Defamation Bill [HL]

Lord Triesman Excerpts

Friday 9th July 2010 Lords Chamber

[Lord Triesman]

My Lords, my wish to speak at Second Reading and in subsequent phases of the Bill arises not from any recent events—I hope that will be recognised—but from a concern that I have expressed over the best part of 30 years about chronic imbalances between the power of the media and that of many private individuals when the media attack the reputations of those individuals. It would have been chilling, if I can use that phrase, not to take part. It is no easy task to speak among so many eminent speakers. The noble Lord, Lord Lester, has provided us with an opportunity to reconsider libel law and I thank him very much for that. I readily acknowledge that the idea of doing so has been growing in the policies of various libel reform campaigners, academics and NGOs for some time. I welcome and associate myself particularly with the comments of the noble and learned Lord, Lord Hoffmann, and the noble Baroness, Lady Kennedy.

I understand the motivation that lies behind these legislative proposals. I have also looked at the evidence provided by several campaign groups and noted that at the general election there was support for reform from all main parties, based on the worst cases that have concerned those groups. So I support the case for the protection of citizen critics and the need for reform. The law is complicated, the outcomes are uncertain and costly, and I see some risks—although I think they are overstated, as Lord Justice Eady suggested—of libel tourism. I can also see that the web has driven wider and repeated publication.

Everyone must be concerned that, in the scientific community, people fear the risk of publishing data questioning the efficacy of products or production methods. This kind of discussion should never be repressed. Everyone will acknowledge the risks faced by research teams and individuals when actions are taken against them by massive corporations with bottomless pockets. The injustice, quite apart from the suppression of discussion central to scientific process and progress, is the hopeless mismatch in the resources of the contending parties. There is no equality of arms; it offends justice and leaves a sense of profound unfairness. We are, in this country, a people who very much dislike unfairness.

Key cases, some of which have just been mentioned by the noble Baroness, Lady Bonham-Carter, have had an impact on the campaign and the pressure groups whose work contributed to the Bill. It has aroused empathy in your Lordships’ House, not least in the two exceptional maiden speeches by my noble friend Lady Hayter and the noble Lord, Lord Willis. We all share a commitment to freedom of expression. Lord Deedes, chairing a JUSTICE committee, described it as “our bedrock”. However, it is not our only bedrock, nor the only prism through which we understand our civil liberties, nor the only source of inequality of arms in cases. Remedies to what has reasonably been called the chilling effect of our libel laws cannot be remedies that undermine other civil liberties and send an Arctic wind through other individual rights that are also, in our country, a bedrock. That is in the area of risks to reputation.

Initially, I believed that campaign groups, NGOs and the in-house media lawyers who have been so vociferous in supporting the Bill were the only voices around. I now know of significant numbers of other journalists, academics and claimants’ lawyers who argue that the Bill, as drafted, presents problems. I think the noble Lord, Lord Lester, has suggested that that may be true and that they can be dealt with as we go through the process. However, none of those people was in the advisory group that helped draft this legislation.

I was moved by the most reverend Primate the Archbishop of York in the debate on the future of this House. He asked what should be our goals and objectives. His answer was,

“revising the law that will maintain freedom and justice for the nation and for every individual within it”.—[Official Report, 29/6/2010; col. 1674.]

Our starting point, then, should be the civil liberty and freedom of individuals and, on that basis, to see what becomes efficacious to look at in the civil liberties of all the other entities in our society. Where in this Bill I see a desire to protect the civil liberties and freedoms of individuals as defendants confronted by mighty corporations as claimants, I ask where the corresponding recognition is of the rights and difficulties of individuals as claimants facing overmighty organisations as defendants. I note that this last class of defendants in the press are the most vigorous supporters of this Bill because they believe—I think, rightly—that it extends and protects their powers.

The eminent lawyer and Guardian readers’ editor, Siobhain Butterworth, correctly observed that today the media hold the ring. They create what scrutiny there is of defamation in many cases and have the greatest continuing interest in particular outcomes. Trusting some of the media groups—some of them have a trenchant history of defamation—to make key judgments on defamation at best is counterintuitive and at worst simply empowers the most powerful and fortifies their self-interest. The noble Lord, Lord Pannick, may be right to refer to the role and experience of the media in respect of free speech—I agree with that point—but he would have assisted me if he had at least dealt also with their responsibilities. Therefore, I ask who is speaking up for the claimants that I have mentioned and for the broad concerns in society for the legitimate defence of reputation and individual privacy.

Every time someone says we need a new balance because the harm that is done, for example to scientific communities, is unacceptable—I agree with that—I am concerned to know how much empirical evidence there is for harm of that kind, which I think is significant, and how much evidence there is for the harm done to individuals and their civil liberties, which are likely to be compounded by releasing the media, through this Bill, from most of their serious obligations when dealing with people’s reputations. I do not think that evidence has been systematically collected and I am sure that it has not been published. It is always important to work on the basis of evidence. There is a strong instinct in this House to do exactly that. However, the first six months of the year have been wholly negative for claimants. I am indebted to Professor Mullis at the University of East Anglia for the data. If there have been shifts in balances—I feel sure that the noble Lord, Lord Borrie, would agree with this, given what he said—they ought to be confirmed by systematic data and systematic research. That is what should guide us in that case.

