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Social Security (Reduced Rates of Class 1 Contributions and Rebates) (Money Purchase Contracted-out Schemes) Order 1996

Lord Mackay of Ardbrecknish: My Lords, I beg to move.

Moved, That the draft order laid before the House on 13th March be approved [14th Report from the Joint Committee].--(Lord Mackay of Ardbrecknish.)

On Question, Motion agreed to.

Social Security (Minimum Contributions to Appropriate Personal Pension Schemes) Order 1996

Lord Mackay of Ardbrecknish: My Lords, I beg to move.

Moved, That the draft order laid before the House on 13th March be approved [14th Report from the Joint Committee].--(Lord Mackay of Ardbrecknish.)

On Question, Motion agreed to.

Defamation Bill [H.L.]

7.10 p.m.

The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.--(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.

2 Apr 1996 : Column 212

[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Burnham) in the Chair.]

Clause 1 [Responsibility for publication]:

The Lord Chancellor moved Amendment No. 1:

Page 1, line 8, at end insert ("of the statement complained of").

The noble and learned Lord said: With Amendment No. 1, I would like to speak to Amendments Nos. 2, 5, 6, 9 to 12, 15 and 20. Amendment No. 1 is a small drafting amendment. It does not affect the meaning of subsection (1), which sets out the conditions which must be satisfied if the statutory defence under Clause 1 is to apply. It moves the words,

    "of the statement complained of",
which relate both to the "author editor or publisher" in paragraph (a) and to "publication" in paragraph (b), to an earlier position in the subsection. Amendment No. 2 is consequential on the first amendment, to avoid unnecessarily repeating words which now appear in the previous paragraph.

Amendment No. 5 is a drafting amendment to avoid any doubt that the new defence will be available to a person who has shown that he is within a specification, in subsection (3), of a person who is not to be considered an author, editor or publisher for the purposes of the clause. If he is within that specification, he will not be considered to be the author, editor or publisher even if he might otherwise have fallen within one of the definitions of those terms in subsection (2). Those definitions are now expressed to be further explained in subsection (3).

Amendment No. 6 is a drafting amendment which ensures consistency in the special meaning given to the word "publisher" in subsection (2). The words "publication", "publisher" and "publish" and all related words have very different meanings in the context of defamation proceedings from their usual meaning in the world of commercial publication. In this special context, "publisher" will mean a person whose business is issuing material to the public (or a section of it) and who issues material containing the statement complained of in the course of that business. The revised definition avoids the use of the word "publish" within the definition in either its special narrow meaning or the wider meaning which it usually has in defamation proceedings.

Amendment No. 46 is a drafting amendment to Clause 17(1) which confirms that "publication" and "publish" have the meaning they have for the purposes of defamation generally, although there is a special definition of "publisher" for the purposes of Clause 1 only. The amendment changes Clause 17(1) by making an express reference to that special definition to avoid any suggestion that the words "publication" and "publish", where they appear elsewhere in Clause 1, should be construed otherwise than with the meanings they would normally have for the purposes of defamation.

Amendments Nos. 9 to 12 are four linked drafting amendments to achieve greater economy of words, so that the words "only involved", which qualify all the descriptions in subsection (3) of those persons who shall

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not be considered the author, editor or publisher of a statement, appear once only instead of being repeated in every paragraph.

Amendment No. 15 is a drafting amendment which makes it clear that, in the context of communications systems, paragraph (e) will apply to those who provide access to such systems as well as those who might be regarded as the "on the spot" operators at a particular time.

Amendment No. 20 is a drafting amendment which spells out for the avoidance of doubt that the list, which plainly could not be and does not purport to be an exhaustive list of those who should not be considered to be authors, editors or publishers, may nevertheless serve as a guide in those cases which are not expressly covered but could be seen as analagous to those which are. I beg to move.

Lord Kilbracken: Some time ago the noble and learned Lord invited suggestions on the drafting of this Bill. I am grateful to him for dignifying two or three of the suggestions that I made as two or three of the Government's amendments. It is helpful to have it made clear in Clause 1(1)(a) that we are indeed talking about the statement complained of. That makes it possible to simplify paragraph (b) by means of Amendment No. 2 and also, I hope, by means of my Amendments Nos. 17 and 25, which I shall move in due course.

