My Lords, I have lost my support team. The amendment is in the name of my noble friend Lord Browne and myself, and I shall speak to the other amendments in the group. The amendment, as my noble friend suggested earlier, is by way of a probe. It would replace the word “website” with “electronic platform”. It is seeking clarification from the Government about what they mean by website and to ensure it is sufficient to make the Bill future proof. We might also consider whether the common definition of, for example, “journal” includes electronic peer-reviewed offerings, which might deal with some of the later amendments.
As the Minister indicated earlier, we can probably assume that “website” covers Facebook, blogs and Twitter, but we need some clarification on that. I did not have a chance this morning to study the DPP’s guidelines released earlier about when legal action would be taken on harassment and similar issues on electronic platforms. Perhaps the Minister can reassure us that these two initiatives, albeit one on criminal prosecutions and one about defamation, are moving in harmony. The amendment specifies that the defence applies only in relation to damages and not, for example, in an application for an injunction. This was probably addressed in Clause 13, but it would again be helpful for it to be part of this clause. Amendment 26A simply replaces “was” with “is” for clarification. “Was” implies that a post used to be on the website and has been taken down. That amendment would clarify that no action would be needed if it had been removed.
I turn now to our main amendments in this group, Amendments 25A and 25B. I shall first refer to a letter from the then Parliamentary Under-Secretary for Justice, Jonathan Djanogly, on 13 June, which included a helpful attachment indicating the department’s thinking about the procedure to be followed under Clause 5.
There was a subsequent letter on 10 December from the noble Lord, Lord McNally, with that attachment. It states that:
“Website operators will be encouraged to set up and publicise a designated email address”—
that is, for complaints—
“as a matter of good practice”.
It is not time to make a real difference to the whole business of reputation and innuendo by establishing a need, not just a request, that if website operators want to take advantage of the defences to defamation then, through them, the authors must be easily contactable by anyone with a potential claim. Neither authors nor website operators should be able to hide behind some electronic wall to avoid receiving a writ.
We seek the easiest possible route between the defamed and the author of the offending words by, we hope, virtually bypassing the website operators. We do not want the defamed, as in the Government’s suggested outline, to have to go round the houses, waiting here for 72 hours, waiting there for seven days and possibly applying to a court before even finding out who has written the alleged libel or where that person can be contacted. We therefore want it to be obligatory for a well publicised e-mail address to be on the website, for use where the author is not already identifiable and contactable. It is slightly strange that in the Government’s appendix to those letters, they seem to ask that the complainants should identify themselves and give their address and everything to the poster, with no such reverse obligation on the author.
It is not good enough for authors to hide behind anonymity. This has not been allowed to the defamed person and it is hard to see why it should be available to the alleged slanderer. I shall leave whistleblowers to one side at the moment. I shall come back to them, but we should not allow that tiny number of people who can be safeguarded by other means to act as a cover for the anonymity of the millions who trounce other people’s reputations. It is hard to understand the Government’s proposal to allow the author to refuse to reveal his or her identity, with no excuse having to be given. This would therefore make the complainant seek a court order to locate the author.
If the provision were to be enacted, no author would ever have any reason to give out their name, knowing that no action could even be started against them without a court order. We have to change this around. Either the author puts up his or her hands and says, “It was me who wrote it and it is not defamatory”, or the website operator must take the hit and stand in the shoes of the secret writer. I leave whistleblowers to one side for the moment.
3.15 pm
We seek in this Bill to protect free speech. The Government and this side of the Committee are absolutely at one on that. The tradition of free speech is that any of us, publicly identified and known, should be able to express opinions without fear, save in those few circumstances that have been outlawed. That is not the same as anonymous slurs that can destroy reputations. I do not believe that is what anyone has fought for when they were fighting for free speech.
One challenge in the Bill is to seek to make the web more equivalent to the printed word. It is time that the web grew up and recognised that it is the new printing press—just as Caxton did a number of centuries ago. This is how we communicate now, with all the rights but also the responsibilities that go with that. We will do this platform no service if we pretend that it is lesser than bound books or the red tops.
We are therefore not persuaded by the arguments of, for example, TripAdvisor that it should be allowed to continue to host allegedly defamatory comments unless and until the poor complainant takes their case to what it calls a suitably qualified body, also funded by the complainant—either the masters units at the High Court or the Information Commissioner—to obtain a ruling.
As those Members of the Committee who were here on Monday will recall, we favour a different approach to enable TripAdvisor to carry comments on the users of commercial services; corporations should not be able to take action unless they can show substantial financial damage. If that was the case, very few of the hotels, airlines, travel agencies or bus companies complained about on TripAdvisor’s website would be thinking of taking action. We see no reason why TripAdvisor should not have a complaints portal where complaints would need to demonstrate such loss before the website considered removing the posting. There are specifics about websites in general, in particular in making available older literature and the issue of libel tourism, but these are dealt with elsewhere in the Bill and need not detain us here.
I want to add a few words about whistleblowers, given that that is the excuse that people keep giving about why anonymity should be preserved. While whistleblowers can indeed make use of the anonymity of the web to reveal information, they are guaranteed protection only as employees or with some special relationship with those they are criticising. If we seek to guarantee everyone’s anonymity because of the recognised needs of a few, then surely everyone will simply claim to be a whistleblower, even if they have never been within a thousand miles of the particular company or institution that they are criticising. Someone is going to have to check whether that person really is a whistleblower, and that can only be a website which seeks quite rightly in those cases to preserve the author’s identity. However, to do so and carry potentially defamatory material—remember that we are not talking about truthful statements here—then those websites are going to have to verify the author’s position, ensure that they really are a whistleblower and stand in their shoes against any action. That is just the same for any written allegation by a whistleblower, where the defamed person must surely still have access to the courts.
The Committee needs to consider whether websites should be protected in the same way as bookshops. In other words, they are protected until defamation has been proved in court, unless it is impossible for the claimant to identify and take action against the actual author. That appears to us to be the aim that we should seek to achieve.
As we speak, there is a debate going on elsewhere on Leveson that seeks to control, albeit for newspapers, the dissemination to the public of stories run in breach of privacy but which, nevertheless, are true stories. It is an objective that we share. In the mean time, it would seem a little bizarre if the Bill allowed untrue stories about individuals to have free harbour to bounce around the world on the net, simply because the communication was electronic rather than in old-fashioned print. Are not untrue statements which threaten family life, reputation and standing more worthy of control than accurate statements?
Therefore, our amendments would require the operator to set up an e-mail address to receive notices of complaints, and would require authors to release their identities. While the author and claimant could then sort out the issue, the operator would have to publish on the website a notice of the complaint alongside the relevant statement. Should the operator fail to do so within seven days, it would be entitled to rely only on the standard defences available to a primary publisher. I beg to move.