Defamation Bill

Lord Prescott Excerpts

Tuesday 5th February 2013 Lords Chamber

[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.

[Lord McNally]

Perhaps I may try to deal immediately with the intervention of the noble Lord, Lord Prescott. I am not quite clear which committee received this evidence.

[Lord Prescott]

It was the Joint Committee on Privacy and Injunctions chaired by Mr Whittingdale.

[Lord McNally]

The noble Lord will know that we recently set up a Joint Committee on Parliamentary Privilege. To a certain extent, I am flying blind but I certainly think that his point should be drawn to the attention of that committee. I am a member of the Privileges Committee of this House and I will draw his remarks to that committee’s attention as well. It is a very difficult area. As he said, we have had one or two examples of honourable Members and noble Lords pushing the envelope as regards parliamentary privilege, which is one of the reasons why the Joint Committee was set up. I believe that this is the first example of a member of the public abusing it in that way. The noble Lord’s remarks certainly should be looked at by both committees.

As regards the eagle eye of the noble Lord, Lord Phillips, and possible contradictions, perhaps I may consult the parliamentary draftsmen on whether he is right. We still have time before Third Reading to iron out any wrinkles that he or others have spotted.

On the central issue raised by the noble Lord, Lord Browne, I will try again to see whether he is any more satisfied. As he explained, the amendment is at least in part an attempt to codify the defence of innocent dissemination. We explained in Committee, and previously in the other place, the Government’s concern about a provision such as this, which requires the court, as part of an assessment on jurisdiction, to assess at least to some extent the merits of the case before it. We think that such an approach has the potential to be unnecessarily confusing.

However, I will focus my response on the substantive issue at hand here—the defence of innocent dissemination. We have acknowledged the debate that exists over the terms of Section 1 of the 1996 Act and how this compares to the common law defence. During the Committee stage the noble Lord, Lord Browne, asked me to be “more courageous” in articulating how the Government saw Section 1 and the common law interrelating. When this House was considering what became Section 1 of the 1996 Act in Committee, my noble and learned friend Lord Mackay of Clashfern, the Lord Chancellor at the time, indicated that the Act would “supersede” and “replace and modernise” the existing law. There was debate at the time as to quite what the test for innocent dissemination was and whether Section 1 properly captured it. The Government of the day took the view that it did but the debate continues.

Under Section 1, a secondary publisher is at risk of liability once it is put on notice that a statement is defamatory. It is argued that, at common law, the secondary publisher retains the innocent dissemination defence provided it honestly and reasonably believes that a defence is available in respect of that publication. Carter-Ruck on Libel and Privacy describes the Section 1 defence as generally being more generous to secondary publishers. On this issue, however, it suggests that while the position is not without doubt, the better view is that the Section 1 defence is more easily lost than innocent dissemination at common law. Gatley on Libel and Slander takes the view that it is “possible” that the statutory defence is narrower than the common law in this respect.

The Government’s view is that it is right to say that Section 1 has, in effect, superseded the common law defence of innocent dissemination. As I have tried to illustrate, the position at common law prior to the 1996 Act was not as clear as certain lobby groups would like to suggest. We could have explored the option of extending the Section 1 defence but, as with Clause 5, the Government have taken the view that the better approach is to remove the secondary publisher from the process.

We believe that the approach that we have adopted in Clause 10 will provide effective additional protection for secondary publishers such as booksellers. It is consistent with the approach that we have taken elsewhere in the Bill in that the focus is on directing the claimant towards those who are actually responsible for the defamatory material. In the unlikely event that it is not reasonably practicable to sue the author, editor or publisher, Clause 10 allows a claimant to bring an action against a secondary publisher such as a bookseller. However, nothing in the clause would then prevent that bookseller from deploying any defences that may be available to him. We believe that this is a proportionate approach that is fair to all those concerned.

I will say in addition that in my discussions and evidence regarding the point that the noble Lord, Lord Browne, made about the intimidation of booksellers, the sending of a letter on high-quality, posh paper represents a kind of bullying. I hope that this clause and what I have said will give booksellers the protection to resist that and that they can use the protections in the Bill against such intimidation. I have tried to be as candid and clear as I can to the noble Lord about our approach to this. Whether it is courageous enough, I do not know.