I am pleased to have the opportunity to speak to Government new clause 1, Government amendments 5 and 6 and our amendment 7. Like the Minister, I will speak to them in that order. I would like to begin by welcoming the new ministerial team. It is great to see them in their places. We in the Opposition hope that they will have a more flexible approach—it already looks as though they will. I pay particular tribute to the Under-Secretary of State for Justice, the hon. Member for Maidstone and The Weald (Mrs Grant). She is only the second black woman to speak from the Government Dispatch Box, and it is a great credit to her that she has achieved that.
New clause 1 will enable the court to order a website operator to remove material if it has been found to be defamatory. That follows amendment 44, which was tabled by my hon. Friend the Member for Newcastle-under-Lyme (Paul Farrelly) in Committee. It covers the point where website operators behave in an irresponsible manner and authors cannot remove the material. I must say that some cold water was poured on the proposal by the ministerial team at the time, who were very reluctant to consider it, but, lo and behold, when we saw the
notice of amendments on Monday and the Under-Secretary of State’s letter on Tuesday, we found that the Government have thought again and tabled the new clause. We think that is sensible and in line with the issues we raised in Committee, so we support the change.
Amendment 5 is about what identifying the author actually means. It states:
‘For the purposes of subsection (3)(a), it is possible for a claimant to “identify” a person only if the claimant has sufficient information to bring proceedings against the person.’
That follows the spirit, if not the precise wording, of amendment 18, tabled by my hon. Friend the Member for Stoke-on-Trent South (Robert Flello), and amendment 42, tabled by my hon. Friend the Member for Newcastle-under-Lyme, in Committee. The purpose of both amendments was to clarify the situation in which the defence is defeated because the claimant could not identify the author. Again, the Minister at the time, the hon. Member for Huntingdon (Mr Djanogly), said that he would consider it but was not very promising. He said that amendment 42
“would effectively require the website operator to provide the claimant with information that they are unlikely to hold, and that they would, in many cases, find difficult to obtain. The amendment would defeat the simple system that the Government intend to establish”.
On amendment 20, he said that the Government did not consider the processes set out in the Opposition’s amendments to be appropriate. He said:
“The aim of clause 5 is to remove the threat of liability from website operators provided that they assist claimants to identify an author of allegedly defamatory material. That process, which will be set out in regulations, will be quick, clear and practical.”––[Official Report, Defamation Public Bill Committee, 21 June 2012; c. 108-111.]
He went on to say that the Opposition amendments cut across the desire for a simple process.
We are very pleased to see Government amendment 5, which responds to the concerns we raised in Committee and it will ensure that claimants are not left in a position where they have insufficient information to take effective action against an author and would be prevented from defeating the web operator’s defence. We say amen to this amendment. However, I have some questions about amendment 5 and its coverage, which I hope the Minister will be able to clarify in his response. The first is the difficult issue of jurisdictions.
There are two aspects to jurisdiction and we discussed them in Committee. The first is the simple case in which the claimant is a UK citizen and the author is identified but lives in a foreign jurisdiction. In that instance, it might be fairly straightforward to bring proceedings in some foreign jurisdictions—if the author were French, for example, it would be a fairly straightforward matter. One can think of other places, however, such as the former Soviet states or some parts of Africa, where it would be extremely difficult to bring proceedings. The person might be properly identified, but because of the jurisdictional difficulties, it would be hard to bring proceedings. Does the Minister think this international problem is resolved? I suspect that it is not, so the Minister needs to tell us whether it is his intention to crack it or whether he thinks it is too difficult to handle here. I hope we will hear something about what can be done about this international problem.
The second type of international problem is where we have a sort of dog-legging situation: the claimant is in this country, the website operator is abroad, the author is in this country and the website operator is not playing by the rules. I would like the Minister to respond to this problem.
Amendment 6 deals with the “defence is not defeated through moderation” theme. It relates to amendment 17 that was moved in Committee by my hon. Friend the Member for Stoke-on-Trent South. The Minister responded to what we proposed by saying that the defence was not affected by having a policy of amending content in terms of moderation. This is an important issue for raising the tone on the web. I have had conversations with local newspaper editors who say that they do not want to moderate abusive language because they have been told that, as the law stands, they then become liable for defamatory statements. Obviously, if we want people to use the web, we want the tone of debate on it to be civilised and reasonable. It is important that moderation that neither enhances a defamatory statement nor removes a defence against such a statement be allowed. To this extent, we believe that amendment 6 is a good one. We are pleased that the Minister has brought it forward; it was backed by the Joint Committee on the draft Bill, too. Of course, the former Minister, the hon. Member for Huntingdon, said that the amendment was not necessary, but I am pleased that the new team sees that it is.
I deal now with amendment 7, tabled by my hon. Friend the Member for Stoke-on-Trent South. I do not want anyone to think that, having accepted the Government’s improvements to clause 5, which is an extremely weak part of the Bill, we are somehow being churlish in wanting to debate leaving out that clause. When we say we would like to see clause 5 left out, we do not mean that the issue of web operators and defamation on the web should not be addressed. Obviously, we mean that we need a more thorough reform than has been offered by the changes announced by the Minister this lunch time. Let me spell out to the Minister in a little more detail what we see as the remaining problems with clause 5. I shall set out our concerns and I hope that he will take them into account and consider looking further at clause 5—if not today, then when the legislation goes to the other place, which is more likely.
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First, we have not been shown the regulations in draft. The ministerial team has repeatedly said that this is a very complex area—we agree—and that it wanted a simple approach set out in the Bill, with the material fleshed out in regulations. When a Department takes that view, however, it is normal to bring forward the regulations. We made that point in Committee—almost three months ago—yet we have still not seen the regulations. I know that the Ministers have been in their jobs for only a week, but their predecessors and officials have known about this problem for three months. It is unacceptable that we still have not had sight of these regulations. We requested that the regulations be approved through the affirmative rather than the negative resolution process, but that change has not been accepted either.
The former Minister, the hon. Member for Huntingdon, wrote to the Committee on 13 June, attaching a note of proposed procedure under clause 5. We raised our particular worries about the drafting at the time—I raise them again now—as it is not as full as the regulations would be. The note states:
“Website operators will be encouraged to set up and publicise the designated email address”
for the purpose of complaints. We have just discussed irresponsible website operators, and we feel that website operators must be “required” to set up and publicise a designated e-mail address.
As to the contents of the notice of complaint, we come to the issue of why a statement is considered to be defamatory. The note says that authors need to appreciate why the words are “inaccurate” or “damaging”—they are fine and not controversial—but also mentions “insupportable”. We have not had any explanation of the meaning of “insupportable”; it is a completely new concept. We want to know whether this is the wording that will appear in the regulations; we must have some explanation.
The draft note sets out three possible scenarios. The third scenario is that in which the author replies and refuses to agree to the removal of the material. Let me refer to two paragraphs that are of particular concern. The note says:
“If the author indicates that he does not wish his identity and contact details to be released then the website operator must contact the complainant… to inform him that the author refuses to agree to removal of the material and has requested that his contact details are not released.
If the complainant wishes to take further action he will need to seek a court order for the website operator to release the identity and contact details that it has in relation to the author.”
I put it to the Minister that his amendment 5 does not resolve the problem of authors’ refusing to hand over their identities. In such circumstances, a complainant will be required to take out a court order—I understand that it is called a Norwich Pharamcal—to establish who the author is. That will require the complainant to spend a lot of money, although the Minister’s aim is to introduce a cheap and easy process that can be used by any member of the public. We still have worries about situation c), and we fear that if they are not properly addressed there is a risk that many authors will take advantage of that loophole to avoid their responsibilities. Having met members of the Hacked Off campaign, I understand that they have devised some wording which they think would resolve the problem. I hope that the Minister has read it, and will consider incorporating it at a later stage.
Because we have not seen the regulations, we do not know what time limits are envisaged. Everyone agrees that there must be time limits, and that things should not drag on for months and months; I think it reasonable for us to want to know what those time limits will be. The fact that the notes circulated by the former Minister do not give a proper definition of “website operators” also makes the position very unclear.
There are other problems with clause 5 that do not relate to the notes. For example, it does not appear to be in line with the e-commerce directive. In Committee my hon. Friend the Member for Stoke-on-Trent South tabled amendment 21, which drew attention to that. Under the directive, website operators are not liable
unless they know that a statement is unlawful and not simply defamatory: apparently that is covered by regulations 17, 19 and 22. The lack of consistency with the directive will make the law unclear. The object of presenting legislation to the House is to clarify and improve the law, but it seems that a new source of confusion is being created, and I should like to hear what the Minister has to say about that.
One of the recommendations of the Joint Committee, which did some excellent work, was that a notice of complaint should be put next to a posting that has been complained about. I understand that the Minister has still not tackled that suggestion. I know that those in the industry say that it would be technically difficult to implement, but they would say that, wouldn’t they? Of course it would cost them some money, but, as the hon. Member for Devizes (Claire Perry) keeps reminding the House, the internet service providers have an income of £3 billion a year, and I think we can expect them to spend money on setting up facilities that will give us the kind of web that we all want.
There is a general issue relating to anonymity and the web with which the Bill does not deal. Many of the problems that we experience with the web are driven by the bad behaviour in which people feel more free to engage because they are protected by anonymity. Ministers need to think about that again, because at present the Government have no properly co-ordinated approach. The Ministry of Justice is trying to deal with the issue of defamation, the Home Office is trying to deal with the issue of the interception of communications, and the Department for Culture, Media and Sport is examining the economic benefits of the net. We need much more co-ordination. Labour has a cross-departmental team to deal with the Bill, because we believe in a strategic approach to internet issues.
As I said earlier, I think that there is still a major problem with external jurisdictions, and I hope that the Minister will say something about it, because the Bill is weak on that front. We gave many examples of the problem in Committee, although I will not repeat them now because I do not want to take up too much time.
The Joint Committee recommended that the Department should produce guidance that was clear and simple to use. There is no clarity on clause 5. There is no guidance, there are no regulations, and the Government are not taking a strategic approach. For all those reasons, we will press amendment 7 to a vote later this afternoon.