Defamation Bill

Robert Flello Excerpts

Tuesday 12th June 2012 Commons Chamber

[Paul Farrelly]

The hon. Gentleman is absolutely correct. The point about early strike-out and early resolution is a general one, and not simply applicable to libel tourism cases.

I turn now to the public interest, responsible journalism and the chilling effect of our libel laws and their cost. I welcome clause 1 on the test of serious harm and the hurdle that claimants have to clear, although I hear clearly the voices calling for it to be further stiffened and clarified, not least with respect to corporations. Clause 7, which extends qualified privilege, especially to fair and accurate reports of scientific conferences, is especially welcome, as is clause 6, where the Government have listened to the Joint Committee and extended protection to peer-reviewed articles in scientific and academic journals. There is concern about the chilling effects of our libel laws on the medical and scientific community, and Sense About Science should be congratulated on bringing these arguments to the fore after several particularly disturbing cases.

Dr Peter Wilmshurst has been mentioned in passing. He is a respected cardiologist at the Royal Shrewsbury hospital and my own hospital, the university hospital of North Staffordshire. In 2007, he was sued for libel by NMT Medical, a company based in Boston, Massachusetts, over a report carried by a specialist Canadian website about critical remarks he made of one of its medical devices at a US cardiology conference. He was sued here for defamation not once but four times over four years. Dr Wilmshurst, quite responsibly, had been involved in proper trials of the effectiveness of the device. In April 2011, the emperor finally ran out of clothes and NMT went out of business months after failing to post its own surety for costs. The case caused untold stress and worry to Dr Wilmshurst and his family and should never have been allowed to go on for so long. The Bill’s reforms ought to prevent such abuse of process, be it from overseas companies or anybody domiciled in this country.

[Robert Flello (Stoke-on-Trent South) (Lab)]

I am most grateful to my hon. Friend for his extremely thoughtful speech. It is worth putting on the record the fact that Dr Wilmshurst was determined to continue and not to retract because he was concerned that, if he did, people might suffer and even die, if a medical device was used that he felt was inappropriate.

[Paul Farrelly]

I agree with my hon. Friend. This case concerned comments made at an academic conference, and the Bill will avert such litigation, but that does not abstract from the general case of people acting in the public interest and being deliberately put through the mill to take them out of the game, to sully their reputation and to bog them down over a long time. Our court system really must address that as part and parcel of these reforms.

Clause 4 addresses responsible publication on matters of public interest. I welcome the clause, but again, as the Bill proceeds, the test will be whether it is a generally progressive reform that overcomes the deficiencies of the so-called Reynolds, or Jameel, defence, which it seeks to codify. That defence was only reasserted this March, in a rare case to reach the Supreme Court—the so-called Gary Flood ruling. As the Bill progresses, I hope that we will see whether the codification in the Bill matches the latest circumstances and developments in common law. The Reynolds defence was a defence of last resort for journalists. It was to be used when a newspaper made an honest mistake in reporting on a matter of interest.

The difficulties in mounting the Reynolds defence have been well rehearsed. The list of 10 principles, first enunciated by Lord Nicholls in 1999, were not supposed to be exhaustive, but in practice they have been used by judges in lower courts as 10 hurdles over which journalists and newspapers must jump to use the defence. It turns out to be a very expensive defence, and it affects how non-governmental organisations compile their reports and decide what they are prepared to write. I hope that during the Bill’s progress the Government can give us comfort that their factors (a) to (i)—not one to 10—will not have the same effect. The House might wish to explore alternatives to bolster the public interest defence.

As I, to much relief, move to conclude my remarks, I want to cite one case concerning the deficiencies of Reynolds and some of the changes introduced in the Defamation Act 1996. On the face of it, The Guardian’s investigation in 2008 into the tax affairs of Tesco should have benefited from Reynolds and other remedies, such as the offer of amends procedure. The Guardian alleged that Tesco, through the use of overseas subsidiaries, was avoiding tax. The company was indeed avoiding tax, but The Guardian, not helped by a lack of co-operation from Tesco, identified the wrong tax—corporation tax, rather than stamp duty land tax. It was an honest mistake. The thrust of the article was absolutely correct: Tesco was involved in elaborate legal tax avoidance schemes, and further investigation by Private Eye showed that it was also elaborately avoiding corporation tax.

