My Lords, because of my general opposition to this clause, it is obvious that I would also oppose these very well meaning and well articulated
suggestions of a mode of complaining by someone who feels that they have been defamed on a website. The debate has thrown up the fact that the industry is in the process of developing a response to this new problem, and I respectfully suggest to your Lordships that that is where the development should come from, not by means of legislation—we are bound to get it wrong and to be out of date. Rather, it calls for a response to a developing situation. If a code of practice is developed that provides an appropriate response, that will deter people from suing, certainly for anything other than the most serious defamations.
As for the amendment put forward by my noble friend Lord Lester, I entirely understand it and the fact that he wears his cloak from the JCHR. If there is to be such a procedure, however, it is asking quite a lot of an individual to make some form of assessment as to, first, whether it is defamatory and, secondly, whether it is unlawful. That would involve them reviewing possible defences: whether or not it was justified, which is an absolute defence; whether or not there was qualified privilege; whether there was responsible publication. That is a considerable series of hurdles for someone to overcome before deciding on and setting out the nature of their complaint.
On the alternative dispute resolution, of course I understand what animates that. It is very easy to sit around in a committee of any sort and suggest that something can be done quickly, cheaply and easily. The reality, of course, is that there are short cuts even within the current framework. People can get preliminary rulings on meaning and whether something is capable of being defamatory within the existing mechanism. I fear that what is suggested may sound like a good idea but may in fact simply be superorgative. It may add to what is already there and not provide the sort of cheap alternative mechanism that plainly is desirable. I respectfully suggest that the amendment should not be pursued.