This is another important step in a process that began in 2009, with the launch of the Free Speech Is Not For Sale report by English PEN and Index on Censorship. But the battle is far from over. If we are not vigilant, this chance to transform free expression in England and beyond could be lost.
Index and the Libel Reform Campaign have identified four key points that must be addressed by MPs in their discussions on the Defamation Bill:
A major problem under the current law is that parties who were not responsible for composing, writing, editing or approving allegedly defamatory content may be sued for libel. Facebook, blog platforms or even individual bloggers who allows comments on their website, can be held responsible for allegedly defamatory blog posts, comments or status updates. This encourages private censorship. Powerful interests can threaten internet intermediaries with “takedown notices”, forcing people who are not in a position to judge the nature of the allegedly defamatory material to remove it or face libel actions.
The Bill should ensure that web hosts are only liable if they do not take down undefended words which have been found by a court — even on a cursory examination — to be potentially libellous and not merely alleged to be defamatory. This requires a cheap and fast court method for examining complaints.
Open debate and the search for truth sometimes requires the publication of uncertain or one-sided material, and the law should err on the side of publication, while ensuring that untrue statements are suitably corrected. The public interest defence needs to be clear and simple. We recommend a defence that protects genuine public interest statements made in good faith. The defence should provide that statements that 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. Such a defence already exists for some forms of publication, such as the reporting of any public meeting or press conference.
The Libel Reform campaign welcomes the “serious harm” test in the Defamation Bill that requires the claimant to show that damage to their reputation is real. The Bill should also set out that enough people in England and Wales have actually viewed the allegedly defamatory material to make it genuinely damaging, and that the claimant has sufficient interest in the UK to justify their claim to have suffered reputational damage here. This would go some way to addressing the problem of “libel tourism”, whereby foreign claimants with few links to the United Kingdom use London’s libel courts to stifle criticism abroad.
Cases such as the British Chiropractic Organisation v Simon Singh show how corporate bodies can attempt to use the current libel law to stifle criticism. We believe that all non-natural persons suing for libel should have to show actual (or likely) financial harm and show malice, dishonesty or reckless disregard for the truth.
15:41 Ken Clarke introducing reading. Says libel laws are not fit for the Internet age.
15:44 Praise for Lord Mawhinney and Lord McNally in their stewarding of the bill.
15:46 Ian Paisley Jr asks if test of “serious harm” test could discourage wronged people from seeking justice. Clarke says he will address concerns.
15:54 David Lammy points out that “serious harm” means different things in different context. Clarke agrees, saying this is why it’s up to the court to decide what serious harm is.
15:57 Clarke says Reynolds defence will be retained, but should not be seen as set of hurdles. In other defence news, qualified privilege will be extended to scientific journals.
16:12 Of course, when Ken Clarke was talking about Saudis suing, he didn’t have anyone specific in mind. Now we’re on to tricky part: Clause 5, which has had all the coverage re trolls today. Read it here. Julian Huppert seeks assurance that steps outlined (in the identification of anonymous posters) would be voluntary. Echoing what Index told the Guardian earlier.
16:18 David Davis asks at what point a jury trial in libel would be triggered – the bill stipulates that assumption should be against jury trial for libel. Clarke says it’s discretionary. Says extremely technical cases, say on science, would be unsuitable for jury trial. Cutting of jury trials one simple way of cutting costs. Clarke finishes up saying the bill means free speech will not be unduly impeded, and public debate defended. He’s clearly very pleased with the consultative process that brought the bill about. Reminds house of cross-party support.
16: 23 Labour’s Sadiq Khan pays tribute to Libel Reform Campaign (that’s us!) for work and dedication on issue. Peter Bottomley mentions Simon Singh and Peter Wilmshurst.
16:31 Sadiq Khan says clause 5 applies to defamation only – not trolling.
16:34 Paisley Jr on feet again. Raises issue of trolling, which, as Khan has just pointed out, is not the issue here. Ken Clarke points out that Section 127 of the Communications Act (which, as Paul Chambers knows, has its problems) covers bullying, harassment etc.
16:50 Paul Farrelly points out danger of “piecemeal” reform, where the house imagine that some issues will be addressed elsewhere, such as at the Leveson Inquiry.
16:52 Khan says Labour keen to grasp opportunity for real reform.
16:58 Steve Rotheram refers to “professional trollers” attending “troll academy”. This has been somewhat sidetracked by Nadine Dorries and others. Suicide pacts?
17:32 We’re still on trolls.
17:34 Julian Huppert rebuts Ian Paisley Jr’s bizarre claim that “websites operate with impunity”.
17:52 Michael Ellis says the bill envisages not removing right of jury trials in defamation actions but making it less presumptive that jury trials will take place. Will be matter for judge in certain cases.
17:53 Robert Buckland says streamlining procedures important. Says there must be proper return to points made by joint committee on alternative dispute resolution. Stresses need for access to justice for both rich who can afford litigation and ordinary citizens.
