Defamation Bill

REVISED
MARSHALLED
LIST OF AMENDMENTS
TO BE MOVED
ON REPORT

After Clause 1

LORD PUTTNAM

LORD MACKAY OF CLASHFERN

BARONESS BOOTHROYD

BARONESS SCOTLAND OF ASTHAL

1

Insert the following new Clause—

“Arbitration Service for defamation and related civil claims against members of Independent Regulatory Board

(1) The Lord Chief Justice shall establish a Defamation Recognition Commission.

(2) Schedule (Recognition Commission) makes provision relating to the Defamation Recognition Commission.

(3) The Defamation Recognition Commission shall certify bodies as Independent Regulatory Boards in accordance with the criteria in Schedule (Recognition Commission).

(4) An Independent Regulatory Board shall provide a recognised arbitration service as set out in Schedule (Specialist Arbitration Service).

(5) A court shall take into account when awarding costs and damages whether either party, claimant or defendant in a dispute has chosen not to use the recognised arbitration service of an Independent Regulatory Board.

(6) A court shall award costs under subsection (5) on an indemnity basis unless the interests of justice require otherwise.

(7) A court may order a successful party to pay all the costs of proceedings if such party has unreasonably refused to use an available recognised arbitration service.

(8) A court awarding in its judgment exemplary damages where a defendant is guilty of a flagrant breach of a defendants rights, can also take into account whether—

(a) a claimant refused to use a recognised arbitration service;

(b) a defendant refused to use or join a recognised arbitration service;

(c) the court shall also take into account whether a defendant first sought advice from a recognised Independent Regulatory Board before publication.”

BARONESS O’NEILL OF BENGARVE

BARONESS HOLLINS

[Amendments 1A to 1C are amendments to Amendment 1]

1A*

Line 9, leave out “in accordance with” and insert “provided that they satisfy”

1B*

Line 13, leave out subsections (5) to (7) and insert—

“(5) A court determining proceedings which include a claim in respect of defamation (whether or not they also include other claims) brought against a publisher who subscribes to a scheme operated by an Independent Regulatory Board shall (irrespective of the outcome) award costs against the publisher only if the court is satisfied that—

(a) the issues raised by the proceedings could not have been resolved satisfactorily in accordance with the arbitration service or other procedures of the Board, or

(b) there are other special reasons for awarding costs.

(6) A court determining proceedings which include a claim in respect of defamation (whether or not they also include other claims) brought against a publisher who does not subscribe to a scheme operated by an Independent Regulatory Board shall (irrespective of the outcome) award costs to the publisher only if the court is satisfied that—

(a) the publisher was unable to subscribe to a scheme for reasons beyond its control,

(b) it would have been unreasonable in the circumstances to expect the publisher to have subscribed to a scheme,

(c) the issues raised by the proceedings could not have been resolved satisfactorily in accordance with the arbitration or other procedures of any Board, or

(d) there are other special reasons for awarding costs.

(7) A court in determining proceedings which include a claim in respect of defamation (whether or not they also include other claims) brought against a publisher who does not subscribe to a scheme operated by an Independent Regulatory Board may award costs against the publisher when it is successful in its defence of the proceedings if, in all the circumstances (and in particular taking into account the publisher’s failure to subscribe to a scheme), it is just to do so.

(7A) Rules of court may reflect or give effect to this section (and may, in particular, make transitional provision to address situations where a publisher subscribes, or ceases to subscribe, to a scheme before or after the commencement of legal proceedings).”

1C*

Line 21, leave out subsection (8) and insert—

“(8) In determining proceedings which include a claim in respect of defamation (whether or not they also include other claims) brought against a publisher who does not subscribe to a scheme operated by an Independent Regulatory Board, a court may award exemplary damages against the publisher if satisfied that—

(a) the conduct to which the proceedings related was contrary to the standards code of an Independent Regulatory Board which provides a scheme of supervision to which the publisher could have subscribed, and

(b) having regard to any other relevant circumstances, it is appropriate to award exemplary damages.

(9) In determining proceedings which include a claim in respect of defamation (whether or not they also include other claims) brought against a publisher who subscribes to a scheme operated by an Independent Regulatory Board, a court may award exemplary damages against the publisher but only if it is satisfied that it is appropriate to make such an award having regard to all the circumstances and in particular to—

(a) any failure by the publisher to comply with the Standards Code of, or any advice provided by, the Board to which it is subscribed at the time of publication;

(b) any failure by the publisher to have in place adequate systems of internal governance in relation to the sourcing of stories and the notification of individuals likely to be mentioned in the publication to which the proceedings relate.

