Clause 4 - Responsible publication on matter of public interest
Defamation Bill
4:45 pm
Robert Flello (Stoke-on-Trent South, Labour)
My hon. Friend and neighbour makes an absolutely accurate point to which I will return. The tests listed in this clause do not reflect the existing common law and therefore need to be improved. The Joint Committee also says so; its recommended changes to the draft Bill state:
“The Reynolds defence of responsible journalism in the public interest should be replaced with a new statutory defence that makes the law clearer, more accessible and better able to protect the free speech of publishers. The Bill must make it clear that the existing common law defence will be repealed.”
Well, we have that, but then there is the point about a new law that is clearer, more accessible, and better able to protect the free speech of publishers.
Overall, the Joint Committee supported the approach that was taken in the clause on responsible publication in the draft Bill. In particular it agreed that the term “public interest” should not be defined. The list of factors that is used to determine whether a publisher has acted responsibly should be amended, in its view, as follows:
“a) A new factor should be added that refers to the ‘resources’ of the publisher.”
Again, I will return to that point shortly. The list goes on:
“b) A reference to the statement and context should be added…
c) The term ‘urgency’ should be removed… and replaced with the more general test of whether ‘it was in the public interest for the statement to be published at the time of publication’
d) The reference to whether the publication draws ‘appropriate distinctions between suspicions, opinions, allegations and proven facts’… should be removed; and
e) When deciding whether publication was responsible, the court should have regard to any reasonable editorial judgment of the publisher on the tone and timing of the publication.”
That is what the Joint Committee felt.
Not surprisingly, I will refer to the Libel Reform Campaign’s comments—I am sure my hon. Friend the Member for Newcastle-under-Lyme will be particularly attentive to this:
“Clause 4 is not a new public interest defence. It is the codification of an out-of-date version of the ‘Reynolds Defence’ of responsible publication. The Libel Reform Campaign, and the thousands of writers, citizens and organisations affected by the chilling effect of libel, have called for a new public interest defence. Reynolds has been of use to large newspaper groups, but even for them it has been expensive, unpredictable and time consuming to establish. It is ill-suited to the natural discourse of citizens, such as patient group forums and has been of no use to the ordinary man on the street, to scientists such as Simon Singh and Ben Goldacre, nor to human rights organisations such as Global Witness.”
Huge concerns are already being raised about clause 4. The Joint Committee said that the draft Bill’s original clause was not suitable, and that a new clause was needed. The Libel Reform Campaign is saying that the revised clause 4 is not a new public interest defence and is not doing what the Joint Committee suggested.
For balance, because getting balanced views from all quarters is important, let me cite the British Medical Association’s parliamentary briefing:
“The BMA has been concerned for some time that English libel law may be inhibiting free and open discussion of matters of critical public concern in the sciences. Although individuals who have been defamed should have proper recourse to procedures to defend their reputations, this should not be allowed to inhibit the reasonable expression of opinion, or the critical discussion of matters of evidence.”
That is the BMA’s starting point.
Specifically on clause 4, which deals with responsible publication on matters of public interest, the BMA says:
“There is a strong public interest in ensuring safe and effective medical treatment. In the BMA’s view, codifying the Reynolds defence in this way will help support free, open and informed debate relating to medical procedures, products and innovations.”
The BMA clearly has high expectations and high hopes that clause 4 is the positive move that the Joint Committee advocated, but given the Libel Reform Campaign’s concerns, I fear that those high hopes and expectations will be dashed.
We all appreciate the work of Which?, the consumer champion, which has also, quite understandably, raised that point:
“We strongly welcome the stated objectives of the Bill. However, our view is that in many cases the Bill is codifying the existing common law rather than reforming or re-balancing it. There are…areas in the Bill in need of expansion or clarification”.
Which? goes on to say:
“Clause 4 should be amended to require the court to have regard to all the circumstances of the case in addition to the considerations set out in 4(2) when determining whether the defendant had acted responsibly in publishing the statement complained of.
Some of the considerations in clause 4(2) used to determine whether the defendant has acted responsibly in publishing the statement complained of relate to action likely to be taken pre-publication (for example 4(2)(e), (f) and (g)). These considerations will often not be appropriate in deciding whether fast breaking news stories can benefit from the defence.”
That reminds me of the observation of my hon. Friend the Member for Bishop Auckland. On fast-breaking news stories, modern newspapers will undoubtedly have the pressure of wanting to be the first on the scene and wanting to get the scoop, but those are not the same things.