Conclusions and recommendations |
Significant Human Rights issues raised by the
1. We do not think that the retention of the Reynolds checklist of factors will bring about the much-needed rebalancing of the law on defamation in favour of the right to freedom of speech in Article 10 ECHR. We think that to retain these factors will only perpetuate the difficulties already manifest in practice. We note that the Government has indicated in its response to our letter that it is currently considering how best to respond to proposals for a new public interest defence. We therefore recommend that the Government take this opportunity to abandon the statutory checklist of factors in favour of clear, unambiguous defence of public interest.
2. We note that the Government is currently considering the concerns around the drafting of Clause 4 and the decision in Flood. We urge the Government to ensure that any public interest defence contained in the Defamation Bill provide at least the minimum protection afforded at common law to editorial judgement.
3. We are not persuaded by the analysis of Professor Phillipson. We take the view that Lord Lester's proposal is Convention-compliant, as the courts, when assessing whether a journalist's belief was reasonable, will apply the same analysis already conducted under the Reynolds test but without a checklist of factors. A defence of 'reasonable belief that the publication was in the public interest', will clearly encompass consideration of what steps, if any, a publisher took to verify the alleged defamatory statement. Furthermore, we take the view that judges will inevitably use Article 8 to shape their understanding of 'public interest'. For these reasons, we are persuaded by the reasoning of Professor Mullis and Dr Scott. We recommend that the Government amend the Bill, to replace Clause 4 with a general test of the defendant's reasonable belief that the publication was in the public interest, without a checklist of factors.
4. We recommend that the threshold for a Clause 5 notice should be elevated to 'unlawful', which would also ensure consistency with the E-Commerce Directive and the Pre-Action Protocol for defamation.
5. We welcome the Government's intention to consult with stakeholders on the contents of the draft regulations by the end of the year. We recommend that the Government amend Clause 5(8), so as to adopt the affirmative resolution procedure, which will enable greater consultation and scrutiny of the forthcoming regulations. These regulations will effectively govern how website operators will be expected to respond to defamatory notices, and therefore should be the subject of full Parliamentary debate via the affirmative resolution procedure.
6. We note the concerns raised by UCISA and Janet.
We think that the Government should consider providing statutory
guidance so as to make it plain what steps universities and colleges
should take when faced with a Clause 5 notice. We think that this
statutory guidance should further clarify whether or not an educational
institution will be liable under the Education (No. 2) Act 1986
if it complies with a Clause 5 notice and removes allegedly defamatory
material from its website. We also recommend that regulations
made pursuant to Clause 5 should make provision to preserve the
anonymity of whistleblowers. (Paragraph 48)
7. We note the evidence of Professor Mullis and Dr Scott on the impact of Clause 8 and the single publication rule. We ask the Government to reassure us that Clause 8, as drafted, will provide adequate protection for subsequent publication of defamatory material. If, however, the Government cannot persuade us that Clause 8 will function effectively so as to curb litigation for multiple publication, we would encourage the Government to explore an alternative defence of non-culpable republication.
8. We take the view that businesses ought only to succeed in defamation proceedings where they can prove actual damage. We therefore recommend that the Bill be amended so as to require non-natural legal persons to show substantial financial loss. This requirement should be relative to the nature, size and scope of the claimant business or organisation.
Wider issues raised by defamation reform
9. We are concerned that this change to CFAs
and ATE may inhibit access to justice for those claimants and
defendants who are middle-income, but not eligible for legal aid.
We are particularly concerned that the reforms in the LASPO Act
2012 do not tackle this issue, as the present rules on CFAs may
prevent claimants and defendants of modest means from accessing
the courts, a particularly pertinent concern when the action is
one of defamation. (Paragraph 68)
10. We note the Government's ongoing efforts to address this particular issue, and welcome its ongoing consideration of the 'costs protection' issue. We remind the Government that a solution to the difficulty faced by "middle income, not eligible for legal aid" claimants and defendants is necessary if defamation reform is to be effective in practice, so that all persons, regardless of financial means, can access justice in defamation proceedings.
11. We have concerns that the development of
the relationship between qualified privilege and section 7 claims
under the HRA 1998 may inhibit local authorities in their ability
to execute their statutory functions, under the Children Act 1989,
to investigate safeguarding and child protection matters. We recommend
that the Government make further enquiries and keep this matter
under review. (Paragraph 74)