§ Order for Second Reading read.
§ 2.2 p.m.
§ Sir Stanley Reed
I beg to move, "That the Bill be now read a Second time."
When I had the temerity, or some may say the audacity, to undertake to sponsor this Bill before the House, I was told that I should appear here this afternoon in a white sheet. I was advised in my inexperience that many Members were so indignant with certain developments in the modern Press, and in particular resent so acutely intrusions into the private lives of citizens, and were so rightly jealous of the liberties of the subject, that there was no possible chance of any favourable consideration of this Bill. Now, I have heard from all sides of the House such impassioned pleas for the liberty of the Press and such vehement declarations that this House will never tolerate any infringement of the liberty of the Press, that I feel confident that, whatever its views may be, it will, from a sense of justice, give favourable consideration to a Bill which aims at giving the Press and all connected with publishing interests a reasonable security in the conduct of their profession.
I speak as a journalist with over a half a century's experience. I am speaking for my own craft. I say that every responsible journalist detests intrusions into private lives, and I say again that every responsible journalist is anxious to maintain the prestige and dignity of his profession. If I thought that the Bill I have the honour to introduce either condoned those practices or in any way weakened the protection which the law of libel should give to the citizen, neither I nor my sponsors would stand for it for one moment. If in newspaper practice there are certain matters which are repugnant to our judgment, let those who belong to other professions and who are entirely immune from criticism throw the 577 first stone. So I decline absolutely to stand on the stool of repentance.
I believe, as I think I shall be able to show, that there are abuses in the practice of the law which should be removed. I ask the House with confidence to approach this Bill with a desire to bring the law into conformity with modern conditions in the publishing world. It seems to me that perhaps we do not quite realise what a great change has taken place in our social conditions. The last comprehensive legislation dealing with the law of libel was the Law of Libel (Amendment) Act, 1888. Fifty years have passed since that law emerged from this Chamber. In that time, there has been a complete revolution in the publishing industry. There has been an enormous increase in the output of the presses in newspapers, books, periodicals and every branch of the industry. At the same time, there has been almost a revolution in our social conditions. We have come to recast completely our ideas of publicity and the need of publicity, especially in the development of our democratic institutions. Also, we have had the development of broadcasting, a wholly new institution, and now television is coming to be one of the amenities of our daily life. On those grounds alone, I think I may submit to the House that this question is ripe for reconsideration.
That, however, is not the only or even the greater need which arises for a reconsideration of the law of libel. There has grown up of recent years a new class of libel action which is sometimes called "gold digging" and for which there is a shorter and much more appropriate term. Under this practice, men of little or no reputable character, egged on sometimes, I am sorry to say, by speculative solicitors, and encouraged by uncertainties in the law, bring frivolous actions for libel on the off-chance of getting something out of the newspaper, the publisher or the author. I think every Member of this House knows of the existence of the evils, but very few appreciate the magnitude to which those evils have attained. Only very few of these cases come to the stage of trial and are reported in the Press. I am sure that for every case which comes to trial, at least 100 are settled out of court, not because the plaintiff has been labelled, not because there is no adequate defence, but because the law is so uncertain, the latitude allowed to juries in 578 damages so great and the prospect of recovering costs, should the defendant be successful, so small, that it is cheaper to suffer this—I will use the word—blackmail than to seek the protection of the courts. I am sure that if the House addresses itself to this question it will not tolerate, under the guise of law, what is, for all practical purposes, disguised blackmail.
If this expression of opinion rested merely on the obiter dicta of those engaged in the craft, the House might view it with suspicion, but it is not so, and I quote just two expressions from the very highest tribunals in the land. The first is from the late Mr. Justice McCardie who, speaking from the bench, used these very emphatic words:I know quite well how large a number of fraudulent and undesirable persons remain unexposed through the severity of the rules of law with respect to defendants in cases of defamation. The public too often loses the protection it so greatly needs. I know of the large trade that exists in seeking to extort damages from newspaper proprietors and others in circumstances which are little better than disguised blackmail.I would only add a quotation from the distinguished jurist who now sits on the Woolsack. When he was Lord Justice of Appeal he said:It would be an ill day for the public and the courts when libel actions came to he looked upon in the light of gold-digging operations.Those are two definitions of the present operation of the law of libel and slander from the highest legal tribunals in this land, and it is totally unnecessary for me to say another word in stressing the need for a re-examination of this question.
It was in the light of these known conditions that the Empire Press Union took action in this matter. There are, possibly, some hon. Members who are not acquainted with the Empire Press Union. It is one of those great and beneficent bodies which is little known and does its good by stealth. It came into existence as a result of the Imperial Press Conference held in London 30 years ago, and has continued to function since, in contact with the Press throughout the whole Empire. It embraces practically every reputable newspaper in Great Britain and Ireland and the Dominions and Colonies. When the Empire Press Union came to examine this question, it found certain disparities between various parts of the Commonwealth in relation to the law of 579 libel and slander, and it was led to conclude from the communications which it received from all its constituent members, that countries oversea would welcome from this high court of Parliament a reexamination of the law of libel which might ultimately lead to something in the nature of a common law of libel throughout the whole Commonwealth. Almost simultaneously, the senior Burgess for Oxford University (Mr. A. Herbert) was engaged in an inquiry into this matter from the special point of view of authors and as we did not consider it desirable that two Bills on the same subject should be submitted to the House, we agreed to work together. The present Bill represents the result of our joint inquiries and our joint recommendations, after an exhaustive study of this question in consultation with able advisers from both branches of the legal profession.
If I deal very briefly with the main Clauses of the Bill I assure the House that I have no desire to seem disrespectful or to refrain from putting the details of the Measure before them, but I know that many Members are anxious to speak this afternoon, and our time is limited. The Bill has been widely circulated, and, therefore, I shall be as brief as I can be in order to leave the amplest opportunity possible for those who can speak with authority and who desire to enlighten the House on this subject. Clause r deals mainly with authors, and, although I have presented a broadside to my own enemies by publishing a book, I cannot claim to speak on this part of the subject with the authority which belongs to my hon. Friend the Senior Burgess for Oxford University, who has delighted, and we hope will continue to delight, hundreds of thousands in this country, whether under the guise of Mr. Haddock or under the guise of Topsy, M.P. So, I propose to leave him the task of explaining the essential provisions of Clause 1.
Clause 2 is specially designed for the greater protection of distributors and newsagents. This is a class which I am confident the House will feel is entitled to the full protection of the law. If a libel has been committed, the person who has committed the libel is the person who should be struck at, and not the unfortunate newsvendor, who cannot possibly, in the course of his business, 580 examine in detail every one of the publications which he handles. As we all know, there are unfortunately papers which, if they do not exactly deal in libel, are reckless of the truth; if the distributor handles this he does so at his own risk. Clause 3 is mainly technical. It imposes on judges, where several defendants are liable in damages for a libel, the duty to apportion the damages between the various defendants, and that, I think, is a power which is rightly given.
