Memorandum from the Booksellers Association

 

1 EXECUTIVE SUMMARY

 

In this brief submission to the Culture, Media and Sport Select Committee, The Booksellers Association would like to make the following points:

 

There are important changes needed to section 1 of the Defamation Act 1996 which, as drawn, places booksellers in an invidious position.

 

The Booksellers Association has already made detailed submissions to the (then) Lord Chancellor's Department.

 

There are important matters of freedom of expression and the free flow of literary works at issue.

 

The Booksellers Association believes that the present review of aspects of the law of libel by the Select Committee offers an opportunity for the uncertainty created by the wording of section 1 of the Defamation Act - quite unintentionally, we believe - to be rectified.

 

2 THE BOOKSELLERS ASSOCIATION

 

2.1 The Booksellers Association of the United Kingdom & Ireland Limited ("the BA") is a trade association, based in London SW1, with over 4000 outlets currently in membership selling new books.

 

2.2 Members range from all the large bookselling chains to independents and specialists, both big and small. The table below gives some examples of the types of booksellers in membership.

Type of bookseller

Example(s) of BA member

Large chain with mixed business

W H Smith

Large specialist chain

Waterstone's, Borders

Large academic business

Blackwells

Small independent

Daunt Books, John Sandoe

Library supplier

Holt Jackson

Supermarket

Tesco Stores, Sainsbury's

Wholesaler

Bertrams, Gardners

 

2.3 The BA is the largest trade association in the world representing booksellers. Our purpose is to help our members:

 

Sell more books.

 

Operate from a lower cost base.

 

Improve competitiveness and productivity.

 

Network with others in the book world and beyond.

 

Represent their views to government and others.

 

2.4 We very much welcome the opportunity to contribute to the Committee's deliberations on the Defamation Act 1996 ("the Act") and are of the view that a particular issue arising from the lack of clarity of section 1 of the Act could with comparative ease be addressed by the amendment of section 1 in the manner suggested by Mr Bishop in his submissions on the (then) Defamation Bill (see below). The problem affects the whole of the bookselling industry and, as books may be prevented from reaching the public domain, freedom of expression and the free flow of literature.

 

3 THE POSITION OF BOOKSELLERS UNDER THE ACT

 

3.1 The BA has taken extensive legal advice from senior specialist defamation Counsel, Mr Gordon Bishop and Mr Edward Garnier QC MP. We have been advised that as a result of loose drafting section 1 of the Act possibly admits of unintended interpretations which could allow for authors and publishers to be effectively "gagged" without any proceedings having been instigated against them. This is achieved by simply allowing claimants to threaten booksellers with defamation proceedings unless they withdraw a particular literary work from sale.

 

3.2 Section 1 of the Act was - we have been advised - intended to provide a statutory defence in place of but identical in effect to the old common law defence of "innocent dissemination" which had given booksellers a degree of protection. The defence available to booksellers under the common law was that they had taken (or been provided by the publisher of the particular work with) professional advice to the effect that either the material was not in itself defamatory or that if defamatory there existed one of the standard defences.

 

3.3 We are advised, however, that the protection which the Act was intended to provide may be inadequate and makes it possible for a claimant who believes that he has been defamed to make a claim against the bookseller demanding inter alia that distribution to the public be stopped immediately and copies removed from the shelves or website. This the claimant could do, as has already been mentioned, without first threatening / bringing proceedings against the author or publisher who are, of course, much better placed to mount one of the statutory defences being more likely to have direct knowledge of the subject matter of the alleged libel.

 

3.4 Under section 1 of the Act booksellers as "secondary publishers" (who include in addition to booksellers, newsagents, distributors and in some circumstances printers) are vulnerable to threats of proceedings. Such threats are sometimes known as a "gagging writs" and the claimant's strategy in such instances as "tactical targeting". These are effective under the present wording of section 1 if the bookseller knows - or has reason to believe - that the publication contains a defamatory statement. Thus distribution of the work may be stopped simply by virtue of the threat itself and/or publicity to that effect.

 

3.5 The BA made representations over a number of years from 1997 to, corresponded and had meetings with the (then) Lord Chancellor's Department ("the LCD") and the Law Commission. Unfortunately, the effort and considerable expense incurred was to no avail as the LCD had other more pressing priorities. Five years after our initial representations however the LCD formally asked the Law Commission to produce a scoping study of problems that had arisen in the implementation of the Act.

 

3.6 The BA made written submissions to the Law Commission dealing with the problems arising from section 1 of the Act. The fundamental point made by the BA was that booksellers should - as had been the case with the common law defence of innocent dissemination - be free from the threat of proceedings against them unless:

 

at the time they sold the particular publication it could be proved that they knew it was defamatory of the claimant and did not reasonably believe that there existed a valid defence to any action in defamation; and

 

the claimant had no sufficient prior redress against the author or the publisher.

 

3.7 We were gratified that The Law Commission - as part of its report to the LCD - recommended that the Government should review section 1 of the Act in order to ensure that it dealt fairly and in a balanced way with the position of booksellers (and other such secondary publishers). Unfortunately again the Government's heavy legislative programme has prevented it from introducing amending legislation.

 

3.8 The BA would urge the Select Committee to consider carefully the submissions that we now make. Included in these and attached as Appendices 1 and 2 to our paper,[1] are copies of the following which deal in more detail with the technical issues:

 

The paper on the (then) Defamation Bill submitted to the LCD by Mr Gordon Bishop of counsel, on behalf of 5 Raymond Buildings, the chambers headed by Mr Patrick Milmo QC. Paragraphs 1 to 3 and 4.1 to 4.7 are of particular relevance.

 

A memorandum submitted on behalf of the BA to the Head of Law Reform and Tribunal Policy at the LCD on 17th October 1997 and covering letter from Mr Michael Nathanson of that same date.

 

4 IN CONCLUSION

 

4.1 The BA believes that there are important issues affecting freedom of expression and the free dissemination of literature that need to be addressed in the present review by the Select Committee.

 

4.2 It is, with all due deference - but with the benefit of advice received from the two senior defamation counsel, already mentioned - that we make our submissions.

 

4.3 The BA will be pleased to assist the Select Committee if it so wishes in any way that it considers appropriate.

 

June 2009



[1] Not printed here