Clause 2 - Truth
Defamation Bill
12:15 pm
Robert Flello (Stoke-on-Trent South, Labour)
I beg to move amendment 12, in clause 2, page 1, line 14, at end insert—
‘(3A) The defence under this section does not fail on the basis that one or more of the imputations is not shown to be substantially true, if that imputation would not materially injure the claimant’s reputation in the light of what the defendant has otherwise shown to be substantially true.’.
I will try not to detain the Committee long on clause 2. As I am sure you will be delighted to hear, Mr Havard, I will not be reading the amendment out, because it is as it appears on the amendment paper.
Subsection (3) covers the position in which there is more than one defamatory allegation. For example, saying someone is a liar is a lesser allegation than saying that someone is a thief, which is a higher allegation. Obviously, if it was shown to be true that the claimant was a thief, it would not matter that the defendant could not prove the lesser allegation. The effect of subsection (3) is that if the claimant proves the lower meaning, then even if he cannot prove the higher meaning, it is open to the court to decide that there has been no serious harm to reputation.
My amendment, which would insert proposed new subsection (3A), is best considered in relation to a case in which there is only one defamatory allegation. In fact, it would be better if it referred to a single imputation. For any defamatory allegation, there has evolved in case law a ranking stemming from a series of cases—most specifically, Chase v. News Group Newspapers. In the judgment in that case, at paragraph 45, Lord Justice Brooke said:
“The sting of a libel may be capable of meaning that a claimant has in fact committed some serious act, such as murder. Alternatively it may be suggested that the words mean that there are reasonable grounds to suspect that he/she has committed such an act. A third possibility is that they may mean that there are grounds for investigating whether he/she has been responsible for such an act.”
He went on to say that that distinction was first made, in 1964, by Lord Devlin in his speech in Lewis v. Daily Telegraph at page 282, when he said:
“I do not mean that ingenuity should be expended in devising and setting out different shades of meaning. Distinct meanings are what should be pleaded; and a reasonable test of distinctness would be whether the justification would be substantially different. In the present case, for example, there could have been three different categories of justification—proof of the fact of an inquiry, proof of reasonable grounds for it, and proof of guilt”.
I understand that those levels of meaning have come to be known as Chase level 1—allegation of commission—Chase level 2, for an allegation of reasonable grounds to suspect, and Chase level 3, for an allegation that there were grounds for investigation. It is also recognised that there could be distinct levels between those—for example, Chase level 1.5, for “cogent grounds to suspect”.
The court has to decide what the single meaning for each imputation is—that is, the meaning that would be understood by the average reader of the words—and that is what the defendant has to justify. That is the “single meaning” rule. The amendment would not change the “single meaning” rule or the Chase categorisation, but would allow the court to decide on a case-by-case basis that when the court fixes the single meaning as a higher one, such as Chase level 2, if a lower meaning, such as Chase level 3, were shown to be true, then in the circumstances of the case, no serious harm to reputation would be done, given that a lower meaning has been shown to be true. It would not mean that the defence would succeed in proving a lower meaning than that found by the court, but it would leave open that possibility on a case-by-case basis.
Those in favour of the amendment—Lord Lester’s team, for example—believe that what matters is the facts of the case. Those who might oppose it prefer the rigidity of Chase level meanings, which the proponents regard as merely a useful but not determinative common law artifice.
The Libel Reform Campaign, for example, supports the amendment because it believes that all the facts and circumstances of the case—not artificial constructs consequent on the “single meaning” rule, which is itself artificial—should be decisive. I hope that the Minister is completely clear about that. I am sure he is, like the rest of the Committee.
I am trying to get from the Minister some examination of whether Lord Lester’s proposal should be in the Bill.
Jonathan Djanogly (Parliamentary Under Secretary of State (HM Courts Service and Legal Aid), Justice; Huntingdon, Conservative)
We move on to the defences to defamation. Clause 2 deals with the defence of truth. Under amendment 12, that defence would not fail where one or more of the imputations made against the defendant was not shown to be substantially true, provided that the imputation would not
“materially injure the claimant’s reputation in the light of what the defendant has otherwise shown to be substantially true.”
The amendment appears largely to reflect subsections (2) and (3) of clause 2. As the hon. Member for Stoke-on-Trent South said, the intention was to reflect a provision from Lord Lester’s private Member’s Bill. That related to cases in which a single imputation would have different shades of meaning, such as where there had been an accusation of money laundering and the defendant could not prove the substantial truth of that allegation, but could show that the claimant had been involved in fraud or large-scale tax evasion.
We have given careful consideration to whether a provision dealing with single allegations with different shades of meaning should be included in the Bill, and have decided that it would not be appropriate. We are concerned that allowing the defendant to succeed where he or she is unable to establish that the meaning of the allegation is substantially true would undermine the clarity of the defence and create uncertainty over what the defendant must prove to succeed.
