Session 2012 - 13
Internet Publications
Other Bills before Parliament




House of Commons


Thursday 21 June 2012


Public Bill Committee


New Amendments handed in are marked thus Parliamentary Star


Parliamentary Star - whiteAmendments which will comply with the required notice period at their next appearance


Defamation Bill


Paul Farrelly




Clause  5,  page  3,  line  25,  leave out paragraph (a) and insert—



it was not possible for the claimant to obtain sufficient identifying details


relating to the person who posted the statement so as to be able to serve


that person with legal process,’.


Robert Flello




Clause  5,  page  3,  line  25,  leave out from ‘possible’ to end of line 26 and insert—



for the claimant to identify the person who posted the statement,





for the claimant to contact the person who posted the statement.’.


Robert Flello




Clause  5,  page  3,  line  27,  leave out ‘the claimant gave the operator’ and insert ‘the


operator was served with’.


Robert Flello




Clause  5,  page  3,  line  30,  leave out ‘any provision contained in regulations’ and


insert ‘subsection (3A)’.


Robert Flello




Clause  5,  page  3,  line  30,  at end insert—



Where a complaint is received by an operator under subsection (3), the operator


must publish a notice of complaint alongside the relevant statement and, if the


operator fails to do so within seven days of notice of the complaint, the operator


will only be entitled to rely on the standard defences available to a primary


publisher, if sued for defamation.’.


Public Bill Committee: 21 June 2012                     



Defamation Bill, continued


Robert Flello




Clause  5,  page  3,  line  30,  at end insert—



The condition in sub-paragraph (3)(a)(ii) will be met if the claimant notified the


web operator and the web operator did not elicit a reply (for whatever reason)


from the author within a timescale provided for in regulations made under this




Paul Farrelly




Clause  5,  page  3,  line  33,  leave out paragraph (b) and insert—



sets out the statement concerned and gives details as to why its


publication is unlawful (including, for the avoidance of doubt,


information as to why the statement is untrue or why other potential


defences do not apply).’.


Robert Flello




Clause  5,  page  3,  line  35,  leave out ‘was’ and insert ‘is’.


Robert Flello




Clause  5,  page  3,  line  36,  at end insert—



is authorised by a court, which is satisfied on the basis of the information


that it has before it, that—



the statement concerned is capable of being defamatory


including having regard to section 1 (serious harm) and is


capable of representing a real and substantial tort in the


jurisdiction based on the extent of publication;



would not be likely to benefit from a defence to an action for





that the terms of subsection (3)(a) have been met.



may specify a time limit by which the statement complained of should be


removed in order to benefit from the defence in this section.’.


Paul Farrelly




Clause  5,  page  3,  line  36,  at end insert—



If, after service of a notice of complaint, an operator continues to publish the


statement complained of, the court may, on an application by the claimant, make


such order requiring the operator to take down the statement as the court


considers just.’.


Robert Flello




Clause  5,  page  3,  line  37,  at end insert—



make provision as to the matters to be considered by the court when


considering an application to authorise the issue of a notice of complaint,


including the requirements needed to satisfy subsection (3A).’.


Public Bill Committee: 21 June 2012                     



Defamation Bill, continued


Paul Farrelly




Clause  5,  page  3,  line  44,  at end insert—



make provisions as to the procedure to be followed on the making of an


application for a take down order under subsection (4A).’.


Helen Goodman




Clause  5,  page  3,  line  45,  at end add—



make provision to require website operators to set up and publicise a


designated email address to receive notices of complaint;



may require, without exception, authors to release their identities to


website operators and complainants.’.


Paul Farrelly




Clause  5,  page  3,  line  45,  at end insert—



For the purposes of this section—



the term “operator of a website” includes a web host, an operator of a


social media site, an operator of a search engine or any other information


society service provider;



an operator of a website which has an automated or manual moderation


policy through which it removes or edits content posted by third parties


will not be treated as the poster of a statement for the purposes of this


section unless the claimant can demonstrate that—



the website operator knew or ought to have known that it was


facilitating the publication of unlawfully defamatory material; or



the removal or editing of the material by the website operator


rendered the statement defamatory.’.


Robert Flello




Clause  5,  page  4,  line  4,  leave out from ‘section’ to end of line 5 and insert ‘shall


not come into force without the affirmative resolution of both Houses of Parliament.’.


Robert Flello




Clause  5,  page  4,  line  6,  at end insert—



In section 1(c) of the Defamation Act 1996, leave out “a defamatory” and insert


“an unlawful”.’.



Paul Farrelly




Clause  6,  page  4,  line  12,  after ‘was’, insert ‘first’.



Public Bill Committee: 21 June 2012                     



Defamation Bill, continued


Robert Flello




Clause  7,  page  5,  line  22,  after ‘proceedings’, insert ‘, or of the contents of a press


release circulated or published’.



Robert Flello




Clause  8,  page  6,  line  44,  leave out from ‘applies’ to end of line 3 on page 7 and


insert ‘, if—



a statement is published to the public (“the first publication”), and



there is subsequently published (whether or not to the public) that


statement or a statement which is substantially the same.’.


Robert Flello




Clause  8,  page  7,  line  17,  at end insert—



the comparative quality and credibility of the source of the subsequent


publication, compared with the first publication.’.


Robert Flello




Clause  8,  page  7,  line  17,  at end insert—



Publication shall not be deemed to be materially different merely by virtue of—



the publication, as part of a regular series of publications, without charge


on the internet of academic or scientific journals which required payment


to access when originally published; or



the creation of an archive accessible on the internet.’.



