The Opposition also welcome clause 9, which seeks to deter those eyeing London as a location to pursue libel actions that they would not dream of pursuing in other jurisdictions. In recent years, our courts have clamped down on libel tourism, and I hope the measure, which gives courts more power to decide whether a case can be heard, will help. We need to reduce the potential for trivial claims and address the perception that English courts are an attractive forum for libel claimants with
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little connection to this country. We welcome steps to tighten the test to be applied by the courts in relation to actions brought against people who are not domiciled in the UK. I am, however, concerned about cases brought by EU citizens or in a state that is, for the time being, a contracting party to the Lugano convention.
Ian Paisley: This is a minor point about libel tourism, but if the law does not apply to the jurisdiction of Northern Ireland, those who would be precluded from taking an action and seeking a remedy in England could do so in Northern Ireland. Therefore, there needs to be consultation across the jurisdictions of the UK to get this right and tie it up completely.
It is not clear either whether high-profile cases, such as that of Dr Peter Wilmshurst, to which the Chair of the Select Committee on Culture, Media and Sport referred, or that of Rachel Ehrenfeld, would have been prevented if clause 9 had been in place at the time. If the Justice Secretary or the Minister winding up the debate cannot address this issue, it will need to be looked at further in Committee.
Clause 11 removes the presumption in favour of jury trials in defamation cases. Although this reversal will, we hope, help to reduce costs and improve clarity, there is a danger in restricting jury trials, particularly where the key issue is who is telling the truth. However, the Bill still gives the court the discretion to order a jury trial where it considers that to be appropriate, which is an important safeguard. I note the comments made by the right hon. Member for Haltemprice and Howden (Mr Davis), and we expect that the Committee might want to explore the criteria for the judge to consider when deciding whether a jury trial should be ordered.
Mr Lammy: Although much has been said about the cost of jury trial, does my right hon. Friend agree that we would not want to give an indication in the House that this is a slippery slope or that we ought to start thinking about cutting jury trials in criminal cases? The matter was debated at length in the Joint Committee, and there are circumstances where jury trials should remain in defamation cases.
Sadiq Khan: I thank my right hon. Friend for his intervention and for his contribution to the Joint Committee. Of course, he is right, and the Justice Secretary will have reassured the House with his comments about criminal cases. My right hon. Friend will be aware that there are still jury trials in civil cases involving what are known as constitutional torts—malicious prosecution and false imprisonment. The provisions in clause 11 still allow a trial by one’s peers in appropriate cases. What the Committee should look into is the comments of the right hon. Member for Haltemprice and Howden about the criteria that one would expect a judge to apply. The key thing is that the presumption of a jury trial has now been removed, which will lead to a reduction in costs and, one hopes, less of a chilling effect than where the “threat” of a jury trial is hanging over a defendant, with all the additional cost that could lead to.
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Sir Peter Bottomley: On clause 11, if the judge is making the decision alone, and if the case is determined by meaning and there is a range of meaning, does the right hon. Gentleman agree that it is far better that the judge should say to the parties at an early stage, even before the case gets to court, that where the person who has published has used a word with a hard meaning and a soft meaning—for example, in the case of the Hutton report, “sexed up”—they have an opportunity to say, “I actually meant the soft meaning, not the hard meaning,” and thereby have the whole case disposed of, rather than having it fought out, even in front of a judge alone?
Sadiq Khan: For the second time the hon. Gentleman has made an intervention about a point that I am coming to. I shall come to the procedural pre-action work that I think is missing from the Bill and which the Committee should look into.
Let me move on to concerns about access to justice. The Justice Secretary will not be surprised to hear me say that under this Government we have seen access to justice seriously curtailed. The recently passed Legal Aid, Sentencing and Punishment of Offenders Act 2012 will have an impact on defamation cases. Claimants in defamation actions will no longer be able to insure themselves against costs, and even if they are successful, they may have to pay some or all of their damages in lawyers’ fees. Although some other claimants—for example, in personal injury cases—will be protected against costs, no such protection is in place in libel cases. It is not clear whether high profile cases brought by individual members of the public—such as that brought by the McCann family against tabloid newspapers—would now happen. We would like to see similar protection for such cases as that given to personal injury cases, rather than simply limiting defamation cases to the most wealthy.
The Justice Secretary will be aware of the campaign co-ordinated by Hacked Off and the Libel Reform Campaign, which included a letter that the McCanns recently sent to the Prime Minister expressing their concern about access to justice. I want to quote part of that letter, which is very powerful, and which I hope will be considered by the Committee during the passage of the Bill.
“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 libel clients…In future, ordinary defendants, like Peter Wilmshurst, Hardeep Singh and Heather Brooke would also be unable to get support for legal action against them often by large institutions with deep pockets trying to silence them. That will be bad news for science and medicine, for free religious debate and for transparency in the public interest...And victims of the tabloid press like Christopher Jeffries, Bob and Sally Dowler, Kate and Gerry McCann, and Robert Murat will not be able to take legal action against the tabloids for hacking into their phones, for false accusations and for gross misrepresentation”.
On that subject, my colleague Lord Prescott made it clear during the progress of the Legal Aid, Sentencing and Punishment of Offenders Bill in the other place that his successful defamation claims against newspapers would not have been possible if the Government’s proposals on civil litigation had come into force. In response to Lord Prescott’s remarks, the Minister, Lord McNally, assured the other place:
“I cannot imagine that the kind of issues that the noble Lord, Lord Prescott, has raised tonight will not be dealt with fully in that Defamation Bill.”—[Official Report, House of Lords, 27 March 2012; Vol. 736, c. 1332.]
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Guy Opperman (Hexham) (Con): Does the shadow Minister agree that, as a result of Lord Leveson’s review into press intrusion and the ability of the man in the street to get access to justice in libel, the issues that he is now raising could be readdressed?
Sadiq Khan: I thank the hon. Gentleman for his intervention; I know that he practises in this area of the law. In answer to his question: there is no guarantee that that will happen. This Defamation Bill gives us an opportunity to ensure that access to justice remains a possibility for all our citizens, and we ought to take that opportunity in the hope that another judge in another inquiry might come up with a solution. Let us bear in mind that there were two defamation Acts in the last century, and just one in the century before that. It is possible that there will not be another during our parliamentary careers, so it is appropriate for us to take this opportunity to ensure that this Bill is as perfect as possible.
Paul Farrelly (Newcastle-under-Lyme) (Lab): I support the thrust of the Bill, but does my right hon. Friend agree that there is a danger in carrying out piecemeal reform, and in saying that certain tasks will be dealt with by Leveson and others by the Civil Procedure Rule Committee, because, as he rightly says, there is no guarantee that they will be dealt with?
Sadiq Khan: Absolutely. Before we reached this stage, a huge amount of pre-legislative work was carried out, by the Joint Committee and in relation to the draft Bill. It would be a wasted opportunity if that work were not taken up during the Bill’s Committee stage or, failing that, when it reaches the other place.
I have referred to the huge work done by the Joint Committee. We welcome some of the reforms suggested by the Government, but the Committee argued that the reduction in the extremely high cost of defamation proceedings was essential to limiting the chilling effect and making access to legal redress a possibility for the ordinary citizen. It proposed an approach based on strict enforcement of the pre-action protocol governing defamation proceedings, which has three elements. The first involves a presumption that mediation or neutral evaluation will be the norm. The second involves voluntary arbitration, and, if the claim has not been settled, the third element would involve court determination of key issues using improved procedures. Once again, the Bill is silent on this matter. I remind the Government that Desmond Brown QC, a leading libel barrister, said recently that
“it is no good amending the substantive law unless serious attention is paid to costs and judicial case management”.
I reiterate that we welcome moves to drag our defamation laws into the modern age, but that we, on this side of the House, believe that more can and should be done to make the Bill fit for the challenges ahead. We will be looking for greater clarification in a number of key areas, and for new clauses to address other omissions, some of which I have touched on. The Committee stage provides us with the opportunity to improve on and refine the Bill.
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Given that there have been only three libel Acts since 1852, we need to grasp the nettle on this occasion as there may not be another chance to update our defamation laws for generations to come. Labour Members look forward to doing our bit to improve this Bill, and hope that the cross-party and collegiate manner in which libel reform has been pursued over the last four years will continue and move forward with the passage of the Bill.
Some in public life accept the consequences of engaging with social media. For many of us in this House, our job and our way of life necessitate engagement with such media, but we are, I suppose, big, bad and ugly enough to be able to deal with the consequences.
It was interesting that the hon. Member for Liverpool, Walton (Steve Rotheram) highlighted issues concerning children and deceased individuals, and the fact that an estate cannot have any redress in internet trials of children and young people. I have experienced a couple of cases myself. As the hon. Gentleman also said, there are already laws, but there are two types of internet trolls. There are those who know very well indeed how to negate those laws and how to dodge them so that they do not get prosecuted. They troll and post on the internet in a way that ensures they are protected from prosecution. I know this from people who have contacted me and from two police investigations that I instigated. There are some very clever people out there. There are also people—otherwise sensible, learned and normal people—who, when they sit in front of a computer and veil themselves in a cloak of anonymity, can turn into a troll or almost some kind of monster. These are the people who occasionally get caught and are occasionally prosecuted, but it does not happen very often.
Opening my front door one morning, I was surprised to find three Bedfordshire police officers lying on their backs with their faces under my car. This was because a student from Oxford had posted on the internet that he was going to bomb it. The Bedfordshire police were assiduous, but at the point of prosecution I decided not to go ahead. I considered the fact that a 20-year-old sitting in front of a computer who suddenly made a spontaneous comment possibly did not deserve a lifetime criminal record for a foolish act. I thought that his having been contacted by the police was probably enough of a deterrent to stop him doing such a thing again. Given that this was a student from Oxford, one imagines that he was an intelligent individual.
In another case, a man who I believe worked in the civil service whose wife was pregnant posted on the internet that he would like to lock me in a car, set it on fire and watch my flesh melt from my bones. I thought that was pretty graphic, but again I chose not to prosecute, as this was a family man with a good career whose wife was about to have a baby and I thought that the police’s intervention might be enough to prevent him from doing something similar again. As a Member of Parliament,
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I accept that when I speak about various campaigns and issues, it may elicit this kind of response from people who do not agree with my point of view.
Other people are not in the public eye and do not expect to receive the condemnation that we receive for the positions we take. Some people spend their life building a reputation—it might not be a major one, just one in their field, perhaps that of a teacher, a health worker or someone working commercially—based on their integrity, expertise and ability. In building that reputation, they also build their own persona and status, and identify themselves through whom they have become.
When a newspaper prints a story about an individual, or there is an altercation between two individuals, all that those people identify themselves with—all that they believe themselves to be—can be destroyed by one posting by an internet troll. For some people that is incredibly serious, and carries psychological consequences. Their identities may be challenged to the extent that they doubt that they are who they thought they were. There is a famous example of, I believe, a European Prime Minister who suffered and committed suicide, because the person he had built his life up to be had been suddenly taken away from him by what people had written on the internet. There are many consequences about which we never hear, so we sometimes do not know what people have to deal with on a daily basis.
Let me give another example, from my own experience. I was on a live television show this morning. The first question that the presenter asked me was, “Is it true that your ex-husband gave you an ultimatum—that if you did not give up politics, he would leave you?” My ex-husband is quite poorly. Anyway, he would not have dared to give me such an ultimatum, and the fact is that he did not. I was asked the question because of the lie that someone had posted on the internet seven years ago. My ex-husband is actually quite ill, but I could not filter the question on live television. That is one of the consequences of indiscriminate postings, comments left on websites that can be regurgitated years later.