The Lord Chancellor: I am very grateful to the noble Lord for his help in these amendments. I have perhaps some less helpful remarks as regards some of the other amendments he has proposed. I have adopted the ones that he suggested to me where we seem to be able to fit them in. I am not so sure about some of the others, but we shall come to them as matters proceed.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 2:

Page 1, line 9, leave out from ("to") to ("and") in line 10 and insert ("its publication").

The noble and learned Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Lester of Herne Hill moved Amendment No. 3:

Page 1, line 11, at beginning insert ("either (i)").

The noble Lord said: It is certainly desirable for the defence of innocent dissemination to be statutorily defined and to be extended to cover a wider class of secondary publishers; that is, distributors, printers and others. The problem with Clause 1 as it stands, however, is that it does not contain a wholly accurate formulation of the elements of the existing common law defence of innocent dissemination.

An individual libels someone else when he publishes in permanent form to a third person words or matter containing an untrue imputation against the reputation of that person. At common law, secondary distributors can rely on the defence of innocent dissemination provided that they did not know that the publication contained the libel complained of and did not know that

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the publication was of a character likely to contain a libel and that such want of knowledge was not due to any negligence on their part. Consequently, it is the current practice of large newsagents, aware that many of the publications they sell contain defamatory statements, to seek and obtain reassurance that there is no libel risk because there is every reason to believe that these statements are true.

Yet the defence of innocent dissemination, as it is set out in Clause 1, would, as I understand it, exclude from its protection those who were aware, or ought to have known, that the material they were handling was merely defamatory whether or not its publication was defensible. This, I believe, would have important implications for the large newsagents I have mentioned. Once they have discovered a defamatory statement in one of the publications they distributed, they would be denied the protection of the defence of innocent dissemination regardless of any steps that they subsequently took to assure themselves that the statement was true and that its publication was not therefore libellous. If I am right, that would have the unfortunate effect that it might encourage newsagents, booksellers and libraries to keep their eyes shut and remain ignorant of the contents of the publications they carry.

This amendment seeks to bring the defence of innocent dissemination in Clause 1 into line with my understanding of the common law defence. I beg to move.

The Lord Chancellor: Clause 1 is intended to provide a defence for those who have unwittingly provided a conduit which has enabled another person to publish defamatory material. It is intended to provide a modern equivalent of the common law defence of innocent dissemination, recognising that there may be circumstances in which the unwitting contributor to the process of publication may have had no idea of the defamatory nature of the material he has handled or processed.

The amendment proposed by the noble Lord would, in effect, create an entirely new defence. It would give a defence to a person who was indeed aware, or on notice, that he was contributing to a defamatory publication, but nevertheless chose to do so. It would allow him to rely on his own judgment as to whether there might be some other defence in the event of the defamed person taking proceedings, and have the effect of presenting him with a real defence because he thought, however wrongly, that he would be able to rely on some other defence.

It is imperative that we do not lose sight of the effect on plaintiffs of giving a defence to those who have in fact been instrumental in bringing material which has defamed the plaintiff to its audience. The effect in practice may be to deprive the plaintiff of any cause of action to remedy the wrong which he has suffered and which he would not have suffered had it not been for the link in the chain of publication provided by the contributor who escapes liability

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because of this defence. That may happen when the originator of the defamatory statement is impecunious or cannot be found.

That is an important point which I stressed when I consulted on the question of whether it was right for a defence of this nature to be available to printers. That had been recommended by the Faulks Committee in 1975, and the response to my public consultation persuaded me that it was right. However, the Faulks Committee had concluded that it would be wrong to make the defence an absolute defence absolving distributors from any responsibility in any circumstances, for, broadly, the reasons I have sought to explain. I believe that the reasoning of the Faulks Committee, and the public response to my consultation, justifies some broadening of the categories of defendant to whom this defence may be available beyond those to whom the common law defence of innocent dissemination might have been. But in my submission it would not be right to deprive a plaintiff of his cause of action against a defendant who was aware that he might be wronging the plaintiff and misjudged the plaintiff's chances of succeeding in a defamation action. Unlike the defamed plaintiff, those who may participate in the publication of a libel can protect themselves from the consequences by taking care, by taking indemnities or by taking out insurance against liability.

For the reasons that I have given, I hope that the noble Lord will recognise that that would be a considerable and unjustified extension--indeed, a new defence--in the circumstances and, in the light of that explanation, I hope that he may feel able to withdraw the amendment.

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