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European Communities (Definition of Treaties) (Partnership and Co-operation Agreement between the European Communities and their Member States and the Republic of Belarus) Order 1996

Baroness Chalker of Wallasey rose to move, That the draft order laid before the House on 29th February be approved [13th Report from the Joint Committee].

The noble Baroness said: My Lords, I beg to move.

Moved, That the draft order laid before the House on 29th February be approved [13th Report from the Joint Committee].--(Baroness Chalker of Wallasey.)

On Question, Motion agreed to.

Defamation Bill [H.L.]

7.25 p.m.

Report received.

Clause 2 [Offer to make amends]:

Lord Lester of Herne Hill moved Amendment No.1:

Page 2, line 43, leave out ("publish or join in the publication of") and insert ("come forward and join in the making of a public statement in open court which is").

The noble Lord said: My Lords, in Committee I raised the issue of judicial control over the published prominence of apologies and I wish briefly to raise it again. Much of the debate appeared to involve some confusion between two distinct situations. The first is where an apology is made as part of a voluntary offer of amends under Clause 2. The second is where an apology is ordered by the court by way of summary relief under Clause 9.

As a result, the operation of the new defence of offer of amends was not fully discussed. In order to avoid any confusion on this occasion, I shall speak only to Amendments Nos. 1 and 17, which relate to the offer of amends, and shall not move Amendments Nos. 6 and 8, which relate to summary procedure.

I turn to Amendment No. 1. As I mentioned in Committee, as Clause 3(3) is currently drafted where the parties do not otherwise agree, the courts will be given a new coercive power to specify the terms and timing of any correction and apology offered by a defendant by way of amends for the publication of a defamatory statement. The media--that is every newspaper and television company with which I have been in contact--fear that misuse of this quite exceptional new judicial power will bring them into direct conflict with the courts. The net effect will be that a newspaper editor or broadcaster faced with the ultimate prospect of being compelled to publish an apology or correction with a prominence which he considers was not merited would be most unlikely to be willing to make an offer of this kind. Enabling the court to dictate a form of apology which might not be wholeheartedly meant by a defendant would, as your Lordships agreed in Committee, be pointless and threaten editorial integrity and independence and unduly fetter the freedom of the press.

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In Committee the noble and learned Lord the Lord Chancellor said that, in introducing the machinery of the defence of offer of amends, the Government are seeking:

    "to provide a way in which parties will be brought together to reach a sensible conclusion which will be for the benefit of both plaintiffs and defendants".--[Official Report, 2/4/96; col.230.]
I wholeheartedly endorse the aim of an early conclusion to proceedings which achieves a fair balance between the competing interests of defendant and plaintiff. However, I am bound to say that I do not believe that that will be accomplished in practice by Clause 2 as it currently stands.

I most respectfully ask the noble and learned Lord the Lord Chancellor whether the matter might be given further consideration. As a result of the reform of the existing defence of innocent dissemination in Section 4 of the Defamation Act 1952, greater numbers of defendants will find themselves legally able to make an offer of amends. Whether they will then be willing to do so is another question entirely and one to which almost every media organisation in the UK would currently answer no if it resulted in the effective transfer of editorial control to the High Court. I suggest that what matters is not whether one agrees or disagrees with the media, but that the media regard it as fundamental to their free expression. I suggest that we should take note of that if we want the procedure to be used in practice, as we all do.

I turn briefly to Amendment No. 17. In Committee I listened to the concerns of the noble and learned Lord the Lord Chancellor on this issue. I drafted the amendment in an attempt to meet them. As the Bill currently stands, it is possible that a publisher may find himself legally bound to publish a correction or apology in fulfilment of an offer to make amends. As a result of terms required by the plaintiff or dictated by the court, it may prove impossible for the defendant to frame an apology or correction without thereby actually or potentially libelling a third party.

I take a real example. In the recent case of Mr. Nigel Watts, the defendants--Times Newspapers--apparently mistakenly published a photograph of Nigel Watts, the property developer, to accompany an article defamatory of Nigel Watts, the author. Nigel Watts, the property developer, complained to the defendant which offered to publish an apology. The plaintiff's solicitors subsequently pressed for the inclusion in the apology of words which resulted in the defamation of Nigel Watts, the author. The defendant newspaper, in order to achieve an early settlement, published in good faith an apology in the terms desired by the plaintiff and then found itself exposed to a libel action by a third party--Nigel Watts, the author.

It may be true that the outcome of an offer to make amends will not often involve a fresh defamation of a person who had not been involved in the original dispute. But there is a gap in the law, as the Watts case illustrates.

There is also the Tracy v. Kemsley Newspapers type of situation where the newspaper's apology to the plaintiff left it exposed to a libel action by the author

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of the article--a journalist who was so outraged by the apology which he said was defamatory of himself and his craft and skill that he sued for libel as a result of the apology. I respectfully suggest to your Lordships that we should take this opportunity to fill the gap, however small it may be.

In Committee, the noble and learned Lord the Lord Chancellor expressed the concern that parties to an offer of amends might collude in order to gain a licence, under the umbrella of privilege, to defame a third party. But my amendment would confer only qualified privilege on corrections and apologies made in good faith. It would always be open to a third party to prove that a correction or apology was perpetuated by malice or was a result of a conspiracy.

At present, the code of practice of the Press Complaints Commission places newspapers under a duty to correct and to apologise for inaccuracies. Apologies and corrections resulting from a social and moral duty under the voluntary code should be protected. The amendment is merely an attempt to confer qualified privilege on corrections and apologies published in good faith by defendants keen to achieve a swift and sensible settlement. If it is envisaged under the present Bill that proceedings will be disposed of increasingly by way of an apology and correction, then we should take the opportunity to ensure that editors do not find themselves out of one libel frying pan into the fire of another. I beg to move.

