Clause 11. — (Defamation of Undefined Groups.)

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 beg to move, in page 5, line 4, to leave out Clause 11.

Here again I am afraid a little explanation is required. One of the difficulties on this Clause has arisen from the side note which states: Defamation of undefined groups. I cannot help thinking that some people, if I may use the word without disrespect, got rather excited about this, because they thought it had something to do with the interesting subject of group libel which was discussed in the Committee at some length. It has nothing to do with that at all. It has to do with a case where a statement is made which can be regarded as being applicable to one or more of a number of people, and the question is in what circumstances they have the right to proceed.

I think it has no relation to the main subject of discussion in Committee, which was whether it was possible in fact for a group as such to have a right of action. The original reason given by the hon. Member for Oldham, West (Mr. Hale) for moving this Clause was: … the really gross libel which can apply to two or three different people, and it is impossible for anyone to establish that it was intended particularly to apply to him."— [OFFICIAL REPORT, 1st February, 1952; Vol. 495, c. 549.] He may also have had in mind the fact that in the famous case of Braddock v. Bevins the Court of Appeal held that certain associates of the hon. Lady had no right of action in respect of a libel contained in an election address which referred to her and her friends, the reason given being that the words were not in law capable of referring otherwise than to the hon. Lady. It seems, apart from the objections to the Clause as it stands about which I shall have something to say later, there is no real ground for saying that the existing law is defective in this respect.

I will not worry the House with references to it, but certainly the right hon. and learned Gentleman the Member for Leicester, North-East (Sir L. Ungoed-Thomas) will know very well that the law on this subject was recently considered by the House of Lords in the case of Knupffer v. London Express Newspapers. In the House of Lords it was held that it is an essential element of an action of defamation that the words complained of should be published of the plaintiff and the question is what does "of the plaintiff" mean.

Where the plaintiff is not named the test appears to be where the words would reasonably lead those who may be acquainted with the plaintiff to the conclusion that he was the person actually referred to, and the question whether the words did so in fact does not arise and cannot arise if they cannot be regarded in law as capable of referring to him.

Therefore in a case, such as I was referring to just now, one may well find that the actual inquiry as to the fact never arises at all. Where there are some outside circumstances which may point to one or more or some of the groups they can sue and no difficulty arises.

Photo of Mr Charles Hale Mr Charles Hale , Oldham West

A case comes to mind where one says of police officers that they beat up the Communists and uphold the Fascists. Inquiries are made and there is found to have been present say one sergeant and four constables. Not one of them can sue where there has been a collective and most damaging libel.

2.0 p.m.

Photo of Sir Lionel Heald Sir Lionel Heald , Chertsey

In the case that the hon. Member has mentioned, that may be so. That may be another question as to the general underlying policy. All I was trying to show was what the law is as it stands. I do not think that the hon. Member would question what I have already said, that where there is an outside circumstance which points to one or several members of the group, then no difficulty arises. I think the hon. Member was rather jumping ahead and was considering a case where that was not applicable. Where there is such an indication or clue as that, if a defamatory statement made about a group can reasonably be understood to refer to the members of that group, they have an individual cause of action.

There was a case a long time ago in 1877 in which the Court of Appeal held that each of eight trustees was entitled to recover in respect of a libel concerning their administration of certain charities in which they were referred to as the trustees. There was another case which referred to the Roman Catholic religious authorities in Queenstown. That was held to be capable of referring to one of the bishops and, I think, the six clergy resident in Queenstown.

There is the other slightly different case where the defamatory statement is made about two or three people in the alternative. That is dealt with by the editor of the well known textbook, Salmon on Torts, and perhaps I might read a sentence from that book. It says: If the defendant says in writing that his horse has been stolen either by A or B, he knows not which, then both A and B will have an action against him, for both are thereby brought under suspicion and defamed. But here also the class must not be so large that the charge ceases to affect the reputation of any individual member of it. There is no modern authority so far as I know—there is an old case of 1713—and in the absence of any modern cases on the subject I think it is rather significant and suggests, at any rate, that no serious hardship has arisen because of that particular point in the law. The view is taken, and we suggest the view to the House, that far more harm than good would be done by any attempt to alter the law which is really quite capable of taking care of all the normal cases that arise.

