§ Order for Second Reading read.
§ 11.5 a.m.
§ Mr. N. H. Lever (Manchester, Cheetham)
I beg to move, "That the Bill be now read a Second time."
I am conscious that I stand in special need of the indulgence of the House because I am aware that the great privilege which has fallen upon me of presenting the Bill to the House arises from no merit or talent that I possess, but from the engaging whimsicalities of our Parliamentary machinery. I am not the sort of back bench Member who enjoys having thrust upon him the duty of somewhat tedious exposition from a script. I am rather the sort who enjoys descending upon the House at rather infrequent intervals—the sort of back bencher who existed in more spacious days—to castigate a mischievous Minister and then retreating for several months.
Unhappily, this type of back bencher is no longer encouraged by the Whips' office on either side. I am afraid, therefore, that it falls to me to request the 508 indulgence of the House while I fulfil the very great privilege and duty of moving this Second Reading.
The House will recall that, under the leadership of Sir Alan Herbert and many other stalwarts of reform of the law of defamation, a Bill was presented to the House in 1938. It was withdrawn, upon the undertaking of the Government of the day to set up a committee to consider the whole question of reform of the law of defamation. That committee was established under the chairmanship of one of our most distinguished judges, Lord Porter, and it contained very distinguished lawyers and men eminent in letters and other walks of public life. The committee sat for several years and patiently sifted evidence upon the law of defamation. In 1947, they came to a more or less unanimous conclusion, which was published in a report the following year.
The pressure upon Government time has been such that neither the last Government nor the present Government have been able to introduce legislation upon the recommendations of this report. I felt that I might be doing some small but useful service if I availed myself of success in the Ballot to produce a Bill on the matter. I have to take the risk of being rather fulsome at the beginning of my remarks in acknowledging the great assistance I have received from the Attorney-General from the outset. I could not have asked for more kindness than he has shown to me, a Private Member, in the production of the Bill, and it is only right that I should make public acknowledgment of that fact. As a result, the House has now before it a Bill which embodies the main reforms proposed by the Porter Committee.
I should like to make it plain to the House that though this is a Bill to reform the law of defamation there is nothing in it which will take away one jot of the right that a man in this country has to defend the reputation to which he is entitled. As we examine the Bill it will be seen that rather the contrary is true, and that additional safeguards are provided in the Bill for the protection of reputation. I attach the highest importance to that right, and if anyone has qualms about this or that Clause of the Bill on the score of safeguarding the right 509 to which I have referred, I can only say to him that the mover of the Second Reading of the Bill entirely shares his feelings.
The House will, very properly, want to scrutinise the Bill in Committee to ensure that every safeguard is available to an honest man anxious to protect his reputation from being besmirched by reckless or wanton defamation. There is nothing in the wording of the Bill to encourage such defamation.
Most people realise that a Bill which touches upon the law of defamation touches free speech. Especially in a country of this kind where we have no affirmative code setting out our freedoms and rights, the law of defamation is of the greatest importance. All our freedom depends upon the fact that we can do or say anything that is not forbidden by law. The law of libel and slander is the invisible censor of everything that we write or say. It follows that we cannot afford to treat libel as though it were the concern only of a few Press Lords or of lawyers. It is the concern of us all. Any injustice in this law represents a threat to our free speech, just as an injustice in the criminal law would represent a threat to freedom of the person.
I hope that the House will allow me to outline briefly the way in which our libel and slander law came into its present condition. The law of libel and slander is a common law creation. It has been very little affected by Act of Parliament. It derives from the judicial decisions of our judges laid down over the centuries through which the law on the subject has been evolved in detail. It was by the decisions of judges over the years that we evolved the three great defences to an action for defamation—truth or justification, fair comment on a matter of public interest and qualified privilege.
Without these three great defences we should hardly be able to talk about freedom of speech at all in this country. These three great defences were evolved by the judges and they were applied as general principles to the different circumstances which arose as society changed. But because they were applied as general principles and because the judges did not apply them, so to speak, as a catalogue, but flexibly to the changing conditions of 510 society, it was possible for the area of free discussion and report to grow with the needs of society.
Unfortunately, this healthy process came to a stop, for various reasons, towards the end of the 19th century. I do not want to go into the reasons, which are extremely lengthy, but the process of the creative adaptation of our law came to a standstill 50 or 60 years ago. Our law of defamation has become frozen in a sort of Victorian posture which is not unsuited to the conditions of 50 or 60 years ago, but which is quite out of accord with modern needs and modern times. To make matters worse in the last 50 or 60 years the judges have mutilated the great principles they inherited by a long and sterile process of hair-splitting, quibbling and logic-chopping.
The result is that our present law of slander is clouded with paradox and uncertainty. It would have been bad enough if the law had remained where it was 60 years ago, but it has been badly mutilated in the intervening period, so that our law of defamation today is not even a dignified museum piece but rather a badly chipped antique. Therefore, I would emphasise to the House, though I may be echoing words used here before, that it is not the intention of the Bill to introduce some sudden, violent or intoxicating novelties into our law. What is intended is to restore in their old clarity and vigour some of the principles which have ruled that law of defamation in the past upon which it has been possible to champion great causes and assail great mischiefs vigorously and in an outspoken way.
I wish to give an example of this effect of the freezing of our law in Victorian times. The best example is the one about privileged reports. It has been for long settled in this country that there are matters of such public interest that they ought to be reported with immunity from any threat of libel proceedings, because of the necessity of seeing that the public were informed about them. A qualified privilege or immunity was accorded to them by the law.
I wish to read to the House the general principle, which was set out very conveniently in a judgment of the last century, which was applied in those days to these cases. It says: 511The principles upon which these cases are founded is a universal one that the public convenience is to be preferred to private interests.The House will observe that that is from a judgment of the 19th century and not from an Election manifesto of the 20th. It said:… the public convenience is to be preferred to private interests and that communications which the interests of society require to be unfettered may freely be made by persons acting honestly without actual malice. The court must adapt the law to the necessary conditions of society and must from time to time imply as best it can what it thinks is the good sense of rules which exist to cases which have not been positively decided to come within it.That is exactly what the judges have failed to do in the last 60 years.
Therefore, the law is in a condition where we can get privileged reports on matters which were of public interest to the Victorian, but we can not get privileged reports of many bodies which are of the greatest public interest today but which only came into existence, or only achieved their importance, in the 20th century.
If the principle of adaptation laid down in that judgment had been carried out. I should not have had to trouble the House with Clause 6 of and the Schedules to the Bill. If they are passed into law, as I hope they will be, we shall now be able to get fair and accurate reports published without malice not merely on matters which were of interest to Victorians, such as meetings of the licensing benches and of local government bodies, but we shall be entitled to have all matters of 20th century interest published also.
At present, this can only be done at extreme peril to the editor concerned. We shall be able to publish matters of interest about the Milk Marketing Board, the Agricultural Wages Board and the other statutory boards and bodies which have come into being in the 20th century, including the United Nations organisation, international courts and the like.
I give another example of the effect upon our law of the stagnation which set in towards the close of the last century. It relates to the defence of truth. It has long been settled law in this country that a man who relies upon a defence of truth does not have to plead 512 or to prove every comma in the defamatory matter. He has to prove the sting or the gist of the libel to be true. That law also has been subjected to mutilation in modern times. It has lost a great deal of its meaning, but an attempt is made in Clause 4 to put that matter right.
What is said in Clause 4 is that if a person proves the truth of enough of his statements of a defamatory character, he will not fail in the action merely because he has not proved that everything of a defamatory character which he said was true, provided that the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges.
I could give a number of examples of that. If I wish to expose a man for running a swindling employment agency and I set out perhaps a dozen examples of his fraud, the fact that I am able to prove only 11 of them to the hilt will not necessarily mean that I lose the action. The jury may well come to the conclusion that the twelfth charge does not add materially to the injury to the man's reputation.
I do not want to talk out my own Bill, but I could cite examples, not of an hypothetical character, from now until the rising of the House of how this has affected newspapers which have undertaken the task of exposing rogues. It will be understood that the present law's finicky interpretation of this old defence of truth has a very dangerous effect in that it inhibits a good deal of public exposure of wrong-doing.
Clause 5 applies the same sound commonsense principle of substantial truth to fair comment.
I think I have shown to the House that the stagnation of the law has tended to suppress a great deal of desirable report and comment. It favours undeserving people very often in getting damages in these defamation cases. But, by contrast, the stagnation of the law also exposes honest men to the damage done by slander without leaving them any substantial remedy. Clause 2 deals with what are known as slanders actionable per se.
I do not want to go into over-elaborate and lengthy explanations. But shortly, 513 only a minority of slanders are actionable. Most of what is put out by ordinary wireless by the B.B.C. or its Television Service, if it were defamatory, would only be a slander. Clause 1 puts that right, and Clause 2 deals with slander which is actionable per se and of which the most common form is the case where the words defame by way of occupation or profession. These words have a special meaning to lawyers, and I will give one or two examples to show how the law stands at the moment.
If we say of a journalist to a prospective employer that he is never sober, as long as we do not add that that obviously does not help him to be a good journalist, we can be immune from an action for slander unless he can prove actual cash loss, which is rarely the case. We can, under the present law, say of a solicitor to his client that he is a pimp, because, apparently, the law does not regard that other occupation as being derogatory to the primary occupation which the man is following. I could treat the House to a whole series of judgments in this matter, but we are here not concerned so much with the detail on that point.
§ Mr. Leslie Hale (Oldham, West)
One cannot say, however, that a solicitor is a "daffy-down-dilly" because that has been held to be actionable.
§ Mr. Lever
I would not say that of my hon. Friend with impunity, and I hope that, when this House has dealt with the law of slander, he will not have the other epithet applied to him either.
According to judicial decision, to say of a solicitor that he is a pimp is not to slander the man as a solicitor, but to slander the solicitor as a man. This Clause should also be welcome to innocent people, because it puts an end to that logic-chopping which has been going on for so long. If the Clause is passed into law, if you slander a man in a way that is naturally calculated to injure him in his job you will have to face the consequences, which is what most morally-minded and right-thinking persons would desire.
Now I pass to Clause 3, which deals with unintentional defamation. This Clause is of considerable public importance, because it is intended to protect that kind of defamation published without intention of negligence and without 514 malice. The words "unintentional defamation" are not to be construed as they might be construed by non-lawyers; they are very strictly defined in this Bill. The Clause does not apply to slips of the pen or accidental errors of transmission. If one attacks a man, honestly thinking that one is justified in calling him a rogue, and it then turns out that "reliable" information was mistaken, the Clause will not affect the present law at all. In this connection, I cannot do better than read from Paragraph 60 of the Porter Report:The types of defamatory statement … fall into two classes:—(1) statements not intended to refer to the plaintiff at all, for example, statements intended to refer to a fictitious character, but in fact defamatory of an existing person:Example: 'There is Artemus Jones with a woman who is not his wife, who must be, you know—the other thing.'where Artemus Jones is intended to be a fictitious character, but is, in fact, the name of a real person.Then, there are—… statements truthfully made of an existing person but, in fact, defamatory of another person:—Example: 'Harold Newstead, 30-year old Camberwell man, who was gaoled for nine months, liked having two wives at a time.'where there are two persons named Harold Newstead living at Camberwell, one of whom, not the plaintiff, was convicted of bigamy.It is fairly obvious that if one refers to John Smith or Jack Jones, another man of that name will appear in court, and it is most extraordinary how witnesses will be found to insist that they identified the man referred to in the newspaper as the plaintiff. I can quote one instance of a case in which counsel have asked witnesses for the plaintiff, in the course of cross-examination, "Did you really think that this referred to the plaintiff?" and the witness has replied "Yes."
Then, the question would be asked, "But did you not read a newspaper report that the man had gone to gaol for 12 months, and, in that case, how did you come to think that he was there?" After thinking for a moment, the witness would reply: "I thought he was out on bail." There, you get the extraordinary case of a man having been sent to gaol and that is the defamation complained of, and yet witnesses are 515 called in court to say that they saw the man in question freely walking about.
Finally, there is the difficult class of case regarding statements referring to an existing person which are not on the face of it defamatory, but only because of some other circumstances not known to the publisher. To quote an example from the Report:The caption under a newspaper photograph might refer to 'Mr. M. C., the racehorse owner, and Miss X., whose engagement has been announced'; where Mr. M. C., who himself gave the information to the newspaper, is, in fact, already married to Mrs. C., plaintiff in the action.If a newspaper publishes this report concerning somebody thought to be man and wife, somebody else turns up and says "I am that man's wife, and this report implies that I am a concubine, and I claim damages." I assure the House that this class of unintentional defamation case is extremely dangerous as the law at present stands.
I have no hesitation in saying to the House that I do not believe that the amendment made by the Clause dealing with this matter will cause injustice to a single person, because the full remedy of correction and apology will be available to them, which is the remedy which most honest people require in cases of that kind. That is what the honest man needs most in these cases—the remedy of correction and apology. That remedy is not weakened by the Bill because, in future, for the first time, the aggrieved person will, in practice, have the apology and correction supervised by a High Court judge.
The House may ask what are the arguments to justify retention of the present law, and I would urge that even in theory it cannot be morally justifiable to penalise writers who have done nothing negligent in cases in which no amount of care could have saved them from committing the libel. That is not only not to be defended in theory, but much less in practice. The present law provides an opportunity for a whole lot of unscrupulous people to bring actions without any real intention of vindicating any character supposed to be injured, but merely for the purpose of extorting money damages.
There may be more eloquent speakers who will follow me in this debate and 516 who will impress upon the House that, in some hypothetical cases, people will be gravely injured by unintentional defamation. This law has been in existence for about half a century, or at least 40 years. I am not aware of one grave case of unintentional defamation. The Artemus Jones case was not a case of genuinely unintentional defamation. Artemus Jones always maintained that it was a case of negligence or a deliberate attack upon him. I saw a letter from his widow, in the "Manchester Guardian" the other day, which bears this out.
I know of not one single case of genuine unintentional defamation where the party claiming to be injured would not be adequately compensated by this method, and I believe that in cases of this kind, the law, in protecting against dangers which are largely unreal, has brought into being a mischief which is wholly real—that of blackmail and extortion. It is quite time we dealt with the matter.
I have covered the main changes proposed in the law by this Bill. I do not say that the Porter Report is sacrosanct, and still less that the Bill before the House is sacrosanct. I have every sympathy for Members who wish to have additional safeguards, and if they can think of them I am sure that the House will not be slow to act in that direction. But the law calls for reform, and that the matter ought to be considered in the Committee of this House I respectfully submit is proved by the opinion of almost every person entitled to speak with authority on this subject.
Most of our text-book writers complain of the law, and one of them has said that libel proceedings represent more a lottery than legal proceedings. I cannot do better than quote the very blunt words of Sir Valentine Holmes, a man entitled to speak with very great authority in this matter. In 1939, he wrote:To anyone who has a fair practice in this branch of the law, the present law is an outrage. Every day I have to advise clients who have an obvious grievance that they have no remedy whereas I advise clients who have not suffered a pennyworth of harm that they are certain to secure large damages. Moreover, I constantly have to advise clients to pay considerable sums in settlement to persons whose reputation is not worth a farthing because of the absurdity of the rules as to mitigating damages.517 Nobody is called upon to have his own view overborne by that of even Sir Valentine Holmes, but when we have leading lawyers expressing opinions about our law of defamation in language of that kind I would respectfully submit that this is a matter which calls for urgent consideration by us.
This question is not only a legal question. Admittedly, we are in need of legal guidance upon it, and I think there are lawyers in the House. I have never heard any undue complaint either as to the fewness of their numbers or their taciturnity. I think we have all the legal guidance we need. Behind all that lies the great moral and social judgment which has to be made on the law of defamation; and the heart of the matter is that this House has to keep the balance true and fair between the public right to be informed and the individual's right to have his reputation protected. I believe that there is no more important branch of our law on which the collective wisdom of this House should be brought to play or on which men of sense ought to bring their minds to bear at the present time.
Perhaps I could let the matter rest there, but in view of some of the things said in the newspapers I think I ought to say a few words about another matter which I am told is agitating the minds of many inside and outside this House. It is said that the newspaper Press are to be the great beneficiaries of this Bill, and that as the newspapers have not yet set up a Press Council, as recommended by the Royal Commission on the Press, the House ought either to delay or refuse the passage of this Bill into law. I am sure that nobody of any responsibility in this House is going to urge that sort of argument upon us.
In the first place, I deny that the newspapers are the main beneficiaries of this Bill, because, if an unjust law is remedied or amended which one of us is not a beneficiary? It is ludicrous to suggest that the law of defamation affects only a few newspaper proprietors. It affects everyone who puts pen to paper—journalists novelists, publishers, politicians, private people, and all public and private speech. It affects the giant newspaper combine and the small local newspaper. Every organisation entitled to speak for the working journalist and other writers has 518 told me that it thinks this House should give favourable consideration to this Bill. The National Union of Journalists, whose words, I know, will carry a great deal of weight on this side of the House, are anxious that this nightmare to their members of our present libel laws should be removed.
To conclude this matter I ought also to say one or two things about the question of the Press Council. I hope that by removing the genuine sense of grievance in the minds of the Press this Bill will act as a spur to them to follow out the conclusions of the Royal Commission which were largely welcomed on all sides of the House, including the setting up of a Press Council. But it is not the frivolous or irresponsible section of the Press which will specially benefit by this Bill; it is not they who are oppressed most harshly by the existing law.
