Defamation Bill

Baroness Hayter of Kentish Town Excerpts

Tuesday 15th January 2013 Grand Committee

[Lord Ahmad of Wimbledon]

I would of course be happy to arrange a meeting. The benefit of being in the Moses Room is that your officials are right behind you, and I am sure that they have noted it as I have.

[Baroness Hayter of Kentish Town]

My Lords, as in December I wished the Committee a happy Christmas, maybe now that the Minister is back from Australia I can wish the Committee a happy new year. I thank the Minister not only for coming back from Australia to address us but for his response. I thank also everyone who has spoken, particularly my noble friend Lord Triesman and the noble Lords, Lord Phillips of Sudbury, Lord Lucas, Lord Faulks and Lord Mawhinney, for their support. I am grateful also for the contributions of the noble Lord, Lord Lester, and the noble Earl, Lord Erroll. I am sure that the noble Lord, Lord Mawhinney, does not need reassurance that his summary of the Joint Committee was, as always, spot on and symptomatic of what he did in that committee, focusing straight in on the victim, who often has no recourse to law.

There is a view that somehow the web is less serious than the printed word, but when I was learning my journalism, I was told, “Remember that today’s newspapers are tomorrow’s fish and chips wrappers”. Actually, some printed words are so ephemeral that the web is more serious rather than less serious.

I am still not quite sure what the Minister thinks is a website. Perhaps he will tell us in a moment whether Facebook is a website, whether a Tweet is a website and whether our Lords blog—which I recommend to you all—is a website, because it would be useful to know.

Given that we are in the slightly unusual position of having previously adjourned in the middle of an amendment and having the Hansard for part of it, perhaps I might quote what the noble Lord, Lord Phillips of Sudbury, said on 19 December. He said:

“The disparity of arms between claimant and defendant is nowhere more vivid than in relation to the web operators, many of which are huge multinational companies. They do not do this for fun—they are not like a village notice board. They do it for profits, and mighty big profits … They are the Goliath in the defamatory relationship … and … their impunity is not justified in terms of freedom of speech”.—[Official Report, 19/12/12; col. GC568.]

That is really the nub of what we are talking about. Along with the noble Lord, Lord Mawhinney, I cannot agree with the view of the noble Lord, Lord Allan of Hallam, that, with the web, we are talking just about private speech in a public space. We are talking about a publication, whether it arrives on your iPad, on a laptop or on something else. The issue of anonymity arises more frequently on a website than it does in a publication, which is perhaps why we concentrate on it, but if what the Government are suggesting—the 72 hours, the seven days and then going to court—is accepted, everyone who wants to defame will just go anonymous. Why should they not just go anonymous, knowing that they will basically be beyond the reach of the law?

Some of our amendments to which the Minister has referred are fairly uncontroversial. I would have thought that the “electronic platform” proposal is surely worthy of consideration. We may not have got it right, but I hope that what we have at the end is robust even if it is done by attached guidance. However, I will concentrate on two of these amendments.

--- Later in debate ---

However, in deciding what it is reasonable to do, one could do with a much better answer than, “Spend £1,000 with your lawyer”. We could do with something provided by the Government to say, “This is what we mean by the sort of comment that we expect you to be able to produce”, and that my writing in to say that the food and service was absolutely terrible is all right, as long as I actually had a meal in the place. On a practical basis, what do I have to establish to feel comfortable in myself that I am not risking ending up on the wrong side of a court case, to make it possible for me to make an informed judgment? As someone who is keen to publish when I can and to preserve people’s right to publish and be heard, I am prepared to go some way, but that does not include trotting off to the wrong end of a lawyer’s bill. I want some real support from the Government, some practical guidance as to what the Bill will allow me to publish and what will get me into trouble—not just the mechanics, which still leaves me at the mercy of the earlier clauses, not knowing what they mean.

[Baroness Hayter of Kentish Town]

My Lords, perhaps I may slightly correct the noble Viscount, Lord Colville of Culross, who I think said, “I am not a lawyer, I am just a journalist”. At the risk of upsetting a lot of other people in the Room, I do not think that he has that the right way round. The Bill is for you who write and we who read what you write or produce on television.

I thank the noble Lord, Lord Allan of Hallam, for clarifying that Facebook is indeed a website, which answers my earlier question. I use his words: we want swift removal of defamatory material with minimum collateral damage to lawful material. We may have to come back to that again at the end of the Bill’s proceedings. We can call it the Allan test and see whether we meet it.

I still have a problem with the question that my noble and learned friend, Lord Morris of Aberavon, raised earlier, which is about the distinction between lawful and defamatory. I found the evidence to the Joint Committee on Human Rights by Professor Phillipson on this compelling. Clearly, the whole of the committee did not, and I am not a member of the committee. The issues I want to raise are not legalistic but more about ethics and fairness, although I thank my colleagues, who have provided me with a little more legal background.