Clause 4, which has been framed to go to the very root of the evil which now exists, requires a plaintiff to give oral evidence that a libel or slander has in fact done harm or may do harm to his reputation, and it empowers the defendant, subject to the control of the judge—those are very important words—to show by evidence of specific facts that the plaintiff is not entitled to the reputation which he alleges to have been injured. The object of the Clause is to prevent persons of bad character or no character at all recovering heavy damages without their true character being known to a jury.
I shall not weary the House, nor confuse the issue, by entering into a discussion of the peculiar rules of the law which limit the evidence that may be called in a libel action, or the questions which may be asked in cross-examination relating to the plaintiff's character, except to say just this. Under the rules as they stand it is possible, especially if the plaintiff does not give evidence himself, for a jury to award heavy damages for injury to a reputation when that reputation as a matter of fact does not exist.
Such being the state of the law, Clause 4 seeks to effect two alterations. The first of these alterations is to require the plaintiff to give oral evidence that his reputation has been or is likely to he damaged. Secondly, Sub-sections (2) and (3) entitle the defendant, if the plaintiff gives evidence, to cross-examine and to produce affirmative evidence on his own behalf of certain serious matters, such as convictions for criminal offences or fraud, as set out in paragraphs (a) and (b) of Sub-section (3). There is the further protection that only such of these convictions and proceedings may be given in evidence as the judge, having regard to the nature of the alleged libel or slander and of the imputations thereby cast on the plaintiff, shall admit.
581 I am quite aware that some hon. Members rather boggle at the wording of that Clause. They fear it may impose an injustice on the bona fide plaintiff. Frankly, I cannot understand their objections, and equally frankly I must join issue with them. I submit that there is nothing in the Clause which imposes any disability or hardship on the plaintiff whose character is good, but by imposing on the plaintiff the obligation of giving oral evidence and, subject to the direction of the judge, being subject to cross-examination, it will ensure and ought to ensure that the jury is in possession of all the facts, and in a position to take all the facts into consideration in assessing any damages that it may award.
Clauses 5 and 6 extend to newspaper reports of meetings of public companies the protection given by Section 4 of the Law of Libel Amendment Act to newspaper reports of proceedings of public meetings. We are advised by those whose authority we must recognise that the law is somewhat obscure, particularly in relation to public companies and the extent to which reports are privileged. I submit that it is desirable that reports of public companies should have extended to them the privilege given to the reports of other bodies. It is only in the interests of the investing public that, if germane points are raised at the annual meetings of public companies, they should be known to the public and the shareholders for their protection and as a greater security for their investments.
§ Mr. Garro Jones
I have been waiting for the hon. Member to come to this point, because there have been widespread complaints that the greatest obstacle to the truth about these company meetings being known is the fact that the directors send to the Press reports which are paid for at very handsome rates, and that all complaints made at the meetings are kept out of the reports. Does the Bill propose to deal with that evil?
§ Sir S. Reed
If my hon. Friend will study the matter he will see that it is precisely because of the conditions that now obtain that the particular condition that he deplores has arisen. If the report of a public company meeting is not privileged any newspaper which publishes details which may possibly be libellous is liable for the words so published. So the 582 practice has grown up that, if there are criticisms, no newspaper can publish those criticisms, lest it should be made liable if the criticisms happened to be libellous. So the practice has grown up of public companies themselves preparing their own reports and publishing them more as advertisements than as bona fide reports. That is one of the new developments, and in my belief it has arisen very largely from the fact that reports of public companies do not enter into the privileged category which would enable newspapers to report the proceedings fully regardless of whether they may come within the scope of the law.
§ Mr. Garro Jones
Am I to take it that if the proposal now advocated by the hon. Gentleman is carried out there will be a discontinuance by newspapers of receiving payment for reports of public meetings?
§ Sir S. Reed
My hon. Friend has asked me a question and the decision in such a matter must rest with the newspapers concerned. I am concerned here with placing it within the power of all newspapers to publish reports of meetings of public companies without being cast in any damages.
§ Mr. Macquisten
Suppose that there are some damaging criticisms made by shareholders of a board of directors who do not want those criticisms to be published, is it not possible that newspapers that do not get the paid advertisements may come along and say, "Unless you give us the advertisement, we will publish those criticisms"?
§ Sir S. Reed
The hon. and learned Gentleman is making hypothetical cases, and I cannot follow him into the vague and intangible realm of hypothesis. I am putting before the House certain facts and asking that, in relation to those facts, there shall be given to the newspaper Press the freedom to publish bona fide, honest reports of public company meetings without the imminent risk of being cast in damages which may be overwhelming, and that, I think, is as far as I can go. As to what certain newspapers in certain circumstances may do, neither I nor anybody else can give any assurances to this House. I can only give the assurance, as far as I am concerned, that I have never sacrificed my freedom and that I do not propose to do so.
§ Mr. Silverman rose—
§ Sir S. Reed
Clause 7 deals specifically with the law of slander, and that, I believe, my hon. Friend the Senior Burgess for Oxford University will deal with. Clause 8 provides, briefly, that there shall not be an indefinite suspension of actions of this sort, but that they must be entered within a period of 12 months, except in cases of hardship, when a discretion lies with the judge. Clause 9 is deliberately directed against frivolous actions and is designed to discourage frivolous litigation encouraged by speculative solicitors on the principle, "No damages, no costs"—in short, that class of action which has been described by eminent judges as gold-digging and disguised blackmail. Actions for defamation have to be brought in the High Court, and often the costs incurred are out of all proportion to the importance of the issues involved. The potential costs are so high and the prospects of recovery so remote, that newspapers and periodicals are driven to settle rather than face these undefined risks. May I give one example? There was a London newspaper which courageously and honourably exposed a certain swindling share-pusher, and in what was otherwise a complete indictment there was one trifling and minor inaccuracy. The action was fought, and it was won, but it cost the newspaper £25,000 in irrecoverable costs.
This House has recently passed very beneficent legislation dealing with share pushers, and it has had other scandals under its review. If newspapers were not hamstrung by the law as they are to-day, there would not be the same urgent necessity for this House to pass legislation to deal with these abuses. The Bill seeks to deal with this mischief by providing that, unless a judge decides to the contrary, a plaintiff shall not recover more costs than damages. This has been regarded by some hon. Members as if it was something new and strange. It is not new and strange. On the contrary, there is an almost identical provision in the Slander of Women Act, 1891. Such are the objects of and reasons for the Bill which is now before the House, and I hope I have convinced the House that there is established a case for 584 reform, not merely for the newspapers, not merely for the publishing interests, not merely for all the great crafts of the pen, but in the public interest as well.
