My Lords, as the debate, albeit part two of the debate that we started before Christmas, has indicated again, there are wide-ranging opinions. Let me first set out that the Government agree that it is about getting this right and getting the balance right. This is an evolving area and it is important that we discuss these matters fully. My noble friend Lord McNally and I are listening carefully and intently to the arguments being made. It has never been the intention, nor should it be, that websites should be beyond the reach of the law. My noble friends Lord Mawhinney and Lord Faulks asserted that perhaps that is what this clause is trying to do. On the contrary, it is not.
My noble friend Lord Mawhinney made the point about being beyond reproach, and that what is said on the web is instantly translated and is, as we all know, retranslated and retweeted, wherever that may go. However, to draw a comparison with the printed media, while there is a source available, there are times when a story is printed on the front page of a newspaper and gets picked up on the internet. When that story is shown not to be correct, the retraction is quite limited. In the same way, I suggest that the damage is done. Too often, what is remembered is the headline which struck when the news broke, how it broke and the sensationalism behind that news story. It is not just about the website, although I concur with my noble friend in saying that the website is something which can sometimes go beyond the limits of the person who is hosting it, and the person who initially posted it, because it is replicated elsewhere.
I will take each amendment in turn. I doing so, I will pick up the various points that have been made by noble Lords and comment appropriately. First, it is absolutely right that the law on defamation should apply in relation to online as well as offline material. The Government’s proposals would enable claimants to take action against the poster of the material, the person responsible for making the defamatory statement,
rather than the website operator. However—and this is a crucial point—the operator will still be liable if the operator is shown not to have followed the process which is designed to enable that to happen. That is a crucial point.
My noble friend Lord Faulks suggested that websites are being given protection beyond other media channels. Let me be absolutely clear: the defence for such websites only applies where website operators are not the ones who post the statement. The closest parallel might be a letter to an editor which the paper chooses to publish: it is not automatic.
Amendment 23A seeks to provide for the Clause 5 defence to apply to other “electronic platforms”, rather than simply “websites”, that have defamatory material posted upon them by third parties. The purpose of Clause 5 is to provide a defence to website operators that host third party content over which they exercise no editorial control. We chose to focus on this specific category of service providers because, as the noble Earl alluded to a moment ago, it is about definitions. How do you define things? My own background in business dictates that when I saw the words “electronic platform”, I saw them from the perspective of the world of financial services, in which it often alludes to banking platforms, which are slightly more limited than websites.
I also undertook during the summer break—apart from visiting Australia as I informed noble Lords I would—to look up definitions. How do you define an “electronic platform”? The varying degree of definition not just of electronic platforms but of platforms themselves is interesting. There is no consistent application one can put in.
Looking to the development of the world wide web, the word “website” emerges from that. The noble Lord, Lord Browne, made the point that we are living in an evolving and ever-changing world. As we are looking at this issue, as crucial and sensitive as it is, I am sure that we will return to this in the years to come.
The noble Baroness, Lady Hayter, also talked about DPP guidance on criminal prosecutions. We are certainly looking at the DPP’s guidance, but we can see nothing in our proposals that would be likely to conflict with that guidance specifically.
It is not clear what “electronic platform” in Amendment 23A is intended to cover. As I have said, it has been suggested that the term “websites” is too narrow and risks not capturing new technologies in this fast-changing marketplace. We can debate and discuss which term is more appropriate, but I go back to the words of the noble Lord, Lord Browne: we live in a changing world. If in further discussion in Committee or at Report a form of technology is brought to our attention that is akin to a website and serves the same purpose in hosting third-party content, and a suitable form of words can be found adequately to describe that in legislation, the Government are open to considering that point further.
Amendment 23B would mean that a website operator who complied with Clause 5 would have a defence only against a claim for damages in defamation. As Clause 5 stands, the website operator will have a complete defence provided that he complies with the
new process. As noble Lords will know, damages are by far the most common remedy in defamation proceedings, and it is difficult to see what difference the amendment would make in practice. It appears unlikely that claimants would bring a claim for a remedy other than damages. The Clause 5 process will provide a quick and cheap means for a complainant to establish contact with the poster of the material and secure take-down. Should legal proceedings be necessary, action can be brought against the poster. In the event that such a claim succeeds, damages would be payable by the poster, and Clause 13 enables the court to order the website operator to remove the material. We therefore do not consider that the amendment is necessary.
Amendment 24 seems to stem from concern that a website operator will use associates to post defamatory material on their sites, knowing that they can hide behind the Clause 5 defence. The Government are not persuaded that there is a significant risk of that happening. The noble Earl also referred to practical issues. However, in the event of such a situation, the claimant would be able to pursue an action against the individual poster and would not be left without a remedy.
In addition, there is the obvious difficulty in respect of establishing what is an association. For example, who would qualify as an associate of the website operator and how would the claimant be expected to prove that association? Conceivably, an associate of the website operator could post something defamatory without the website operator’s knowledge. In such cases, it would seem entirely inappropriate to prevent the website operator from relying on a Clause 5 defence, provided, of course—I come back to the point I made earlier—that the operator had followed the Clause 5 process.
Amendment 24A, tabled by my noble friend Lord Lucas, would mean that a website operator would not lose their defence if they had moderated the statement or had made or suggested alterations to the content. We do not believe that the amendment would be appropriate. Subsection (10) already makes clear that an operator would not lose the defence simply by reason of the fact that they moderated statements posted on the site by others. That will ensure that operators are not discouraged from moderating their sites in a responsible way. However, the amendment would go further and allow them a defence if they moderated in a way which changed the content of the statement. In practical terms, this could mean that an operator who changes the statement in a way which made it—dare I say?— defamatory, or makes the defamation worse, would be protected. I fully accept that that is not my noble friend’s intention.
I believe that my noble friend Lord Phillips seeks by Amendment 25 to add clarity. However, we do not believe that the amendment is necessary. I shall explain why. The Government’s view is that subsection (4) already provides that test. 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. As such, the Government’s view is that the insertion of “reasonably” would not make it any clearer, because it is clear from the clause as it stands.
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Amendment 25A would require a website operator who wished to rely on a Clause 5 defence to publish a notice of complaint against the material complained of within seven days of receipt of the complaint. The amendment also provides that, if the website operator failed to post a notice within the set time period, it would forfeit this defence, and would be able to rely only on the standard defences available to the primary publisher.
As I believe the noble Baroness, Lady Hayter, said, this reflects an amendment tabled by Her Majesty’s Opposition in the other place. It seems to be based on the recommendation of the Joint Committee on the draft Bill, but goes beyond it in certain important respects. Under the terms of the amendment, where website operators failed to meet the requirements of the new provision, they would not only be unable to rely on the new Clause 5 defence, but would also be prevented from relying on any other defence that currently exists in relation to secondary publishers; for example, under the e-commerce regulations and Section 1 of the Defamation Act 1996. This would result in a very serious lessening of the protection potentially available to website operators.
I will add that when we indicated and responded to the Joint Committee’s report, and indeed, in Committee in the other place, issues of practicality were also raised. When Ministry of Justice officials met internet organisations following the publication of the Joint Committee’s report, those organisations identified significant practical and technical difficulties with the proposal relating to the posting of a notice of complaint alongside defamatory material. The noble Earl spoke a few moments ago about the technical matters relating to this.
For example, the content complained about might be embedded within a number of different sites, which would make it unclear who should be responsible for attaching the notice, where exactly it would be placed, and how it would be transferred across to subsequent sites on which the material might appear. I sometimes use the Twittersphere. You can take a news item, put it on your own Twitter page, and your own tweet is subsequently picked up and posted elsewhere. The practical issues around this need to be considered.
I alluded earlier to the fact that Ministry of Justice officials met website operators to whom they gave our opinion, which I have shared with the Committee. I accept that many noble Lords may be sitting back and saying, “Well, they would say that”. However, the Government’s concerns have been clear since our response to the Joint Committee in February and, as yet, no one has been able to point to any specific evidence to suggest that those concerns are not warranted. On that basis, I am afraid that the Government cannot support this amendment. However, in the spirit of the debate, and in the spirit which my noble friend Lord McNally has shown constantly throughout this Committee, if there are examples, we will certainly examine them and welcome their input to this particular debate.
Amendment 25ZA, in the name of my noble friend Lord Lucas, would provide for the defence to be defeated if the claimant could show that, among other things, it was not possible for him to identify,
“with the assistance of the operator”,
the person who posted the statement. I will clarify this process. This provision is intended to focus on the need for the claimant to show that they had been unable to identify the poster before they sent the notice of complaint to the website operator. Clause 5(3)(a) details this.
Amendment 25B, in the name of the noble Baroness, Lady Hayter, would add to the list of matters which may be included in regulations under Clause 5(5). It proposes that regulations may require website operators to set up and publicise a designated email address to receive notices of complaint, and may require posters of defamatory material to release their identities to website operators and complainants.
I will speak to the first part of this amendment. The note which my noble friend Lord McNally sent to Members of this House on 10 December indicated that website operators will be encouraged to set up and publicise a designated email address for this purpose as a matter of good practice. We believe that it will be in website operators’ interests to set up a system for receiving complaints. Having a designated e-mail address, or an online complaint form, will assist in ensuring that notices of complaint are sent to the right place to enable them to be processed promptly and efficiently, otherwise operators could be at risk of losing the Clause 5 defence by failing to adhere to the time limits for processing a complaint. It is our view that this provides an adequate incentive to website operators to have a designated address for complaints and that nothing would be gained by forcing them to take a particular approach.
In relation to the second part of the amendment, the note also indicated that in responding to a notice of complaint, where the poster of the material refuses to agree to the removal of the material complained of, it would be open to him to indicate that he did not wish his identity and contact details to be released. The amendment would enable regulations to require the poster to release the details to both the complainant and the website operator.
The enabling powers in Clause 5 are currently focused on the actions that a website operator must take. Failure to comply with the process results in the website operator forfeiting the defence. This addition concerns actions that the poster must take. It is not clear what penalty would follow a failure to do so. If the intention is that the website operator would potentially become liable if the poster failed to provide details of their identity, this would not only give no incentive to the poster to comply but would also be unfair to the operator, who is not in a position to know which party is in the right.
On the more substantive point, though, the amendment would also enable the complainant to pursue proceedings against the poster without the need to seek a court order for the identity and contact details to be released. This would remove protection from posters who have a valid reason for wishing to remain anonymous, such
as whistleblowers. I know that this point was raised in Committee before Christmas, and my noble friend Lord Lucas also referred to it. The Government do not consider that this would be appropriate. While we agree, and this is important, that anonymity should not be used as a cloak for making abusive or untrue statements, there are legitimate reasons for a person posting material anonymously or under a pseudonym, and for not wanting his identity to be disclosed.
Under the system that we are proposing, the poster would be required to provide his name and contact details to the website operator. If he refused to do so, the posting would have to be taken down for the website operator to retain the Clause 5 defence. However, if the poster provided his contact details but indicated that he did not wish those details to be released to the complainant, the website operator would be required to inform the complainant of this. If the complainant then wished to take further action, he would be able to seek a court order for the website operator to release the name and contact details that it had in relation to the poster.