Steve Rotheram: The hon. Lady has raised a very important point. There are people I, being a scouser, describe as idiots, who get involved in this sort of activity thinking that it is a bit of banter, which it is not. However, there are also people who are professional trollers. There is something called The Trolling Academy, which gives advice, specifically “Target MPs”. I have been targeted, and I think that others have as well. Someone said on Twitter that they wished I had AIDS, for instance. As the hon. Lady says, it is fine for those of us with thick skins, but there are ordinary, innocent people out there whose lives are detrimentally affected by trolls. That is why I suggested that clause 5 might need some additional work.
As always, the hon. Gentleman has made an excellent point. I have discovered that Twitter has a block button. All that you need to do is block someone, and I do it all the time. A parody account called Blocked By Nadine has been set up on Twitter because I have blocked so many people. However, I think that most social media networking sites are very responsible. They respond to complaints and work with the police. Although clause 5 is welcome, I think that there is a degree of responsibility among the more well-known and well-used sites, where people are very
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much aware of the professional trolling that the hon. Gentleman has mentioned, and of the fact that MPs are being targeted. Besides, there is always the block button: we do not have to see what anyone has said if we do not want to.
One of the big issues is how clause 5 will protect young people from the cyber-bullying which I am sure we have all heard about from parents in our constituencies. Young people are bullied on the internet—on Facebook, and on other social networking sites. That was always going to be a consequence of the establishment of social media. As was pointed out by the right hon. Member for Tooting (Sadiq Khan), technology of that kind has moved way ahead of UK law. It has left the law wanting, because it is unable to protect some of the most vulnerable people, particularly the young. The right hon. Gentleman also said that we might not have a chance to debate the matter again for another generation. I hope that that is not true, because technology will continue to move apace. In fact, I almost feel that this legislation should be returned to the House annually, because technology will continue to develop and new problems and challenges will regularly arise.
As I know from constituency cases, young people without the ability to deal with insults, defamation and the rubbishing of their young and precious reputations on the internet are far more vulnerable than any adult. When someone posts a message on the internet saying that a certain young girl is fat and ugly and so forth, it can take the victim a lifetime to get over those words. They are often not words that somebody would say to another person without hiding behind the cloak of anonymity, which is why they use an anonymous persona on the internet. In some cases they might be known, however, but what is said on the internet is like sending an e-mail, which is different from saying the words directly to the other person; it is much easier to type something and press “send”, and then it is gone, but what has been written can have huge consequences.
As we know, in some areas of the country there have been suicide pacts and groups of suicides among teenagers, and social networking and social media have played a part in all those cases. It is probably best not to go into the details, however. We must put in place a mechanism by which social networking sites and websites can be contacted so that they respond to such cases quickly.
I rose to speak in order to highlight some of the problems that exist, based on my own experience and the experiences of some of my constituents, and to explain why I believe clause 5 is important. This Bill is now before the House, but we must not wait another 10 years or another generation before we look at this matter again. I ask the Secretary of State to make a commitment that it will be looked at more regularly, as the internet is constantly evolving and developing and young people and the vulnerable must be given protection.
Helen Goodman (Bishop Auckland) (Lab):
It is a pleasure to follow the hon. Member for Mid Bedfordshire (Nadine Dorries), who has spoken a lot of common sense this afternoon. I recognise her descriptions of constituency cases. A constituent of mine who was a
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victim of domestic violence has been defamed in a newspaper, the family of a murder victim was trolled by the offender’s family, and there is also the case of the family of a soldier who died in Afghanistan, about whom remarks were made which, had he lived, would have been defamatory. All these cases are very alarming and serious.
The police are not up to speed on such internet crimes. When we go to the police with such issues, their mentality is such that they in effect say, “Well, it’s on the internet, so it can’t be too serious. Don’t worry about it.” As the hon. Lady pointed out, however, such cases are very serious.
The previous Labour Government initiated post-legislative scrutiny. I do not know whether the coalition Government are continuing with it, but it provides an opportunity for checking and reviewing the effectiveness of legislation.
While at the other end of town Lord Leveson is examining the practices and ethics of the press and is mainly focused on its misbehaviour, it is a pleasure to have before us a Bill which will perhaps offer a more positive agenda and support good quality journalism.
Change is undoubtedly needed, which is why the manifestos of all three main parties contained commitments on libel reform. There are four glaring problems. The first is access to justice, which is clearly lacking for most people. I do not know why, but libel in the UK is much more expensive than it is in other countries. Secondly, there is the problem of libel tourism, when cases that have nothing to do with British citizens are brought through the English courts. Thirdly, there is the chilling impact on scientific debate when legitimate criticism, especially of large companies and their products, is sometimes suppressed. Other Members have referred to the cases of Simon Singh and Peter Wilmshurst. Finally, the law needs to be brought up to date to address the new technologies and the internet.
I welcome the Government’s intentions in bringing forward the Bill, but I have some doubts about whether it goes far enough. I hope that the Bill Committee will consider making changes so that we do not miss the opportunities that the Bill presents. Ministers need to make it clear what they mean by “serious harm”: it must relate to reputation and not just to material harm. I agree that the threat of bringing libel proceedings as part of reputation management must end, but we need greater clarity from Ministers than we have had so far.
The Bill introduces a defence of “Responsible publication on matter of public interest”, in clause 4. That is an improvement and should strengthen journalists’ freedom to undertake serious investigations. Of course, everyone in the House favours a free press and wants it to fulfil one of its key roles in an open society of uncovering corruption and wrongdoing. Quite rightly, this defence should facilitate that. I am sympathetic to Ministers’ unwillingness to define “public interest” but I hope that they will be able to give some examples. For example, do they share the definitions in the current Press Complaints Commission code and Crown Prosecution Service guidance? It would be helpful to acknowledge that public interest covers both substance—the importance of the issue being debated—and process: how thoroughly journalists have checked the story they are publishing. What is not quite clear is why and in what respects the Bill has departed from the Reynolds defence. It does not match
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the Reynolds defence exactly and it would be helpful if Ministers explained why they have chosen to change the Reynolds defence in a number of respects.
Clause 5, “Operators of websites”, looks too weak in the sense that by abandoning the publishing role that exists for parallel situations in other media—for example with the letters column of a newspaper or the broadcasting of a TV chat show—clause 5(2) makes things very hard for a person who is defamed on the web because they would have to track down the originator even if they had been given the address by the website’s operator. That seems rather unfair. Surely it should be a basic principle, which we should establish across the board, that the net is not outside the law and cannot be, like the forest in the 14th century and the time of Robin Hood, a place of pure anarchy. The rights and responsibilities that we have developed in the real world should be reproduced in the virtual world. In some respects the net is different in that it is large, vast and global, so we cannot simply have the same rules to secure the same outcomes, but unless we tackle websites rather more effectively than the Bill appears to, I fear that a massive loophole will remain. One problem is that the measures produce unfair competition for newspapers, which are bound by more restrictive and tighter definitions.
Zac Goldsmith: Does the hon. Lady agree that there has to be a sense of realism in relation to the web? If every defamatory comment posted on Twitter, Facebook and so on was followed up with some kind of state action we would need a new Government just to police the web. That would be structurally and practically impossible. There has to be a sense that if a lonely Twitter tweeter with 15 followers were to make an insulting comment, that could not be anything like as serious as its being made by someone with 1 million followers. There has to be recognition of the fan base or platform at which insults are hurled.
Zac Goldsmith: Apologies. Very quickly—this goes back to the point made in the previous speech. When a law is broken and someone is threatening someone’s life, for example, it is incumbent on those who receive such threats to pursue the matter to the maximum possible penalty regardless of whether they are 16, 20 or 25. If they do not, people will continue to be able to inflict that threat and pose real dangers to other people. Even—
Madam Deputy Speaker: Order. That was a very long intervention, much as it might have been appreciated by hon. Members. If the hon. Gentleman wants to make a longer intervention—it is called a speech—he can try to catch my eye.
The solution of notice and takedown proposed by the Joint Committee on the draft Bill is a good, pragmatic one, recognising that although we cannot legislate for the net in exactly the same way as we do for other areas,
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we can reproduce the rights and responsibilities in the real world. I must say to Ministers, however, that given that the Joint Committee report was produced last October, they ought by now to have got parliamentary counsel to have drafted the regulations, so that we could see them and be confident that they were right.
Clause 10 is extremely welcome. We should probably call it the Private Eye clause. For years, high street newsagents refused to stock the Eye because they thought they might be sued over its potentially litigious content. The clause is welcome, therefore, given that we are all deeply dependent on the Eye for keeping up to speed with what is going on.
As is often the case with this Government, however, the problem is not so much with what is in the Bill as with what is not in it. There is nothing to tackle the lack of access to justice for ordinary people, whether as claimants or defendants. That inequity was demonstrated in the case of Trafigura, which damaged the environment in Ivory Coast, and in the case of Barclays and Freshfields concerning tax avoidance. Those large corporations were able to hide and threaten The Guardian, which was trying to publish stories about them. I hope that my hon. Friend the Member for Newcastle-under-Lyme (Paul Farrelly) will say more about those cases. When I am told, not by the editor of The Guardian but by the editor of another quality national newspaper, that his major, No. 1 problem is oligarchs threatening to sue his newspaper when he tries to report on them, I know we have a problem that needs addressing. The Libel Reform campaign, which campaigned for the Bill, has called for it to include a clause requiring non-natural persons to show actual or likely financial harm. The campaign is right. Such a clause should be inserted and would be a helpful strengthening of the Bill.
As my right hon. Friend the Member for Tooting (Sadiq Khan) said, the Government have done nothing to right the wrong of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 through their failure properly to implement the Jackson proposals on no win, no fee cases. The McCann and Dowler families would not have been able to take the newspapers to court under the laws that the Government have implemented. That is a complete disgrace. We want a justice system available to all and a free and responsible press, but we will not achieve the latter without the former.
Sadiq Khan: My hon. Friend is talking about access to justice. Does she accept that if the Government took on board the Joint Committee’s recommendation to have alternative dispute resolution much earlier, it would reduce costs and improve access to justice, notwithstanding her concerns about the changes in the Legal Aid, Sentencing and Punishment of Offenders Act?
Helen Goodman: My right hon. Friend is absolutely right about that. A further thing that we need to tease out is whether as much as possible has been done in the Bill to bring down the costs of libel cases. I very much hope that the Minister will be able to respond positively—if not this afternoon, in Committee.
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of this House that right hon. and hon. Members declare an interest at the beginning of their speech, but today I will do the opposite and state, for the record, that I was not the David Morris who was co-defendant in the “McLibel” case. It remains the longest running English civil law case.
It has been said that the law of defamation has a chilling effect on freedom of speech. Trials can be complicated, expensive and, particularly in the “McLibel” case, lengthy. Perhaps the exclusion of jury trials will assist, as facts can often be technical and generally complicated. Legal costs often run into tens of thousands of pounds, and it is not uncommon for those defending their reputation to declare bankruptcy as a result of the costs. In my view, that is not fair.
As this House is aware, defamation actions originate before the High Court. Some right hon. and hon. Members have argued that, certainly in the case of privacy actions, more accessible and cheaper actions should be available in the lower courts, and I can see no reason why the same should not apply to defamation. Perhaps there could be a fast track within the county court that allows for apologies to be issued and low value damages to be awarded.
When I read the Bill, I was pleased to find that my right hon. and learned Friend the Lord Chancellor had incorporated a provision in respect of serious harm. Our libel laws have been described as “claimant friendly”; the burden of proof currently lies with the defendant, which, of course, is the exact opposite of the situation applying to any other legal action. I hope this change will redress the balance, eradicating unnecessary litigation.
“in September 2010 the Daily Telegraph reported that libel challenges by actors and celebrities in the London courts had trebled over the past year.”
