The second reading of Lord Lester’s Defamation Bill takes place today with 22 peers debating it in the House of Lords.
The bill proposes significant changes to current libel legislation to address online publishing and could also offer greater protection for journalists reporting on parliamentary proceedings.
Journalism.co.uk is following the action – the reading starts at 10am – and we’ll be adding updates to this blog as they come in. You can also watch a livestream of the session on the UK Parliament website.
Follow the ‘more’ link below for previous entries.
Lord Lester closes the reading, responding to individual comments.
He confirms that sites hosting third party comments, such as mumsnet, would be classified as innocent facilitators online and therefore not liable.
He adds that his bill was always aimed at protecting vulnerable parties.
“I am not interested in creating a bill for the media, I am interested in the individual, the critic, the newspaper.
“I am very glad others who are not lawyers took part in the debate, this is too important a subject to be left to just the legal profession.”
In response to the justice minister’s announcement that the government will draw up a draft law, he says he wondered if he was “alive at all or if I am in heaven, because I wasn’t expecting this response”.
“What he has said is extremely encouraging, indicates an open mindness to reform (…) and I’m sure that it’s better for the government to have a draft bill and then a joint committee looking at it across both houses.
“Then hoping we are in good health an actual bill that will start in this house.”
In a final vote the bill was agreed to be given a second reading.
Lord McNally of Blackpool, justice minister, rises to congratulate the work of Lord Lester and discuss future government action.
“There have been so many ample and justified tributes to Lord Lester. There are so many important pieces of legislation over the last 40 years, that have had his fingerprints all over them.
“With the track record he has got I think the prospects of a defamation bill reaching the statute book are very ripe indeed.”
He adds that the bill is a “formidable piece of work”.
He says it is “right” that government and parliament should now “take the initiative and lead a constructive process of reform”.
He also says the issue of cost must be addressed.
“A large number of noble lords referred to this.
“We are urgently accessing the Lord Jackson report and coming up with proposals as quickly as possible. Both the Jackson and previous government’s approach, clearly identified that this is a key issue in this area and one that we have got to get right.
“Government will welcome the introduction of a second reading of this bill. However, I can’t agree that the government should simply adopt the bill.”
He adds: “My hope is that Lord Lester will give me and my advisors time to assess what has been said today.
“When the house returns in the Autumn we will have made progress on a draft bill.”
He says the government also want to ensure the right balance is achieved and that journalism is not “hampered by threatened or actual legal action”.
He answered calls for the bill to go to Law Commission, saying it would cause unnecessary delay but that they would take advice from them and valued their opinions on it.
Responding to the speech from Baroness Buscombe, he admits he is not the greatest admirer of the PCC, claiming they “do a good job in 98 per cent of cases”.
He says he was pleased to see some speakers who were not lawyers in the House, giving a wide range of voices to the debate.
“It is not possible for me to indicate what provisions will feature in the government draft, however there are a number of areas that I will confirm we will give further consideration to.
“We recognise the strength of the calls for a statutory defence for public interest and responsible journalism.”
Other issues he said will be carefully considered would include libel tourism, framing a single publication rule, renaming and codifying defences, amending the trial by jury rule and defamation online.
“These are all important issues which merit further consideration.”
He adds that he wishes for the bill to get a second reading, as long as both sides are heard.
Lord Bach of Lutterworth calls the bill a “compelling” work by Lord Lester, which he says “deserves the congratulations and thanks of the country”.
He added that, given the numerous concerns raised, it would play a “crucial role as instigator of legislative change, not the final word”.
He thanks all the campaigners across the country who have grown the “impetus for change”.
“I can say that as a whole the bill does strike us as sensible and practical in establishing a better balance.”
He adds to the concern raised by previous speakers, that the bill does not provide explicit cover for hosts of third party comments online as well as the issue of costs which he describes as “the elephant in the room”.
He closes by saying the bill is a “huge step forward”.
“This bill will of course pass its second reading and then be open to continued debate”.
Baroness Young of Hornsey speaks about the parts of the bill dealing with updates to the law to tackle online libel.
“This bill attempts to drag the libel laws into the digital age, although there are still concerns from online forum hosting sites.