17:56 Buckland refers to the Leveson Inquiry, says he would like it to result in mechanism by which ordinary person in street can achieve redress at minimum cost and maximum speed.
17:59 Buckland says now is the time for Parliament to take the lead on codifying law on privacy in addition to codifying law on defamation.
18:00 Neal Carmichael mentions need to protect freedom of speech.
18:05 Buckland says this bill addresses well the nuances and range of context within which libel and defamation action can be brought.
18:08 Buckland now moving on to public interest defence in Clause 4 of the bill. Says he understands reluctance to seek to define public interest in law, evolves from year to year and case to case.
18:08 Buckland says the term should be defined according to particular case in which it is invoked.
18:13 David Lammy says that the job is not yet done in spite of bill.
18:15 Lammy adds it is right to codify this area of law now for benefit of ordinary citizens. Important to underline freedom of expression, he says, but also right to say we are living in age where our liberalisms need to be fully scrutinised.
18:18 Lammy says we need to ensure “serious harm test” is not so high as to stop ordinary person from accessing justice.
18:20 Lammy says the “gaping hole” in the bill is the situation in relation to corporation and companies. Notes the excessive power that they have had in “terrorising” publications who have got beneath the truth of what has gone on in such companies.
18:28 Lammy says he is concerned about the effects of Facebook bullying on young people and adults, comments more visible. The area merits hard discussion, he adds.
18:33 Stephen Phillips says no-one can doubt the importance of the right of free speech, but other rights also need to be addressed. The right to a true reputation is one that is particularly important to well-being, as is the right to privacy, and the right to speedy and efficient redress is also key.
18:40 Phillips says the costs associated with defamation proceedings are prohibitive and inimical to free speech. Phillips adds that the protection of reputation should not be purchased at the expense of what ought to be in the public domain.
18:46 Buckland suggests the joint committee launch a post-legislative scrutiny into the bill, as it has done with the Freedom of Information Act.
18:48 Phillips urges caution, says ambitious legislation can often have unintended consequences, adding that incremental change has been the hallmark of good legislation in this area and others.
Sadiq Khan has tweeted a link to his speech on the second reading:
— Sadiq Khan MP (@SadiqKhan) June 12, 2012
18:55 Paul Farrelly giving his speech now. Says codifying law must go beyond offering certainty, stresses need for greater reform, such as by reducing the chilling effect of our libel laws.
19:03 Farrelly says there is a need to reform London’s reputation as a city called sue.
Simon Singh has tweeted:
Paul Farrelly one of several MPs bringing sense to the defamation bill debate as it enters its 4th hour.
— Simon Singh (@SLSingh) June 12, 2012
19:07 Farrelly says without conditional fee agreements (CFAs), the McCanns and members of the science community such as Peter Wilmshurst would have been unable to defend themselves.
19:10 Farrelly stresses the need to strike out trivial and vexatious claims, such as that brought against Hardeep Singh, in order to reduce the amount of libel tourism that takes place in London. Farrelly suggests libel reform would be a suitable wedding present for Singh.
19:13 Farrelly discusses the Reynolds defence, says it was a defence of last resort for journalists, there to be used when papers had made an honest mistake.
19:20 Tom Brake says it is embarrassing that foreign nationals can bring cases to our courts on weak pretexts. Says we should instead be seeking to achieve an international blueprint of our laws. Adds that there is a need to future-proof the legislation, issues of context, content and intent should be technology-independent.
19:24 Brake name-checks the Libel Reform campaign on pushing hard on the issue of reforming the law. He cites areas of improvement as the public interest defence, serious harm test, the role played by corporations and a protection for internet hosts.
19:28 Brake goes into detail about what is in our briefing, which you can read below. He says good progress has been made on the bill, and that we should not pass by our once-in-a-lifetime opportunity to improve the bill.
19:31 Amber Rudd says there is a fine balance between weighing up the right to free expression and the right to privacy, adding that our current libel laws are outdated. She cites libel tourism as “hardly an attractive label” to be attached to the country.
19:38 Julian Huppert rises to speak. He says the current position is “simply not acceptable”, citing the imbalance in access to justice and the chilling effect felt by websites such as Mumsnet and science writers who fear libel action being brought against them.
19:42 Huppert pays tribute to the Libel Reform campaign, name-checking Index and our former CEO John Kampfner, English PEN and campaigner Dr Evan Harris.
19:45 There has been an “insidious silencing of rigorous academic debate” among journals due to a fear of libel action, Huppert says. He says one in 10 of all high court libel cases have involved an academic.
19:48 Huppert says one area that has not been looked into enough is costs. Adds that the government needs to clarify how costs will be reduced in the legislative changes being made. He reiterates Brake’s point that there is a difference between the rights of corporations and individuals, and that they should be treated differently.
19:52 Index is wrapping up the live blog for this evening. Many thanks for following, and you can read the Libel Reform Campaign’s briefing on the bill below: