I welcome this debate. I understand that new clause 4 is not going to be pressed to a Division, so I do not need to declare my intentions on that.
Those associating themselves with the new clause include Sense about Science, Which?, Citizens Advice, Mumsnet, Nature, the British Medical Journal, the Association of British Science Writers, Global Witness, the Society of Authors and the Publishers Association, and I am sure that many others would do so. If they believe that Parliament should pay attention to what is in the new clause, I agree with them, and I hope that there will be serious discussion about it in another place and before the Bill gets there.
I want to draw the House’s attention to a case whose decision was reported on 6 July this year by Mrs Justice Sharp. The case was brought by Mohamed El Naschie against Macmillan Publishing, the publishers of Nature, and against the journalist Quirin Schiermeier. In essence, Mrs Justice Sharp decided that what was written was honest, that it was fair opinion, and that it had justification. It was about comments made on the retirement of the editor of a journal called Chaos, Solitons & Fractals. Most of us know what chaos and fractals are. Solitons were, I think, first described in 1834 by someone who had observed a wave go through a canal; they relate to how a wave can be self-perpetuating if it goes at a constant speed. The journal, published by Elsevier, was regarded as a joke and described as such on mathematical websites. In theory, it was peer reviewed. The degree of seriousness of the peer review is described well in the judgment. In June 2011, Mr Justice Eady made various decisions and struck out some parts of the claim. It took until July 2012 for the case to be disposed of. The article was pretty mild, and the problem is that clause 4 or new clause 4 would not do enough to stop that kind of action being taken.
Let me return to clause 1, which needs a bit of attention between now and when it reaches the Lords. It says, under the heading, “Requirement of serious harm”:
“A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.”
That is not the best way of putting it. I would say that a defamatory statement is not actionable unless its publication has caused or is likely to cause serious harm to the reputation of the claimant. If something is said not to be defamatory when clearly it is defamatory, that is worth giving some attention to. I was brought up with the idea that a defamatory statement could be actionable only if it fulfilled three criteria: first, that it was not true—I can think of various defamatory things that could be said about me that are true; secondly, that it should be damaging, and I agree that it should be seriously damaging before it is actionable in court; and thirdly, that it should not be privileged. We might have returned to the question of what is privileged had there been other amendments.
New clause 4 relates to what the person who has published the defamatory statement has done after publication—whether they have, at the request of the person who has made the claim, provided an explanation, an apology or a clarification, or whether they have done that without being asked. That should be taken into
account. If the new clause is accepted in another place, I hope it will encompass what a respondent has decided to do off their own bat.
To give a small example, the last time I noticed that I was being seriously defamed was when a Sunday newspaper said, in effect, that I was far too close to the IRA. As it happened, the IRA paid rather too much attention to me in my ministerial jobs, but that is a side issue. I rang the editor and said, “What you’ve said is wrong and very damaging. What did you mean to say?” He said, “That we disagree with House of Lords on its decision on Private Lee Clegg”—who had shot somebody—“and we disagree with you appearing at a meeting next Thursday at the Quaker meeting house on Euston road with a senior Sinn Fein person.” I said, “If you put out a statement to the Press Association by lunchtime saying that that’s what you had in mind—if you want to offer me a new lawnmower I would be grateful, but the key thing is to get out a statement today—I won’t take this further. If you don’t, tomorrow—Monday—we will issue a writ and serve it.” That led to a week and a half in the High Court, where George Carman lost a case for his client. I was not his client.
We should be putting pressure on claimants to stay out of court and find a way for courts to throw claims out. The case involving Nature magazine and its comments on the retirement of the editor of Chaos, Solitons and Fractals is the kind of case that even a clerk at the court should have said it would not accept. The first time the judge read the papers, they should have said to the claimant, “Sit down and tell me exactly why you think this needs action in court.”