“Will they be held responsible for the content held on their sites? I don’t think it is as clear as it might be thought to be.
“I welcome the introduction of a single-publication rule (…) which seeks to take account of a contemporary world.”
“We also need to clarify some of the points (…) for organisations that don’t fall into such obvious categories as mainstream media and the like.
“But on the whole I see the bill as a very welcome step towards a piece of legislation that will be much more fit for purpose than the law it is intended to supersede.”
Baroness Buscombe, chairman of the Press Complaints Commission, welcomes the bill as “an important and frankly overdue” reform.
She speaks specifically in relation to the proposal to introduce a defence of responsible publication on matters of public interest when the publisher has complied with a self regulatory code of conduct.
“We support the principle of applying coherence of a code of conduct as a defence and want to explain why the PCC (…) is well placed to work in synergy with the law.
“Rulings of the PCC have already been recognised by the courts. The PCC reacts speedily to fact and circumstance, as well as cultural change.”
She adds that currently the law is “too narrow when justice requires the exercise of discretion”.
“Self regulation performs a critical role in filling the gap left by the law.”
She says the PCC also supports alternative methods to ensure speedy resolution of disputes.
“We are in support of meditation (…) much of our work is actually focused upon mediation. The PCC is easily accessible and free, and there’s the rub for lawyers.
“They often prefer to say it is not a proper place for redress, because it is free and the lawyer isn’t paid.”
She adds that in relation to online publishing, there is a great need for the law to encourage the inclusion of web communities within this defence.
“Online communications is where much of the harm is done. We should encourage online media to sign up to the benefits of a self regulatory system.”
Lord Woolf of Barnes says Lord Lester was “right” in the general thrust of the bill.
“He has shown his skill by doing it in a way which still retains a very considerable degree of flexibility. So if a different approach is required, enough discretion is left to the court to enable it to reach a just result. I therefore hope that this house will do what it appears to be doing, almost unanimously supporting this bill and ensuring it at least receives the second reading that is needed.”
He adds that he would also call for the government to address the issues of costs which have not been included in Lord Lester’s bill.
“I emphasise the question of costs because again and again during the speeches we have heard, the impact of costs has been correctly emphasised. I take the view that this bill makes a contribution towards the question of costs and the problems they create, but only a modest contribution. There is other action that is needed in relation to costs. In the long term (…) this will be more important than the reforms which are proposed.”
He adds that he has concerns over the changes to the use of juries in defamation cases, referring to the presence of the jury as a “safeguard”.
“It is with great hesitation that parliament should take action which would reduce the use of juries. “This bill takes a moderate course. It does not say they should never be used, only in exceptional circumstances.
“I would suggest that that part of Lord Lester’s bill should be warmly welcomed.”
Lord Woolf agrees with the bill that mediation should play a greater part in defamation cases.
“However, if the problem is that problems are being brought (…) for the purpose of frustrating others from doing what they are entitled to do (…) then I’m afraid mediation cannot be effective.
“It also cannot be effective if costs are unfairly weighed in favour of one party or another.”
Lord Taverne, chairman of the Association of Sense about Science, speaks on the matter of libel cases within the scientific communities.
“I will concentrate on the effect of the current law of scientific and medical publishing, giving several examples of publishers who have been victims of the chilling effect.”
One example he gives is of a report which showed there was no scientific evidence that a specific lie detector worked.
But after the foreign manufacturer demanded it be removed, a “peer reviewed paper was forced to be removed from the public record. Important articles and papers may be delayed for years by the threat of legal action. Editors don’t pursue stories that are scientifically important because they know lawyers won’t let them be published.”
“What choice does an editor have?” he asks. “Numerous authors have testified that they had no choice but to retract and apologise. Very few fought and won.”
He closes by saying that while we shouldn’t exaggerate our country’s free speech oppression, there is cause for concern that this bill rightly addresses.
“Generally science and free speech flourish in our democracy, but the growing inhibition in some forms is a step in the wrong direction along a very dangerous road.”
Lord Triesman rises to give support to a reform of a law which he describes as “complicated” with outcomes that “are uncertain and costly”.