(10) Subsections (8) and (9) provide an additional ground on which exemplary damages may be awarded (and not an additional test to be satisfied in relation to the existing grounds).”

LORD BROWNE OF LADYTON

BARONESS HAYTER OF KENTISH TOWN

LORD LESTER OF HERNE HILL

2

Insert the following new Clause—

“Non-natural persons

(1) This section applies to an action for defamation brought by—

(a) a body corporate;

(b) other non-natural legal persons trading for profit; or

(c) trade associations representing organisations trading for profit.

(2) The permission of the court must be obtained in order to bring an action to which this section applies.

(3) The court must strike out an application under subsection (2) unless the body corporate can show that the publication of the words or matters complained of has caused, or is likely to cause, substantial financial loss to the claimant.

(4) Non-natural persons performing a public function do not have an action in defamation in relation to a statement concerning that function.”

LORD BROWNE OF LADYTON

BARONESS HAYTER OF KENTISH TOWN

3

Insert the following new Clause—

“Strike-out procedure

(1) The court must strike-out an action for defamation unless the claimant shows that—

(a) its publication has caused or is likely to cause serious harm to the reputation of the claimant; and

(b) there has been a real and substantial tort in the jurisdiction.

(2) For the purposes of subsection (1)(b), no real and substantial tort is to be regarded as having occurred in relation to the claimant unless the publication in the jurisdiction can reasonably be regarded as having caused serious harm to the claimant’s reputation having regard to the extent of publication elsewhere.

(3) Subsection (1) does not apply if, in exceptional circumstances, the court is satisfied that it would be in the interests of justice not to strike out the action.

(4) An order under subsection (1) may be made by the court of its own motion or on an application by any party to the action.

(5) Subsection (1) does not limit any power to strike-out proceedings which is exercisable apart from this section.”

Clause 3

LORD LESTER OF HERNE HILL

4

Page 2, line 7, leave out “basis” and insert “subject matter”

5

Page 2, line 7, at end insert—

“( ) Without prejudice to the generality of subsection (3), the second condition is met if the defendant indicates the subject matter of a letter or article appearing in a newspaper or other publication, and the date when it appeared.”

Clause 4

LORD TAVERNE

BARONESS BAKEWELL

6

Page 2, line 37, leave out “reasonably” and insert “could reasonably have”

7

Page 2, line 37, leave out “believed” and insert “decided”

LORD MCNALLY

8

Page 2, line 38, at end insert—

“(1A) Subject to subsections (2) and (3), in determining whether the defendant has shown the matters mentioned in subsection (1), the court must have regard to all the circumstances of the case.”

LORD LESTER OF HERNE HILL

LORD TAVERNE

BARONESS BAKEWELL

9

Page 2, line 39, leave out subsection (2)

Clause 5

LORD PHILLIPS OF SUDBURY

LORD FAULKS

10

Page 3, line 9, leave out subsections (1) to (5) and insert—

“(1) It is a defence for the operator to show that—

(a) it was not the operator who posted the statement,

(b) the operator took reasonable care in relation to its posting,

(c) the operator did not know and had no reason to believe that what it did caused, encouraged or contributed to the posting of the statement, and

(d) the operator responded to a complaint about the statement with expedition and took such action in relation to the statement as was reasonable in the circumstances.

(2) In considering the reasonableness of a defence under this section, a court shall take into account any steps taken by an operator to establish or adopt, and then to enforce or implement, any anti-defamation code of practice, any complaints procedure and any system for ascertaining and making available to a claimant the identity of any person posting any statement sufficient for the claimant to bring proceedings against the person.”

LORD BROWNE OF LADYTON

BARONESS HAYTER OF KENTISH TOWN

11

Page 3, line 19, 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.”