It has to be made perfectly plain that this reform of the law is put forward upon its merits and not in order that it may have some secondary effect on the Press not referred to in the law of libel. From what has been said in some quarters one might think it would benefit the frivolous section of the Press, and that it would be specially to the delight of Lord Beaverbrook and Lord Kemsley, as one hon. Member put it earlier outside this House, perhaps without thinking.
This Bill has been welcomed in every serious newspaper in the country. The "Manchester Guardian" and "The Times" have given more space to it than all the popular newspapers put together, and that fact, I think, should be evidence to the critics of the Bill that our most responsible newspapers are anxious about the present law of defamation. It is not to be supposed that the editors of the "The Times" and the "Manchester Guardian" are merely waiting for the passage of this Bill in order to pour out a flood of defamation on the public.
Finally, I think I ought to say that the freedom of the Press calls for no apology in this country, and I am sure the House will agree that the legitimate freedom of the Press ought to be extended whenever an unjust law oppresses it. I would make my own position unmistakably plain. If the law of libel is just, I would not seek to alter one syllable of it, even if the Press set up 10 councils. Not one word 519 would be changed so far as I am concerned in consideration of some things indirectly done by the newspaper Press. That is, if it is a just law.
But if it an unjust law, and if it penalises the fair reporting of news, the obstructive casting of light in dark places for the protection of the public, and if it places unjust hazards in the path of anyone occupying the role of writer, novelist, journalist or scholar, or if it encourages the malice of the blackmailer, slanderer, and fraud, if, in short, our law of defamation has become a playground for lawyers and a pest to honest men, then I support the reform of that law and am happy to play some modest part in bringing it about.
§ 11.38 a.m.
§ Mr. Leslie Hale (Oldham, West)
I beg to second the Motion.
My hon. Friend the Member for Cheetham (Mr. N. H. Lever) has done the House a service in taking the very sensible view that when one wins a large prize in a lottery which is illegal one should use it in the public interest to try to get reforms long overdue. I was particularly glad that he made a reference in his opening remarks to Sir Alan Herbert, because, quite apart from Sir Alan's efforts in securing the appointment of the Porter Committee, he wrote some very learned books upon the law which he modestly called "Misleading Cases." Indeed, it was in this particular field of the law that we find that great creation of his, Mr. Albert Haddock, that monument of liberty, winning some of his most stupendous victories.
If there were any question of the need for some reform of the law we could look at once to the Porter Report. The Porter Committee was exceptionally strong. It had upon it some of the outstanding names in connection with this branch of the law, and it summarised the evidence in paragraph 7 of the Report something like this:The evidence is to the effect that the law, in practice, is unnecessarily complicated, unduly costly, difficult to forecast the result, liable to stifle discussion, too severe upon an innocent offender and too favourable to a gold-digging plaintiff.It would not be easy to find much more to say to its detriment about this branch 520 of the law than that. Indeed, the Porter Committee in paragraph 8, in what I regard as perhaps the most classic example I have seen recently of litotes, gave the answer in this way:Any action in the High Court may well seem complicated; it is seldom inexpensive; and, to a party who before the trial appreciates only one side of the case, the result may often seem unduly difficult to predict.Any unsuccessful litigant with a talent for slang would say, "You've said it, bo!"
The arguments in favour of the amendments which my hon. Friend the Member for Cheetham is proposing are put with great ability and dispassionately in the Porter Report and anyone who has studied the Report would approve of this Bill. It is not true to say that these reforms are on one side only. Clause 2, with regard to slander, introduces a very important amendment of the law in favour of protecting reputations. My hon. Friend has given the classic instances of this. It is quite true that nobody can advise on actionable slander.
There is no such thing as a defamatory statement. Any statement in certain circumstances can be defamatory and no one can advise with any certainty on this. It has been said that to call a school-mistress a prostitute does not reflect on her in the way of business, but if it were suggested that she exercised that ancient profession on premises belonging to the local education authority I suspect that that possibly might be actionable.
If, historically speaking, we go back and seek a fairly classic statement; when a noble Lord said to John Wilkes that he would die either of the pox or on the gallows I venture the opinion that neither statement was actionable because they were merely an expression of opinion about a future condition and do not necessarily imply anything about the present. When John Wilkes replied that that would depend on whether he, Wilkes, embraced his Lordship's principles or his mistress I do not think it would have been actionable by the peer, but I think it would have been actionable by the lady. It involves us in a good deal of research and in a good deal of difficulty in trying to solve these problems.
My hon. Friend referred to the classic case of Cassidy v. the "Daily Mirror," when the mere statement that people were to be married, on the absolute authority 521 at the time of the intended bridegroom, were held to be defamatory and actionable by somebody else. I think this is really very important. It is rather remarkable, and not a bad instance of our democracy, that we should be defending the rights of the Press at this moment when some of the Press have not been unduly kind to some of us on this side some of the time.
What is the remedy? The lady suffered some damage. In the Cassidy case people whispered at tea parties about whether Mrs. Cassidy was married at all. The remedy is the immediate publication of a statement in the paper, which will be done under this Bill, and in any case of argument the statement would be drafted by the court under a perfectly simple procedure. It seems to me that the Porter Committee suggested an admirable remedy which is admirably put in this Bill.
There is, of course, one other difficulty that practitioners in libel and slander have to face and that is that observations which are defamatory at one stage of our civilisation cease to be defamatory at another. That highly reputable newspaper, the "Manchester Guardian," which I greatly admire, occasionally uses the term "pacifist" as a term of contempt and of opprobium, although there was a time in its history when it treated pacifists with great respect.
Coming to the field of Sunday newspapers, to suggest that a newspaper was obscene was at one time regarded as defamatory. Now we have reached the stage when a newspaper may regard such a suggestion as a compliment. Possibly a libel might arise if one newspaper advertised itself as the most obscene in the country and another newspaper sued it for damages because it claims to be more obscene. Under the White v. Mellin Rule, however, I think the court would properly decide this was "a mere puff."
My hon. Friend, with a perspicacity and discernment rarely to be found on the back benches—and, in my experience, never on the Front Benches, has so drafted the title of the Bill that it appears susceptible of almost any amendment affecting the law of libel and slander. Therefore, in Committee people who might feel that some of the provisions in the law might be extended or limited will 522 have ample opportunity if the House gives the Bill a Second Reading today. Incidentally, I myself have some small doubt about Clause 11, to which I will refer later.
While I am on that point, there were certain matters which the Porter Committee decided, on the whole, not to deal with. On balance, they decided that the evils of an alteration of the law might outweigh the good. I must confess that on the question of libel there was one matter of which I had great hopes and that was the question of libel on the dead. I had hopes of seeing the courts occupied in these dull times in hearing an action brought by the Shakespearians against the Baconians for libel on the late Mr. Shakespeare in the matter of the authorship of the plays. Personally, I should be most happy to engage in the action.
I come now to group libel which can, of course, be quite a serious matter. In the "News Chronicle" today A. J. Cummings, who ought to know better, refers to "the Bevan Group and its fellow-travellers." Fellow-travellers was once a word of joy and brought visions of hospitality and mine host at the end of the journey preparing that liberal refreshment to which my hon. and learned Friend the Member for Hornchurch (Mr. Bing) referred in that erudite book which he recently issued, "Pro Bono Publicouso."
But this is the sort of smear campaign which started with McCarthyism in America. It can be a serious matter and I am sure that journalists themselves will somehow decide to put their house in order and establish the high standard that 99 per cent. maintain and live up to now and try to establish a professional status and professional standard of ethics. However, the Porter Committee did not deal with this matter and it is not in the Bill.
I speak in some difficulty on the question of fair comment, because I have to declare to the House that I have an interest at the moment as I am waiting a deferred decision of their Lordships on this point and it would be most improper of me to say anything indirectly or directly concerning it. However, all the books agree and it is well to remember that the defence of fair comment 523 is not an ingenious legal device which has grown up on the law of libel. The defence of fair comment is a fundamental part of our liberties and the protection of the defence of fair comment is perhaps the most vital thing of all.
People should not be inhibited in their criticism. They should be able to say fairly what they honestly think. The defence of fair comment was so designed and the amendment now proposed helps very greatly to make that defence more substantial and more effective and to rob it of some of its minor terrors in the past.
As I said, I have a little doubt about Clause 11, which refers to the question of evidence in mitigation. The House will remember that under the present rule evidence can be given in mitigation with regard to the plaintiff's general reputation. If one can get people to say that he has a bad reputation or something like that one can put them in the box. But no one will go into the box who has seen anyone cross-examined on such evidence. They are peculiarly vulnerable. I do not think that anyone has ever gone into the box and given such evidence without wishing that he had never entered the place.
The law is in an unsatisfactory state because there cannot be much more undesirable evidence than general, widely phrased evidence of reputation. Much better, said the Porter Committee, to be able to give specific evidence. With that, I respectfully agree, but I still say that there must be limits put upon that right. I still think that one should not be able to cull out of the remote past specific examples of acts that have been forgotten or, indeed, of convictions that have been forgotten a long time ago.
Therefore, I hope that in Committee we shall be able to devise a means of seeing that the only evidence to be given in mitigation is evidence of specific acts of the plaintiffs of which notice has been given, as the Porter Committee recommended, and evidence which the court thinks is material and proper to be given in the circumstances. Subject to that, I have referred to the main and general aspects of this exceedingly important Measure.
There is one point only to which my hon. Friend had not time to refer. It 524 concerns Clause 8, which provides an exceedingly sensible and useful amendment of the law. If I write a letter to a newspaper saying something which, on the face of it, appears to be innocent, but which I know is defamatory of the person of whom I write it, and that is published by the newspaper, under the present law if a writ is issued against me and against the editor of the paper, and it can be proved that I was actuated by malice, quite unknown by the editor, he becomes responsible for my malice.
That is so obviously unfair that there was never any hesitation about the need for amending that doctrine. This Clause makes that amendment and allows each of two alleged joint malfeasors to be dealt with separately on that issue.
That is all I wish to say. I am greatly indebted to my hon. Friend for the opportunity of supporting this useful Measure, which will be welcome to the legal profession in particular, not because it makes litigation but because is clarifies and improves the law. My hon. Friend has already made the point that nothing is really more vital to the community as a whole than that our courts as a whole should enjoy the respect of the community.
Nothing is more vital to the community than that, without having rigid laws, we should have laws which are capable of being reasonably understood and which are capable of being reasonably enforced; and that persons who desire to assert their rights in the courts should have some reasonable certainty or reasonable knowledge of how to assert their rights and what those rights are. This Bill helps in that, and it is with great pleasure that I support the Motion for its Second Reading and commend it to the House.
§ 11.54 a.m.
§ Mr. S. Storey (Stretford)
Before I proceed to congratulate the hon. Member for Cheetham (Mr. N. H. Lever) on the way he has used his opportunity to promote this Bill, I should disclose the fact that, as chairman of a company controlling a group of newspapers, I have a personal interest in the Bill apart from the common interest that we all have as politicians. I congratulate the hon. Member on having used his opportunity to bring forward legislation on a matter that 525 has long called for reform and for which reform there is a sound foundation.
I envy the hon. Gentleman because many years ago—before 1938—when I drew a lowly place in the ballot for Private Members' Bills, I ventured to introduce a Bill to amend the law of libel. There was then no sound foundation for such a Bill, and it was very clear to me before long that, if my Bill had reached its Second Reading, it would have had a very rough passage.
While I make no claim to speak on behalf of other newspapers, I know I am voicing the feeling of provincial newspapers when I say that we welcome this Bill as a step in the right direction, though as regards its provisions relating to unintentional defamation and as regards the proceedings included in the Schedule we feel that there may be grounds for amendment. These are, however, matters for the Committee stage and they do not vitiate the fact that newspapers up and down the country are glad that an attempt is being made to make the law of defamation less complicated, less costly, less unpredictable in its results and less liable to stifle discussion on matters of public interest.
There are two features of the Bill which I regret, and here I must make it clear that I am voicing a purely personal opinion. My first regret is that the Bill does nothing to carry into effect the Porter Committee's recommendation that the Court of Appeal should be given wider discretion to vary the amount of damages awarded by the jury. I may be prejudiced in this because I have a clear recollection of one of my newspapers suffering very severely through a jury awarding damages which were out of all proportion to the real damage caused to the plaintiff, though they were not so excessive that under the practice of the court as it now is they would have been varied. I do not know on what grounds this recommendation has not been incorporated.
§ Mr. N. H. Lever
It might have assisted the hon. Member if I had mentioned that point. The provision is not one with which I and those supporting me are out of sympathy, but after consideration it was thought to be a little difficult to defend a principle which must necessarily be of general application, if it is justified 526 at all, to all jury verdicts for damages. It would have been a little difficult for us to come to the House and justify giving to the law of defamation the selective benefit of this improvement. For that reason, and not because we were out of sympathy with such a step, it was left out of the Bill.
§ Mr. Storey
I am glad the hon. Member has given that explanation. I thought that the recommendation of the Porter Committee should have been carried out and that the Court of Appeal should have been given wider discretion to vary damages.
My second regret is that the Bill does not remove whatever doubt there may be about the validity of an agreement to indemnify a person against civil liability for libel. I would prefer it to be made illegal to insure against libel. Insurance against libel encourages the staff of a newspaper to be less careful in avoiding claims for libel. What is much worse, insurance sometimes tends to cause a settlement of claims which, in the public interest, should be defended.
I remember an instance some years ago when local councillors were sued by a common informer for penalties for having sat and voted before they had made a return of their election expenses. The Councillors appealed to the court for relief, and in granting relief the court made some very serious strictures upon the clerk of the council for not having advised the councillors of the consequences which they were incurring. My paper and the other local morning paper both commented severely upon the matter and the clerk issued writs against both papers. The other paper was insured and the insurance company insisted upon a settlement of the claim. My paper was not insured and we decided to defend the case.
To cut a long story short, we were able to put into the box the common informer, who gave evidence that he had been bribed by the clerk to sue the councillors for penalties. If we had been insured, we might have been in the same position as the paper which was insured and we might not have been able to fight the case; and the result would have been that the action of the clerk would not have been exposed to the public, as it ought to have been exposed.
§ Mr. Emrys Hughes (South Ayrshire)
Can the hon. Gentleman give me some information? My trouble as an editor was that I could not find any insurance company to insure me. Can he give me information about avenues through which I could make the necessary approach?
§ Mr. Storey
I have no doubt that the hon. Gentleman will find it extremely difficult to get somebody to insure him. As I have said, I do not believe in being insured in this way, and I have no intention whatever of seeking an avenue through which I could be insured. If, in the instance I have given, we had been insured, then probably the clerk's conduct would have remained unexposed. I believe that nothing should be done which would transfer the onus of deciding whether a case should be fought to those whose only interest is to settle the matter as cheaply as possible.
With those exceptions, and perhaps a feeling that the arguments of the Porter Committee against the assimilation of the laws of libel and slander are not altogether convincing, I welcome the Bill, and I hope the hon. Member will be able to carry it, perhaps with Amendments, on to the Statute Book.
§ 12.2 p.m.
§ Mr. Geoffrey de Freitas (Lincoln)
I am glad that the hon. Member for Stretford (Mr. Storey), who has declared his interest, has given me an opportunity to deal with a point on which comment has been made elsewhere—the fact that very much of the evidence before the Porter Committee was from organisations such as the Publishers' Association of Great Britain and Ireland, the National Federation of Retail Newsagents, the Institute of Journalists, and so on.
It has been pointed out that it was evidence coming from only one side. People forget the obvious fact that from the nature of things there cannot be a "National Union of Persons about to be Defamed." Evidence could not be given, as it were, from the potential plaintiff's point of view. That may seem elementary, but it is surprising how many people interested in these matters have wondered, from looking at the list of witnesses before the Porter Committee, why the Committee heard one-sided evidence.
528 I came to the House today strongly opposed to Clause 11, and I am delighted to find that the hon. Member for Oldham, West (Mr. Hale), who seconded the Motion, himself has some doubts about it. We should recognise right away that Section 11 could be a monstrous provision if it were introduced into law. I will not read the evidence now, for it has been referred to repeatedly, but I recommend hon. Members to read the evidence and the discussions of the Committee on the rule of Scott v. Sampson.
As Clause 11 stands at the moment, if a paper maliciously attacked a man and accused him, quite falsely, of being a black marketeer, then in mitigation of the damages for this monstrous and malicious libel, which they perpetrated knowing it to be false, they could bring evidence that 30 years before the man had run away with his brother's wife. I was glad to hear the hon. Member who seconded the Motion hint that he was willing to consider an Amendment to this Clause when we are in Committee.
§ Mr. Hylton-Foster (York)
I suppose it is true, and I speak as one not out of sympathy with the possible criticism of Clause 11, but this horrible slanderer would do it at his peril. If the plaintiff had an advocate of the competence of the former Law Officers appearing for him, he would put the price of his libel up a good deal if he did anything of the sort which the hon. Member suggests.
§ Mr. de Freitas
I am sure the hon. and learned Member has studied Clause 11. As I understand it, it is not a question of making an allegation which is unsubstantiated. Supposing this man had in fact run away with his brother's wife 30 years before; that would be used in mitigation of damages.
§ Mr. Hylton-Foster
But if it failed in mitigation, it would put the price up. I do not want to interrupt the hon. Gentleman any further, but I would point out that no doubt they would be entitled to introduce such evidence in the case, but they would do it at their peril in price.
§ Mr. de Freitas
The Clause itself makes such evidence relevant in mitigation of damages. I do not want to go too far because, although this was my main and very burning point of objection to the Bill, I have seen from the 529 signs today that the hon. Member who seconded the Motion is himself not too convinced that this is the right and proper course.
I hope, too, that in the consideration of the Bill before we reach the Committee stage he and his hon. Friend will look at the Schedule. As I understand it, it is proposed in Part I of the Schedule that a fair and accurate report of a public inquiry in a foreign country shall be absolutely privileged but not that of a foreign court. That seems strange, and there are other similar points. Under Part II, why should not a fair and accurate report of a broadcast speech be privileged, too?
Apart from the last part of the Bill, we should all recognise the enormous improvement which the Bill will make in our law by means of Clauses 1 and 2, which remove anomalies existing at present. As I have said, we should consider these small points in the Schedule which I have indicated. The long Title of the Bill is widely drawn and I think it might help if the two hon. Members who moved and seconded the Motion would themselves consider the Amendments suggested. I hope they will do so. There are many hon. Members who wish to speak and I will conclude, therefore, by commending the Bill to the House. I hope it will be read a Second time and improved in Committee.
§ 12.8 p.m.
§ Mr. F. P. Bishop (Harrow, Central)
I shall not detain the House long, but I should like to add my word of support to the Bill and of congratulation to the hon. Member for Cheetham (Mr. N. H. Lever) for having made such good use of his good fortune in the Ballot.
I also approach the matter from the point of view of a newspaper man, although I regret to say, unlike my hon. Friend the Member for Stretford (Mr. Storey), that I am not a newspaper proprietor. My interest is not at all of a financial kind. There are two points which have been mentioned about the newspaper interest in this matter on which I should like to say a few words. I was very glad that the hon. Member for Cheetham emphasised the fact that the interest which newspapers have in this Bill applies to all newspapers as such and 530 not simply to those which, as hon. Members know, are very few but rather prominent and which take risks in these matters of libel.
For example, one case was mentioned—the case of Cassidy against the "Daily Mirror," a spectacular case; but I would point out that precisely the same case could have arisen in the Court page of "The Times," where notices of engagements are published day by day. It is within my personal experience that efforts have been made to victimise "The Times" itself by making it a channel for malicious attacks upon individuals, of which, of course, neither the editor nor the management of the paper itself could have any knowledge. It is a matter of great importance to the Press as a whole that that kind of defamation, into which they may be led, should not be the means of imposing penal damages upon them so long as the requirement of a correction and an apology is maintained, as it is maintained in this Bill.
So far as newspapers are concerned, I am glad to say that conditions have changed very much for the better since pre-war days, when Sir Alan Herbert presented his Bill to the House. In the 1930's, all newspapers were being subjected to something like an organised campaign of libel actions. I know that even here and even in the present state of the law, I must be very careful what epithets I use about solicitors, but I think it is common knowledge that there were some solicitors in those days who stimulated this kind of action.
For a variety of reasons, no doubt, the "gold-digging" plaintiff, as he was called, seems now to have disappeared. Both his disappearance and the reasons for it might prove to be temporary, and we want to see that type of plaintiff abolished permanently. If I may direct one remark not to, but at, the Attorney-General, I suggest that we should like to see the "gold-digging" plaintiff go the way of the common informer. If a Private Member's Bill is the means of bringing that about, I think it justifies the procedure of the House very much indeed.
While the law remains in its present condition, the threat to the Press still remains. The true nature of the threat is best described in the words of "The 531 Times" in a leading article the other day. "The Times" describes the threat in these words:… the writer's or editor's hand may be paralysed by the fear of falling foul of some mere technicality of the law; and that in consequence facts or arguments that ought for the public welfare to be known may be muffled or concealed.I think that is the true essence of the matter. It is not a question of giving writers or publishers some additional advantage, privilege or license to attack other people; it is fundamentally a question of bringing about a better balance between private and public rights; between the right of a private individual to defend and protect his reputation and the right of the public, on the other hand, to have full, free and adequate discussion of all matters that are of public concern. From that point of view, it seems to me that the most important Clause in this Bill is that which extends the protection of qualified privilege to a much larger range of public occasions and public events with which the Press has to deal.
I do not propose to enter into that aspect of the matter, but I should like to mention one group which has not been mentioned and which I am very glad to see in the Schedule, namely, reports of company meetings. They have always been a tricky subject for the newspapers, because sometimes the chairman's speech on those occasions is followed by a fairly lively discussion in which shareholders, no doubt enjoying privilege on the occasion of the meeting itself, say some fairly bright things about the board of directors.
The public, of course, cannot have an adequate report of that proceeding unless the remarks of the shareholders are at least summarised and given in addition to the carefully prepared report of the chairman. Some newspapers have always insisted upon doing that, even though they have known the risks they ran in doing it; but it is right, I think, that the law should give to newspapers adequate protection in discharging that duty, which is a duty they owe to the public. That is, of course, a principle which applies not only to company meetings but to the whole range of public proceedings referred to in the Schedule.
532 Next in importance from the point of view of the Press I would put the Clause which amends the law relating to the defence of justification. It is right that truth should prevail and it must be wrong that substantial truth in a matter of this sort should be defeated, as it can be defeated now, by a very minor inaccuracy in some detail of the statement.
I should say that the least important Clause from the point of view of the newspapers in relation to the new defences given in this Bill is probably the one that is likely to attract most public attention. That is Clause 3, which deals with unintentional defamation. We know about the case of Hulton v. Jones and those other spectacular cases; but I think that from a newspaper's point of view those are rather exceptional and rare cases. I suppose that in 90 per cent. of the cases where a newspaper is sued for libel there is, at the back of it, some inaccuracy or mistake of some kind, though it may often be a very small one indeed. It is probably something which may be sufficient to prevent the newspaper pleading that there was a complete absence of negligence in the matter.
One could give many examples of that kind of case, but I do not want to detain the House. But it does seem to me that the fact that very small mistakes, leading to no really serious damage to a person's reputation, can nevertheless be the subject of an action for damages, does make the question of damages rather more important in this matter than would appear from what has been said in the debate hitherto.
The hon. Member for Cheetham has explained why the recommendation of the Committee on the subject was not included in the Bill. Personally, I regret that, because I think it is important to remember the extraordinary powers that juries have in these cases. They have powers which no judge possesses in a criminal court. They are able to impose penal damages, that is to say, damages which are determined not by a desire to restore any loss that the plaintiff may have suffered but by a deliberate intention to punish the defendant for what he has done, and, unlike a criminal court, there is absolutely no limit to the fine that a jury may impose upon a defendant if it 533 is displeased with him and his appearance in the court. I think that should be amended, and I cannot think of any better way of doing it than to give the Court of Appeal the right to review the damages in these cases without it being necessary to have to go to the extreme length of a re-trial of the action.
I think this is a very good Bill. I do not think it is a perfect Bill. I think there are things that will need to be done in the Committee stage. If I may say one other thing as a newspaper man of some experience, I would say that I share the anxiety that has been expressed about Clause 11 and the apparently very wide powers which it might give to a defendant to rake up things out of the past of an individual who is bringing an action against him.
I do not think it is as bad as it looks, because, as has been rightly suggested, any attempt to do that in an unreasonable way would have an effect upon the mind of the court and the jury, which obviously would defeat its purpose. If that is not so, then perhaps the Clause is even more dangerous than I thought; but I do say that it is one that needs to be carefully studied in Committee. There are others, but, broadly speaking, I feel that this is a good Bill, that it is one that is long overdue, and that it meets a long-felt want. I hope that the House will give it a Second Reading.
§ 12.20 p.m.
§ Sir Lynn Ungoed-Thomas (Leicester, North-East)
Although I rise from this Opposition Front Bench, I am not putting forward an official view at all in this debate. I am merely speaking for myself personally, and, of course, as far as this side is concerned—I am sure, so far as the other side is concerned, too—this is a matter which is entirely left to the discretion of individual Members.
I am very grateful to my hon. Friend the Member for Cheetham (Mr. N. H. Lever), who moved the Motion, and to my hon. Friend the Member for Oldham, West (Mr. Hale), who supported it, for the clear and very fair way, if I may say so with respect, in which they put forward their case. I am not so enthusiastically in favour of this Bill as they are. I think there are several provisions in it which are most beneficial; 534 I think there are others to which there are serious objections; and I think there are omissions—omissions of matters which are mentioned in the Porter Committee's report which are of considerable assistance to plaintiffs in general and which, I trust, it will be possible to introduce into this Bill if, as I hope, it goes to the Committee stage.
Hon. Members will have gathered already that I am rather concerned with the separate provisions in the Bill—I consider it would be wrong to oppose the Bill on Second Reading, but that I trust substantial Amendments will be made to the Bill at the Committee stage. My hon. Friend the Member for Lincoln (Mr. de Freitas) referred to one of the difficulties which faced the Porter Committee and which, indeed, face this House. It is the difficulty that, on a Bill of this kind, the evidence is inevitably so much weighted in favour of the defendant.
One merely has to glance round this House at this moment. It is inevitable that those who should take the principal interest in a Bill of this kind are those whose daily life is involved in writing and publication of one kind or another; and, therefore, unless hon. Members are most conscientious in considering the interests of plaintiffs, in a Bill of this kind there is a real danger that it will be weighted too heavily in favour of the defendant.
Therefore, I hope that the House will bear with me if I concentrate my remarks upon those aspects of this Bill which bother me in the interests of the plaintiff. That does not mean that I do not fully recognise the advantages which the Bill brings under certain Clauses, to which I do not intend to refer at all.
There is a great deal of talk, of course, about the freedom of the. Press—the importance—and I agree—of having freedom of the Press; but we must also bear in mind the power the Press, and it is true to say that it requires as much courage for a politician to stand up to the Press in this century as it did for a politician to stand up to the Executive in the eighteenth century, and there is nobody—no politician in the House—who would not find it easier to attack a Lord of the Cabinet than to attack a Lord of the Press.
535 I do not want to develop this line of argument unduly. The Press has, of course, great public responsibilities. It has been referred to as an additional Estate. It has been attacked, and never more fully attacked, under extreme provocation, than by a Conservative Prime Minister when he referred to certain sections of the Press as "having power without responsibility." I shall not follow that quotation further. It is quite well known to all hon. Members. I merely say I shall leave that privilege of abuse, which appears to be inherited among Conservative Prime Ministers.
What is the Press problem? It is important to consider this in connection with this Bill of defamation. The Press problem is to reconcile profit-making with social responsibility, business interests with professional standards, the business of a newspaper proprietor with the professional code of the journalist. I do wish to work out this connection and its effect upon the law of defamation. Rather than use my own words on this let me refer to some passages in the Report of the Royal Commission on the Press. Referring to the effect of industrial development on the Press it says in page 164, paragraph 616:To the extent that it has given added importance to the commercial aspects of newspaper production, it has tended to divert the attention of newspapers to ends other than those to which the interests of society require them to attend. The problem is to limit this divergence of interest, to reconcile the claims of society and the claims of commerce.In paragraph 563, referring to sensationalism in the Press, it says:Triviality and sensationalism have other roots; we attribute them mainly to the competition for mass circulation. A newspaper is normally dependent not merely for profit but for existence upon advertising revenue. The amount of its advertising revenue is governed, for a popular paper, almost entirely by the number of copies it can sell.and then, in paragraph 569:Indirectly, however, advertising—the fact that newspaper space is sold to people who want to address the largest possible public—has some responsibility because, as we pointed out above, the desire to attract the maximum amount of advertising revenue stimulates the competition for higher circulations"—and then we come to the connection with defamation—and the debasement of quality associated with it.536 In page 132, paragraph 489, it says:An aspect of this form of sensationalism which has attracted much attention is the intrusion on the privacy of individuals necessary to satisfy the appetite for intimate personal detail about the lives and affairs of people who are, perhaps quite accidentally, in the news.In paragraph 490 it says:The pain given to individuals is, however, only part of the evil of this practice. The greater evil lies in the degradation of public taste which results from the gratification of morbid curiosity, and in the debasement of the professional standards of the journalists who, whether willingly or otherwise, minister to it.Then it gives a particular instance which I shall not resuscitate at this stage and which, I hope, will be buried in oblivion. Here we have the chain and sequence of circumstances—the need or desire for advertising revenue, the necessity for large circulation, the quest for news thought likely to promote it, and involving, in certain cases, information.
What are the safeguards? The safeguards are the law of defamation and the other safeguard proposed by the Royal Commission in the Press Council. So it is impossible to say that the guarantee of proper professional standards which the Press Council would give is not intimately associated with the law of defamation and with the lowering of the safeguards which that law provides. The Porter Committee itself recommends, in paragraphs 26 and 78, an internal control by the Press to deal with these very problems of invasion of privacy and other matters affecting the law of defamation.
The Royal Commission made specific detailed proposals. In paragraph 575 it says:We cannot, however, accept the view that the Press is doing everything that it can reasonably be expected to do: some of the spokesmen of the Press who gave evidence appeared to us unduly complacent and deficient in the practice of self-criticism. Opportunity, we think, now lies open for collective action by the Press itself, and an obligation devolves upon the Press not to neglect that opportunity. Moreover, the Press's conception of its own function as expressed in evidence before us, and the high standards of public responsibility which it explicitly acknowledges, encourages us to expect that it will recognise and accept the part which it can thus play in developments which are vital to the future of democracy.So this additional Estate of the Realm, the Press, is not the exclusive concern of 537 Press proprietors. It is a matter which vitally affects the public of this country, and in paragraph 657 the Royal Commission says:The fact that the Press is virtually a part of the country's political machinery gives the community as a whole a peculiarly close interest in its independence and integrity",and for that reason goes on to make a specific recommendation with regard to the composition of the Press Council:The Council should not be large, though we visualise a minimum of 25 members—eight representing proprietors of newspapers, periodicals, and the principal news agencies, four editors, eight other journalists, four lay members, and the chairman.What is vital in that composition is that the proprietorship element should not dominate the Council. What is vital is that the professional element should dominate it, together with the lay outside element; that the proprietorship element which is of necessity—I am not complaining about it; it is the inevitable result of the present position—the element most susceptible to the pressure of commercialism, which results in sensationalism and, therefore, gives perhaps scope for defamation, should not be the element which should dominate the Press Council.
I appreciate that some of the Press strongly support this Bill, and it is very natural that they should do so. I will not enter into an argument with my hon. Friend the Member for Cheetham as to whether they are or are not the principal beneficiaries. They are certainly very substantial beneficiaries from the Bill. The Bill, taking it as a whole, is undoubtedly a defendants' Bill; it is a Bill whose main provisions benefit defendants, and, of course, it is welcomed by the Press.
The House is now asked to relax the law of defamation in favour of, among others, the Press, to lower a safeguard against sensationalism and invasion of citizens' privacy and reputation, at the very time when the recommendation made by the Royal Commission, by the Porter Report and by this House in favour of this additional safeguard has not been put into operation. Many hon. Members regret that the Bill should be introduced at this juncture for that reason. This situation may well lead to amendments which, in happier circumstances, could be avoided. That might well happen. I trust myself that the Press will accept the recommendation made by the Royal 538 Commission in favour of the Press Council, and that we shall soon have a council in which the professional interests and the citizens' interests are not subservient to proprietary interests.
§ Mr. N. H. Lever
Would my hon. and learned Friend assist me, and no doubt the House, by drawing attention to any Clause of the Bill which extends, or is likely to extend, the mischiefs upon which he has dilated at some length, with very great justification, quoting the Royal Commission on the Press? Would he draw my attention to one Clause of this Bill which enlarges the possibility of those risks?
§ Sir L. Ungoed-Thomas
I am just coming to the specific provisions of the Bill.
Clause 4, dealing with justification, is one provision, and the danger in Clause 11 is another; but I shall deal with these provisions. I am about to examine the Bill, not merely with reference to the Press, for I acknowledge the force of my hon. Friend's remarks, and that it is not merely the Press who are concerned with this Bill. I merely wanted to make the general point, and to bring it home as forcibly as I could, that there is an inter-relationship between the Press Council and the law of defamation, and that it is important to have the Press Council with a professional bias at the earliest possible moment.
The problem in the Bill is to reconcile the freedom of publicists with the freedom of their fellow citizens, freedom of speech with freedom from abuse; and I suggest, with all due respect, that the cardinal principles should be these. First, the truth of what is stated and fair comment on what is stated should be protected. These are over-riding principles, which to my mind are essential to maintain the freedom of the Press. Secondly, subject to those principles and those principles only, the citizen should be free in his honour and reputation.
I, personally, think that if those two principles and their inter-relationship are borne firmly in mind in dealing with the specific provisions of the Bill, a good deal of the difficulties into which one is apt to get involved really solve themselves. It is so very easy in the complicated law of defamation, with all its legal intricacies, to get led on by a 539 specious argument of detail of one kind or another into a position which is really contrary to the fundamental principles which, if one had them in mind, one would not allow to be over-borne in that way.
Clause 1, which, speaking loosely, makes broadcasts liable to libel, I thoroughly welcome. Clause 2 I welcome. Clause 3, dealing with professional defamation, which my hon. Friend the Member for Cheetham explained so fully, is an admirable Clause in principle, but I think he himself recognises that it will require substantial amendment in Committee.