Denis MacShane (Rotherham, Labour)
Perhaps I am an obsessive, but whenever I see adverbs in legislation my nerves start to tingle. What does “substantially” mean? Something is either true or not true. Are you substantially a virgin? Are you substantially wet when it rains? What is the word doing in the clause?
Jonathan Djanogly (Parliamentary Under Secretary of State (HM Courts Service and Legal Aid), Justice; Huntingdon, Conservative)
Thank you, Mr Havard, for giving me that latitude.
It is right that a defendant should be protected if he can prove the substantial truth of what he says. If, however, he cannot, he should not succeed in his defence. What he has proved may affect damages awarded against him, and may well mean in some cases that no award is appropriate. That, however, is another matter. That, in the Government’s view, is the right balance. If the defendant cannot prove the substantial truth of what he has said, he should not succeed in the defence.
The provision could also undermine the effectiveness of new measures in and alongside the Bill, designed to enable the court to resolve key issues, such as the meaning of the words complained of, early in the proceedings. It could mean that the meaning would remain in doubt until trial, because, despite the court’s having determined what meaning applied, it would continue to be uncertain exactly what the defendant would have to prove to succeed in the defence.
On that basis, I hope that the hon. Gentleman will agree to withdraw the amendment.
Robert Flello (Stoke-on-Trent South, Labour)
I am not sure that I entirely agree with the Minister, but in a spirit of trying to move forward with the Bill and on to clause stand part, I beg to ask leave to withdraw the amendment.
Robert Flello (Stoke-on-Trent South, Labour)
Truth is indeed, as was said earlier, the oldest defence in defamation, as stating the truth ought to be a justification even if it damages an individual’s reputation. Current case law has established that the defendant must show that what he or she published is substantially true, as opposed to each and every word being true. In Chase v. News Group Newspapers Ltd, the Court of Appeal said that
“the defendant does not have to prove that every word he or she published was true. He or she has to establish the ‘essential’ or ‘substantial’ truth of the sting of the libel”.
Statute should reflect that; if not, there is a risk of confusion about whether previous case law should be followed.
I can do no better than to refer to what the Joint Committee said about the issue of truth and protecting the truth:
“In defining one of our Report’s core principles as the protection of freedom of speech we emphasised that the law should encourage this right to be exercised responsibly. Having respect for the truth is fundamental to what we mean by this. From the perspective of free speech, any person who publicly states a matter that is substantially true should never be liable to pay damages for defamation, irrespective of the harm or embarrassment that may be caused. The courts have for many years recognised the common law defence of ‘justification’ which protects publications that are substantially true. Where multiple allegations are made, the 1952 Defamation Act ensures that a claimant will fail if, having regard to those allegations proved to be substantially true, the claimant’s reputation is not materially injured by those allegations that are not. This is a fundamental defence in this area of law.”
The Committee also recommended that
“the name of the ‘truth’ defence be changed to ‘substantial truth’ which better describes the nature of the test”.
I go along with that, although I understand that it is not possible to change clause titles.
Obviously, I would have preferred my proposed new subsection (3A) to be in the clause, but I have withdrawn my amendment. In many respects, clause 2 does the job and it is an important clause.
Simon Hughes (Bermondsey and Old Southwark, Liberal Democrat)
I have a couple of brief points. First, on the question of substantial truth and following the comments of the right hon. Member for Rotherham, there is an argument for having a defence called “substantial truth”, meaning that there is a real element of truth, even though everything may not be entirely true. That is what that means and that is where the law has got to, as the hon. Member for Stoke-on-Trent South has just said. If that is so, the case made by the shadow Minister and the Joint Committee—that that should be the technical name for the defence—is the right place to arrive at.
At the moment, the clause title is “Truth” and the defence is the truth defence, but someone’s defence would succeed even if the statement was not entirely truthful. If it was mainly truthful, that would get them home with their defence. It seems to me that, in the interests of clarity, it would be better to reflect the offence, as it will be defined, in the clause title.
Denis MacShane (Rotherham, Labour)
The right hon. Gentleman has been involved in many vexatious and disputatious political statements during his career, as we all have—he perhaps more than most. What happened to the old statement that “The greater the truth, the greater the libel”?
Simon Hughes (Bermondsey and Old Southwark, Liberal Democrat)
That is almost a philosophical or rhetorical question. The honest answer is that I do not think that that works. Like the right hon. Gentleman, I have occasionally been involved in libel cases, both at the receiving end and the giving end. People’s experience is that if what they say is pretty accurate and can be backed up, it is not a libel, but if it conveys a message that cannot be backed up, they are in trouble. We have all understood the parameters, so that is not a philosophical question but a very real practical one.
