My Lords, as in December I wished the Committee a happy Christmas, maybe now that the Minister is back from Australia I can wish the Committee a happy new year. I thank the Minister not only for coming back from Australia to address us but for his response. I thank also everyone who has spoken, particularly my noble friend Lord Triesman and the noble Lords, Lord Phillips of Sudbury, Lord Lucas, Lord Faulks and Lord Mawhinney, for their support. I am grateful also for the contributions of the noble Lord, Lord Lester, and the noble Earl, Lord Erroll. I am sure that the noble Lord, Lord Mawhinney, does not need reassurance that his summary of the Joint Committee was, as always, spot on and symptomatic of what he did in that committee, focusing straight in on the victim, who often has no recourse to law.
There is a view that somehow the web is less serious than the printed word, but when I was learning my journalism, I was told, “Remember that today’s
newspapers are tomorrow’s fish and chips wrappers”. Actually, some printed words are so ephemeral that the web is more serious rather than less serious.
I am still not quite sure what the Minister thinks is a website. Perhaps he will tell us in a moment whether Facebook is a website, whether a Tweet is a website and whether our Lords blog—which I recommend to you all—is a website, because it would be useful to know.
Given that we are in the slightly unusual position of having previously adjourned in the middle of an amendment and having the Hansard for part of it, perhaps I might quote what the noble Lord, Lord Phillips of Sudbury, said on 19 December. He said:
“The disparity of arms between claimant and defendant is nowhere more vivid than in relation to the web operators, many of which are huge multinational companies. They do not do this for fun—they are not like a village notice board. They do it for profits, and mighty big profits … They are the Goliath in the defamatory relationship … and … their impunity is not justified in terms of freedom of speech”.—[Official Report, 19/12/12; col. GC568.]
That is really the nub of what we are talking about. Along with the noble Lord, Lord Mawhinney, I cannot agree with the view of the noble Lord, Lord Allan of Hallam, that, with the web, we are talking just about private speech in a public space. We are talking about a publication, whether it arrives on your iPad, on a laptop or on something else. The issue of anonymity arises more frequently on a website than it does in a publication, which is perhaps why we concentrate on it, but if what the Government are suggesting—the 72 hours, the seven days and then going to court—is accepted, everyone who wants to defame will just go anonymous. Why should they not just go anonymous, knowing that they will basically be beyond the reach of the law?
Some of our amendments to which the Minister has referred are fairly uncontroversial. I would have thought that the “electronic platform” proposal is surely worthy of consideration. We may not have got it right, but I hope that what we have at the end is robust even if it is done by attached guidance. However, I will concentrate on two of these amendments.
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I will first mention Amendment 29, which is not in our name, on malice. As has just been said, this gives website operators quite a defence. However, where peer-reviewed journals are quite rightly being given some privilege, Clause 6(6) says that:
“A publication is not privileged by virtue of this section if it is shown to be made with malice”.
If, therefore, that sort of phrase is good enough under Clause 6, it should possibly be good enough here, if it does not apply to all defences.
I will concentrate on Amendments 25A and 25B, which are about what would happen when someone is defamed and wants to take action. They are about putting the defamed person in touch with the author. We agree with the Minister that we do not want the middle person to be there, but we want the defamed person to get in touch with the author so that they can deal with this outside. To ask for that does not somehow
undermine the freedom of the press, for which, as I said in December, many have fought, and some have lost their lives. Freedom of speech, however, is about our being able to speak to power, or to business, not to allow anonymous destruction of someone else’s reputation.
Other Members of the Committee may have heard what I received yesterday via the Libel Reform Campaign about trolling, which also mentioned the use of anonymity on the web. They put that forward to refute what I said in December. Let me be absolutely clear: I have nothing against pseudonyms or anonymity. I do not use it; I do not call myself “Sexy Sue” or “Dishy Diane” or any of the other names that I gather are used by people who want to be anonymous. I do not disguise my identity, but I am quite happy that people should do so, as long as there is some other way of getting hold of that person if they defame someone else. That is the key. We are not seeking to outlaw anonymity per se, but we do not want someone to hide behind that, and this is a matter of importance.
For those who were not in the Chamber on Friday, I will take a moment to quote from the noble Baroness, Lady Hollis, who was speaking in the debate on the Leveson report. She has, as everyone on the Committee will know, been the victim of a gross intrusion into her family’s privacy at a very difficult time. However, it was not simply about an intrusion into privacy, but about lies. This Bill is about covering that kind of mischief: things that are not true. The noble Baroness, Lady Hollis, called for a cultural revolution in the press. She gave an example from her own experience:
“An article in one newspaper contained 28 supposed facts. It was quite a lengthy piece that went over two or three pages. It included photographs of people and places. Of those 28 facts, just two were correct. The others were fabricated and sensationalised. But this information was repeated by other journalists again and again in the same and in different newspapers. None of these journalists checked their information. They simply”—
I am getting to the important words—
“took it from the internet, reordered it, changed the emphasis and called it an exclusive”.—[Official Report, 11/1/13; col. 402.]
The noble Baroness was talking there about untruths, and the role of the web in perpetuating those untruths.
We cannot shrug this off as ephemeral stuff that is too hard to restrain or too unimportant to haunt its victims. It clearly haunted the noble Baroness and her family, and she wants an answer to her own “victim test”, as she puts it. Will those who post things clean up their act and move towards a position of trust again? What she said shows that we cannot simply separate the printed from the e-publications, because these are part and parcel of the way we now communicate.
There are three sorts of mischief which we as a society seek to stop on the web. One is criminal—whether this is racism, child abuse, or incitement to terrorism. The second is privacy, which Lord Justice Leveson’s energy is going into, and which covers truth, and how far that should go. The third is defamation—in other words, untruth—which occurs when someone assaults another person’s reputation, sometimes with devastating results. We know of the deaths of young people who have been badly hurt by that.
We need to do something to make people stop to think before they set about destroying someone else’s reputation. Our amendments are about putting the person who has been defamed in touch with the person who wrote the material. They are about having quick access to the author of that defamation. I cannot accept that someone should just be encouraged to have a portal, as I think the noble Lord, Lord Allan, said, rather than an e-mail address, a way to get in so that they can make that complaint as easily as possible. They should be required to do so. On asking people to give their name, address and contacts to the host, we met Yahoo last week. It had no particular problem with that. It has been said that that has been challenged, but Yahoo did not come up with a host of practical problems.
The noble Lord, Lord Lucas, rightly said in December that a website should not be forced to take down a comment just by the threat of a defamation action, as the action should be against the person posting the comment, not against the website. We agree, but that can happen only if the website does its bit to unite the claimant with the author.
As I said when I moved the amendment, we heartily support a free press but, as the Leveson debate has shown and as my noble friend Lord Stevenson said in the House on Friday, a free press must be a responsible press. It must expose the abuse of power but also not abuse its own power. That is the balance that we need to strike on the web. When the Libel Reform Campaign lobbied us on the amendment, it was because it wanted a free press, and it considered the web as part of that. If we want to see the web as part of a free press, it must accept its responsibility and not abuse its own power.
We are simply seeking to get someone who is defamed closer to the person who wrote the material, and asking the host to enable that. Although I will withdraw the amendment now, I think that the Government have a little further to go to facilitate what we want, which is the quickest putting together of the person who wants to take an action and the true person against whom they should take it, which is the author—unless the author is to be anonymous and the host says, “You are a whistleblower”. That is fine, but then the host stands in their shoes. On that basis, I beg leave to withdraw the amendment.