Legislative Scrutiny: Defamation Bill - Human Rights Joint Committee Contents

Written evidence

1. Letter from the Chair, to Rt Hon Lord McNally, Minister of State for Justice, Ministry of Justice

The Joint Committee on Human Rights is currently scrutinising the Defamation Bill for compatibility with the UK's human rights obligations. The Bill clearly has some significant human rights implications, including for the UK's ability to strike the correct balance between the right of an individual to a reputation and the preservation of free speech and expression and the public's right to information.

I am grateful for the detailed ECHR Memorandum addressing issues arising under the European Convention on Human Rights, and to your officials for making themselves available to meet with the Committee's staff. The combination of the ECHR Memorandum, the meeting with officials from the Bill team and the additional information provided following that meeting has made it possible for the Committee's members to focus their scrutiny on the most significant questions which they consider require further explanation or justification. I would be grateful if you could answer the following questions.

The need for an effective public interest defence

English defamation law has been criticised for its failure to provide adequate protection of the fundamental right of freedom of expression. The UN Committee on Human Rights, reporting on the UK's implementation of the International Covenant on Civil and Political Rights in 2008, expressed its concern about this chilling effect on free speech:

"The Committee is concerned that the State party's practical application of the law of libel has served to discourage critical media reporting on matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work, including through the phenomenon known as "libel tourism." The advent of the Internet and the international distribution of foreign media also creates the danger that a State party's unduly restrictive libel law will affect freedom of expression world-wide on matters of valid public interest."

Q1: The Government has accepted the proposition that defamation law is need of both consolidation and reform. Will the Government reconsider its position on Clause 4, and abandon the Reynolds defence in favour of a new, robust defence of public Interest that offers protection of freedom of expression, where matters are of public concern and are the subject of honest opinion, along the following lines:

"It is a defence in an action for defamation (a) for the defendant to show that the statement complained of was on, or formed part of a publication on, a matter of public interest, and (b) if the defendant honestly and reasonably believed at the time of publication that the making of the statement was in the public interest."

Q2: Will the Government consider removing the statutory list of factors contained in Clause 4(2) so as to remove the risk that courts will apply these factors in a rigid, narrow manner?

Q3: Does the Government believe that the drafting of Clause 4 adequately reflects the protection afforded by the existing common law, most notably the relevance of editorial judgement, in light of the decision of the Supreme Court in Flood v Times Newspapers?

Q4: If the Government wishes to retain the list of factors in Clause 4(2), will it consider an amendment to the wording so as to make it plain on the face of the statute that editorial judgement will be relevant when a court determines if a journalist, editor or publisher has acted responsibly?

Q5: Will the Government amend Clause 4 so as to prevent a defendant relying on the public interest defence where a claimant can demonstrate:

(i) that the claimant requested that the defendant print a correction to the statement complained of; and

(ii) that the defendant unreasonably refused to do so, or did so subject to unreasonable restrictions.

Responsible journalism and the relevance of professional codes of conduct

Q6: Given the Government's emphasis on the importance of responsible journalism (in this Bill and the Leveson Inquiry, for example) will the Government consider making an explicit reference to the relevant professional codes of conduct, as other legislation already does,[22] so as both to (i) encourage greater responsibility by journalists, and (ii) foster an environment of self-regulation within the press, thus avoiding expensive litigation?

Q7: In the Government's view, would an amendment which obliged the court to take into account whether or not any such codes were broken in an individual case assist the court in determining whether the defence of responsible publication is made out?

Q8: Given the historic unpredictability of the Reynolds defence, would reference to a code of conduct or similar guidelines assist the courts in ensuring cases are dealt with in a fair, consistent manner?

Q9: Would the Government reconsider its position in terms of Clause 4, and abandon the Reynolds defence in favour of a new, effective defence of public interest which would provide that statements which cannot be shown to be true are promptly clarified or corrected with adequate prominence, thus delivering an appropriate remedy to the claimant with no need for the expense of a full trial?

Clause 5 and consistency with the E-Commerce fEU) Directive Regulations

Q10: Will the Government reconsider the drafting of Clause 5(4) so as to provide that a complainant must demonstrate why a statement is unlawful and not just defamatory, which would bring Clause 5 into line with Regulation 19 of the E-Commerce (EU Directive) Regulations?

Regulations under Clause 5

Q11: Would the Government reconsider drafting Clause 5 so as to allow for the use of the affirmative resolution procedure, so as to give greater scope for debate between website operators parliamentarians and wider stakeholder groups, with a view to draft a coherent, balanced procedure?

Q12: Will the Government undertake to publish in draft the regulations it intends to make under clause 5?

