In relation to serious financial harm—that aspect and that aspect alone at the moment.
I now turn to the second element of the Lords amendment. In the case of Derbyshire county council v. Times Newspapers, the House of Lords held that local authorities and government bodies were already prevented from bringing actions for defamation. The amendments seek to extend that principle and prevent claims by any non-natural person performing a public function. We do not consider that appropriate, as it would remove completely the right of a wide range of businesses and other organisations to protect their reputation. Although the provision focuses on criticisms in connection with the exercise of public functions, that criticism could of course have a wider impact on the reputation of the business more generally.
Our view is that a rigid, restrictive statutory provision that would remove the right to claim from a wide range of bodies does not represent a proportionate approach. We consider it much better to allow the courts to develop the Derbyshire principle, as they consider appropriate and necessary in the light of individual cases. The removal of the amendment will not affect the Derbyshire principle, which will continue under the common law as it does now. I hope that the House will therefore agree to reject Lords amendment 2.
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I shall now turn to the remaining amendments, all of which are Government amendments that I ask the House to support. Amendments 3 to 7 relate to the defence of publication on a matter of public interest. Hon. Members will recall that, before the Bill left this House for the other place, my right hon. Friend the Justice Secretary and I gave a commitment that the Government would look again at clause 4. As a result of
those considerations, we tabled amendments in the other place to recast the defence in a number of respects. Amendment 3 would replace the requirement for the defendant to show that he had acted responsibly in publishing the statement complained of with a requirement to show that he reasonably believed that publishing the statement complained of was in the public interest. Considering whether the defendant has demonstrated his reasonable belief will involve a subjective element—namely, what the defendant believed at the time—and the objective element involving the question of whether that belief was reasonable for the defendant to hold.
My hon. Friend the Member for Worthing West (Sir Peter Bottomley) has tabled an amendment proposing that the test should be whether the defendant had reasonably decided that publication was in the public interest. That point was debated in the other place, and I believe that the concern underlying his amendment might be that the current wording, “reasonably believed”, could make the test too subjective and result in arguments about the defendant’s motive. I can give him a clear reassurance that we do not consider these amendments to be justified. The defendant’s belief and his motive are not the same thing.
The courts have made it clear in cases such as Flood that considerations about motive are usually irrelevant, so it is highly unlikely that they would entertain them if any such arguments were to arise. We are satisfied that our wording accurately captures the essence of the Flood judgment. In addition, the emphasis that the Government have placed—in debates, and which I reiterate today—on our intention to reflect Flood will leave the courts in no doubt that that is the case.
Amendment 5 removes the list of factors that the clause previously invited the court to consider, which had led to concern being expressed in this House and elsewhere that a checklist approach would be taken by the courts. Amendment 7 requires the court, in considering whether a defendant’s belief is reasonable, to make such allowance for editorial discretion as it considers appropriate. Amendment 6 brings together two previous subsections of the clause reflecting the doctrine of reportage, without changing their effect. Amendment 4 requires the court to have regard to all the circumstances of a case when reaching a judgment. We believe that these amendments to clause 4 reflect the current law as articulated in the case of Flood, and that they will avoid an over-prescriptive approach while maintaining an appropriate balance between the interests of the claimant and those of the defendant.
I shall move on to amendments 8 to 11, which make a number of changes to points of detail in respect of clause 5. Amendment 11 provides that the defence in the clause is defeated if the claimant shows that a website operator has acted with malice in respect of publishing a statement. This responds to concerns raised in the other place that situations could arise in which a website operator had acted maliciously—for example, by inciting the poster to make the posting, or by otherwise colluding with him. Although we believe that these situations are likely to be rare, we consider that in circumstances where a website operator acts maliciously, it is right that the defence should be defeated.
Amendments 8 and 9 are technical amendments to the regulation-making powers and amendment 10 provides that regulations made under this clause will be subject
to the affirmative resolution procedure in Parliament. This will of course ensure that these receive thorough parliamentary scrutiny.
Amendment 12 relates to clause 6 and clarifies, for the avoidance of doubt, that the defence of qualified privilege for peer-reviewed statements in scientific or academic journals extends to journals that are published in electronic form.
Amendment 13 extends the qualified privilege that is available under clause 7 in respect of fair and accurate copy of extracts or a summary of any document circulated to members of a listed company that relate to the appointment, resignation, retirement or dismissal of directors of the company to material relating to the appointment, resignation, retirement or dismissal of company auditors. This is a response to a concern raised in the other place and is in line with the more general Government policy to increase the transparency of interactions between companies and their auditors.
Finally, amendment 14 amends clause 13 to enable the claimant who has been successful in a claim against the publisher of defamatory material to obtain an order for a secondary publisher, such as a bookseller, to stop distributing, selling or exhibiting materials containing the defamatory statement. Without such a provision, the effect of clause 10 might be that an action could not be brought against the secondary publisher who refused to remove the material from circulation even though they knew it was defamatory.
I believe that the Government amendments made during the Bill’s passage through the other place assist in achieving the Government’s aim of striking the correct balance between freedom of expression and protection of reputation. To conclude, I urge the House to support amendments 3 to 14 and to disagree with amendments 1, 2, 15 and 16.