Clause 5. — (Justification.)

Part of Orders of the Day — Defamation (Amendment) Bill – in the House of Commons at 12:00 am on 27th June 1952.

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Photo of Sir Lionel Heald Sir Lionel Heald , Chertsey 12:00 am, 27th June 1952

I want first to acknowledge the clear and restrained way in which the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas) has put this matter. As he said, he has put it before, but I think that today he has put it even better. However, he has not convinced me and I want to follow the hon. and learned Member for Stoke Newington and Hackney (Mr. Weitzman) in this in saying, strange as it may appear to some who are listening, that we should not emphasise the legal side of it but look at the commonsense point of view.

Hon. Members might like to be reminded that this matter was dealt with by the Porter Report on page 20 under the heading "The Defence of 'Justification'." It starts by saying: Under the existing law, it is a good defence in any action for defamation … to prove 'justification,' i.e. that the words complained of are true in substance and in fact. It goes on to discuss that, and then under a subheading "Substantial Justification" is dealt with. Although the hon. and learned Gentleman regarded it as a minor point in the drafting of the Report, I would venture to suggest to the House that it is not so. It is emphasised in paragraph 80 of the Report that it is very undesirable for a plaintiff to obtain an undeserved whitewashing of his reputation.

It is quite clear from reading this Clause what it is designed to prevent. It says that the defence of justification is not to fail by reason only that the truth of every charge is not proved. As has been pointed out, it does not stop there because, if it did, it would be open to all the objections of the hon. and learned Gentleman and of the hon. Member for Widnes (Mr. MacColl). The Clause goes on to say: … if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges. Therefore, the matter must be considered as one of substance, and the Porter Report reaches this conclusion in paragraph 81: … we think that the existing case law has in the course of its evolution, tended to encourage too close a dissection of each sentence, indeed of each phrase, in a defamatory statement and to overlook the real effect of the statement when read as a whole. Judged by first principles, a plaintiff should not be entitled to recover damages if the defendant proves that the main charge or gist of the libel is true, even though he fails to prove the truth of some minor charge, provided that such minor charge does not add appreciably to the injury to the plaintiffs reputation. As I understand, this Clause is regarded as being substantially important by those responsible for publishing newspapers. A great deal of the argument here and in Committee against this kind of Clause has been apt to be based on the contrast between the poor little citizen and the great wicked monster paper like the "Daily Horror" or the "Daily Racer."

In fact, it is important to remember that many of those concerned with this Bill are not the monster daily papers at all; they are those responsible for those admirable and most useful local papers which are often most concerned to study the true facts, to draw attention to abuses and generally to ventilate public opinion in their districts. They are often quite small organisations. They are certainly not monster corporations which can ruin those who attack them. Indeed, often in those cases it is the newspaper which is a smaller entity than those who are attacking it. Therefore, we ought to get away from that point of view.

The hon. and learned Gentleman gave three reasons for not accepting the Porter Committee recommendations as regards whitewashing. First, he said it would be difficult for a man to represent he had won if he had been mulcted in costs. With the greatest respect, I suggest that it is a rather legalistic argument because a great many people do not go into the details of these matters. If the man can say he has won his action, that is enough for him to be able to spread about.

Secondly, it was said that he could succeed if he limited the case to that of unjustifiable charges. There again as a matter of law no doubt that is quite correct, but supposing there is something which comes within the second half of this Clause, something which cannot materially injure his reputation, is it likely that he will bring a separate action? That, again, is a matter of common sense.

The third objection was the point about the poor individual citizen. There one has to hold the balance in a fair way. The other argument of the hon. and learned Gentleman was that it might encourage carelessness. There may be some element of truth in that, but, again, it is a question of two sides to the matter and of balancing the one against the other. I suggest to the House that, in accordance with the general idea underlying this Bill, better protection is required for those who are concerned to focus the spotlight of truth on current events and personalities. I therefore suggest that the Clause is justified and should be retained.