Now I turn to Clause 4, which deals with justification. To my mind, this Clause is both dangerous and unnecessary. Perhaps I might read the Clause, for it is a very important Clause. It says:In an action for libel or slander in respect of words containing two or more distinct charges"—and those words "distinct charges" are important—against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved, if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges.In other words, the Clause contemplates separate charges. If there are separate charges, then there are separate libels, and then there are separate justifications. Therefore, if there is no justification for the charge, the plaintiff surely should be entitled to succeed on that charge. There is no answer in logic to this and no answer in justice, and, as I am reminded by an hon. Friend, no answer in common sense.
In respect of this Clause, may I pursue the argument a little further? Even under this Clause the plaintiff can sue separately on the separate unjustifiable charge without suing on the rest. If he does that he is entitled to succeed, but under this Clause if he sues on all charges he would fail, even on the charge on which he would have succeeded if he had brought a separate action on that charge.
What is the solution? The solution is that the success of justification on the other charges—the justifiable charges—should affect the quantum of damages on the other unjustifiable charges and 540 should not operate to convert which would otherwise be a libel, and would be a libel still under separate proceedings, as if it had not been a libel at all.
It is suggested that there are two grounds in favour of such a Clause. I know that these suggestions are made in the Porter Report. It is suggested that the verdict on the unjustifiable charge carries the general costs of the action and, consequently, if the defendant admits liability in the course of the proceedings on one of the several charges and pays money into court, then if the plaintiff takes it out he is entitled to the costs of the action. These are the two principal grounds on which the Porter Report favours some such Clause as this.
Let us consider them. Both these grounds are grounds of procedure. They are both considerations which do not go to the substantive law. What this Clause is trying to do is to meet a procedural defect by an alteration in substantive law instead of by a procedural correction. There is no difficulty in providing a procedural correction at all. Judges already have a discretion about costs and, in any case, there would be no difficulty in introducing a change in practice in dealing with costs to meet these two difficulties in the Report which I have mentioned.
§ Mr. M. Turner-Samuels (Gloucester)
Would my hon. and learned Friend like to point out where, in Clause 4, there are any words which affect practice or procedure?
§ Sir L. Ungoed-Thomas
That is the whole of my point. There is nothing in Clause 4 which does say "practice or procedure." The whole of my case is that Clause 4 is makng an alteration in substantive law. The reasons for this Clause are procedural reasons and they should be met by procedural remedies. That is my argument.
There is one other matter which is mentioned in the Report in connection with this Clause. It says that the plaintiff's success in the unjustifiable charge would amount to a whitewashing of the plaintiff because he would present himself as having been successful in the action. Surely the answer to that is simple. Even without this Clause he 541 could, if that is his object, produce precisely that effect by taking action on the unjustifiable charge only, and the other is that, of course, the publishers, the defendants, who are generally publishers on these occasions, are generally the people who command publicity.
§ Mr. Sydney Silverman (Nelson and Colne)
Is that not a lesser danger than to give a licence to anybody who, for financial or for other reasons, defames any person untruthfully or unjustly because it can be established that he has a bad reputation in something else?
§ Sir L. Ungoed-Thomas
I am much obliged to the hon. Member. Perhaps later he will give the House the great value of his experience of dealing with these matters.
The point which the hon. Member for Nelson and Colne (Mr. S. Silverman) raises is the danger of encouraging defamation. I say that it is a dangerous Clause because it gives more scope for laxity and sensationalism. There is a definite danger that minor charges may be thrown in with major charges where the minor charges are simply subsidiary matters, and it is undesirable to give this further scope for laxity in dealing with matters of this kind. There is a strong case for strengthening instead of weakening the law of justification. That case is mentioned in the Porter Report, and it could be done by providing that justification must not only be true but also be in the public interest.
The only answer to this given by the Porter Report is the recommendation of internal control; that is, by the Press Council; and in this Clause we have in an especial degree a close connection between the law of defamation and the safeguards which a Press Council would provide. I trust that, for the reasons which I have given, Clause 4 will not eventually find its way on to the Statute Book.
Clause 5 is bound up with Clause 4 to a considerable extent. I will not spend any time, at this stage, on dealing with Clause 5, but obviously this Clause will require very careful consideration in Committee. Clause 6, I may say for the satisfaction of an hon. Gentleman opposite, I, too, welcome. I pass on now to Clause 8. This Clause deals with joint publications, and, as I understand 542 it, a publisher is to be protected against action for publication by him of a malicious defamatory statement provided he is not negligent.
Let us examine that for a moment. This raises a simple question of principle. It is the question of which of two innocent parties should, in these circumstances, bear the damage which is caused—the publisher who publishes or the citizen who is defamed by it. Surely there can be only one answer to that question. The publisher has the means of knowing the person whose article he publishes, and he has the opportunity of taking precautions against publication; the citizen has not. The publisher takes part in the publication; he need not publish it. He profits by the business of publication; that is why he is in it.
It is not at all unreasonable to require him to take precautions that his business is conducted so as not to damage others. In my respectful submission, the publisher must in those circumstances publish at his own risk. There are even more abstruse considerations in connection with Clause 8, which I shall not develop at this stage, but which, if need be, will have to be developed in Committee.
I come to my last objection on principle to this Bill, and it is in Clause 11. I was glad to hear my hon. Friend the Member for Oldham, West (Mr. Hale) make the observation which he made about it. This Clause, to my mind, is disastrous. First of all, it introduces a new principle into the law of defamation. I am doubtful whether, under the Clause as it stands, it is intended that character shall be a basis of defamation although reputation has always been hitherto. That should be made clear, because it may have all kinds of repercussions on the law. If it is so it is a fundamental change of the whole basis of the law of defamation, brought in by a side wind through a Clause which purports to deal with damages only.
In any case, this Clause quite clearly puts the plaintiff's character in issue in the action, and that is a novel and dangerous thing to do. If the character is put in issue, then the whole of the plaintiff's past life is in issue in the action, and his whole life includes, of course, aspects of his behaviour which are of a kind 543 entirely different from the subject matter of the defamation complained of.
§ Mr. Emrys Hughes
Perhaps my hon. and learned Friend would explain what he means by the aspects of past life? In this connection I should like to put to him a point by way of illustration. I will take a case which I do not believe is sub judice, the case that was very prominent on the day of the General Election, that of Churchill v. the "Daily Mirror." Would my hon. and learned Friend think that the past life of the person in that case would be brought up in the court, and is that the reason why we have heard so little about it?
§ Sir L. Ungoed-Thomas
My hon. Friend is obviously making a valuable point, but it is the kind of point that he can make very much better than I can.
I should like to pursue my main point a little further. What is the position at the present time? I say that this Clause puts character and the whole of the past life of the plaintiff in issue in the action. I am here following the intervention of the hon. and learned Member for York (Mr. Hylton-Foster). The present position is that there can be cross-examination to test the credibility of a plaintiff, and it is fair to say that the Porter Committee was influenced by the existence of this right to cross-examine a plaintiff on credibility.
But there are vital differences between the present right to cross-examine a plaintiff on credibility, even if it brings in past incidents in the plaintiff's career, and the present provision in this Clause, which puts the plaintiff's character in issue in the action on a question of damages. The first fundamental difference is that the character is put in as an issue in the action itself, which is not the case under the present right of cross-examination. The second thing is that as a result of that not only can a person be cross-examined, but under this Clause evidence in chief can be brought, about which a great song and dance can be made, which cannot be done under the present right of cross-examination.
There are important and valuable safeguards against undue abuse of this right of cross-examination as to credibility. First of all, there is the professional code 544 of conduct, which is familiar to every lawyer. Cross-examination, as it now exists, must not only affect the credibility of the plaintiff, but the question must not be put if the imputation conveyed by the question relates to a matter solely at such a time or of such a character as would not substantially affect the credibility of the plaintiff in the case. In other words, a lawyer cannot, under the present right of cross-examination on credibility, simply rake up the whole of the plaintiff's past, as he could under the provisions included in Clause 11 if it were ever enacted as it now stands.
The second point is the point mentioned by the hon. and learned Gentleman the Member for York, which is that if a lawyer cross-examines unduly he now inflates damages. My hon. Friend the Member for Lincoln replied to the hon. and learned Member for York on that danger of inflating damages, by stating that it hardly exists under the present Clause, because under it the character of the plaintiff is put in issue by the statute itself, and it must, therefore, be said to be relevant. It cannot be treated as as being outside the scope of the action and of going to prejudice at all. Therefore, those safeguards which now exist under the law would be taken away altogether, and one can well see what would happen.
Take the case of a woman who was defamed without the slightest foundation. She brings an action. She is a highly reputable member of society, but she had a lapse in her younger days. A child was born out of wedlock. She wants to shield the child from the stigma of illegitimacy. This House is sympathetic with that, because it has taken steps in the case of birth certificates to see that such a stigma is avoided wherever possible.
The character of this woman is put in issue. It could not be said that this lapse was irrelevant. It would be made relevant by this Clause on damages, and that woman's past could be dug up. The particulars would be given to her before the trial of the action, and it would be seen by her that it was proposed to expose this illegitimacy. It would also be part of the public pleadings in the action, and the result of it might very well be to put the woman in the position 545 that she would rather bear the imputation of the defamation than press the action to trial.
That would result in a grave injustice, and the irony of it would be that if she did not go on with her action she would be liable to pay the costs of the defendant, who might not have a leg to stand on in regard to the main charges in the action. If it worked in that way, then these proposals would be nothing but a legalised form of moral blackmail. I trust that this House will never allow this Clause to go through with dangers of that kind embedded in it. For the reasons I have given I hope the House will give the Bill a Second Reading so that we can study it thoroughly in Committee. It is a complicated and technical Bill which vitally affects the liberty of all citizens in this country.
When the Bill goes to Committee—as I hope it will—I trust that we shall have the advantage of the views of others than lawyers and journalists. We want people examining this Bill who will reflect the commonsense attitude of the great mass of the citizens of the country, and not just those who are inevitably caught up by considerations of their own avocations of one kind or another. Despite technicalities, the Bill involves, in essence, large, simple and important principles. After passing the Second Reading I hope the House, when it comes to consider the Bill in Committee, will give each Clause a most rigorous examination.
§ 1.1 p.m.
§ The Attorney-General (Sir Lionel Heald)
I think hon. Members will agree with me in congratulating the hon. Member for Cheetham (Mr. N. H. Lever), not only upon his courage and public spirit in tackling a very difficult legal subject, but upon the very interesting, moderate and informative way in which he moved the Second Reading of the Bill.
I thank him for the kind remarks he made about me, but in my opinion they were not deserved. It happens to be my duty to receive any suggestions which are made for the improvement of any branch of the law and to consider them with the greatest care, irrespective of the political quarter from which they come. I shall always try to do that. I have been influenced in my conduct in this regard 546 by the experience that I had in the last Parliament when the Bill which I had the privilege of introducing was treated in precisely the same way as I have treated this Bill.
The discussion shows the very great value of Private Members' business, and I should like to explain why that is. Today we are—and in Committee we no doubt shall be—discussing this difficult subject in an entirely dispassionate fashion with no kind of party difference. That is only possible because of the form of the procedure on Private Members' Bills. If any doubt is felt about that, it will be dispelled by remembering what the hon. Member for Cheetham said on the question of the Press Council. It is clear that, although the Porter Report was produced in 1948, the last Government were largely actuated in not attempting to enact it before the last General Election by the consideration that there was strong feeling on the Government benches at that time about the question of the Press Council. I shall try to deal with the matter entirely dispassionately, as far as I can.
It is obvious that if, at the beginning of this Parliament, the Government had decided to bring in a Libel Bill, the question of the Press Council would inevitably have raised difficulties. As a result of the enterprise, and also the luck, of the hon. Member for Cheetham, we are able, so far with very little deviation, to consider this Bill, and I hope that we shall be able to avoid the introduction of that particular controversy into the subject.
I shall not argue whether it is right to say that the Press Council is irrelevant, because differing views are held on that matter, but it can be said that it is unnecessary. We are dealing with the reform of an important branch of the law, and several quite different considerations are involved. There is no reason why any other action that might be thought appropriate should not be taken by anyone interested in the Press Council but I have felt, and I think I am justified in saying that the hon. Member for Cheetham and his Friends have also felt, that it was not right that the Press Council should be used as some kind of lever. Therefore, I hope very much that we shall be able to avoid discussing it in connection with the Bill.
547 Another result of the Private Members' procedure being applied to this subject is that I am able to come here today with a completely open mind on the matter—to listen and not to talk. It is right that all the arguments on all these Clauses should be deployed in the serious and well-informed way in which they can be deployed by those who have experience in these matters. I would remind the House that it is not the fact that all lawyers are invariably engaged on behalf of the defendants in these actions. From what the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas) was saying just now, one might imagine that no lawyer was able to give any kind of assistance as regards the attitude of plaintiffs.
§ Sir L. Ungoed-Thomas
I certainly did not mean to convey that impression. If I gave it, of course it would be wrong.
§ The Attorney-General
My approach to the matter is that I do not propose to discuss in detail any of the Clauses, as it would be inappropriate to do so. I am speaking entirely for myself and in no way for the Government in saying that I have been considerably impressed by the arguments I have heard in connection with Clauses 4 and 11. On Clause 11, it should be borne in mind that if it were felt that the Clause gave scope for the kind of behaviour that the hon. and learned Gentleman has just mentioned, there should be no difficulty in putting in an Amendment to deal with that matter. Clause 4 is a very complicated matter, for which Committee discussion is appropriate.
On Clause 3—I am again speaking entirely for myself—there is a question which I am surprised has not been mentioned by any hon. Member so far, and it relates to the absence of negligence. I believe there is ground for considerable discussion and argument whether that in itself is capable of definition. It has been suggested in responsible quarters that it might give a defendant in such a case greater latitude than he would have asked for, according to the speeches that we have heard today. Therefore, I would point out that there will be questions in Committee, and that we shall all profit by assistance that can be given by anyone on this very difficult subject. The sort of question that arises is how much the 548 defendant has to show that he has done before he can discharge the obligation of showing that he was not negligent. That is a very difficult question.
One other matter which has not been mentioned is that, as the Bill stands, it does not cover one rather important subject which is dealt with in any text book on libel or slander. It is what is called trade libel or slander of goods. That was included in the Porter Report. It is a difficult subject. It is necessary, as the law stands now, to prove malice and special damage.
It has been said that if one shows that damage will inevitably occur, one has proved special damage. In other cases, different opinions have been expressed. The Porter Committee made a firm recommendation about it. I think that the explanation of the absence of any appropriate provision in the Bill is simply that the view has been taken that the long Title of the Bill is not sufficiently comprehensive to include a trade libel. I should have thought, with the greatest respect to those concerned, that the Title:A Bill to amend the law relating to libel and slander"—considering the fact that any text book would include trade libel or slander of goods, would be sufficient. I should strongly support in the Committee stage an amendment of the long Title to put the question beyond any doubt, coupled with the introduction of a Clause carrying out the recommendation of the Porter Committee in that respect. That would be a valuable addition.
Something has been said about certain omissions, both of matters which were, and matters which were not, recommended by the Porter Committee. The first of those is the question of damages. I had an opportunity of discussing this with the hon. Member for Cheetham and others. The difficulty that we felt was that it would be most difficult to justify making an exception in cases of libel. On the other hand, for a Private Member's Bill to bring into force a very important amendment of the whole law affecting damages, without its having been considered, so far as I know, by any body or committee, would be a most questionable action. Therefore, I venture respectfully to advise the House that we should 549 not consider in the Committee stage the inclusion of such a provision.
There are other omissions which have been mentioned which were not recommended by the Porter Committee. One of them, mentioned by the hon. Member for Oldham, West (Mr. Hale), was that of so-called group defamation. The view has been taken that matters of that kind are often best left to public opinion. The hon. and learned Member for Leicester, North-East, referred to something of the kind that was said by a former Prime Minister in relation to the Press. That appeared to be an example, but he also went on to say that apparently Conservative Ministers had a monopoly in matters of that kind.
I do not want to introduce controversial questions today, but I seem to remember another example of what might have been called group defamation during the last election, when a right hon. Gentleman who was then a Member of the Government said that there was no greater monstrosity than a Conservative working man. I apply to that the principle I mentioned just now. I think that public opinion was able to take care of that. In fact, it did take care of it. These matters can be dealt with in that way.
§ Mr. Hale
I am not trying to score a point, but I am sure that the hon. and learned Gentleman will remember, on the question of group libel, with which I did not deal except very briefly, that there are a whole series of different types of groups. There is, first, the really gross libel which can apply to two or three different people, and it is impossible for anyone to establish that it was intended particularly to apply to him. It may be in relation to his work, and so on. There is the sort of libel that occurs on a hospital staff when no single member of the staff can take action because the answer is that it was not necessarily applied to him. Then, of course, there is the wide group, the racial hatred group, which is quite a different sort of proposition.
I hope that the hon. and learned Gentleman will say that there should be in Committee a question to consider as to how far it is possible to protect people who are not clearly designated, and to enable a number of people collectively to bring an action when it is clear that there 550 has been gross defamation of one or more of them.
§ The Attorney-General
I am obliged to the hon. Gentleman. I should be glad to consider any Clause which could be drafted to cover the limited type of case to which he has referred; but I warn him that I believe that the matter has been considered and that the drafting presents a great difficulty. As at present advised, I should not be prepared to support any Clause directed to the protection of either "vermin" or "monstrosities." Those matters are much better left to the ordinary force of public opinion.
