New Clause 4 — Publication on matters of public interest

Part of Oral Answers to Questions — Prime Minister – in the House of Commons at 3:45 pm on 12 September 2012.

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Photo of Simon Hughes Simon Hughes Deputy Leader, Liberal Democrats 3:45, 12 September 2012

My understanding of the situation is that, once we expressly repeal the common law defence and enact a statutory defence, that becomes the basis of all the decisions the courts will make subsequently. Of course, common law will build up as the new statute is interpreted, but it will be an end to the old case law and we will start again with this legislation. Therefore, if we are taking the opportunity—I think we all want to take it—to bring to Parliament the way we define these things, it is important to try to get it right. That is why I have proposed a new clause that would deal with some of the issues, which I hope colleagues in the House believe are appropriate ones to have in the legislation. I will return to that point in a moment.

The Government’s explanatory notes to the Bill state:

“The factors listed at subsection (2) are not intended to operate as a checklist or set of hurdles”.

Clause 4(2) provides a list—paragraphs (a) to (i)—setting out matters that are defined as follows:

“in determining for the purposes of this section whether a defendant acted responsibly in publishing a statement the matters to which the court may have regard include (amongst other matters)—

(a) the nature of the publication and its context”.

For example, is it a broadsheet newspaper with a national circulation, a paper published by three people, or whatever? The list continues. The Joint Committee had suggested:

“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 suggestion did not find support with the Government, who responded:

“We have considered the need for a specific provision of this nature, but believe that this is unnecessary, as in practical terms in determining whether a publisher had acted responsibly in publishing the statement complained of, the court would in reality be considering whether the publisher had exercised its editorial judgment responsibly. There is also the need to ensure that the defence is clearly applicable in a wide range of circumstances beyond mainstream media cases, and focusing on editorial judgment in this way might cast doubt on that. Including a specific provision would therefore appear unnecessary and potentially confusing, and we consider that the clause already provides protection for responsible editorial judgment as it stands.”

That is how the Bill came to the House and to the Committee, and the Under-Secretary of State for Justice, my hon. Friend the Member for Maidstone and The Weald, who was a member of the Committee, and others then looked at those issues. I think that the debate hinged on two things. First, did the drafting of the statutory defence in fact take account of the law as it now is, because things had moved on? There had been a case called Flood, which had just been decided and was reported this year. The Government were asked whether they appropriately took that case into account as the latest interpretation of the Reynolds case. Robert Flello suggested that it did not look as though the Government had taken that case into account and therefore argued, with the support of the Libel Reform Campaign, that there had not been enough flexibility in trying to catch up with the position the judges had arrived at. Secondly, was that sufficient in any event anyway? The debate on the second point hinged around whether it should be for the claimant to prove that the publisher had acted irresponsibly and, therefore, what the balance of argument should be. Should there be more of an onus on the claimant or on the defendant? Mr Djanogly—I join others in thanking him for his collaboration and assistance when he was the Under-Secretary—said that it would “unfairly tilt the balance” against the defendant. At that stage, he therefore resisted a change. He made it clear that the Government were seeking to bring the Bill to Parliament to reflect case law as it had developed after the Reynolds case and in the light of the Flood case. Ministers, including the hon. Gentleman, were good in saying that they would consult further and hear further points. My right hon. Friend Tom Brake and I subsequently went to see Lord McNally, to put the case for a broader definition.

New clause 4 is designed to take as many cases as possible out of the courts. As we heard in the previous debate on conditional fees, this is an area in which avoiding going to court is for the better. I also sense—it is the mood I have picked up when I have heard these issues debated across this Chamber in questions or in Committee—that when most of our constituents discover something in the press that either libels or defames them, what they want most of all is an immediate or very speedy publication of an apology, a retraction or a correction—bluntly, of the same size and in the same place as where the original allegation was made. We can never undo an allegation that has been put out, but if a tabloid newspaper puts something on its front page that is blatantly wrong, malicious and unsupported by the evidence, people will feel that at least there has been some remedy if the next day or the next week, on the same page of the same paper, something appears to say, “I’m sorry; we were wrong”.

The gentleman arrested last year in Bristol on a charge of murdering a young woman—it turned out to be a completely false trail—was willing to stand up and argue his case in public, being fairly combative about it, but that is not the case for all our constituents. Some are not in a position to engage with the media, and would not wish to do so, in trying to correct the record.

New clause 4, with the support of the Libel Reform Campaign, is designed to achieve the following. First, it sets out to ensure that we assert press freedom, by saying:

“The publication of a statement which is, or forms part of, a statement on a matter of public interest is privileged”— so it would be allowed—

“unless the publication is shown to be made with malice.”

I would argue that in addition to a provision such as the clause currently in the Bill, we need a further protection for press freedom, but one that will be lost if an author is malicious or shown to be malicious. Losing the protection would follow from failing to publish the apology that had been requested. That is provided for in subsection (2): the publication or newspaper would lose its defence if the claimant could show that the defendant

“was requested by him to publish, in a suitable manner, either or both…a reasonable letter or statement by way of explanation or contradiction…and…where appropriate, a correction or clarification; and…refused or otherwise failed to do so.”

There is a definition of “a suitable manner”, which means, in short,

“adequate and reasonable in the circumstances.”

There is also a definition of what is “adequate and reasonable”, and the provision refers to

“equal prominence as the statement complained of;…the promptness of the publication of a response;…the extent, prominence and promptness of the publication of a correction or clarification.”

“Appropriate” is defined, too, and the provision refers to

“whether a correction or clarification is required to extinguish any defamatory imputation” and

“whether the author, editor or publisher knew, or ought to have known, that the defamatory imputation”— or, if it is an opinion—

“the fact on which the opinion was based…was false by the time the complaint was received or upon receipt of the complaint.”

Lastly, there is a definition of “malice”, namely

“the absence of an honest belief in the truth of the statement complained of, or an opinion expressed”,

or

“reckless disregard to the truth or falsity”,

or

“the existence of a dominant improper motive for the publication”.

If a newspaper went after a colleague, a councillor, a council leader or a parliamentarian, or any individual, with no evidential basis for its assertions, unless it owned up to its failure and offered redress in the form of a published apology there would be a basis for a malicious claim, and the public interest defence would not apply.