The defame game - revisited

Dianne Hayter

With the Defamation Bill shortly to conclude in the Lords, Dianne Hayter outlines our successes – and the remaining concerns 

Having one’s reputation falsely trounced in the press is not nice. Nor, on the other side of the penny, is having journalists, organisations like Which?, commentators or biographers afraid to investigate scandals and injustices by the threat of a libel action: a threat which might be meaningless in law but which can cost a fortune in legal fees to defend.

The Defamation Bill which leaves the House of Lords on Monday 25th February (following its Third Reading) will look quite different from the draft legislation that arrived. It had been improved by argument, with the Minister, Lord McNally being willing to accept many of our suggestions.

In one area however, despite his known personal support for our position, Lord McNally could not give way, as those above him in the government hierarchy decreed otherwise. This was over our plea to make it harder for a corporation (as opposed to an individual) to bring about an action against ‘defamation’, by having to show that the alleged defamatory remarks would cause it substantial financial harm. 

While the debate was overshadowed on the day by the outcome of the Commons vote on same sex marriage as well as another Lords vote on the Defamation Bill, on David Puttnam’s ‘Leveson’-related amendment, I am glad to say our plea was also successful. Peers supported us by a majority of 8 votes, and it is now in the version of the Bill about to head to the Commons for MPs' consideration. We hope the government will see sense and retain this position.

This is all vitally important, since many of the high profile, controversial cases which led to the Bill were brought by corporations – and they would probably never have started under our new clause. Furthermore, it is often in such cases, with deep pockets and top lawyers, that companies are actually just trying to protect their 'brand' and close down any criticism, with a true 'inequality of arms' between them and the journalist or voluntary organisation.

It is also worth noting that the vote carried with it another important win – extending the so called 'Derbyshire Principle' and preventing companies which perform public functions (for example, free schools, publicly funded care homes, and those involved in outsourced services, such as ATOS) from suing for defamation. This puts them in the same position as public authorities – against which they may be bidding for contracts. It will also allow those using these services to speak freely about all organisations responsible for providing them.

With respect to other outstanding issues of concern, the Bill now makes the position of websites much clearer. Other than where a web operator has acted with malice, websites will remain outside of any libel action – provided that the claimant is able to identify and contact the actual author. Meanwhile, peer reviewed articles in academic journals, whether in print or e-journals, will be largely protected from action.

But one big problem remains – the funding for legal costs; either for a claimant who wants to protect their reputation, or for someone accused of defamation. The ‘No win, No Fee’ system had opened up the possibility of funding for these people, but this is being abolished by the government. And while a temporary halt has been agreed for defamation cases, Parliament and public alike are still in the dark about what will finally be put in its place.

Baroness Dianne Hayter of Kentish Town is a frontbench Labour peer in the House of Lords

Published 19th February 2013

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