I suggest that it is not really of great value today, in this Second Reading debate, to discuss these details in the Clauses. Even if there are Clauses which some hon. Members consider to be wholly objectionable, the striking out of such Clauses is an ordinary incident of Committee procedure. It cannot be done today. Therefore, I urge hon. Members to concentrate their attention on the general principles underlying the Bill.
It appears that there is really a unanimous feeling in the House today that the underlying principles of the Bill are sound. That is most important. The Porter Committee, as has been said, was a very strong one. It is perhaps rather regrettable that the appointment of the Committee was announced in 1938 and it is now 1952. I believe that we should all be doing the best service we could to all those concerned if we made up our minds that, if possible, the process which began in 1938 should be finished well before the end of 1952.
§ 1.20 p.m.
§ Sir Frank Soskice (Sheffield, Neepsend)
I should like to make a very brief intervention in this debate, because I do not think it would be of any assistance to go over the matters that have already been discussed. There are, however, some observations on one or two points which I wish to make concerning this very valuable Bill, on which I should like to join my congratulations to my hon. Friend the Member for Cheetham (Mr. N. H. Lever) to those already offered to him.
I must confess that I very much share the apprehensions expressed by many hon. Members, and particularly by my hon. and learned Friend the Member for 551 Leicester, North-East (Sir L. Ungoed-Thomas) on Clause 11, which seems to me to be founded on an altogether wrong approach. After all, it really does bring about this situation. A jury or a judge, or both, might be in the position of having to consider a plaintiff whose reputation was admittedly good, and of having to take into account in mitigation of damages the fact that, a long time ago, a person had done something which was discreditable, but the memory of which had been wholly wiped out and forgotten.
In my view, that is a hopelessly inconsistent position. The action is an action for damages to the reputation of a person who complains, and it must be wholly irrelevant, by way of mitigation of damages, that a long time ago that person had done something which, in point of fact, had been covered over by the process of time and had been forgotten. Yet, I suppose, the judge would have to direct the jury in that case to the effect that the person had a good reputation but that they should consider, by way of mitigation of damages, some incident of long ago which had been done by this particular claimant. I do not want to spend more time on this Clause, because I have said that my apprehensions are very much those expressed by my hon. and learned Friend. Similarly, I am concerned about Clause 4, and I think that the answer to the difficulties arising there may well be that there should be some procedural change made, as my hon. and learned Friend suggested.
What I desire to say is in regard to the very important Clause 3, which deals with unintentional defamation, and I want to make one particular point. It is a defence, under the Clause as drafted, that there has been an apology made at the earliest moment, and that publication was without intent and without negligence. That may be all very well when the publication in question is a newspaper. Then, it appears once and for all, and the apology that is made neutralises damage sustained from the publication, but what about the publication of a book? A book may become a best seller, and may even become a classic and the publication which adversely affects the complainant, I sup- 552 pose, would be multiplied a thousandfold and would go on being multiplied.
I suggest that it is a matter for consideration whether it should be sufficient to say that. Where the defence may have offered an apology and where publication was without intent and without negligence, should it not also be necessary for the defendant to establish, by way of defence, that he had taken all steps to prevent further publication or repetition of the publication complained of?
It may well be that the answer to the question will be found in subsection (3) of the Clause, which provides that the mode and form of the apology may be settled by a judge of the High Court, and it may very well be said that, if the libel is contained in a book, the plaintiff may come forward again and again as the book is repeatedly disseminated to the public and that in each case the judge will be likely to insist upon a more exacting form in settling the apology to which the plaintiff is entitled, and that this should be adequate for him. I should have thought that that was doubtful, and that it should be considered whether the defendant should not have to establish, if he is to have a defence, that he had done all he could to prevent further dissemination of the libel complained of.
Another comment that I have to make with regard to Clause 3 is in connection with subsection (5), which provides that, if it is proved that the publication was intended to relate to a fictitious character, the words should be taken for the purpose of the case, to have been published without negligence, unless the contrary is proved. That might mean, for example, this: If the defendant could show that, in the frontispiece of his book, he had said that every character was meant to be purely fictional, that, I suppose, would be going some way to establishing that, in fact, the person referred to was meant to be fictional, and, if such an indication did appear, then the onus might be upon the plaintiff to show that the defendant was guilty of negligence in having referred inadvertently to the plaintiff.
I do not think that is the right position at all. After all, the defendant starts it. The person who publishes the book starts the whole trouble, and the plaintiff is innocent from the beginning to the end. 553 If the defendant does injure the plaintiff, even inadvertently, the onus should remain in the same place and the defendant should prove whether he indicated that the reference was to a fictional character or not, he had done everything he could to avoid injury to some innocent member of the public.
I entirely agree with what the Attorney-General said in referring to the words "without negligence." The burden put upon the defendant should be more stringent, in other words, to prove affirmatively that he had gone out of his way to do everything that he could reasonably be expected to do to prevent injury from being done inadvertently to some member of the public.
I hope that, when we come to the Committee stage of this Bill, as I hope we shall, Clause 3, which is one of great importance, will be considered in the light of these three comments which I have made.
Generally, I should like to make this comment. In this debate, we have been talking of unscrupulous litigants who used these proceedings for extorting money from innocent defendants; but, after all, we ought also to consider, in approaching this matter in Committee, that many millions of persons have reputations which remain unblemished from the beginning to the end of their lives. Those persons do not have to have recourse to the courts, because the existing law of libel and slander affords them very adequate protection, and that is the reason why they do not have to go to the courts. I hope that, when we consider the details of this very useful Bill, we shall also approach the situation with these many millions of people equally in mind, and not on the basis that what we are trying to do in the Bill is simply to circumvent the activities of dishonest litigants who are trying to extort damages, by way of blackmail, by resorting to the courts.
I think this is a very useful Bill, though, on balance, it is perhaps in some respects a little tilted too much in favour of the defendant, and in my view we ought in Committee to redress the balance slightly in favour of the plantiff, in order to hold the scales fairly between the two. The Porter Committee made 554 great endeavours to do so, but it is extremely difficult to find the right degree or the right spot at which to draw the line. I hope that is the spirit in which we shall approach this matter in Committee; but this is a very useful Bill, and I hope the House will give it a Second Reading.
§ 1.28 p.m.
§ Mr. Emrys Hughes (South Ayrshire)
I entirely agree with the statement made by my hon. and learned Friend the Member for Leicester, North-East (Sir L. Ungoed-Thomas), who was Solicitor-General in the Labour Government, that this is not entirely a matter that should be decided by lawyers, and I hope that there will be a rationing of lawyers in Committee on this Bill; otherwise, this Private Member's Bill is likely to drag on for a very long time. I hope there will be an opportunity for those of us who are not lawyers, but who have been the victims of lawyers, to put a point of view in Committee which has not been mentioned so far in the debate on Second Reading.
What appals a very large section of the public is the enormous expense of the libel law at the present time. I have no doubt that what deterred the Prime Minister from proceeding with his action against the "Daily Mirror" was the enormous expense likely to have been involved. I know that the lawyers on both sides of the House would have been highly delighted if that action had been proceeded with. The former Attorney-General explained that if that action had been proceeded with, it would have been possible to get the witness into the witness box and to go meticulously and carefully into his past; and not only that, but to test the credibility of the witness. That would certainly have appalled even somebody with the great courage of the Prime Minister; and so we have discovered that this threat, which interested the nation so much on the day of the General Election, has for some reason or other faded into political oblivion.
§ Mr. Hughes
If the Attorney-General wishes to contradict me and to correct anything I have said, I will willingly give way.
§ The Attorney-General
I only want to say that the hon. Gentleman has suggested that certain proceedings which were of considerable public interest have been dropped. I should like to know exactly what authority he has for saying that, or whether he even knows if a defence has yet been delivered.
§ Mr. Hughes
I assume that the proceedings have been dropped because we have not heard anything more about them. If the hon. and learned Gentleman, who is in close contact with the Prime Minister, can definitely assure me that the proceedings are going forward. I am quite sure we shall be very interested indeed.
§ The Attorney-General
I have no connection whatever with that matter—it has nothing to do with my office—but I was thinking that it would be an unfortunate thing if the public were given an entirely erroneous impression about something through a statement made by the hon. Gentleman for which, apparently, he has no justification whatever.
§ Mr. Hughes
I am assuming that if this action were being proceeded with—after all, the date of the General Election is now quite a considerable time ago—we should certainly have heard something in the newspapers, at least about the counsel to be employed.
§ Mr. Deputy-Speaker (Colonel Sir Charles MacAndrew)
I have not been in the Chamber very long, but I cannot connect this discussion with the Bill before us.
§ Mr. Hughes
We were discussing, Mr. Deputy-Speaker, the law of libel. I understood that the threat was to take a libel action against the editor of the "Daily Mirror" and not the manslaughter of the editor of the "Daily Mirror." I understood that when discussing the rectification of the law of libel, we are entitled to use a certain illustration, but in deference to your Ruling, Mr. Deputy-Speaker, and to the fact that, apparently, I am not to get the concurrence of the Attorney-General in my general observations on this matter, which I very much seek to have, I will say no more about it except that we can take it for granted that we may hear 556 something later of this matter, though privately I have my doubts.
This Bill is very badly needed because, as far as Socialists are concerned, the law of libel badly needs some rectification. Looking back over the history of libel actions in this country during the last few years, this fact is very evident. For example, there was the famous libel action in which the late Mr. Harold Laski was involved. As I say, the history of libel actions during the last few years makes it quite clear that the law of libel is very heavily weighted against Socialists, and especially against Socialist journalists.
My main point in discussing this Bill is to draw attention to Clause 13, which deals with the application of this Measure to Scotland. I hope in the Committee stage to move certain constructive Amendments which bear very definitely on the application of the law to Scotland.
I speak as a victim. I have a small interest to disclose; I am a director of a company that owns a newspaper which has never paid a dividend, but which is in many ways a very influential and important newspaper, and which has exercised quite a considerable influence in the political life of this country. That newspaper happens to be published in Scotland, and I believe that the argument which I propose to bring forward applies generally to the Scottish Press and that it will receive the support of all newspapers in Scotland, irrespective of their political complexion.
My argument, briefly, is that where an action for libel is taken against a Scottish newspaper or anyone connected with it, the trial should take place in Scotland. In 1935, for example, I received a writ for libel from a gentleman who contributed an article to the "Daily Express." He had written an article entitled "Zinoviev's Arctic Prison." This was on the occasion when the Russian leader was arrested. The writer gave a vivid and lurid description of Zinoviev's Arctic prison. I criticised the article on the ground that Zinoviev was never in the Arctic at all, and I pointed out that in Moscow they did not send prisoners awaiting trial to the White Sea. I passed some critical remarks about this journalist, and in due course I received a 557 writ for libel on the ground that I had cast doubt on his reliability as a journalist.
I contend that my article, written in Scotland, published in a newspaper in Scotland and printed in Scotland, should have been tried by a Scottish court either in Glasgow or Dundee, or at any rate within Scotland. But because a very small percentage of its circulation came to London and happened to get into the hands of some morbidly interested lawyers, it was insisted that this action should be tried in London, and accordingly I was brought down to London to appear before the High Court.
I tried my best to get out of this libel action. I apologised; I would have apologised six times over and rectified any damage that could possibly have been done to this particular journalist, but he and his legal representatives were under the unfortunate misconception that they could get some money by bringing this action. I was unsuccessfully defended. My junior counsel was an hon. and learned Gentleman who sits on this side of the House and my leading counsel was an hon. and learned Gentleman who is a Member of the Government and also a Member of another place. But even this formidable combination of two illustrious counsel and myself was unsuccessful. The case was tried according to the law of England, and ultimately damages which I considered punitive were awarded against me.
My argument is that Scottish papers, both national and local, are entitled to to be tried according to the laws of Scotland, which are infinitely more reasonable and more just on this question than are the laws of England. Therefore, I suggest that I have produced what I consider a prima facie case. [Interruption.] I am glad that if I have not the law right, I have the pronunciation right. I have at least produced an argument which I hope will result in the House, in Committee, agreeing to the incorporation in some form or another of this principle that libel actions which arise out of libel or defamation published in Scotland should be tried by the laws of Scotland and should not be brought down to London. I believe that that is the overwhelming point of view of the Scottish Press and the Scottish people.
§ 1.42 p.m.
§ Mr. M. Turner-Samuels (Gloucester)
I do not propose to follow my hon. Friend the Member for South Ayrshire (Mr. Emrys Hughes), because his novel exposition of the law is much too difficult for me. One thing I gathered was that he certainly was one of those in favour of this Bill being, as it has been described, weighted heavily on the defendant's side.
I am sure we all wish to congratulate my hon. Friend the Member for Cheetham (Mr. N. H. Lever) on the introduction of this Bill and on the excellent speech with which he presented it. He covered a good deal of the ground, illustrating the points he made by examples of cases relating to the various Clauses of the Bill. I should like to add my congratulations to the Attorney-General on the part he has taken in this matter. His modesty, of course, makes him minimise what he has done, but it is perfectly clear that this Bill would never have been the effective, comprehensive and good Bill it is without the weight of his authority and the assistance of his support.
I am sure that the Attorney-General will agree that he was partially led to do what he did by the fact thata fellow-feeling makes one wond'rous kind.He himself was lucky enough in the last Parliament to succeed in the Ballot and was able thereby to introduce a very useful and certainly long overdue Measure relating to common informers. Indeed, the commentary must be made here that it is something of a reflection on our Parliamentary system that to secure an important Measure of the kind with which we are dealing today and of the nature of the Measure the Attorney-General presented in the last Parliament we have to rely upon the luck of the Ballot. However, one is thankful that there are still some Private Members' rights surviving and that this Bill is a direct product of that fact.
My hon. Friend the Member for South Ayrshire said one thing which I ought not to let pass. He made the observation that the law was weighted against Socialists. I could not allow it to be thought that I subscribe to that tenet for a single moment. As regards political party prejudice, in the ordinary hurly-burly and conflict of a political fight on the platform all sorts of things of a 559 biased political and partisan character are, no doubt, said. But it is not right to allow the opinion to go forward that it can be accepted at all seriously in this House that the law is weighted against any body of people or even any body of opinion in this country. We all know that a model of a fair trial is always represented as a judicial inquiry or trial as conducted in this country.
§ Mr. Emrys Hughes
I understand that my hon. and learned Friend acts in a judicial capacity, but I should like to ask him if he has ever been in the dock.
§ Mr. Turner-Samuels
No, I am not as distinguished as my hon. Friend the Member for South Ayrshire, and I have not had that experience. At the same time, when I sit in a judicial capacity I have to deal with people in the dock and I hope I can appreciate their feelings well enough and that I am sufficiently sensible and sensitive to their predicament to give them a fair trial and hearing whatever their political opinions or their position in life may be. I hope that no one will be able to point a finger against me to the contrary.
I thought this was going to be a non-controversial Bill. I agree with the Attorney-General that, so far as one can see, there is very little that can be said against this Measure. It is unfortunate—and I do not think it was intended—that we should have had an element introduced today which is really irrelevant to our discussion. I refer to the observations made by my hon. and learned Friend the Member for Leicester, North-East (Sir L. Ungoed-Thomas). I hope I am not overstating it, as I felt he was overstating his case, but he seemed in the first part of his speech to have set out on a lecture on the sins of the Press.
In that context I do not disagree with many of the animadversions he had to make, but with all respect to him I do not see how that enters into the purpose, the policy and the provisions of this Bill. Let us see why that can be said with full justification. What does the Bill do? I believe that the Attorney-General also sought to make this clear. It really 560 carries out the remaining portions of the Porter Report, which have not been dealt with by Rules of Court. I believe that is an accurate statement.
I think that provision has already been made for all items in that part of the Porter Report that dealt with matters under the heading "Practice and Procedure"—apart from the power of the Court of Appeal on the question of damages—and they are in operation under appropriate orders under the Rules of the Supreme Court. The residue of the recommendations of the Porter Committee appear to me to be now embodied in this Bill. Whether the Porter recommendations are good or undesirable may be another matter. That raises the question of the purpose of putting on the Statute Book the remainder of those recommendations.
My hon. and learned Friend the Member for Leicester, North-East, said that this Bill is weighted in favour of the defendant, that it is a defendant's bill. Let us look at its provisions. That charge has been made on the threshold of the consideration of this Bill by Parliament and prior to its going to the Committee stage, and I think that that allegation should be met.
Let us see whether it can really accurately be described as a defendants' Bill in the sense that it is favouring the defendant as against the plaintiff, in the sense that one party to the action is to get preferential treatment as against the other party. I understand that to be the context in which that charge has been made.
That assertion surely cannot apply to the provisions in connection with broadcasting. I think my hon. and learned Friend himself said that he took no objection to Clause 1 of the Bill, which deals with that topic. Then there is the provision about where a defamatory statement is made which is calculated to disparage a person in his office, profession or business. Surely no one would say that that is a preferential provision which is solely for the benefit of the defendant.
That provision seeks to protect the rights of individuals so that when statements are made which are calculated to injure them they are able to receive the redress and compensation to which they are entitled. As the law now stands, no such action could be brought because the 561 words would have to be, as it is said, in the way of the plaintiff's trade, profession, calling, etc. One knows from experience, however, that defamatory words are not always used in the way of a person's business, such as, for example, saying that a person is immoral or has done something which a reputable person would not do. One knows from experience that though the words may not refer to his business or professional activities they immediately react adversely and injuriously upon him in the way of his profession or business. Therefore, that is a matter which is properly dealt with.