I want to go into a couple of cases which may be akin to what the noble Lord, Lord Faulks, mentioned on an earlier amendment about a teacher. I give two case studies. First, there is an Ofsted report on a school, and the local website reveals an affair between the head teacher and a parent, which is going on, but the evidence for it was found by Ofsted in its study, so it is a breach of privacy, because it was found by inspection and was then given without permission to the website. It then seems, under the privacy work being done by Leveson, that a case could be taken. Secondly, there is a separate case, where there is an Ofsted report on a school and a local website reveals an affair between a head teacher and a parent; however, it turns out not to be true.

If I have understood the difference with this higher hurdle, if what the noble Lord, Lord Lester, says is true, before the parent could take an action for defamation, they would have to know whether it was more than just untrue and bad for their reputation; they would also have to ask themselves, “Well now, was it in the public interest because the other party was a head teacher and therefore there could be a public issue?”. Or perhaps there is a defence because the claim was incredibly well researched and the head teacher was having an affair with a different parent, also called Smith, in the same street, and it was just a small technical error that caused the confusion, so it was responsible journalism. A hurdle is being asked for where that the parent, the claimant, would have to go and do some legal homework to try to think through what the defences were that the person who had written the untrue thing about them could put up against their action before they could actually start a claim—by which time their spouse would have left them. In fact, it would probably be better if the affair were true, because then they could get an action on privacy.

That brings me to a comment made by the noble Lord, Lord May. He seemed to be suggesting that as soon as you say something nasty about someone, it is defamatory. That is not my understanding. If I call him a rotten scientist, that is seriously defamatory, but if he calls me a rotten scientist, it is so patently true that it cannot be defamatory. I am not sure that some of the examples given would actually be defamatory; if you say that someone has been forging their research results and they have been, that is not defamatory because it is not untrue.

[Lord May of Oxford]

Many of the more celebrated cases in the libel tourism that has generated all this activity, such as the £1.5 million spent by the journal Nature in defending a plainly factual but defamatory statement about an Asian journal that was created simply to publish the papers of the sponsor, are of just that character. The statement were plain fact, but the action brought in this country by people outside it cost huge sums of money. The action involving Simon Singh was another example. What he was saying was plainly factual but was defamatory; it was intended to be so in every meaningful sense, and properly so. Somehow we keep losing sight of this in the legal elegances.

--- Later in debate ---

[Baroness Hayter of Kentish Town]

It has to be substantially true, actually; he had only to be a bit of a paedophile, had you had the information there.

The point that I am trying to make is that the person making the claim knows whether or not it is true. I know that I am a rotten scientist, and therefore to be able to make the claim I would have to try to find some evidence that I was a brilliant one, which might be a bit difficult. Asking someone to have to argue through the defences of the person against whom they want to take the action before they can start a case, if I have understood the amendment right, would create a higher hurdle for stuff on the web than for printed material, because the clause refers only to the web.

[Lord Lester of Herne Hill]

The noble Baroness has misunderstood. Clause 5 is not about whether you can bring a claim. It states:

“This section applies where an action for defamation is brought against the operator of a website”.

It is intended to allocate responsibility between the alleged victim and the website operator, and to decide when the website operator has some kind of duty to keep up because of free speech or to take down, and what information must be provided under the e-commerce directive regulations and under the Bill. It is not asking a whole lot of questions as some kind of new barrier. It is about a proper procedure balancing. I hope that that is clear.

[Baroness Hayter of Kentish Town]

That is clear, but it still seems to be a higher barrier to take action against an operator of a website than you would have against the editor of a newspaper. The amendment only covers operators of websites, unlike the rest of the Bill. According to Judge Eady,

“a person would need to know something of the strength or weakness of available defences”,

in order to know whether it was unlawful before going ahead. That seems a higher hurdle to ask a claimant to go through than if they were taking an action for something else. That may be what is wanted, but if so, we need to be very clear that this is a higher hurdle for a claimant in the case of operators of websites than for any other action for defamation. It seems to tilt the balance very much against the claimant being able to take any action in that case.

With regard to Amendment 27, which would add the list, the issue is the one that my noble friend Lord Browne raised at the beginning: whether this adds anything to Clause 5(6)(b), which states that, in taking an action, the complainant, in addition to giving their name, must set out,

“the statement concerned and explains why it is defamatory”.

That would go through points such as, “Well, it is untrue, it harms my reputation and it was published in a form that people could read”. Again, I wonder whether, having got rid of the long list that we had in Clause 4—because that was a box-ticking exercise, or feared to be one, about what was in the public interest—we are now doing exactly the reverse and trying to specify all the things that we have taken out of Clause 4. That seems to run counter to the idea of a very simple Bill, albeit that guidelines or regulations may go with it. Although there is nothing in the requirements that seems unacceptable, I am not sure that, having now made the other part so clear and simple, we want to put another list back in this part of the Bill.

