understands that I am speaking clothed in the majesty of the Joint Committee on Human Rights as well as my personal view. That committee and its advisers came to the view that simply saying “defamatory” was not good enough. All that “defamatory” means is that there is a false statement which is seriously harmful to the reputation of the claimant, whereas “unlawful” means that one also looks at what the Bill defines as unlawful and what the defences are. We are attempting to make that as clear as possible. Therefore, the complainant, in order to invoke this whole procedure, ought to do something more. It seems as through the draft regulations are aimed in that direction. I beg to move.

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The noble Viscount, Lord Colville, set out some interesting reasoning for having a process where, when there is a dispute, we can seek some form of alternative dispute resolution mechanism. When we think of the scale of complaints that we are potentially dealing with these days, we see that a proportion of them could be resolved through fairly painless and cheap legal processes, but where anything short of a legal process may be insufficient. It leaves people ill informed and unable to make what would otherwise be a fair and swift decision. Amendment 27 is intended to get us towards decisions that are swift and fair to all parties. Amendment 26 is also a very sensible way to address the issue quite properly raised by the noble Lord, Lord May; that is, that people will make fair comment which is potentially defamatory but is not unlawful. I do not think that any of us wants to interfere with that reasonable comment, particularly in the context of scientific debate and other arguments that people may conduct.

[Lord Phillips of Sudbury]

My Lords, I persist in seeing this Bill from the point of view of the little man. Others tend to see it more from the point of view of web operators—I refer not only to my noble friend who has just spoken. One has constantly to bear in mind the hardest case. Unless we get it right for the hardest case—that is, a person of few means but a reputation that he or she cherishes who is grotesquely, viciously, maliciously and intentionally libelled—and unless there is some protection in this measure against the web spreading it at rapid rate across the world, we will not have done our job properly.

I strongly support Amendment 26, although I wonder whether my noble friend thinks that the lay person would find the clause easier to understand if it said “unlawfully defamatory” rather than “defamatory and unlawful”. However, that is a small point.

On Amendment 27, I was most grateful to the noble Viscount, Lord Colville of Culross, for what he said about the cost problems of a Norwich Phamarcal application. It is a great tribute to his fair-mindedness that he made that point. I tried to make it when responding to the Minister, who dismissed my earlier amendments. We have had a case in my office just recently in which there were four separate applications to the High Court to get at the identity of the defamer. Each time, it has led on to another anonymous name, and another and another. I think that the client has now given up, but the costs are in excess of £12,000. We cannot allow that state of affairs to persist, but I must move on, as that relates to other amendments.

The only point that I will make on Amendment 27 is that I have a certain anxiety about paragraph (f), which says that the regulations,

“may make provision for a procedure whereby a complainant can obtain from the court a declaration that his notice of complaint under subsection (3)(b) has met the requirements of this subsection”.

That is couched in discretionary terms—the regulations “may”. If the Government take this up in the regulations, it must remain discretionary. To force every person to lodge a notice of complaint through a High Court procedure—albeit before a Master and albeit, as my noble friend Lord Marks suggests, a special procedure—would in my view simply be impractical for the vast majority of individuals. They will not get near it. It is terribly easy for us lawyers to forget how formidable and forbidding it can be—

[Viscount Colville of Culross]

I emphasise that this must be a voluntary process. I said that this was a probing suggestion for people to talk about. It should be voluntary and the ability to use the procedure should be open to all parties.

[Lord Phillips of Sudbury]

I simply wrap up my point by saying that I am anxious about having this paragraph in the amendment, because I think that it could give the wrong idea to those who have to interpret it in future. I would be wholly against a way of lodging a complaint that involved a formal legal process, even of a stripped-down kind, if I can call it that, because it would, I suggest, make remedy more or less impossible for the vast majority of people.

[The Earl of Erroll]

I shall make a couple of comments about Amendment 27, particularly after the remarks of the noble Lord, Lord Phillips of Sudbury. Given the expense of trying to track someone down on the internet and finding out who is who, it will be impossible to identify absolutely reliably everyone who logs on. Unless we put a chip inside everybody and log that, it will not work. There are too many ways of concealing who you are. The banks have enough trouble with their “know your client” procedures, so what kind of trouble will an internet service provider have? It is not realistic to be able to nail down identity over the internet at the moment in the way that some people think that you can.