The hon. Member for Bishop Auckland mentioned some examples. We all have constituency examples of when, bluntly, a statement has been made that was proved to be not generally true. It is much more important for our constituents than for us, but whoever that involves, they expect—we are not there yet—a bigger statement to be made in the same place stating that the original was not true. At the moment, that is not done and we need to pursue that through the Leveson inquiry and other routes.
The second point is more general. I speak as a lawyer who has tried, in all my time here, to ensure that Bills are as well drafted as possible. I understand that it is slightly complicated, but will the Minister reflect after Committee stage whether we can draft the clause better with the help of parliamentary draftspeople? It starts by stating that the defence is that
“the imputation…complained of is substantially true.”
“Imputation” is not the only word that we could use—it is not a terribly user-friendly one, but we may have to stay with it. Then we get into the explanation of imputation, and subsection (3) will lose anyone who is not a lawyer pretty easily. I have not written a redraft, but I cannot believe it would be impossible to do so in a more user-friendly way.
I see the shape of the Bill, which gives the definition of defamation and then goes through the different defences. That structure is fine, but the truth defence, which I hope will be changed to the “substantial” truth defence, might be set out and qualified differently. It could be redrafted to make it easier for ordinary people who are not lawyers so that they do not have to take legal advice to understand it.
Tom Brake (Carshalton and Wallington, Liberal Democrat)
Does my right hon. Friend agree that the word “allegation” might be more suitable than “imputation”?
Simon Hughes (Bermondsey and Old Southwark, Liberal Democrat)
The Minister has the benefit of the advice of civil servants and others. I am just keen that we look at this particular defence and its wording. First, I want us to use words that are more commonly used in the English language, and my right hon. Friend makes a good suggestion. Secondly, we should look at the structure, because when we get into qualifications and exceptions, it becomes very difficult for lay people to follow.
We are trying to make the law clear. We are taking it from judge-made law to statute law and putting it all in one place. We therefore want the Bill to be one that people can read, so that even if they do not get all the answers, they will at least know where to start.
Paul Farrelly (Newcastle-under-Lyme, Labour)
Broadly, the clause is welcomed by people to whom I have talked in the media world and the legal sphere, but I want to pose three questions to the Minister that have arisen from those discussions. The first goes back to the point that has been made regarding the word “imputation”, which is hardly plain English. What consideration have the Minister and his team given to other words? For example, the Lester Bill uses the term “allegation”, and other people have suggested that the word “meaning” be inserted. I should be grateful if the Minister would be clearer on the choice of words.
Secondly, why is section 2(3), in conjunction with section 2(2), to be preferred to section 5(4) of the Lester Bill, which we could amend by excluding “materially injure” and replacing it with “seriously harm”? Does the Minister intend any difference in effect between the two types of drafting?
My third question goes back to procedure. We retreated from the word “alongside” to “procedures will be enforced when the Bill completes its passage”, which is against the recommendation of the Joint Committee on the draft Bill, which recommended that the House have time to consider those procedures. How does the Minister envisage the courts operating to have early discussions on the meaning of an article—what is the sting?—so that defendants know what they have to prove or disprove, the truth of which they will have to establish or otherwise?
Helen Goodman (Bishop Auckland, Labour)
The clause raises philosophical questions. What is truth? As I am sure the Minister knows, “beauty is truth, truth beauty”, but I suspect that he is taking a more Cartesian approach to the measure. He is obviously looking for a direct correspondence between what is written and the facts. I am unclear whether he is trying to make a distinction between true beliefs and knowledge. Is he saying that people can write things that they believe to be the case, which turn out to be true on subsequent examination, or—this is perhaps what clause 4 is driving at—is he saying that they must show that they have acquired the view that they have written through a method that can be relied upon to produce knowledge? I think it is the latter, but he needs to be clearer about what he is aiming at.
I want to return to the issue of privacy, as raised by the hon. Member for Ipswich, and ask the Minister how the defence of truth relates to arguments about privacy. For example, how will a case be handled where the claimant and defendant both agree that the statements made are harmful, where the claimant says that they are not true, and where the defendant proves that what has been said is true, but it is a truth that may have breached the defendant’s privacy? Will the person simply lose their defamation case and be regarded as foolish for having brought it, or will there be some way of addressing the fact that, in writing something that was true, the author breached the person’s privacy? This is all quite tricky, and I wonder whether the Minister has given any thought to the inter-relationships between the different things.