I would ask this House to accept the assurance that this Bill is an honest and sincere attempt to deal with evils which are recognised by the judiciary and which have been exposed in such emphatic language by two of its most distinguished members. It in no way weakens the protection to which the bona fide litigant is entitled, and if anything it strengthens his position; so much so, that the Bill has the support of almost every established authority connected with publishing and with book distributing. It has the support of the Empire Press Union, the Newspaper Proprietors Association, the Press Association, the Newspaper Society, the Periodical Trade Press and Weekly Newspaper Proprietors Association, the Federation of Wholesale Newsagents, the Federation of Retail Newsagents, the Publishers Association, the Incorporated Society of Authors, Playwrights, and Composers, and the Institute of Journalists, and since it was printed I have had an urgent request from the librarians that they also may be included within its scope. For these reasons I commend this Bill to the favourable consideration of the House. I am not here to say that it is a perfect Bill, but I am here to say that it is a good Bill, and I would like to remind the House of the very pertinent remarks which were used quite recently by the hon. Member for Gorbals (Mr. Buchanan), who said:This House contains such a wealth of talent and experience that any Bill may be remitted to its Committees with the certain confidence that a sound legislative Measure will be educed from it.So I ask this House to give this Bill a Second Reading and to remit it to a Committee. I want to give this definite assurance, that its sponsors will not resist any Amendment which may be found necessary for the protection of the public, provided the essential objects of the Bill are secured, and the essential objects of the Bill are to make the law of libel respected as an instrument of justice and to remove the stigma that it is too often exploited for the purposes of "gold-digging and disguised blackmail."
§ 2.33 p.m.
§ Mr. Alan Herbert
I beg to second the Motion.
585 I am sure the House would like, with me, to congratulate my hon. Friend the Member for Aylesbury (Sir S. Reed) on the brief, bold, but temperate and lucid manner in which he has discharged his difficult and already evidently dangerous task. I am sure that anybody who knows my hon. Friend and his long and distinguished association with the "Times of India," a paper, I believe, almost as respectable and solemn as the weekly paper with which I have been chiefly associated—I am not referring at the moment to the "Sunday Pictorial"—will not suspect for a moment that he is likely, by anything with which he has associated himself, to be guilty of adding to the sum of wildness or wickedness. He said that I approached this question as an author; and it is true that I have never been a newspaper proprietor and am never likely to be. But I think I can say without humbug, or at least with that modicum of humbug which is common to all of us, that I really approach this question rather more as a would-be legal reformer. I approach it, first of all, as a modest attempt at law reform, not based on any material interests. I would support that assertion by saying that my attention was first drawn to the anomalies of the law of libel in 1912 when I started to study jurisprudence in the University of Oxford, long before I thought of becoming a journalist or a professional writer. At that time, not very far away, there were two other students named Somervell and O'Connor. They were crouching over their books with almost equal diligence, but were devoting themselves then to studies that seemed to them more lofty than the generally disposed school of jurisprudence. One of them had already taken a brilliant first class in the school of chemistry. The other, the noisy one, was studying philosophy. Little did I think in those far days that those two scientific, philosophic, soaring, independent spirits would ever sink to the Treasury Bench as Law Officers of the Crown. Still less did I think I should ever find myself addressing to them and this honourable House precisely the same animadversions on the law of libel that I addressed to my delighted and astonished examiners in 1914.
I mention these personal facts not merely to show that I am one of those rare politicians who are still saying the same thing 27 years later, but to rein- 586 force my plea that I approach this thing as a legal reformer and, so far as mortals can without any material interest. I heartily endorse the opening remarks and the concluding remarks of my hon. Friend. Neither of us, having had the long experience that we have had in the merchandise of words, is likely to minimise the power of that weapon. To-day the wireless waves travel round the world, I understand, at the speed of light, and therefore it is almost scientifically true to say that one can throw mud round the world at the speed of light—a horrible thought! The printed word is not so swift, but even there I would not be a party to anything which I thought was likely to open the floodgates to the uncivilised use of the printed word by way either of malicious abuse or falsity or of reckless indifference to truth and justice. If I thought there was anything in this Bill that would lead to that end I, and indeed we all, should be most ready to accept the appropriate Amendments.
On the other hand, it is not desirable that any part of the law of the land should fall into disrepute as this part of the law, I am afraid, has done—and there I challenge contradiction from the highest legal luminaries in the land. It is not desirable that it should be the cause of manifest injustice even if it is only to the lowly breeds who employ the pen. It is not desirable that through the uncertainty arid injustice of the law persons who have a good case, whether as plaintiffs or defendants, should be discouraged from going to the King's Courts, while those who have not a good case are enabled by a species of blackmail, which means in this case obtaining money by threats of a legal action, to abuse the processes of the law and waste the time of the King's Courts in a species of speculation. That is our double task—to leave the fountains of justice wide open to those who come there for the relief of a wronged reputation, and to shoo away those who come there in the prosecution of a racket. My hon. Friend and I and the other supporters of the Bill are under no delusions either about our own temerity or about the difficulty of this task. We know very well that it is one thing to criticise the law and another thing to amend it. There is always the danger that in removing one injustice you may create 587 another. We are well aware of that and we cast ourselves on the good will of the House for their co-operation.
If a Napolean were addressing himself to the task of reforming the law of libel I think he would scrap the lot and start again. But Napoleon never had to face the special difficulties of a private Member on a Friday afternoon. If you try to make a big reform you are told you are doing too much and if you make a modest contribution you are told you are only tinkering with the problem. We are not presuming to make a fundamental change in the law: and perhaps the most generally effective Clause for obtaining the purpose I have mentioned is one of the shortest, simplest and latest: and that is Clause 9. It provides that the plaintiff shall not recover more costs than damages unless the judge makes an order to the contrary. That is by no means a novel proposal. It already appears in the Slander of Women Act, 1891. I would draw attention to the exception "unless the judge makes an order to the contrary." Previous would-be reformers of the law have been anxious to lay down that there should be no right of action where there was no damage. I have always fought against that because there are many cases when it is the right and not merely the right but the duty sometimes of a citizen to clear his name. Public men, for example, Members of this House, may be the victims of a story which is not at the moment very damaging, but would be of great damage at the time of an election. Yet no damage might have been caused and the plaintiff might not desire any damages. In such a case the court would make an order to the contrary.
Chiefly because it is on the same page, and not for any logical reason, I would draw the attention of the House to Clause 7. This is a particular pet of my own and if it were likely to prejudice or damage the general cargo of the Bill I should not press it. Nevertheless I need not say that I consider it sound and good. This is one of the Clauses which gives the lawyers fits, although, as so often happens, the same thing has obtained in Scotland for many centuries. Clause 7 assimilates the law of slander to the law of libel. There are many 588 distinctions between slander and libel. One is that in libel it is not necessary to prove that damages have been suffered, but in slander, except in four specific cases, you have to prove not merely actual damage, like being expelled from your club, but special damage, which means damage that can be measured in terms of money. I will give an example. If you said of any woman or a beneficed clergyman that she or he was not so virtuous as they might be they could recover without proof of special damage. If you make the same accusation against say Mr. Montagu Norman, or the Prime Minister, or my right hon. Friend, he has to prove that it is bad for business. I believe that the same thing would apply to a retired bishop, because he does not count as a beneficed clergyman. I do not know whether there has actually been such a case in the courts, but the question may come up.