“Everyone must be concerned that in the scientific community there is fear” of actions taken by organisations with “bottomless pockets”, Triesman says.
He says key cases have had an impact on the campaign and shown an overall “commitment to freedom of expression”.
He raises some concerns over claimants who lack a voice.
“Where is the corresponding recognition of the rights of claimants facing large organisations who have had their powers extended and protected. I ask, who is speaking up for the broad concerns in society of the legitimate defence of reputation and privacy? I am concerned to know how much empirical evidence there is for the harm done to individuals and their civil liberties which are likely to be impounded by releasing the media from most of their serious obligations when they come to dealing with people’s reputations.
“I don’t think that evidence has been collected, or at least published.”
He also criticises the removal of the right to reply, saying it is “the definition of unfairness”.
“I can’t see that you can attach the word of responsibility to it.”
He adds that the bill appears “one-sided”, but says he believes a fair balance can be reached.
“I know Lord Lester aims for a fair balance, but there is still no level playing field. It may help one group of people who need to be helped, but weakens another.
“I thought it right to put this argument across. It ought to stand up for everyone.”
Lord Ramsbotham of Kensington begins by saying he “strongly supports the intention of the bill” and goes on to explain his reasons for supporting the bill.
“Firstly, it is timely. All the main political parties included reform of this law in the election manifestos.”
He says he accepts the action taken by government may not include all the bills recommendations, but “cannot be far away”.
He recommends the government adopts the bill, rather than “waste time on a duplication”.
“Secondly, the scrutiny of the current position it demands is necessary and appropriate. The lottery of libel is said to be out of control. The poor and the not so poor may be libelled with impunity and have no means of remedy.”
“Finally I support it because I hate the law being brought into disrepute. I know its one small part of the whole but I welcome the fact this bill draws attention to the concern of the issue of libel tourism. I find the idea that foreign claimants seek to establish a UK audience in order to bring a defamation claim within the jurisdiction of English courts distasteful.”
He adds his support to the bill as an important first step to “rectifying a law which has long been in need of revision”.
Lord Bew of Donegore rises to speak about the bill in relation to Irish historical society.
“When society has been inflicted by terrorism, as Ireland has been, the opportunities for libel cases rises dramatically.”
He speaks about the issues surrounding historical press which seek to publish works on public figures.
“There are deficiencies in historical books and writings on public figures. Things that should have been said which have not been said because of concerns over libel action. So I believe our readers are somewhat cheated. Documents are going to come out about leading public figures and comment will be inhibited.”
He closes by giving his support to the bill and suggesting areas to be improved.
“I want to conclude by adding general support. Lord Lester has said we need a broad approach and general theory of what constitutes defamation. I want us to talk more narrowly about the widening of qualified privilege defence in public figures, redress of libel tourism, issue of costs and early determinations of precise meaning.”
Baroness Bonham-Carter of Yarnbury rises to say she holds Lord Lester and his bill in high regard.
She says she plans to speak on the effect of libel laws on journalists, writers and broadcasters given the “unacceptable state of affairs that currently exist”.
She refers to the recent Channel 4 case involving a documentary on Michael Jackson, and the costs to the broadcaster despite the case being dropped by the claimant.
She urges anyone who wants to protect freedom of expression to support the bill.
“The threat of libel sees documentary strands remove sections of what they intended to broadcast or cancel whole programmes.
“The bill is not by any stretch of imagination a lone voice.”
She adds that such reform has the support of all three main political parties.
“Lord Lester’s bill is a perfect opportunity to start this important process and hope it will not be missed.”
Lord Borrie rises to show his support to the bill and the strengthening of defences which allow free discussion on matters of public interest.
“It is of major public interest and concern if debate about the merits of some new medical advance is prevented because it involves criticism of the medical claims of some pharmaceutical company.
“I believe that free discussion is not just a matter of self indulgence of the critic, not just a sop to the media, it is vital to keeping under public review, assertions and claims made about products and services of all kinds.
“I am very pleased to support the thrust of this bill because the initial clauses of the bill provide clear defences for actions of defamation.”
He proposes the “remedy” lies in statutory reform.