London is often described as the “libel capital” of the world. Libel tourism, at its simplest level, is when foreign citizens conduct actions against foreign citizens in British courts. One notable exception in this regard is what happened in the United States of America in August 2010, when President Obama signed an agreement that protects US citizens from British libel decisions. Libel tourism perhaps occurs as a result of the extraordinarily high damages that are often awarded, and I would like assurances from the Minister that he will take all possible steps to eradicate libel tourism.
Many of us have watched with great interest the development of the case law in relation to the internet. Right hon. and hon. Members will be aware that the social network website Facebook is within the scope of this jurisdiction as a result of the Applause Store case, yet Twitter is not. Indeed, according to the Twitter statement on the website of the Leveson inquiry, Twitter
“does not respond to complaints regarding the content of the Twitter service”.
That appears to directly contradict the case law established in both the Demon Internet and the Applause Store cases, although, as previously stated, there is no case law that brings Twitter within the jurisdiction of our courts.
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Some would argue that this is a victory for freedom of speech, whereas others would say that one cannot fit defamatory statements within Twitter’s 147 characters. We must balance the protection of reputation with the ability to have free speech, while keeping in mind that we do not wish to encourage so called “libel tourism”.
It is not just libel tourism that is increasing. In 2009-10, 30 celebrities brought libel claims, including Peter Andre, Sir Elton John and David Beckham, compared with a figure of 11 in 2008-09. I was pleased to read in clause 4 that what has become known as the “Reynolds defence” has been incorporated into the Bill; this is a very useful defence that encourages investigative-style journalism. It is an important part of our democratic process that politicians and those who hold public office are held to account—a point that Greg Lambert at my local newspaper, Morecambe’s The Visitor, appears to have taken to heart.
There has been much debate about the Duke of Brunswick rule. The rule suggests that re-publication of a defamatory statement is also defamatory. I accept that that rule, decided more than 150 years ago, is out of date, but journalists should be encouraged to check their sources for accuracy rather than allowing the reproduction of inaccurate statements or photographs that can often have an effect on their victims’ personal lives that outweighs the price to the public of a cheap tabloid paper. Perhaps that is why we do not see the serial sackings of editors when they are found out for their disreputable practices.
Ian Paisley (North Antrim) (DUP): I must say at the outset that I agree with the Secretary of State’s point that introducing law fit for the 21st century in this subject area is not straightforward. I think we would all say a hearty “Hear, hear” to that. It is not straightforward and it is right that this House should start to tackle it. I also believe that we should ensure that our defamation laws are not subject to abuse by those who bring forward trivial matters to block proper freedom of speech and freedom of expression on very important issues.
Like some Members, however, I am concerned by clause 1, which introduces the serious harm test. We should recognise that no matter how we cut this, a serious harm test will raise the bar for bringing a claim so that any case involving serious harm to the reputation of an individual can be brought only once serious harm is clearly established. That raises the bar for many people.
I asked an eminent lawyer in Belfast about that particular issue. Paul Tweed is the author of a seminal book called “Privacy and Libel Law” and practises in three jurisdictions. I asked him about that specific point and his answer was quite chilling. He said that
“anything short of being called an axe-murderer probably falls short of the requirement”.
We should therefore seriously consider the serious harm test, because it will have significant consequences not for people of reputation but for ordinary people who will have to consider very carefully whether to invoke the law to protect themselves.
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“There are laws to protect the freedom of the press’s speech, but none that are worth anything to protect the people from the press.”
We should enact laws that actually protect people, but the press has become so powerful across the United Kingdom that ordinary people feel that they have no protection when they are smeared or slimed by the media, which has all too often been the case. We regularly see the withdrawal of a statement or a front-page story resulting not in a front-page apology but in a postage stamp of an apology beside the advertisements. Many ordinary folk feel that that is grossly unfair.
This law could have the effect of creating even greater freedom for the press. The general public find it more difficult to secure access to justice at present and I am concerned that we should ensure that access to justice is liberated and that people feel that they can use the courts to protect them when they are under attack.
“As a media lawyer of more than thirty years standing, and practising in three jurisdictions from offices in London, Belfast and Dublin, I can testify that it is now becoming almost impossible for a Claimant without substantial financial means to contemplate a libel action. Even before the introduction of any new legislation, the financial odds are stacked heavily against the ordinary man”
Before changing our defamation laws, the Government should consider other matters. They should, for example, consider our privacy laws and try to clarify, consolidate and codify them. The press has the modus operandi that they can publish and be damned, knowing that many individuals are too intimidated to take, or financially deterred from taking, legal action, leaving their reputation sullied and scarred by the further accusation, “Sure, if it’s not true, sue them.” If people cannot afford to take legal action or are too intimidated by the prospect of going to court, the scar is all the deeper.
Not only should we codify our privacy laws, but we should have statutory regulation of the press. That should be considered in tandem with these changes to defamation law. This should be done completely, not piecemeal, as was suggested. The Press Complaints Commission has been a complete failure for individuals, whether people have an inflated reputation or otherwise. Ofcom has demonstrated that it can regulate slightly better than the PCC. The broadcast media generally are more responsible, as a result of the robust stance of Ofcom, not of the media.
Internet service providers operate in jurisdictions where they are immune from prosecution, so many ISPs are moving their activities to the United States of America, where they can publish whatever the heck they want and get away with it in the full knowledge that they will not be sued and that they cannot be touched. That breaches our law and undermines the rule of law in this country. We need some sort of cross-jurisdictional approach that allows us to approach our American neighbours and create a pact that prevents such abuse of our laws.
Dr William McCrea (South Antrim) (DUP): When my hon. Friend speaks about the scar that people can endure through defamation, does he realise that that scar can be so deep for some people that they are driven to suicide?
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Ian Paisley: That point is worth dwelling on. Another speaker today mentioned that they had been trolled by certain individuals and had decided not to pursue them. Another Member of Parliament made clear their view that trolls should be pursued to the nth degree. I agree with the latter view and with my hon. Friend.
My hon. Friend the Member for East Londonderry (Mr Campbell) was trolled on an internet site. It was said that he should be shot. In Northern Ireland such things carry a certain weight. I am glad that that person was prosecuted by the courts and fined. I do not believe that they received a custodial sentence, but I believe they were seriously fined. There needs to be deterrent activity, because people abuse the internet. When my father was in hospital recently, someone thought it was good fun to take a picture of him while he was on a life support machine and to try to publish that on the internet. That person has lost their job and I hope that they go to jail. I believe that that is a gross infringement of people’s privacy and people’s rights.
Such things have an impact on young people in particular. Young people are driven to suicide because of accusations such as that a girl is too fat, or about how they look in school, the job they do or the way they have combed their hair. That can have a debilitating effect on a person’s life, especially in the light of the all-prevailing and all-invasive presence of the social media. We need to take steps to protect people from that.
Lord Mawhinney offered some commendable suggestions in the other place in relation to the requirement for significant penalties for defamation. The law must provide protection against unwarranted or serious damage—in other words, gossip. Gossip has a very damaging impact on the lives of ordinary people and we have to find a way of protecting individuals from that. We must make access to justice a priority and a possibility, but the costs involved currently prevent that from happening. Apologies must be printed in a way that is a deterrent. As I said, a front-page slander, when it is proved to be so, often results in a postage stamp-size apology. That is wrong. Apologies must be printed in a meaningful size, style and weight. I also believe that there should be prior notification before publication, because damages are largely inadequate as a remedy when a person’s reputation has been damaged.
Neil Carmichael (Stroud) (Con): The hon. Gentleman is right about gossip, defamation and the connection to harm, but does he agree that the Bill quite properly expects there to be a definition of serious harm behind a successful prosecution?
It was Oscar Wilde who said that the truth is rarely pure and never simple, and I think that is why we need a good, sensible and practical law in this field. It is not just a simple matter of something being a lie and someone therefore being able to sue and get a claim; it is the innuendo that the press often uses, the “nudge nudge, wink wink” interpretation that can ruin a person’s reputation and often does more damage than a blatant lie can do. Blatant lies, because they are normally so blatant, are not always believable, but the “nudge nudge,
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wink wink” innuendo, which is almost a lie but not quite, does more damage and is more reckless. We need to ensure that these laws properly address that type of abuse. As children we often sang the little chorus, “Be careful little tongue what you say,” but the fact of the matter is that the press are not careful in this regard.
Michael Ellis (Northampton North) (Con): The hon. Gentleman is making powerful points, many of which I agree with, but does he also bear it in mind that there are limited forms of redress against “trolls”, as they are now colloquially described, who perhaps have 15 followers? The action taken against them for some scurrilous remarks they might have made could itself bring more attention to those remarks.
Ian Paisley: As with all these matters, it is a question of balance. Those 15 followers could be influential individuals who are hiding under their anonymity—perhaps they are journalists—and could use their standing and anonymity in different ways, so that has to be addressed. We must consider the balance of who the 15 individuals in the hon. Gentleman’s example are, because there could be abuse of other individuals through the internet system. Indeed, in the example I cited earlier only nine people saw the photograph, but it was so damaging for the person concerned that, in my view, the person responsible deserves to be severely punished. It is not necessarily the quantity that we need to look at, but the quality.
I want to look at the issue of anonymity in relation to clause 5. Currently, websites operate with impunity. I do not know whether the proposed change will prevent that abuse of the internet. If someone is able to hide away and become anonymous so that the internet operator is unable to find them, I do not believe that the operator should have an excuse. We need to be very careful about making sure that website operators take control of what is said on blogs and the other things that appear on websites. I should declare that I once sued the BBC for a comment that appeared on a blog—successfully, I might add. We need to ensure that someone operating a website recognises that the buck stops with them if they are going to mediate these comments. I am yet to be convinced that clause 5 will have a significant effect on the abuse that can follow.
Dr Huppert: The hon. Gentleman suggests that websites can currently act with impunity, but does he recognise that a huge number of sites, whether Mumsnet or almost any other, face a constant deluge of unfounded claims, which they simply do not have the resources to defend, so they are forced to take down things that may not be defamatory in any way, shape or form? Does he think that that is appropriate?
Again, it is a question of balance, but I would far rather such sites were more defensive of their own reputation and standing than they allowed something to slip through which damaged, lied about or hurt someone in an unfounded or unfair way. I understand that there are huge difficulties, but, if someone is going to set themselves up as a website operator in the 21st century, in the new media, they have to take responsibility for their actions. That is the responsibility that should fall to people and make them consider what they do. Members of my party will support the general thrust of this
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change to the defamation laws, but we are yet to be convinced on some points, which we look forward to being thrashed out in more detail in another place.
Mr Robert Buckland (South Swindon) (Con): It is a pleasure to take part in this Second Reading debate about a Bill that has been long and careful in the making, and I pay particular tribute to the pre-legislative scrutiny process that has been used. There is an increasing tendency in this Parliament to use that mechanism, which I welcome, because it gives not just parliamentarians but interested members of the public and experts outside the House ample opportunity to have the fullest input into the development of important legislation.
In Public Bill Committees there are already sessions that allow for the giving and taking of evidence, but, admirable though they are, one is always left feeling that more time was needed, far too many things were left unsaid, far too many questions were left unasked and unanswered, and, however good the sessions were, more were needed.
The pre-legislative process allows for valuable time to be allocated, for more evidence to be submitted, for freer debate and discussion and for the Government to listen maturely, to reflect and to respond. It avoids the striking of false positions, the entrenchment of unsustainable positions and the to-ing and fro-ing that is sadly all too often associated with the passage of Bills through this House.
In this Session a number of other pieces of legislation will be subject to the procedure, and that is good and welcome, particularly in areas where consensus and a striking degree of cross-party co-operation, understanding and support are needed. In this area, where we are talking about the reputation of the individual versus the right to freedom of expression, it is essential that this House speaks as much as possible with one voice.
