Defamation Bill

SECOND
MARSHALLED
LIST OF AMENDMENTS
TO BE MOVED
IN GRAND COMMITTEE

[Amendments marked * are new or have been altered]

Clause 3

LORD PHILLIPS OF SUDBURY

11

Page 2, line 3, after “of” insert “adequately”

12

Page 2, line 14, leave out from beginning to “; and” and insert “made by another person (“the author”) but published in a form which is substantially the same by the defendant”

LORD LLOYD OF BERWICK

13

Page 2, line 16, at end insert—

“( ) Without prejudice to the generality of subsection (3), the second condition is met if in commenting on a letter or article that has appeared in a newspaper the defendant identifies the subject matter of the letter or article, and the date on which it appeared.”

Clause 4

LORD MCNALLY

14

Page 2, line 34, leave out paragraph (b) and insert—

“(b) the defendant reasonably believed that publishing the statement complained of was in the public interest.”

LORD PHILLIPS OF SUDBURY

[As an amendment to Amendment 14]

15

Line 3, at end insert “; and

(c) the defendant acted fairly as to the manner, balance and content of such a statement”

LORD MCNALLY

16

Page 2, line 36, leave out subsection (2)

LORD MAWHINNEY

17

Page 3, line 7, at end insert—

“(j) the resources available to the publisher.

( ) Under subsection (2)(j) the court will treat responsibility of a publisher flexibly as different resources may be available to different publishers.”

LORD LESTER OF HERNE HILL

18

Page 3, line 8, leave out subsections (3) and (4)

LORD MCNALLY

19

Page 3, line 8, leave out subsections (3) and (4) and insert—

“( ) If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party, the court must in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it.”

LORD BROWNE OF LADYTON

BARONESS HAYTER OF KENTISH TOWN

[As an amendment to Amendment 19]

20

Line 3, leave out “to which the claimant was a party”

LORD MCNALLY

21

Page 3, line 14, at end insert—

“( ) In determining whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest, the court must make such allowance for editorial judgement as it considers appropriate.”

LORD MAY OF OXFORD

[As an amendment to Amendment 21]

22

Line 4, leave out “editorial” and insert “the publisher’s”

LORD BROWNE OF LADYTON

BARONESS HAYTER OF KENTISH TOWN

23

Page 3, line 14, at end insert—

“( ) In determining whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest, the court must have regard to all the circumstances of the case.”

Clause 5

LORD BROWNE OF LADYTON

BARONESS HAYTER OF KENTISH TOWN

23A*

Page 3, line 21, leave out “a website” and insert “an electronic platform”

23B*

Page 3, line 22, after “defence” insert “to an action for damages for defamation”

LORD PHILLIPS OF SUDBURY

24

Page 3, line 22, after “operator” insert “or anyone associated with the operator”

25

Page 3, line 25, after “not” insert “reasonably”

LORD BROWNE OF LADYTON

BARONESS HAYTER OF KENTISH TOWN

25A*

Page 3, line 30, at end insert—

“(3A) Where a complaint is received by an operator under subsection (3), the operator must publish on their website 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.”

25B*

Page 3, line 42, at end insert—

“(e) make provision to require website operators to set up and publicise a designated email address to receive notices of complaint;

(f) require authors to release their identities to website operators and complainants”

LORD LESTER OF HERNE HILL

26

Page 4, line 2, at end insert “and unlawful”

LORD BROWNE OF LADYTON

BARONESS HAYTER OF KENTISH TOWN

26A*

Page 4, line 3, leave out “was” and insert “is”

VISCOUNT COLVILLE OF CULROSS

LORD ALLAN OF HALLAM

27

Page 4, line 4, at end insert—

“(e) sets out the complainant’s explanation as to—

(i) why it is defamatory of the complainant thus setting out any defamatory allegation about which complaint is made;

(ii) which facts in the statement concerned are inaccurate or untrue and therefore setting out the complainant’s explanation of the true position;

(iii) whether any opinion expressed is unsupportable and, if so, setting out why that is said to be the case; and

(iv) why the statement has caused or is likely to cause serious harm to the reputation of the complainant;

(f) may make provision for a procedure whereby a complainant can obtain from the court a declaration that his notice of complaint under subsection (3)(b) has met the requirements of subsection (6).”

LORD MCNALLY

28

Page 4, line 8, leave out from “section” to “House” in line 9 and insert “may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each”

LORD PHILLIPS OF SUDBURY

29

Page 4, line 12, at end insert—

“( ) The defence under this section is defeated by malice or bad faith by or on behalf of the operator of a website.”

LORD PHILLIPS OF SUDBURY

LORD BROWNE OF LADYTON

BARONESS HAYTER OF KENTISH TOWN

 

The above-named Lords give notice of their intention to oppose the Question that Clause 5 stand part of the Bill.

After Clause 5

LORD MAWHINNEY

30

Insert the following new Clause—

“Unattributed website content

The Secretary of State shall publish guidance for the operators of websites designed to ensure that unattributed material is not published on any website.”

Clause 6

LORD HUNT OF CHESTERTON

31

Page 4, line 14, after “journal” insert “or on a website edited and controlled by a chartered professional or learned body (a “recognised website”)”

32

Page 4, line 18, after “journal” insert “or on the recognised website”

33

Page 4, line 25, after “journal” insert “or on the recognised website”

34

Page 4, line 29, at end insert—

“(c) the assessment was written by one or more persons with expertise in the scientific or academic matter concerned and was approved by the editor of the journal.”