“The highest courts in the land can of course clarify and advance the common law to the benefit of the whole community.”
Lord Hunt of Wirral begins by expressing his support of the bill in general.
“I sincerely hope it will win support across the House. But while it may go in the right direction, it is not necessarily perfect. Many people feel the glass, as represented by this bill, is not quite half full as matters currently stand.”
“Throughout my time in this place, and the other place, libel reform has been constantly spoken about but never been properly delivered. In fairness, it’s no simple matter.”
He says he is pleased to see government support for reform.
“The Lib-dems have set out a clear direction of travel that libel laws will be reviewed and we have heard of recent cases which have intensified the case for reform.
“I welcome the proposal to introduce a public interest defence and clarify the defence of fair comment and rapid settlement of disputes.”
He proposes the extension of mediation early on in cases.
“One dog that has not quite barked is to introduce and encourage pre-legal mediation in cases of alleged libel.
“Why on earth can’t we apply similar principles in libel cases. I would like to see it more extensively applied.”
He closes by asking the House to give full support to the bill.
“Access to justice lies at the heart of this debate. I hope this House today will put its weight behind the principles of libel reform. We must always be in favour of freedom of speech and against an exclusive playground for the rich and powerful. Experience tells us that libel law is not easy to reform, so lets all resolve to build a law that lasts”.
Lord Willis of Knaresborough, giving his Maiden Speech to the House, says the full House should support the bill, as libel laws are currently “abused”.
“Our citizens are increasingly being silenced. Only the bravest of defendants bring cases forward.”
He adds that the call for reform comes not just from the media but from the medical and scientific community.
“The push for libel law has come not just from media, but clinicians and scientists, who recognise there is no greater public interest than the ability in good faith to criticise scientific claims.”
He adds that while he supports the bill, he also has some recommendations.
“This bill is largely a consolidation effort, to clarify and bring to date current law. It deserves the support of all this house. But I hope Lord Lester would agree the bill is capable of improvement.”
He says more needs to be done to prevent the chilling effect created by a fear of costs.
Lord Pannick of Radlett rises to speak in response to the comments of Lord Hoffman.
“Lord Hoffman spoke of the different approach in the US, even though he accepted that this bill does not echo at all the provisions of the US law.
“He then described critically I think what he said was a campaign by the media to reform the law, as if there was something reprehensible about those who have the vital function of communicating ideas and information.
“He then objected to Clause 1, relating to the defence of responsible publication in the defence of public interest.
“But Clause 1 serves a most valuable function because it clarifies the criteria which are in all due respect, confusingly stated.”
Lord Pannick finishes saying that he would ask for less flexibility in allowing claimants to bring a claim in exceptional cases where there may not be proven suffering.
“Why should we allow libel claimants to bring claims unless they have suffered, or are likely to suffer substantial harm? It does not go far enough. I don’t understand why the bill allows for exceptional cases for a libel claim to proceed even though there is not substantial harm or likelihood of it. Lord Lester can maybe explain why.”
Baroness D’Souza of Wychwood rises to say she supports the bill but hasn’t much to add.
“There should in all cases be a presumption of free speech, unless clear infringement of another human right can be shown.
She says she agrees with other speakers that current defamation laws do have a chilling effect: “The enormous costs involved cause the less wealthy amongst us to often retract.
“Incidents of failure to report on matters in the public interest is large, as are those cases settled pre-trial and a larger number which never come to light at all.
“Judgements tend to favour free speech, but costs are huge.”
She adds that any reform would need to look at the liability of defamatory statements: “The width of potential liability is great.”
She also refers to Lord Hoffman’s concerns over the potential Americanisation of law, but says “this bill is not about libel tourism, it can only protect those within the borders of the UK.”
She closes by saying the draft law could form a valuable part of future libel reforms.
“What is needed above all is clarification of current laws. This bill goes some way to achieve this.”
Lord Thomas of Gresford tells the House the major advantage of the bill is that it abolishes the 1840 act.
“While Clause 7, which affords parliamentary proceedings absolute privilege, may not prevent an application for a super injunction in the future, it will curb encroachment into areas never to be curtailed in this way.”