Amber Rudd (Hastings and Rye) (Con): Does my hon. Friend agree that it is testament to the need for this Bill, and to the way in which it has been handled and prepared, that there is so much unity among Members and among parties on the need to do something and to address the issue urgently?
Mr Buckland: Very much so. As I said, the Bill has been long in the making—some would say, generations. The right hon. Member for Tooting (Sadiq Khan) reminded us that in the 160 years since the Common Law Procedure Act 1852 there have been only two subsequent pieces of legislation—pieces of legislation that have dealt with the law in a piecemeal way.
The Defamation Act 1996, as some who were Members when the measure was passed will recall, dealt with a particular context and a particular case. A former Member, Neil Hamilton, found that his case was stayed by the court because it was felt that the defendant newspaper could not prepare its defence adequately without infringing parliamentary privilege. That resulted in section 13 of the 1996 Act, allowing a Member of either this House or the other place to waive for the purposes of the defamation proceedings
“the protection of any enactment or rule of law which prevents proceedings in Parliament being impeached or questioned in any court or place”—
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At the time, I was a little uncertain about the passage of that provision, which seemed to represent yet another piecemeal approach to a fundamental right that has been exercised ever since article 9 of the Bill of Rights of 1689—parliamentary privilege. Another Committee of this House has considered parliamentary privilege carefully, and there may well be legislation to deal with it. In doing so, I would urge the utmost caution. Reform and refinement of such a basic and well-understood principle could lead to further confusion and potential court interference. It is essential that all of us in this place and in the House of Lords understand that changes to parliamentary privilege, whether in the context of the 1996 Act or subsequent proposals, could lead to the erosion of that privilege, which would be a regrettable and undesirable outcome.
In my view, section 13 of the Act should be repealed, and we should consider instead a more general right of waiver that not only would apply to defamation but to a range of court actions in which Members of Parliament or Members of the House of Lords may become involved. This Bill could have taken that step, but I quite understand Ministers’ desire to get on with the job in hand and to avoid being potentially sidetracked by questions of privilege that may have to be returned to.
Michael Ellis: Does my hon. Friend recognise that Her Majesty’s Government intend to work on a Green Paper that will deal in a lot more detail with parliamentary privilege, and that by separating the issue and giving it the advanced status of its own Green Paper and potentially a separate Bill, they are showing that they are giving it a high priority?
Mr Buckland: My hon. Friend is right to outline, in a better way than I could, the intended progress of any reform to the law of privilege. However, I reiterate that we tamper with article 9 at our peril and should listen carefully to those who urge caution.
I raise this issue to illustrate the piecemeal way in which defamation law has been dealt with. We have let the courts, in their wisdom, develop common law, and that has happened in what many of us would regard as an acceptable way that reflects evolving views about reputational damage but is fundamentally not as directly accountable to the people we serve as it should be. That is why introducing primary legislation of this nature is the right and just thing to do. It shows the people of this country that Parliament is prepared to take a lead on an important issue such as defamation.
Neil Carmichael: My hon. Friend is making a good point in connection with the whole basis of the Bill. One of the dangers that we can enter into is to talk too much about technologies and systems, which will move on, change and develop as we go along. I hope he agrees that we need not necessarily just common law but primary legislation that will give us a sound legal footing to deal with defamation.
My hon. Friend is right. However, we must always bear in mind the ineluctable fact that primary legislation, however useful it is, can often be seen as setting in stone, or setting in a particular moment in time, the law as it then stood. Because of the inevitable pressures in this place of the other priorities that we
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have to deal with, there is a danger that legislation does not keep pace with change and is not as flexible as judge-led law.
Helen Goodman: Surely the point made by the hon. Member for Stroud (Neil Carmichael) was that if we have the right architecture in the legislation, we can change the secondary legislation in a more flexible way as technology changes. I think that we can deal with technological development and that we should not be so nervous about it.
Mr Buckland: There is always tension in the minds of parliamentarians between wanting, quite naturally, to see as much detail as possible in primary legislation, because not only is that an accountable and democratic way of dealing with things, but it allows for full and fair debate, and the need to allow for flexibility through the use of secondary legislation. The hon. Lady’s point is an important one. Often in this place, in our enthusiasm to make primary legislation as prescriptive as possible, we fall foul of the danger that I highlighted just before her intervention.
The evolution of the law of reputational damage is interesting to note. In the 19th century, damage to reputation was seen as a very significant factor indeed. Reputation was seen as part of the property of an individual and something to be highly valued. It is interesting to note that at that time, when the privacy of the rich and powerful was easily protected—much more easily than it is now—the only windows into the private lives of the rich and influential were trials for libel. The evidence would be heard, sometimes by a shocked jury. Notable members of society would be brought to court to give evidence. The Prince of Wales gave evidence in a trial in the 1890s during the famous baccarat scandal. That arose from a libel action.
We have a somewhat romanticised view of libel, which stems to a large degree from the Oscar Wilde trials. It is important to remember that the first trial involving Oscar Wilde was the prosecution for criminal libel of the Marquess of Queensberry. It was not a civil case, but a criminal one. Through what would be regarded, on any objective analysis, as the clever advocacy of Sir Edward Carson, that criminal prosecution failed and, famously, the tables were turned on Oscar Wilde. We all have views about the injustice that was meted out upon that gifted poet and author. His words echo down the years and are a reproach to a generation that sought to criminalise the acts that were the subject of those trials. Those trials have contributed to the romance that surrounds libel trials and the involvement of juries.
That is why, although the interventions on my right hon. and learned Friend the Lord Chancellor about the right to trial by jury were interesting, I believe that clause 11 is an overdue measure that reflects the reality of the modern situation when it comes to civil libel trials in England and Wales.
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individual and the criminal law are involved, the right to trial by jury should be preserved and enhanced. That is why I was pleased by the provision in the recently enacted Protection of Freedoms Act 2012 that rolled back restrictions on the right to trial by jury in criminal fraud trials. However, we are dealing here with the civil context. If damage to reputation is so important as to merit trial by jury, why is not physical personal injury equally worthy of it? There is a utilitarian argument that demands a system using scant resources and taking scant time, which means that we should be very cautious about extending jury trials to a whole range of civil cases.
I believe that the removal of libel cases from the right to trial by jury leaves us with only malicious prosecution, false imprisonment and a limited number of other civil cases in which one can argue that there is a legitimate public interest in still involving juries in making decisions about the acts or omissions of public authorities. Malicious prosecution cases could involve an act of a prosecuting authority, and we should bear in mind the power that such an authority has vis-à-vis the individual. False imprisonment cases may involve the acts of police officers or a police force in unjustly imprisoning an individual.
Neil Carmichael: The question of trials with juries is interesting, because it is about whether a judge is the right person to define and decide what constitutes defamation. He is likely to reach a swifter decision than in a jury process. Surely the quicker that cases about people’s reputation are resolved, the better.
Mr Buckland: My hon. Friend is right, and one has to draw a distinction between matters of law, which are always the province of a judge irrespective of whether a jury is involved, and matters of fact. The Lord Chancellor made the point that there may well be cases in which there are classic conflicts of account between individual witnesses. Such cases may require the shrewd judgment of a randomly selected jury of members of the public, who use their experience of the world and their good sense to judge whether, on the balance of probabilities, the claimant’s case is made.
Michael Ellis: My hon. Friend is conscious of the fact that the Bill envisages not removing the right of jury trial in defamation actions but simply lessening the presumption that jury trials will take place. It will be for the judge to decide. Does he believe that judges are likely to decide on jury trials very frequently? What criteria does he think a judge might use, or what common law does he think might evolve, for deciding on the use of jury trials?
Mr Buckland: The Bill is silent on that. Clause 11 merely amends the relevant parts of the Senior Courts Act 1981 and the County Courts Act 1984, which allow a trial by jury unless the trial requires prolonged examination of documents and so on. The practice could develop in secondary legislation, but I doubt whether that would be seen as an appropriate mechanism to guide judges. I rather think that it will evolve as a matter of judicial discretion. I would be cautious about supporting secondary legislation that sought to prescribe the circumstances in which a jury trial ought to be ordered.
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The point that my hon. Friend the Member for Stroud (Neil Carmichael) made about streamlining procedures is important. As the Joint Committee on the draft Bill pointed out, whether or not there are jury trials, there has to be proper reference to alternative dispute resolution methods such as mediation and neutral evaluation by a third party—all the mechanisms that serve to deliver justice and the redress of grievance not just to the millionaire in his Belgravia townhouse but to Mrs Trellis of 22 Acacia grove, who does not have the means to spend a lot of money on expensive litigation but who has been the victim of a wrong that needs to be corrected.
Paul Farrelly: Does the hon. Gentleman agree that because we need speed, which reduces costs, and because we need streamlined procedures and better case management, it would be useful to adopt the draft changes to the civil procedure rules that the Joint Committee recommended? They would give effect to the changes proposed in the Bill and could be amended further as the Bill progresses.
Mr Buckland: Such changes to the civil procedure rules could, and I think should, take place. They would not affect the passage of this primary legislation, so they would not require amendments to the Bill, but I agree with the hon. Gentleman’s point about the need for minds to be concentrated so that the Joint Committee’s noble aspirations can be translated into reality. That point is well made and entirely relevant in the context of the Leveson process. If Leveson achieves nothing else, I want it to provide a mechanism by which the ordinary person in the street can obtain redress of grievance with the minimum cost and at the maximum speed.
Before I was slightly diverted by interventions, I was making a point about the changing context of libel. In the 19th century, the only window into the private lives of the rich and famous was often through the device of the libel trial. How the world has changed. We live in a world in which we have an open door into celebrities’ private lives for the instant gratification of millions of readers, in many cases by the choice of the celebrity concerned. For many celebrities, that is a means by which they make a living. I do not seek to make any pejorative comment about that, but it is a simple fact of modern life.
Not only does the risk to reputation continue to be important, but joined with it is intrusion into people’s private lives. The two issues are different, and I accept that privacy cases are not about correcting falsehoods, as defamation proceedings are. However, they become inextricably linked in many ways when we examine the issues that characterise the debate in both scenarios.
I was part of the Joint Committee on Privacy and Injunctions, along with the hon. Member for Newcastle-under-Lyme (Paul Farrelly) and others. We were grateful to have among our number the noble Lord Mawhinney, who chaired the Joint Committee on the draft Bill, and his input was invaluable in informing us speedily of the progress and deliberations of the latter. The outcome of the investigation by the Joint Committee on Privacy and Injunctions was somewhat less co-ordinated than that of the Joint Committee on the draft Bill. There were a number of views and a multiplicity of divisions,
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but at the end of the process I believe that our contribution to the debate about privacy was important. We characterised some of the issues that have been raised today.
The hon. Member for North Antrim (Ian Paisley), who is not in his place now, made remarks about changing and codifying the law. I would not go so far as to support his assertion that we need statutory regulation of the press, but I thoroughly agree with his observation that now is the time for Parliament to take a lead on codifying the law of privacy. Indeed, I put that proposal to the Joint Committee on Privacy and Injunctions at the end of its deliberations. I was not successful in persuading the majority of members of its merits, but I make no apology for returning to the subject today. I believe not only that the law of defamation should be codified, as it is in this welcome Bill, but that Parliament should take a lead and do likewise to the law of privacy. We should bring together data protection legislation and all the other areas of legislation that deal with intrusion into individuals’ private lives.
Madam Deputy Speaker (Dawn Primarolo): Order. The hon. Gentleman may have read the conventions of the House, which have been re-circulated. An intervention is on a point relevant to the one that the speaker who holds the floor has just made, not a list of abstract points that the hon. Gentleman might want to make. His intervention should be relevant to the point that Mr Buckland has just made.
