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Lord Aldington: Perhaps I may detain the Committee for a moment because in the long saga of my libel-factual career recently I have had experience which is relevant to what the noble Lord is trying to cover in his amendment. However, perhaps I should say first that my recent experience in the libel courts was not my first experience of libel. I do not suppose that the Committee is aware that in 1938 I was appointed secretary of the Lord Chancellor's Committee on the Reform of the Law of Defamation--an earlier attempt to do what is being done here--and but for the war I might have been as knowledgeable as the noble Lord, Lord Lester, and but for the war I might never have got into recent troubles with libel action.

Although I am glad to say that it did not result in court action, I had an occasion when a libel was published by an impecunious man with a subsidy from the Scottish Arts Council, which was rather curious, repeating the main Tolstoyan libel. I found it quite impossible to deal with him so I had to deal with the retailers and the newsagents. Immediately I informed them of what was happening, they wanted to know that I was right and that I was not telling them a falsehood. That was communicated to them in the course of a day and they withdrew all of the offending material. That

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happened with the printers and others in the process also. It seems to me that the law as it is is satisfactory to deal with the point which the noble Lord has in mind.

Lord Williams of Mostyn: I redeclare my interest as a practitioner in defamation, acting for plaintiffs and defendants. I believe that the analysis put forward by the noble and learned Lord the Lord Chancellor is correct and that it should not be an expanded defence for a person who, in certain circumstances such as those outlined in Amendment No. 4, knew that he caused the publication of a defamatory statement simply on the basis that he believed, on reasonable grounds, that the statement was justified on the basis of fair comment. After all, fair comment can only depend on the basis of true, proved facts. I believe as a matter of principle that mere belief in the truth of facts which are incapable subsequently of proof ought not to afford a defence.

A further disadvantage and detriment to Amendment No. 4 is that mere belief that the defamatory statement which is known to be defamatory at the time of publication in certain circumstances--mere belief that qualified privilege attached--should not be sufficient, since whether or not the matter is one of qualified privilege would be a matter for ruling by the trial judge. As the noble and learned Lord said, common practice in a commercial undertaking is to take out insurance or contractual indemnity. It seems to me that there is no reason to expand those defences to commercial organisations, some of which are of great financial power and which are faced by plaintiffs who have no recourse to legal aid and which in many instances may be private litigants.

Lord Lester of Herne Hill: I am grateful to the noble and learned Lord the Lord Chancellor for his clear explanation of his objection to the amendment. I am also grateful to other noble Lords who have spoken, including the noble Lord, Lord Wiliams of Mostyn, to whom I should like to refer as "my learned friend" among other things. I suppose that I too should declare my professional interest as I sometimes appear against him in libel actions: I normally appear for the defendant while he appears for the plaintiff.

I have been persuaded by what the noble and learned Lord has said. We share a common aim: to achieve a fair balance in the Bill between the rights of plaintiffs and defendants. I am reassured by the explanation that Clause 1 is designed to give effect to the common law defence of innocent dissemination. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 4 not moved.]

The Lord Chancellor moved Amendment No. 5:

Page 1, line 14, leave out ("subject to") and insert ("which are further explained in").

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The noble and learned Lord said: I have already spoken to Amendments Nos. 5 and 6 with Amendment No. 1. I beg to move.

On Question, amendment agreed to.

The Deputy Chairman of Committees (Lord Burnham): I must advise the Committee that if Amendment No. 6 is agreed to, I cannot call Amendment No. 7.

The Lord Chancellor moved Amendment No. 6:

Page 1, line 21, leave out ("publishes") and insert ("issues material containing").

Lord Kilbracken: As the Deputy Chairman of Committees has just indicated, this amendment, if agreed, would have the effect of pre-empting my Amendment No. 7 which calls for the word "publishes" to be put into the past tense as "published", but Amendment No. 6 would remove the word "publishes" altogether, replacing it with the word "issues".

I would, however, suggest that the past tense "issued" would be preferable here. If there are defamation proceedings in progress, it stands to reason that the statement has already been published or "issued", if the amendment takes effect. Therefore, surely the past tense should be used. The passage would then read, "a person whose business is issuing material to the public ... who issued material containing the statement". I hope that the noble and learned Lord will perhaps consider this.

The Lord Chancellor: I have considered the proposal put forward by the noble Lord, Lord Kilbracken. The real point is that the passage with which we are dealing contains definitions of who is and who is not an "author", "editor" or "publisher". Those definitions apply at all times for the purpose of the clause. It is true that that will happen as far as the past is concerned where the statement has already been issued, but the point is that when giving a definition of who is a "publisher", it is right that that should be done--at least, it is an option--in the tense that we have used. A "publisher" is a person who publishes a statement in the course of that business. It is true that because of that he may incidentally have published a particular statement in the course of his business, but I submit to the Committee that the definitions apply at all times for all the purposes of the clause. For that reason, I have not accepted this suggestion. I have been a little selective in accepting the suggestions of the noble Lord.

Lord Elton: Perhaps I may ask my noble and learned friend why, if that is the case, in line 16 the word is "did" rather than "does", since the rule seems to be the same?

The Lord Chancellor: In line 16 the context is a little different:

    "'author' means the originator of the statement, but does not include a person who did not intend that his statement be published at all".

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That is anterior to the publication of the statement. That he did not have that intention must precede publication of the statement. Therefore, there is a distinction between the situation in line 16 and the other positions to which the noble Lord, Lord Kilbracken, has referred.

Lord Kilbracken: Clause 1(5) slips into the past tense again. I do not know why we slip from the present into the past. I believe that there is merit in consistency.

The Lord Chancellor: The same point applies. I believe that if the noble Lord looks at it closely he will see it is rigorously consistent. I have re-examined it in the light of the noble Lord's suggestions and concluded that the ones I have accepted are rightly accepted. We have not accepted those where, on the basis of rigorous consistency, we believe we have done it correctly.

On Question, amendment agreed to.

[Amendment No. 7 not moved.]

Lord Kilbracken moved Amendment No. 8:

Page 1, line 23, leave out ("is") and insert ("was").

The noble Lord said: In moving Amendment No. 8, I should like to speak also to Amendments Nos. 13, 14, 16, 18 and 19. Here, one is not dealing with a definition, although much the same matter arises as in Amendment No. 7. If defamation proceedings are under way, it is clear that the printing, producing, etc., of the statement will already have taken place. Therefore, in the past tense, the person was or was not (as the case may be) involved. Surely, "is" should become "was" at the end of line 23. The same consideration applies to the other amendments that I have mentioned.

The Lord Chancellor: The point is the same, and I cannot elaborate it. Subsection (3) is in the nature of an exclusion from the definition which applies at all times for all the purposes of the clause. It is perfectly correct as it is. I do not say that the alternative would not be possible. However, if we are to be consistent I believe that this is the right way to do it.

Lord Kilbracken: In the absence of any support, I accept what the noble and learned Lord has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendments Nos. 9 to 12:

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