He says the bill also “achieves simplicity” in new areas such as online libel.
“The internet throws up new difficulties and pressures on freedom expression. I commend Lord Lester for cutting through the maize. He will not be able to satisfy everybody, nor can he address every issue. In doing so he has opened himself to criticism but put together a bill which could pass and be effective and be brought into law.”
He adds that the bill was a “reflection of judicial trends over the last decade”.
“He has modestly invited help and assistance in fashioning this vital piece of legislation. But we wouldn’t be here if it were not for the Lord zeroing in on the principles to strike a fair balance.
“It is a difficult balance to strike but he has put public interest at the forefront and attempted to resolve the issues relating to privilege and place responsible journalism on a clear footing.”
He says he noted the criticisms of Lord Hoffman in relation to principles of Reynolds guidelines, but said Lord Lester’s guidelines for public interest are drawn from a number of judgements.
He finally refers to the issue of cost, which has not been addressed by the bill.
“Libel actions are all about cash – you have to be wealthy, destitute or mad to bring proceedings in this country. There are of course many problems to be solved, but hopefully these will be dealt with at another time.”
Baroness Kennedy of The Shaws rises to thank Lord Lester for the bill.
“It is wrong that publishers should be prevented from publishing articles for fear of being ruined. But I do have some concerns. Things are missing.”
She refers to the decision to not deal with cost. She also claims there are issues surrounding the self regulation of the press.
“In order to reform the law it is necessary to also look at the whole issue of press self regulation. These are two sides of the same coin, and it is important we look at that issue too. The bill doesn’t mention reform and the current system offers insufficient remedies.”
She adds that her concern with the current debate is that “it hasn’t engaged sufficiently with the general public, but has been dominated by the press.”
“Failure to take the public into account when reforming law doesn’t usually make for law that has public confidence. There is an issue of getting balance, which I know is hard. But we need to look at how we can change the law so we protect journalists who have a regard for truth, accuracy and fairness, but distinguish them from those whose standards are not so high.”
Baroness Hayter of Kentish Town, giving her Maiden Speech in the House of Lords, says the issues surrounding libel law are a “delicate balancing act”.
“As chair of the legal services consultative panel, I constantly champion the interests of those who need but are often denied access to justice. We must protect the reputation of those unfairly vilified in the press, but also the need for free speech, not unfettered, irresponsible free speech. We have a right to hear those campaigning on our behalf.
“I believe in that old add adage that sunshine is the best disinfectant, often brought to us by campaigners and journalists who can use their FOI provisions and talents to bring us information on vital decisions taken behind closed doors, often by the rich and powerful.”
She refers to a case involving Which?, where the “threat of legal action nearly diminished our access to information”, after a review of child car seats led to years of wasted time and money.
“This threat of action can silence public discourse. Citizens can censor themselves for fear of libel action. That means we as consumers of information and ideas cannot hear what we need for own democracy and well being.”
She closes by saying the bill suits the need of current law inadequacies.
“Our present libel laws are not fit for purpose and we have the chance to change this. There has to be a better balance. This bill seeks to do just that.”
Lord Goodhart rises to speak in support of the bill. He says Lord Lester has a remarkable record with bills, and this latest one tackled significant problems.
“These are very difficult issues and will continue to be. We have a very complicated and out-of-date law. But we can work it out, with the help of the briefings and library notes.”
He refers to some criticisms of the bill, such as Liberty’s disagreement with Clause 14 (jury), but says that he supports it.
“Defamation is now the only type of civil case where juries may make a decision. Jury trials should be kept to cases of a serious crime. The use of juries in civil cases has been a disaster in the USA.”
He adds that other changes left out of the bill were done so rightly.
“The bill refrains from some of the more radical changes, e.g. burden of proof put onto claimant, that would be very controversial to include. It does not tackle two of the main problems, such as the excessive costs, but it will be a great improvement.”
Lord Hoffmann says his only difficulties are “not matters of detail” with the bill, he said he has doubts as to whether the main issues can be dealt with by changing the law.
