Defamation Bill

Viscount Colville of Culross Excerpts

Tuesday 9th October 2012 Lords Chamber

[Viscount Colville of Culross]

I declare an interest as a producer/director still working at the BBC and as a vice-chairman of the All-Party Parliamentary Libel Reform Group. I very much welcome the Bill. I have read the lengthy evidence given to the Joint Committee and its incisive conclusions and pay tribute to its work. I also thank the Libel Reform Campaign for its help, and of course the noble Lord, Lord Lester of Herne Hill, for his extraordinary campaigning work over many years to reform our libel laws. I am in awe of the very hard work and thought that has gone into the drafting of this Defamation Bill.

The Bill centres, quite rightly, on the careful balance that has to be drawn between the right of an individual to a reputation and the preservation of free speech and expression. Britain’s record of free speech has been one of the great sources of inspiration to the world since the Glorious Revolution in the late 17th century stopped the censorship of newspapers and pamphlets in this country. I have just made a history documentary that attempts to find out why the Industrial Revolution took place in Britain rather than in other scientifically advanced European countries. One of the programme’s conclusions was that 18th century Britain boasted a liberty of speech and intellectual discourse that allowed the free exchange of ideas between scientists, technicians and industrialists. The industrial enlightenment, as it is called, allowed the creation of inventions and industrial progress that transformed this country into one of the most powerful and prosperous in the world, and much of its success rested on the power of free speech.

This freedom has been counterbalanced in statute since the passing of the first civil libel laws in 1843, and they have developed through subsequent Acts and changes in common law to protect the reputation of the individual. However, I fear that in recent years those very libel laws and the threat of their use against a wide range of authors from journalists to scientists and NGOs is having an increasingly oppressive effect on free speech. Our present libel laws seem to have tipped the balance too far in favour of the claimant.

I have worked as a journalist on regional newspapers and for our major television networks for most of my career. I have first-hand experience of the threat of libel action limiting my ability to publish all the information that I had gathered in the course of an investigation, but my experiences are limited and on a small scale. In the course of preparing for this speech, I have spoken to journalists and media lawyers in some of our most respected broadcast and newspaper companies. They have told me of many instances when, during the course of investigations into powerful individuals or companies, they have been confronted by an ever-increasing torrent of letters and threats from libel lawyers, often multiple firms of libel lawyers.

At a time when there have been revelations of misconduct—and in some cases criminal misconduct—by journalists, one or two media organisations have been singled out for being well regulated and responsible. One of those is the organisation for which I work, the BBC. It is at the forefront of responsible investigative reporting. Indeed, the work of “Panorama” has brought us important and revealing programmes that hold to account powerful commercial and religious organisations and even a Member of your Lordships’ House. This exercise of free speech seems to be a crucial pillar of our democracy.

However, even at the BBC the chilling effect of our present libel laws is being felt. The corporation’s head of current affairs, Clive Edwards, a long-term colleague of mine, said in a recent speech:

“In my 25 years working in investigative journalism I have to say the current climate is the worst I can remember and it’s getting to the point where I have serious concerns about the future of investigative reporting”.

This is the man who is ultimately responsible for “Panorama” and other investigative programmes.

What is ironic is that one of the defences for responsible journalism built up by the common law is now being used as a stick with which to beat journalists in an attempt to prevent publication: the so-called Reynolds defence. This defence lays down 10 non-exhaustive factors, the use of some but not all of which should be enough to protect fair and responsible journalism, even if the absolute truth of the statement cannot be proved. At the moment, however, prior to publication or broadcast, lawyers representing companies and individuals under investigation are increasingly demanding that journalists, scientists and NGOs should abide by all 10 factors in order to prove that they have acted fairly and responsibly.