Neil Carmichael: Thank you, Madam Deputy Speaker. I apologise. The point I was going to make—it is relevant—is that the Bill is not just about defamation and privacy, but about protecting freedom of speech. Does my hon. Friend agree that that must be considered in the debate?
I made the point about support for codification of the law on privacy because I believe in Parliament. I come from a legal background and have spent many years dealing with cases in the courts of this land, but I believe it is incumbent on legislators to take a lead and to represent the people of this country by saying, “The law needs updating. It needs to be brought into the 21st century and it needs to reflect the reality of life.” On a daily basis, individuals—famous, infamous or obscure—find that their fundamental rights to privacy are being interfered with, intruded upon and trampled over, not just by an over-mighty press, but by individuals who use social networking tools and the internet, as we have heard.
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Act 1998 give a nod to the law on privacy, but the Act comes to a rather inelegant conclusion by allowing freedom of expression to have a greater priority over the right to privacy. I defend to the death the freedom of expression—that is why I came to Parliament, thanks to the good grace of the people of my constituency, who have given me this opportunity—but we must get the balance right. The Act does not faithfully reflect the reality of human rights: there is no hierarchy of rights, and each right must be balanced against others. Certain rights are unqualified, but most rights have qualifications. There is no hierarchy of public rights—
Mr Buckland: I was trying to illustrate the point by saying that there is a fine balance to be struck between freedom of expression and the rights of individuals to protect not only their privacy, but their reputation.
It has been said that reputation is a question of taste, but it is also a question of approach. Some take a very relaxed approach to attacks on their reputation. For example, when in his old age the Duke of Wellington heard about a book that was to be published about his private life, he famously said: “Publish and be damned.” That might well have been because he realised that most of the allegations in the book were true—I can say that only because the noble duke is long gone. Some take Groucho Marxs’s attitude. To Confidential, the infamous magazine published in the US from the ’50s onwards, he wrote:
“If you don’t stop printing scandalous articles about me, I’ll be forced to cancel my subscription.”
Sometimes, however, when there is no alternative, the only reasonable response to defamatory or libellous representations is for the individual to seek legal advice and to take action. That very much depends on the individual, the circumstances and the context. The Bill addresses, as well as primary legislation can, the nuances and the infinite range of contexts within which libel and defamation actions can be brought.
On alternative dispute resolution, to which many hon. Members have referred, no matter what we do to reform the law, the question of the cost of the legal procedure will remain. Like the Ritz, the law remains open to all, to adapt a well-worn phrase. The Jackson reforms were much criticised in the context of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, but they will not serve to change significantly access to justice in libel cases. Legal firms seeking to build their reputation will always be interested in taking the cases of well known individuals who have had their reputations besmirched, such is the way of practice.
Guy Opperman: Does my hon. Friend agree that the practice of libel is such that a potential claimant will be massively dissuaded from seeking to bring an action without some degree of cover for the costs they could incur? Does he also agree that the way out of that situation is to institute protective costs orders for actions brought in the public interest?
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to deal with the non-recoverability of after-the-event insurance and success fees. I accept that that will not be enough in some cases to deal with the loss to the individual that the recouping of costs and the plaintiff’s damages will mean. That is why alternatives such as the one he suggests have great merit. I would like to think that we will see a more sophisticated development, such as a before-the-event insurance market. Perhaps a person who becomes a celebrity or goes into public life could gain an advantage by taking out before-the-event insurance, but I accept that we are in the early days of such a market, if one can exist.
On the public interest defence in clause 4, I support the understandable reluctance of the Joint Committee on the draft Bill and the Government to seek to define the term in law. The Joint Committee on Privacy and Injunctions found that what “public interest” means evolves from year to year and from case to case. It is far better to leave the term to be defined according to the case in which it is invoked.
The question of determining whether the defendant has acted responsibly in the public interest is dealt with in the Bill; the Bill suggests that the court may have regard to a non-exhaustive list of factors. My right hon. and learned Friend the Lord Chancellor dealt with that in his speech, but in my intervention on him, I highlighted the danger of such a list becoming a set of hurdles over which defendants would have to jump before establishing their defence. My view is that if the Bill contained a catch-all consideration—namely, a provision that allowed the court to consider all the circumstances of the case—the danger of that non-exhaustive list becoming a set of hoops through which defendants had to jump would be adequately addressed. With that caveat, therefore, I support clause 4.
Much has been said about the internet. I do not need to rehearse those arguments, so I will turn instead to clause 12, an interesting clause that gives the courts the power to order publication of the summary of a judgment made in a defamation case. That is a welcome change, which is a reflection of the public interest not only in allowing damages to be claimed by people whose reputations have been unjustifiably besmirched, but in obtaining proper restitution for that individual—in other words, in restoring, as much as possible, the reputation of the person aggrieved to its previous state. However—coming back to dear old Mrs Trellis—let us face it: that is what the object of the law should be all about. It is not just a question of damages; sometimes—I would say in most cases—damages should be a secondary consideration. It is all about trying to restore the wronged reputation of the individual concerned, although in privacy cases, once the secret has been brought out into the public domain, it is impossible to put the cat back into the bag, so to speak. Nevertheless, the question of intrusion remains and, in that context, there can be proper redress of grievance for the individual concerned. Once again, the two issues come together in an inevitable way.
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Mr David Lammy (Tottenham) (Lab): I am grateful for the opportunity to speak in this debate, following the small role that I played on the Joint Committee of both Houses that looked into this issue. I begin by paying tribute to the noble Lord Lester, who made a considerable contribution to this debate, and the noble Lord Mawhinney, who chaired the Committee successfully and kept our views together. We were able to produce a good report.
I want to return to some of the issues that have been left out of the Bill that is before the House, but I should begin by saying that we had a lot of debate on whether there was a need to codify the common law as it has existed on defamation. That was right and appropriate, because we should not pretend that somehow, just because we have a Bill—a Bill that looks like it has the broad support of the House, and most likely the other place too—the job will be done once it has passed through both places and the process is complete. Of course, the job will not be done. Putting the common law on a statutory footing will make it subject to much interpretation by the courts. Certain areas—in particular, serious harm and justification—will need a lot of teasing out over the months and years ahead. Therefore, the degree of certainty that we might think is contained in the legislation will probably not be in place for some time.
Nevertheless, it is right to codify this area of law at this time, if only so that ordinary citizens who are not in public life—those who are not celebrities and are not famous—who find their reputations tarnished or damaged can, as a result of what we are doing today, at least go to a piece of paper and determine for themselves what the law looks like in Britain, without having to rely on costly lawyers to interpret several different cases in order to determine whether they have any kind of claim. That must be a good thing for the general public as a whole.
This is a careful balance, and it is important absolutely to underline the freedom of expression that must cut to the heart of a democratic and civilised country. However, it is also right to say that we are living in an age in which our liberalisms need to be fully scrutinised—an age in which it is possible to be very conscious of our rights to say what we want, but not terribly conscious of our responsibility in exercising those rights. It is into that juncture that this Bill falls. We are also, I might add, living in age in which we see the results of excessive economic liberalism. We have therefore also seen companies, corporations and oligarchs use this area of law to exercise a lot of control, it seems to me, in the other direction. I want to come to that later.
We should scrutinise very carefully—and put that scrutiny on the record in Hansard—the serious harm test. It is probably more straightforward for someone in public life or a celebrity to demonstrate and explain what serious harm is to their reputation, which will have been built up and is in the public domain. However, I am concerned that the hurdle should not be so high for the average, ordinary member of the public that they have to establish the same calibre of serious harm. We ought to remember that most cases concern ordinary folk who feel defamed by, for instance, their local newspaper or a website whose focus is confined to a local area. We are talking about someone who runs a small business
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whose products are tarnished in public. We are talking about two partners—about an older woman, for instance, who falls in love with a younger man and lives in a village, and where things are said about the extent of that relationship. Such cases may feel parochial, but to the individuals involved they can feel major. In that sense, we need to ensure that the serious harm test is not set so high that the ordinary person trying to overcome the damage that has been done to them cannot get access to the justice they feel they deserve. I therefore hope that we see some debate in Committee, as well as on Report and in the other place, about what constitutes serious harm.
There has been a rush to push jury trial out of the door to save us money, but it is important to put on the record the fact that the public who serve on juries, and who rely on this important area of our law, are not responsible, on the whole, for those costs. They have largely been driven up by law firms, lawyers and barristers. We are now embarking on a process of no longer having a presumption of jury trial in this area of law, which is a major departure. Broadly, the decision was debated a lot in the Joint Committee, and I will go along with it. However, in an age of austerity, when we are all concerned about finances, I do not want the departure of jury trials to start creeping into the criminal law or for the argument to be extended to what must be the bedrock of our democracy. We must bear in mind that it is not the public who have driven up the costs. We should have heard more on this matter from the Secretary of State, and I hope that we will hear more at the end of the debate or in Committee about the circumstances in which jury trials will be retained. For example, if a High court judge were defamed, would we expect a jury to be retained in that case, given the presumption that it might be inappropriate to ask another judge to adjudicate in those circumstances? The Government need to set out the circumstances in which they think it appropriate to retain juries in these cases, given that reputation is a matter of public interest.
The gaping hole in the Bill, which Lord Lester examined thoroughly and which the Joint Committee debated, is the way in which it relates to corporations and companies. I am convinced that the Bill should act to limit some of the excessive powers of companies and corporations that often use these means to terrorise publications into not getting underneath the truth of what is going on in those companies. I am not convinced that a corporation or big business company is the same as an individual, or that the reputation of such institutions is the same as that of an individual. I certainly believe that, if we are to allow companies and corporations to use defamation law in this way, we ought at least to ask them to establish that they have suffered substantial financial loss, as was set out in the original Bill proposed by Lord Lester.
Paul Farrelly: I agree with my right hon. Friend on that point. Does he agree that equality of arms is one of the main issues in regard to the law of libel, and that there are remedies available to judges in the Defamation Act 1996 that have not been used effectively to achieve the early resolution of libel cases in order to avoid the inequality of arms being fully brought to bear in such cases, particularly those against investigative newspapers?
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the situation that Dr Simon Singh found himself in, in the case involving the British Chiropractic Association. That should be a matter of concern to the House, and it demands debate and discussion in Committee. He will also be aware of the case of Ben Goldacre, a doctor and health writer, that of the cardiologist, Peter Wilmshurst, and that of Hardeep Singh, a journalist writing on Sikh issues. It is not entirely clear from those cases—although we have codified this area of the law, tidied up the justifications and raised the bar quite appropriately—that the position of the oligarch or corporation to challenge the idea of a balance of equity has been dealt with. The matter has been sidelined in the Bill; it has been forgotten about and we will probably not get the opportunity to return to it for some time. That is the biggest area of concern.
Paul Farrelly: The case of Simon Singh is a poignant one. Does my right hon. Friend agree that, in relation to that case, it was a quirk of the British legal system that allowed the British Chiropractic Association to sue in the first place? It could do so because it was an incorporated body, yet unincorporated bodies could not sue in their own name and would have had to leave it to individual members to bring a defamation case if they felt that they had been defamed individually.
Mr Lammy: That is a good point. It makes me think that, if we are unable to deal with the issue in this Bill, we might be able to return to it in the form of amendments to another Bill that is passing through the House. This is an important area, and it requires further scrutiny.
It is unfortunate that the Bill does not make a greater attempt to enable more alternative dispute resolution. Such practices are essential in relation to costs. What do most people want, when it has been established that they have been defamed? Most of them are not after lots of money; they simply want an apology that is visible and can be well seen. They want to establish negotiations, early on, and to come to an agreement through co-operation. It is a missed opportunity not to do more in the Bill to force people down that road, so that they can come together far earlier and avoid the costs that build up later. That is why I am concerned that everything is blamed on the jury; actually, there are other mechanisms available to reduce costs.
