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17 Dec 2008 : Column 81WH—continued

10.19 am

Richard Ottaway (Croydon, South) (Con): I join others in congratulating the right hon. Member for Rotherham (Mr. MacShane) on securing this debate. It has been a particularly high-quality debate, but the battle lines have been drawn. The right hon. Member for Rotherham and my hon. Friend the Member for Surrey Heath (Michael Gove), with their distinguished journalistic backgrounds, veer towards the freedom of expression side of the argument; my neighbour the hon. Member for Croydon, Central (Mr. Pelling) veers towards the protection of the individual, and I will come down on his side in my remarks.

I draw it to the attention of the right hon. Member for Rotherham that at the beginning, Mr. Cook, you sensibly quoted from “Erskine May”, but he has called in public, in the mother of Parliaments, for an investigation of two firms of solicitors. I sincerely hope that he has something with which to back that up, because it is one of the most serious allegations that can be made against a component part of the judiciary.

Mr. MacShane: I should have declared an interest as a former president of the National Union of Journalists; I hope that all of us here declare all our interests. In my region of south Yorkshire, we have taken action against solicitors in connection with moneys and compensation paid to miners. The notion that an ordinary individual, let alone an MP in the House of Commons, cannot ask the Law Society to investigate any solicitors’ firm is quite remarkable. Such outfits tout for business. They boast on their websites that they will obtain redress. The Law Society needs to take the matter into consideration.

Richard Ottaway: There is a world of difference between complaining about the activities of a firm of solicitors in conducting its business and calling on the Law Society to investigate, but I will let the matter rest there. Perhaps I should have declared at the outset my interest as a practising solicitor, although, having had the conduct of libel actions in the past, I no longer have any libel practice.

What we have here is the clash of three conflicting rights against each other: freedom of expression, the right to privacy and the right not to be libelled. There is an important distinction to be made between the right to privacy and the right not to be libelled, or between privacy and libel. If someone engages, for example, in sadomasochistic sex in private and a newspaper publishes that fact, it is open to the people concerned to complain that their right to privacy has been breached. If someone has said, obiter, “Sadomasochistic sex is not the sort of thing I get up to,” the press are quite right to say that
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that person does not have a right to privacy, because he is, in effect, being a hypocrite. If, however, someone does not engage in sadomasochistic sex but a newspaper says that he is, that is libel. There is a big difference between privacy and libel, and I hope that on another occasion we might have a debate on the right to privacy rather than on libel.

The press focus on the right to freedom of expression. My hon. Friend the Member for Surrey Heath highlighted the fact that the press have done noble service in exposing crimes. However, it is not that that people are complaining about; of course the press have a role in exposing crime, wrongdoing and hypocrisy. They are complaining about individuals’ right to privacy being breached. That is where I suspect my hon. Friend and I interpret the same set of facts differently with regard to what is in the public interest. Is it in the public interest that someone who engages in a private activity on his own property should have that fact published in a newspaper or broadcast?

The right hon. Member for Rotherham discussed the publication of a New York Times article and its worries about libel laws here. The point, which relates to my intervention, is that if The New York Times is published in the United Kingdom, the newspaper must stand by its statements under the jurisdiction of UK laws. If the United States passes a law saying that that cannot happen, that will not affect what goes on here, because the United Kingdom is the jurisdiction to which any publication or statement made in the United Kingdom is subject. That applies to books as well. A book published in the United Kingdom, although it may have been written overseas, is subject to UK laws.

Mr. MacShane: It is very decent of the hon. Gentleman to give way. I do not want to eat into the former Front-Bench spokesman’s time, but is he aware of the consequences of following that path of argument? The libel tourism Act that is now before two US state legislatures, and that may possibly go to Congress, will allow an American citizen to countersue in a US court and for an American court to impose damages and fines on someone who sued in a British court.

Mr. Pelling: American imperialism at its best.

Mr. MacShane: No, it is not that. It is British imperialism to think that a British court can stop the publication of a book, order it to be pulped and impose a fine on an American writer for something that has not been sold or displayed in a book shop in this country. We must understand forum non conveniens. We sue in the country where the person is principally based and where the publication is published, not in a country where a few copies may be bought.

Richard Ottaway: The right hon. Gentleman repeats points that he made in his speech. What the Americans do and how they conduct themselves in the courts is entirely a matter for them. The Front-Bench spokesman, my hon. and learned Friend the Member for Harborough (Mr. Garnier), knows far more about the libel laws than I do and will no doubt touch on that. I am making the simple point that a publication in this country is subject to UK laws.

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On the question of contingency fees, I think that they are one of the most significant developments in the protection of the individual. Before their introduction, the only people who could run a libel action were those on legal aid and the very rich, not the middle class. I am happy to be a part of the middle class and to stand up for its values—

Mr. MacShane rose—

Richard Ottaway: The right hon. Gentleman may say nay—

Mr. MacShane: No, I actually agree with the hon. Gentleman on this.

