Free Life 26, December 1996, The Defamation Act 1996, Reviewed by Sean Gabb

From Free Life, Issue 26, December 1996
ISSN: 0260 5112

Defamation Act 1996
HMSO, London, 1996, 19pp, £4.30 (pbk)
(ISBN 0 10 543196 6)

This may loosely be called "the Hamilton Act", as its most famous provision is the one allowing Neil Hamilton MP to continue his libel action against The Guardian. Before looking at this, however, we will examine the other, equally important, sections of the Act.

These are on the whole excellent. We believe that there should be no laws whatever against defamation. People should be free to publish whatever they like about each other; and public opinion should be the only arbiter of truth where any dispute arises. At the least, a plaintiff should be required to prove damage before winning a libel action; and perhaps should be required to prove malice as well. Certainly, the existing law gives no protection to those who cannot afford the £20,000 that the average libel action now costs, but serves mostly to protect rich or well-connected villains like Robert Maxwell, Jeremy Thorpe, and others whose names we currently dare not mention. There is no chance that our belief will ever be accepted by the rulers of this country. Even so, the present Act does reform the law in a more liberal direction.

The most significant of these reforms is section 1, "Responsibility for Publication". Under English Common Law, everyone involved in publishing a statement can be separately sued for libel. This extends from the author of the statement, to its publishers, to their printers, and all the way down to the drivers of the vans carrying the statement to the retailers of it, and of course to the retailers themselves. The only means until now of limiting the scope of actions has been the defence of innocent dissemination – where a distributor can claim that he did not know, nor could reasonably have known, the libellous nature of the statement. This did not give complete immunity, as it required a defendent to prove a lack of knowledge that did not amount to negligence. Nor was it available to printers: it was presumed that these would read all statements in the normal course of typesetting, and so would be able to take legal advice if they found anything that in their experience seemed defamatory. Alternatively, they could insure themselves against being sued, or require an indemnity from their customers.

Even a generation ago, this was a weak shield against libel actions; and by the early 1990s, technological and social change had made it still less effective. Printers were losing close touch with their material – no longer setting it up in type, and reading it as they did so, but taking in large amounts of work already typeset by their customers on a computer, and simply reproducing it in bulk by some photographic process. At the same time, deregulation of the airwaves was throwing up wireless and television channels given over almost wholly to discussion of current issues. Yet a series of legal decisions made in a more regulated age had denied broadcasters the defence of innocent dissemination, on the grounds that they should have taken greater care whom they allowed into their studios. This was exposing broadcasters daily to legal threat arising from statements made on air by invited guests.

And then there was the growth of the Internet. This is a new kind of medium that combines the personal control of writing and posting a letter with the distribution potential of wireless broadcasting. A man can sit down at a computer in Holland and write about some scandal involving illegal or shameful acts by the British Government, and send this message with a few clicks of a mouse to millions of people all over the world. Bearing this in mind, the question rose of whether Internet service providers and Internet mailing list forwarders could be held responsible for libels distributed by them. On the one hand, they did have good reason to know that they were distributing libels. On the other, they had no means of preventing this. The volume of messages posted to newsgroups alone rose quickly to more than a gigabyte every week – or taking an average of six bytes to one word, to 167 million words. And a busy mailing list can generate several hundred messages a day.

We did expect the Government to leave the law unreformed. The Internet may have immense potential, but has not so far promised the sort of cash return that is the only thing that interests the managers of "Great Britain plc". Add to this the loss of control involved in reform, and we thought they would be happy to see the Internet smothered at birth in this country – just as their intellectual brothers are achieving in Singapore and Burma. But we were wrong. Section 1 of the Act abolishes the Common Law defence of innocent dissemination and replaces it with a statutory defence that seeks to focus responsibility for publication on the originators of a statement. And this defence applies to the whole United Kingdom rather than just to England. The relevant words read:

1.- (1) In defamation proceedings a person has a defence if he shows that –

(a) he was not the author, editor or publisher of the statement complained of,
(b) he took reasonable care in relation to its publication, and
(c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement….

(3) A person shall not be considered the author, editor or publisher of a statement if he is only involved –

(a) in printing, producing, distributing or selling printed material containing the statement;
(b) in processing, making copies of, distributing, exhibiting or selling a film or sound recording (as defined in Part I of the Copyright, Designs and Patents Act 1988) containing the statement;
(c) in processing, making copies of, distributing or selling any electronic medium in or on which the statement is recorded, or in operating or providing any equipment, system or service by means of which the statement is retrieved, copied or distributed or made available in electronic form;
(d) as the broadcaster of a live programme containing the statement in circumstances in which he has no effective control over the maker of the statement;
(e) as the operator of or provider of access to a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control….

(5) In determining for the purposes of this section whether a person took reasonable care, or had reason to believe that what he did caused or contributed to the publication of a defamatory statement, regard shall be had to –

(a) the extent of his responsibility for the content of the statement or the decision to publish it,
(b) the nature or circumstances of the publication, and
(c) the previous character or conduct of the author, editor or publisher.

