I think that the noble Lord, Lord May, is correct. If I understand the intent of the amendment of the noble Lord, Lord Lester, it is precisely to address those circumstances where, again, somebody who intends to create a defamatory statement that is lawful is not prevented from doing so. For that reason, I support Amendment 26 as well.
In setting out the various criteria that we have included in Amendment 27, I hope that these will also address similar concerns, in that they will require the complainant to go into a little more detail about why their complaint constitutes unlawful content as opposed to simply content that they do not like. The reality today is that people will simply fire off a letter to a website operator, saying, “I allege that this is defamatory”, with very little more detail than that. It is very hard then for the website operator to act swiftly, which we all want, and to guarantee fairness, which I think that we also want, between the two parties involved.
5.30 pm
The noble Earl, Lord Erroll, mentioned scale, which is important when we come to talk about the internet. It is not an excuse; unlawful content remains unlawful content wherever it is. I think that everyone—certainly everyone from the responsible part of the internet sector—agrees that unlawful content should be dealt with swiftly; that is not a reason not to address things. However, scale is relevant, because a large volume of complaints is coming through now that a large volume of material is being published.
The world was a lot simpler in the days when you had four TV channels and five daily newspapers—I am reminded that we once had two TV channels—and they did not broadcast or publish 24 hours a day. Monitoring that content and dealing with complaints was a much more straightforward procedure; the scale was simply of a different order. Now that we have a greater magnitude of content being produced, the number of complaints, or potential complaints, is significantly different from before. I would not cry crocodile tears for the operators or support defamatory content being allowed to stay up simply because of scale, but we need to focus on having a process that works in the context of content being produced and distributed on the global scale that we now see.
The process should allow the operator to make a decision that is swift and fair to the complainant and the owner of the content. I say again that we are talking in Clause 5 not about content that the operator owns; the copyright—or however you want to define it—on a blogging site or similar site quite properly belongs to the person who created and posted that content. The operator has a responsibility to be fair to its customer—the person who has posted and owns that content—and to the complainant. Including within the posted notice the additional information set out in Amendment 27 can allow us or help us to get to a resolution which is both swift and fair.
The noble Viscount, Lord Colville, set out some interesting reasoning for having a process where, when there is a dispute, we can seek some form of alternative dispute resolution mechanism. When we think of the scale of complaints that we are potentially dealing
with these days, we see that a proportion of them could be resolved through fairly painless and cheap legal processes, but where anything short of a legal process may be insufficient. It leaves people ill informed and unable to make what would otherwise be a fair and swift decision. Amendment 27 is intended to get us towards decisions that are swift and fair to all parties. Amendment 26 is also a very sensible way to address the issue quite properly raised by the noble Lord, Lord May; that is, that people will make fair comment which is potentially defamatory but is not unlawful. I do not think that any of us wants to interfere with that reasonable comment, particularly in the context of scientific debate and other arguments that people may conduct.