Paul Farrelly




Clause  9,  page  7,  line  27,  after ‘against’, insert ‘or by’.



Paul Farrelly




Clause  10,  page  8,  line  21,  after ‘person’, insert ‘(other than an operator of a


website (as defined in Clause 5).’.


Robert Flello




Clause  10,  page  8,  line  22,  leave out from ‘court’ to end of line 24 and insert—



is satisfied that it is not reasonably practicable for an action to be brought


against the author, editor or publisher; and


Public Bill Committee: 21 June 2012                     



Defamation Bill, continued



has made a determination that the statement complained of is




Paul Farrelly




Clause  10,  page  8,  line  26,  at end add—



Nothing in this section shall prevent a court from granting any injunction or order


requiring a person to cease publishing a defamatory statement.’.



Mr Jonathan Djanogly




Clause  16,  page  10,  line  3,  leave out subsections (2) and (3).


Mr Jonathan Djanogly




Clause  16,  page  10,  line  7,  at beginning insert ‘Subject to subsection (5),’.


Mr Jonathan Djanogly




Clause  16,  page  10,  line  7,  at end insert—



The following provisions also extend to Scotland—



section 6;



section 7(9);



section 14;



section 15(5) (in so far as it relates to sections 6 and 7(9));



this section.



Subject to subsections (7) and (8), the provisions of this Act come into force on


such day as the Secretary of State may by order made by statutory instrument





Sections 6 and 7(9) come into force in so far as they extend to Scotland on such


day as the Scottish Ministers may by order appoint.



Section 14, subsections (4) to (8) of section 15 and this section come into force


on the day on which this Act is passed.’.



New Clauses


Court orders restricting ability to make statements


John Hemming




To move the following Clause:—



In issuing any order restricting any individual’s freedom to make statements in


respect of any court action relating to defamation the court shall not include any


provision which prevents the individual concerned or any other individual from


Public Bill Committee: 21 June 2012                     



Defamation Bill, continued


passing information relevant to any regulatory requirements to any regulator


including the police, and the following statement shall be included in each such


court order—


  “Nothing in this order shall prevent any individual from making a


complaint to any regulatory body including the police or passing any


information to any regulatory body including the police.”.’.



Operators of websites: order for removal of defamatory statement


Robert Flello




To move the following Clause:—



This section applies where an action for defamation may be brought in respect of


a statement posted on a website, whether or not such an action is actually brought


and regardless of whether the action lies against the operator of the website, the


author of the statement or both.



A claimant may apply to the court for an order that the operator remove the


relevant statement from the website.



Where an application for an order under this section is made—



the operator shall inform the author, if identifiable, of the relevant


statement about the application;



both the operator and the author, if known, may make written


submissions to the court in relation to the application, such written


submissions to be made available to the claimant, the operator and the


author, if known; and



the judge shall take into account any such written submissions before


coming to a decision in relation to whether or not to grant the order.



Any order under this section must be implemented by the operator no later than


seven days following notice of the order; and failure to comply with this time


limit will render the operator liable in an action for defamation as if the operator


were the author of the relevant statement.’.



Legal Aid, Sentencing and Punishment of Offenders Act 2012


Robert Flello




To move the following Clause:—


‘The civil legal aid provisions contained within the Legal Aid, Sentencing and


Punishment of Offenders Act 2012 shall not apply in relation to civil actions for





Public Bill Committee: 21 June 2012                     



Defamation Bill, continued


Action for defamation brought by body corporate


Robert Flello




To move the following Clause:—



Before bringing a claim for defamation, the body corporate shall obtain the


permission of the court.



In determining whether to grant permission, the matters to which the court may


have regard include, but are not limited to—



whether the body corporate can demonstrate an arguable case;



whether it could pursue alternative means of redress;



its size and area of operation;



the proportionality of allowing the corporation to bring a claim by


reference to the likely costs of the proceedings, and the level of harm


suffered, or likely to be suffered, by the corporation.



Subject to subsection (5), a body corporate which seeks to pursue an action for


defamation must show that the publication of the words or matters complained of


has caused, or is likely to cause, substantial financial loss to the body corporate.



In determining for the purposes of this section whether substantial financial loss


has been incurred, a court shall have regard to the following—



whether there has been, or is likely to be, a substantial loss of custom


directly caused by an alleged defamatory statement;



whether the body corporate can prove likelihood of a general turndown


in business as a consequence of the alleged defamatory statement, even


if it cannot prove the loss of specific customers or contracts; this shall


suffice as a form of actual loss, and satisfy the test of substantial financial





a fall in share price shall not suffice as the sole grounds to justify the


bringing of a claim;



injury to goodwill or any expense incurred in mitigation of damage to


reputation shall not suffice as the sole ground to justify the bringing of a


claim for defamation.



The test specified in subsection (3) applies solely to bodies corporate, or other


non-natural legal persons that are trading for profit, or trade associations


representing “for-profit” organisations; it does not extend to charities, non-


governmental organisations or other non-profit making bodies.’.



Civil procedure rules


Robert Flello




To move the following Clause:—


‘Strict enforcement of the Pre-Action Protocol governing defamation


proceedings shall be adhered to, and the following alternatives to court


proceedings should first be considered before a party is permitted to commence


court proceedings—



A presumption that mediation or neutral evaluation will be the default position


shall apply.

contents continue

© Parliamentary copyright
Revised 21 June 2012