Defamation Bill

Lord Phillips of Sudbury Excerpts

Tuesday 5th February 2013 Lords Chamber

[Lord Phillips of Sudbury]

My noble friend said that he could see the point of this and understood the need for some sort of constraint. What would he do, if this is not the right way? What would be the right way of achieving the general purpose?

[Lord Allan of Hallam]

The right way is to keep Clause 5 as it is currently drafted. The Government have done a good job in drafting the scope of this defence as an additional measure to those currently available under the e-commerce directive. It makes sense to have this additional defence. My concern is that Amendment 11 would be an additional burden and further restrict the defence only to websites that have the ability to post a notice in this way. I imagine that a significant number of websites which could avail themselves of the defence in Clause 5 would not be able to do so if there were a requirement to post a notice. I can also imagine instances when such a requirement would be abused. It makes sense to leave it to the website operator, once they have received a complaint, to deal with it under Clause 5 as it is. I also think that it would be sufficient to encourage website operators to post notices when things are contested and they believe that a notice would fit with their environment and be helpful. There are instances when you need to mandate something and instances when you want to encourage it as a model of good practice. In the context of notices, the mandated option is wrong and the good practice option is correct.

[Lord Lester of Herne Hill]

Having spent about three and a half years attempting to reform the law of defamation, and in the light of what happened on the first amendment today, my overriding objective is to get the Bill through. I want to make it clear that I shall not be moving any of the amendments in my name this evening. I say that now in case anyone else, in their sad lives, wishes to do so. Having thought about it, I take the view that the regime as it stands, with regulations, will be perfectly capable of accommodating some of these issues properly and that we are now being overcareful and overprescriptive. I know that it is very unusual for a member of the Bar to indicate that he is under a decree of self-imposed silence, but that is my position.

[Lord Phillips of Sudbury]

My Lords, I listened carefully to what my noble friend Lord Allan of Hallam said. He will forgive me if I say that, coupled with what he said in Committee, there seems to be a leitmotif in his objections to amendments that really the industry is too big to control. That has echoes of the banks being too big to fail. The truth is that they are enormous organisations and with that enormity comes enormous power and the ability to inflict enormous damage on occasion.

I like the purport of Amendment 11. It seems right that, while the operator is considering what to do in the longer term, a notice of complaint should be there so that anybody reading the original defamation will see the complaint alongside it. I also understand some of the points made by my noble friend Lord Allan of Hallam. Perhaps in responding the Minister will tell us whether under Clause 5(5) it will be possible through regulations to introduce a regime for posting complaints and so on that would be practical in the variety of circumstances to which my noble friend Lord Allan of Hallam alluded. That would seem to be the obvious way to go: to take the time to work out a provision that works for all the different types of platform, and at the same time plays fair both by the operator and the complainant.

[Lord Ahmad of Wimbledon]

My Lords, again I thank all noble Lords who took part in the debate. I will turn first to government Amendment 17 in the name of my noble friend Lord McNally. I shall speak also to Amendment 11 in this group.

Amendment 17 provides for the defence under Clause 5 to be defeated if the claimant shows that the website operator has acted with malice in relation to the posting of the statement concerned. We tabled this amendment in response to the concern raised in Committee by my noble friend Lord Phillips of Sudbury that situations might arise in which a website operator acts maliciously, for example by inciting the poster to make the posting or otherwise colluding with him. While we consider that these situations are unlikely to be common, on reflection we agreed that in circumstances where a website operator acts maliciously it is right that the defence should be defeated. I thank my noble friend for bringing this issue to the fore.

Amendment 11 was also tabled in Committee. It would require a website operator who wished to rely on the Clause 5 defence to publish a notice of complaint alongside the material complained of within seven days of receipt of the complaint. The amendment also provides that if the website operator fails to post a notice within the set period, they will forfeit this defence and will be able to rely solely on the standard defences available to a primary publisher.

The basis for this amendment is a recommendation of the Joint Committee on the Bill that website operators should attach notices to online material when complaints are received. The Government’s position on this proposal was first set out in our response to the Joint Committee’s report. We repeated our position during the passage of the Bill in this House and the other place. The issue is one of practicality. Ministry of Justice officials received representations from internet organisations following publication of the Joint Committee’s report, highlighting the practical and technical difficulties with the proposal relating to the posting of a notice of complaint alongside defamatory material.

I will go through some obvious concerns that were raised, which may underline the practical issues. First, the point was raised that complained-about content might be embedded in a number of different sites, making it unclear who should be responsible for attaching the notice, where it should be placed and how it could be transferred across to other sites on which the material might subsequently appear. Again, as I said in Committee, I fully appreciate that the argument presents itself as one that it is in the interests of internet organisations.

