Defamation Bill

Debate between Nadine Dorries and Jonathan Djanogly

Tuesday 12th June 2012 Commons Chamber

[Mr Djanogly]

If the website operator has a defence, they are out of the picture. That does not stop action being taken against the anonymous troll, but that would have to be done by way of an order, which, admittedly, would be a more expensive procedure.

[Nadine Dorries]

I believe, and think that the shadow Minister probably does too, that the entire process whereby the responsibility is on the website owner to seek out and address the libellous or defamatory comments left by a troll will be enough to encourage that website owner to remove the comments themselves if they do not get a satisfactory answer. I know that it is not in legislation, but I believe that that even happens now and so this approach will help to reinforce that process.

[Mr Djanogly]

My hon. Friend makes a good point. I would be the first to admit that there are no silver bullets here. We are looking at a range of proposals that will give an array of weaponry to deal with what we consider to be a dangerous situation. Let me make it clear that the Government are committed to tackling trolling, cyber-bullying and other forms of abuse and misuse of social networking sites by working with industry, academia, charities and parenting groups to develop tools and information for users aimed at keeping society safe online.

The Government are pressing the internet industry in the UK and Europe to implement clear and simple processes for dealing with abuse online, and we have also recently reviewed our cyber-bullying policy. For the most part, social network site operators adopt sensible and responsible positions on any misuse or abuse of their services in the terms and conditions they require of their users. They support this with systems for notification of breach and removal of material in breach. This corporate responsibility of operators, aligned with collective responsibility on users to report misuse, provides the basis for self-regulation of the internet and a more immediate means of monitoring and dealing with abuse.

Many hon. Members queried when we would be publishing regulations to set out the new procedure in detail. I can say tonight that a note on the new process will be provided to the Public Bill Committee to aid its scrutiny of the Bill’s provisions, and draft regulations will be published for consideration by stakeholders in due course.

As the right hon. Member for Tooting said, we believe that extending the clause 6 protection is important in order to help encourage robust and open scientific and academic debate, and I, too, acknowledge the principled stand and ongoing participation of Dr Simon Singh in this area. In drafting the clause, we have given careful consideration to defining key elements of the peer-review process to ensure that the scope of the provisions is clear and appropriate, and we are satisfied that it is.

The hon. Member for North Antrim, among others, expressed the view that the problem of libel tourism has been exaggerated. We recognise that there are mixed views on how far libel tourism is a real problem; my hon. Friend the Member for Morecambe and Lunesdale (David Morris), among others, took the opposite view, saying that it is a serious problem. However, I point out that the number of cases alone may not accurately reflect the extent of the problem, as the threat of proceedings by wealthy foreigners and public figures can be used to stifle investigative journalism, regardless of whether cases are ultimately brought. That is a form of legal arbitrage and on balance we believe that there is a need to take action specifically to address the issue. We must lose our growing reputation as the libel capital of Europe.

As for how clause 10 will interface with the new defence for website operators under clause 5, if a website operator were to fail to follow the process and then attempt to use a clause 10 defence on the basis that they were not the author, editor or commercial publisher of the third-party material, it would be for the court to decide whether the fact that they had failed to follow the process set out in clause 5 meant that it was not reasonably practicable for the claimant to pursue the primary publisher.

The right hon. Member for Tooting, my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), my hon. Friends the Members for Worthing West, for Gainsborough and for North East Somerset (Jacob Rees-Mogg) and my hon. and learned Friend the Member for Sleaford and North Hykeham discussed issues relating to a person’s reputation being decided by his or her peers in the form of a jury. I understand those views but, as my right hon. and learned Friend the Secretary of State outlined, in practice very few defamation cases now involve juries. We need to appreciate that jury trials can create practical difficulties and add significantly to the length and cost of proceedings, and that if the judge believes that a jury trial is appropriate that will still be a possibility. As my hon. Friend the Member for Maidstone and The Weald (Mrs Grant) said, the proposal should also help moves towards early settlement.

My hon. Friend the Member for South Swindon gave a lively exposition of how the move away from jury trials is part of what he described as an evolutionary process of libel law. The right hon. Member for Tottenham asked about guidelines and whether they should be included in the Bill to assist the court in the exercise of its discretion to order trial by jury. A clear majority of consultation responses considered that such guidelines would not be necessary. The courts are already familiar with exercising their discretion to order jury trial when appropriate, and we believe it would be preferable to allow them to continue to do that without specific guidance in the Bill.

My hon. Friend the Member for Stroud (Neil Carmichael), my hon. and learned Friend the Member for Sleaford and North Hykeham, the shadow Justice Secretary, the hon. Member for Newcastle-under-Lyme and others have touched on the new procedure for resolving key preliminary issues at an early stage and its relationship with costs. Let me say first to the hon. Member for Stoke-on-Trent South that we agree that this is an important issue, and I agree with the shadow Justice Secretary that if we can reduce procedure we can reduce costs.

During our initial discussions with interested parties in the summer of 2010, it became apparent that a major area of concern was the extent to which defamation proceedings can become mired in disputes over preliminary issues. That contributes substantially both to the time taken to resolve cases and to the costs involved. For example, in British Chiropractic Association v. Singh proceedings in relation to whether the words complained of were matters of fact or opinion took almost two years to resolve. When a ruling was ultimately given on the issue by the Court of Appeal the claim was withdrawn, but by that point substantial costs had been incurred and the defendant had been placed in a position of considerable uncertainty and stress over an extended period.

In the light of such concerns the Government consulted, alongside consultation on the draft Defamation Bill, on the possibility of introducing a formal new procedure in the High Court to channel all cases in which proceedings are issued through a process whereby early rulings can be given on key issues that currently contribute substantially to the length and cost of the proceedings. That would help to clarify the issues in dispute and the defences that may be available and should assist in encouraging early settlement in many cases. The practical implications of the proposal were discussed with members of the senior judiciary with experience in defamation cases and those views were taken into account by the Government in developing a skeleton outline of how the procedure could work, which was published in the consultation document.

The main preliminary issues which the outline envisaged being determined under the new procedure were whether the claim satisfies the serious harm test where this is disputed, which would enable claims failing that test to be struck out as early as possible; what the actual meaning of the words complained of is and whether that meaning is defamatory; and whether the words complained of were a statement of fact or an opinion.

It was envisaged that the procedure would be automatic in all cases where any of these issues needed to be resolved. In addition, other issues which it was considered could potentially be determined, if relevant, were whether the publication is on a matter of public interest, because an early decision on whether a matter is or is not in the public interest could help to determine whether there is any scope for the defendant to use this defence; whether the publication falls within the categories of publication in schedule 1 to the Defamation Act 1996 for which the defence of qualified privilege is available, as this would help to clarify whether it is open to the defendant to use this defence; and consideration of costs budgeting in appropriate cases, depending on the outcome of the ongoing costs budgeting pilot.