Lords Amendment: Leave out lines 21 to 23 and insert:
shall not be unlawful unless at the time of the publication that person knows that the matter is defamatory, and does not reasonably believe there is a good defence to any action brought upon it.
Motion made, and Question proposed, "That this House doth agree with the Lords in the said Amendment."
§ 2.13 p.m.
§ Sir Patrick Spens (Kensington, South)
A number of us did not like Clause 11 when the Bill was considered in Committee, nor at a later stage, but when it was passed by this House it was limited in extent. The objection in principle was to indemnities being given to persons who were going to perpetrate libels on other people which might do very great damage. As drafted, it was limited to cases where a person did not know that the matter was defamatory. In other words, it was limited to the sort of case we were mainly discussing in this Bill where libel was committed by accident, so to speak.
1501 Now the provision comes back to us with additional words which very substantially extend the scope of the Clause, because now such an indemnity will still be lawful even though a person knows that he is going to publish defamatory matter, provided he can also say that he has some reasonable ground for believing that there was a good defence to the action. Who is the person who is to be protected by this Clause? As a rule it will not be a lawyer but a layman, a journalist. Probably he will be protected by the proprietor of a paper who says, "Yes, go ahead, publish this; if it turns out to be defamatory and gets you into trouble, I am going to indemnify you."
As the Bill left this House, no indemnity would be given if it were known that the matter was defamatory. If it were defamatory, one could not get any valid indemnity against publishing it. Now, as it comes back to us, one can deliberately publish matter which one knows to be defamatory and be indemnified in respect of it, provided one can say that one has a reasonable belief that there is a good defence to an action.
That means that the person will say, "I believe this is the sort of thing we ought to be able to get away with by way of defence; there ought to be some sort of defence," or something of that sort. How a court is going to find out whether a layman has a reasonable belief that there is a good defence or not, I simply do not know. What I do know is that this is extending the scope by giving an indemnity to a man who is deliberately going to publish defamatory matter in a way which I think is wrong and ought not to be encouraged.
At an earlier stage, I expressed very strong views about indemnities being given to anyone by another person to commit a tort. I think it is utterly wrong in principle, and I believe it ought to be narrowed down as much as possible. But to give an indemnity to a person who is deliberately going to publish defamatory matter provided he has some sort of idea that if an action for libel is brought there would be some sort of valid defence to the action, and remembering that that person in nine cases out of 10 will be a layman—not a lawyer—seems a most unwarrantable extension of this principle, and I strongly object to it.
§ Mr. N. H. Lever (Manchester, Cheetham)
I listened with great respect to the remarks of the hon. and learned Member for Kensington, South (Sir P. Spens). It is interesting to know that in this day and age he holds the view that there ought not to be indemnity against the commission of a tort. I take it that the hon. and learned Member considers that motorists should drive cars without third party insurance. That is a view which is not widely held in this country.
I believe this Clause is no more than declaratory of the law as it stands. Some doubts have been expressed, but all this Clause does is, not to indemnify anyone, but to allow people to secure indemnity against actions for defamation and to ensure that it shall not be voided as unlawful merely because the publisher knows that what he is about to publish is defamatory, if he has reasonable grounds for supposing that he has good defence. I am sure that the hon. and learned Member would not want to preclude insurance against this sort of thing.
Supposing a publisher gets a Reuter report that someone has been convicted of a criminal offence and publishes it. Of course he knows it is defamatory; there is nothing sinful about publishing what you know is defamatory. If he publishes that Mr. Smith was sent to prison for three years for bigamy, he has reason to think that he has a reasonable defence. In those circumstances, surely, we would all say that the insurance protecting the publisher should not be voided as unlawful merely because it turned out that Reuter's man at Liverpool Assizes had made a slip.
§ Mr. Lever
Mr. Smith has a perfectly good case of action against the newspaper and Reuter's. It does not affect the rights of the party maligned in any way. I think the House can set its mind at rest that the rights of the libelled parties are not affected in any way. It might assist the hon. and learned Member if I point out that the person who is libelled gains, because this means that the insurance policy covering the newspaper will be valid. If the newspaper has not the money to pay damages, the person libelled will have the right of recourse against the people insuring the newspaper.
1503 In those circumstances, I would respectfully urge that, unless one accepts the view of the hon. and learned Member for Kensington, South that we ought not to have insurance policies covering any tort, which he frankly avows is his position, the Clause should be in this amended form.
§ Mr. Sydney Silverman (Nelson and Colne)
When a man buys a motor car he does not intend to injure anybody with it. He buys it and drives it for his own amusement. But even before the legislature interfered, such a person realised, if he was prudent, that he would not always be driving at his best and would sometimes make mistakes, and accordingly he insured himself against them, both for his own protection and for the protection of any innocent victim of his carelessness.
