Defamation Bill

Lord Sugar Excerpts

Tuesday 9th October 2012 Lords Chamber

[Lord Sugar]

My Lords, I have concerns that the changes being made to the defamation laws are too lenient, to the advantage of the printed media—the national press.

I have listened very carefully to the noble Viscount, Lord Colville, who rightly stated that we should not suppress freedom of speech and that responsible media owners are being attacked by frivolous and derisory claims. However, I am afraid to say that laws that are drafted and crafted with responsible members of the media such as the BBC in mind are abused by the biggest culprits that cause the problems in the marketplace. I speak as a past claimant who has taken the media to court on numerous occasions. I will not go into the details at the moment but being a details person I became deeply involved in the legal procedures and feel that I am somewhat of an expert, albeit I am not a lawyer, on the laws of defamation, of which I now have a good understanding, and, more to the point, on the tricks of the trade played by the media in interpreting and using the law for their benefit.

At this juncture it is useful to remind your Lordships that there is one thing, and one thing alone, that is of prime importance to the media, and that is money and how much their pockets will be affected. The days of the Elton John million-pound awards have long gone. Nowadays, judges advise juries on libel damages by making comparison with damages receivable for, say, a broken ankle, a broken leg or the loss of sight in one eye. I say that this is flawed. Those comparable damages are most probably the result of an accident whereas there is no accident involved in printing lies. We now see the top end of damages people receive for libel being in the region of £100,000 to £150,000. I understand the current proposal is that damages for personal injuries actions, and therefore libel damages, are to be increased by approximately 10%. I will explain why that is still inadequate.

Most people, particularly some minor celebrities or, more to the point, politicians, cannot afford to fund a fully fledged defamation case. Up until recently it has been possible for lawyers to take on those cases completely free of charge to the claimant. If they succeed, the lawyer is entitled to charge the claimant up to double his normal fee, and the claimant would then be able to claim this double fee from the defendant, together with the cost of procuring an insurance policy to cover the case in the event that the claimant lost.

I am advised this is all being discarded and will no longer be possible. Instead, from approximately 2013 we will have a situation whereby lawyers will be able to take on cases on a contingency basis. We have to look at the ramifications of this. Why would a lawyer, with all due respect to lawyers, take on a case on a contingency basis when the ultimate goal for the claimant may be in the region of £150,000? The lawyer’s share of that would not make up for the fact that the lawyer, when doing the case on a contingency basis, is risking not being paid at all if their client loses. And from the claimant’s perspective, any damages they receive would be eaten up by the contingency fee and the shortfall in cost between the actual costs and those costs that they are awarded from the defendant. I believe that this is a non-starter. We will have arrived back at a situation whereby only the rich, such as I, can afford to take on the media while others have to be beaten up and can do nothing about it.

I ask your Lordships to consider another commercial aspect of the media printing untrue stories. If a newspaper decides deliberately to print a pack of lies on its front page to attract more readers at the point of sale, that is a much cheaper way of boosting a paper’s circulation than engaging in an expensive television advertising campaign. Why is it much cheaper? Because the media can immediately agree in communication that what they wrote was wrong and addend it with, say, a Part 36 offer of £50,000, thus throwing the gauntlet down to the claimant as to whether they wish to risk going to court—a very cheap way of dealing with things with little or no apology required. Apologies in any case, as your Lordships know, are usually postage-stamp-sized and not on the same page as the offending article. In most cases they are buried towards the middle of the newspaper without so much as a picture of the offended claimant. This matter has to be addressed and the noble Lord, Lord Mawhinney, was quite right to raise it here. I think newspapers must be forced by the courts to print a retraction or apology on the same page as the offending item appeared and with the same prominence. This, together with higher damages, will make them wake up and act far more responsibly.

On the technical front, whereas in the past the claim of fair comment in an article had to be supported by facts within that article, I am advised that this has changed or that there is a proposal for changes to that effect to be embodied in the Bill, so that the facts supporting allegations made in an article do not have to appear in the article itself but just have to be facts that existed at the time the article was written. The writer does not even have to show that the readers of the article in question would have had to know those facts. As a possibly stupid but extreme example, a journalist might write an article saying that in his opinion a particular person was a thief and a thoroughly untrustworthy individual without referring to any facts to support that in the article. If challenged in court, he might say that the person he wrote about—say, a middle-aged man—once stole a Mars bar from a sweet shop when he was seven. The statement does not have to be a reasonable one or even one a reasonable man could have held; it just has to be that person’s honestly held opinion, however bigoted.

I am further advised that the defence of responsible journalism, also known as the Reynolds defence, is now being modified. These days when a journalist phones me up with an allegation of something or other, I say, “Sorry, old chap, but you are wrong and I am not prepared to comment. I do not see why I should become your editor for an article which you wish to produce”. Why should the onus be on the claimant to go into detail as to why an article should not be published or why the article is inaccurate, presenting all the facts to the journalist in order to be able to rely on that statement at a later stage, should the matter ever go to court? However, as I understand it, if I do not do that I am at risk of the journalist subsequently relying on the responsible-journalism defence by saying, “I did seek his comments but he didn’t tell me why what I was writing about him was wrong”. I do not think that that is fair. My method is very fair. I should be able to say, “I’m not your editor; I have told you that what you’re about to print is wrong, and it is at your risk that you go ahead and publish it. In the mean time, I will reserve my rights”. That is how it should be; after all, I did not ask him to write anything about me.

I conclude, however, on a more upbeat matter. It is not all doom and gloom. I applaud the fact that many cases may now be heard without a jury. I support that completely because in the past, I am afraid to say, claimants who are not used to being in a witness box have been badgered by smart lawyers and made to look either stupid or like liars. Another important aspect is that jurors often cannot follow the finer legal points being raised by both parties and can sometimes come to their verdicts based upon their opinions of the individual who is bringing the action—in other words, their personal thoughts on whether they like the claimant as a person or what they stand for in public life. That clearly is not fair and I welcome the fact that a judge who can see through the badgering of a witness will ultimately decide the verdict on the facts and the law. I ask the Minister to take into consideration the points that I have raised