Defamation Bill

Lord Taverne Excerpts

Tuesday 5th February 2013 Lords Chamber

Moved by

[Lord Taverne]

6: Clause 4, page 2, line 37, leave out “reasonably” and insert “could reasonably have”

[Lord Taverne]

My Lords, I shall speak also to Amendment 7. I have taken no part in Committee. I should explain why I am moving this amendment today. I tabled my amendments at the request of Sense about Science, a charity which I founded just over 10 years ago, and from which I have recently retired. It has certainly played a prominent part in the proceedings on the reform of libel law, and I have followed its progress with keen interest. I first thank the Government for their helpful approach throughout, and say how much I appreciate the changes which they have made.

However, there are still some improvements to be made. I was encouraged to table Amendment 7 because it is based on the advice of senior counsel. The point can be made briefly. Under Clause 4, the defendant must show that he, she or they, as the case may be,

“reasonably believed that publishing the statement complained of was in the public interest”.

The amendment would replace “believed” with “decided”. I submit that it would make the clause clearer and simpler. Belief is subjective, much more so than decision. It is often hard to prove belief. It would be open to, possibly endless, argument and discussion, and could well lead us back in the direction of the checklist, which I am sure that all noble Lords wish to avoid.

Further, it may be the case that the defendant is a newspaper. That could make belief even harder to prove. For these simple reasons, I hope that the Government will favourably consider these amendments.

[Baroness Bakewell]

My Lords, in speaking to Amendments 6, 7 and 9, I declare an interest. I am a member of PEN, the defender of writers’ rights, and have been briefed by it in the matter of public interest defence. However, I speak as a journalist of some four decades’ experience, schooled in what were at the time the exacting standards of BBC journalistic behaviour. If that sounds rather smug or perhaps even naïve, following the earlier debate on Leveson today in which enormous generalisations about the nature of the press and its wickedness passed unchallenged, I am aware and proud of the many high standards of journalism in this country, which has served in part to disclose the scoundrels in the industry whom we wish to call to account.

It is against that background that I seek to make the matter of public interest foolproof against capricious and expensive litigation and extended and opportunistic probing of journalists’ subjective motives.

The advantage of the small but significant changes proposed in these amendments is that the defence can still benefit from a subjective element that would require the court to consider the defendant’s state of knowledge at the time of publication, but would limit the claimant’s ability to spin a long and expensive case by probing the defendant’s motives. It is the decision to publish rather than the belief that is critical.

Matters of public interest require objective judgments reasonably arrived at. Journalists must be held to such judgments. The issue of subjective motives is simply not relevant to the case. As Lord Justice Dyson found in the case of Flood:

“The mere fact that an article is published because the journalist or publisher wants to hurt the subject of the article is not material to whether the publication is in the public interest”.

As long-serving practitioners in the area of defamation law have advised the Libel Reform Campaign, an opportunity on the part of an aggressive, outraged claimant to use the litigation to probe into, to prise open and to seek to expose as flawed the motives and good faith of a defendant, including editors and journalists, may be readily exploited. As a writer of fiction, I am well aware of the complexity of human motive and its expression, including my own. But as a journalist, I acknowledge that my examination and exposure of a story must answer the strictest tests of reason and objective judgment. The law must safeguard my right to do so. In leaving open the option of what I might believe and why, some major intentions of the Bill—to reduce the length of cases and their prohibitive expense so as to enable those without means to get redress—would be damaged. I support the Bill.

--- Later in debate ---

On the other hand, I take on board the comments of my noble friends Lord Phillips and Lord Lester about the elegance of the clause. Without any indication of a change of mind, I say that I will look at it again. However, I have fully explained our reasons for retaining it and I stand by them. In the light of my reply, I ask the proposers of Amendments 6, 7 and 9 not to press their amendments. At the appropriate time, I shall move Amendment 8.

[Lord Taverne]

My Lords, I appreciate my noble friend’s determination to give effect to the Flood judgment. I am not sure that the advice that he has received from his department on interpretation is the right view and I hope that he will not just look at the elegance and the style but consider the remarks made by my noble friend Lord Lester. In the circumstances, I shall withdraw the amendment but it may be a matter to which we will return.

Amendment 6 withdrawn.