My Lords, I begin by declaring an interest that I chaired a local newspaper company which also defamed me. In addition, I am a trustee of the Public Interest News Foundation.
My view of these amendments and the subject matter behind them is that, whether or not Section 40 remains on the statute book, the outcome will not be satisfactory. Freedom of expression is clearly very important. There is a whole range of activities that we are properly free to engage in, but the law of tort steps
in when people step over the mark and start hurting others. In my view, the way in which the world has developed, and within it the press, has meant that, under certain circumstances, that boundary is stepped over, and that we collectively, as a society, ought to have effective remedies to deal with the consequences. Indeed, that is what this debate is all about.
That is not easy, as we know, but it is important that we remember that, although a number of big names, including participants here in the Chamber, have been affected by this, what really matters are the small men. In fact, it is not only the individual citizens but some of the very new, small media companies that are setting up. There are two slightly separate aspects to this subject. The first is the relationship of what I might call the small plaintiff versus a large media company. The other way round is if you have a small media company versus a large plaintiff. When I chaired the media company that I did, we had a defamation action against a very, very rich man who liked litigating. We found ourselves in a position when it was jolly nearly a matter of risking going bust or standing one’s ground and holding the position in the courts. Our opponent withdrew at the very last minute, but it was a bad moment to be at, and it was not a satisfactory position for a media company to be in.
My view is that Section 40 is a near miss. There is a case for having a proper, enforceable regime that is independent of the state. I do not buy the argument of the noble Lord, Lord Black, that if there is regulation it therefore follows, because of the nature of the society we live in, that that regulation is state regulation. After all, the common law was not put in place by the state. What we are discussing is an extension of old common law principles into circumstances that are very different from what they were in the Middle Ages.
Therefore, I think the right way forward is that the Government—whoever they will be on 5 July—should revisit this whole subject, because neither having Section 40 nor not having Section 40 is a satisfactory outcome. We need a form of regulation that is independent of interference from media companies, from celebrity and other pressure, and from any other outside concerns, and which is not only genuinely independent but recognised by everyone as such. That is at least as important, from a societal point of view, as making sure that the thing is not impugned.