LORD MCNALLY

12

Page 3, line 32, at beginning insert “Subject to any provision made by virtue of subsection (6A),”

LORD LESTER OF HERNE HILL

LORD BROWNE OF LADYTON

BARONESS HAYTER OF KENTISH TOWN

13

Page 3, line 35, after “complainant” insert “and wrongful”

LORD LESTER OF HERNE HILL

14

Page 3, line 35, at end insert “including—

(i) why any facts in the statement complained of are untrue; and

(ii) why any opinions in the statement complained of are unsupportable; and

(iii) why the statement has caused or is likely to cause serious harm to the reputation of the claimant”

LORD MCNALLY

15

Page 3, line 37, at end insert—

“(6A) Regulations may make provision about the circumstances in which a notice which is not a notice of complaint is to be treated as a notice of complaint for the purposes of this section or any provision made under it.”

LORD LUCAS

THE EARL OF ERROLL

VISCOUNT COLVILLE OF CULROSS

16

Page 3, line 37, at end insert—

“( ) Regulations may make provision for a procedure whereby—

(a) a complainant may apply to the court for a declaration that his complaint meets the basic requirements of a libel claim; or

(b) a website operator or the person who posted the statement complained of may apply to the court for a negative declaration that a notice of complaint fails to meet the basic requirements of a libel claim,

provided in each case that the party making the application complies with the procedure laid down in any such regulations.”

LORD MCNALLY

17

Page 3, line 44, at end insert—

“(9A) The defence under this section is defeated if the claimant shows that the operator of the website has acted with malice in relation to the posting of the statement concerned.”

Clause 6

LORD MCNALLY

18

Page 4, line 4, after “journal” insert “(whether published in electronic form or otherwise)”

Clause 7

LORD MCNALLY

19

Page 5, line 39, at end insert “or its auditors”

Clause 10

LORD BROWNE OF LADYTON

BARONESS HAYTER OF KENTISH TOWN

LORD LESTER OF HERNE HILL

20

Page 8, line 16, leave out from “court” to end of line 28 and insert—

“(a) is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher;

(b) there is a prima facie case that the statement complained of is defamatory; and

(c) is satisfied that such person did not know that the statement was defamatory until a claim to that effect was made and did not reasonably believe that there was a good defence to any action brought upon it.”

Clause 12

LORD BLACK OF BRENTWOOD

21

Page 8, line 31, after “gives” insert “final”

Clause 13

LORD MCNALLY

22

Page 9, line 5, at end insert “, or

(b) any person who was not the author, editor or publisher of the defamatory statement to stop distributing, selling or exhibiting material containing the statement.

(1A) In this section “author”, “editor” and “publisher” have the same meaning as in section 1 of the Defamation Act 1996.”

After Clause 13

LORD BROWNE OF LADYTON

BARONESS HAYTER OF KENTISH TOWN

BARONESS HOLLINS

BARONESS O’NEILL OF BENGARVE

23

Insert the following new Clause—

“Disapplication of the Legal Aid, Sentencing and Punishment of Offenders Act 2012

Sections 44 and 46 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 shall not apply in relation to civil actions for defamation or malicious falsehood.”

After Clause 17

LORD PUTTNAM

LORD MACKAY OF CLASHFERN

BARONESS BOOTHROYD

BARONESS SCOTLAND OF ASTHAL

24

Insert the following new Schedule—

“SCHEDULE Specialist Arbitration Service

1 An Independent Regulatory Board must provide an Arbitration Service in relation to defamation and related civil legal claims drawing on independent legal experts on a cost-only basis to the subscribing member.

2 The arbitration rules must provide for a fair, quick and inexpensive process, which is inquisitorial and free for complainants to use (save for a power to make an adverse order for the costs of the arbitrator if proceedings are frivolous or vexatious).

3 The arbitrator shall have the powers set out in section 48(3) to (5) of the Arbitration Act 1996.

4 The arbitrator must be able to hold hearings where necessary or dispense with them where not necessary.

5 The process must include provision for frivolous or vexatious claims to be struck out at an early stage.”

25

Insert the following new Schedule—

“SCHEDULE Recognition Commission

1 This Schedule provides the method by which the Recognition Commission may be constituted for the purposes of this Act.

2 Appointments to membership of the Recognition Commission will be made by the Lord Chief Justice.

3 An individual may be appointed only if he or she has consented to act and is—

(a) a present or former Civil Service Commissioner;

(b) a present or former holder of high judicial office (within the meaning of Part 3 of the Constitutional Reform Act 2005); or

(c) a person who in the opinion of the Lord Chief Justice is suitable for appointment having regard to their reputation and experience and is independent of all political parties and all media organisations.

4 The Recognition Commission must consider whether an Independent Regulatory Board body has—

(a) sufficient guarantees of independence, including suitable independent, fair and transparent procedures for appointments and funding,

(b) suitable functions, powers, personnel and resources to ensure that it can fulfil its principal objects effectively,

(c) an appropriate standards code,

(d) an arbitration service able to deal with defamation and related civil claims, effective processes for upholding standards,

(e) an efficient procedure for handling complaints, and

(f) is open to all news publishers.

5 The Recognition Commission must review a recognised regulator at least once during the period of two years beginning with the date of certification, and at intervals of not more than three years after that.

6 If having reviewed a body the Recognition Commission is no longer satisfied that it complies with paragraph 4, the Recognition Commission must consult the body and give directions designed to ensure that the body complies with paragraph 4 within a reasonable time.

7 If the body fails to comply with directions given under paragraph 6 the Recognition Commission must revoke the body’s certification.

8 The Recognition Commission shall not be involved in the regulation of any subscriber to an Independent Regulatory Board.”

BARONESS O’NEILL OF BENGARVE

BARONESS HOLLINS

[As an amendment to Amendment 25]

26*

At end insert—

“9 An Independent Regulatory Board must be a company limited by guarantee.

10 A Board must be independent in the performance of its functions.

11 The regulatory system provided by a Board must be open to subscription by any news publisher or other publisher on fair, reasonable and nondiscriminatory terms (although subscription should be made available on different terms for different types of publishers).

12 The members of the Board must be appointed without any influence of news publishers or the Government.

13 The members of the Board must be appointed by an independent panel which must—

(a) be appointed in an independent, fair and open way;

(b) contain a substantial majority of members who are demonstrably independent of news publishers;

(c) include at least one person with current experience of news publishers;

(d) include no more than one current editor of a news publisher;

(e) not include serving members of the House of Commons, or any Minister of the Crown, or any member of the House of Lords or of any devolved Parliament or Assembly who, while a member, has been affiliated to any political party.

14 The Chair of the Board—

(a) must be appointed by the independent panel by an independent, fair and open process, and

(b) must be independent of all political parties and all media organisations.

15 The other members of the Board must be appointed by the independent panel, and the Chair of the Board, using the same independent, fair and open process; and the process must be designed to secure that the Board—

(a) comprises a majority of members who are independent of news publishers,

(b) includes a sufficient number of members with experience of the media who may include former editors and senior or academic journalists,

(c) does not include any serving editor of a news publisher,

(d) does not include any serving members of the House of Commons, or any Minister of the Crown, or any member of the House of Lords or of any devolved Parliament or Assembly who, while a member, has been affiliated to any political party, and

(e) at least a third of whose members are men and at least a third of whose members are women.

16 A Board must be funded under the terms of an agreement between news publishers and the Board, taking into account the costs of fulfilling obligations of the Board and the commercial pressures on news publishers.

17 The Board must prepare an indicative budget which it certifies is adequate for the purpose, in accordance with which funding settlements—

(a) cover five-year periods, and

(b) are negotiated with a minimum notice period of 2 years excluding the year of establishment of the Board.

18 A Board must have a Standards Code which is its responsibility, advised by a Code Committee which may comprise both members of the Board and serving editors of news publishers.

19 The Code Committee—

(a) must include members of the Board who are independent of news publishers (“independent members”),

(b) may include serving editors of news publishers, and

(c) must have a simple majority of independent members.

20 The Standards Code must set out the ethical and legal context within which it applies; together with a clear picture of how good journalism serves the public interest and the implications that has for journalistic behaviour.

21 A Board must provide guidance, in the context of different provisions of the code, on the interpretation of “public interest” that justifies conduct that would otherwise be a breach of the Code.

22 A Board must establish a whistleblowing hotline for those who feel that they are being asked to do things which are contrary to the Standards Code.

23 A Board must require all subscribers—

(a) to maintain appropriate internal governance processes, in particular in relation to the process of obtaining material for publication,

(b) to provide transparency on what governance processes they have in place, and

(c) to give notice of any failures in compliance with the Code, as well as details of steps taken to address those failures.