That is very different from the kind of indemnity involved in this Clause, and if the hon. and learned Member for Kensington, South (Sir P. Spens) declared himself to be against contracts of indemnity for the commission of torts, I think that, in spite of the words he used, my hon. Friend the Member for Cheetham (Mr. N. H. Lever) did him rather an injustice in not appreciating that what he had in mind was contracts of indemnity to commit deliberate torts, not accidental ones.
That should be borne in mind in view of the extension of the argument by my hon. Friend, which I am sure he will appreciate was not really justified by the arguments advanced. He is really saying that this Amendment is a very good one, that indeed it is an obvious one if only declaratory of the present law, and that there is really no harm in it. In that case, it is a little curious that it should only be thought of at this stage of the argument.
We had a Second Reading debate, when the Clause was in its unamended form and nobody quarrelled with it. We had a long Committee stage in which no one put the point which my hon. Friend is now inviting the House to say is so obvious. My hon. Friend did not propose any Amendment to the form in which the Clause left this House to go to another place. It is rather curious, if the Amendment is so innocuous and necessary and as obvious as he says it 1504 is, that he should not have thought so until it came to us from the House of Lords.
§ Mr. N. H. Lever
Could I assist my hon. Friend? The point was taken by the noble Lord who leads the Labour Party in the House of Lords. It is a point which seemed to escape our attention in the Committee, where the Clause was not debated, so that this defect was not realised. When the noble Lord who leads the Labour Party in another place drew attention to this defect, the Clause was, by agreement in another place, amended in the form proposed in the Amendment.
§ Mr. Silverman
I thought that that was exactly what I was saying. I said that if the point is as obvious as we are now asked to believe, it is curious that nobody thought of it before. My hon. Friend has intervened to say that no one did think of it before, and that is exactly what I was saying. He said it never occurred to anybody until it occurred to the noble Lord who, added to his qualifications, is a member of the same party as my hon. Friend and myself, which of course makes him an infallible judge on this point.
I do not think that my hon. Friend is doing himself justice in thinking that this Amendment is quite so straightforward, simple or obvious as he pretended. If it were, I do not think that it would not have occurred to him at an earlier stage, or to the Attorney-General or to any Member of the Committee, which I hope most people would deem to be—no doubt with some exceptions—an extremely capable, able and experienced Committee, examining the Bill upstairs with precisely the object of making certain that it should improve the law of libel so far as it was, within the four corners of its Title, capable of doing so.
I agree entirely with what was said by the hon. and learned Member for Kensington, South. If there are to be contracts of indemnity at all, and there are cases where there should be, they ought not to extend to a case in which a man knows that what he is doing is, on the face of it, a tort. I prefer the Clause as we left it in Committee and as it left the House. Clause 11, as we left it, stated:An agreement for indemnifying any person against civil liability for libel in respect of 1505 the publication of any matter is lawful unless the agreement relates or extends to the publication of matter which the person indemnified knows to be defamatory.I think that is as far as we should go. We should go as far as that, but I see no reason why we should go further. I object very strongly to the alteration that we are being asked to approve.
§ Mr. David Weitzman (Stoke Newington and Hackney, North)
I am tempted to intervene because I cannot understand what is the objection being put forward here. My hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) was good enough to read Clause 11, and if the House would bear with me I should like to remind the House again of the words which my hon. Friend has just read. The words at the end of the Clause read:unless the agreement relates or extends to the publication of matter which the person indemnified knows to be defamatory.This Amendment seeks to leave those words out of the Clause, and merely to add a number of other words, namely:shall not be unlawful unless at the time of the publication that person knows that the matter is defamatory,"—the words of the original Clause, and then to add—and does not reasonably believe there is a good defence to any action brought upon it.How anybody can quarrel with that and say it is not eminently reasonable when it adds, as it were, to the protection given to the individual, I do not know. I hope that the House will certainly agree with the Amendment.
§ Sir Lynn Ungoed-Thomas (Leicester, North-East)
I have been a little puzzled myself. There is a certain amount of confusion which results from a double negative included in the form of the Amendment. I am dealing purely with the question of construction, not the merits or demerits one way or another. As I understand it, the effect of this Clause would be clear, and the truth of it would be expressed, if we left out the wordsknows that the matter is defamatory, and …and simply leave it to readdoes not reasonably believe there is a good defence to any action"—for defamation—brought upon it.1506 The wordsknows that the matter is defamatorydo not limit the defence in any way. I think the confusion arises from the double negative. If my hon. Friend has a different view on it, I should be glad to hear it.
§ Question put, and agreed to.