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Lord Williams of Mostyn: There is a mischief to be dealt with here, but it seems to me that the amendment is not the remedy for that mischief. If what the noble Lord, Lord Lester, called "prior restraint" is sought by way of injunction, no court gives an injunction if justification is the defence. He mentioned the late Robert Maxwell, for whom I have to say I acted and against whom I acted. But he was resisted. It is quite a roll call of honour to see who resisted him. He was resisted by Tom Bower and Sir Andrew Lloyd Webber who owned Aurum Press. He was resisted by "Panorama" which published its expose of his misdeeds shortly before his death.

If one is trying to make the law of defamation simple, there is a danger that one will go the American route. That is not an exaggeration. Lawyers in the United States act on contingencies; many of them are now suing tobacco companies and it will not amaze your Lordships to know that the tobacco companies are now suing the lawyers acting on contingencies for improper suits. Now the lawyers who are sued by the tobacco companies for improper suits are themselves suing the tobacco companies on the basis of interference with their right to practise law. I am not sure that I can usefully say anything further in opposition to the form of the amendment, although I fully recognise that there is a mischief.

8.45 p.m.

The Lord Chancellor: I also recognise the possibility of a mischief but, as the noble Lord, Lord Williams, said, it is a mischief which can be resisted. I had the experience of defending someone unsuccessfully against an action on the basis of unwarranted threats in a patent action based on the design of cranes. The circumstances in which the provision exists in the patent legislation is a particular one. It is related to a right in something, whether as a proprietor or otherwise. The person who makes the threats is the person who has a right in the patent in question. So what the person is trying to do is unlawfully to extend the scope of his monopoly.

The section is limited to threats to bring proceedings, whereas the new clause goes somewhat further and includes the phrase,


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For much the same reasons as were given by the noble Lord, Lord Williams of Mostyn, at the moment I do not feel able to go along with the new clause. It may be a matter for further consideration as to whether some other remedy may be found for the problem. But, as was pointed out, such things can be resisted. Perhaps that is the best defence to the mischief.

Lord Lester of Herne Hill: I am most grateful. I appreciate that where the defendant indicates that he intends to justify, no interlocutory injunction will be granted against him. The problem arises where the defendant is not able to prove the truth of the defamatory publication. It is in that situation where all or most of the knowledge is in the plaintiff and not the defendant that the problem tends to arise.

I am glad that all noble Lords who have spoken recognise that there is a problem. I am at the disadvantage that the architect of the amendment is not present. I am sure that he and I will carefully consider what has been said, to see whether we need to return to the matter. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 [Ruling on the meaning of a statement]:

Lord Williams of Mostyn moved Amendment No. 32:


Leave out Clause 7 and insert the following new Clause--

Ruling on the meaning of a statement

(" . In proceedings for defamation, the court shall not be asked to rule whether words are arguably capable, as opposed to capable of bearing a particular meaning or meanings attributed to them.").

The noble Lord said: The amendment relates to the difference between the phrase in Clause 7, the ruling as to whether a statement is arguably capable of bearing a particular meaning, and the proposal which I put forward, which concerns the defamatory words.

The question was raised by the Law Society, to whom I am grateful, as to whether one ought to concentrate on whether the words are arguably capable of bearing a certain meaning. If one deals with a statement, one is looking at perhaps the totality of the statement rather than the words in question. I beg to move.

The Lord Chancellor: The words were used in the version of the Bill which was published for consultation. We thought that we had made an improvement by substituting the word "statement" because that which has been published and whose meaning is in issue may not have taken the form of words or certainly not exclusively words. A cartoonist, for example, may be skilled in conveying a meaning without using any caption. To close that loophole, we have substituted the word "statement" which has an extended definition in Clause 17 and would cover any method by which a meaning could be conveyed. Accordingly, we believe that this is an improvement on the clause put out for consultation.

As will be recognised, we shall have to make a corresponding amendment to the rules of court under which the parties would make applications for rulings as to what the published material was actually, as

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opposed to arguably, capable of meaning. Like the earlier draft of Clause 7, the rules refer to the meaning of "words". It would be desirable to alter these to make the provision of the rules more in keeping with what is in the Bill.

I hope in the light of that explanation, the noble Lord will feel that in moving to what is in the Bill, we have improved on what was put out for consultation in the light of the responses to consultation.

Lord Williams of Mostyn: I am grateful for that explanation, which I accept. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 agreed to.

Lord Lester of Herne Hill moved Amendment No. 33:


After Clause 7, insert the following new clause--

Burden of proof

(" . In an action for defamation, the burden shall be upon the plaintiff to prove that the defamatory words of which he complains are false.").

The noble Lord said: I recognise that this is a bold amendment. I hope the Committee will bear with me if I take a little longer to explain it than I would any other subject. In moving it, I am greatly indebted to Mr. Desmond Browne QC, who, with his very great experience of the law of libel, told me that from his first week in pupillage he regarded this aspect of the law of libel as being the most unfair aspect of it.

