Defamation Bill

Helen Goodman Excerpts

Tuesday 12th June 2012 Commons Chamber

[Sadiq Khan]

I thank my hon. Friend for giving the important and outrageous example of people being trolled. It is worth saying for clarity that the clause deals only with defamation cases. I would not want the public to think that it was a panacea for all sorts of outrageous behaviour that takes place on the internet. He is right to remind us that other legislation, including criminal law, needs to be updated to allow authorities to take action against those who troll against innocent victims. We are all aware of the case of our colleague, the hon. Member who had outrageous words said against her, leading to a successful prosecution. If there is a lacuna, it needs to be filled, but we should be clear that clause 5 deals simply with cases in which a defamation claim is made.

[Helen Goodman (Bishop Auckland) (Lab)]

The situation that my hon. Friend the Member for Liverpool, Walton (Steve Rotheram) mentioned has two aspects to it. One is the aspect of comments appearing on a website, with which my right hon. Friend has dealt, but there is also the question whether defamation can be against a deceased person. The Bill does not address that. Does my right hon. Friend believe that it should be considered in Committee?

[Sadiq Khan]

As my hon. Friend will know, it has always been the case that a dead person’s estate cannot sue for defamation. It is worth the Public Bill Committee considering the issue of deceased people’s reputations and the injury that defamation causes to their family. I am not sure whether the Joint Committee did so. However, there are very good reasons why a deceased person’s estate has never been able to sue for defamation.

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[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 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 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.

Let me make one further point about the internet.

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[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.

[Helen Goodman]

The hon. Gentleman’s intervention was so long that I cannot remember what he said, but I know that when I was listening I agreed with both his major points.

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, 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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[Mr Buckland]

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 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.