Conditional Fee Agreements and Access to Justice:

Q13: Would the Government consider an amendment to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 so as to exempt actions for defamation from the recoverability provisions concerning success fees and ATE insurance premiums?

Q14: If the Government is not convinced of the need for an amendment to the LAS PO, Act 2012, how does the Government propose dealing with the problem of "middle income, not eligible for legal aid" claimants and defendants, and the restriction of their access to justice in defamation claims?.

Q15: What progress has the Government made in relation to the commitment made by Lord McNally to review costs protection for defamation proceedings, particularly in light of the risk of restricting access to justice for innocent defendants and individual claimants who traditionally relied on CFAs?

Q16: What discussions have the Government already had with the judiciary about the changes to the Civil Procedure Rules that will be needed to make the new Act work?

Q17: What is the Government's view of the inter-relationship between Articles 8 and 10 ECHR and the law of qualified privilege in the light of recent judicial decisions such as W v Westminster?

It would be helpful if we could receive your reply by Thursday 1 November 2012. I would also be grateful if your officials could provide the Committee secretariat with a copy of your response in Word format, to aid publication.

I look forward to hearing from you.

18 October 2012

2. Letter to the Chair, from Rt Hon Lord McNally, Minister of State for Justice, Ministry of Justice

Thank you for your letter of 18 October. I am sorry that it was not possible to reply sooner, as your letter was not received by my department until 9 November.

The Government's response to the questions raised by the Committee is as follows

Questions 1 to 5, Question 9 (Clause 4)

The Committee seeks the Government's views on a number of ways in which clause 4 of the Bill could be amended. In the course of debate on the Bill at Third Reading in the House of Commons, the Secretary of State indicated our intention to reflect further on the contents of clause 4 in the light of the views that had been expressed about the measure from differing perspectives. I reiterated that commitment at Second Reading in the House of Lords.

We are currently in the process of considering these issues with a view to tabling amendments at Committee Stage in the House of Lords if it is considered appropriate to do so. I am not in a position to comment on the specific points raised in these questions at this stage. However, I can reassure the Committee that these are issues which are being looked at in the course of our considerations.

Questions 6 to 8 (Clause 4)

These questions all relate to the issue of whether an explicit reference to professional codes of conduct should be included in clause 4.

As noted above, our considerations regarding clause 4 include the question of whether the list of factors in clause 4(2) should be retained, and this may affect the question of whether any reference to codes of conduct is appropriate. We will of course also wish to take account of any recommendations which may emerge from the Leveson Inquiry which have implications for clause 4 or the Bill more generally.

Question 10 (Clause 5)

The Committee asks whether Clause 5(4) (now Clause 5(6)) should require the complainant to explain why the statement concerned is unlawful and not just defamatory, in order to be consistent with Regulation 19 of the E-Commerce Directive.

Clause 5 and the E-Commerce Directive serve difference purposes. In introducing the new process under clause 5 we were responding to concerns from internet organisations that the current law puts website operators in a position where they have to consider the merits of a complaint (which they are seldom in a position to do) and decide whether they should remove the posting concerned or risk being sued for defamation. Instead, Clause 5 gives website operators a defence provided they pass a complaint on to the author of the material within a fixed period, and then take appropriate follow-up action in the light of the author's response (or lack of it).

The interaction between the complainant and the author of the material will be akin to the pre-action process, whereby a complainant provides details of his or her claim, and the defendant has an opportunity to consider whether any defence are available and respond, before formal proceedings are begun. The website operator will simply fulfil the role of a middle man in this process, and there is no need for it to consider the merits of the complaint in order to protect itself against liability. This is different from the position under the E-Commerce Directive, where an intermediary hosting material is potentially liable once notified that a statement is unlawful. As the two operate on different principles we do not believe that there is any need for the provisions to work in the same way.

In addition, we are concerned that the clause 5 process should be as simple and easy to operate as possible, and should be fair to all parties. Requiring complainants to provide details of why they consider the posting to be unlawful, rather than just defamatory, would make it more difficult for a layman to make a complaint without first having sought legal advice, and would add to the cost and difficulty involved. We can reassure the Committee that the draft regulations will cover in detail the information that a complainant has to provide in a notice of complaint, and that we envisage this including details such as the meaning attributed to the words complained of and why they are defamatory, including any factual inaccuracies or unsupportable comment.

Questions 11 and 12 (Clause 5)

The Committee asks whether there Government will consider making the regulations under Clause 5 subject to the affirmative resolution procedure in Parliament, and whether the regulations will be published in draft.

