My Lords, we have heard much about balance. In order to provide balance from the Dispatch Box, at least in terms of the coalition, it is only right and appropriate, after my noble friend has spoken, that I now address the Committee and deal with some of the issues that have been raised. I listened with great interest to the noble Lord, Lord Browne, proposing the amendments and noted with great care what he said. At times I felt that some of my responses had winged their way over to him.
I shall respond to the amendments in front of us and share some thoughts as well. I assure noble Lords that when looking at the tabling of an amendment and its implications, both I and my noble friend Lord McNally look at these wordings in rigorous terms to test their application, ultimately from a layman’s perspective, to try to understand and get behind the true meanings of the different clauses.
Amendment 44A would amend Clause 8(1) to provide that the single publication rule would apply to the publication of the same material by any publisher rather than by the same publisher. As noble Lords have acknowledged, this would significantly extend the scope of the single publication rule, and there are implications for the protection for claimants. I shall talk through some technicalities. First, it would mean that if the claimant were to bring an action in relation to the original publication and that action took more than a year to resolve, he would then have to rely on the court to exercise its discretion under the Limitation Act and permit him to bring a further action against another person who might have republished the material. Although the claimant may have obtained a court injunction against, say, a local newspaper in this regard to prevent further publication of the material, another newspaper under different ownership in a neighbouring town would still be free to republish it.
The scenario painted by my noble friend Lord Phillips is certainly not something that I have looked at, and I will have to refer to our officials in that regard. Sorry, it was my noble friend Lord Marks who painted the scenario on solvency, which was an interesting proposition to dwell on.
I talked about understanding what this would mean from a layman’s perspective. In our discussions, one of the things that have been conveyed to me is that the purpose behind the amendment, or at least its effect, would be, in short, that one newspaper could simply report what another one had reported without paying any due regard to whether it was defamatory. Of course, in these circumstances a court has a discretion and in some cases would be likely to exercise its discretion in favour of the claimant. However, the concern remains for the Government that this process would involve additional delay and expense. We do not believe—I am going to use the words again—that it would strike the right balance.
Amendment 47A relates to the provision in subsection (5) that the single publication rule does not apply where the manner of the subsequent publication is materially different from the manner of the first publication. As the noble Lord, Lord Browne, acknowledged, unless considered in conjunction with
Amendment 44A, it is difficult to see how this amendment would apply. When a statement is published for a second time by the same publisher, as Clause 8 provides, the comparative quality and credibility of the source will, in most cases, always be the same, even though the place where the subsequent publication appears may be different.
In any event, the Government do not consider that the amendment is necessary. Subsection (5) identifies certain matters to which the court may have regard in considering whether publication is made in a materially different manner. It is difficult to see what relevance the fact that a subsequent publication has been made in a more credible place has to the question of whether a claimant should bring a claim.
The noble Lord, Lord Browne, raised the question: what does “materially different” mean? The noble and learned Lord, Lord Browne, acknowledged that to define “materially different” may be a little fact sensitive. We believe that the question of whether the publication is materially different should be decided by the courts rather than that we should attempt to provide a definition in the Bill. In the unlikely event that the court considered issues such as those contained in Amendment 47A to be relevant, there is nothing to prevent the court taking them into account.
Amendment 47B provides that subsequent publication shall not be deemed to be materially different in two specific instances: first, where the statement is part of an academic or scientific journal and goes from being accessible only on payment of a fee to being accessible free of charge; and, secondly, where the subsequent publication is as a result of an archive accessible on the internet. We recognise that concerns have been expressed about the importance of archives and material in scientific and academic journals. We have taken action elsewhere in the Bill to protect material which has been properly peer-reviewed.
However, there may be circumstances in which making previously subscription-based journal articles freely available could significantly increase the extent of the publication and could cause serious harm to the claimant. This is also the case where the material was previously available only in an off-line publication and is placed on an archive accessible on the internet as this may bring it to the attention of a much wider audience. We do not consider that it would be right to say that a claimant should never be able to bring an action in these cases, which would be the effect of the amendment.
In any event, the court would need to be satisfied that the publication has been made in a materially different manner, and how that test is applied is, again, best left to the court to determine in each individual circumstance. In the event that the court decides to allow a claim to proceed, the serious harm test would have to be satisfied for the claim to succeed. We, again, believe that this strikes the right balance.
On Amendments 45, 46 and 47, I cannot add much more to the words of my noble friend Lord Lester in describing the Government’s position. We believe that there is clarity in the Bill as drafted. On that basis, I hope the noble Lord will withdraw his amendment.