The point about expensive resolution led me to think about what the noble Lord, Lord Allan of Hallam, said about alternative dispute resolution. The website operator needs somehow to know whether to take something down. If a claimant is not willing to reveal who they are, there may be a public interest reason for it to stay up and there may be support from other places for its staying there. Nominet is operating a successful service for alternative dispute resolution on domain name conflicts. Otelo—the Office of the Telecommunications Ombudsman—also works terribly well in resolving disputes in an inexpensive way. In fact, the industry in each case bears the costs and it is not expensive. I wonder whether it would be worth exploring that.

Amendment 27 is interesting because it could provide some of the information that would be the framework on which a judgment could be made. For instance, a website operator could apply and say, “We would like to know”, through the alternative dispute service. Personally, I think that going through the courts every time would be far too expensive for all the small organisations and ordinary people trying to defend themselves against something malicious that was online.

I was amused by the concept of whether or not regulations could be used maliciously. That is an interesting concept and it probably has wings, as well as legs. There is an old saying that regulations are for your enemies, and it is amazing how maliciously you can use them.

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Debate on whether Clause 5, as amended, should stand part of the Bill.

[Lord Phillips of Sudbury]

My Lords, the clause stand part debate notice is in my name and that of the noble Lord, Lord Browne of Ladyton, and the noble Baroness, Lady Hayter of Kentish Town. I consulted them when we last considered the clause—it seems aeons ago. The feeling between us was that, in view of the extended consideration of Clause 5—we have had two and three-quarter hours today and I think that we had an hour or two last time—it might be appropriate not to debate the Motion given that so many aspects to Clause 5 need further consideration.

Clause 5 is central to the Bill and, as my noble friend Lord McNally just said, the little man is liberated as well as in jeopardy. I am the first to accept that, but a great deal more thought needs to be given to it and I see no point at this juncture in debating whether the clause should stand part of the Bill, because it is at the heart of the Bill. I suggest that those of us who feel that we need to consult the Ministers and their team do so. I entirely concur with what the noble Lord, Lord Browne, said about the consultation, because the regulations will themselves be at the heart of the Bill, in a way that they rarely are. If some formal means could be found to enable the Committee to look at a preliminary draft of the regulations, that might be appropriate and helpful to all.

Clause 5, as amended, agreed.

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[Lord Lester of Herne Hill]

The Libel Reform Campaign is strongly opposed to this amendment but I shall not elaborate on what it says about it. I want to draw attention to one thing that may not have occurred to some Members of the Committee, which is how this debate will be regarded in Beijing. In Beijing, they have precisely this kind of amendment in their extraordinary firewall regulations because what they most want to do is identify political dissidents of one kind or another and then go after them for violating their internet regulations. This is exactly what they have and want to maintain, and if we give it any currency at all, they will use the fact that the United Kingdom has done so, even though our context is entirely different and we are not doing it to persecute dissidents and so on. I suggest that we should be very careful, in the lawmaking that we are indulging in now, to think about the transnational implications.

[Lord Phillips of Sudbury]

My Lords, I hear what my noble friend Lord Lester of Herne Hill has just said, and it is a very strong point. None the less, we have to legislate for our own circumstances. I come back to the point that we cannot leave the Bill in a state where individuals can be grotesquely, viciously and intentionally defamed, where huge platforms—website operators—can grow rich in allowing that to happen with total impunity and with no possible remedy for the individuals concerned. That cannot be right. I am reminded slightly of some of the arguments about the banking sector and the banks that are “too big to fail”. We cannot get into a mentality where website operators are too big to pay. We have never had a satisfactory answer for why website operators could not take out comprehensive insurance so that, if they were sued by individuals because of the defamations of those who post on their platforms, they could pay up in the normal way.

I have great sympathy for the way in which the noble Lord, Lord Mawhinney, put his case for Amendment 30, not least because we are all grappling with fiendish and unprecedented problems with no easy answer. Generally, I come down on the side of saying that nobody should have the right to defame others—in a way, incidentally, that will travel further and faster than any other system of publication in the history of the world—and be able to say, “Ooh, no, you can’t reveal my name; that’s a breach of my human rights”. There is another breach of human rights involved in defamation—indeed, it is worse because the defamer is doing it intentionally. I am, of course, taking the worst case. If you have to place in juxtaposition the vicious defamer on the one hand and on the other the possibility that that defamer’s particulars may have to be revealed by the website operator in the process of complying with our new legislation, I am afraid that I have to come down on the side of the person who has been defamed.

[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]

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.

[Baroness Hayter of Kentish Town]

This is an interesting one, particularly in respect of the use of the word “unattributed”, as opposed to “anonymous”. It seems to signify that you are looking at attribution, which may be to a group or something like that, and that it is about trying to find out who was responsible for this without necessarily naming them; I mean that it is about method, not necessarily the actual name. We are interested in the Government’s response to this, because it clearly highlights an ongoing view that what we do not want from the Bill—any more than we want what the noble Lord, Lord Lester, is afraid of—is to give a signal that the more anonymous the better.