Let us consider the question of unintentional defamation. My understanding of the provisions about that is that everyone of them is intended to remedy well known injustices. I do not think that the Bill sets out to catch anything other than such cases or like cases that are set out in the Porter Committee's Report, in which it has been clearly established that there are these injustices.
If there is an injustice against a person, the idea of saying that a Bill is weighted in favour of the defendant seems to me to be completely unjustified because it is sought to get rid of the injustice. It is, after all, rather serious and certainly hurtful to be dubbed a libeller. It is just as bad for a person to be accused, without foundation, of being a libeller when he is not as it is to use some defamatory statement against another person. Such a person surely has every right to be protected if the allegation has been made that he is a libeller when, in fact, he is not.
All these matters clearly demonstrate that the allegation that this is a defendants' Bill and that it is heavily weighted on the defendants' side, has not been made out.
I cannot see, and here I agree with what the Attorney-General said, what this question of profit making by the Press or even the code of journalists has to do with this debate. It is perfectly true that if a publication in the Press out of which a profit is made contains defamatory statements those responsible will and should be liable. It is perfectly true that if a journalist acts in a way that makes him responsible for some statement which involves putting a libel or slander on another person he too will 562 be rendered liable. But what that has to do with the wider political considerations of the commercial aspects of the Press or even political abuses by the Press? These and such matters as advertising, which was mentioned, seem to me to be absolutely irrelevant to this discussion.
There was also a mention of the morbid curiosity of the Press and the prying into other peoples lives, and the kind of sensational journalism such as we see from time to time. But that has nothing to do with the topic we are today discussing so long as there is no element of defamation contained in it. It may be objectionable, just as it is profitable, but that does not affect this Bill, and I cannot see the relevance of having introduced that matter into our discussion.
I turn to one or two matters contained in the Bill. In the case of unintentional defamation, we have been given a good example although I do not think that what my hon. Friend the Member for Cheetham said about Jones v. Hulton was quite accurate. In that case the person who was libelled said in effect, "It may very well be that you say you were referring to a fictitious person and not to me. But my friends read the description and on that description they said it was me."
It was, however, agreed in court by the plaintiff, the party who said he was aggrieved, that the defendant had no intention of referring to him. Yet, notwithstanding that, the defendant won his case and received the not unsubstantial sum, particularly in those days—I think it was some time early in the 1900's—of £1,750. That is a rather important aspect of the Bill and of the law of defamation.
What, in this respect, does the Bill seek to do? The Bill simply says that where a defamatory statement appears to have been made against a person, if it can be proved that there was no intention to defame that person and that there was no negligence in publishing or circulating or making the defamatory statement, and that there was no malice, then the party doing it is not to be liable —subject to still a further protection that, notwithstanding all that, notwithstanding the fact that the party alleged to have made the defamatory statement is absolutely innocent, he has to put into some 563 appropriate newspaper or journal a correction and an apology.
That seems to me perfectly satisfactory. It is a provision which should adequately protect anyone in a case of this kind. After all, life is full of accidents and coincidences. It is quite possible for there to be two people answering precisely the same description and the same name and of the same locality. It may be true that what is said is false against one and yet may not be false against the other. Because of an accident or a coincidence, because it happens that there is somebody whom the statement fits, why is one innocent party to be selected by the law for punishment when there is no ground for it whatsoever and where that person had no intention of defamation at all?
I want to say a few words about the onus of proof in the case of negligence. That is a very important matter. One of the grounds upon which a defence will be able to succeed is that there was no negligence. The question arises: Who should have to prove that there was no negligence? There is a good deal of legal controversy about it for this reason. It is said, "If you ask the defendant to prove that there was no negligence you are putting a very severe obligation upon him because you are asking him to prove a negative." That is obviously a very difficult handicap to place upon the defendant.
On the other hand, if the onus is put upon the plaintiff this difficulty arises. Supposing the case concerns the powerful and ramified network of a great national newspaper and the onus is put upon the plaintiff to establish that there was negligence. It is difficult to see how he can go into all that mechanism, either in connection with a member of the staff or with the internal management and dealings with publication. It is difficult to see how he can probe into these matters. We see, therefore, why there was the difficulty, in framing the Bill, in not being able to deal with this problem, except in one case—where the person defamed is a "fictitious" person. In that case the proof of negligence is put upon the plaintiff. With all respect, I find it difficult to reconcile that with other cases and with the picture as a whole, 564 and I think it is a matter which must be dealt with in Committee.
Another question which must be dealt with in Committee is that of the assimilation of the law of libel and the law of slander. There is in this connection the difficult question of cases of slander where special damage has to be proved and other cases of slander where it is not necessary to prove damage at all. For instance, if it is said that a person has a contagious disease, it is not necessary to allege or prove any damages at all. If it is said that he has delirium tremens or that he is insane, then it is necessary to allege and prove damages. That seems rather far-fetched, however, and these are matters which must be considered in Committee.
There is only one other matter to which I want to refer, and that is Clause 11 which deals with evidence of the character or reputation of the plaintiff. That is a very serious provision. Permission to tender evidence of the character or reputation of the plaintiff is obviously a very serious matter. It is being suggested that the defendant should have a right to rake out from the past the character of the plaintiff. As I see it, the defamation of a man with a past may be very much more cruel than the defamation of a man who has no past at all. I agree that it all depends upon the circumstances and also upon the length of time intervening between the events of the past and the date of the action for defamation.
I cannot quite understand why we should seek to arm the defamer with a weapon of this kind. I appreciate this aspect, of course; that if some person brings an action for defamation and his character is such that it is quite impossible to defame him at all, then a feeling naturally would exist, "Why should he get damages?" That is a very different matter, however, from saying, without reservation, that we will allow the past to be dug up against a plaintiff and will put a weapon of that kind into the hands of the defamer. This is a matter which we must carefully re-consider in Committee.
There are several other problems which must be looked at in Committee. Indeed, these will lead to suggestions which can make the Bill a better, stronger and 565 more just Bill. In conclusion, and apart from those comments, I believe that this is a good Bill within its designed limits. It is a Bill to which the House should give a Second reading and which, with the necessary Amendments made during the Committee stage, will, I hope, soon be on the Statute Book.
§ 2.9 p.m.
§ Mr. Norman Smith (Nottingham, South)
I observe that the learned Solicitor-General is in his place and I should like to make one suggestion to him—that when the Bill reaches the Committee stage a special case should be made of political libel. I do not think any damages should be capable of being awarded in any political libel action whatsoever. I have some experience of this. I had 30 years in Fleet Street and in those 30 years there were three libel actions in which I was directly concerned, so I know a little about the subject.
It is of the nature of political controversy that there must be mutual denigration, more or less reciprocal. That is what my hon. Friend the Member for Oldham, West (Mr. Hale) calls litotes; that is also common sense. To some extent politicians have been the subject of libel. The dirtiest piece of libel perpetrated in my time was done by one of the "Express" newspapers in relation to the right hon. Member for Dundee, West (Mr. Strachey). It was at a time when Mr. Fuchs was sentenced for a crime which had made him the object of odium and detestation and feelings of that kind. True to form, one of the "Express" newspapers bracketed the names of Fuchs and Strachey under a big headline, than which nothing could have been filthier. That "Express" newspaper surpassed even itself, but there was no libel action involved.
If, at that time, the "Express" newspapers had bracketed the names of Fuchs and Norman Smith there would have been a libel action, notwithstanding that, so far as my experience goes, a Labour man has not much chance of getting damages in the High Court. There was no action in the case I have mentioned because the right hon. Member for Dundee, West, was a Cabinet Minister and Cabinet Ministers do not, as a rule, enter the law courts as plaintiffs in a case of alleged libel.
§ Mr. Smith
They do not; that is all I say. I have heard it said—I do not know how far it is true—that the right hon. Gentleman the Prime Minister withdrew his action against the "Daily Mirror" after he became Prime Minister recently. That was what was said by the hon. Member for South Ayrshire (Mr. Emrys Hughes). The Prime Minister is too big to go into the courts as a plaintiff in a libel action, and so was the right hon. Gentleman the Member for Dundee, West. We all know that politics involves much mutual vituperation.
The hon. Member for Harrow, Central (Mr. Bishop) made a most relevant point in his speech about the appalling power exercised by juries. I do not suppose all Members of the House are aware of the simple fact that in these libel actions the judge directs the jury as to whether there is libel or not, and that it is left to the jury to assess damages according to their whims and caprices.
I remember being concerned in an action concerning "Reynolds News," in which £50 damages were awarded against my employers. After it was over I went with a few friends for a meal in a public house near the Law Courts and after a short time a member of the jury walked in. I recognised him as a member of the jury. He was delighted to see us. He thought we should buy him a drink. It appeared that he had been the means of keeping the damages so low. One member of the jury had wanted £2,000 and another several hundred pounds. This one assured us that there was all that divergence of opinion among the jury as to the extent of the damages. We all know that that is so.
It is the hazard and caprice of this thing which requires to be tackled and this Bill does not get anywhere near it at all. I was concerned in a libel action in 1934. I cannot for the life of me remember the plaintiff's name; but the defendant was the Co-operative Press, Limited, whose instrument I was. The plaintiff was a retail chemist in a working-class district of London, and he had been a member of the London County Council who had been defeated at the 1934 County Council election. I was running a series of syndicated local 567 papers and I had local correspondents in every district. My local correspondent in that particular area sent me a news item that Mr. X—I have forgotten his name—the candidate for a seat on the London County Council, was a member of the Public Assistance Committee. In another part of the paper I had commented upon the way in which Public Assistance committees were treating working-class applicants for relief and I had used the adverb "harshly." The retail chemist, advised, no doubt, by some of his local friends that there was money in this, came after our paper and sued us for libel. The gravamen of his charge was that he was not a member of the Public Assistance Committee.
When we heard about this we explained that he was not a member of the Public Assistance Committee, but as we were a monthly paper, time had gone by. Anyhow, Mr. X got £500 damages out of us. I think the reason was that this was a trial in the High Court in London, and the High Court is not wholly free from prejudice. I noticed today that the hon. Member for Yarmouth (Mr. Fell) was in his place. His grandfather was concerned in an Election petition in 1906. There were two petitions tried by the same judge. The Tory Member for Great Yarmouth was shown to have bought whisky for his friends, but he was not unseated. The Liberal Member for a Cornish division was shown to have bought tea for his friends, and he was unseated.
The editor of the "Daily News," which was the forerunner of the contemporary "News Chronicle," printed this rhyme on that occasion:You may treat a man with whisky,But you must not treat with tea;Or Mr. Justice GranthamWill call it bribery.There were no proceedings against the "Daily News" in those days for contempt of court for daring to impugn the impartiality of the judiciary.
I will only add that in the case of which I spoke the judge was Mr. Justice Horace Avory, so what chance had we of winning that action? What chance could we have had, with a London jury, of paying anything but punitive damages? We were able to show that the retail 568 chemist's trade had gone up substantially in the months following the publication of the alleged libel. We were certainly able to show that he increased his vote in the election. There was nothing personal against the man; he was popular.
Nor was that the end of the case as far as the Co-operative Press was concerned. If London juries are prejudiced against this side of politics, the Co-operative movement is regarded by many as a wonderful city to loot. The Co-operative Press was the defendant in this action; so that was not the end of the story. We had not only to pay damages of £500, but also costs, which amounted to £1,200.
It was a very short action; it only lasted about half a day. There were not costs of the order of £15,000 as there were in the recent Laski case. Goodness knows where all the money goes. I suppose the legal profession have an unduly high co-efficient of prehensility. I do not know what else it can be. They want so much rake-off for their services.
There is nothing in this Bill to protect journalists, who have to be engaged on work of a political or polemical nature, against the prejudice of judges and juries. There is nothing to protect the working journalists who have to be engaged in polemical and political controversy against that kind of action. There should be no damages whatsoever in any political action unless special damage is proved.
Even there I am not sure that there should be any damages. A friend of mine named Russell once figured in a libel case when he was on an evening paper in a provincial town. He went to a music hall and saw a turn given by animals under a trainer. The animal trainer was an Englishman who could speak only his own language. It was an absolutely silent turn. He did his stuff with the animals and got them to do all kinds of things without ever opening his mouth. So he could have gone, and used to go, into all sorts of foreign countries putting on the same turn, although he did not know German or Czechoslovakian or any other language.
After the show was over my friend Russell interviewed that chap, who said, "My methods involve no cruelty whatsoever, unlike the methods used in many Continental countries, particularly France." In due course, Mr. Russell's 569 interview appeared in the newspaper and the animal trainer was delighted. He sent for Mr. Russell, gave him a good lunch, starting off with "gin and it," and then red wine and champagne, finishing with brandy. In those days it must have cost the animal trainer about £10.
They parted the best of friends, but a few months later the animal trainer brought an action against the newspaper because Mr. Russell had written that the trainer's methods involved no cruelty, unlike the methods of Continental countries, including France. Some Frenchmen had seen this and had brought it to the attention of the French trade journal of the amusement industry, and the animal trainer, denying that he had used the words imputed to him, lost a good contract in France. He claimed special damages because he had lost his contract. It was only his word against the word of the journalist.
My objection to these actions is that journalists never get a fair deal. They are regarded as fair game, as is the Co-operative movement. There is nothing in this Bill to protect the journalist who is doing his legitimate work. I say that the thing to do is to take politics out of libel law altogether. Let people say what they like politically about each other, because, goodness knows, we on this side of the House could not get a worse deal than we are getting from the Tory Press.
§ 2.20 p.m.
§ Mr. David Weitzman (Stoke Newington and Hackney, North)
The hon. Member for Cheetham (Mr. N. H. Lever) has undoubtedly rendered great service in introducing this Bill. As has been said, it follows the recommendations of the Porter Committee, but when it is remembered that that Committee was formed, I think, in March, 1939, and reported as long ago as October, 1948, legislation may well be said to be long overdue. My view is like that of most hon. Members, that changes in the law of defamation are very necessary to lighten the burden of those who publish. Even my hon. Friend the Member for Nottingham, South (Mr. Norman Smith), who referred to a number of difficulties, rather advanced an argument in that direction.
Changes are necessary, not so much in the interests of large newspaper pro- 570 prietors, who have plenty of money, nor in respect of those cases where one may suspect that papers invite an action for the sake of publicity, but for local newspapers and other writings in the hands of small people. These are often of great service to the community, and it is precisely these modest, serviceable publications that the threat of proceedings may intimidate in the present state of the law. Their freedom is stifled by a prudence sharpened by small resources. Matters which the public ought to know are thus kept from them.
There are a number of clauses in this Bill, and a good deal can be said about the merits of each provision. I wish to speak about Clause 3, which deals with unintentional defamation. We all know that among the majority of honest litigants lurk a few unscrupulous prospectors. Cases of unintentional defamation are, perhaps, the best examples of "gold-digging" expeditions into the territory of the law of libel.
Clause 3 seeks to bring the somewhat archaic rule of libel into line with more modern notions of tort. Torts have tended to be kept in their separate compartments, and little effort appears to have been made to establish them on basic principles, but, so far as a single concept of justice underlay them, it is surely this, that a man is entitled to have his land, his chattels, his family and his good name protected; if these were damaged, whoever was responsible must pay. The law was concerned less with the problem of placing responsibility for the fault on the shoulders of whoever was to blame than with protecting the sanctity of proprietary rights.
The hon. Member for Cheetham, in introducing the Bill, said something about learned judges having mutilated the law, but I do not think he had due regard to the fact that in the last two centuries judges have done a good deal to advance the law from the rather brutal conditions to which I have referred. They have interpreted old formulæ in a new way; they have made use of legal fictions; and they have done a good deal to bring the practice of our law into compliance with the basic conceptions of justice which should underlie its rule. However, although the courts can in some cases apply that technique to modify the existing law, obviously there is a much greater 571 area where the judges will decline to usurp the function of the legislator. It is for Parliament to improve, it is for the judges to apply, the law.
Liability for unintended defamation, as the law stands at the moment, was based on the ancient doctrine that one person must compensate another for the harm he caused, irrespective of his intention or fault. A well-known illustration of unintentional defamation is one that was referred to in the Porter Report and which has been mentioned today. That is the case of Cassidy v. Daily Mirror Newspapers, Ltd. It will be remembered that in that case a photograph was published with the words,Mr. M. C., the racehorse owner, and Miss X, whose engagement has been announced.The information, in fact, was given to the newspaper by M. C., and resulted in his wife, of whose existence the paper did not know, bringing an action, and obtaining judgment of £500 damages. The caption, it was held, alleged her to be immoral, since it asserted that M. C. was unmarried. Thus it was held in law that it does not signify what the writer means to say, and takes reasonable care to say, but that it is what others may understand by the words employed that matter.
In that case, it is interesting to observe that one of the judges in the Court of Appeal, Lord Justice Greer, disagreed with the decision, and indeed spoke of the dangers of carrying the law of libel to the extent it was carried by that case. He gave the following example. A mistakenly thought he saw Mr. B walking away from a theatre one evening with Miss C. The next day he told an acquaintance, "I saw B and C leaving the theatre last night." Unknown to A, but to the knowledge of the acquaintance, C had been murdered by the man with whom she left the theatre. Could A, asked the learned judge, be sued by B successfully for saying he had murdered C?
