My Lords, I pay tribute to the noble Lord, Lord Lester, who was instrumental in securing reform of defamation law and has campaigned long and hard for that. I also join him in thanking the Minister for walking us through this rather tangled undergrowth of regulations. I am bound to say that the Minister reminds me less of Moses bringing down the tablets than perhaps Daniel exercising judgment. I should like to think that I was descended from one or other; I may be remotely connected but I do not think that I am descended from either of them.
After 45 years as a solicitor, I know something about the law of defamation, although I would not claim to be an expert. But when it comes to the world of computers, information technology and social media, I confess to being an utter novice. At risk of being labelled a Marxist by the right-wing press or Conservative Central Office, I recall some words of Marx—Groucho, I hasten to add, and not Karl. In one of his films, which might have been “A Night at the Opera” but I would not swear to that, he is seen poring over a map and declares that a child of five could understand the map. He continues: “Bring me a child of five”. I am tempted to make the same request when confronted by matters of the kind encompassed by these regulations.
We share the Government’s objective to protect freedom of speech, in which the internet and social media can and do play such an important part. We welcome the thrust of the regulations, although perhaps it would have been better if guidance on Section 5 of the Defamation Act had been available in draft form when the legislation was under consideration on its
journey through Parliament. The regulations appear to offer reasonable protection to the operators of websites but there are perhaps questions about the extent to which they adequately protect those who claim to be defamed by material appearing on those sites. Thus, the website operator will have a defence, as we have heard, to an action if it can show that it did not post the material in question unless the claimant can show that he or she did not have sufficient information to bring legal proceedings against the poster of the statement and that the operator failed to comply with a notice requiring it to identify the poster requested by the complainant. Of course, this assumes that the claimant has the means to pursue that legal remedy, a somewhat questionable proposition in the light of the matter of costs. We are not now dealing with conventional media stories with a limited shelf life and relatively limited audience, although perhaps quite a wide reach, but with material with a potentially unlimited shelf life—unless, like the Conservative Party’s once publicly available material, it can be conveniently hidden—and a consequently higher risk of damage to a complainant’s reputation.
Part 4 of the guidance explains that the operator will have a defence when the complainant has sufficient information to bring an action against a poster but, again, that relies on the claimant having the means to do so—and what if the poster is outside the jurisdiction? It is all very well for the guidance to proclaim that disputes should be resolved directly between the complainant and the poster but, in the event that the poster does not wish a statement to be removed and his details to be released to the complainant, the latter will have to obtain a court order to obtain the details, again raising the issue of cost. Would it not have been better to have established for these purposes a less formal and less expensive mechanism, in which a panel, perhaps financed by the industry itself, could determine whether the information as to identity should be released and whether the post should be removed, leaving the question of financial compensation to be determined by the courts?
On a further point, what is the Government’s response to the observation of the Secondary Legislation Scrutiny Committee to the need for the guidance to define,
“how terms such as ‘receipt’ are interpreted in this legislation”?
The Explanatory Memorandum to the regulations sets out the response to consultation and lays down welcome tighter timetables for action by the operator and poster following a notice of complaint. However, somewhat disappointingly, it requires further notices to be given when the material has been the subject of two or more complaints rather than immediately. Moreover, paragraph 9 of the Schedule to the regulations makes it clear that even the more limited protection afforded by this provision is available only when the same poster is involved. If a different person posts the same material, the whole process must be gone through again by the defamed claimant—and the material can be identical.
My honourable friend Dan Jarvis, speaking for the Opposition yesterday in the debate in the Commons, asked the Government whether they would keep the new process under early review, given the speed at
which the world moves. Is the Minister able to confirm that that is the Government’s intention and that such a review would be initiated within a year of the regulations taking effect and be kept under regular review thereafter? Will they look again at suggestions made in Committee during debates on the Defamation Bill that would require the operator to post a notice of complaint, should one be received, alongside the alleged defamatory material so that those who view the material can, at least, be alerted to the fact that the matter is disputed?
Having said that, we support the regulations. As the noble Lord, Lord Lester, indicated, things change, and it is necessary to keep these matters under review. Perhaps some of the points that I have raised could be taken on board at the time of the first review and in the light of the experience that will develop over the next few months or so.