“I can’t help feeling there’s been something of a campaign by the media to push us into rapid action. Most of that has been concerned with the way defamation actions are funded and how expensive they are. That is perfectly true, but is not addressed in this bill, quite rightly so. This campaign has been fueled by hostile criticism of our law by US media and that campaign has been seized upon by the press, as demonstrating our law is in need of reform.”
He adds: “Our media would prefer to have the more relaxed US rule which is more favourable to the media, or no libel law at all”, which brings some disagreement within the House.
With regard to the the public interest defence, Hoffman said he was “always nervous about attempts to reinstate the rules of common law. I suspect that part of the difficulty for the media lies in the expense. Often a newspaper, which would have a perfectly good defence, would rather settle. We simply don’t have enough information to know how to deal with this.
“I don’t know whether to muddy the water of the law if the solution lies elsewhere.”
He suggests more research be carried out by an independent committee.
“It’s true that reports of earlier committees have taken time to bear fruit. But there are matters that we are simply not going to have enough information to make a judgement on yet. Some conduct by the media, I would suggest, would suggest a chilling effect is exactly what we want. But in order to get the balance right, there should be an investigation by a committee into this matter, then we can move with all speed to reform the law.”
Baroness McIntosh of Hudnall rises to give her congratulations to Lord Lester.
“Given the number and quality of speakers he has attracted today I can contribute little more than my support.
“I do so with great humility and a long standing awareness of the current inadequacies of the law, significantly around the internet.”
She quotes Shakespeare, “Reputation, reputation, reputation, oh I have lost my reputation, I have lost the immortal part of myself”.
She says this reminds us of “how vulnerable and exposed” we are when our reputation is in question.
“Loss of reputation is no small matter, but who is being protected under the law today? It seems clear that it isn’t always the right people.”
“Not intended to limit the ability of those who have been defamed to go to law, but it is intended to bring some balance.”
She says she is particularly concerned about the chilling effect on writers and publishers.
She also asks, on behalf of a point raised by ‘mumsnet’, that the definition of an “innocent facilitator” online be clearly written to include hosts of unmoderated comments.
“Caution is already the watchword. Can the Lord when he comes to reply say when there is any reason why this bill or any subsequent bill should not be amended to include this point.”
She closes by referring to the costs of libel cases in England, which she said were found to be “140 times the European average”.
“These figures are enough on their own even without all other evidence before us to indicate something is grievously wrong. Live in a world where avoiding the risk of libel action is more important than telling the truth.”
First to speak is Lord Lester, who drew up the bill. Introducing the reading, he says the Bill “strikes a fair balance”.
“It seems to give better protection to free expression while ensuring fairness and responsibility in journalism, as well as the necessary rights to reputation.”
He adds that it must be supported by self-regulation from the Press Complaints Commission.
Referring to the most recent reform of the law, Lord Lester says it “failed to adapt to the changed world of communication in relation to the internet and has a severe chilling effect on the freedom of information. That is well recognised by our most senior courts, encourages self censorship and impairs communication of legitimate matters of public concern.
He says all three main political parties realised in their manifestos, that the defamation law needs further reform the coalition government has pledged to reform the law. He adds that not every desire will be met in the bill.
As some free speech NGOs would wish, it does not follow to us approach and reverse the burden approach. The bill has not been designed by or for the media.
He thanks all those who helped in the creation of the draft bill, but emphasises responsibility of the bill was his.
He says the bill provides a long-needed opportunity for reform.
The underlying issues are of constitutional importance and concern matters of public policy. Yet this is the first occasion in modern times on which parliament has had the opportunity to examine the substance of English defamation law. The bill builds on what is best in current law and brings the law up to date with the effects of electronic communication via the internet.
He outlines the seven main changes: strike a fair balance between freedom of expression and right to reputation; modernise the defences; require claimants to demonstrate they have suffered or are likely to suffer real harm; require corporate claimants to prove financial loss; speedy resolution of cases; for the typical court case to be taken with a judge alone and for jury to be an exception, not the rule; and changes to parliamentary privilege and to modernise statutory privilege.
He explains that the bill does not cover privacy, data protection or costs, which he said would be “beyond its scope”.
He then reads through the clauses of the Bill, which can be read in full below, courtesy of Scribd: