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'(2A) The court may dismiss the plaintiff's claim where the defendant relies on the defence available under section 1(1) of this Act, unless the plaintiff can show that the facts of the case are such as to be unlikely to allow such a defence to be established, and the court is so satisfied.
(2B) The court may dismiss the plaintiff's claim where the defendant is a retailer, distributor or library and relies on the defence that he did not stock or hold the publication in which the alleged defamatory statement was published, unless the plaintiff can show that the facts of the case are such as to be unlikely to allow that defence to be established, and the court is so satisfied.
(2C) Where the defendant informs the court of his intention to rely on a defence provided for under subsection (2A) or (2B) above, the court shall be required to consider whether it should dismiss the plaintiff's claim; and in any such proceedings a body corporate shall not be bound to employ a solicitor to be on record with the court as acting for it, and in any such proceedings a limited company may be represented by one of its directors.'.
Mr. Bottomley: I preface my remarks by saying that I have been involved in a number of libel actions, none of which is relevant to the new clauses or amendments. I believe that the hon. Member for Islington, North(Mr. Corbyn) plans to speak to this group of amendments on behalf of the sellers. I was alerted to the issue by the periodical publishers, and I hope that hon. Members will forgive me if refer extensively to their briefing.
One of the intentions of the Bill is to create a new statutory defence that will be available to distributors, printers and others who do not have primary responsibility for a defamatory publication, provided that they neither knew nor had reason to believe that their acts contributed to the publication of defamatory material. That defence is set out in clause 1, and it was debated in Committee. The terms of the clause are such that some practitioners in law believe that the defence will seldom be available for use.
Clause 1(3) states that those who rely on the defence should not be considered the author, editor or publisher. I am advised that further conditions have to be satisfied and, in considering them, it should be borne in mind that the person for whose benefit the defence has been devised will have had no practical opportunity to see the material before it is published.
Clause 1(1)(b) states that reasonable care must have been taken, as defined in clause 1(5), and clause 1(1)(c) states that the persons concerned must show that they did not know and had no reason to believe that what they did caused or contributed to the publication of a defamatory statement. Again, that is defined in clause 1(5). Clause 1(5) lays down three criteria that determine whether a person took reasonable care:
Given the fact that there is hardly a publication in the United Kingdom that has not published a defamatory statement at some time, it is difficult to see how any of the persons intended to benefit can do so. In addition, every defamatory statement is not actionable--it may be protected by privilege, or the person who has been defamed may not have a reputation that is worth bothering about.
The problem starts because the defendant must show that he did not contribute to the publication of a defamatory statement. When we talk about "a" defamatory statement, it means "any" defamatory statement. Therefore, an amendment to change "a" to "the alleged" would make the defence more available--it would then become the alleged defamatory statement. I suspect that the draftsmen will be prepared to accept that alteration. If they are not, perhaps the Minister can share with the House precisely why that which the practitioners think would be useful and make the defence effective cannot be brought into the Bill.
This point has come up rather late in a Bill that has had a reasonable amount of bipartisan agreement on the main clauses. When there is partisan dispute about a Bill, the process takes longer and it is possible for those with practitioners' experience to share their views with the Government, the civil service, the Opposition and the media. Therefore, more attention is given to the issues that could be incorporated in the Bill in a non-partisan way. The approach to the Bill has been reasonably non-partisan in most of its passage through Parliament, which is one of the reasons why some of the practitioners are, rather late in the day, trying to amend it.
Paragraph (c) would create a difficulty. The Periodical Publishers Association recognises that distributors and others should not have carte blanche to carry publications of any nature without any risk to themselves. The trouble is that because the paragraph refers to the conduct of the publishers, the distributors of a children's comic would not be able to use the new defence. I tabled an amendment that substituted the word "publication" for "publisher". Unfortunately it was not selected, but it is relevant because it would avoid the difficulty and relieve the plaintiff and the defendant of the need to compile a dossier of claims to try to determine "previous conduct".
I tabled all my suggestions as amendments, and two have been selected for debate. They would not harm the Bill and they would be useful. If, by any chance, not all of them can be accepted by the Government tonight, I hope that they will have discussions with the Periodical Publishers Association and others so that the amendments might be incorporated in another place. The amendments are not a criticism of the drafting of the Bill: they are an attempt to improve it.
Mr. Corbyn:
I was slightly ahead of myself in my previous attempt to intervene. I tabled amendments Nos. 16 and 17 on Report to try to deal with the dangers of libel proceedings for booksellers. It is a serious matter, because the selective libel actions that are being taken against a number of small and independent booksellers threaten their existence. Libel actions can be used selectively to practise censorship on other people's opinions. I look forward to what the Government have to say on the matter and, even if they are not prepared to accept the amendments, I hope that the Minister will be prepared to accept that there is a serious problem with the way in which libel actions have been taken against individual booksellers.
Amendments Nos. 16 and 17 would make it difficult for any potentially litigious person who takes a libel action against an individual who has written a defamatory article about him to extend that action beyond the writer of the article and the publisher. Under the present law, if someone writes a libellous article that is published in a newspaper, he clearly exposes himself to a libel action from the person he has libelled, as does the publisher. The printer is held to be liable to a lesser extent. These days, there is so much direct inputting to printing works that it is almost impossible to expect a printer to be able to read everything that he is printing. Likewise, it is not credible to expect someone running a bookshop, a newsagent or a vendor to have read every single magazine or book on the shelves. If they did, they would never be open, because the staff would be detained the whole day reading newspapers and magazines to ensure that they contained nothing that could be damaging to the bookshop.
The purpose of the amendments is not to stop people taking libel actions to protect their interests if anything outrageous was published about them. They are designed to protect innocent booksellers, lenders of books, newsagents and magazine vendors against litigation.
Some hon. Members may have seen the interesting article in last Saturday's edition of The Independent, entitled "Anti-fascist articles prove rich pickings". It described how two ultra right-wing activists in this country have taken a series of actions against Searchlight newspaper. They have enjoined in that action a small number of people whom they deem to be stockists of that magazine and have threatened them with libel action. As there is no access to legal aid in libel actions, a number of bookshops have been forced to settle out of court at considerable cost to them.
The two individuals concerned threaten that the bookshops either stop stocking an anti-fascist magazine such as Searchlight or face the prospect of libel action. They produced a magazine that was deeply critical of the bookshop Centreprise in Hackney and wrote on the front page of the publication, "Produced by courtesy of Housemans bookshop". That bookshop had been forced to settle out of court on a libel action and those people used the proceeds from that action to publish a pamphlet attacking another radical bookshop.
"(a) the extent of his responsibility for the content of the statement or the decision to publish it,
As I said in Committee, this is not the Scallywag defence. If a distributor continues to publish a magazine that is defamatory and actionable every time it is released, the fact that the publishers are people of straw should not provide protection for the people who are retailing it.
(b) the nature or circumstances of the publication, and
(c) the previous conduct or character of the author, editor or publisher."
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