May I say one word with regard to the Clause itself? Without any disrespect to the hon. Gentleman, I suggest that it is really misconceived because he has used some words at the end which might have a surprising result. He says that it shall not be a defence to plead that it was not the intention of the defamatory statement to refer to the plaintiff if the court is satisfied that the reasonable inference to be drawn from such statement is damaging to the plaintiff. That really narrows the law as it stands. It is not necessary to show that it is damaging in the sense that it is causing some kind of special damage. All that has to be shown is that it is defamatory and, therefore, capable of causing damage.

Therefore, unintentionally, I think—or it may be that he has some reasons which he has not disclosed—the hon. Member is introducing a rather strange provision whereby in that case a plaintiff can only recover if he proves special damage, and it seems that that would not be a very helpful provision to include in the Bill. I think that one is justified in expressing the view that if the Clause were passed it might introduce just that very evil which the right hon. Member for South Shields (Mr. Ede) so rightly referred to—the advancement of the interests of the legal profession.

Photo of Mr Barnett Janner Mr Barnett Janner , Leicester North West

I hope that the House will not accede to the very plausible appeal—and the very genteel way in which the Attorney-General referred to the Clause. I have the highest respect for him, but I do not think he is justified in imagining —I do not know whether I am permitted to speak on behalf of my hon. Friend the Member for Oldham, West (Mr. Hale)— that my hon. Friend was so naive as not to expect this Clause would cover a wider field than the Attorney-General had in mind.

The Clause as it stands says: It shall not be a defence to an action brought by any person in respect of a defamatory statement made in relation to more than one person to plead that it was not the intention of the defamatory statement to refer to the plaintiff if the Court is satisfied that the reasonable inference to be drawn from such statement is damaging to the plaintiff. That means that if a person viciously attacks a group, and if in consequence of that attack a particular person suffers damage or it can reasonably be inferred that he will suffer damage, that person shall have the right of taking action against the individual who uttered or published the libel or the slander as the case may be.

I was very pleased that this Clause was introduced and was accepted by the Committee as it stands at present. I do not think the Committee had any doubt about what it meant.

Photo of Mr Barnett Janner Mr Barnett Janner , Leicester North West

I think we all realised when we passed this Clause unanimously that it was giving an opportunity for redress to individuals who are attacked, as they can be attacked by vicious people who will not name them or who will not point the direct finger at the individual but whose intention is to attack every single individual in that group and to defame them.

I cannot see what other inference can be drawn from the Clause as it stands. All that it says is that there can be a reasonable inference drawn from such a statement that it is damaging to the individual concerned. I for my part am not prepared to allow this very important Clause to be eliminated from the Bill if I can possibly help it. It is well known that men who wish to cause almost irreparable damage to individuals who happen to belong to a particular group do it today indiscriminately and without the slightest hesitation because they know very well that the law as it stands does not in any sense place them in a position to be attacked in the law courts.

I know this very well because I have been dealing with this particular problem for many years. There is, for example, the brutal type of attack that is directed against every and each member of the Jewish community, where allegations are made that they use the blood of Christian children for ritual purposes. It is so obviously wrong, ridiculous and monstrous a charge that the average man would normally treat it with contempt.

Of course, we know very well that the minds of ordinary people can be so influenced by propaganda the like of which was utilised in and from Germany prior to the last war and during the war by a machine which had at its disposal unlimited resources. This continually turned out day after day vicious attacks upon the Jewish community in Germany and elsewhere, and that machine was able to persuade vast numbers of people that statements similar to those to which I have referred were accurate. The effect of that was that not only in war but in times of so-called peace some six million men, women and children were deliberately slaughtered by the most violent and inhuman methods. And millions of people in Germany must have known what was happening in their own country yet they stood by and did nothing.

Was not each of those individuals who happened to be of Jewish persuasion being directly attacked when these defamatory statements were published? It is clear that each of those individuals would suffer damage, and is it not a fact that not only did they suffer damage by their possessions being stolen from them but also they were tortured and millions forfeited their lives?

It is not impossible to imagine that those who today in our own country are publishing the type of libel that we find so frequently circulated by a small number of very vicious people, are influencing members of the community who are thus led to believe that even that type of policy is one which might be accepted. I do not want to give many illustrations, but I could quote hundreds of instances where the policy of Hitler even in this direction has been lauded and approved by men who send publications throughout the length and breadth of this land, and unashamedly continue to publish that kind of libel.

