My Lords, the amendment, which is in my name and that of my noble friend Lady Hayter, would apply the single publication rule to the subsequent publication of the same material by any publisher rather than by the same publisher. As it appears to be convenient to the Committee, I shall speak also to Amendments 47A and 47B which stand in our joint names, too, and may make some passing reference to the amendments tabled by the noble Lord, Lord Phillips of Sudbury. I intend to speak to the amendments comparatively briefly, because this issue was rehearsed in Committee in the House of Commons, but I am seeking further information, if possible, from the Government.
Under the current law as I understand it, each publication of defamatory material gives rise to a separate cause of action which is subject to its own limitation period. That as I understand it, although I have no experience of it, is known as the multiple publication rule. Clause 8, which I support, very sensibly introduces a single publication rule to prevent an action being brought in relation to publication of the same material by the same publisher after a one-year limitation period which will apply from the date of first publication. I have no intention of going through the effect of the six subsections of this clause. They are there for Members of the Committee to read for themselves.
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Amendment 44A is intended to probe why the protection of the single publication rule is restricted to the re-publication by the person who published the first statement. I argue that it should not be relevant who subsequently published a statement as long as the manner of publication is not “materially different”, as set out specifically in this clause. I am supported in this argument because it reflects a recommendation of the Joint Committee; again, I do not intend to go into its reasoning, which is there in its very valuable report.
In the Commons, the Government stated that they did not think that,
“extending the single publication rule in such a way would provide adequate protection for claimants”.—[Official Report, Commons, Defamation Bill Committee, 26/6/12; col. 143.]
and that they thought that Clause 8 struck the right balance. In the context of the rest of this Bill and the objectives that it seeks to achieve, I cannot for the life of me understand why there is a sub-balance of a balance. If one publication triggers the right to sue and repeated publication by the same person does not regenerate that right, I do not understand why repeated publications by others would. This whole clause seems to depend on a level of implied knowledge on the part of the claimant that should be of relevance, no matter who republishes.
Amendments 47A and 47B are here for the same purpose. The effect of Amendment 47A would be to allow a court, in considering whether a subsequent publication of the same, or substantially the same, material was made in a materially different manner from the original publication to have specific regard to the,
“quality and credibility of the source”,
of the re-publication compared with that of the first publication. I realise that there may be arguments—I give the Minister fair notice that he does not need to rehearse them all—about the elegance of some of our phraseology. If we agree about the purpose of this, I am perfectly happy that it be phrased in some other way. However, let me just explain the purpose.
Both these amendments, but specifically Amendment 47A, are designed to allow the Committee to explore whether there has been a material change if the first publication is in a less credible source than a subsequent publication. It is designed to elicit further clarification as to what “materially different” means. It is for the purpose only of allowing those who will seek to have access to the law in this area, after it is amended, to have some sense of what it was intended and designed to achieve. For example, the readership of two blogs may be the same but they may have a very different impact, depending on whether an authority on the subject or a lay member of the public runs them. Whether there is a materially different effect depends on whose blog it is.
To complete this discussion, when this matter was considered and debated in Committee in the House of Commons, the Government did not consider that the amendment was appropriate. They argued that they would find it “difficult to see” when the amendment would apply, and said:
“If a statement is published for a second time by the same publisher, the comparative quality and credibility of the source will … always be the same, even though the place where the subsequent publication appears may be different”.—[Official Report, Commons, Defamation Bill Committee, 26/6/12; col. 144.]
I beg to differ with that. I can see why publication in one set of circumstances can be materially different and that because the list in subsection (5) is nonexhaustive, the court could take these relevant considerations into account. My noble friend and I seek by this amendment to give the Government, through the Minister, an
opportunity to explain further what, in the circumstances of modern publication that we are considering, “materially different” may mean.
Amendment 47B seeks to extend the protection of Clause 8 to other categories of republication by providing greater detail as to what constitutes a materially different publication. I am wary of lists for the reasons that have been apparent in other parts of this Bill, but I think that they are helpful at least for the purpose of exploring what is in the Government’s mind. This amendment is designed to cover two specific instances in which a subsequent publication should not be deemed to be materially different.
The first situation is where a statement is part of a scientific or academic journal that was originally accessible only on payment of a fee, which then becomes accessible free of charge—perhaps on the internet after a period of time. Publishers often find that a few weeks after the first publication the number of reads of the paper copy of the article tails off dramatically, at which point it is logical to make the article more widely available. Policywise, it also enables scientists in developing countries to have access to scholarly resources to which they otherwise would not have access because they have to go through a paywall of some description.
The second situation is the creation of archives on the internet or on microfilm, which are in a different form from the original publication and should not lose the protection of the clause. This particular amendment is supported by the Libel Reform Campaign. In their response in the Commons, the Government stated that their consultation recognised that subsection (4) of the Bill as presently drafted,
“might mean that the single publication rule does not apply to an article that is made available on a free-access basis after it was initially published in a subscription-based scientific journal”.
They added:
“There may, however, be circumstances when making a previously subscription-based journal article freely available could significantly increase the extent of the publication”,
and therefore cause harm—serious or more extensive harm, I suppose—to the claimant. Again using the striking of the balance argument, the Government said that it would not,
“strike the correct balance to say that a claimant could never bring an action in such a case”,
and,
“that it would be unduly inflexible to set out in statute specific instances when the test of whether a publication has been made in a materially different manner may, or may not, be satisfied”.—[Official Report, Defamation Bill Committee, 26/6/12; cols. 144-45.]
I fully anticipate that the Minister will rehearse some of these arguments. I hope that I have not stolen all of his thunder and may have saved the Committee some time. By re-raising these issues in this truncated form against the background of the debate, I hope that it gives the Minister and his advisers, who have had more time to think about this issue, an opportunity to give us more and better specification about the words that the Government have chosen to put in this legislation, which broadly are supported.
Before sitting down, I turn to Amendments 45, 46 and 47, which are in the name of the noble Lord, Lord Phillips, but which are grouped with the two amendments in my name. My understanding of these amendments is that they are designed to produce a more elegant phraseology. If that is right and if it is considered to be more elegant, I support them. If there is something more significant to them, I wait respectfully for the noble Lord to explain it to me and I will respond to it. I beg to move.