The amendment, standing in my name and that of my noble friend Lady Hayter, would confine Clause 10 to actions for damages only. I say at the outset that I support Clause 10. It is a significant improvement in the law, and that position is supported by those who practice commercial activities. The Booksellers Association, to which I will refer later, is a strong supporter of Clause 10, but it does not think that it goes far enough for reasons I am about to give in support of the amendment.
Amendment 50B would restrict Clause 10 to action for damages only. It would provide that a court does not have jurisdiction to hear and determine an action for damages,
“for defamation brought against a person who was not the author, editor or publisher of the statement complained of unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher”.
The intention is that when the primary publisher cannot be found, the claimant would still be able to sue the secondary publisher for an injunction of some description, a take-down order or for a book to be removed, even if they were not able to pursue an action for damages.
I am in the fortunate position of being familiar with the Government’s position on this amendment because it was moved in the House of Commons. The Government thought that it could lead to a situation that even when it is reasonably practicable for an action to be brought, the secondary publisher would end up having to defend the claim, although they would not be liable for damages if the claimant were successful. Nevertheless, the Government said that they would give further consideration to this issue. The response from that further consideration may well be Clause 13, which was not there at the time of that debate. I cannot anticipate fully what the Minister will say, but I have an expectation that he may refer to Clause 13.
Clause 13 merely provides in the context of a judgment that the court may order a statement to be taken down. It would be more appropriate to make it clear that claimants retain the right to bring an action when the remedy sought is not damages. Again, this could perhaps be better drafted to achieve that, and I am content to discuss that. If the Committee can be persuaded to support the principle of this argument, I urge the Government to take the argument seriously.
For ease of dealing with these three amendments that I have grouped together, Amendment 50D is a consequential amendment on Amendment 50B and provides that nothing in Clause 10,
“prevents a court from granting any injunction or order requiring a person to cease publishing a defamatory statement”.
It may be unnecessary, but it is coupled with it. Again, I have the benefit that the Minister who dealt with this debate in the House of Commons indicated that further consideration would be given to this issue, too, but it may be that the further consideration has resulted in Clause 13, at least in part.
Amendment 50C is an inelegant amendment. It seeks to do something that I do not think that I have ever seen before in legislation, and it can be criticised for that reason. However, because of the nature of these proceedings—we are encouraged by the noble Lord, Lord McNally, to treat them as some form of seminar discussion—I have retabled this amendment. It mixes up the substance of the issue with the issue of jurisdiction. I understand that, and I am happy to take on the chin that criticism of it. However, if we move towards each other in relation to this, or if the Minister can give a better explanation than there has been otherwise about a specific aspect of this argument, and we go beyond this in agreement, I am sure that this amendment can be redrafted in another way.
At the heart of this amendment is a belief on the part of the Booksellers Association and those who advise it—indeed, there may be people in your Lordships’ Committee who have advised it at one time or other; happily, I have not—that the innocent dissemination defence, which existed previous to the 1996 Act, as a matter of fact and practice is now repealed effectively, although perhaps that was not the Government’s intention. The debate in the other place was interesting because the then Minister who dealt with it conceded in the debate that there were different views on the effect of Section 1 of the Defamation Act 1996 as to whether the defence that it provided was weaker than or as good as the innocent dissemination defence. With this short debate that I hope we will have, I seek to elicit from the Government a clarification of their position as to whether there is a difference between Section 1 of the 1996 Act and the effect of the Bill, taken together, on the one hand and the pre-1996 defence of innocent dissemination on the other, and why the Government believe that this combination that we are now presenting to secondary publishers is better than what they had before 1996.
The amendment requires that a prima facie case should exist. Although Section 1 of the Defamation Act 1996 is available to booksellers as a defence, the Booksellers Association contends that it is weaker than a common law defence of innocent dissemination, which that section replaced. As I have said before in Committee, the Minister who then dealt with it substantially conceded that point but only went as far as to say that there were differing views on the section as to whether one was weaker than the other and did not express what the Government’s position was. I think that there is at least a reasonable expectation on the part of secondary publishers that the Government should nail their colours to the mast and say what they are creating here by this process.
The Booksellers Association also contends that under Section 1, booksellers and other secondary publishers lose the protection if they know or have reason to believe that a publication contains any defamatory statement, whereas under the previous
defence of innocent dissemination a defence would have existed if the bookseller had a reasonable belief that the alleged defamatory material was not libellous, having in most circumstances received assurances from lawyers that one of the defences applied.
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Finally, they contend that the effective repeal—the elimination of the innocent dissemination defence—has had, and this is a phrase I thought I would never use in these debates, a chilling effect on booksellers whereby a claimant’s lawyers often now send threatening letters to booksellers warning that unless a publication containing the alleged libel is immediately withdrawn from sale, proceedings will be started against the bookseller and the books removed from the shelves. Paragraph (c) of our amendment is therefore intended to reinstate the defence of innocent dissemination for booksellers. I have a sheaf of letters, which I will not share with the Committee, from some of the most significant firms of lawyers in the country to small booksellers across the country threatening in very strident terms just this sort of action. I fully understand why small independent booksellers, who may have 20 copies of this book on the shelf, take them down and do not sell them in those circumstances. That may represent for booksellers, who have a lot of competition, their whole profit for that week or month, and I suspect, although I have not explored this, that those who wholesale the books to them are not prepared to take them back. That clearly is not where we intend to be.
I have already covered the issue of the mixing-up of the substance of the case with jurisdiction, and I concede that that is not the right thing to do, but it allows us to have this debate in a concentrated form. If we come to a point where we feel that we need to do something about this, then we can work together to try to do it in a better way. I see some of the logic in the arguments rehearsed by the Government in previous debates in respect of this particular amendment, but there is an expectation on the part of secondary publishers and, in particular, booksellers, which are in a particular situation, that they should understand clearly what the Government are presenting to them and what circumstances they will be living in in the future. If we can improve their position by moving back towards the innocent dissemination defence, in my view they are a group of people whom we should try to assist. I beg to move.