Defamation Bill

Helen Goodman Excerpts

Wednesday 12th September 2012 Commons Chamber

[Jeremy Wright]

I understand exactly what the right hon. Gentleman is saying, but he will appreciate that the limits of the Bill are quite constrained, and it is difficult within the confines of our discussion on Report to cover all the issues he raises. What I will say is that clause 5 attempts to strike a balance between protecting freedom of speech on the internet, which he and I are both in favour of, as I am sure is the whole House, and ensuring that there is a quick and effective method by which those who, for example, have their biographies on Wikipedia amended can address the wrong that is done to them. That is the balance we are attempting to strike and that we believe is struck by clause 5 as it stands, which is why I am afraid we cannot support amendment 7. We stand by clause 5 but believe that it can be improved, which is why we ask the House not only to reject amendment 7, but to accept amendments 5 and 6 and new clause 1.

[Helen Goodman (Bishop Auckland) (Lab)]

I am pleased to have the opportunity to speak to Government new clause 1, Government amendments 5 and 6 and our amendment 7. Like the Minister, I will speak to them in that order. I would like to begin by welcoming the new ministerial team. It is great to see them in their places. We in the Opposition hope that they will have a more flexible approach—it already looks as though they will. I pay particular tribute to the Under-Secretary of State for Justice, the hon. Member for Maidstone and The Weald (Mrs Grant). She is only the second black woman to speak from the Government Dispatch Box, and it is a great credit to her that she has achieved that.

New clause 1 will enable the court to order a website operator to remove material if it has been found to be defamatory. That follows amendment 44, which was tabled by my hon. Friend the Member for Newcastle-under-Lyme (Paul Farrelly) in Committee. It covers the point where website operators behave in an irresponsible manner and authors cannot remove the material. I must say that some cold water was poured on the proposal by the ministerial team at the time, who were very reluctant to consider it, but, lo and behold, when we saw the notice of amendments on Monday and the Under-Secretary of State’s letter on Tuesday, we found that the Government have thought again and tabled the new clause. We think that is sensible and in line with the issues we raised in Committee, so we support the change.

Amendment 5 is about what identifying the author actually means. It states:

‘For the purposes of subsection (3)(a), it is possible for a claimant to “identify” a person only if the claimant has sufficient information to bring proceedings against the person.’

That follows the spirit, if not the precise wording, of amendment 18, tabled by my hon. Friend the Member for Stoke-on-Trent South (Robert Flello), and amendment 42, tabled by my hon. Friend the Member for Newcastle-under-Lyme, in Committee. The purpose of both amendments was to clarify the situation in which the defence is defeated because the claimant could not identify the author. Again, the Minister at the time, the hon. Member for Huntingdon (Mr Djanogly), said that he would consider it but was not very promising. He said that amendment 42

“would effectively require the website operator to provide the claimant with information that they are unlikely to hold, and that they would, in many cases, find difficult to obtain. The amendment would defeat the simple system that the Government intend to establish”.

On amendment 20, he said that the Government did not consider the processes set out in the Opposition’s amendments to be appropriate. He said:

“The aim of clause 5 is to remove the threat of liability from website operators provided that they assist claimants to identify an author of allegedly defamatory material. That process, which will be set out in regulations, will be quick, clear and practical.”––[Official Report, Defamation Public Bill Committee, 21 June 2012; c. 108-111.]

He went on to say that the Opposition amendments cut across the desire for a simple process.

We are very pleased to see Government amendment 5, which responds to the concerns we raised in Committee and it will ensure that claimants are not left in a position where they have insufficient information to take effective action against an author and would be prevented from defeating the web operator’s defence. We say amen to this amendment. However, I have some questions about amendment 5 and its coverage, which I hope the Minister will be able to clarify in his response. The first is the difficult issue of jurisdictions.

There are two aspects to jurisdiction and we discussed them in Committee. The first is the simple case in which the claimant is a UK citizen and the author is identified but lives in a foreign jurisdiction. In that instance, it might be fairly straightforward to bring proceedings in some foreign jurisdictions—if the author were French, for example, it would be a fairly straightforward matter. One can think of other places, however, such as the former Soviet states or some parts of Africa, where it would be extremely difficult to bring proceedings. The person might be properly identified, but because of the jurisdictional difficulties, it would be hard to bring proceedings. Does the Minister think this international problem is resolved? I suspect that it is not, so the Minister needs to tell us whether it is his intention to crack it or whether he thinks it is too difficult to handle here. I hope we will hear something about what can be done about this international problem.

The second type of international problem is where we have a sort of dog-legging situation: the claimant is in this country, the website operator is abroad, the author is in this country and the website operator is not playing by the rules. I would like the Minister to respond to this problem.

Amendment 6 deals with the “defence is not defeated through moderation” theme. It relates to amendment 17 that was moved in Committee by my hon. Friend the Member for Stoke-on-Trent South. The Minister responded to what we proposed by saying that the defence was not affected by having a policy of amending content in terms of moderation. This is an important issue for raising the tone on the web. I have had conversations with local newspaper editors who say that they do not want to moderate abusive language because they have been told that, as the law stands, they then become liable for defamatory statements. Obviously, if we want people to use the web, we want the tone of debate on it to be civilised and reasonable. It is important that moderation that neither enhances a defamatory statement nor removes a defence against such a statement be allowed. To this extent, we believe that amendment 6 is a good one. We are pleased that the Minister has brought it forward; it was backed by the Joint Committee on the draft Bill, too. Of course, the former Minister, the hon. Member for Huntingdon, said that the amendment was not necessary, but I am pleased that the new team sees that it is.

I deal now with amendment 7, tabled by my hon. Friend the Member for Stoke-on-Trent South. I do not want anyone to think that, having accepted the Government’s improvements to clause 5, which is an extremely weak part of the Bill, we are somehow being churlish in wanting to debate leaving out that clause. When we say we would like to see clause 5 left out, we do not mean that the issue of web operators and defamation on the web should not be addressed. Obviously, we mean that we need a more thorough reform than has been offered by the changes announced by the Minister this lunch time. Let me spell out to the Minister in a little more detail what we see as the remaining problems with clause 5. I shall set out our concerns and I hope that he will take them into account and consider looking further at clause 5—if not today, then when the legislation goes to the other place, which is more likely.