In the Joint Committee, we talked extensively about the level of exposure, in a civilised country, that we should expect the defamer—often a newspaper—to give to the apology that it makes, once it has been established that someone has been defamed. I am concerned that, when such apologies are published, particularly to members of the public, they occupy only the tiniest column space, lost in a wealth of other words. They are given nothing like the prominence of the original story that caused the harm.
Zac Goldsmith: Clause 12 goes some way to addressing that issue, in that it provides the court with the power to order a summary of its judgment to be published. Does the right hon. Gentleman agree that that clause could be strengthened if the issue of due prominence were to be included?
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the original story. I do not think that the Bill has cracked that problem, but I hope that, as it passes through the Committee and goes to the other place, the matter will receive further scrutiny.
Much has been said about the internet, and I shall not add to it except to say that I am truly concerned about the position of young people, and young adults, in this regard. Many of us will be aware of Facebook bullying, for example, and I remain concerned that much of what is said about young people and young adults in such forums remains out there. The ability to fail, to make mistakes and to grow up in a private arena seems to have disappeared from our society. All of that now seems to be done in public. A lot of what used to be said by young people in the pub at the age of 17 or 18 would just disappear. Now, nothing disappears. It is visible for all to see. Many of us might have exercised this when employing a researcher. It is all there, and that is a matter of huge concern. Kicking this matter into secondary legislation is a concern, because it merits hard discussion. This relates to some of the issues being raised in Leveson, and those being raised in relation to privacy. The Joint Committee conducted its deliberations against the backdrop of super-injunctions and the issues that had arisen on the Twitter network just a few months ago.
The Bill is obviously needed, and it is good, but there are elements missing. Those elements were highlighted in the work of the Joint Committee and of Lord Lester, and I hope that they will garner greater scrutiny in the weeks and months ahead.
I rise to speak, having had the enormous privilege of sitting among significantly more distinguished colleagues from this House, including the right hon. Member for Tottenham (Mr Lammy), and indeed from the other place, on the Joint Committee that considered this Bill when it was subjected to pre-legislative scrutiny during the last Session. Let me indicate from the outset in a non-controversial way that the Bill enjoys my support as it enjoys the support of the official Opposition and of all parties.
Like other hon. Members, I have little doubt that the Bill is capable of being improved in Committee, where it will no doubt be debated appropriately, properly and, I hope, at length, particularly in respect of certain Joint Committee recommendations that the Government have not adopted. As it stands, the Bill supplies some, if not all, the certainty required regarding the deficiencies in our libel and slander law previously identified by the noble Lord Lester and others. For that reason, if for no other, I welcome the Bill’s support across the House, as I welcome the Opposition’s decision not to divide the House on the Second Reading of a Bill that evidently does and certainly should enjoy cross-party support.
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This Bill is perhaps not the most eye-catching piece of legislation in this Session and perhaps not even the most eye-catching piece of reform in the arena of the ongoing debate on the balance that needs to be struck between free speech on the one hand and other fundamental rights on the other. For reasons that I will attempt to explain in the course of my remarks, it is none the less important.
Let me begin with the problems—not merely those inherent in the existing law, but those of a more fundamental nature concerning any law that seeks to address defamation, whether in this jurisdiction or elsewhere. The first of those problems is naturally the fact that the mere existence of a law of defamation is an intrusion into the area of free speech. Not one Member of this House can possibly begin to doubt the importance of free speech both as a principle of general application in any mature society and, more important, for the health of our democracy and our democratic institutions.
The powerful need to be held to account. They need to be answerable to those in whose name they seek to exercise power. They need to be exposed to hypocrisy or inconsistency, where necessary. Most certainly, as we all know they need to have the balloon of pomposity associated with their position punctured from time to time, perhaps even frequently, and without remorse. That is the nature of free speech. As I say, surely no one can doubt its importance.
But there are other important rights that need to be addressed in a civilised society—even if, on this point at least, I disagree with my hon. Friend the Member for South Swindon (Mr Buckland) that there is no hierarchy of rights and that there ought not to be. The right to a true reputation is particularly important to well-being, given the importance attributed to character in human affairs. The right of those who have not opened up their private lives to scrutiny to keep their affairs private is equally important. That is a right that used more ordinarily to be respected without the need for intervention of the law, but recent events and recent experiences point to those in the media no longer being able to respect that without appropriate restraints. Finally, there is a right not much talked about thus far in our debate—the right to redress, speedily and efficiently, when either of the rights I have already mentioned is dealt a blow from which in an age of immediate global communication neither may recover unless effective solutions to set the record straight are also available.
What the Bill is designed to achieve, as the preamble tells us, is to amend the law of defamation. In so doing, I understand it to be the Government’s aim—it was certainly the aim of the Joint Committee on which I sat—not only to balance the competing rights to which I have drawn attention, but to bring the law more into line with the world in which we now live. In that regard, the potent mechanism of the common law, able as it is to develop and deal with new situations, is not always enough. Occasionally, as in this area, development can run behind the times because of the lengthy processes associated with litigation and as a result of the disincentive afforded by cost to litigants who find themselves in novel situations. When that happens, it is for Parliament to act, triggered where appropriate by a Government’s legislative programme. That is necessary because it is not always the case that we can outsource the change that the common law might deliver, which would require
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litigants to dip into their own pockets to seek the intervention of the courts to adapt the law to their needs.
That, as I perceive it, is the position in which we find ourselves in relation to the law of defamation. The genuine and general support that Lord Lester’s Bill enjoyed both within and without Parliament demonstrated precisely that. Lord Lester and those who assisted him are to be commended for their initial efforts in this area in the last Parliament, even if they did not bear fruit. This Government, I have to say, are to be commended for having taken forward that work, having established a distinguished Committee—personal exceptions apart—to consider the matter, and having now brought forward appropriate legislation to address the issues in an area that is, as I have already indicated, unlikely perhaps to attract either headlines or even much credit.
Amber Rudd: We have heard much about this Committee and its various members, including my hon. and learned Friend. Is it correct that the Committee was unified on most of these points? It appears that the House is unified on the Bill, but did the Committee find itself unified on its key points?
Stephen Phillips: I am extremely grateful to my hon. Friend for her intervention. My recollection—it is only that—is that the Committee was unanimous on almost all points. I think there was one division—and one only—on the final report; I see my hon. Friend the Member for Cambridge (Dr Huppert) nodding. Unlike with the Joint Committee on Privacy and Injunctions, on which my hon. Friend the Member for South Swindon sat, there is considerably more cross-party agreement in this area.
The Bill of course comes at an interesting and even opportune time, as, indeed, we are all aware. A mile or so down the road—a little less far than the hon. Member for Bishop Auckland (Helen Goodman) suggested—Lord Justice Leveson is sitting in a far more high-profile environment, examining the culture, practices and ethics of the media. The legitimacy and desirability of what an untrammelled free press has recently been up to, for which we as politicians bear some measure of the blame, has rightly been called into question by recent events, which few can have viewed with anything other than horror and disgust.
As we have heard in this debate, another Joint Select Committee of this Parliament in the previous Session, on which my hon. Friend the Member for South Swindon sat, has now reported to both Houses on the subject of privacy and the use of injunctions. New technologies have thrown up new challenges in a number of areas. That they are being addressed piecemeal, although not entirely desirable, as hon. Members have indicated in their contributions, is understandable. That they are being addressed at all is a matter for congratulation, I venture to suggest, for all concerned. Where precisely we will find ourselves at the end of the process is no doubt a matter of debate, but the overall aim is clear: to preserve free speech while respecting other competing rights and the responsibilities that each of those rights entails. For my part, I merely add that this is unlikely to be the end of the process. As the report of the Joint Select Committee on which I sat indicated, there is still work to be done on the issue of parliamentary privilege,
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just as there remain loose ends to be tied up in relation to those parts of the common law of blasphemy and sedition which remain part of our law.
Thus far, I have dealt in generalities, but the greater raft of problems—at least in terms of number, if not seriousness—relates to the specific difficulties encountered with the mechanistic aspects of the law of defamation. The second issue with which it is necessary to grapple in any reform in this area is, therefore, the cost that is associated with defamation litigation and, when necessary, court proceedings. The evidence taken by the Committee demonstrated that those costs were prohibitive to the defence of reputation by the majority; but, even more important, they are inimical to free speech itself.
Few individuals, save perhaps the very brave such as Dr Ben Goldacre, have been prepared to put their lives and fortunes at stake and raise their right to express the truth above their own financial security and that of their families. As anyone who does not enjoy the luxury of parliamentary privilege is all too well aware, the powerful have deep pockets and frightening lawyers with heavy notepaper and even heavier language. The costs associated with defamation not only prevent ordinary people from defending reputations that are so easily damaged in an age in which anonymous posting online can wrongly create a rapist or a paedophile at the click of a mouse, but prevent public figures who lie, cheat and steal from being revealed for what they are.
How, one is driven to ask perhaps all too often—even if rhetorically—have the individuals who have been involved in many of the scandals that we have seen in the past got away with it for so long? The truth, frequently, is that they had, and continue to have, good lawyers who are adroit at putting those who might otherwise hold them to account through the preventive mills of cost and stress. Any reform of the law of defamation needs not only to take account of that, but to address cost at each and every turn. Yes, legitimate reputation is important in a civilised society, as is the prevention of false accusations which damage it; but such protections ought not to be purchased through prevention of the exposure of that which ought to be in the public domain, something which is perhaps all too often a result of the chilling effects associated with any defamation litigation. Indeed, as the Committee concluded in its report,
“the reduction in the extremely high costs of defamation proceedings is essential to limiting the chilling effect and making access to legal redress a possibility for the ordinary citizen.”
This is, none the less, an appropriate moment at which to pause and recognise a fact that—given the evidence taken by the Committee and the views of many commentators—may be obvious, at least to practitioners: the fact that the true problem with the costs associated with defamation proceedings is driven not by substantive rules but by procedure. Any significant reform to reduce cost is therefore not something that can be exclusively, or even primarily, driven by Parliament. As has been pointed out by Members on both sides of the House today, what we need are reforms of procedure to provide new and effective procedural mechanisms that will level the playing field as between those with deep pockets and those without them.
Much, in general terms, was achieved in that respect by the reforms of civil procedure for which we are eternally in the debt of Lord Woolf, but I should like the Minister to state categorically that the Government,
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in the person of the Lord Chancellor, will instruct the Civil Procedure Rule Committee—if, indeed, they have not already done so—to review the civil procedure rules relating to defamation proceedings, as well as the pre-action protocol, in an attempt specifically to strengthen the parts of the overriding objective that are directed to addressing the cost associated with litigation and the necessity of ensuring equality of arms between litigants.
The third difficulty, which both the Committee and the Government have sought to address, is one that I have already mentioned: the difficulty posed by technological and other advances. The last statutory intervention in that regard was made in 1996, under the Administration of Sir John Major, mention of whom is, perhaps, opportune today. Even I can remember vaguely what the world was like then, and it was different. For a start, there was no Human Rights Act—legislation on which, as many know, I have my own strong views, but which, in terms of general principle, has had a significant effect on the law of defamation by recognising privacy rights that have been used as a back door to circumvent free speech protections developed in the arena of defamation over centuries. That affords yet another reason why the 1996 Act is, at the very least—I put it neutrally in deference to my hon. Friends—problematic. We had human rights in this country before the Act was passed, but we did not recognise them in the way that we have now, which has enabled judge-made law in one area to trespass on the will of successive Parliaments and higher courts in others.
What is even more important in the present context, however, is the fact that when Parliament last considered this issue in 1996, the internet was in its infancy. Nothing was known of how matters would develop.
