My Lords, there has been an understandable preoccupation thus far with the traditional media, but, of course, the web is becoming an increasingly dominant player in the world of communication. Clause 5 deals with websites and in particular with the position of operators of websites. As fellow Peers will know by now, the Defamation Bill preserves primary liability, fairly, to the author of any defamation and protects and gives a blanket protection to the operators up to the point that a notice of complaint is lodged—and for a period after that.
As we have all said endlessly, it is extraordinarily difficult to strike a balance in this difficult field between on the one hand preventing censorship by threats of libel actions and on the other hand protecting an individual’s personal reputation. The chill factor, mentioned a great deal in Committee, operates on both levels, so to speak. At Second Reading, my noble friend Lord McNally said,
“The Government want a libel regime for the internet that makes it possible for people to protect their reputations effectively but also ensures that information online cannot be easily censored by casual threats of litigation against website operators. Clause 5 of the Bill sets out a framework for how we wish to achieve this”.—[Official Report, 9/10/12; col. 935.]
Fair enough, but my noble friend Lord Faulks and I do not think that the balance has been quite well enough struck—or we would not have put down the amendment. At a previous stage of the Bill, I talked about the position of the little man and we talked earlier today about the position of those without resources in trying to protect their reputations.
One needs to acknowledge that the web is so different from traditional publishing via newspapers and magazines as to be almost another world. It provides a conduit for libel that enables defamations to be carried to the ends of the earth simultaneously at no cost. The libels will not be erased and they are universally and instantly accessible. It is interesting that in Committee my noble friend Lord Allan of Hallam said that,
“there are so many millions of pieces of content being posted by so many millions of people within the United Kingdom and elsewhere that to be able to operate these platforms at scale and not have some kind of defence becomes unworkable”.—[Official Report, 19/12/12; col. GC 574.]
I agree with him on “some kind of defence”, but that has to be a fair defence or it will reverberate unfairly against the individuals libelled.
I remind all noble Lords that Clause 5 says that the operator of the website cannot be liable for any defamation posted, however grotesque or damaging, unless and until a notice of complaint is filed and the operator fails to deal with that notice in accordance with the Bill and the regulations yet to come. That is not sufficient or adequate. Under Clause 5 as it stands, the web operator loses his defence only, as I say, once the notice of complaint has been given and he fails to respond in accordance with the regulations. I am happy that Amendment 17, to be moved shortly by the Government, will put into the Bill the amendment that I moved in Committee that would defeat a defence if there is malice on the part of the operator. The onus will be on the person defamed to prove malice, which is a high bar.
One needs to recognise that sometimes, not infrequently, the primary person responsible for the libel—the author of the statement posted—may not be accessible. I do not want to elaborate on what was said last time except briefly to remind the House that often these libels are anonymous, and behind one anonymous libel is another and so on. It is a commonplace for those affected by the defamations to go to court and get one order, only to find that another is required, and another and another. It is vital that the role and responsibility of the operators should be fair to both sides.
Just consider for the minute what the defamed citizen has to do under the Bill as it stands even to get a notice up on the web. First, he or she will need to get legal advice about what to do—we have spoken a lot about the complexity of this whole web of arrangements. That will be expensive—just that will be too expensive for many citizens—but so be it. There then has to be drafted a complaint notice that satisfies Clause 5(6),
explaining why a statement is defamatory—fair enough. There will then be extra tests, or at least extra requirements, under the regulations when passed that may add substantially to the complexity of drawing up and lodging a notice. Other amendments tonight would impose yet more complicated tests on the defamed citizen—Amendment 14, for example. Then and only then, when the notice of complaint has been duly drawn up and served, will the operator of the website have to act to preserve his immunity and defence. There will still be time—I think probably 14 days—after all that when he can consider whether to take down the statement complained about. In that time—we could easily be talking about a month—the libel will be up and will have spread across the globe and back. The more grievous the libel the further it will have travelled and the more damage will have been done.
It is against that background that Amendment 10 is drafted. I suggest to noble Lords that it is neither unfair on nor unduly restrictive of operators. It will for example provide that if an operator was aware that the person posting the defamation had his knife out for the person defamed then they could well be falling foul of proposed new subsection (1)(b) of our amendment, namely that,
“the operator took reasonable care in relation to its posting”.
It could also fall foul of proposed new paragraph (c), which states that,
“the operator did not know and had no reason to believe that what it did caused, encouraged or contributed to the posting of the statement”.
Take another situation, where the operator had a stake in this and was maybe a partner or had some business association with the person posting the defamatory statement. Surely then the operator should be under a special duty to keep an eye on what that person or company was doing. Otherwise, as I say, there could be an unfairness to the person defamed and the operator would not be entirely at arm’s length or wholly unaware. It would not be in a position where it could not anticipate some potentially malign action on the part of the person who posted the defamation. It could be, for example, that they were part of a joint campaign. It could be that the website operator itself had an agenda. More and more websites are campaigning websites and have an axe to grind. Our amendments would at least ensure that where that was the case and the court felt that the operator had not taken reasonable care, and had knowledge or anticipation of what was likely to be posted by the individual or company concerned, they would not be able to hide behind the provisions of Clause 5(2) as it stands.
I think I will cease at this point, except to say that the uncontrolled use of the web is, as many would agree, coarsening our culture. There is a great deal of matter put on to websites every minute of every day that is unseemly, often bullying and sometimes pornographic. There is, as I say, a coarsening of our culture. This amendment will not change all that fundamentally, but it will at least control to some extent what is posted by dint of making the blanket immunity of the operator subject to reasonable and fair conditions.
I leave my noble friend Lord Faulks, who has put his name to this amendment, to deal with the relationship between it and the Defamation Act 1996, and to talk about the flexibility that the amendment will introduce into the defamation regime.
7.30 pm