In Committee we heard various arguments on both sides. My noble friend Lord Allan of Hallam highlighted practical issues from his own experience in the field. The noble Earl, Lord Erroll, talked about his daughter’s experience as a graphic designer for websites, and of the complexities of an operator attaching additional content without going back to the original programmer. I also acknowledge fully that my noble friend Lord Lucas expressed the view that it was far from impossible for website operators to attach such notices.

However, I will repeat on the Floor of the House what I said in Committee. The Government’s concerns around the practicality of this proposal have been clear from the publication of our response to the Joint Committee report almost a year ago. In that time nobody has presented to us any persuasive evidence to suggest that those concerns are not warranted.

On the issues raised by my noble friends Lord Allan and Lord Phillips about regulation, perhaps I may come back to them in writing to clarify the position. I have made a note of the suggestions that have been made.

I have listened, as ever, to all of the noble Baroness’s contributions and I am sure that she will say that our position has not changed since Committee stage, which I accept. However, we are where we are on this proposal. I repeat that no one has come to us to present a counterargument. Certainly if they have come forward, their arguments have not been of a persuasive nature. For those reasons, the Government cannot support Amendment 11 and I hope that the noble Baroness will see fit to withdraw it.

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[Lord McNally]

My Lords, Amendment 19 relates to an issue raised in Committee by my noble friend Lord Phillips of Sudbury. The Defamation Act 1996 gives a defence of qualified privilege to fair and accurate reports of proceedings at a general meeting of a UK public company, and to copies of and extracts from various documents circulated to members of such a company. Clause 7(7) extends this protection more widely to cover reports in relation to companies listed on recognised stock exchanges worldwide and to summaries of such material. This includes material,

“circulated to members of a listed company which relates to the appointment, resignation, retirement or dismissal of directors of the company”.

Amendment 19 would, in addition, extend qualified privilege to material relating to the appointment, resignation, retirement or dismissal of the company’s auditors. When my noble friend raised this issue in Grand Committee, it was suggested that the existing provisions of Clause 7(7) might already cover it. We considered that in circumstances where this information was contained in documents circulated to members of a company by or with the authority of the board of directors or by the auditors, it would be covered by paragraph 13(2) of Schedule 1 to the 1996 Act. However, circumstances where the information was published without the authority of the board of directors would not be covered so, on reflection, we consider it desirable to extend the provision to cover these additional situations. This would be in line with the more general government policy to increase the transparency of interactions between companies and their auditors. I am grateful to my noble friend for his suggestion in this respect and I beg to move this amendment.

[Lord Phillips of Sudbury]

My Lords, I am grateful for the amendment.

[Baroness Hayter of Kentish Town]

I cannot be briefer than that, my Lords. We also welcome the amendment. It is small and sensible, and it reflects the Government’s willingness to listen to the House. In case I do not have the time to say that on another occasion on this Bill, I would like to say that there has been a lot of listening. More should be expected of auditors and their records should be open to scrutiny, so anything which allows wider discussions of their shortcomings can only be a good thing.

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I apologise to those who have not heard this argument before, but there are precious few of them in your Lordships’ Chamber. They will have to go back to the Grand Committee for the detail, but I know that the noble Lord, Lord McNally, knows this argument well. It has been repeated a couple of times in debates in relation to this Bill, and I ask him on this occasion either to accept that we should restore the position that booksellers were in prior to the 1996 Act or, if not, to explain why not, or if they are in a better, or at least equal position, to explain how that works since it defeats the legal profession and all the advice I have received from those who understand the law. I beg to move.

[Lord Phillips of Sudbury]

My Lords, I rise to point out a bit of a car crash in Amendment 20 and Clause 10 in the light of Amendment 17, in which the Government, to the approbation of the House, introduced the issue of malice. If the operator of a website was actuated by malice, it will deprive him of his defence. That is no longer consistent with the provisions in Clause 10(1), because in effect it says that you cannot sue,

“unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher”.

So far this evening, the noble Lord, Lord Browne, has discussed Clause 10 and his Amendment 20 exclusively in terms of booksellers, but it applies equally to website operators. It will completely undo the introduction of the issue of malice into Clause 5 if Clause 10 allows an operator to avoid being sued for having allowed something to be posted with malice on the part of the operator if, in the language of Clause 10(1), it is reasonably practicable to sue the author, editor or publisher. I apologise for not having picked this up earlier, but we need to do something about it. It also infects Amendment 20, where the same issue prevails.

I have a second issue. I am sorry to have to object to this amendment, but in proposed paragraph (c) in Amendment 20, there is a “not” in the first line that should not be there. As worded, it would mean that a court would not have jurisdiction to hear a complaint unless, among other things, it was satisfied that the bookseller,

“did not know that the statement was defamatory”,

et cetera. The point surely must be that the bookseller did know that the statement was defamatory. I do not quite know what we do at this time of night on Report, but if I am correct, and I have a horrible feeling that I am, it undermines both the amendment and the present state of Clause 10.