Heather Wheeler (South Derbyshire) (Con): Given that technology is moving so fast, as others have pointed out, does my hon. and learned Friend think that, like anti-terrorism legislation, this legislation should be reviewed and renewed more often than annually?
Stephen Phillips: I should like to say that I am grateful to my hon. Friend, who has put me on the spot with a point that I do not think that the Government would like. I suspect that whatever legislation is in place, we will need to look at it from time to time to ensure that it correctly balances the right to free speech with the right to reputation in the light of the technological developments that will take place over time. How the Minister and his colleagues will want to do that, and whether it will be dealt with in the winding-up speech, is a matter for them. However, I see the force of the point that has been made by my hon. Friend and, indeed, other Members.
Mr Buckland: Might not a possible solution be for the Justice Committee to conduct some post-legislative scrutiny of the Act a couple of years down the line, as is currently happening with the Freedom of Information Act?
Stephen Phillips: What a fine idea. I am sure that my hon. Friend the Minister will be able to tell us whether that is the Government’s preferred solution—as, given the quality of my hon. Friend’s intervention, it may well be.
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In 1996, Larry Page and Sergey Brin were still at Stanford university. They had met only the previous year, and Google was still two years away from being incorporated. For what it is worth, Mark Zuckerberg was 12 years old at the time. If any Members foresaw what the internet would do for the instantaneous communications that we now have, they were entirely silent in the debates that led to what became the Defamation Act 1996. I know that, because I have read the reports of those debates. We, however, are in a different position. We have the benefit of subsequent events, and—with the possible exception of my right hon. Friend the Member for Louth and Horncastle (Sir Peter Tapsell)—not one of us can now contemplate life without the technologies on which we rely for our daily existence. Perhaps it was ever thus with technological change, but, by the same token, change brings specific issues that must be addressed.
Chief among those issues here has been the ability not only to create defamatory material that is instantly accessible to millions of people with internet access, but to disseminate that material anonymously. Even this week, the common law has demonstrated the flexibility of existing mechanisms to assist those who are determined to protect themselves, but, as always, that has come at a cost. I believe that when Parliament intervenes in an area such as that addressed by the Bill, we must do what we can to help, and the Bill does that—although, like my hon. Friend the Member for Mid Bedfordshire (Nadine Dorries), I have not the slightest doubt that it is another area that we will have little option but to address again, certainly within the next decade, as user-driven change in internet and other technological architectures develops further.
The scale of the problems—the need to balance free speech against other competing rights, the need to address the costs associated with striking that balance correctly, and the need to deal with technological and other changes—is vast. In those circumstances it might well be thought that ambitious reform was called for, but, again, that sort of understandable reaction must be balanced with the caution that good legislators enjoy, and which has been the hallmark of the House from time immemorial. Too frequently, ambitious legislative change reveals itself not only to have unintended consequences, but to stultify the development of appropriate solutions by the courts to problems of which no one has yet dreamt. That point was made earlier by my hon. Friend the Member for South Swindon. Incremental change has been the hallmark of good legislation in this and other areas, and the Bill is rightly no exception. The Government are to be commended on that.
I want to deal with three specific aspects of the Bill: the provisions that seek to codify existing substantive law in a manner that is readily accessible and understandable to the layman, the provisions that deal with the defences for which free speech calls in a modern society, and the provisions that seek to bring reputational protection within the reach of those who have not the funds with which to instruct expensive lawyers.
As for the first—the attempted codification of parts of the existing common law as it has now developed, particularly in recent years—my colleagues who sat on the Joint Committee with me are aware that I and others, notably Lord Morris, had our reservations. The difficulty Parliament faces in this area is that our attempts to reduce the nuances of the common law to writing are
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on occasion ineffectual. The Marine Insurance Act 1906 was a codifying Act prepared by Sir Mackenzie Dalzell Chalmers when he was permanent under secretary at the Home Office. He was subsequently chief justice of Gibraltar. As the draftsman of both the Bills of Exchange Act 1882 and the Sale of Goods Act 1893, if anyone could achieve the codification of four centuries of common law, he was the man. Yet subsequent events tell us that he got things wrong, such as the test in relation to loss, which now differs between marine and non-marine insurance. Can he be criticised? No, but the experience teaches a valuable lesson: that codification is not always successful in reflecting either the existing law or its nuances or flexibility.
Attempted codification can, through drafting error, lead to uncertainty, change and stultification, all of which can lead to increased costs for litigants. However, I am persuaded that it is desirable in clauses 1 and 2—as well as in part of clause 3—only for two reasons: first, because the codification is modest in scope; and, secondly, because, as Lord Mawhinney, who chaired our proceedings, persuaded those of us who were sceptical about either the necessity or desirability of pursuing this path, if the protection of the law of defamation is to be made more accessible, it must be written down as simply as possible in a manner that most can understand. That point was made well by the right hon. Member for Tottenham. While I had reservations, therefore, I am now persuaded that these clauses have their rightful place in the Bill. Better and more erudite minds than mine will have addressed the question of whether or not they do what they are supposed to do. If they do not, it will not be for want of trying.
The second area I wish to discuss is the defences with which the Bill deals. One clause at least—clause 3—involves a slight amendment to the existing defence of fair or, as the Supreme Court seems to have taken upon itself to rename it, honest comment. We are now renaming “honest opinion”. It is my understanding that the change is minor—I would be grateful for confirmation of that from the Minister—and merely removes the necessity for it to be shown that the matter on which the opinion is expressed is in the public interest. If so, there seems to have been little justification for any such limitation in the first place. Any such limitation between public interest and private interest is unjustifiable and unprincipled.
That step is therefore to be welcomed, as is the new defence—in so far as it is a new defence—based upon, or clarifying, Reynolds v. Times Newspapers: responsible publication on a matter of public interest. That does much to clarify what would no doubt have been clarified by the common law in due course, but at vast expense and inconvenience to litigants and those defamed.
The third area on which I want to touch is those parts of the Bill that I perceive to be addressing substantive matters that affect cost and accessibility. Among those is the removal of the presumption of jury trial. In no other significant area of civil litigation has jury trial been retained, at least in practical terms, and the evidence that the Committee received appears to demonstrate that, even in the field of defamation, trials have increasingly been conducted before judges alone. However, the threat of jury trial—with the processes it involves and the reluctance of judges to intervene early to remove matters from a jury, with the consequent prolongation of litigation and considerable increase in cost—has long exacerbated
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the chilling effects of the existing law, and many of us are only just persuaded that it should even be possible to retain a discretion to permit a jury in a libel or slander case.
Paul Farrelly: I agree with what is being said. I have inquired into these matters for several years. The publishing industry and the newspapers have long pleaded for an early resolution of meaning, and the retention of juries is inimical to that. It plays into the hands of those litigants who have no interest in a resolution because their intention is to use force of money and arms to prolong the agony as long as possible.
Stephen Phillips: The hon. Gentleman makes a valid and compelling point, and I agree with him. I do not sit on civil cases, but I do still sit as a recorder for a few weeks each year. When judges know there is going to be a jury, they are reluctant to take anything away from the jury because it is supposed to be determining the factual issues. In order to reduce the costs associated with litigation, in most defamation cases there should be no jury, just as there is no longer a jury in other cases heard in the Queen’s bench division, whereas a century or so ago there was the discretion to order one, and, indeed, one was frequently ordered, with all the consequent increase in cost and delay.
The third area on which I want to touch is the one I consider to be the most important aspect of the Bill, clarifying or codifying as it may be: the requirement that in order to be actionable a statement must cause, or be likely to cause, serious harm to the reputation of the claimant. There is, of course, once again every indication that this is the direction in which the common law was moving in any event, but here, in an age when trivial statements are capable of being published immediately, we, as a Parliament, can give our sanction to this worthwhile development and enshrine it once and for all as part of our law. It will lead to fewer cases—certainly fewer trivial cases—being brought forward and therefore to a reduction in costs. It is consistent with the balance that I believe must be struck between free speech and the protection of reputation; it is consistent with the need to render the law accessible in a written form to ordinary individuals not versed in the intricacies of precedent; and it is consistent with enabling courts to act at an early stage in order actively to manage cases and to drive settlement and compromise in those which are serious and require early redress. Like the rest of this Bill, in my judgment—which I think the House shares—these provisions are to be welcomed. They deserve, and should command, our entire and full support.
I hope there will be cross-party support for an improvement to our libel laws, and in keeping with that spirit I join other Members in congratulating the Secretary of State on making sure the Government have found time for this Bill, and in acknowledging the efforts of his ministerial colleagues, the hon. Member for Huntingdon (Mr Djanogly) and especially Lord McNally in the other place, greatly and expertly assisted by Lord Lester,
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who is a veteran of this campaign. Like the shadow Secretary of State, my right hon. Friend the Member for Tooting (Sadiq Khan), I am grateful that they so willingly took up the reins passed to them by my right hon. Friend the Member for Blackburn (Mr Straw), who is another true veteran of this place and who did so much in the last Parliament to pave the way for reform.
Clearly, no thanks would be complete without praising the efforts of the Libel Reform Campaign, which includes Index on Censorship, English PEN and Sense about Science. They came together in 2009 to lobby for a change, and they have lobbied very effectively both in terms of party manifestos and, importantly, through their organisation, which has served to amplify the voices of many of the victims of the excesses of our libel laws who were crying out for both help and change—people such as Simon Singh, Hardeep Singh Kohli and Dr Peter Wilmshurst. I shall refer briefly to some of those cases later, because one of the litmus tests of this Bill will be whether there will be any similar cases following its reforms. At each stage of the Bill’s passage we should ask ourselves, “What would this Bill change? What difference would it make to some of the worst excesses we have seen in recent years?”
As a former investigative journalist who was once sued myself—only once, I stress—I have been interested in libel reform since I entered the House in 2001, and I have certainly pushed the issue since joining the Select Committee in 2005. The Committee’s investigation into this subject started in earnest in 2008 and our 2010 report, “Press standards, privacy and libel”, contained several recommendations that have been pursued by both of the Governments since then and have, thankfully, found their way into this Bill.
Other people have been pressing for root-and-branch reform for much longer. Last autumn, I was privileged to sit down with one of the greats of British journalism, Sir Harry Evans. His investigation while he was the editor of The Sunday Times into the thalidomide scandal in the 1970s was a defining moment in the history of the quality end of the British press. It lasted six or more years in all and, in 1979, went all the way to a landmark European Court of Human Rights decision regarding free speech. As is recounted in Harry’s book, “Good Times, Bad Times”, Lord Lester was an advocate in that case. That affair showed this House in a great, independent light, because the then all-party group on disability, which was chaired by the much missed Lord Jack Ashley, the former Member for Stoke-on-Trent, South—a predecessor of my hon. Friend on the Front Bench, the Member for Stoke-on-Trent South (Robert Flello)—was right in the thick of the fight for justice regarding thalidomide.
As a spring chicken, I asked Harry, when I met him last autumn, whether he thought that serious investigation, given recent developments in libel laws and the state of our newspaper industry, would be harder nowadays. “Oh, easier, easier,” he replied, without a moment’s hesitation. “Nowadays,” spring chicken, he almost said, “you don’t have civil contempt.” Then, if there was civil action in the courts, as there was against the thalidomide drug company, investigation was off limits. After the European decision, the law was changed in 1982. Civil contempt, therefore, was out as a bar to investigation in
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the public interest, but our antiquated libel laws remain. In one sense, therefore, I had to disagree with Harry given my experience as a journalist. I stopped practising as a journalist in 2001, by which time, as previous speakers have said, Google had been founded in a Californian garage for fewer than three years. The change since then has been frantic and it now seems almost to have been around for a lifetime.