7.30 p.m.

Lord Williams of Mostyn: My Lords, I support the purpose which underlies the amendments to which the noble Lord, Lord Lester of Herne Hill, has spoken. Again, I am not entirely happy in my own mind that the form of his amendment in respect of Clause 2 really meets the mischief which he wishes to avoid. It may be better to have:

    "Publish or join in the publication of ",
as an alternative to:

    "come forward and join in the making of a public statement in open court".
However, it does not seem to me that that necessarily deals with the legitimate concern of newspapers arising under Clause 3(3).

I support the noble Lord when he says that it is not reasonable for a court to be able to direct an apology to be printed in terms and in a position with which the editor does not concur.

I am in a position to wholeheartedly support the noble Lord in relation to Amendment No. 17. I must declare an interest in that I was acting for the newspaper at one stage, as the noble Lord may have been at another, in respect of the two men named Nigel Watts. The only benefit was to lawyers and that is not a small benefit, of course. But nobody had behaved badly. It was found, at first instance and also in the Court of Appeal that there was not any qualified privilege in such circumstances. It seems to me, in a Bill which is only tinkering at the

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edges of reform, to be a useful amendment. I support wholeheartedly both the motive and the wording of Amendment No. 17.

The Lord Chancellor (Lord Mackay of Clashfern): My Lords, as I understand the noble Lord, Lord Lester of Herne Hill, in introducing Amendment No. 1, he spoke of the misuse of this new judicial power. If I have misunderstood, then obviously I shall be corrected.

It is important that that power should be in the hands of the judiciary. I would expect, as would most of us, that that would be used appropriately. If one has been defamed in large letters on the front page of a newspaper which has a large circulation, to receive a correction and apology in diminutive print just above the details of the publisher would be regarded by many as slightly unsatisfactory, to put it mildly.

The Times editorial published on the last day on which this Bill was considered used a dramatic example of the "News at Ten" being introduced by an apology followed by a statement of considerable general political importance in the country. That was because it was thought the judge would have ordered that to take place. It is almost possible to imagine that but I do not believe that it is a realistic scenario.

I am anxious that the problem which I mentioned at the outset is dealt with adequately. But I am also anxious of course that this procedure should be used. Therefore, I wish to reach the best possible solution to the problem. I have initiated discussions with various representatives of the media to see whether we can find an accommodation. There would be difficulty in adopting the words proposed by the noble Lord, Lord Lester of Herne Hill, for, among other reasons, that given by the noble Lord, Lord Williams of Mostyn.

We must try to see whether there is a solution which allows not only for a public recognition of the defamation in the case to which this applies but also a publicised recognition of it. I am anxious to see that the power to require publication is hedged round sufficiently to make it impossible to have the sort of scenario which The Times article suggested, which I do not think would be justified even on the basis of the present Bill. But if I can improve it in that respect, I shall be happy to do so.

My stance in relation to Amendment No. 1 is that I see the problem which the noble Lord puts forward. There are also other problems associated with it. I am anxious to try to secure a solution. I hope that by the time we reach the next stage of the Bill I may have managed to do that to the satisfaction of the noble Lord and the media while at the same time maintaining the interests of those who may have been defamed.

On Amendment No. 17, I notice a coincidence of desire between the noble Lords, Lord Lester of Herne Hill and Lord Williams of Mostyn. What I find difficult about the amendment is that in order to gain a solution to the problem of one person--the party defamed--a privilege is to be given to defame somebody else. I do not see why that should happen. I cannot for the life of me see a justification in an apology to the one Nigel Watts to defame the other. It is possible that there are

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reasons for it; indeed, I know that the noble Lord, Lord Williams of Mostyn, said that there was a small but not unimportant benefit to the lawyers. Well, no doubt that was so, but I would not, perhaps, wish to encourage that particular type of benefit.

On the other hand, I do not see why it is that the defamation so far as directed against the other Mr. Watts should be protected. Similarly, if a newspaper wants to defend itself and apologise by blaming the journalist who supplied the material, I do not believe that that kind of activity ought to be protected by qualified privilege. As I believe the noble Lord, Lord Williams of Mostyn, said, common law does not apply that doctrine of qualified privilege to such a situation. On that point, I believe that the common law has developed in a way that is satisfactory.

The common law qualified privilege applies, in my submission, in a wholly different context from that which is the subject of the amendment. There is a qualified privilege for statements made in pursuance of a legal, social or moral duty to a person who has a corresponding duty or interest to receive them. But, in those cases, the person claiming to have acted under such a duty will be the defendant, who will have to prove his own good motive if the defence is to succeed. Moreover, even if that privilege is upheld, it would not protect repetition beyond the situation in which the duty and corresponding interest applied. In other words, while the defence of qualified privilege applies between the two people, it does not apply outside of that situation if the information is used beyond the area to which the duty applies.

The particular type of qualified privilege that the amendment would introduce into our law, I believe for the first time, would presumably cover the publication to whomsoever and over whatsoever period. Therefore, while I see a certain problem, I do not see why trying to remedy it for one person should be a reason in effect for depriving another person of protection which, apart from that, he would have had in the ordinary law of defamation. Therefore, I fear that I do not envisage any clear way forward in relation to Amendment No. 17, although I do believe it is possible to find a way forward in relation to Amendment No. 1.

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