Clause 7 - Reports etc protected by privilege
Defamation Bill
10:30 am

Robert Flello (Stoke-on-Trent South, Labour)

I beg to move amendment 15, in clause 7, page 5, line 22, after ‘proceedings’, insert ‘, or of the contents of a press release circulated or published’.

My amendment would alter subsection (5), which in turn amends schedule 1 to the Defamation Act 1996. That schedule deals with qualified privilege and statements privileged subject to explanation or contradiction. I will not detain the Committee by going through the 1996 Act, because I am sure that Members know it almost off by heart as a result of their preparation for the sitting.

Amendment 15 is a probing amendment to deal with an issue that was raised in the judgment of McCartan Turkington Breen v. Times Newspapers Ltd. I draw the Committee’s attention to a section of the judgment— I suspect this will be less familiar than the Defamation Act 1996—which I will read for the sake of the record:

“The article contained a passage from the press release which was available at the press conference but only obliquely mentioned. Counsel for the solicitors argued that to this extent the article was not a report of the proceedings of a public meeting. Given a purposive construction of “public meeting”, recognising the role of the press informing the public, this argument cannot prevail. In substance, although not read out, the press release was in reality part of the agenda of the meeting. The technical and artificial argument to the contrary must be rejected.”

To provide some context for the Committee, I will quote the start of the judgment:

“On 24 January 1995 The Times published an article relating to the subject of a press conference which had been held the day before. The press conference had been organised by an informal Committee formed to secure the release and vindication of Private Lee Clegg, who had been convicted of serious criminal offences allegedly committed while he had been serving as a private soldier in the Parachute Regiment in Northern Ireland.”

The Clegg committee held that press conference at Lord St Oswald’s home in Yorkshire on 23 January 1995 to drum up support. The judgment continues:

“Representatives of the press were invited to attend. One of those who did attend was Mr. Wilkinson, the northern correspondent of The Times, who was despatched by his newsdesk to cover the conference and in due course wrote (with others) the article complained of.”

The important part is this:

“A press release was made available to all those attending but was not read aloud during the proceedings, although brief reference was made to it orally by one of the speakers…Mr. Wilkinson took the opportunity to put some further questions to Mr. McKay concerning criticisms of the solicitors made in the press release.”

The judgment explains:

“A measure of statutory protection has been granted to newspaper reports of proceedings of public meetings for over a century…This provision was replaced by a more elaborate provision in section 4 of the Law of Libel Amendment Act 1888”.

The Defamation Act 1952 took the matter further, and that led to the situation in which the judgment was made.

Through amendment 15, I want to clarify whether clause 7 restricts the Turkington judgment, possibly to the disadvantage of newspapers reporting on matters of public interest. As I have said, that judgment ruled that statutory qualified privilege covers fair and accurate—including verbatim—reporting of a press release available at a public meeting but not read aloud, and thus arguably not part of the proceedings. I have read extracts from the judgment, which held that in those circumstances the press release was part of the press conference.

Do we need to insert amendment 15 to ensure that clause 7 includes the McCartan Turkington Breen judgment, or does the Minister feel that it stands by itself? He is nodding from a sedentary position—I always find that a strange thing to say—so I hope that in a moment he will explain why clause 7 is sufficient without the benefit of amendment 15. My concern is that the clause is more restrictive than the McCartan Turkington Breen judgment would otherwise allow.

Paul Farrelly (Newcastle-under-Lyme, Labour)

The Defamation Act 1996 contains a valuable list of sources that attract qualified privilege. Clause 7, which is welcome, extends that list. I hope that the clause will also help people such as Dr Peter Wilmshurst, who made bona fide contributions to academic conferences. Sense About Science is to be congratulated on its campaign to protect members of the academic, scientific and medical communities. The clause will not stop people such as me checking whether there are representatives from Carter-Ruck or Schillings at certain professional conferences. One has sometimes to look around the room to see who might sue one, depending on the remarks one makes, but extending the measure to include professional conferences would widen it and might encourage sloppy speaking. We do not want to do that, or to encourage sloppy journalism.

I hope that the extension of qualified privilege will comfort non-governmental organisations and make them less fearful of so-called reputation management companies. I hope they will be less fearful that they have to prove the truth of reports, some of which have emanated from bodies such as the United Nations. I hope that clause 7, together with the defences for responsible journalism, will give mainstream publications the courage to be more robust when they are faced with claims from solicitors who tout their expertise in so-called reputational management around the world. Broadly, therefore, I welcome the clause.

Jonathan Djanogly (Parliamentary Under Secretary of State (HM Courts Service and Legal Aid), Justice; Huntingdon, Conservative)

Amendment 15, which I appreciate is a probing amendment, would amend subsection (5) of clause 7, which sets out the terms of the qualified  privilege to attach to reports of press conferences. Subsection (5) currently provides for the defence of qualified privilege to apply to:

“A fair and accurate report of proceedings at a press conference held anywhere in the world for the discussion of a matter of public interest.”

There are drafting difficulties with the amendment but as the hon. Member for Stoke-on-Trent South confirmed, the intention is to extend qualified privilege specifically to a report of the contents of a press release circulated or published at a press conference, in addition to the protection given to reports of the proceedings generally.

The Government do not consider that such a provision is necessary or appropriate. Subsection (5) is intended to reflect the law as it stands, the courts having already recognised that fair and accurate reports of a press conference fall within the scope of a “public meeting” under schedule 1 to the Defamation Act 1996, for which qualified privilege is available. The courts have also held that a report based on material that was handed out to people attending the press conference was still a report of the proceedings at the meeting, even though it was not read out during the meeting. In view of that, we consider a separate reference to press releases to be unnecessary. In any event, it would appear preferable for the court to apply the term “proceedings” in an open and flexible way. On that basis, I hope that the hon. Member for Stoke-on-Trent South will agree to withdraw the amendment.

Robert Flello (Stoke-on-Trent South, Labour)

I am grateful to the Minister for putting that point on the record, and I hope that if the courts are subsequently required to consider the clause, they will have heard and accepted what he said. I beg to ask leave to withdraw the amendment.