Unlike the tort of malicious falsehood, the common law action for defamation is not an action on the case--that is, it is not dependent on proof of damage. It is derived from the common law crime of libel, whose essence was the tendency of all libels (whether defamatory, obscene, blasphemous or seditious) to create a breach of the peace.

Because the Star Chamber and its successor courts were concerned with the preservation of the peace, at common law truth was not a defence to criminal libel. Indeed, it was literally the law that the greater the truth, the greater the libel. The Star Chamber stated:


    "For libelling against a common strumpet is as great an offence as against an honest woman and perhaps more dangerous to the breach of the peace, for, as the woman said, she would never grieve to be told of her red nose if she had not one indeed".

Section 6 of the Libel Act 1843 (Lord Campbell's Act) mitigated the rigour of the common law by providing a defence of justification, so long as, in addition, the defendant could prove that,


    "it was for the public benefit that the matters charged should be published".
That is the source of the present defence of justification in civil proceedings, though there is no requirement for proof of public benefit. However, it explains why historically the burden of proof is upon the defendant.

A rule as to the burden of proof derived from the Star Chamber's concern with preserving peace is hardly consistent with modern day notions of freedom of speech. The public interest if often well served by

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the publication of defamatory words, for example, where a newspaper exposes a charlatan member of a profession or a dishonest businessman. So why should the newspaper have to assume the burden of proof? The question is seldom posed, and never answered. The leading textbooks merely state the rule as to where the burden of proof lies, without attempting any explanation of the rationale. Nor do they refer to authorities for the rule.

The existence of the rule has important practical consequences for the defence of libel actions. Villains can (and frequently do) recover substantial damages in libel without having to show that what has been published about them is false, or (in the absence of a plea of justification) without having to give discovery of the material documents. Libel counsel need to consider their position very carefully before pleading justification. They must have evidence to support the plea, or reasonable grounds for supposing that sufficient evidence to prove the allegations will be available at the trial.

The way in which the burden of proof on justification chills free speech was realistically described by the noble and learned Lord, Lord Keith of Kinkel, in Derbyshire C.C. v. Times Newspapers, in which I acted for the defendant newspaper, in this way. The noble and learned Lord said:


    "Quite often the facts which would justify a defamatory publication are known to be true, but admissible evidence capable of proving those facts is not available. This may prevent the publication of matters which it is very desirable to make public".

A leading academic lawyer, Professor Eric Barendt, has argued in his article in Public Law that if the remarks of the noble and learned Lord, Lord Keith, are taken seriously, as they must be,


    "they provide a powerful argument for reversing the presumption of falsity in defamation actions, at least in actions brought by public officials and politicians".
There is no reason why the reversal of the presumption should be limited in that way. Public officials and public figures are not the only classes of person who may require exposure in the public interest.

As Barendt says, only two arguments have ever been given for the present incidence of the burden of proof. The first is the deterrent argument expressed by the Faulks Committee; namely, that the rule,


    "tends to inculcate a spirit of caution in publishers of potentially actionable statements which we regard as salutary".
That argument collapses if the approach of the noble and learned Lord, Lord Keith, based on the chilling effect, is accepted. The two arguments are plainly not consistent one with the other. Faulks echoes in that respect the Star Chamber. The approach of the noble and learned Lord, Lord Keith, for the Law Lords, reflects the strong commitment to free speech, for example, in Article 10 of the European Convention on Human Rights and in the common law.

The second argument used is that the plaintiff cannot be expected to prove a negative. Professor Barendt rightly describes this as, "surely only a debating point". Plaintiffs in actions for malicious falsehood have always

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had to discharge the burden of showing that the statements sued upon are false, and in practice do so without difficulty.

In its 1991 report on the civil law of defamation, the Irish Law Reform Commission, chaired I believe by Mr. Justice Hederman, examined the presumption of falsity and concluded, by a majority, that the onus of proof should be on the plaintiff to establish that the words complained of are true.

The majority of the Irish Law Commission referred to the chilling effect of libel, and stated that:


    "The law of defamation should protect the citizen from defamatory statements which are untrue, not those which are true ... The approach of the law should be that, while there is no public interest in the publication of false statements, there is equally no public interest in penalising the authors of true statements, particularly when they relate to matters of public concern".
The minority contended that to abolish the existing presumption would be to create an unfair presumption that anything said of the plaintiff, no matter how damaging, was true.

That argument by the minority is, I suggest, based on a misconception. The present amendment would result in there being no presumptions in this area of the law: no presumption that the defendant had wronged the plaintiff by the publication of an untrue defamatory statement, and equally no presumption that what the defendant said about the plaintiff was true. The plaintiff would simply be required to prove the commission of the alleged wrong by the defendant in accordance with the general principles of the civil law of tort.

The time has come to throw off the shackles of the Star Chamber and to adjust the law of defamation to contemporary notions of free speech. The noble and learned Lord, Lord Keith, and his colleagues pointed the way in the Derbyshire case with the acceptance of the concept of the chilling effect of the civil tort of defamation as it stands.

I apologise for taking so long. I beg to move.


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