During the course of one recent “Panorama” investigation of a controversial organisation, the programme makers received upwards of 1,000 pages of legal letters, at a going rate of £400 a page, to try to influence the content and prevent the programme’s transmission. Every letter required a response by the BBC lawyer that had to be checked by the programme makers and executives. The present libel laws are costing respectable media organisations a fortune in their own lawyers’ fees and are exhausting journalistic talent in refuting these claims. This must be having a detrimental effect on the number of investigations that can be undertaken. It cannot be right that the rich and powerful are using our libel laws to attempt to suppress reporting and are using their lawyers to act like back-street bullies to suppress investigation.

This Bill goes a long way towards improving the situation and redressing the balance towards the protection of free speech. Clause 1, on serious harm, requires a claimant for the first time to prove that there has been serious damage to their reputation or financial situation. I am sure that this obstacle will stop trivial and vexatious cases coming to court. Clauses 2 and 3 create statutory defences for truth and honest opinion, which will help to protect free speech. Clause 6 is a tremendous step forward in protecting scientists and NGOs who want to express their concerns without fear of litigation. It is long overdue and I know is very much welcomed by those communities.

However, there are one or two areas of the Bill that cause me a little concern, and I hope that they will be tested during the passage of this Bill through your Lordships’ House. Clause 4 gives a welcome defence of responsible publication on matters of public interest against libel. Subsection (2)(a) to (i) contains the list of 10 factors that can be used in the defence of responsible journalism. The Explanatory Notes say that these are,

“a non-exhaustive list of matters to which the court may have regard in determining whether a defendant acted responsibly in publishing a statement”.

However, in the light of the way in which libel lawyers are using the present 10 factors of the Reynolds defence as 10 hurdles for journalists to cross, I am not sure that their codification will improve the situation.

I would also ask whether this clause accounts for the changes in the common law that have taken place as a result of the Supreme Court decision in the case of Flood v Times Newspapers Ltd. This now allows for the reasonable belief of the editor or publisher to be taken into account as part of the defence. This clause as it stands seems to be a step backwards. I ask the Minister if he can think of a different way of wording this clause that would both bring it up to date with the Flood judgment and deal with the problems of the 10 factors in the Reynolds defence.

Clause 5 is of utmost importance in that it recognises the overwhelming importance of the internet as an arena for free speech in the 21st century. If this Bill is to be future-proofed, it needs to get this clause right. Social media such as Facebook, Twitter and blogs are an ever more powerful method of disseminating information. Many of the operators and much of the comment take place outside our jurisdiction. Nevertheless, we must try to achieve a balance for claimants, website operators and authors based in this country.

Clause 5 goes a long way towards creating this balance between a defence for website operators against allegations of defamation while also giving claimants redress for defamation. However, I ask the Minister to be aware that the clause could be used by people who want to unmask the identity of an anonymous individual, maybe a whistleblower or someone like that, by using a spurious defamation claim to force a website operator to do so. There needs to be some burden of proof when making the claim that a remark is defamatory before it should be removed.

I also welcome Clause 9 on jurisdiction, which goes a long way to diminishing the threat of libel tourism in the London courts. Although there have been only a limited number of actual cases from abroad in the English courts, these laws have certainly been used as a chilling effect on free speech internationally. As this clause is drafted, it will not help British defendants who are being sued by overseas claimants living outside the EU, and that is a source of concern for me.

On Clause 12, I am anxious that the demand for a summary statement of the judgment will duplicate the jobs of regulatory bodies such as the PCC, the BBC Trust and Ofcom, and I am sure that this issue will also be considered in whatever forum Lord Justice Leveson comes up with for considering complaints against the media. To allow a judge to force a paper or a broadcast to put up an apology on the front page or at the top of the television news seems to me to put the judge in the editor’s seat. I ask the Minister whether that is in the interests of free speech and responsible journalism in this country.

This Bill goes a very long way in addressing the concerns that many of us have for guarding free speech in this country. Any changes that I have suggested must not become a charter for irresponsible journalism or comment. There have been some wonderful and important debates on the Bill in the other place, but I am sure that its passage through your Lordships’ House will bring about the crucial amendments that will ensure that it becomes the once-in-a-lifetime chance to rebalance the freedom of speech and the reputation of the individual in an era of extraordinary change and upheaval in our media.