Defamation Bill

Memorandum submitted by the Booksellers Association (D 02)

May we start off by saying that we are absolutely delighted that the earlier Joint Committee and the Ministry of Justice have listened to our previous representations and that a new Clause 10 has been introduced in an effort to give us better protection.  We are extremely grateful.  However, in spite of secondary publishers like booksellers now being in an improved position, we are still concerned that the proposals don’t give us the appropriate protection that we really need.

When does a ‘clogging letter’ have authority?    

This is a key point.  Will the Courts require the Clause 10 issue to be adjudicated before a claimant (or his/her lawyers) can rely upon a so-called ‘clogging letter’ demanding that the bookseller remove the book from sale?  (As a secondary publisher, the bookseller wouldn’t have a clue as to whether a particular passage in a book was on-side or off-side.)

To rectify this, could it be built into the new Bill that a ‘clogging letter’ can only have authority after the date at which a Court has ruled on the preliminary clause 10 issue?  And that, moreover, the claimant would be required to ask the Court to decide on this preliminary issue ……… and then it would be up to the Court to decide whether the bookseller should be joined at these preliminary proceeding?

This would seem to us to make a great deal of sense, as otherwise a cautious bookseller – uncertain in difficult cases as to the outcome under clause 10 – might well want in any event to consider whether the secondary publisher can rely on the Section 1 1996 Act defence.  (If the ‘clogging letter’ has authority before a Court was able to review the situation under clause 10, then it would seem to us that much of what clause 10 was meant to achieve would be substantially undermined.)

Section 1 1996 Act

If the claimant manages to find a way past the clause 10 defence,  then the bookseller will in practice have to rely on the defence in section 1 of the 1996 Act with all the inherent problems that we have on numerous occasions described (please see section 2 of the attached).  In the past, we have engaged the services of specialist Counsel [Edward Garnier and Gordon Bishop] to look at the problems of section 1 for us, and we have put forward specific revised wording for Section 1 (please see section 6 of the attached).  Could this suggested new text that we have proposed – or Lord Lester’s suggestions on a new Section 1 - be taken into consideration? 

The phrase "reasonable practicable" in Clause 10

If clause 10 of the Bill is passed into law, then a Court asked to adjudicate on any proceedings brought against a bookseller (or any other secondary publisher) will have to consider as a preliminary issue whether or not "it is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher". There is at present no guidance given in clause 10 or elsewhere in the Act as to how the judges should construe the term "reasonably practicable" and whether issues raised extend beyond identification of the alleged defamer to, for example, the complications of litigating in a foreign jurisdiction or the fact that the prospective defendant does not have assets sufficient to meet a judgement. Some guidance in the Bill would assist greatly in bringing a degree of certainty - so important in business  - as to the extent of availability of the defence. 

June 2012

Prepared 26th June 2012