Other noble Lords have discussed going to a Master, but in addition to the complications of that, and the costs, I also have worries about the timing. Again, in two or three weeks—I do not know how quick it would be—some things on the web will have gone around and been taken up. My major issue is whether the Committee is absolutely sure that it does want a different hurdle against website operators such that one has to go through all the defences that someone could have before being able to start an action. At the moment, we are not persuaded of that.

--- Later in debate ---

[Lord Phillips of Sudbury]

I am afraid that the noble Lord did misunderstand.

[Baroness Hayter of Kentish Town]

This is an interesting one, particularly in respect of the use of the word “unattributed”, as opposed to “anonymous”. It seems to signify that you are looking at attribution, which may be to a group or something like that, and that it is about trying to find out who was responsible for this without necessarily naming them; I mean that it is about method, not necessarily the actual name. We are interested in the Government’s response to this, because it clearly highlights an ongoing view that what we do not want from the Bill—any more than we want what the noble Lord, Lord Lester, is afraid of—is to give a signal that the more anonymous the better.

[Lord McNally]

My Lords, I am grateful for this debate. The more I listen to it, the more I realise that we are, consciously, going into unknown territory. As I said previously, we are taking a different approach from that we took 10 years ago with the Communications Bill, when the Government of the day, and Parliament as a whole, took the view that the internet should be left free for us to get the full benefits. Within the judgment of history that was probably the right thing to do. It allowed the massive growth of initiative and new companies and services, and the liberating effect I referred to for the individual citizen.

The most hopeful thing that I have heard today, because I respect his knowledge of this sector, is my noble friend Lord Allan’s comment that we should not follow a counsel of despair. That gives me great encouragement. There are, as has been said a number of times, those who say that the internet is beyond any single parliament or jurisdiction to control, and it is a global phenomenon that will just roam free. I do not believe that there are any man-made institutions which cannot be brought within the realm of governance, particularly democratic governance.

We face balances and different arguments. I have been in debates where the whistleblower has been the hero. The noble Lord, Lord May, has pointed out that, quite often when talking or trying to criticise, it is the powerful vested interests—not just the internet companies—that will try to close down criticism by intimidating the means of that information being disseminated. I am determined to try and get this right, but I am aware that we are going into areas where there are upsides and downsides to whatever we do.

I know of my noble friend Lord Phillips’s lifelong commitment to defending the rights of the little man, but I fear overlegislating in this area. We are just emerging from a debate in which it was suggested that our libel laws have become a bonanza for lawyers. I am worried that, in the concern to deal with some of the problems that have been raised, we might create another bonanza for lawyers. I sincerely believe that the contribution of lawyers to this debate has been extremely helpful, but I ask for time to study this debate in Hansard. As my noble friend Lord Phillips said, we have spent nearly five hours on this clause, and rightly so. It is the one in which we are going into untested territory. I want to see how it stands up to the criticisms that have come from both sides.

Amendment 30 goes much wider than issues of defamation, and is therefore beyond the scope of the Bill. It relates to broader issues concerning how the internet could and should be regulated. However, even if this new clause were to be limited only to defamatory material, it has been suggested that there has always been a tradition of being able to publish comment under pseudonyms or anonymously. My noble friend Lord Mawhinney has suggested that we should try to build some change in that culture, so that people are willing to put names to their criticism, and that that is a way forward. However, the practice is widespread. Like my noble friend Lord Lucas, I quite often go on to sites about hotels and restaurants where you get the most insulting comments about the levels of service, and sometimes they are very helpful when you are making your decision. It is also true that in the vast majority of cases it is entirely unproblematic; the hotels and restaurants live with the good and the bad, and leave it to common sense.

My noble friend Lord Mawhinney said that this was a probing amendment. It has produced strong arguments on both sides. I would like to study this issue. I also take the point about the consultation. The paper that noble Lords have received is not going to be very different from the consultation, but I understand the point made by the noble Lord, Lord Browne of Ladyton, that he would like to join the game as well. I am going to look at what we can do in that respect.

It is obvious that we have to get this into better shape by Report. We have only four or five months until the end of this parliamentary year and, at the pace that we are going, we will need every day of that. I will take this amendment away in the probing spirit in which it has been moved; indeed, I will take the whole debate away. I have already agreed bilateral discussions on specific issues of concern with a number of colleagues, but I will see if there is some other way of bringing together a fuller debate on the contents and direction of the guidance. In that light, I hope that my noble friend will agree to withdraw his amendment.