The Bill redefines “responsible publication”, yet I fear that it fails to list the decisive factors included in Lord Nicholls’ judgment in the case of Reynolds: namely, whether the claimant’s account has been included and what the source of the information was. Weakening the guarantee of an unqualified right of reply to someone whose reputation is being publicly shredded seems to me almost the definition of unfairness. I cannot see that you can attach the word “responsible” to it in any meaningful way. That is not a balance. Moreover, the Bill extends, perhaps to a surprising degree, the scope of the defence to cover comment, effectively blurring fact and opinion. The Explanatory Notes treat this as a technicality. Although I readily acknowledge that I am no lawyer, I think that this flies in the face of the Reynolds judgment. A defendant could rely on being false but responsible. That is no mere technicality; it is the beginning of a wholesale right to an unstoppable defence of public interest. Indeed, in my view, if the Bill were to become law in its current form, it would allow much less scope for arguing public interest and for a successful claim by anyone traduced by a toxic mixture of purported fact and opinion. It is entirely understandable that some publishers and editors support the Bill enthusiastically for that reason.

It used to be thought that the public interest meant that the revelation was justified because greater good came from exposing it than suppressing it—a benefit which any reasonable person would recognise. It exposed fraud, crime, corruption, significant anti-social behaviour, disclosure of decisions, probity and value for money. It was about what would allow people to make significantly better informed decisions on matters of public importance or to expose wrong-doing. However, that is no longer what is meant by the words. They mean that someone—anyone among the public—might be interested in anything that might be said. The Bill gives oxygen to this approach; either it intends to do so or the changes in terminology and language lead in that direction. A robust definition may be difficult to draft, but it is imperative, although I fear it is absent.

The Bill is perhaps rather more one-sided in its changes to the definition of “honest opinion”, although I acknowledge great strengths in parts of Clauses 2 and 3. The difficult area is where a defendant is released from relying only on the facts that they knew at the time of publication. If two sides had broadly similar resources available to them when they came to deal with the matter in finality, this would perhaps not be a problem, but the idea that a defendant can employ any number of investigators who can go on fishing trips all the way up to and including any hearing against a claimant who may well be hazarding their home and their family’s financial future just to deal with the original case, does not strike me as fair. Lord Justice Eady, in the judgment on Associated Newspapers, maintained a rather more reasonable balance of fairness. That is preferable.

Roy Greenslade, as he so often does, summed up these issues effectively when he said that the Bill can protect journalists pursuing a story, even if it is untrue and causes damage beyond repair. They can shrug off the consequences with what he described as indifference, while claimants have to accomplish what might be well beyond their resources. I am sure that a fairer balance can be struck.

The Law Commission, chaired by a Lord Justice of Appeal, has the impartial responsibility to look for balanced and carefully considered solutions to complex areas of law, and I ask the Lord Chancellor, through the Minister, to refer the libel law proposals to the Law Commission for a full and speedy review. I hope that in addition to the proposition of the noble Lord, Lord Lester, for a specialist and expert committee, he will think that that is fair housekeeping in all the circumstances.

I urge the House not to alter access to juries by reversing the presumption. This is an area where the common sense of our fellow citizens will be a clear asset. I ask the House to ensure that the Bill deals with costs, damages and the misuse of private information, and does not finish its parliamentary passage by being almost exclusively about the interest of defences. Like the state of media regulation, which has been mentioned, it may be said that these matters are beyond the scope of the Bill, but actually they are all interwoven, and the operational consequences of the Bill and dealing piecemeal with the issue will probably leave us with a piecemeal solution.

In summary, I am grateful to the House for indulging a non-lawyer. I have looked at the Explanatory Notes and, with respect, I suspect that they do not really reflect the wording of the Bill. I know that the noble Lord, Lord Lester, aims for a fair balance and that he wants one, but I believe that the Bill, as drafted, will weaken the weaker party in the bulk of defamation cases—no level playing field, no equality of arms and no proper redress. The Bill may well help one group of people who should be helped, but only by weakening another.

I said at the beginning that these issues have concerned me for nearly three decades. I have seen some newspapers, journalists and proprietors—although by no means all of them—savage people who did not deserve it and had no equal chance of fighting their corner. The cases that tended to disturb me most in my working career, as it happens, were those involving trade union people, who I would describe as being on the progressive side of politics but with scant financial resources. They are not the rich and powerful and they are not in an equal contest. I know that your Lordships will all be able to think of cases from your experience in different walks of life that are by no means less important than the kind of examples that were drawn to my attention in my working life. So, with respect, I find it hard to recognise that what has been said, including in the opening speech, is reflected in what has come out so far in the text of this Bill. I am sure that work on it can make a real difference, but I thought it right—especially having had at least a brief conversation with the noble Lord, Lord Lester—to put my arguments in a strong way so that my view is understood.

The House, with its goal and objective—as the most reverend Primate the Archbishop of York said—to protect the civil rights of individuals, should stand up for everyone, not just for some or for those who find inequalities in the present law, but for others who also find inequalities in the law and have no realistic means of protecting themselves.