Let me take a still more extreme example. Suppose it were said that two Members of this House, a male and a female, were living together though not man and wife. The lady would be able to proceed with an action at once without proof of special damage, but the gentleman would have to prove that he had lost money, that business was going down, or something of that sort. On the other hand, if these accusations were made on a post card that would be a libel, and all would be able to proceed without any proof of damage at all. I assert without fear of contradiction that such a state of affairs is absolute nonsense. It often happens that such distinctions arise from accidental historical causes, and because we are too lazy to remove them or amend them we create an elaborate philosophical defence of them which we pretend has been there all the time. That has happened here. I do not know whether my right hon. Friend ever studied legal history after he left off chemistry, but what happened, I believe, was that slander was dealt with in the beginning by the feudal courts, and then by the ecclesiastical courts. It became a form of "trespass on the case," requiring damage. Then printing came in and the Star Chamber leapt upon printing, and an action for libel has retained some of the criminal character of that court's proceedings and so no proof of damage is required. But now we say that because a written wrong is a solid, enduring, 589 fundamental thing therefore it must be made more easy for the victim to pursue it. I should submit that the contrary was the case; the whispered slander is far more difficult to catch, and therefore the distinction, if any, should perhaps be the other way round. At all events, it is surely absurd to say that what is written on a post card is more dangerous than what is shouted at a mass meeting, perhaps through a loud speaker. However, that is the law as it stands to-day. I would add that there may be a little social reform in this proposal. Every day we read about some village where havoc has been caused by gossip, whisperings and slanders and up to a point it may be a good thing that we should all have to think a little more before we speak, as we do when we come to write. I agree, however, that we do not want every little bit of tittle-tattle or light-hearted abuse to be made the foundation of an action, and that is where Clause 9 comes in. I should not press Clause 7 unless Clause 9 were also carried. I will not spend more time on Clause 7, because I have undertaken not to press it if I find myself in a minority of one, as I dare say I shall be.
I hope the House will excuse me for dealing with the Clauses in this somewhat illogical order, but I will return now to Clause 1. My hon. Friend said, not with complete accuracy, if he will forgive me for saying so, that this concerned authors only. It might concern newspapers too, although they assure me that for a technical reason it would be difficult to use the Clause. I do not want the House to think that authors are a thin-skinned lot. On the contrary we are tough. Look at the law. In everything we say about others we have to take great care that it is true, and rightly so; but anything that anybody says about authors and dramatists, whether it is said by critics or private citizens, however abusive it is, is fair comment on a matter of public interest. So we catch it both ways. But we are not seeking to alter that. Nor am I so foolish as to put any of these arguments, such as they are, or any of these facts before the House as a kind of appeal ad misericordiam for novelists, fiction writers and journalists, because I have a sad suspicion that if all the fiction writers, all the journalists, all the editors and even all the newspaper proprietors of England 590 were massed upon their knees at that Bar, and relating with noisy tears the manifold difficulties and troubles of their professional lives, this hard-hearted House might still lend a comparatively deaf ear to that pitiful appeal. No, Sir, what I do say is that if by exposing all the craft of the press and the pen to an impossible position under the law you are creating and encouraging a breed of racketeers, exposing the law to obloquy and disrepute and wasting the time of the King's judges on these unsubstantial actions, that is a consideration to which the House will rightly pay attention.
Turning to Clause 1, with that consideration in mind, I would explain that its object is to make a mild, and I think a just, limitation of liability in some cases where there has been a genuine accident. If there is a genuine accident on the road, say a case in which two cars collide and there is neither negligence nor wrongful conduct on either side, the damage lies where it falls, because there is no point in exacting any damages in order to prevent somebody from doing something which he was not trying to do and was taking every care to avoid doing. In our profession, however, a very different set of liabilities prevails. If I deliberately write about Mr. Smith and, though I wish to be complimentary to him, my information is wrong, and I damage him, I am liable. If I say that Mr. Smith may be a bad politician but he is a good father, and it turns out that Mr. Smith is not married, then, though my intention was good, my information was wrong, and I pay. We are not altering that position. Again, if I maliciously write something in fiction about a real person under a disguised name and the disguise is penetrated, and I fail to get away with it, again I pay, and we are not trying to alter that. But where I did not intend to refer to Mr. Smith, where I did not know of his existence, and there was no reason why I should know of his existence—it would be useless, for example, for me to write anything about a Law Officer called Sir George Somervell, and to pretend that I did not know of my right hon. Friend's existence—or, on the other hand, although I might know of his existence, I did not foresee that what I wrote might apply to him, and there was no lack of care on my part in failing to foresee that it might be taken to apply to him, under this Clause I have a defence. Let the House note 591 that even here the onus of proof is on the defendant and not on the plaintiff. I have to go into the witness box to prove all this and to be cross-examined upon it. Suggestions have been made that even if it is proved that no offence has been committed and that it was all a pure accident there is a case for saying that some sort of explanation or apology might be demanded if this defence is to be available. It might be a simple matter for a newspaper to publish one; it is not so simple a matter in the case of a book.
Let me give one or two illustrations which, strangely enough, come not from books but the Press. There was the Cassidy case in 1927. In that case a photographer went to a race meeting and in the paddock photographed a gentleman and a lady. The gentleman told him, "This is my fiancée," and that was what the caption which was placed under the photograph stated. Afterwards the gentleman's real wife brought an action saying that this caption, "Mr. Smith and his fiancée," was libellous upon her, because it suggested that while she was living with him she was living in a state of concubinage and was not his lawful wife. That case went to the Court of Appeal and the lady succeeded. That was not a question of carelessness on the part of the newspaper, it was not even a mistake on their part, for they had put down accurately, and perfectly innocently, the information given them by the parties concerned.
Then there was the tombstone case. In the tombstone case a gentleman who again had not been living with his wife but was having a more happy life with some other lady, set up a tombstone bearing the words "My dearly beloved wife." An action was brought by the real wife on the ground that that was a libel upon her. For some technical reason the action did not succeed, but I would quote what the judge said:It is obvious that the inscription on the tombstone was capable of a defamatory meaning.So that, presumably, the stonemason could have been made a defendant. These cases are not so extreme as hon. Members may think because, as my hon. Friend has said, they are often present in the background but do not get into the courts. I do not say that the Clause is 592 necessarily the only way or the right way of dealing with the matter, but it must be dealt with somehow.
I must mention the case of Hulton v. Jones because if I do not mention it somebody else will. I should like to make my position plain. The name of Sir Artemus Jones is the name of a highly respected County Court judge in North Wales but, through no fault of his, in my unfortunate profession his name is a bugbear and a real menace. I never choose a name for a story or an article without thinking: "My hat, Artemus Jones! Is this safe?" But in my opinion Mr. Artemus Jones deserved to succeed on the facts, and, what is more, he would still succeed under this proposed new Clause. In that case it was not a question of fiction; it was an article purporting to be a statement of fact relating to some event at Dieppe by the Paris correspondent of a newspaper. The language was defamatory on the face of it, so that a high degree of care was desirable; and there was clear evidence of negligence, since Mr. Artemus Jones had actually written for the paper which defamed him. But while one is not disagreeing with the decision, we do quarrel with the language which justified it, even coming, as it did, from the august Chamber at the other end of the passage. One must recognise that a very wide interpretation has been put upon what was already a very wide principle, by judges, solicitors and others. Lord Loreburn asked what did intention matter, and said the remedy of the defendant was "to abstain from defamatory words." That is an easy thing for a judge to say, but because of the extraordinary doctrine of innuendo which His Majesty's judges have invented in the last 50 years or so, it is not easy to abstain from defamatory words. If you mention Miss Smith in your book, along comes a lady saying: "You have mentioned my name in your book, my friends say it is like me, and although the character is a very fine one she is a mother and I am not married."
The position is absurd, but it is an old story and it is always happening. Lord Loreburn seemed to suggest that we might get out of it by having none but good and virtuous characters in our books, but even that remedy would not he sufficient. Another remedy might be not to have any names at all in words of fiction and to 593 say "X passionately kissed Y on the lips"; but the House would agree that much of the charm of works of fiction would thereby be lost. And even that device might not be safe. There was a case in which a cautious editor not very long ago took out the name of a bookmaker and inserted the word "Blank," but then a real bookmaker named "Blank" came along and complained. I would warn hon. Members that there are 10 "Blanks" in the London telephone book.
People ask us why we take such simple names; why not take more complicated names like "Portwine" or "Plato," but, believe it or not, there are ten Portwines in the London telephone book as well as two Platos and numerous other unusual names. There are Japhet and Noah, Mars, Homer and Venus. There are nearly all the characters in Peter Pan, 40 Smees and 40 Starkeys. There are Wellbeloved, Truelove and Lovely, Mr. Grass and Mr. Herbage, Silvertop and Twopenny, Mock and Turtle. There are Mr. Virtue, Mr. Vice, Mr. Buttar and Mr. Cheese. So far as such names are concerned we have to be careful. I should regard myself as guilty of negligence if I committed a libel on anybody with such names, because they are accessible in the London telephone book. But I cannot go through all the reference books to find out what names must not be used; there are some unpatriotic citizens whose names are not in any reference book, in short, it is evident that no matter how much care you take there is still a great deal of danger. I have taken care all my life and I have never had any real trouble. I am not saying that we must not take care, but the point is that however much care you take you cannot possibly be sure that someone will not claim that you are referring to him. The law should be more sensible and wise, and if this Clause is not good enough I hope that His Majesty's legal advisers will see what they can do.
Clause 2 does not quite repeat the present law, but does not go quite as far as the newsagents would like. The effect of the Clause would be that for an accidental libel in the "Times" a newsagent would not be liable, though he might be for one in a notoriously scurrilous organ. I should have liked, if there were more time, to deal with 594 the extremely technical and difficult Clause 3. This, although it is very good in intention, is not one of the Clauses I should bet on, because objections can be made to it. I have often felt much sympathy with the innocent printer. An aggrieved party may proceed against the publisher, who may be guilty of 25 per cent. negligence, and the author, who may be responsible as to perhaps 70 per cent. for malice, but in no way could the printer possibly have avoided doing what he did. Nevertheless, a person can go for any one of them and get all the damages possible from the person least responsible.
As regards Clause 4, already dealt with by my hon. Friend, I am in rather deep technical waters, and should like to hear the opinions of experts like my hon. Friend opposite the Member for West Middlesbrough (Mr. K. Griffith) and others upon it. Clause 8 proposes a limitation of one year on actions for libel and slander. It may be thought that this limitation is a little drastic, but the state of affairs at present is very strange. In the case of slander which is actionable per se, the period is two years; in the case of libel it is six years, and in the case of slander which is not actionable per se it is also six years. All that is terrible nonsense. One year may perhaps be rather a short period, but I am sure that some lessening of the present period would tend to discourage the "gold digger." In 1934 there was a humorous book published by a well-known publisher. The book was already dead, but the other day one of these gentlemen who snout about in public libraries hunting for succulent pieces of defamation, came along to a film company, and pointed out to them that their name was involved. The book was dead; they could not have suffered any damage or the claim would have been made before; but a claim was made and a sum of money was paid over. We should be prepared to accept an Amendment making the period two years, if that were desired, but in my opinion the principle is a good one. It is now time for the experts to start to tear the Bill to pieces. We put it forward as a modest attempt, perhaps rash, perhaps misguided, at a very long overdue reform. We believe that some such Measure is very badly needed; that the law will be restored to proper respect; that the improper exploitation of the courts for the purposes 595 of gain will cease; that the wrong kind of plaintiff will be kept out and the right kind will approach the courts with greater confidence; that while, to some extent, the criticism of real social abuses, of fraudulent and dangerous people and practices, will be less hazardous, we open no loopholes at all to the darts of malicious or reckless assault upon the private lives of private citizens.
I should like to say one word about the Press. I am a sort of journalist, and also, if I may say so, a sort of politician, and I have felt greatly distressed, since I have been in this House, by the fact that so little love appears to exist between our free Parliament and our free Press. The Press is not perfect, because it is free; we are not perfect, because we are free; nothing that is free is ever going to be perfect. But I feel it is a pity that, in this great democratic family, these two cousins should be always scrapping with one another. I have often said publicly to my friends of the Press, and I say it again, that I wish that some of them would recognise—most of them do—that we are colleagues, and would make more of an effort to understand us and interpret us to the people. On the other hand, I feel that, when a Bill comes forward which to some extent calls for serious consideration of the needs or grievances of the Press, it should be considered so far as is possible without prejudice, though by all means let us have a most strenuous debate on the subject. I know that my hon. Friend the Member for Smethwick (Mr. Wise), the bold and irrepressible, is full of strong things to say which we shall much enjoy hearing. But the law of libel has not been touched for 50 years, and this great country, which has led the way in law, in literature and in liberty, ought now to bring its law of language up to date. Even though this Bill may not commend itself to the Government or to the House, I hope that something will be done; and that in the background of their great cares at the present time they may find time to remedy what we feel to be an abuse.
§ 3.10 p.m.
§ Mr. Silkin
I beg to move, to leave out the word "now," and, at the end of the Question, to add the words "upon this day six months."
596 The Mover of the Bill, in his interesting speech, referred to the dangers he had to face in submitting this Bill, but I believe that, in moving the rejection, having regard to the enormous interests affected and the powerful organisations which are supporting the Bill, mine is an even more dangerous task. The Seconder spoke of his detachment from the point of view of a law reformer. I do not think I ought to give him the usual advice that is given to law reformers, but I think he would have been well advised to stick to writing books instead of drafting this Bill, which I do not think he has done at all well.
I agree that writers, publishers, booksellers and others should be protected from improper libel actions. There has been no dispute about that. But it is essential that the rights of the general public should not be unfairly restricted, and that the reasonable liberty of the Press should not be maintained at the price of the reasonable liberty of the people. There may be, in certain respects, a need for an alteration of the law of libel but it is not enough to establish, as the Mover and Seconder have done, a hardship and injustice and a need for a revision of the law. It has to be shown that a particular Bill will, in fact, remove that hardship and injustice, and that the Bill does not go beyond it, so as to create further and possibly greater hardships and injustices. It is because I believe that this Bill does not satisfy this test that I am moving its rejection.
I submit that this Bill, in a number of respects, which I will elaborate later, goes far beyond what is necessary for dealing with the grievances mentioned, that in a number of cases it does not remedy them at all, and that, in addition, it interferes unfairly with the right of the general public to be protected from libel. We are inclined to forget sometimes that the public are entitled to protection from libels as well as those who commit libels being entitled to protection from the public. To-day the power of the printed word is very great, and it is increasing. Many newspapers have a circulation running into millions. Cheap books—which I welcome—sixpenny editions and book clubs, whether of the right, left or centre, are all tending enormously to increase circulations, and the result is that a de- 597 famatory statement has an ever-increasing public, and once made cannot be overtaken. As somebody pointed out in the "Times" the other day:When the swift arrow once has taken wingWho can recall it to the quivering string?That is exactly the position of the printed word to-day in a large number of cases. It is important that the dice should not be loaded too heavily against the general public, and I am afraid that that is what this Bill will do. Newspapers to-day are extremely powerful and wealthy; they have huge resources behind them not only in money but in the possibilities of obtaining information. Any member of the general public who seeks to claim damages against a newspaper is undertaking a very great proposition, as the Mover of the Bill informed us. He is heavily handicapped from the beginning. We were told by the Mover of a case where a newspaper spent £25,000 to fight a person who brought a libel action against it. That is a tremendous handicap for a member of the general public to have to face, and I submit that this Bill is designed to increase that handicap.
What are the abuses which this Bill sets out to remedy? The hon. Member who moved the Second Reading referred to actions brought by persons without means based on unsubstantial grounds, in the hope that the defendant would settle, and said that it constituted a form of blackmail. He gave us no evidence whatever as to the substantial existence of that evil. It is true, he said in a general, vague sort of way, that for every one action brought into the courts, there were 100 which were settled, but that is no evidence that the 100 cases which were settled were brought without justification by people of unsubstantial means in the hope of extracting damages because the defendants were afraid of incurring heavy costs. It may well be that of these 100 cases which were settled, 99 were properly and justifiably settled. I have no evidence of that other than that I happen to be a practising solicitor myself and have brought a fair number of actions against newspapers and others for libel. I submit that in not a single case has an action been one of endeavouring to take advantage of the possible mendacity of the plaintiff. In every single case where there has been a settlement—and there 598 have been settlements in a large number of cases—it was because the plaintiff had a genuine grievance and the newspaper had no answer. It is futile to come to this House and put forward an argument in support of this Bill that 100 cases are settled against every one which comes to court. The position is exactly the reverse.
It is all very well to talk in a general sort of way about gold-digging. I do not want to defend these practices in so far as they exist, but I would remind the House that sometimes in the case of the big newspapers, and even of the smaller newspapers, the defendant is also without means and can be libelled with impunity. I have known cases of small provincial and local papers which have persisted in libelling persons knowing quite well that nobody would dare to bring an action against them because he would not recover either damages or costs. So the shoe is not always on one foot; it is sometimes on the other foot. This Bill will do nothing to prevent such actions being brought. There is nothing in the Bill to stop people bringing actions in the hope that the defendant will be deterred by heavy costs from fighting and will be virtually compelled to settle. Any such Bill would mean depriving citizens of the right of access to the courts of the country. Even the Senior Burgess for Oxford University (Mr. A. Herbert) would not go so far as to suggest that in the interests of the literary profession we ought to deprive people of the right of access to the courts. As long as people have the right of access to the courts they will bring actions if they want to do so. The Mover and Seconder of the Bill will not prevent them from taking action, and I fail to see how anything in the Bill will prevent the evil that is alleged. Therefore, the main purpose of the Measure will not be realised, with the Clauses as they stand.
Then there are the minor grievances which the Bill seeks to remove, but in attempting to deal with those minor grievances the Bill goes too far in the opposite direction and would cause even greater grievances to the general public. Take Clause 1. I agree that there may be some need for action for the protection of authors, but authors must realise that a large number of people in this country are engaged in hazardous occupations, and the writing of books and 599 articles may be a hazardous occupation. Where the name of a person is used libellously in such a way as to make him clearly identifiable, the author should not, however innocently, go on circulating the libel, thereby causing suffering and injury to the person libelled, who is probably, at least, as innocent a party as the author. Why should the author be in a position, with impunity, to write about me libellously, and then say: "I am awfully sorry but I did not know such a person existed. I took every care to find out. I looked in the telephone book, and he was not on the telephone. I did not know there was such a person, so it is all right. I can go on circulating this book." In the meantime, the author is possibly creating very great hardship for me. I submit that if anyone is to suffer it should be the author, and not me. Why should the author get away with it?
§ Mr. Denville
If my knowledge of the law is right, it is not the author alone who is punished but also the newsagent and even the newsboys, or anyone who sells the newspaper, or who circulates it in any shape or form.
§ Mr. Silkin
I was dealing with Clause 1. Even taking an extreme case, where there is a conflict between two innocent parties, it should be the author who should suffer, and not the innocent person who is written about. Now I come to Clauses 2 and 3. They are both very dangerous Clauses. The seconder of the Bill did not submit them with too great confidence. They both take away existing rights from the possibly innocent victim of libel. The person who is libelled ought to be able to claim against everybody who is concerned in the libel, and not possibly find himself in the position of only being able to claim against an impecunious person. I do not want to worry the House with examples, but it is possible to engineer a libel in such a way that the plaintiff may be left with a remedy only against an impecunious person, while the responsible parties with means get away with it altogether. That is wrong and dangerous.
§ Mr. Macquisten
Suppose a man were guilty of selling indecent publications, and he said, "I never read them." Would the police let him off? Of course, they would not.
§ Mr. Silkin
The police would not let him off, and under the Bill I imagine 600 that he would not get off. For one person who seeks to exploit the law of libel there may be hundreds who have a genuine grievance whose existing rights ought not to be interfered with. Clause 4 gives very much more licence to persons guilty of libel than is desirable. It may be cruel and cause a great deal of suffering and mental distress. It might destroy the person's social and family life quite without justification, and the defendant ought not to be allowed, as an answer, to rake up matters which might be extraneous to the case before a jury. I submit that the libel should be taken entirely on its merit, and that if a particular statement is unjustifiable and libellous, the person making the statement should be called to account, irrespective of what may have been the record of the person libelled in times gone by. If the plaintiff deliberately brings his character into the issue and says, "I am a respectable person, I have never been in trouble before," I agree that the defendant can say, "You have been in trouble before on such and such an occasion." But where character is not the issue I submit that it should not be right for a defendant to rake up the plaintiff's past possibly without any relevance whatever to the libel at all.
§ Mr. Silkin
It says that discretion is to be exercised, but it would be quite arbitrary and, moreover, until the damage is done, until the facts are brought out, it is often impossible for a judge to say whether the facts are material or not, and by that time the mischief has been done. Clause 5 gives quite unnecessary privileges to the already powerful Press. Why should newspapers be allowed to spread a libellous statement by publishing it even in a report of proceedings? Newspapers already have a privilege in this respect, and I submit that they are sufficiently protected so far as public reports on meetings are concerned under the existing law, and that there is no need for any alteration of the law on this point.
Clause 8 seeks to impose a limit of one year in which actions may be brought. In justification of that the seconder of the Bill informed the House that in the large majority of cases the public had six years in which to bring an action; in a very 601 limited form of action they have two years, and, therefore, he said, "Let us make it one year for all classes of cases in order to be on the safe side." If that is the only justification, I cannot understand why it has been introduced into the Bill except to impose an additional handicap on those who might want to bring a libel action. I realise that in special cases a plaintiff may be able to go to the court and give good reasons why he was not in a position to bring an action before, and if the court is satisfied, the judge may extend the time. But why should a plaintiff be put into that hazardous position? He has to incur considerable expense in getting to the judge to find out whether he would be allowed to bring an action. I submit that no case has been made for changing the law by substituting for the normal six-year period a period of one year. Clause 9 provides that:A plaintiff in an action for libel or an action for slander shall not recover more costs than damages.This is the only Clause in the Bill upon which the promoters are relying for dealing with the speculative solicitor and the "gold-digger," and protecting the Press against frivolous actions. I submit that the Clause does not do that. Moreover, it would introduce a substantially new principle, especially for this type of action. What is the justification? Why single out this particular type of action for that purpose? After all, the threat of taking proceedings is one which applies to all forms of liability, and to all sorts of persons. Every one has heard the story of a judge who said that if he were asked "Your money or your life?" he would run for it, but if he were told "Your money, or I will bring an action against you," he would hand out his money at once. That applies not only to libel actions, but to all sorts of actions. May I put a hypothetical case to the House? A person brings an action for libel in order to clear his character. It may be a heavy action, it may last for several days, it may call for the employment of numerous counsel, and it may be necessary to have experts and costly witnesses. The action may involve the person in £500 or £600 costs. He recovers £100. In the ordinary way, unless the judge rules otherwise, his costs are limited to £100. On what grounds of equity would the Seconder of the Motion suggest that such a person should not as a 602 matter of right, having succeeded in his action, having justified himself fully and having recovered damages, get the costs which ordinarily, in every other action, would follow?
§ Mr. Silkin
He would be fined £400 for having cleared his character. It is utterly inequitable. This provision is put forward because, perhaps, one person in a hundred may bring an action which may not be justified. The Clause would inflict great hardship on a perfectly innocent plaintiff, and I submit that it is entirely without justification. I do not want to go on any longer, for I think I have already satisfied the House that the Bill is badly drawn, that we have no evidence of the extent of the evils and abuses about which complaint is made, that the Bill does not remedy the evils and abuses to which attention has been drawn, at any rate not the most serious of them. The Bill would impose grave hardship and injustice on considerable sections of the public, and it would give increased and substantial privileges to large newspaper proprietors and others who are already in a specially favoured position. Having very carefully studied the Bill, I believe it is incapable of being made satisfactory in Committee, except by the most drastic revision. I submit that it would he wiser, and in the public interest, for the promoters to reconsider their position and introduce a fresh Bill of a very much more limited scope. At the moment, I ask the House to reject the Bill.
§ 3.35 p.m.
§ Mr. Wise
I beg to second the Amendment.
I propose to be extremely brief in the remarks which I shall offer in support of my hon. Friend the Member for Peckham (Mr. Silkin), because I am certain the House wants to hear from my right hon. and learned Friend the Attorney-General, the view of the Law Officers on this Bill. Being no lawyer, I am going to commit the crime against which my hon. Friend the Senior Member for Oxford University (Mr. A. Herbert) warned us, and introduced a note of prejudice into this discussion. I think it cannot be discussed free from prejudice. I am reminded of the case of the horse thief in Western America who objected to the jury which 603 was about to try him on the ground that they were biased, and who was informed by the judge that a jury which was not biased against horse thieves was not fit to act as a jury. It is impossible to divorce from our minds the fact that we are dealing here, not with innocent authors of the type of my hon. Friend the Senior Member for Oxford University, or with the highly respectable provincial Press referred to by the hon. Member who moved the Motion. We are dealing with the mighty engine of the national Press, and I do not believe it has yet reached a standard sufficiently high, either of truthfulness or decency, to justify any relaxation of the law. The Press must first put itself in order, and I hope that if this Bill is withdrawn to-day, as I believe it may be, the interval before any fresh effort is made will be occupied by these mighty organs in endeavouring to make their standard a little higher, and to pay a little more regard to the accuracy of some of the statements which they make.
I give one or two examples to illustrate my point. They are not in themselves libellous, but if there were any relaxation of the law they might easily become so, and the libelled person would have no remedy. Last summer, one of our most widely circulated papers, the "Daily Mirror," published the statement that a Cabinet Minister had said that there was no point in finding work for the unemployed, first, because they did not want it, and, secondly, because it was much cheaper to keep them on the dole. Surprised that one of the leaders of my party should have been guilty of a statement of that kind, I wrote to the paper suggesting that, in the public interest, they should publish the name of this errant Minister in order that he might be properly pilloried and receive the punishment which was his due. I received an evasive answer pleading the law of libel as a deterrent to the publication of the name. I wrote again to them and endeavoured to explain that, as far as I could see, the law of libel in this case would not apply, because there would be a good defence, first, that the statement was true, and, secondly, that it was in the public interest that the electors should receive the information. The final answer was even more evasive than the earlier one.
604 In fact, of course, there was no basis of truth in the statement at all, but if that recklessness is permissible now, to what extent may it not go if the law is in any way relaxed? Then, there are other cases in which public taste, as apart from public policy, is involved particularly, again, in some of our illustrated daily papers in which the power for harm is greater than it is in those which are almost entirely written. Offensive innuendoes can be far more effectively conveyed by the camera than by the pen. I am not going to weary the House with a long list of faked photographs purporting to represent as "victims" of killers people who have never been attacked at all. I have in my file a picture showing the actual scars and slashes on a woman's neck, which, in common decency, should never have been allowed to appear. As long as that standard is maintained I claim that the Press has no right to ask for relaxation. It is true that there are organs of the Press which do not do that sort of thing. There is, again, the highly respectable provincial Press to which the hon. Member referred. But their circulation is numbered in tens of thousands and the circulation of these other organs is numbered in millions, and until the millions are brought into order and decency there should be no relaxation for the virtuous thousands. I hope that the Bill will be withdrawn.
§ 3.41 p.m.
§ The Attorney-General (Sir Donald Somervell)
I thought there would be a general consensus of opinion among those who are familiar with the working of the law of libel—and that opinion has found expression in all quarters of the House to-day—that that branch of our law is, to put it at its mildest, in a not wholly satisfactory condition. My hon. Friend the Senior Burgess for Oxford University (Mr. A. Herbert) expressed approval of the opening and the concluding remarks of his and my hon. Friend the Member for Aylesbury (Sir S. Reed). He was silent as to the intervening remarks, and I refer to that only because I preferred the way in which my hon. Friend the Member for Aylesbury put his case at the end of his speech to the points that he made earlier. My hon. Friend commended the principle behind the Bill as one designed to ensure that the law of libel should be respected as an instrument of justice. That is the angle from which I endeavour to ap- 605 proach this question, and it is undoubtedly the angle from which the House as a whole would wish to approach it. In fact the whole law of libel does want what one may describe as an overhaul and consideration.
This Bill deals with certain points and deals with them particularly from the point of view of the Press and journalism, though not wholly from that point of view. My hon. Friend the Member for Aylesbury referred to the disapproval which is felt in many quarters and among many journalists themselves of some of the incursions into private lives which we see from time to time in certain newspapers—incursions for the sake of a story and not because the matter is of any real public interest at all. My hon. Friend anticipated that disapproval of those activities may affect some people's approach to this Bill. I think it must; I think it has some relevance to the general question that has been raised. But I think I am right in saying that the law of libel as an instrument of justice is not in a satisfactory state and requires overhauling, and that the fact that certain newspapers indulge in certain activities would be no reason for not overhauling that particular branch of our law.
It is a highly technical subject, and I do not want to attempt to go in any detail into the respects in which the law of libel has become surrounded by conventions and anomalies which produce in many cases the unsatisfactory results which are within the experience and knowledge of those who have had to do with cases. It is a branch of the law which is surrounded by a mass of conventions affecting not only the issues as they finally develop but interlocutory proceedings. Rules have been laid down with regard to fair comment and justification, the working of which in certain cases at any rate, I think, produces results which arc the subject of a good deal of responsible criticism from all quarters and which are not altogether satisfactory. My hon. Friend the Member for Aylesbury, for example, referred to a case—I think I know the case, but there is no need to mention its name—in which the plea of justification substantially succeeded, but, owing to the fact that there was one inaccuracy of fact in it, the ultimate result of the case was not that which, looked at as a whole, would, I think, be classi- 606 fied as one of justice; and somewhat similar difficulties arise under the plea of fair comment.
I believe, therefore—and I hope I shall carry the House with me in this—that it is the general experience of those who are familiar with this branch of the law—quite apart from those who have the special consideration, which I am not objecting to or minimising, namely, those who are concerned with the Press and the rights of the Press—that there is a case for reconsideration of this branch of the law as it is at present administered. The Government have decided that this reconsideration should take place, and my Noble Friend the Lord Chancellor will, as soon as may be, set up a Committee to consider the matter from a more fundamental and a more general point of view than, of course, is represented, or than the promoters suggest is represented, by this Bill. I hope, therefore, that that course commends itself to the House as a whole, because I think that even among those who dislike the Bill, as well as among those who commend it, such a reconsideration would be of value. That decision is, of course, relevant to the action which the promoters themselves or the House may take with regard to the Bill, but I would like to say a few words about the points which are raised in the Bill.
The first criticism of it, looked at from the angle from which I have been considering the matter, is that it attempts to deal only with the Press aspect of the matter, and the point that I was referring to just now, and which my hon. Friend the Member for Aylesbury referred to, in regard to the plea of justification, is not touched by the Bill at all. Therefore, that, I think, is one consideration which one should have in mind in considering what would be the best thing to do with this Bill. I do not propose to go through all the Clauses in detail, but I would like to say a word or two about some of them, and I cannot resist the temptation to refer, knowing what a great expert and authority on language the Senior Burgess for Oxford University is, to the language of Clause 2, Sub-section (1), because that provides that a person shall have a defence—if he proves that he did not know that the publication contained the libel, unless the plaintiff proves that"—607 he did know it. That seems to me to be mutually destructive.
§ Mr. Herbert
It says:unless the plaintiff proves that such person knew…that the publication was of a character likely to contain a libel.
§ The Attorney-General
I should not be in the least surprised if there was an answer to it, but I pass from that point.
I would like to say a word about Clause 7. It is the Clause which says that an action in slander can be brought without proof of what is called special damage. The ordinary rule at present, with certain exceptional classes of case, is that special damage has to be proved. I have never regarded myself as a particularly defamatory person, but if this Clause ever reached the Statute Book I should be in some alarm. I believe that the difference between the written and the spoken word is a very important one. I am bound to say, moving about as I do in the Lobbies and in this House, that other hon. Gentlemen take the same view. If this Clause were ever put on the Statute Book my hon. Friends having sought to put gold-digging out of the window by the other Clauses, would be letting a new and numerous class of gold diggers in at the door. However, as my hon. Friend says, it is a Clause on which he appreciates that different views might be taken. Clause r deals with the case where the alleged libeller does not know of the existence of the person whose name he uses or is shown to be referred to. I agree that that is an extension that wants consideration. There should be, possibly, some provision to say that when it is pointed out that these words are being reasonably construed as applying to a particular individual, steps should be taken to see that the inconvenience which he has suffered is abated.
Clause 4 is one to which the promoters attach great importance. It deals with a libel action brought by someone without any reputation. There is a point here which requires consideration. We want to steer a course between two evils. We do not want to treat a person who may have had the misfortune to have been in trouble more than once as a sort of outlaw so that anybody can say what they like about him. On the other hand, it may be said that under the existing procedure it may not always be easy to get 608 before the jury facts which might legitimately be put before them. All I would say about this Clause is that it deals with a point that wants considering. It is a difficult point, and it may be that the Clause does not go far enough. I will refer to Clause 5 to illustrate the difficulties with which we are faced. I suppose that if, when this Debate was over, I wrote a stinging libel against the senior Burgess for Oxford and stuck it up on my wall or on his, that would be a document to which members of the public would have access. That illustrates the sort of difficulty that arises in this technical and difficult branch of the law.
The other Clauses it is perhaps unnecessary for me to discuss now. Having told the House the decision of the Government to have the matter examined, I would appeal to my hon. Friends to withdraw the Bill now. We have had but a short Debate this afternoon, but it has been made clear that the points raised by the Bill are both difficult and controversial, and I cannot but think that the promoters would be well advised, and that the House would regard them as being well advised, if the Bill were now withdrawn, so that the matter could be reconsidered at a later date, when we shall have had the advantage of a thorough investigation of the whole matter by an expert committee which will have wide terms of reference to enable them to consider it from every angle.
§ Mr. C. S. Taylor
Can the right hon. Gentleman say whether the committee will be set up at any date in the near future?
§ The Attorney-General
I can certainly say that it is intended that this committee shall be set up as expeditiously as possible. It is a committee the personnel of which requires careful consideration, obviously, and I cannot give a date, nor, I think, would it be reasonable to press for a date, but I can say that the matter will be put under consideration forthwith, and that we hope the committee will be set up and will be able to start doing its work with the minimum of delay.
§ 3.57 p.m.
§ Sir S. Reed
With your permission, Mr. Speaker, and the permission of the House, I should like to say, after what has fallen from the right hon. and learned Gentle- 609 man, that on behalf of myself and my co-promoters I wish to withdraw the Bill. In introducing it I tried to make clear precisely the object which we had in view, and that is to bring the law more into accord with modern conditions and modem practice. We are all painfully conscious that this was too big a question to be approached by a private Bill; it affects the liberties of the subject in so wide a degree that it ought to be approached from a wider angle than that of the interest of newspapers, journalists, authors and others; and, so far as we are concerned, we warmly welcome the decision of His Majesty's Government to refer the question to a strong Committee where every aspect can be examined, and we greatly appreciate the kindly and generous interest which the right hon. Gentleman has shown in this matter.
§ Amendment, by leave, withdrawn.
§ Main Question again proposed.
§ Motion, by leave, withdrawn.
§ Bill withdrawn.