My Lords, part of my role in this Committee has been, as accurately as I can, to reflect the evidence and testimony that was given to the Joint Committee. I feel the need to repeat that process this afternoon.
Lest I be accused of being unduly biased, we had representatives of modern technologies come to give evidence, including one Member of this Committee. We heard the arguments, in particular, from those who run websites and are operators and might conceivably be the focus of defamation proceedings. A number of your Lordships present today were members of Joint Committee, so I can always be corrected if my memory fails me. I think that it would be fair to say that, overall, the evidence we got was that websites ought not to be beyond the reach of the law. This may or may not be a democratisation of free speech—whatever that means. Certainly, anybody and everybody can now get themselves a worldwide audience, which did not used to be the case. Whether that is a compelling
argument for saying that such people will no longer be bound by the restraints of defamation is an entirely different matter.
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The Committee was quite clear that the law of defamation should apply in the modern electronic media just as it does elsewhere. That, if I may say so, was the easy bit—easy relative to exactly how you make this happen. Cases were made that questioned whether we want to hold to account women—it tended to be women in terms of the evidence that we heard, but I am not seeking in any way to be pejorative about that—who could not sleep and who were pouring their hearts out on a website in the middle of the night. Were we supposed to take all of that legally seriously? The Committee said, “Yes, we ought to take that legally seriously, just as we would every other manifestation on the website”.
That led us on to the problem about what happens when something is posted if we do not hold the website operator to legal account. The noble Lord, Lord Allan, will know, and will no doubt be pleased to know, that we shied away from holding the operator, in the first instance, legally responsible. However, we could not find a way to say that it had no responsibility at all, as though it was a postman delivering something from A to B, who wrings its hands and says, “It’s got nothing to do with us, guv”. There was, therefore, a responsibility.
We turned, therefore, to the victim in this situation. Something scurrilous that is put on a website travels around the world very quickly. We heard claims such as “Well, give us a week or two to take it down”, but the answer was no. A week or two can damage reputations beyond any means of redress or solution. We therefore made our recommendations. I would like, on behalf of the Joint Committee, for this Committee to understand that we believe that people are legally responsible for what they say in whatever forum they say it, and that you cannot be excused defamation in any forum because you happen to be an expert on a medium that is electronically new and modern.
We shied away, therefore, from the encouragement the noble Lord, Lord Allan, gave just before Christmas, that this was where it will be at in the future, and e-mails are a thing of the past, or, as I believe he said, largely restricted to the work environment. We did not believe that that was part of the brief that we are asked to consider by the Government. It is not our job to second-guess how people will wish to communicate.
I read an interesting story in a newspaper in the past seven days, which said that a month or two ago we were all pronouncing the death of books, and the Kindle was the thing. Now, all of a sudden, people are buying books again. I should declare an interest in that my family gave me a Kindle Fire at Christmas. It was interesting that three months ago no one would brook any interference with the assertion that books were on the way out, and the Kindle was the future. Now, however, the number of books being sold is on the rise again.
I will stop short of making any comment about what is happening to Kindle, because I do not know enough to say something on the record that I would
want to be asked to defend in the future. But it is relevant to what the noble Lord, Lord Allan, told us. It is not the job of this Committee to second-guess how people are going to communicate with each other in the future—or, in some cases perhaps, even whether they are going to communicate with each other; rather it should be concerned with the principles that cover that which is defamatory, with the redress and with the speed of redress that should be available.
I agree with the noble Lord, Lord Faulks. My heart does not beat faster in sympathy with large companies operating websites on the grounds that they are the poorest of the poor. There are remedies that they can have that every other business in the country can have even if it is in a different area, and we need to bear that in mind as well.
I say to my noble friend the Minister that this clause was always likely to be the most difficult. He recognised that because he did not offer a draft clause for the Joint Committee to consider; it was one of those “consultation” things. We could all benefit from some clarity from him today, not because the Government are not being helpful and constructive—they are—but because this is going to be difficult to get right. There will be amendments on Report and there may be amendments at Third Reading, but it would help enormously if, starting with today’s amendments, the Government could give us as much clarity as they feel they can on these specific amendments and as a guide to how those principles that I have enunciated should be made to work in the real world.