Defamation Bill

Lord Triesman Excerpts

Tuesday 9th October 2012 Lords Chamber

[Lord Triesman]

My Lords, I want principally to focus on a limited but to me important set of arrangements set out in this Bill, and like other noble Lords I am eager to see the accompanying documents to make sure that I have understood it all. During the debate in 2010 on the proposals of the noble Lord, Lord Lester, I felt myself occasionally swimming against a strong tide. Like others, I admire the noble Lord’s tenacity, but on some issues I simply am not at all sure that the point of balance of rights that he prefers is the one that I prefer. Like many of the speakers in that debate in 2010 and like many of the correspondents who have kindly sent their analyses of the Bill to me in advance of today’s debate, it is clear that there are significant numbers in favour of clarifications to the current legislation, and so am I. Most are exasperated by the cost of litigation and by people carpetbagging between jurisdictions to find an advantageous setting for their defamation actions. A significant proportion of the correspondence was concerned to prevent people from being silenced by powerful and wealthy corporations in the context of academic publication.

Of course, as you would expect, there were many restatements of the centrality of reporting and the expression of opinion for the health and vitality of our democracy. That has been repeated in more or less all the correspondence since 2010 and, again, I am not surprised. It is argued that actions for defamation have the impact of censorship and that we live in a democracy that should not tolerate censorship. The public have a right to know. It is a key principle. The exposure of corruption, injustice, negligence and incompetence and preventing misleading and dishonest statements and behaviour should always be open to public scrutiny. It would be hard not to go along with all that.

I have awaited this debate with interest because I wanted to see where the balance might be struck between all these concerns—I am clear that I share them—and the rights of individuals to protect their reputations and their privacy when it is legitimate to do so, and at a cost that they can afford, which was in part the burden of the remarks of the noble Lord, Lord Marks.

The debates in another place considered this balance. I was heartened by the acceptance of the right to legitimate protection of reputation irrespective of one’s means: that is, less wealthy people should be able to protect themselves. That concept often appears much less important than it should in debates, including in this debate if I may say so. Justice for all has to mean exactly that—justice for all, not justice for the well heeled. This was at the centre of my concerns when we debated the proposals of the noble Lord, Lord Lester, and it remains so today. I am not disposed to say nothing about the issue because of the risk of being associated with the so-called “chilling effect”, a phrase much loved by the print media. I suppose that the hyperbolic impact of the phrase is intended to capture a profound truth, but actually it is simply expected to restrain anyone from probing rather more deeply into what a proposal might mean.

Perhaps it is best to start with the positive, which should make it easier in due course to deal with what I think is less helpful. The committee of the noble Lord, Lord Mawhinney, has certainly helped us to approach the positive factors in a positive spirit. Of course, I am strongly committed to the freedoms of speech and opinion that underpin modern democracy. I have said so and I do not need to repeat it at length. It is absolutely right that these figure not just in the Bill but in human rights legislation itself. I completely agree that abuse of the libel laws in the ways that the noble Baroness, Lady Bakewell, has described is also deeply alarming. I am a passionate advocate of academic freedoms.

I had the privilege of taking part in the drafting of the 1997 UNESCO normative protocol on academic freedoms to which the United Kingdom is a signatory. It is worth going back to that document, given some of the assertions that it makes about protections and freedoms. It demands that signatory nations protect and defend academic freedoms for all academic teachers and researchers, with a fairly broad definition of that, precisely because what they publish or say may well, and with good reason, be testing, provoking or unpopular. The noble Baroness, Lady O’Neill, was 100% right to say that this is also the source of much of the structure of the debates that drive the process of accumulating knowledge. The aim of the protocol was to ensure that neither states nor powerful corporations could silence lectures or conferences or prevent publication. The United Kingdom was among the first to adopt the protocol, which was signed for this country by my noble friend Lady Blackstone.

In my view it must follow that we should extend protection in the area of defamation to prevent powerful and well heeled bodies stopping research publication or even threatening litigation to stop publication. The inequality of arms should never be a basis for undermining the fundamental responsibility of all researchers and teachers that is set out in the United Nations protocol and which has been central to the history of higher education in the United Kingdom. For those reasons the provisions in Clause 7 are welcome.

If I have one reservation, alongside the slowness and somewhat ponderous process of peer review, which the noble Baroness, Lady O’Neill, also mentioned, it is that it is not certain to me that peer-reviewed journals are wholly future-proofed. There is a trend towards digital publication and the encouragement of open-source provision of all information in science by the world’s leading universities. I think that is a great advance. Digital publication does not necessarily finish peer review, but it could do so, and you can see how easily it could. Indeed, in some of the newly developing disciplines peer-reviewed journals have yet to appear as journals as there are advances in the disciplines ahead of advances in publication. Perhaps in Committee we can improve on these provisions. It would be good to do so.

I fully support the intentions to prevent libel tourism, and I am equally eager to see a proper restraint on costs. Some of my criticisms might be mitigated if there were some means of limiting costs and the provision of some resource to enable less wealthy litigants to respond to illegitimate and on occasion feral attacks from rich and powerful media outlets. In reality their challenge to citizens is, “Come on if you think you can afford it”. The Press Complaints Commission has become a refuge for many people precisely because they cannot afford to tackle this issue by any other route. However, as we all know, it has not been a particularly effective refuge for people in those circumstances.

On page 4 of its briefing, Justice asserts that it has “seen little evidence” that conditional fee agreements,

“increased access to justice in this area”.

Rather, Justice claims that the scheme was generally used by the,

“same private individuals and organisations who would have been able to bring a defamation claim in any event”.

I am considering here not the merits of CFAs, for which Justice provides none of the evidence that it says it has seen and is probably wrong about, but the underlying implication that people are not really put off by risks and costs. I think they have done very little justice to those who are unable to take on media giants, which can be massively threatening and whose commitment to ethical conduct has been seen in all its gory detail at the Leveson inquiry.

As with the reasoning on the defence of academic research and teaching when pitched against the corporations, this legislation has to deal with the inequality of arms. This is where I have the greatest difficulty with the Bill as it stands. Paul Farrelly MP and Robert Buckland MP looked seriously at this issue in the other place. Mr Buckland rightly said that,

“there is a fine balance to be struck between freedom of expression and the rights of individuals to protect not only their privacy, but their reputation”.—[Official Report, Commons, 12/6/2012; col. 214.]

It has become possible for the less well off to be libelled with impunity and without significant remedy. It may be right at later stages of the Bill to discuss the occasions when judges have themselves undermined the possibility of a remedy. I am with the noble Lord, Lord Mawhinney, in saying that a government view on the management of these kinds of issues would assist ordinary citizens and that we should not be afraid of assisting citizens.

This brings me to the main areas in which I see weaknesses which I hope, given the spirit in which the debate has been introduced today, the Government will be willing to address. They are weaknesses on which Lord Justice Leveson seems likely to report. I do not know how wise it is to pre-empt his report, but we are where we are. First, in an attempt to prevent trivial and vexatious claims, the Bill attempts, according to the Explanatory Notes, to codify a tougher threshold on the serious harm issue than exists now. I can see why this is necessary, but I am not at all clear that the text as it stands in the Bill is an advance.

At present, the law tests whether there is or is likely to be an adverse impact on reputation. The replacement seems to me to involve a very detailed examination of all kinds of matters which I understand people would wish to examine but where it seems certain that there will be a significant increase in costs to possibly relatively little advantage. The noble Viscount, Lord Colville, believes that this might help. However, I fear that the detail required may greatly increase the price of the provision beyond the means of most people to afford it. Indeed, what would count is itself likely to have to be tested by the creation of precedents, because I doubt that we will see the answer hit upon instantly.

Secondly, it must be wrong to conflate honest opinion and responsible publication. It lends credence to a dubious assertion that it is difficult to separate fact and opinion. It will complicate things to the point of confusion in the relationship between a publication and earlier original publications. It confuses defamatory opinion with inaccurate fact, and I do not accept that it is difficult to distinguish between the two or to create tests that would distinguish between the two. It provides no viable definition of the word “responsibility” in relation to an opinion expressed.

Thirdly, Clause 3, covering “Honest opinion”, seems to someone who thankfully confesses that he is not a lawyer to take a curious view about the way in which people think of their justifications for what they do. At present, as I understand it, a defendant must show that he or she was aware of the facts relied on when publishing. Now it appears that a defendant would not need to know or to have made much effort to ascertain the facts that would justify an honest individual from holding an honest opinion. It is hard to see how you can be honest without at least having made an honest endeavour to find out what the facts were. I am hard put to imagine this exercising any restraint on a number of the newspapers or journalists that I know. It is a further licence to trash people without providing any really intelligible facts as a basis for doing so. That is why I so strongly support many of the things that my noble friend Lord Sugar said.

Finally, the concept of public interest has advanced somewhat in this Bill. I am clear that whatever sells a newspaper is believed by its publishers to be in the public interest, and I can see that it is very hard to provide a tighter definition, but there must be real merit in requiring a publisher to show that a journalist source was credible and reliable. I do not think that is what happens uniformly now, but it seems such a minimal provision. The BBC definition is a credible position, the Ofcom code is a helpful provision, and the NUJ briefing, I thought, was broadly sensible on all this, but it certainly needs more work in the later stages of the Bill.

I completely accept that we need to review and improve defamation law and to do so while protecting democratic accountability, guaranteeing academic freedom and ensuring equality of resource when cases do come to the courts, as some inevitably will, but we are also living in a country that in my view is proud of the idea that is just as much enshrined in human rights law that it is wrong to defame people and wreck reputation without having a proper means of defence and without the victim having proper redress. However we strike the balance, there must be a balance, which is why I welcome the suggestion of the noble Lord, Lord McNally, that the discussions and the improvements will continue.