Des Browne on why the Government must do more work on the detail of its Defamation Bill
The last time a Defamation Act was passed, the internet was in its infancy. Since then the world of communication has changed beyond all recognition. We now get our news online, instantly. Consequently, reputations can be made or destroyed instantly. If the accusations that caused that damage are made on Twitter, they can be disseminated worldwide in minutes. Where untrue, people without resource can feel helpless in the face of such an onslaught. Where true however, the challenge and threat of a law suit by wealthy individuals, organisations or companies can cause their unwarranted removal by the fear of expensive and lengthy litigation.
Over the past few weeks alone, there have been many cases of one or other of these two sides of injustice. People have been left feeling powerless to counter or have corrected adverse information put in the public domain and presented as factual by others. Equally, legitimate criticism has been denied a proper airing by the powerful.
Nowhere is the challenge to find a balance between freedom of speech and a proper protection of reputation more acute than on the internet. The law in this area needs to adapt as soon as reasonably possible to enable it to respond competently and with due weight of authority to the challenges posed by our global 24/7 rolling news and new media outlets.
While the government has engaged this issue in the Defamation Bill, Ministers sadly appear to have failed to rise to the challenge. One clause seeks to create a new defence for the operators of websites where a defamation action is brought against them in respect of a statement posted on the site; but it is both ill-conceived and incomplete.
Firstly, there is no lasting definition of a website. It may be clear now what a website is, and including Facebook or Twitter in its scope; but who knows what the internet will offer in five years time. Secondly, this is a framework piece of law which empowers the government to set out regulations. Yet months after we were promised those regulations, we still haven’t seen them.
Some progress was made in the Commons, where Labour amendments were accepted by the government. This included making sure operators can only avail themselves of the defence if they have provided sufficient information to the complainant to allow them to bring an action against the author; and also to provide that a court can request a website takes down a defamatory statement.
In seeking more answers and further clarity from the government, we are also keen to see a requirement on website operators that they post complaints alongside the alleged defamatory material. This to ensure that readers are aware a complaint has been registered and that the assertions are being challenged. And we want to see operators designate an email addresses for complaints.
In the absence of the draft regulations however, we will still be operating substantially in the dark and are urging the government to come forward with the regulations before the bill concludes in the Lords.
At the heart of everyone’s ambition is the challenge of achieving freedom of speech, including everyone’s right to enjoy the benefits that the internet has to offer and protecting reputations. We have a duty to make sure, as far as we can, that ordinary citizens have a means of redress when they are wronged. This is a very complex challenge, but the government with all its resource, must do better than its current offer.
Lord Des Browne of Ladyton is leading for Labour’s Lords frontbench on the Defamation Bill
Published 19th December 2012