He cited another instance. Someone wrote of A B that A B was an ignoramus. Suppose, unknown to the writer, A B had spent five years at Eton under the tuition of X Y, could X Y say he had been libelled, though the writer had no reason to suppose that A B had been at Eton? The learned judge suggested that if the 572 decision in the Cassidy case was right, in both examples given a successful libel suit could be brought.
Clause 3 of the Bill does what the court cannot do; it alters the law so as to safeguard a person who has not intended to defame and who is not careless or negligent. Moreover, as the Porter Committee suggested, it guards the person who is libelled by prescribing a correction and apology, and this should be sufficient in a libel of this character. After all, one must remember that it is a necessary element in a libel action that the words complained of must be written "of and concerning the plaintiff." As has been said by one judge, in order to constitute libel the mind must be at fault and show a malicious intention to defame. How can there be such malicious intention if the person publishing the libel had no such intention?
I should like to refer quite shortly to two other Clauses, Clause 4, which deals with the defence of justification, and Clause 5, which deals with that of fair comment. Despite what has been said in the way of criticism of this, it is obviously absurd that a defendant should fail in his defence merely because the truth of some small part of the alleged libel, particularly a part which does not materially affect the plaintiff's reputation is not proved. I am very glad indeed that these Clauses have been inserted. They obviously remove that danger.
I would add one further word. I regret exceedingly that there is nothing in the Bill with regard to group defamation. There have been many deplorable examples of group defamation, and it ought to be possible, despite the difficulties, to insert some provision which would restrain would-be offenders. It is true that the Porter Committee considered the question and pointed out the difficulties. It is true that in certain cases it is possible to prosecute an offender for a libel which amounts to the crime of seditious libel, although one realises the difficulty in obtaining convictions in such cases.
It may be that the answer to the problem lies in widening the scope of prosecutions for criminal libel. But in any event, I suggest it is expedient that there should be a further study of this matter 573 from the point of view of civil proceedings. I trust that what the Attorney-General has said will be followed, and that in Committee some attempt will be made to grapple with this aspect of the problem. I hope that the Bill will have an easy passage. It constitutes much needed legislation, and I very gladly support the Second Reading.
§ 2.31 p.m.
§ Mr. John Parker (Dagenham)
I think I must be the first to speak in this debate who is neither a lawyer nor connected with a newspaper. I wish to refer to a problem which has arisen during my long connection with the Fabian Society. That, as hon. Members know, is a research organisation of a political character which is engaged, not only in finding out facts and making criticisms of different existing organisations, but also in trying to publish to the world the results of that research and making suggestions for change and reform.
There are, of course, other organisations of different political outlooks trying to do the same thing. I have no doubt that the Tory Party Central Office attempts to carry out political research, to criticise various organisations, and to put the outcome of its research before the world for judgment.
The main point I want to make is that it is difficult to criticise big corporations of a monopolistic—or semi-monopolistic—character and not to be prosecuted for libel. I think that some reform of the law is required to make it easier to criticise important and powerful corporations without, at the same time, endangering the right of the individual to have his private reputation properly safeguarded. That is the real problem which has to be faced.
To illustrate this point, let me give an example which occurred before the war. About 1937, the Fabian Society put in hand research in connection with the milling industry. Facts were collected and a pamphlet was prepared for publication, but our legal adviser told us that if we published it we would certainly be prosecuted for libel. That pamphlet criticised Rank's, Spiller's and the C.W.S.—the three organisations which between them control the greater part of the milling industry in this 574 country. They work through the Millers' Mutual Association for their own convenience, and they are the dominating group in the industry.
We were told that if we criticised their actions individually or collectively, there only being these three organisations, it would be quite obvious whom we were criticising and they would be able to bring an action. If, on the other hand, we had published a pamphlet criticising the coal owners, that would be quite all right, because there were so many coal owners that it would not be obvious whom we were criticising. An industry or trade in the hands of a small group of people of almost a monopolitistic character could not, we were told, be criticised, so we had to drop publication.
I submit that it would have been of advantage to the public at that time to have had that pamphlet published. Let me mention some of the things it criticised. It criticised the fact that the industry, being monopolised, was closing nearly all the small, local flour-mills and concentrating the industry in the big ports. That was criticised from the national point of view as being a disadvantage, partly because in time of war there would be the danger of the bombing of the mills in ports and the resultant destruction of food stocks, and partly because of the disadvantage to the farming industry if many of the small mills in the wheat-growing areas were closed down. When the war came events proved those criticisms to be well-founded, and I am certain that it would have been of advantage to the country had those criticisms been published at an earlier date.
We need a change in the law in order to allow such criticism of big organisations, and with reference to the remarks on group libel made by my hon. Friend the Member for Oldham, West (Mr. Hale), I should like to say that I would only support such an Amendment if it were also made easier to criticise organisations of this kind. I would point out to hon. Members opposite that it is not only big, private organisations which may need to be criticised. Hon. Members opposite may want to criticise the National Coal Board or large trade unions. Surely they should be able to 575 make criticisms of those bodies without being in danger of prosecution for libel.
Let me give another example of the sort of case which has arisen in the past. At one time the Fabian Society put in hand a piece of work on the oil industry of the world. That work was prepared, but it was decided on merits that it did not justify publication, and, therefore, the society did not publish it. The author, however, went elsewhere and got a publisher to publish it independently. He was then prosecuted for libel because he had criticised the Anglo-Iranian Oil Company. He had said that the Anglo-Iranian Oil Company was believed in Washington to be frequently actuated in its actions by political motives because the British Government happened to appoint a number of directors to its board who influenced decisions from time to time. All he said was that "it was believed in Washington" that that happened from time to time.
The case went to the courts and the Anglo-Iranian Oil Company was awarded £1,000 damages against the author and publisher because, although similar criticisms had been made publicly on at least 20 occasions in the previous 20 years, three years previously somebody criticising the company had had damages awarded against him on ten grounds, of which that was one. It was argued that as on one previous occasion that had been one of ten grounds on which damages had been awarded against someone for libelling the company, it was legitimate to award damages again on that one ground, even although on many previous occasions something similar had been said without any action having been brought. That illustrates the difficulty which exists in this field of criticising important bodies which ought to be criticised from time to time, from any political standpoint, in the public interest.
At the time that these various things happened before the war, the Fabian Society consulted Sir Stafford Cripps and a number of other lawyers to get their advice about what changes in the law of libel might be desirable and possible. At the same time Sir Alan Herbert was making similar suggestions in this House. After much consideration, however, Sir Stafford Cripps and others advised that 576 that was not a timely or proper period to suggest alterations in the law of libel, for this reason. It was at that time that the Fascist movement, not only in this country but in the world generally, was doing its very best to damage the personal reputations of a number of people prominent in public life in one country or another.
Hon. Members will remember the unfortunate events connected with the suicide of M. Salengro, in France; he was violently and unjustifiably attacked, and took his own life in consequence. Similar attacks were made in Belgium by Rexists in an attempt to discredit the leaders of the democratic movement there. In this country Sir Oswald Mosley made similar attacks on Mr. Marchbank, and various leaders of the National Union of Railwaymen and the courts awarded a farthing damages against him.
Similar attacks were also made by Mr. John Beckett, unsuccessfully, against various leaders of the A.E.U. It was felt by many on this side of the House at that juncture that it was all-important to do nothing which might interfere with the right of private individuals to see that their personal reputations did not suffer, and the matter was therefore not then pursued.
The problem, however, still remains, and I suggest that now is an appropriate time to amend the law, and to steer our way through these difficulties so as to allow right and proper criticism of important organisations while, at the same time, protecting the private citizen's personal reputation.
May I give another example of the need for reform in more recent times, from my own experience. I had occasion to write a book, and I put in one paragraph criticising the newspaper proprietors of this country and particularly the monopolising of the provincial Press which was being brought up by certain national chains of local newspapers. The paragraph made no reference to any particular chain of newspapers or any particular persons, but the publishers of the book took the line that if that paragraph were left in the book there was a danger that Lord Kemsley, or someone like him, might feel that he was aggrieved and try to bring an action, because there were so few people trying to monopolise 577 the Press that it would be perfectly obvious who they were, and they might win the action. This is not only, therefore, a prewar problem, but it still exists today.
I hope that the House will not only give the Bill a Second Reading, but try, on the Committee stage, to deal with the whole of this wide problem, to see if we cannot get agreement on both sides of the House and thereby strengthen the law of libel on the one hand in order to protect the private individual, and, at the same time, have full and proper freedom to criticise all important and powerful organisations in this country.
§ 2.42 p.m.
§ Mr. Ian Harvey (Harrow, East)
We have all cause to be grateful for the tone in which this debate today has been carried on. I think that the hon. Member for Cheetham (Mr. N. H. Lever), who introduced it, is largely responsible for this because of the extremely able and reasonable speech in which he put forward the Bill.
All of us were particularly interested in the speech of the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas), and pleased that he should have found it possible, in a private capacity, to give support to a Measure which apparently it was not possible for him formerly to support in an official capacity. I should like, however, to take him up on one point to which he referred. If I misunderstood him, I know that he will immediately tell me so. I had the impression that he made a criticism of the Press in connection with its desire to get additional advertising, by suggesting that by increasing sensationalism they increased circulation and thereby increased their advertising revenue.
§ Sir L. Ungoed-Thomas
I agree with that, and I quoted passages from the Royal Commission's Report which establishes that.
§ Mr. Harvey
I am glad that the hon. and learned Gentleman has agreed to that, but the facts at the present time are not as he has put it or as the Royal Commission have put it.
I agree, as I think anybody who has had anything to do with that particular side of the industry—and I admit my 578 interest in this respect—would agree that those who would wish to insert advertising in a newspaper will, in fact, be influenced by the number of people who read it, but I do not think that it is—I am quite satisfied that it is not—the policy of any newspaper to make itself sensational in order to increase advertising revenue.
§ Mr. Harvey
The reason, as I would tell the hon. Member, who has had the astonishing experience of being invited to speak today, is that because of the shortage of newsprint there is always a great battle within the newspaper organisations as to who is to get the most newsprint—the circulation manager or the advertising manager—because the more paper for circulation the less paper for advertising. Although the argument which the hon. and learned Gentleman put forward may have applied to a greater degree before the newsprint shortage, I do not think that it applies to the same extent now, and I do not think that it is an incentive for newspapers to increase sensationalism in order to increase their advertising revenue.
I think that point should be recognised, because the suggestion behind it is that advertising is a practice which encourages irresponsible policy in newspapers, which is far from the truth. I felt that the hon. and learned Gentleman rather descended from the high level of his observations when he made reference to the failure of the Press today to set up a Press Council. I think that it is not reasonable—and the hon. Member who introduced the Bill made this point, I think, most accurately—to use that as a level in this particular issue. We are discussing here matters which concern the freedom of many people far beyond those responsible for the actual control of newspapers. We are concerned with matters of justice.
I think, therefore, that we are all very much in agreement with what has been said, that because the newspapers so far have not complied with the recommendations in the Report, this is not the moment to implement something which is obviously right and just. I believe that would not be in accordance with the highest traditions of this House, and I hope that we shall not be influenced by such an argument; in fact, I was glad 579 that the hon. and learned Gentleman went away from this argument during the course of his speech.
I think that there has been a suggestion—and I am glad that it has not been more than an undercurrent—that the commercial aspect of their work influences more than anything else those who are concerned with the Press. That is not true. I know from a very vast experience that there are many people concerned with the operations of the Press in every department who are very much concerned with it from the point of view of the job they have to do. There are many journalists who take the utmost pride in their journalism, and many concerned with the production of newspapers who regard that as a highly technical job in which they take the greatest possible pride; therefore, I deplore the suggestion that the whole thing is one vast desire on the part of all those concerned to make more money. I hope that attitude may not prevail in influencing anyone in their decision this afternoon.
§ Mr. Charles Pannell (Leeds, West)
Surely the hon. Member admits that that is a factor. We agree with him that it is not an over-riding concern, but he will not deny that it is a factor.
§ Mr. Harvey
No. But this, as the hon. Gentleman has said, is not an over-riding factor. It is the suggestion that it is an over-riding factor to which I object.
§ Mr. Harvey
Indeed, the necessity for making profit underlies all forms of activities, as we have already found in our experiences over the last few weeks; but I would not wish to join the right hon. Gentleman in a controversial issue because the debate, so far, has been free of controversy. After all, I have been particularly well-tutored in these matters.
Lastly, with the greatest deference I should like to touch upon a point on Clause 4 made by the hon. and learned Member for Leicester, North-East. He suggested that if a plaintiff could not sustain all the charges in an action then all should fail. I think that is wrong. If eight people are wronged, and it is possible to sustain the charge in the case 580 of only six, is it suggested that all should fail?
§ Sir L. Ungoed-Thomas
With great respect, I would ask the hon. Gentleman to be very careful about this Clause. Its whole point is that it is founded on separate charges, and that separate charges, therefore, give occasion for separate libels. The effect of it is to say that although there are separate charges and, therefore, separate libels, nevertheless the justification on the major libels shall, as it were, carry the minor libels with them. That is quite wrong.
§ Mr. Harvey
I am obliged to the hon. and learned Gentleman and I accept his explanation.
I am very glad that we have had an opportunity of discussing this important issue which, as the hon. Member for Cheetham made quite clear, affects a vast number of people trying, unquestionably, in the best faith to do their best by their profession. From time to time many of us could quote examples of things being done in the wrong way and for the wrong reason in order to meet the popular demand for sensationalism and all the rest of it, but to accept that as being a general criticism of the Press as a whole is to under-rate not only the very high standards of professional conduct in the British Press, but also to under-estimate the intelligence of the British public.
§ 2.53 p.m.
§ Mr. Barnett Janner (Leicester, North-West)
I rise for a few moments in the course of this very interesting debate to comment upon one matter which has been omitted from the Bill, and which I hope in due course will be inserted. I should like also to take advantage of the opportunity to say one or two words about two Clauses which are in the Bill. I should like to congratulate my hon. Friend the Member for Cheetham (Mr. N. H. Lever) on the manner in which he has introduced this Bill, and I join with others in thanking him for the opportunity which has been given, owing to his initiative, for us to deal with this very important subject, a subject which has interested and engaged the attention of laymen and lawyers for a very considerable time.
581 Clause 2 is of particular interest to many of us who have seen the difficulties that have arisen owing to such provisions not having been hitherto the law of the land. The idea of being able to refer to people who are carrying on the functions of honourable professions in disparaging terms, which, no matter how vicious they may be, do not, in fact, relate to their actual profession itself, is something which cannot be tolerated in an ordinary civilised community for the very simple reason that, while it is difficult to show the reaction of the use of such terms upon the person involved in his profession, it is clear that there is such reaction and one which can cause considerable damage to him in his daily work.
On Clause 3, those of us who have the experience over a number of years of dealing with matters of this description, cases of libel and slander, have always hoped that an opportunity would be given whereby an apology properly expressed by innocent persons would be sufficient to meet the case, providing the other circumstances were dealt with at the time in a favourable manner for the person who had been abused. There is not the slightest doubt that many cases have proceeded after an apology has been proffered which ought not to have gone any further.
What I deem very essential and extremely important in this Clause for the protection of persons being defamed, are the last words in Clause 3 (1, b) which should be emphasised, namely,… that the offer was made as soon as practicable after the defendant received notice that they were or might be defamatory of the plaintiff.In my view, that is necessary, otherwise this Clause might be abused, and would not fulfil the functions for which it was intended.
I said I wanted to deal with one matter in particular which is not contained in the law as it now stands. I am glad that my hon. Friend the Member for Cheetham has described this Bill as a Bill to amend the law relating to libel and slander, and so has given us the opportunity of introducing other matters that are not in the Bill at the present time.
We are also grateful to the Attorney-General, who, though differing from some of us considerably in political 582 views, has very often shown a considerable amount of sympathy and understanding with persons who are placed in difficulties, for saying that he has in mind the idea of supporting, if it is possible to frame it in proper terms, a Clause which will prevent community or group libel, so that many thousands of innocent people may be protected against vilification, slander, libel and the like, as is practised against them at the present time.
Nobody has asked for protection against proper criticism, and nobody desires prohibition of free and frank discussion. But what I submit is that there must be protection against unbridled vilification and lying allegations which, if directed against an individual, would be accepted as coming within the ambit of libel and slander, but which are not so when practised against a group. If the law affords protection to individuals. I cannot see a logical ground for not extending the same protection to groups or communities.
I agree that there may be some difficulty—indeed, there is some difficulty—in defining a group or community. The type of vilification particularly against the section of the British community, of which I happen to be a member, and the type of statement that is made at times today which is not actionable, is something which every decent citizen would revolt against if only he knew the extent of them and the consequences that might ensue from them.
I am not talking about trivial matters: I am talking about a subject in which similar activities on a large scale in Nazi Germany were materially responsible for causing the death of six million innocent victims. Nobody here at that time realised what effect that kind of vilification of a community would have. The ravings of Streicher in the "Sturmer" and the outbursts from Goebbels and others had an effect which could not possibly be appreciated at that time in this country, and which only became visible after the war in the results now known to everyone.
It has been argued that the law of seditious libel might be sufficient to protect a community. It has been used in support of actions which have been taken. For instance, take the blood libel accusation, among the most serious and vicious 583 that has ever been issued against any people anywhere. It fosters the idea that blood is drunk for certain ritual purposes. Even that accusation is capable of being published today. Thus it was published by a person who was brought before the court, and who, after the court proceedings, issued a further similar accusation.