24 A Board must—

(a) require all subscribers to have an adequate and speedy complaints handling mechanism;

(b) encourage those who wish to complain to do so through that mechanism;

(c) not receive complaints directly unless or until the internal complaints system has been engaged and the complaint has not been resolved within specified time limits.

25 In relation to complaints—

(a) a Board must have the power to hear and decide on complaints about breach of the standards code by subscribers;

(b) a Board must have the power (but not necessarily in all cases, depending on the circumstances, the duty) to hear complaints whoever they come from, whether personally and directly affected by the alleged breach, or a representative group affected by the alleged breach, or a third party seeking to ensure accuracy of published information (in which case the views of the party most closely involved should be taken into account);

(c) a Board must have the power to allow a complaint to be brought prior to commencing legal proceedings, without prejudice to any power of the court to order a stay of the regulator’s action if continuing it would endanger the civil action;

(d) decisions on complaints must be the ultimate responsibility of the Board, advised by complaints handling officials to whom appropriate delegations may be made;

(e) serving editors may not have any role in determining the outcome of individuals’ complaints, nor be members of any Committee advising the Board on complaints and any such Committee must have a composition broadly reflecting that of the main Board, with a majority of people who are independent of the press; and

(f) the mechanism must allow complainants to bring complaints free of charge.

26 The arrangements for subscription to each Board’s scheme must ensure that—

(a) the Board has authority to examine issues on its own initiative,

(b) the Board has sufficient powers, and personnel with the necessary experience and expertise and independence from news publishers, to carry out investigations both into suspected serious or systemic breaches of the Code and failures to comply with directions of the Board,

(c) subscribers are required to cooperate with any such investigation, and

(d) the investigation process must be simple and credible.

27 A Board must have both the power and a duty to ensure that all breaches of the standards code that it considers are recorded as such and that proper data is kept that records the extent to which complaints have been made and their outcome; and this information must be made available to the public in a way that allows understanding of the compliance record of each title.

28 In relation to breaches of standards which a Board finds to have been established—

(a) the Board must have the power to direct appropriate remedial action for breach of standards and the publication of corrections and apologies;

(b) the Board must have the power to require publication of a correction and an apology;

(c) the Board must have the power to direct the nature, extent and placement of apologies;

(d) the Board must have the power to impose appropriate and proportionate sanctions (including financial sanctions up to 1% of turnover, with a maximum of £1 million) on any subscriber found to be responsible for serious or systemic breaches of the standards code or governance requirements of the body;

(e) the Board must not have the power to prevent publication of any material, by anyone, at any time although (in its discretion) it should be able to offer a service of advice to editors of subscribing publications relating to code compliance which editors, in their discretion, can deploy in civil proceedings arising out of publication.

29 The Board must demonstrate at the time of recognition that it has the ability and a timetable to consider all the matters set out in paragraph 29.

30 The Board must demonstrate at the time of a review by the Commission that it has considered the matters set out in paragraph 29 since recognition or the previous review (if any).

31 The matters to be considered by the Board are—

(a) the publication of compliance reports by papers in their own pages, and requiring papers to have named senior individuals with responsibility for compliance;

(b) the establishment of a kite-mark scheme;

(c) the holding of an early review of the Code;

(d) the need to be explicit in its work that where public interest justification will be used, there should be a record of factors weighing for and against publication, and conclusions reached;

(e) the provision of an advisory service to editors in relation to public interest considerations; and

(f) a requirement for there to be a conscience clause in journalists’ contracts.

32 The Board must publish an Annual Report identifying—

(a) the Board’s subscribers, identifying any significant changes in subscriber numbers;

(b) the number of complaints it has handled and the outcomes reached, both in aggregate for all the subscribers and individually in relation to each subscriber;

(c) a summary of any investigations carried out and their result;

(d) a report on the adequacy and effectiveness of compliance processes and procedures adopted by each subscriber;

(e) information about the extent to which the arbitration service had been used;

(f) information relating to its financial arrangements in the exercise of its functions and any changes to financial arrangements.

33 The Board must establish a ring-fenced enforcement fund into which receipts from financial sanctions are paid, for the purpose of funding investigations.

34 The Board must have the duty to provide advice to the public in relation to issues concerning its subscribers and the Code.

35 The Board must have the duty to cooperate with any other recognised Board and must put in place procedures to enable such co-operation.”

Prepared 5th February 2013