It can surely be said that if a libel of that nature is published an individual member of the group which is libelled must suffer damages in consequence of the libel. For example, if it is circulated in a particular district where there are members of that group or race, surely they are entitled to say that damage is being caused to them. It is true that the publishers will not use individual names because they know that such individuals are protected by law. They will not mention the names of even a small group of four or five and make accusations against them because they know that action could be taken by such persons to protect themselves. But they will circulate within a small area such libels as these, even in towns where there may be say half a dozen members of the Jewish faith. It can be argued in law as it stands today that those libels are not directed against the individuals in that small group, but the members of that group suffer. Equally is it so in towns and villages where there may be only one member of the particular sect concerned.

When a libel of the nature to which I am referring is widely distributed amongst the population in a community, who can possibly say that it is not the intention of the libellers to attack the individual who is a member of that group, and who can easily be recognised as such member? Yet if action were taken, even in a case of that sort, the defendants would succeed in that the libel was a group libel under the law as it stands at present, and there is no remedy against that type of publication.

It is a great pity that other special provisions which were suggested by my hon. Friends and myself were not accepted. Why should we omit this particular Clause? Who is going to suffer as a result? The man who issues a libel which he must know causes damage to individuals is not entitled in my opinion to enjoy the protection of the law, yet that is the position as the law stands at present. Such group libels can incite the people either to ridicule or have contempt for individuals of a special sect.

I have given a few illustrations to show the extent of the problem. I should not imagine there is anybody in the country who has not at one time or another received these filthy publications containing almost unmentionable kinds of charges. Time after time they have proved to be nothing more than mere fabrications prepared for anti-Semitic purposes. Such stories as that of the children's blood for Jewish ritual purposes and a hundred and one other stories have been put out by malicious people who are actuated by despicable motives.

The Deputy-Chairman (Mr. Hopkin Morris):

The hon. Gentleman has used his illustration once already, and he should not pursue the matter any further.

2.15 p.m.

Photo of Mr Barnett Janner Mr Barnett Janner , Leicester North West

I am obliged to you, Mr. Deputy-Speaker, but I feel very strongly about this. I hope the House will regard this as being an important matter. We should take means to stop these libels and scandals. The Attorney-General himself has sympathetically referred to the question of stopping them if it could possibly be done. What he says is it is difficult to find the right kind of wording or phrasing to deal with the question, but if there is a mischief that mischief should be adequately dealt with. There have been several cases taken under the Acts which stand at present. They have not been successful, although it was perfectly obvious that on a reasonable ground the actions should have succeeded even as the law stands. This does not only apply to the group with which I am associated. It applies to other religious bodies, to groupings of race or colour or even to a grouping in a hospital——

Photo of Mr Barnett Janner Mr Barnett Janner , Leicester North West

Yes, in the House of Commons. I hope that this matter will not be regarded as trivial, but as something which requires the attention of the House, and I hope we will not accept the Attorney-General's suggested Amendment deleting this Clause from the Bill.

Mr. N. H. Lever:

It is right that I should draw the attention of the House to the fact that much of the moving eloquence of my hon. Friend the Member for Leicester, North-West (Mr. Janner) is not relevant to the Clause. He appears to be under the impression that the Clause contains a new remedy for anti-Semitism and anti-Jewish propaganda. The Clause does not contain such a new remedy. It makes provision in respect of a certain kind of defence in actions where more than one person is concerned, but it does not contain any new remedy for group libel.

I shall not express any views about group libel, which was discussed for two or three hours in the Committee. I think everyone would desire that if that innovation is to be brought about in the law it should be done by a Clause which openly purports to do so.

Clause 11 was introduced in Committee by my hon. Friend the Member for Oldham, West (Mr. Hale), with all the charm of argument with which this House is familiar, usually at a time different from that at which he exercised it in Committee. He proposed it as a simple, non-controversial Clause, and I sympathise with the object he had in mind.

Photo of Mr Charles Hale Mr Charles Hale , Oldham West

I just got up and made a speech, and the Clause was passed in 10 minutes almost without discussion. Why is my hon. Friend making all these observations about it?