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[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.

[Lord Phillips of Sudbury]

My Lords, I strongly support this group of amendments in the name of the noble Lord, Lord Hunt. I am sure that all the academics at the University of Essex, of which I am chancellor, would be cheering on their stools if they could hear this.

I just have one question for my noble friend Lord McNally, which may seem rather an odd one. This is all built around scientific or academic journals. That seems an odd pairing to me because I would have thought that most scientific journals were academic journals, although not vice versa. If there is to be a careful consideration of the terminology in the amendment tabled by the noble Lord, Lord Hunt, which I think is necessary and indeed essential, the Minister might consider whether or not “scientific or academic” is the happiest wording, as if one excluded the other.

[Lord McNally]

My Lords, the more that I hear about academia from the noble Lord, Lord May, and about the law from other Members, I am glad that I am in such a straightforward profession as politics.

This debate, again, has been extremely helpful. I worry, as I think a number of contributors have, that if the concept of “journals” includes those online, there is a question of how and where it stops. That is why we have tried to consult on this issue. It is interesting that when the legislation was first put forward by my noble friend Lord Lester, he did not make any provision for the protection of scientific journals, but particular concerns were expressed about the impact of the threat of libel proceedings on scientific and academic debate. We therefore believe that the addition to the general protections offered by the Bill of a specific defence of peer-reviewed material is appropriate. Other aspects of the Bill and work associated with it, such as the serious harm test and actions on cost protection, will also help to support free speech in these areas.

Let us be clear: right from the start, I wanted to provide protection for genuine academic and scientific debate. I have to say to my noble friend Lord Phillips that “academic and scientific” is a term that is generally understood—it does not mean the Beano. People know one when they see one. Within that, there is also the important context that we are looking for genuine peer review, which, again, is understood. I worry, as I think the noble Lord, Lord Bew, does—I will also be interested in the response from the noble Lord, Lord Hunt, to the specific questions—that we must not push the envelope too far on this, otherwise we will run into some of the problems that the noble Lord, Lord Browne, raised. We are right to be cautious.

As I say, the issue featured prominently in our discussions with the scientific community. We also held discussions with the editors of all the key journals to ensure that appropriate conditions were attached, so that the clause applied only where responsible peer-review process was used. We shared the relevant aspect of the clause with those editors to confirm that this was achieved.

Amendment 31 would extend the defence to peer-reviewed material on,

“a website edited and controlled by a chartered professional or learned body”.

We are concerned that this would make the defence too widely available. We believe that it is important to ensure that only bona fide publications with appropriate procedures are given the protection of the new defence. That is why we have focused the clause on scientific and academic journals, where there is a well established process for peer review. I can confirm that the existing clause would cover peer-reviewed material that was published by such a journal in an electronic form. However, a potentially wide range of bodies may fall within the categories proposed by the noble Lord, and we are concerned that this would extend the defence into areas where peer review is not a common practice. That may lead to the defence being available in instances where it is more likely that the peer-review process will not have been applied sufficiently robustly.

The other substantive amendment in this group, Amendment 35, would privilege any assessment of a peer-reviewed statement’s scientific or academic merit if it 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 website. This would appear to be aimed at extending the defence to statements such as replies to or commentaries on peer-reviewed material without the requirement that they themselves be peer-reviewed. Again, we consider that this would extend the scope of the defence too widely.

I was asked a couple of specific questions. The noble Lord, Lord May, was worried about the meaning of “malice”. We would expect courts to use the same test as applied in other forms of qualified privilege; that is, a defendant would forfeit the defence if they could be shown to have acted with ill will or improper motive. On the points made by my noble friends Lord Phillips and Lord Lucas about the term “scientific and academic journal”, we believe that the term is widely understood and that a definition of “journal” is unnecessary.

I think that I have covered the points raised; indeed, I think that some of the most pertinent questions were addressed to the noble Lord, Lord Hunt, who may take the opportunity to make a brief reply. However, as the noble Lords, Lord Browne and Lord Mawhinney, invited us to do, we will look at this matter. As I said in discussion with the noble Lord, Lord May, I genuinely want to get this legislation right for the scientific and academic community; indeed, it is one of the most important challenges for the legislation. I am certainly willing to examine whether we have got our definitions and our scope exactly right, and I welcome the debate that the noble Lord has provoked with his amendment. I ask him to withdraw it.