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
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