While appreciating the difficulties that exist and realising that every protection must be given so that political expression may be free, I think that the minds of hon. Members should be directed towards finding a formula which will make it impossible for that kind of community libel or slander to be continued. I do not think that it is beyond the ingenuity of this House to do so. I hope that we shall take the opportunity in the Committee stage to amend the law in that regard, and that the Bill will then proceed on its way to the Statute Book. I believe that it is the general view that the Bill will be of considerable value to the country.
§ 3.2 p.m.
§ Mr. Sydney Silverman (Nelson and Colne)
I do not want, so late in the day, to embark upon a review of the Bill Clause by Clause. That will be much more usefully done when the Bill goes to Committee, as I hope it will by being given its Second Reading today without any substantial opposition.
This is a Bill on which it is difficult to make a useful Second Reading speech because there is no general principle running through it. The Bill takes one or two quite different and separate aspects of the law of defamation and makes quite separate and distinct alterations and amendments in those respects. It is natural in those circumstances that varying Members will approve or disapprove of certain amendments.
It is impossible that any hon. Member will wholeheartedly accept or reject the whole Bill as it stands. Therefore, it seems to me that the most useful discussion will take place Clause by Clause on the Committee stage. I agree entirely with those who hope that the Committee will not consist entirely of lawyers, and I would add the hope that it will not consist entirely of journalists. Both are experts in this matter from one point of 584 view or the other, and although expert assistance will be valuable we want other aspects as well.
I should like to refer to what was said by my hon. Friend the Member for Dagenham (Mr. Parker). I am sorry that he is not here at the moment. I know that it has been said that there is nothing so valueless as the opinion of an unfeed lawyer; nevertheless, I hope that my hon. Friend will not make outside the speech that he made in the House, or he might find himself the defendant in a libel action brought by the Fabian Society.
Really, the law, even unamended, is not such an ass as not to afford ample opportunity for public criticism of public bodies provided that those concerned take the trouble to get their facts right first and then make their comment, however strongly, in an unprejudiced and unmalicious manner. If my hon. Friend is saying that they had a publication which they were advised not to put out because that might involve them in an action which, by implication, they were not satisfied they could successfully defend, it would be no great advertisement for the accuracy of the research on which the pamphlet was founded. But that is by the way.
It seems to me that the bias and tendency of this Bill is, as somebody described it, a defendant's bias. Clause 1 gives a long overdue extended protection to people who are defamed by radio, but on the whole the tendency of the Bill is to discourage libel actions, to make them a little more difficult and to afford an added protection and further defences in cases where it is thought desirable to do that.
All these alterations are made on the advice of the Porter Committee. Therefore, one criticises them with considerable diffidence. Nevertheless, it seems to me that the Porter Committee have considered this matter entirely on the wrong basis. They seem to have treated the law of libel as though it were part of the criminal code. They seem to have looked at it from the point of view that, provided that a man was honest, provided that he acted in good faith, and that he took reasonable care, then he ought not to be penalised no matter what harm he did. In the criminal law that is a sound principle.
585 Of course, a man ought not to be made criminally responsible for any harm he did provided that he did it without any evil intent, without any felonious intent, without any dishonest or fraudulent intent and without any reckless degree of negligence such as in other parts of the law does expose a man to criminal penalties. But the law of libel has nothing whatever to do with the criminal code. It is no part of the criminal code.
A man who brings an action for damages for defamation ought not to be put in the position of a man who is prosecuting in a criminal court. The law of libel is part of our law of trespass. If a man enters somebody else's house or enters upon somebody else's land, it does not matter how honestly he made his mistake. He must go back and he is liable for such damage as he causes by doing so. He may have acted in perfect good faith and perfectly honestly. He may even have acted without negligence, but if he is wrong, if he has invaded the rights of somebody else, however innocently, then there is nothing wrong in saying that he must repair the damage that he has done, however innocent.
§ Mr. Silverman
No penal damages. It is not a reflection upon a man's morals or integrity to say that he has been guilty of defamation, any more than it is any reflection upon a man's morals or integrity to say that he negligently drove his motor car and knocked somebody down. No defendant in a running down case has ever been heard to say, at any rate successfully, that he ought not to repair the damage he has done.
§ Mr. Lever
My hon. Friend's argument is that the law of libel is part of the law of trespass. If you libel or defame a man, you should pay damages, even though not guilty of malice or want of care. He has now brought in the running down case. Would he say that a man who collides with another in a motor car should pay damages to the injured man, even though he is not guilty of any negligence, any want of care or any malice?
§ Mr. Silverman
No; malice would have nothing to do with it.
May I put my point this way? What is, after all, the difficulty about the law of defamation? The difficulty, surely, is this. It is a conflict between two rights which we want to preserve at one and the same time—the right of every free citizen to express himself as he will, with complete freedom of opinion and expression, which is part of the very same principle and the same law that a man shall be entitled to retain, undamaged and unblemished, such reputation as he has earned by his conduct. These two rights are part of the same right, and the difficulty which defamation presents is to reconcile them.
I am not at all sure that, with one or two exceptions, the common law of this country has not done that job extremely well. Of course, there are some exceptions; some of them are dealt with in this Bill, and we shall deal further with them in Committee. On the whole, the common law seems to me not to have gone very far wrong in this matter.
People sometimes get very contemptuous because a man can bring an action for defamation, claiming damages, and the defendant, through his very eloquent and skilled counsel, is very often heard conducting a cross-examination of the plaintiff on the line, "What harm has been done? Have you not come into court in order to make money out of it?" Well, of course, he has. What is wrong with that? Why should he not?
We might say that the damages to a man's reputation cannot be translated easily into pounds, shillings and pence, but neither can the damage in a running down case. Neither can a wide variety of other damage; the attempt has to be made because there is no other way in which reparation can be made. There is no way of restoring the damage done to a reputation. If a man is unlawfully imprisoned, we cannot take back that time from him. Somehow or other, we have got to equate two things that cannot be equated, and there is a whole variety of rights, procedure, checks, counterbalances and appeals to see that the job is fairly done both ways. There is nothing wrong with that.
587 When people approach this matter on the basis that there is something a little shameful in bringing an action for damages and asking for money because one's reputation has been injured—it may be quite innocently and in all good faith—I think it is in complete defiance of the long tradition of the common law of this country. There is nothing wrong with it at all.
Of course, in spite of what the hon. Gentleman opposite said just now, just as there are some newspapers, though not very many, which, in the opinion of many of us, seek to extend their circulation by appealing to the baser appetites and instincts of their readers, rather than to their better appetities and instincts, so there are undoubtedly people who go round among newspapers and in other places seeking to make money for imagined or pretended wrongs.
But we cannot make good law by dealing with the bad, hard cases on either side, and the common sense of the ordinary British jury under the skilful guidance of an experienced judge can be trusted to deal faithfully both with those defendants who have been deliberately seeking to get an unfair advantage out of their capacity to titivate the appetites of some of their readers, and to deal equally faithfully with the people who are merely engaged on gold-digging adventures.
Therefore, there is no reason there for interfering with the basic principles of our law. In some respects this Bill does that, because once we begin to think of this matter as though the test were the penal conduct of the defendant from which he ought to be relieved it leads straight on to things like Clauses 4, 8 and 11 of the Bill. Why should we say that if a man is of bad reputation in some respects therefore anybody in the world may defame him in all respects?
§ Mr. Silverman
My hon. Friend, who made an admirable speech in introducing his Bill—and I would like to join with all congratulating him on it—says that nobody says that. He will pardon me, but at the moment his Bill says that. If he says that is not intended, no doubt we shall look at it in Committee and see 588 what can be done. But I personally have no doubt that that is exactly what the Bill does as it is drawn and stands at the moment.
I think the same kind of thing applies to the question of damages. Supposing it should happen that a man has been defamed, has brought an action, and has got damages for it. As I read this Bill, because he has done that, he must never bring any action against anybody else who may have repeated that libel—
§ Mr. Silverman
—because evidence can be given of the damages he has already received. The only purpose I can see in allowing evidence of that kind to be given is in order to invite the jury to say, "You shall not get any more. "That is an open general licence to everybody to go on repeating it. I know that is an over-statement and an oversimplification of the position, but as the Bill is now drawn that or something very like it is what it says.
We shall have to approach the point in Committee very carefully indeed, paying due respect to the achievement of the common law so far without being afraid to make the amendments and alterations that experience has shown to be necessary. But I do not think we should be justified in altering the whole basis on which, so far, our law of defamation has proceeded. That is what in some respects, I think this Bill seeks to do.
One other word about group defamation. It is said that this Committee was set up in 1938, and that we are only now legislating with reference to it 14 years later. We have lost a good deal by that in many respects, but we have also gained something because in the course of those 14 years we have seen, as one of my hon. Friends said just now, some of the tragic effects of treating the difficulty of dealing with group defamation as a reason for not dealing with it at all.
If it is accepted that people are entitled as a matter of civil liberty to be protected in their reputations, they must be so entitled, not merely as persons, but also as members of groups, and certainly as members of racial and religious minorities. There is no democracy without the protection of minorities; their rights are more important to the 589 preservation of democratic life than the rights of majorities.
Majorities have always been able to look after themselves. Majorities have never had the slightest difficulty in protecting themselves. It is the minority one has to protect, or there is no democracy. What is a totalitarian State except a State founded upon the complete agreement of every one of its citizens so that the rights of minorities do not have to be defended? There are no minorities to defend. We do not regard that as democracy. It is not democracy and I say that the two elements most important to the preservation of the democratic way of life are, first, the right freely to dissent and, second, the establishment of the rights of minority groups.
No doubt it is difficult to defend these rights. I welcome the spirit in which this matter was approached by the Attorney-General. But the difficulty has to be tackled. It is all very well to say one can rely on the law of seditious libel. That is what we have been told for a long time now. There was a recent case and there is no reason why one should not mention it. There was a time when there was a good deal of quite understandable excitement in this country about events in Palestine. Lives were lost in circumstances that aroused, quite rightly, the utmost indignation.
In such times, of course, there is a natural tendency on the part of uninstructed people to vent their indignation upon innocent victims. I remember living in Liverpool in the year when the "Lusitania" was sunk. It can be easily imagined that there was a great deal of excitement among water-front workers in Liverpool. There were riots, during which every shop bearing a foreign-sounding name had its windows broken and its goods stolen.
One of my earliest recollections is of listening to a case at Liverpool Assizes tried by Mr. Justice Sankey and brought by a Swiss with a German name who was represented by the late Mr. Justice Rigby Swift, the defendants, the Liverpool Corporation, being represented by the late Lord Hewart. Damages were awarded and paid. In moments of that kind the part of responsible citizens, and particularly of responsible newspaper editors, is not to 590 play up to the excitement but to damp it down.
There was a paper called the "Morecambe Advertiser," edited by a man called Caunt. He wrote a leading article in his newspaper in which he said, in almost so many words, that the proper thing to do was to commit violence against any Jew one could find. I do not pretend that that is a verbatim quotation, but I do not think anyone who has read that leading article will say it is an unfair paraphrase. He was tried for seditious libel. There was a great Liberal sitting on the bench, anxious about democratic principles and the freedom of the Press.
It is not for me to criticise. I only make the comment that he summed up what seemed to most people a plain incitement to violence as though it was a case attacking the sacred principle of the liberty of the Press. It had no more to do with the liberty of the Press than the doctrine of the liberty of the subject is a proper defence to a charge of murder at the Old Bailey. An editor has no more right, as a newspaper editor, to incite to violence than has a private citizen, but the jury acquitted him.
I think that the reason why they acquitted him was partly because this law of seditious libel has an ancient history. It was largely relied upon 150 years ago to restrain any expression of progressive opinion. I think it was relied upon by Charles I and all the Stuarts as a principal weapon in their conflict with Parliament. It has a historic background which makes juries reluctant to treat that kind of matter on a criminal basis.
The effect of Rex v. Caunt has been to satisfy me—I never thought so before—that it is necessary not to rely upon existing law but to have a model, well-conceived, well-drafted, well-considered law which has the sanction not of some medieval statute but of a modern statute accepted by Pariament today. I do not think it impossible to draft such a Clause and I hope that one will be drafted.
I am sorry that I have spoken so long; I had no intention of doing so. I should like to join with other hon. Members in wishing the Bill a safe passage at this stage and a careful, honest, fruitful and constructive examination in Committee.
§ 3.27 p.m.
§ Lieut.-Colonel Marcus Lipton (Brixton)
The technical and legal details of this Bill have been more than amply discussed in this debate. I have neither the time nor the inclination, nor perhaps the capacity, to deal with the points that have already been dealt with fully. First, I should like to join with those hon. Members who have expressed gratitude to the Attorney-General for what appears to be his sympathetic and helpful attitude to the various representations that have been made on the subject of community libel.
This Bill is the direct result of the Porter Committee's Report. The aim of that Committee was not to extend but to reduce the ambit of slander and libel, and to make it more difficult to bring an action for damages under either of those two heads. It was aimed at those people, who have been mentioned, who search the newspapers every day in the hope of finding material which will enable them to put a little money in their pockets either by bringing an action or threatening an action against the newspaper concerned.
I wish to refer to the subject of group defamation. Although the Porter Committee did not consider that any appropriate remedy falls within the general scope of the law of defamation, nevertheless I hope that some consideration will be given to this matter in Committee. I do so for one reason which has come to my notice only recently.
It has been announced in the local Press that, in connection with the forthcoming L.C.C. election, Fascist candidates are to come forward in the Brixton division, which I have the honour to represent. Their participation in that election seems to depend, according to the report in the local Press, on whether they can raise sufficient campaign funds in time. It would appear that an endeavour is being made to raise £100 to enable these Fascist candidates to stand. Of course, I have no objection, and no democrat would have any objection, to the appearance of opposition candidates.
§ Mr. Speaker
The hon. and gallant Gentleman is getting rather wide of the Bill before us. We are not concerned with the election for the London County Council.
§ Lieut.-Colonel Lipton
It was made quite clear, in the statement which was made by these people, that one of the issues to be raised by them in this election was the colour issue in Brixton—namely, the presence in that area of British subjects from Jamaica and the West Indies. That group is to be made the subject of a campaign of vilification and abuse in order to further the infamous political ambitions of a small and unrepresentative group of people who are notoriously group-libellers.
Now that it is clear that what I am saying is in order. I submit that any attempt to win public favour or to get money by group defamation of the kind to which I have referred is contrary to all the best principles of public life in this country. I hope that some attention will be paid to this matter in Committee.
With these few remarks, I commend the Bill, and I am happy to associate myself with those other hon. Members who have asked that it be given a unopposed Second Reading.
§ 3.33 p.m.
§ Mr. G. R. Mitchison (Kettering)
I hope the House may now feel able to give the Bill a Second Reading in order that we may have a short ride on a nice municipal horse afterwards. I should have said more, but we are all agreed in supporting the principle of this Bill and we are all agreed, I think, that when the Attorney-General of the day said in 1939 that thelaw of libel as an instrument of justice is not in a satisfactory state and requires overhauling."—[OFFICIAL REPORT, 3rd February, 1939; Vol. 343, c. 605.]he said something which was right then and is right now. It was after that statement that the Porter Committee was appointed and met in 1939.
The Committee did not and could not report until after the war, and it is true that nothing was done on its report when it was issued, not only under the previous Governments but also when the hon. and learned Gentleman the present Attorney-General was asked to take action a few months ago. All the better that it should be done now at the instance of a Private Member. We ought to be extremely grateful to the hon. Member for Cheetham (Mr. N. H. Lever), who introduced the Dill, and to the hon. Member 593 for Oldham, West (Mr. Hale), who seconded the Motion.
All the points which have been mentioned today are Committee points—every one of them. I suggest to the House that the Porter Committee was distinguished not only by the very great legal authority of those who composed it but also by the fact that the judges who sat on it were men who had conducted other inquiries and who had had an even wider experience of the world and of political affairs than always falls to judges. In addition, the Committee comprised other members whose practical knowledge in this sort of field entitles them to the greatest possible respect.
I believe that every one of the points that have been raised today was carefully considered by the Porter Committee and this Bill, in fact, follows almost exactly the Report of that Committee except on two points. It omits the powers of the Court of Appeal with regard to damages and the question about actions on the case, as they are commonly called, both of which the Attorney-General mentioned in the course of his speech.
Otherwise, the Bill follows that Report exactly and I hope that in Committee we shall remember that the Porter Committee itself had in the forefront of its mind the question of the balance between public information and private reputation. It was the main point before the Committee, and, therefore, I hope that we shall not too lightly depart from those recommendations, because they were given after the fullest consideration not only of the legal question but of the weightier public and political question that is necessarily involved in the law of defamation.
It is one of the points where the law is bound to affect public policy in the broadest sense and it is bound to affect not only the particular cases of libel but the general conduct of authors, whether in books or in the Press, not merely because some of them may have been involved in libels but because the possibility of a libel action is bound to limit' what they do and what they think they can do. Indeed, one of the greatest dangers about it is that publishers and authors, whether of books or in the Press, are only too apt in the present 594 state of the law to be over-cautious, and that, in the long run, may well be to the public detriment.
I hope, therefore, that this Bill will get what it appears likely to get—a unanimous Second Reading.
§ Question put, and agreed to.
§ Bill accordingly read a Second time.
§ Committed to a Standing Committee.