House of Commons Amendments

Session 2012 - 13
Internet Publications
Other Bills before Parliament

35

House of Commons

Thursday 21 June 2012

Public Bill Committee

New Amendments handed in are marked thus

Amendments which will comply with the required notice period at their next appearance

Defamation Bill

Paul Farrelly

42

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

‘(a)
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

18

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

‘(i)
for the claimant to identify the person who posted the statement,

and

(ii)
for the claimant to contact the person who posted the statement.’.

Robert Flello

19

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

operator was served with’.

Robert Flello

9

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

insert ‘subsection (3A)’.

Robert Flello

10

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

‘(3A)
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
36

Defamation Bill, continued

Robert Flello

20

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

‘(3A)
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

section.’.

Paul Farrelly

43

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

‘(b)
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

21

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

Robert Flello

22

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

‘(e)
is authorised by a court, which is satisfied on the basis of the information

that it has before it, that—

(i)
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;

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

defamation;

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

(f)
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

44

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

‘(4A)
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

23

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

‘(aa)
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
37

Defamation Bill, continued

Paul Farrelly

45

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

‘(ca)
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

33

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

‘(e)
make provision to require website operators to set up and publicise a

designated email address to receive notices of complaint;

(f)
may require, without exception, authors to release their identities to

website operators and complainants.’.

Paul Farrelly

46

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

‘(5A)
For the purposes of this section—

(a)
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;

(b)
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—

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

facilitating the publication of unlawfully defamatory material; or

(ii)
the removal or editing of the material by the website operator

rendered the statement defamatory.’.

Robert Flello

24

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

25

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

‘(9)
In section 1(c) of the Defamation Act 1996, leave out “a defamatory” and insert

“an unlawful”.’.

Paul Farrelly

47

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

Public Bill Committee: 21 June 2012
38

Defamation Bill, continued

Robert Flello

15

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

release circulated or published’.

Robert Flello

31

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

insert ‘, if—

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

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

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

Robert Flello

11

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

‘(c)
the comparative quality and credibility of the source of the subsequent

publication, compared with the first publication.’.

Robert Flello

32

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

‘(5A)
Publication shall not be deemed to be materially different merely by virtue of—

(a)
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

(b)
the creation of an archive accessible on the internet.’.

Paul Farrelly

48

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

Paul Farrelly

49

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

website (as defined in Clause 5).’.

Robert Flello

16

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

‘(a)
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
39

Defamation Bill, continued

(b)
has made a determination that the statement complained of is

defamatory.’.

Paul Farrelly

50

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

‘(3)
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

1

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

Mr Jonathan Djanogly

2

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

Mr Jonathan Djanogly

3

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

‘(5)
The following provisions also extend to Scotland—

(a)
section 6;

(b)
section 7(9);

(c)
section 14;

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

(e)
this section.

(6)
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

appoint.

(7)
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.

(8)
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

NC1

To move the following Clause:—

‘(1)
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
40

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

nc2

To move the following Clause:—

‘(1)
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.

(2)
A claimant may apply to the court for an order that the operator remove the

relevant statement from the website.

(3)
Where an application for an order under this section is made—

(a)
the operator shall inform the author, if identifiable, of the relevant

statement about the application;

(b)
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

(c)
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.

(4)
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

nc3

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

defamation.’.

Public Bill Committee: 21 June 2012
41

Defamation Bill, continued

Action for defamation brought by body corporate

Robert Flello

nc4

To move the following Clause:—

‘(1)
Before bringing a claim for defamation, the body corporate shall obtain the

permission of the court.

(2)
In determining whether to grant permission, the matters to which the court may

have regard include, but are not limited to—

(a)
whether the body corporate can demonstrate an arguable case;

(b)
whether it could pursue alternative means of redress;

(c)
its size and area of operation;

(d)
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.

(3)
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.

(4)
In determining for the purposes of this section whether substantial financial loss

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

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

directly caused by an alleged defamatory statement;

(b)
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

loss;

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

bringing of a claim;

(d)
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.

(5)
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

nc5

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—

(1)
A presumption that mediation or neutral evaluation will be the default position

shall apply.



© Parliamentary copyright	Revised 21 June 2012