Mr. Lever:

I am telling the House that it is not a Clause dealing with group libel on racial or religious groups, which highly-controversial matter was debated in the Committee for two or three Sittings and on which a very keen vote was taken. Clause 11 was introduced with much amiability and persuasion by my hon. Friend as a simple and non-controversial matter.

Photo of Mr Barnett Janner Mr Barnett Janner , Leicester North West

I beg my hon. Friend to read the Clause, when he will find that what I said was relevant. What was intended by the mover of the Clause is beside the point. The author of it can speak for himself. If the Clause remains in the Bill the person to whom I refer would have a right of action.

Mr. Lever:

It has often been said that detailed discussion of legal principle is not advisable when one wants to make progress on the Floor of the House. I must adhere to the view which I have given, that the Clause does not create any new right of action but merely removes a certain ground for defence. I am not criticising either my hon. Friend the Member for Oldham, West or his Clause, but I believe that the purposes which he had in mind in proposing it are not achieved by the Clause as drafted.

In the circumstances I urge him to agree that he would serve a very desirable purpose if he would agree to the deletion of the Clause. I hope I have said nothing in criticism of him when I have been trying to point out that the matters raised by my hon. Friend the Member for Leicester, North-West are not relevant to the Clause. It may be that the Law Lords may exercise a beneficient influence on the Bill and that some useful suggestions will crop up there. I am bound to urge my hon. Friend to realise that the Clause does not meet the objects which he had in view.

Photo of Mr Charles Hale Mr Charles Hale , Oldham West

I came to the House with the intention of seeking at the earliest possible moment a clear exposition about this Clause and if necessary of withdrawing the Clause to permit the Bill to go through. I do not know that I am helped by the different expositions of the meaning of the Clause that have been given and it is now a little difficult for me to act as gracefully as I hoped to do.

I am very humble about these matters. I am only an amateur in law who has appeared in a little over 10,000 cases. and I am frequently left in complete mystification of what the law means in almost any case under the sun. I did not do much legal reading to pass my examinations, and I have tried to do very little since.

My hon. Friend the Member for Cheet-ham (Mr. N. H. Lever) has talked with clarity and persuasiveness about the meaning of the Clause, and as though I had been rather gullible in proposing it. It rather hurt my feelings. It was as though I had deceived all the legal experts in the Committee into passing the Clause virtually on the nod. I understood that the Clause would be all right in its application and that it covered by implication the two preceding Clauses which had been discussed in the Committee for 14 hours.

I hope that the Attorney-General will acquit me of any such intentions. He has made it quite clear that he cannot accept the Clause and that if it remained in the Bill facilities might not be available for the Bill to pass. I have to face that fact. and to plead "Guilty" at once, in the face of such brilliant legal experts. It cannot be denied that the Clause lacks some measure of precision.

I agree with my hon. Friend the Member for Leicester, North-West (Mr. Janner) that behind this Clause is a very definite issue of principle about something in which very many men passionately believe. If this were an occasion on which the House was discussing ordinary public business and we had the time at our disposal, I would argue this matter and I would press for the Clause to be passed exactly as drafted. I would press this principle to a Division without any hesitation whatever and with complete sincerity, because I agree with everything that my hon. Friend said on the general merits of the Clause on the issue of group libel.

Photo of Mr Barnett Janner Mr Barnett Janner , Leicester North West

I am anxious that the Bill should go through, and I do not want to interrupt my hon. Friend the Member for Oldham, West (Mr. Hale) unduly. I appreciate what he says about the Clause. I only agree to his accepting the deletion of the Clause on the ground that I believe the remaining provisions of the Bill are sufficiently important to be passed. They stand considerably to the credit of my hon. Friend the Member for Cheetham (Mr. N. H. Lever), who introduced the Bill in the first place, and I do not want to wreck the Bill by any action on my part.

2.30 p.m.

Photo of Mr Charles Hale Mr Charles Hale , Oldham West

I am grateful and I agree. That is my standpoint. Having made it quite clear that we assert the principle and would have maintained the principle had it been practicable, I do not want to jeopardise the passage of this important Bill, for which it has been alleged against me that I have a certain measure of paternity. I am prepared, therefore, in those circumstances to let the Clause go.

Amendment agreed to.