[Lord Prescott]

My Lords, I agree with the amendments put forward by my noble friend Lord Browne. The noble Lord, Lord Phillips, has made a point about the confusion between the interpretation on the websites and in this amendment with regard to books. This is about whether the statement is known to be defamatory. I want to raise an unusual matter; I believe this House made a defamatory statement in the very committee that was set up to review the situation.

Noble Lords will know of the Joint Committee on Privacy and Injunctions. In pre-legislative scrutiny, it took evidence from a Mr Burby on super-injunctions. His first piece of evidence was entirely about super-injunctions, which anyone could give. His supplementary evidence was about himself. The courts had told him, after his acts of blackmail and harassment, that under the injunction he could not make any of these statements publicly. So he came along to the Joint Committee and gave the evidence at a meeting chaired by Mr Whittingdale. In his supplementary evidence, he repeated all the things that the court had told him he was under an injunction not to say anything about. He repeated evidence about the allegations and the whole case which the courts were considering.

The lawyers of the lady who was the subject of these charges objected to his evidence. I am most concerned that not only did he repeat them as evidence but that the Daily Telegraph, true to form, then printed them, arguing that they were covered by parliamentary privilege. Simply because he had given evidence to the Joint Committee, he claimed parliamentary privilege.

In the other place, normally if a case is under way it is considered by the Speaker to be sub judice and cannot be discussed, so there is no conflict between the court and Parliament. In this case, the lawyers of the lady concerned complained to the Joint Committee, which chose to go ahead and publish, again arguing parliamentary privilege. I was concerned about this and asked the Clerk of the Parliaments how this could happen. I asked him why it is not ruled that the committee publishing evidence on its website, citing all those things which the court has told the witness he cannot say, is able to say that the injunction does not matter because we are the ones who make the decision here. That evidence is still being published today. It is on a website now in the name of this House, and it repeats all the things that the court said could not be printed.

This raises a number of issues. When I approached David Beamish, the Clerk of the Parliaments, he said, “Oh, well, it is very difficult, but you can discuss it when the report comes to this House”. Well, the report did not come to this House. While the other place had a chance to discuss it, we did not, simply because the Easter holidays came along, or whatever it was. I was told I could discuss it when we came back. The House of Commons quickly moved on to Second Reading, so I was denied the opportunity of raising this important issue here as the Clerk of Parliaments had suggested.

Now we have the Bill here. Because I am in the Council of Europe, I am unable to take on the obligations to go to the committee all the time. I think the House will understand that, but that means that the matter must be raised here.

This raises some pretty fundamental issues. In the other place, it is certainly the convention that if you discuss an issue that is under an injunction, it is considered sub judice. The Speaker will intervene and say that you cannot discuss it, although that has been breached a few times; a Member of Parliament from Leeds made the point about the footballer and the super-injunction.

The issue here is a discussion by the Joint Committee about super-injunctions. The allegations that Mr Burby repeated were not subject to a super-injunction, although he alleged that they were. The courts have since made clear that there was no super-injunction. It was simply an injunction, which basically means that it was not relevant to the Joint Committee’s inquiry but the committee chose to ignore that. Mr Whittingdale in his statement says again that it was a super-injunction. I am afraid that the courts have made clear that it was not, so it really is not right for us to publish evidence that continues to be available on a website—I even have a copy of it today—making all these claims which the courts have said should not be repeated.

I say to the Minister that clearly somebody needs to sort this out. It is a difficult problem, and something that is increasingly breached. MPs decide to get a bit of publicity, because that it what it is about, and name somebody before the Speaker can stop them. I do not know what the position is in the House of Lords, but it is clearly an issue.

Finally, I would like to see that evidence, which is being published in our name, removed. That act of publication is breaching the injunction that has been laid down, and Parliament does it with a certain amount of contempt. I hope that the Minister might look into this matter and find out what the circumstances are. Perhaps he could let me know if he is satisfied or whether it is under review. I bring it to the attention of this House on this occasion, and I am sorry to burden your Lordships with it so late in the night.

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[Lord Browne of Ladyton]

My Lords, for the reasons that the Minister spelt out, I strongly welcome this amendment. I thank the Minister for listening so carefully to the argument put before him in Committee and responding in this way.

[Lord Phillips of Sudbury]

My Lords, I am just nitpicking again but we might as well get this right. I think the amendment should start by saying that in line 4 an “(a)” should be inserted after the word “order”. There is no “(a)” to balance the “(b)” introduced by Amendment 22. As I say, that is nitpicking but I am sure I am right. We better get it right for Third Reading.

[Lord Ahmad of Wimbledon]

Let me assure my noble friend that, whether it is an “(a)” or a “(b)”, I am sure the officials have taken note and will seek to correct that.