Clause 5 currently provides for the regulations to be subject to the negative resolution procedure. We are aware of the views that have been expressed that use of the affirmative procedure may be more appropriate, and are giving consideration to this issue. We can confirm that we intend to consult stakeholders on the contents of the draft regulations, and hope to be in a position to do this by the end of the year.

Questions 13 and 14 (Conditional Fee Agreements and Access to Justice)

These questions relate to whether defamation actions should be exempt from the provisions on CFAs (sections 44-46) in the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 and how issues relating to access to justice in these cases will be addressed. The Government has made it clear—including during the passage of the Bill itself—that it does not support amending the LASPO Act in respect of defamation actions. The reforms were drawn up by Lord Justice Jackson, and implemented by the Government, on the basis that they should apply across all proceedings in civil litigation. We believe that the provisions in the Act—and the accompanying rules and regulations—will restore balance to the system and result in a reduction in legal costs.

Part 2 of the LASPO Act introduces a package of reforms, which will change the way 'no win, no fee' conditional fee agreements (CFAs) work. The Act will abolish the recovery of success fees and after the event (ATE) insurance premiums from the losing side. The implementation of the relevant provisions will address the criticism of the current regime found by the European Court of Human Rights in MGN Ltd. V the UK [2011] ECHR 66. People will still be able to use CFAs but will have to pay their lawyer's success fee and, if appropriate, any ATE insurance premium themselves.

The Government believes that the reforms should be seen in the context of what they will achieve. We are not removing the access to CFAs of either claimants or defendants; rather we aim to create a stronger balance between the interests of claimants and defendants. The reforms will still provide claimants with a means to bring meritorious cases, but will also ensure that costs faced by defendants are proportionate, thereby correcting the present anomaly where claimants have little incentive to keep an eye on the costs they incur. Moreover, it is unfair on defendants that they may feel unable to fight cases, even when they know they are in the right, for fear of excessive costs if they lose.

The LASPO reforms, and the procedural changes which we are taking forward alongside the Defamation Bill (eg to enable the early resolution of key issues such as meaning) are intended to reduce the complexity and expense of pursuing and defending defamation claims. However, we acknowledge that difficulty may arise in respect of less wealthy claimants and defendants, and how they might be put off from pursuing or defending reasonable cases because of the risk of having to pay the other side's legal costs if their case fails, and we are accordingly considering the issue of costs protection (see Question 15, below).

Question 15 (Commitment to review costs protection for defamation proceedings)

I made a commitment at Second Reading of the Defamation Bill in the House of Lords on 9 October 2012 to ask the Civil Justice Council (CJC) to consider the case for, and possible options to reform, costs protection in defamation and privacy related claims.

The CJC is an advisory body chaired by the Master of the Rolls and has in the past assisted this department in developing a regime of costs protection in personal injury cases (known as qualified one way costs shifting or 'QOCS'), which will be implemented when Part 2 of the LASPO Act comes into effect in April 2012. The CJC will set up a working group to consider the issue of costs protection/privacy related claims. The working group will report its recommendations to MoJ by the end of March 2013, allowing the Government time to consider what, if any, changes to the Civil Procedure Rules should made for when the Defamation Bill comes into effect.

Question 16—discussions with the judiciary

The Committee asks what discussions the Government has had with the judiciary about changes to the Civil Procedure Rules to make the new Act work.

Officials have discussed the contents of the Bill and related procedural issues with members of the senior judiciary on a number of occasions during the period over which the Bill has developed. Most recently, a meeting has taken place with the new Master of the Rolls, Lord Dyson, to discuss these issues. The Government will put proposals for procedural changes to support the new Act before the Civil Procedure Rule Committee in the new year. Our intention is to ensure that these are in place for when the Act comes into force.

Question 17—inter-relationship between Articles 8 and 10 and the law of qualified privilege

The Committee asks for the Government's view on the inter-relationship of Articles 8 and 10 ECHR and law of qualified privilege in light of recent judicial decisions such as W v Westminster.

As we have stated from the outset, this Bill is about striking the right balance between a claimant's right to reputation and a defendant's right to freedom of expression. The Bill makes modest but sensible changes to existing forms of statutory privilege. However we think it is right that matters such as the existence of a duty and interest privilege should continue to be for the courts to determine on the facts of the individual case. That will, of course, include consideration of the Convention.

We have noted the conclusion in W concerning actions under section 7 of the Human Rights Act 1998, and are content simply to await further consideration of the issue by the courts.

I hope that this reply is helpful. I would of course be happy to respond further should the Committee have any further questions.

15 November 2012

22   Eg the Human Rights Act 1998 and the Data Protection Act 1998. Back

previous page contents next page

© Parliamentary copyright 2012
Prepared 12 December 2012