I remember that at the end of the 1990s, amid the upheaval of Yeltsin’s Russia, I was writing several investigative pieces about money laundering and the connections between Russian politicians, business and the Russian mafia, no less. In recent years, such investigations would have been harder to get past a news desk—certainly with every oligarch claiming a global reputation in this internet era, with aggressive libel firms touting their expertise in so-called “reputation management”, with London having been cemented as the libel tourist’s destination of choice and, frankly, with the sheer cost of defending an action. There might be a lull in the courts at the moment, given the effectiveness of the Libel Reform Campaign, but old habits and hostilities will surely return, given the chance, aided and abetted by how the court system has tended to operate in spinning out cases, spiralling up costs and spawning expensive uncertainty.
If the codification of existing law in this Bill adds to certainty, that will be worth while in itself, but if that is all it does it will be a real missed opportunity for deeper reform. Similarly, it will be a missed opportunity if changes to the law are not accompanied by resolute change to court practice and procedures and vigorously followed up and followed through.
Let me turn to what sensible reformers want from this Bill and this process. First, in the public interest, we would like the “chilling effect” to be properly addressed. A writ for libel requires no more than a rubber stamp, whereas to defend one, however trivial or vexatious it might be, takes precious time, effort and lawyers. As we have heard, lawyers and courts cost money—an awful lot of money in libel. Too often the system is weighted in favour of deep-pocketed claimants whose threats are an all-too-effective deterrent to investigation and publication in the public interest.
Secondly, and this is a corollary, we want to jettison London’s reputation as “A city named sue”. It tarnishes our country and our democracy. The situation is not overblown, as certain judges have suggested. One cannot measure the attraction and impact of our libel laws by the number of cases alone, but one can listen to the voices of publishers, non-governmental organisations, scientists, medics and academics in relation to what they will and will not publish, around the world, for fear of being sued in London.
Thirdly, as we have heard, there needs to be a proper balance between freedom of speech, especially in the public interest, and reputation. As the phone hacking scandal has once again shown, there is a world of difference between the quality press and the gutter press. There are responsible bloggers and evil people whom I understand are called trolls. Often, getting a simple correction or apology from the highest-minded newspaper is like pulling teeth. In the macho culture that has grown up, if one does not sue, newspapers often do not treat one seriously, but the costs of being
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taken seriously are ordinarily beyond most people. In the absence of real and proper reform, this will raise issues of access to justice.
Let me address the three issues I have raised in reverse order. On joining the Select Committee in 2005, I had a cast around Fleet street to gauge the appetite for a serious push on libel reform, but I found that the traditional concerns about libel had overwhelmingly been overtaken by consternation at the effects of conditional fee arrangements. CFAs had been introduced to improve access to the law, but had escalated the costs of defending claims enormously. Following the passage of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the press has certainly had its way on CFAs, as neither success fees nor insurance premiums are recoverable from the loser, whether claimant or defendant.
Given the extremes of the press we have, I think—and I am a late convert to this view—that things have gone too far. The Government and the Bill must seriously address this issue. Our Select Committee’s 2010 report was prompted by a number of events, including Max Mosley’s privacy case, the libel pursued by Tesco against an old colleague of mine, Ian Griffiths at The Guardian—I shall refer to that case later—and, importantly, by the press’s disgraceful treatment of the family of Madeleine McCann. Following the settlement of the libel actions brought by the McCann family, a seminal article in the New Statesman by a former colleague of mine, Professor Brian Cathcart, entitled, “Scandal: How the Press Tried to Destroy the McCanns”, resonated with me as our Select Committee agreed to start our inquiry. As has been pointed out already, the McCanns would have been hard pressed to start their action or gain any settlement without CFAs. Similarly, without CFAs, people from the scientific and medical community would not have been able to defend themselves in some of the more recent, high-profile libel cases. Dr Peter Wilmshurst’s case is an example of that.
The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly): May I make a short intervention in what is an excellent speech to point out that there are no proposals, certainly not within the Legal Aid, Sentencing and Punishment of Offenders Act, to get rid of CFAs?
Paul Farrelly: I thank the Minister for his intervention, but it is the cumulative effect of the changes in the Act on people’s access to justice that we really need to look at as this Bill proceeds through Parliament.
The reality is that press self-regulation in this country is broken, and the reforms in the Bill are as yet unproven. A sensible balance that addresses the issue of access to justice needs to be struck. I hope that that can be done in our proceedings on the Bill. If it is not, I think we will lurch back to the bad old days—I am a former journalist—with newspapers simply asking, “How much are they worth? Can they afford to sue?” They might also use the system, the costs and the delays to their advantage, having trashed reputations on the way.
Let me address briefly issues of libel tourism, forum shopping and this city called sue. I welcome clause 9 and, importantly, the guidance notes, which address this area specifically. The terminology regarding consideration of where is
“the most appropriate place in which to bring an action”
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leaves great scope for judicial interpretation. The Government promise to ask the Civil Procedure Rule Committee to consider “relevant factors” in more detail in respect of amendments to the civil procedure rules, but as with all these issues court practice is key and the Government have not published, as the Joint Committee on the draft Defamation Bill recommended, the detail and nature of those rule changes. It is incumbent on them to do so in order for us to have greater clarity. I hope that during the Bill’s progression the Government will provide more detail and comfort on this crucial aspect of reform.
In May 2010, in the High Court, Mr Justice Eady threw out a libel suit brought by an Indian so-called holy man against the journalist Hardeep Singh Kohli over an article he had written in The Sikh Times. His holiness—to give him his title—had never set foot in Britain, but this was not the end of the matter; lawyers were given leave to appeal, and it took until February 2011 for the Court of Appeal finally to strike out the case—after his holiness had failed to produce a £250,000 surety for costs. By then, the case had been going on for nearly three years, at a potentially ruinous financial cost to Mr Singh, and had had a terrible impact on his health and family life. Thankfully, Mr Singh has just got married, and I am sure that we all wish him well after what he has been through. As a wedding present, surely we can give him a commitment to early resolution and the strike-out of inappropriate, trivial and vexatious claims. Members will want the Government to give them comfort on this matter during the passage of the Bill.
Ian Paisley: I appreciate the hon. Member’s point, but he must also accept that it does not take Johnny Foreigner to abuse the system. There are many cases brought by UK citizens against other UK citizens in which the process of law is used and contorted under extenuating and tortuous circumstances to the point reached in the case he cites.
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,
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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
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have benefited from Reynolds and other remedies, such as the offer of amends procedure.
alleged that Tesco, through the use of overseas subsidiaries, was avoiding tax. The company was indeed avoiding tax, but
, 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
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.
Tom Brake (Carshalton and Wallington) (LD): It is a pleasure to make a short contribution in what, so far, has been a consensual debate. It has been consensual partly because of the experience of many of the people who have participated and the knowledge they have brought to bear. Like other Members, I pay tribute to the organisations, individuals and Committees that have pushed this issue over many years. It looks as though we are close to a resolution.
“believe it is an individual’s right to live their lives as they see fit, without discrimination, with personal privacy, and with equal rights before the law.”
“Protect free speech, investigative journalism and academic peer-reviewed publishing through reform of…libel laws—including by requiring corporations to show damage and prove malice or recklessness, and by providing a robust responsible journalism defence.”
Clearly, as we have heard tonight, other parties also committed to reform of the libel laws, and it is with great pleasure that the coalition Government have picked up this issue and clearly stated that we will review the libel laws to protect freedom of speech.
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Many hon. Members have set out the reasons for reviewing the libel laws, drawing attention to the fact that although our libel laws have developed over many centuries, they are now outdated and are struggling to keep up to date with technology. It is embarrassing that foreigners can be sued in our courts on weak pretexts and that that has led the United Nations Human Rights Committee to take the view that our laws
“discourage critical media reporting on matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work”
“affect freedom of expression worldwide on matters of valid public interest”.
The Justice Secretary said earlier that he did not think it was fair to describe our laws as an international “laughing stock”, and perhaps that is a little too strong, but I think that all hon. Members here this evening could agree that we should be seeking to make our laws an international blueprint.
We have all-party consensus on this issue, and we know from very recent history that that is not always the case on justice issues. It would be regrettable if we wasted that consensus. As has been said, by the shadow Justice Secretary I believe, only three Bills have touched on the subject of defamation since 1852, so it would be a pity if we did not use this opportunity to get this right. It would be particularly regrettable given that, as far as I am aware, no vocal and organised lobby is campaigning against these proposals. Individuals, particularly those with a legal background, have perhaps been lobbied personally, but I am not aware of a groundswell of opinion opposing what the Government are proposing, and that surely presents an opportunity to push a little harder than the Bill proposes.
A number of hon. Members have said that it is difficult to future-proof the legislation, but we need to ensure that as far as is possible it is future-proofed, because, as I and others have stated, these Bills come around only every 50, 60 or 70 years. When dealing with an issue such as libel, what we are really talking about is context, content, level of harm, author and intent, and those issues should, to a great extent, be technology-independent. If we have to come back to this issue every time the next Facebook or Twitter is developed, we will be chasing our tails year after year.
I said that there is scope for improvement to the Bill, and the Libel Reform Campaign, which has been prominent in pushing this issue, has identified areas where it believes a good start has been made, and I would agree with a single publication rule preventing perpetual liability owing to internet publication. We all know that once something is out there on the internet it is almost impossible to get rid of it, and it will continue to circulate without anyone being able to exercise any real controls over it. The LRC welcomes, as we do, the fact that we are introducing measures to ensure that libel tourism is stopped, even if it is not happening on the scale that people believe.
Other developments include withdrawing or restricting the right to trial by jury in such cases. Almost every hon. Member would normally be clamouring to maintain that, but it seems that there is almost unanimity on its inappropriateness to most libel cases.
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Many hon. Members have referred to the areas where improvement can be made, so I will not dwell at too great a length on them, but they are: the public interest defence; the serious harm test; corporations; and, finally, protection for internet hosts and intermediaries, on which I know my hon. Friend the Member for Cambridge (Dr Huppert) wants to spend some time later, if he is lucky enough to catch the Deputy Speaker’s eye. The exchange between him and the hon. Member for North Antrim (Ian Paisley) highlighted that there are some differences on the sort of protection that can or should be provided to internet hosts and intermediaries, and to individuals who are being attacked by trolls using that sort of technology.
I am sure that the Minister has received the Libel Reform Campaign briefing—I have it here and I am sure he recognises it—which sets out some challenges to which I hope the Minister will be able to respond in detail, even if he is not able to do so today. I hope he will confirm whether, in his view, its concerns are being addressed by the Bill, and if that is not the case, whether the Government will endeavour to address them. If they believe the concerns are unjustified, I hope he will explain why. It would be in keeping with the way in which these exchanges have taken place so far—I believe that the hon. Member for Worthing West (Sir Peter Bottomley) referred to the consensual and open attitude that Lord McNally had adopted in relation to discussions on this matter—for there to be ongoing dialogue and improvements to the Bill.
“an additional defence…which protects genuine public interest statements made in good faith.”
It highlights the fact that that might limit the occasions on which the expense of a full trial was required. In other areas of justice, the Government have rightly been saying that we want earlier settlement, mediation and conciliation, so there must be a good case for ensuring that matters do not reach a full trial.
“shift the burden of proof to the claimant to show that the publication (on a matter of public interest) was irresponsibly published.”
“the nature of the publication should always be taken into account so that small or solo publishers (such as bloggers) are not held to the same standard in running a defence as a newspaper.”
Those are perfectly valid queries or challenges to the Government, to which I hope the Minister will be able to respond. The LRC also identifies some concerns about clause 1 and the serious harm test, and the extent to which it goes any further than simply restating the existing common law position. I hope that the Minister will be able to pick up on those concerns, too.