Ben Gummer (Ipswich, Conservative)
I feel that we have slightly over-complicated things. It is difficult to draft the proposal in a simpler way, but an example may help. An allegation that someone visited a prostitute on a Monday being shown to be true in that he visited a prostitute, but on a Tuesday, shows the nature of the substantial truth that we are dealing with. Given the fact that the date was found to be wrong, I believe the clause to be saying that the substantial truth still holds and that the defence, if it is found to be true, still stands. We need an anecdote to be made available to lawyers for them to explain the measure to clients. I am not quite sure how the language could be simplified, but the Minister may be more fluent than I.
Denis MacShane (Rotherham, Labour)
The hon. Gentleman cites a good example. The person visited a prostitute on a Monday, which is true, but it is only important and defamatory if he did something with the prostitute. [ Interruption. ] No, no. The hon. Member for Spelthorne explodes, but the point is that a newspaper can publish something that is technically true—the person was seen going into a massage parlour or whatever—but unless it can actually show that an act with a trafficked girl or something took place, the publication of a statement that is technically true can actually be defamatory unless it can be shown that a crime or something that is defamatory took place.
Kwasi Kwarteng (Spelthorne) (Con) rose—
Dai Havard (Merthyr Tydfil and Rhymney, Labour)
Before the hon. Member for Ipswich continues, I remind hon. Members that they cannot intervene on interventions. If they want to speak, I am here and available to see them.
Ben Gummer (Ipswich, Conservative)
Whatever the nature of the defamatory comment, there is something that is defamatory and something that is not true could be contained within the statement, which is to say the date when the action took place.
Kwasi Kwarteng (Spelthorne, Conservative)
Let me use another example. It is clear that there is a difference between truth and substantial truth. For example, if I were to accuse a gentleman of stealing a million pounds when he in fact stole £900,000, my initial statement would be false, but it could be interpreted as being substantially true in that he stole a lot of money. That would be considered comprehensible to a 10-year-old, and we are getting ourselves tied up into awful and needless complications by defining this particular distinction.
Ben Gummer (Ipswich, Conservative)
I am not sure that I can add anything more to my hon. Friend’s comments.
Jonathan Djanogly (Parliamentary Under Secretary of State (HM Courts Service and Legal Aid), Justice; Huntingdon, Conservative)
Clause 2 replaces the common law defence of justification with a new statutory defence of truth. Essentially, this is intended to reflect the current law but make it simpler and clearer. It will be a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true. This reflects recent case law and ensures that the defendant does not have to prove that every word he or she published was true. What the defendant has to do is establish the substantial truth of the sting of the libel. In any case in which the defence of truth is raised, the court will need to consider what imputation or imputations are actually conveyed by the statement complained of, and whether they are substantially true.
Subsections (2) and (3) deal with the situation where the statement complained of contains two or more distinct imputations. The defendant will not lose the defence if, looking at the imputations that are shown to be substantially true, those that are not shown to be substantially true do not seriously harm the claimant’s reputation. These provisions replace section 5 of the Defamation Act 1952, which is repealed by subsection (4). The approach that is taken here reflects that taken in the 1952 Act, but is expressed in more modern terminology. Subsection (4) also formally abolishes the common law defence of justification as it would be unnecessary and confusing to retain it.
Subsection (4) also repeals section 5 of the 1952 Act. That means where a defendant wishes to rely on the new statutory defence, the court would be required to apply the words used in the statute and not in the current case law. In cases where uncertainty arises, the current case law would constitute a helpful but not binding guide to interpreting how the new statutory defence should be applied.
In the wider context, I can say that in preparing a draft Bill, we reached the conclusion that it was preferable for reasons of clarity and certainty to replace the common law defence with a new statutory defence rather than simply to rename it. Two-thirds of the responses to the consultation on the draft Bill supported that approach.
The consultation paper also proposed formally to abolish the common law defence and a similar proportion of responses supported that. The rationale for it was that otherwise the common law defence would continue to exist and defendants would potentially be able to use it as a separate defence either instead of or in parallel with the new statutory defence. That would undermine our aim of simplifying and clarifying the law and would create a risk of uncertainty and confusion in practice and more lengthy court cases.
The effect of the approach taken in the Bill is that where a defendant wishes to rely on the new statutory defence, the court would be required to apply the words used in the statute and not the current case law. That does not mean that in reality the case law will have no future impact, and it will ultimately be for the courts to decide. In cases where uncertainty arises, the case law would constitute a helpful but not binding guide to interpreting how the new statutory defence would be applied.
My right hon. Friend the Member for Bermondsey and Old Southwark asked whether we should call the defence “substantial truth”. I can say to him that we did not consider that it would be necessary to rename the defence as we believe that the substance of the clause already makes it sufficiently clear that the defence will succeed where the defendant can show that the imputation conveyed by the statement complained of is substantially true. We will look at his drafting points on the Bill, and I will write to him on the matter and on subsection (3), which was also of concern to the hon. Member for Newcastle-under-Lyme.