Richard Ottaway: I congratulate the Government on introducing that measure—I think it was this Government who introduced it—because it allows the individual a chance to fight back if he feels that his privacy has been breached or that he has been libelled.

My hon. Friend the Member for Surrey Heath spoke about Lord Hoffmann’s remarks on contingency fees in the House of Lords. In the same judgment, Lord Hoffmann said that the right to expression does not trump the right to privacy or the right not to be libelled, that there must be a balance and that one was not to exclude the other.

One good suggestion made by the right hon. Member for Rotherham was that of a small claims court for libel action. I had not heard that idea before today. The MP whose local newspaper has misreported him wants some little vehicle to make his point. The Press Complaints Commission still has a long way to go to establish its credibility fully on that front, so such a vehicle has some attraction. If some inquiry goes into it, as the hon. Member for North Norfolk (Norman Lamb) suggested, I hope that it will be on the agenda.

Bob Spink (Castle Point) (Ind): Is the hon. Gentleman aware that there is a form of small claims court in the pre-defamation protocol that must be gone through? Using that, I have settled out of court with a small sum: an immediate apology in the newspaper and £100 paid to my local church. I settled in that way with a number of newspapers that repeated a defamation almost innocently. We should use the large hammer to crack the large nut.

Richard Ottaway: I seem to be in a minority in not being subject or party to a libel action, so I do not speak with any experience. My hon. Friend—excuse me, the hon. Gentleman—makes a useful contribution. [Interruption.] He is now an ex-Friend, but he is still a personal friend.

The media in this country are tremendous. They play an important role. They are, of course, self-appointed and self-selecting, but their contribution to British society is none the less paramount. However, they must realise that at times, some elements of the media can behave irresponsibly. The libel laws exist to protect the citizens of this country, and those laws should not be eroded.

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10.29 am

Dr. Evan Harris (Oxford, West and Abingdon) (LD): I should also start by declaring interests, in that I have also had to seek recourse to talk to lawyers and indeed pay them in relation to a media attack. However, I did so with a heavy heart and the matter has not yet gone any further into court. That is because I think that there is a real challenge in this country at the moment in respect of threats to free speech. I do not think that that particular right—the right to free expression—receives enough protection in the law or by the police.

My record on this issue personally is one of campaigning generally for more freedom of expression, for example in respect of the abolition of the law on blasphemy. I did not have the opportunity to check if hon. Members who are arguing for free speech in respect of the press voted the right way on all the votes that we had on the abolition of that law, but I certainly welcome the fact that we no longer have it. Indeed, I played a part in defeating the Government’s original proposals on religious hatred, which were a real threat to free expression.

There is also an issue in respect of overuse of section 5 of the Public Order Act 1986, both in terms of its scope and the way that the police actually police it. What we are dealing with now is another area where there needs to be some work done, and I speak on behalf of my party in this respect.

It is important to pay tribute to organisations that are not necessarily sponsoring this debate but are sponsoring calls for a review of the libel laws, such as PEN, the writers’ organisation that has done so much work in campaigning for the civil rights and human rights of writers abroad and indeed for the freedom to author in this country, and Index on Censorship. There is also Article 19, the organisation that is 20 years old this year, which has a fantastic record abroad more than here in seeking to ensure that there is freedom of expression.

One of the questions that needs to be asked, as well as the questions about the libel laws, is whether or not the Government are concerned about other issues that affect the ability of the press and others to speak freely. There is a proposal for a defamation of religion provision at the UN and there is a law against holocaust denial, which emanates from the EU. It is an outrageous thing to deny the holocaust, but I do not think that we should criminalise being wrong.

Also, we have a law in this country on criminal defamation, which relates to this debate. So I would be interested to know if the Government can explain what their proposals are on this issue, because in answer to a question from Lord Lester of Herne Hill on 13 May 2008 about whether or not they planned to abolish the common law offence of criminal libel, the Government said:

We are coming to the end of the year now and it would be very helpful if the Minister said where that consultation paper is now and whether or not it is going to be forthcoming.

Of course, we also have an offence in this country of seditious libel. It is never used, but it is allowed by other
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countries to justify their having it and using that law to hold people down and repress them in terms of what they can say.

I do not think that there is any doubt that there is a problem in this country, not just in respect of the way that libel laws work and the problem of libel tourism, but the fact that there is now a chilling effect from this matter. So it is not only the cases that come to court that should concern us and the judgments therein, or the sort of people who are coming to court, but the fact that this matter is now known, it is out there and there must be some restraint being placed on authorship. That sort of restraint, and that chilling effect, is something that we must take into account and regret almost as much as the problems that exist.