35

Page 4, line 29, at end insert—

“(c) the assessment was written by one or more persons with expertise in the scientific or academic matter concerned and was approved by the editor of the journal or recognised website.”

36

Page 4, line 39, after “(3)(a)” insert “and (4)(c)”

37

Page 4, line 39, after “journal” insert “or recognised website”

38

Page 4, line 40, after “journal” insert “or recognised website”

Clause 7

LORD MAWHINNEY

39

Page 5, line 14, at end insert—

“( ) After paragraph 8 insert—

“8A Communication between a Member of Parliament and any constituent.””

LORD PHILLIPS OF SUDBURY

40

Page 6, line 6, at end insert “ or its auditors”

LORD MAWHINNEY

41

Page 6, line 13, leave out subsection (9)

42

Page 6, line 27, at end insert—

“( ) After paragraph 15 insert—

“15A (1) A peer reviewed article.

(2) Fair and accurate copies and reports of material in an archive where the limitation period for an action against the original publisher of the material has expired.””

After Clause 7

LORD LESTER OF HERNE HILL

43

Insert the following new Clause—

“Reports etc of certain Parliamentary matters protected by absolute privilege

(1) The following are absolutely privileged—

(a) a fair and accurate report of proceedings in Parliament;

(b) a fair and accurate report of anything published by or on the authority of Parliament; and

(c) a fair and accurate copy of, extract from or summary of anything published by or on the authority of Parliament.

(2) The court must stay any proceedings where the defendant shows that—

(a) the proceedings relate to the publication of anything that falls within paragraph (a), (b) or (c) of subsection (1); or

(b) the proceedings seek to prevent or postpone the making of any such publication.

(3) This section also has effect in relation to the Welsh Assembly and the Northern Ireland Assembly (and any reference to Parliament is to be read as a reference to the Assembly in question).

(4) The Parliamentary Papers Act 1840 is repealed.”

44

Insert the following new Clause—

“Evidence concerning proceedings in Parliament

(1) In this section “the relevant protection”, in relation to the proceedings of either House of Parliament, means the protection of any enactment or rule of law which prevents proceedings in Parliament being impeached or questioned in any court or place out of Parliament.

(2) The Speaker of either House of Parliament may, in accordance with Standing Orders of that House, by notice in writing waive the application of the relevant protection to such proceedings in an action for defamation as are specified in that notice.

(3) Where the relevant protection is waived in relation to any proceedings in an action for defamation—

(a) that protection is not to apply to prevent evidence being given, questions being asked or statements, submissions, comments or findings being made in those proceedings; and

(b) none of those things is to be regarded as infringing the privilege of either House of Parliament.

(4) Nothing in this section affects any enactment or rule of law so far as it protects a person from legal liability for words spoken or things done in the course of, or for the purposes of or incidental to, any proceedings in Parliament.

(5) Without prejudice to the generality of subsection (4), that subsection applies to—

(a) the giving of evidence before either House or a committee;

(b) the presentation or submission of a document to either House or a committee;

(c) the preparation of a document for the purposes of or incidental to the transacting of any such business;

(d) the formulation, making or publication of a document, including a report, by or pursuant to an order of either House or a committee; and

(e) any communication with the Parliamentary Commissioner for Standards or any person having functions in connection with the registration of members’ interests.

In this subsection “a committee” means a committee of either House or a joint committee of both Houses of Parliament.

(6) Section 13 of the Defamation Act 1996 is repealed.”

Clause 8

LORD PHILLIPS OF SUDBURY

45

Page 7, line 4, after “public” insert “or to a section of the public”

46

Page 7, line 5, after “public” insert “or to a section of the public”

47

Page 7, leave out lines 7 and 8

Clause 9

LORD MAWHINNEY

48

Page 7, line 29, at end insert—

“( ) A person domiciled in England or Wales may bring an action for defamation in respect of publication by a person to whom subsection (1) below applies provided that they can demonstrate that such publication has caused them serious and substantial harm.”

LORD PHILLIPS OF SUDBURY

49

Page 7, line 38, leave out “clearly”

After Clause 9

LORD SINGH OF WIMBLEDON

50

Insert the following new Clause—

“Action against an individual domiciled in the UK

(1) This section applies to an action for defamation against a person who is domiciled in the United Kingdom.

(2) A court does not have jurisdiction to hear and determine an action relating to the activities of a religious organisation domiciling outside the United Kingdom without evidence of real potential damage.”

Clause 11

LORD MAWHINNEY

51

Page 8, line 38, at end insert—

“( ) A court may only order a trial without jury in a case involving a senior figure in public life and when that person’s credibility is at stake.”

After Clause 14

LORD MAWHINNEY

52

Insert the following new Clause—

“Civil Procedure Rule Committee Guidance

The Secretary of State shall publish guidance for the Civil Procedure Rule Committees proposing procedural reforms in the case of defamation proceedings.”

53

Insert the following new Clause—

“Reporting to Parliament

The Secretary of State shall report to Parliament annually on the codification of this Act; and in particular on its impact on accessibility and clarity of the law.”

Prepared 18th December 2012