My Lords, I thank the noble Baroness for introducing the amendments. I want to revert to the broadening of the scope which was talked about in Clause 13. Again, in the spirit of what has been said before by my noble friend Lord McNally, if that is required and desired, the Government are happy to contemplate it.
Amendment 51A envisages introducing a regulation-making power to set out the specific procedure to be followed in relation to the making of an application for an order under Clause 13(1). We do not believe that this amendment is necessary. Clause 13, as the noble Baroness acknowledged, was introduced in the other place to address the concern that the claimant who had successfully brought an action against the author of defamatory material online may be left in the position of being unable to secure removal of the material. This situation might arise as a result of the fact that an author may not always be in a position to remove the material and the new Clause 5 defence might prevent the website operator being required to do so. The clause, therefore, applies only where the claimant has brought proceedings against the author and is completely separate from the process under Clause 5. As drafted, it enables an order for removal of the material to be made during or shortly after the conclusion of those proceedings, or on a separate application under Part 23 of the Civil Procedure Rules. Part 23 governs applications for court orders and sets out in detail how the process should work, including rules in respect of how an application is to be made, where it should be filed, what information should be included and how it should comply with any relevant time limits, among other matters. To the extent that any supplementary provision might be required, it is the Government’s view that the existing power to make rules of court is entirely sufficient to enable such a provision to be made. A regulation-making power is therefore unnecessary and could perhaps add confusion about the relationship with Part 23 and possibly cast doubt on the scope and applicability of the existing power in the Civil Procedure Rules.
Amendment 51B provides that the removal of allegedly defamatory material from a website and the publication of an apology or correction should not prevent an action for damages being brought. It is not clear how this amendment fits specifically with Clause 13. As I have said, this clause is to address situations where a claimant brings a successful action against the author of defamatory material online but where the author may not be in a position to remove material which has been found to be defamatory from a website. Where the content is removed by website operators in other circumstances—for example, after following the Clause 5 process where the poster chooses not to engage or agrees to removal—there is nothing in either Clause 5 or Clause 13 which would prevent a claimant bringing a defamation action seeking damages against the poster. Clearly, there may be cases where the damage caused by a defamatory statement is so serious that simply having it removed from the website will not provide the claimant with sufficient remedy. In these cases, it is right that the claimant should be able to pursue an action against the poster, and if that is the intention behind this amendment, then we agree entirely with the principle and the sentiment. However, we do not believe this amendment works in conjunction with existing provisions in Clause 13 and, for the reasons I have given, such a provision is deemed unnecessary. Where a statement is removed by a website and the claimant still wishes to pursue an action against the author, there is nothing to prevent them doing so.
In light of the assurances I have given and coming back to the issue of the scope, which the noble Lord, Lord Browne of Ladyton, addressed earlier, I hope the noble Baroness will agree to withdraw the amendments.