The natural meaning of these words is fairly plain. Section 1(1) restates the Common Law defence, and together with 1(3) extends it to printers, broadcasters and Internet service providers, among others. There is still a duty of reasonable care, but this is limited by the acceptance that there are now circumstances where a disseminator has no effective control over what he is disseminating. The only apparent ambiguity is whether the phrase "no effective control" opens the way to greater freedom of discussion on the Internet than was contemplated by the Government. Supposing an Internet service provider – like Compuserve or America On-Line – decides to try policing the newsgroups and Web pages to which it allows access; and suppose libels do slip through because the policing has been negligent: does this stop the provider from pleading the section 1 defence, a defence that remains open to those providers that exercise no control at all? Only the courts can answer this question.

Moving through the Act, it does make other liberal reforms. Section 2 to 4 provide a new defence of offering to make amends. A defendant can now offer to publish a correction and apology and to pay damages assessed by a Judge. If accepted, this offer blocks any further proceedings for libel. If not accepted, it can be relied on as a defence in court, or can be relied on in mitigation of damages, or both. Sections 5 and 6 reduce the limitation time for bringing a libel action from three years to one. This reduces the time during which defendants must worry about being sued. The High Court keeps its right to grant leave for an action to be brought after one year – but only if the statement complained of is brought to the plaintiff's attention after one year from the date of publication. Sections 8 to 11 provide a fast and simplified procedure for actions against which there is little chance of an effective defence, or in which no serious charge has been made against a plaintiff's character. So far as these reforms are likely to reduce the number of libel actions, or to soften the consequences for a defendant of losing, they have our approval.

But we now come to section 13, which grants a specific privilege to Neil Hamilton and others in his position. Since our readers may not be familiar with his case, we shall briefly describe it.

In 1995, Neil Hamilton sued The Guardian for having alleged that, while a Government Minister, he had corruptly accepted money from a lobbying company. Though it pleaded full justification in defence – that is, claiming that the allegations were true – The Guardian also argued that the case could not be fairly tried, as the evidence needed to prove Mr Hamilton's corruption could not by law be admitted into the proceedings. According to section 9 of the Bill of Rights 1689,

…the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament.

The meaning of this section, as interpreted by various English and Commonwealth courts, is that no words uttered in Parliament may be admitted as evidence in any court. Since The Guardian was claiming that Mr Hamilton had not merely taken a bribe but had also done as he was bribed by uttering certain words in the course of Parliamentary proceedings, it was legally unable to establish its plea of justification. For this reason, it argued, the libel action was unjustly biassed in the plaintiff's favour and so should not be allowed to proceed. In a very full judgement, Mr Justice May agreed with The Guardian and stayed the action.

Section 13 of the Act reverses this judgment. According to section 13(1),

Where the conduct of a person in or in relation to proceedings in Parliament is in issue in defamation proceedings, he may waive for the purpose of those proceedings, so far as it concerns him, the protection of any enactment or rule of law which prevents proceedings in Parliament being impeached or questioned in any court or place out of Parliament.

The meaning of this is that a Member of Parliament can once again sue newspapers for libel, by allowing them in defence to refer to his behaviour in Parliament. It certainly allowed Mr Hamilton to reactivate his case against The Guardian. All that prevented his case from coming back into court was the publishing of further information about his allegedly corrupt behaviour that probably made it impossible for him to win in court. Rather than face a bill for costs that would have bankrupted him, Mr Hamilton preferred to accept just the destruction of his political career.

Now, if we were talking here about the amendment for personal advantage of some Local Government Act, we should still disapprove. It is the sort of corruption one used to see only in backward, half-civilised countries; and it is shameful to see it here in England. But we are talking about something much more important. The Bill of Rights is one of our great Constitutional documents. It is as important as Magna Carta and the Petition of Right. It has been increasingly popular during the last two centuries to deny that there are laws in England beyond the reach of parliamentary amendment. But all political generations before this one would have been aghast at the thought of amending the Bill of Rights for such a reason.

We denounce Mr Hamilton as a traitor, and delight in his fall. We are are not aware that he has committed any criminal offence; but we truly hope for some punishment harsher than the mere loss of his seat in Parliament – something involving his health, perhaps, or his personal happiness. We regret that we ever welcomed him as an ally when he spoke before the Libertarian Alliance. By his conduct, he has shown himself to have no interest whatever in the restoration of English liberty. He does not even understand what it means to live in a country with stable laws and free institutions. So far as it really exists, his "liberalism" goes no further than a wish to privatise the Benefits Agency – to produce a despotism that pays its way.

We denounce Lord Justice Hoffmann, who introduced the Hamilton amendement into the House of Lords. We denounce Lord McKay, the Lord Chancellor, who seems to have misled the House as the the Government's involvement in the amendment. Above all, we denounce a Government that has for too many years now been devaluing the words "Conservative" and "Tory", and has ripped our ancient and glorious Constitution to shreds.

We feel, however, that we are drifting away from the main purpose of this review, which is for once to welcome an Act of Parliament as – even if partially – a step in the right direction.

Anthony Furlong and Edward Hume (Sean Gabb)

© 1996 – 2017, seangabb.

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