In practice, however, The Guardian found that it could not use Reynolds because of how it was being interpreted. Tesco pressed on regardless, despite a lengthy apology in the newspaper and offers of amends. For good measure, it sued the editor personally for malicious falsehood, and by the time it was settled out of court, the case cost a small fortune. Had it gone to the bitter end, some estimates would have put the total at £5 million. For a giant corporation such as Tesco, money was no object. It was perhaps the worst case of inequality of arms that I have come across and that our Select Committee investigation came across, and the worst case of the intimidatory use of the libel laws by a corporation against a publication that we could remember. The test for the Bill is whether such a case could occur again. I encourage the Government to consider the circumstances of that case and learn lessons from it.

That leads me to my conclusion, which concerns one aspect of the Bill where the Government have not accepted a recommendation advanced by both the Select Committee and the Joint Committee on the draft Bill—reforming the ability of corporations themselves to sue for libel. I hope that during the course of the Bill amendments will be tested in that respect.

This has not been an exhaustive comment on the Bill. I welcome it but hope that during its passage the Government, having spent so much time on it, will be receptive to improvements.

--- Later in debate ---

[Robert Flello (Stoke-on-Trent South) (Lab)]

We have had an excellent debate this evening. We have had some extremely informed contributions from across the House—some short; some somewhat longer; some, indeed, quite lengthy—and the debate on the Bill will be all the richer for those varied contributions.

I would like to begin by putting on record my thanks to all Members, from both Houses, who worked on the Joint Committee considering the draft Defamation Bill. They provided excellent observations which improved the Bill to a huge extent—indeed, to an extent that anyone listening to this evening’s debate will not comprehend. I also add my thanks to those my right hon. Friend the Member for Tooting (Sadiq Khan) gave at the start of this debate to the key people and organisations—to the Libel Reform Campaign, which did fantastic work; to Dr Simon Singh, who has been mentioned by many contributors to this debate; and to all those who petitioned and lobbied for this Bill. We owe them a debt of gratitude for the work that they did and the pushing that they instigated and continue with.

This is a good Bill—it has to be, as it started life under a Labour Government. There are, however, still areas where it needs to be improved. On the assumption—a reasonable assumption, I think—that the Bill will make it to Committee, we will table a number of amendments and new clauses which we hope will make it the best it can possibly be. I hope that the Under-Secretary of State, the hon. Member for Huntingdon (Mr Djanogly) is indeed in listening mode, because the journey that this Bill has undertaken is a classic example of co-operative working. We hope that our serious and practical input in order to improve the Bill will be accepted at an early stage, unlike the challenge—I will be kind this evening—that was the Legal Aid, Sentencing and Punishment of Offenders Bill, where the Government had to endure strong persuasion, shall we say, in the other place to make the right concessions. [interruption.] I am in a very generous mood this evening. Let us have none of the tactics with this Bill that were needed in that case. Let us hope that the Minister is indeed in listening mode and will act quickly and appropriately.

As my right hon. Friend the Member for Tooting said there is much in the Bill that we are pleased about, which reflects the good work up to this point. For example, the protection offered to scientists and other academics in peer-reviewed statements and the single publication rule are good measures, as are the tidying-up provisions, such as those relating to bookshops and, despite the comments of the hon. Member for North East Somerset (Jacob Rees-Mogg)—meant, I am sure, in very good faith—to the Slander of Women Act 1891.

A number of concerns remain, however, and I am keen to highlight them this evening in order to provide the Minister and his officials with plenty of time to address them before we meet in Committee. We must not lose any opportunity to improve the Bill further in the same consensual way that we have worked on it up to now.

The first concern is the fact that the main mischief caused by the cost of defending an action and the length of time taken to resolve cases might not be addressed at all by the Bill. The Joint Committee agreed with the Government’s intention of promoting early resolution by allowing the judge to determine key issues at an initial hearing. However, the Committee went on to propose a stricter approach, as it felt that the Government’s changes did not go far enough. The Minister and his officials should revisit the Committee’s report urgently, with a view to bringing forward revised civil procedure rules and more. Those points are raised in the report; they have been well documented and discussed, and we need new proposals to be introduced urgently. Let me put on record our concern that, although the Bill tidies up the existing law and brings defamation law into the 21st century, it might not have any positive impact on the costs and delays in libel cases.

We also have grave concerns about the ability of ordinary people to get access to justice. Kate and Gerry McCann, Christopher Jefferies and others wrote an open letter to the Prime Minister during the passage of the Legal Aid, Sentencing and Punishment of Offenders Bill, as my right hon. Friend the Member for Tooting said. It is worth repeating their views, as they are so important. The letter warned:

“Parliament is on the cusp of passing a law that will grossly restrict access to justice for ordinary people in privacy and libel cases, without even any saving to the public purse. We strongly object to the passing of this unjust measure and urge you to amend it before it is too late.”

Of course, the LASPO Bill was passed. The letter continued:

“A successful libel defendant obviously does not get any damages so these reforms will prevent all but the rich from being able to defend their right to free speech against wealthy or corporate libel claimants.”

We share the concern that the changes brought about by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 will result in justice being denied to most people, who will be unable to protect their good name or to defend themselves, even when they publish the truth.

We would like the Government to be more explicit about what constitutes substantial harm. As we have heard today, this is an area of widespread concern. In Committee, we will seek far more detail on this from the Government, and I hope that they will seize the opportunity to provide it. I hope that the Minister will take that opportunity to put on record a clarification of what is substantial harm, and what it is not. One person’s substantial harm might be quite different from that of another. I shall return to that point later. We would also like the Government to be clearer about honest opinion. Again, we will test that point in Committee in order to draw out what they mean by the term. We also want them to tighten up the single publication rule, as we feel that a further test relating to the credibility of the source would improve matters further.

On the question of trial by jury, we hope that the Government will take the opportunity to be clearer—again in line with the findings of the Joint Committee—about which cases should go before the courts. The Libel Reform Campaign and many others have highlighted serious concerns about the public interest tests. Indeed, an interesting and appropriate article in The Times today raised the point that, while clause 4 seeks to replace the Reynolds defence, it does not bring the law up to date in line with the Flood judgment. I agree with the article’s view that a tick-box approach will help nobody. Moreover, there is a real risk that the factors could end up being used as hurdles or as elements to be ticked off. I know that the clause does not say that. In fact, it states that

“the matters to which the court may have regard include (amongst other matters)”,

but, given what happened in relation to Reynolds, there is a danger that those matters would become a set of hurdles or, as the article explains, a set of tick-boxes.

We have two further serious concerns. First, there is the clause that deals with the operators of websites. On the face of it, clause 5 seems a sensible approach, bringing the law into the 21st century. However, the absence of draft regulations seems sloppy and misguided. I hope the Minister will forgive me for using those words, but given the fundamental importance of regulations to the Bill, no other words do justice to the danger of their absence. The Secretary of State said that we will have to get the detail eventually. I am sorry, but that is not good enough. There is also the worrying development that libellous statements hosted on a website might remain in place because the defamed person is unable to take action against the identified author.

The Justice Secretary made great play in this morning’s media—as, indeed, did the Minister—of the fact that internet trolls would no longer be able to hide behind anonymity. That is greatly to be welcomed, but what about the internet trolls whose details are provided, thereby allowing the website operator to use that defence? What happens when the troll is in another jurisdiction? The website operator is able to use the defence of identifying the internet trolls, and that is it—the line comes down. We shall seek to amend the Bill in line with the Joint Committee’s recommendations.

Let me deal with what hon. Members have said many times is a glaring absence from the Bill: corporations. All too often, corporations are able to flex their muscle and call in their lawyers even when the author or publisher makes a justifiable statement that is fully capable of being defended. The corporate bullying must end. I am surprised that the Government have given in to brash big business rather than at least attempt to address the inequality of arms. We shall seek to bring forward a new clause to encapsulate what the Joint Committee report concluded on this important issue. Broadly, we shall seek to ensure that serious harm in the context of corporations means that where there has been or is likely to be a substantial loss of custom directly caused by the defamatory statements, the court must give permission before a libel claim can be brought. It is all in the Joint Committee report, and we have heard many Members across the Chamber say how much they welcome its work. It is incumbent on the Minister to take on board the comments of Conservative Members who say that the report is a good one that should be taken forward.

Let me comment on some of the contributions, beginning with the Lord Chancellor’s opening comments. He said that the courts would decide what counts as “serious harm”. Does that mean yet more litigation, yet more costs and yet more delay while the courts decide what it is? We need a really strong steer to avoid that. He referred to the development of new procedures to hear preliminary points and meanings before full trial. I think that is very good, but again it is all pie in the sky and yet to be done, with nothing concrete before us. As to the circumstances in which jury trials will be left to the judge, the Lord Chancellor was fairly clear; he felt it was a matter for the judges to decide when juries should be brought in, but that leaves things wide open to further litigation, further delays and further costs.

Moving on to other contributions, we heard first from the hon. Member for Mid Bedfordshire (Nadine Dorries), who spoke from personal experience about some of the appalling messages, including death threats, that she had received. She raised the issue that a matter of serious harm for one person might not necessarily be the same for another person. She also mentioned that the impact of being defamed can last a lifetime for a young person; it might impact on them and never go away. She was the first to raise the issue of looking at libel law on a regular basis. At that point, I almost heard the Minister groan. As the debate continued, we heard some alternatives to that, some of which had merit, and I shall come back to them.

My hon. Friend the Member for Bishop Auckland (Helen Goodman) made a characteristically thoughtful and serious speech. She made the excellent point that the police were not always up to speed when it came to crimes on the internet. The different police forces need to find a way of ensuring that when someone makes a complaint of this nature, it is referred to specialist officers who have the necessary knowledge and experience. Perhaps the list of matters to be considered by the police and crime commissioners should include that, as a matter of urgency.

My hon. Friend drew attention to the importance of supporting good journalism. We have heard a great deal about bad journalism today and about how it should be dealt with, but a Bill that supports good journalism should surely be encouraged. She discussed the meaning of “serious harm”, and also the difference between the website issue raised in clause 5(2) and the issue of letters pages or chat shows. I especially enjoyed her observation that the internet was not like a mediaeval forest that was beyond the law. We may well return to that point in Committee. My hon. Friend, and a number of subsequent speakers, also made the point that the No. 1 problem for a particular newspaper—as I understood it—was the threat from oligarchs who would try to sue it if any inappropriate comment was made.

The hon. Member for Morecambe and Lunesdale (David Morris) talked about the use of lower courts. When Opposition Members discussed the issue with libel experts, they expressed concern about the level of expertise in some courts, and I agree with the hon. Gentleman that one option is to establish whether some of the problems result from a lack of specialist judges.

The hon. Member for North Antrim (Ian Paisley) hit the nail on the head when he said that 21st-century libel reform was not straightforward; I do not think anyone could disagree with that. I was also impressed by his insistence that the Bill should be about the protection of people, which echoed our concern about website operators and others.

The hon. Member for South Swindon (Mr Buckland), who is not in the Chamber now, produced a lengthy analysis of the Bill.

[Sadiq Khan]

Very generous.

[Robert Flello]

My right hon. Friend chides me for being generous again. I am merely trying to create the right atmosphere for the Committee stage, when the Minister will doubtless accept all our amendments and new clauses.

The hon. Gentleman felt that the Bill was better as a result of the Joint Committee approach, and better than it would have been had it relied solely on evidence sessions. How can I disagree? As I have said, I strongly believe that the Joint Committee’s report needs to be reflected in the Bill.

My right hon. Friend the Member for Tottenham (Mr Lammy) spoke of the balance between freedom of expression and protection of reputation. He rightly raised points about companies and corporations, and referred briefly to the consequences for jury trials.

In his substantial contribution, the hon. and learned Member for Sleaford and North Hykeham (Stephen Phillips) rightly observed that costs were driven by procedure. The draft Bill that was considered by the Joint Committee focused strongly on that point, and we need to see some movement on that from the Minister.

My hon. Friend and neighbour the Member for Newcastle-under-Lyme (Paul Farrelly) returned us to the theme of responsible journalism. He took us on a trip down memory lane when he talked about the infancy of Google and the like. He then drew attention to some of the good aspects of the Bill and some of the omissions, such as the omission of provisions relating to corporations.

[Paul Farrelly]

I also took the House on a trip down memory lane when I mentioned the issue of the Russian mafia and Russian oligarchs, which is ever present today.

[Robert Flello]

I am very grateful to my hon. Friend for that comment. I knew he would not want to miss the opportunity to add it, so I paused just long enough for him to rise to intervene. He makes a good point. We must not allow Russian mafia—criminal gangs—to suppress free speech in the UK. That is outrageous.

The right hon. Member for Carshalton and Wallington (Tom Brake) highlighted a number of areas that we need to address. I look forward to perusing Hansard tomorrow to refresh my memory so we can address them in Committee.

I was impressed by the contribution of the hon. Member for Hastings and Rye (Amber Rudd), in part because she managed to mention her constituency on so many occasions in the context of defamation law. She made a very good speech, in which she said it was too easy for the rich and powerful to stifle free speech. I entirely agree.

The hon. Member for Cambridge (Dr Huppert) is no longer in his place. He gave one of his customary long short speeches. He talked about the chilling effects that we have seen and went through quite a few cases. He hit the nail on the head when he said that clause 5 on website operators addresses a complex area that is difficult to get right. I agree.

The hon. Member for Hexham (Guy Opperman) talked about his personal experience as a mediator and libel barrister. The hon. Member for South Derbyshire (Heather Wheeler) welcomed the Bill and the cross-party approach. The hon. Member for North East Somerset said in a complementary way—with an “e” not an “i”—that, instead of having consensus, he preferred holding to the cut and thrust principle. If he serves on the Committee, he may well see plenty of cut and thrust as we ensure that the Bill is knocked into good shape. I thought he was a little unfair to his coalition colleagues, but he redeemed himself by reciting “Othello”, I think—I hope I am not wrong about that. He also made the very good point that those responsible for websites must take responsibility for the content on them. Of course there need to be protections where website operators act responsibly and do the right thing. We will need to see the regulations on that, and we have not yet had sight of them. I never thought I would hear the hon. Gentleman say he was an anti-establishmentarianist —if there is such a word—but it was interesting to hear him say so and to talk about the battle between libel and free speech.

We have had a good debate and, in view of the consensus on the key principle, we will not seek to divide the House this evening. However, I again stress to those on the Treasury Bench that they should see our acceptance of the principle and our willingness to work collaboratively as an opportunity to embrace positive improvements so that we do not rehearse the protracted warfare that gave Ministers a number of bloody noses in the other place. We do not want to see that. Instead we want to see a good Bill come out of this process.

So let us move into Committee with a genuine desire to improve this important piece of legislation further.

--- Later in debate ---

[Mr Djanogly]

I understand and agree with the hon. Gentleman’s sentiment, however I am reflecting what is now in common usage and “troll” is a word that people will understand. Some people understand it in either the criminal or the civil context, but the point I am making is that it can be used in both contexts.

Our approach will also promote freedom of expression by helping to ensure that material is not needlessly taken down without the author being given the opportunity to defend it, as often happens now. I can confirm to my hon. Friend the Member for Cambridge that we will also be ensuring that protection is in place for whistleblowers.

[Robert Flello]

Will the Minister please address the issue of what happens when a defamatory statement is put on a website anonymously and the website operator then tells the person defamed who the person posting it is but they are impecunious and are out of jurisdiction? What happens then in terms of taking the statement off the website, because the website operator now has a defence?

[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.