As hon. Members have already said in what has been an excellent debate—I do not have time to try to respond to all the points that have been made, nor would it be appropriate for me to do so—it is important to distinguish the problem of libel from the allegation of a problem of privacy law. That is because I think that in this area Paul Dacre, the editor-in-chief of The Daily Mail, was wrong. Ever since we signed up to the European convention on human rights, judges have had to balance article 8 with article 10 and I think that the emerging case law does that appropriately. I also think that Mr. Justice Eady has done it appropriately and if it is claimed that he did not do it appropriately, there is, of course, the right of appeal to the Court of Appeal and to the Law Lords. In particular, my view of the Mosley judgment, having read it, is that it was mature, detailed, balanced and reasonable, and we should separate out that issue—the privacy law—from concerns that the media have about the libel law.

There are several questions raised by the libel law. Is the burden of proof correct? Is it right that the defendant has to prove that a claim is true rather than the claimant having to prove that it is false, and are there sufficient defences? A second question is what should we do about internet sites and internet service providers and about issues related to jurisdiction?

I think that it is appropriate to respond to the interesting, excellent and typically provocative speech by the right hon. Member for Rotherham (Mr. MacShane) who introduced the debate. There is also an interesting issue about a small claims libel court and perhaps that is something that should be pursued. In respect of conditional fee agreements being restricted only to people who qualify for legal aid, I think that that would be too restrictive. That suggestion is more a comment on how restrictive it is to obtain access to legal aid; one does not have to be in any way wealthy or well off not to qualify.

I would refer the right hon. Member for Rotherham and other hon. Members to the excellent report of the Constitutional Affairs Committee—its third report of the 2005-06 Session—that covered some of the issues that have been discussed today around CFAs. The right hon. Gentleman questioned whether there should be more of a time limit; my understanding is that there was a time limit on libel actions.

Mr. Pelling: One year.

Dr. Harris: Indeed; the hon. Gentleman tells me that the time limit is one year.

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There is a further point about what we should do about blogs. I am not sure that it is possible to ban anonymity on blogs, because that would just encourage people to give false or incomplete names and addresses, so we must have a more holistic solution to that problem.

Bob Spink: The hon. Gentleman is asking what we should do about internet defamation and blogs. Would it be so difficult, in fact, to prevent anonymity? Where newspapers set up sites so that readers can make comments, they never force readers to give their true e-mail addresses, although newspapers would be able to do that; they would be able to force readers to give their true e-mail addresses. Would that not be a jolly good start, to ensure that people who wanted to say something had to identify themselves, either through their e-mail address or some other means, rather than just putting “Mickey Mouse” and saying some rather stupid and awful things, as they do?

Dr. Harris: It would be possible, but of course it is also possible to set up a temporary hotmail e-mail account, for example, so that would not be the overall solution.

The right hon. Member for Rotherham also questioned whether law firms were behaving appropriately. I am not sure about that issue. To a certain extent, I agree with the hon. Member for Croydon, North on this issue—sorry, the hon. Member for Croydon, Central.

Richard Ottaway (Croydon, South) (Con): Croydon, South.

Dr. Harris: I will get there in the end, as I head down through Croydon, which is a fascinating place, I am sure.

As I was saying, I am not sure that attacking law firms for touting for business is appropriate. Clearly, it is not an offence to tout for business, nor is it wrong or an offence to invite the Law Society to inquire. However, I think that that suggestion is probably a red herring. We need to deal with the law rather than the practice of solicitors.

In respect of some of the issues that we face, it is important to recognise just how absurd the problem of libel tourism is. The Economist, in an excellent article in May, gave the example of a Ukrainian case, where a small Ukrainian newspaper, which had only a handful of subscribers in this country—perhaps only a double-digit number of subscribers in this country—was sued in this country by a very wealthy Ukrainian. The article continued:

that is, won by the gentleman concerned—

That is a sign that things are indeed going too far.

There is also the question of the scope of Reynolds. I agree with the hon. Member for Surrey Heath (Michael Gove) who said that it was important that the Reynolds tests must be seen as a whole and not as individual hurdles. In particular, we should be encouraged by the fact that the Jameel case made that clear in the House of Lords. I hope that the development of that case law will be helpful. I am sceptical as to whether or not it provides a permanent solution, because although that
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case law is developing we still have the problem of people coming to sue here. Maybe the Rome II provisions emanating from the European Union will give protection to internet service providers, but I think that the Government have a task to reassure not just newspapers but bloggers and other individuals in this country that they are appraised of the problem and that they will either give Parliament an opportunity to debate this issue and even legislate on it or have some sort of review to deal with this problem, further than the Culture, Media and Sport Committee inquiry that has just been announced.

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