§ 4.30 p.m.
§ Order of the Day for the Second Reading read.
§ VISCOUNT SIMON
My Lords, I rise to move the Second Reading of the Defamation Bill. It is a measure which was introduced into another place by a private Member, Mr. Lever. It has received full consideration in Committee, and afterwards, as well as a Second 1088 Reading in another place. It now comes before this House in the hope, and I think in the expectation, that by a united effort we may carry it into law. In other circumstances, I think it would have been proper, in moving the Second Reading to speak at some length and in some detail on the general subject and contents of the Bill, and I must still refer to some of the principal matters in the Bill. But I think it will be for the general convenience of the House if I limit what I have to say now to the minimum which is proper; and other noble Lords, no doubt, will also want to take part in the Second Reading debate. It must be recognised that this is a very important Bill, of wide application, and that on more than one point questions may reasonably arise on which a difference of opinion is possible, with the result that, when we come to Committee, we shall have to discuss some of these clauses with a good deal of elaboration and care. I shall not do any injustice to the importance of the subject if I now make a statement which is briefer than I should otherwise make, in view of the obvious desire of the House in due course to get on with what remains of the Business on the Paper to-day.
It is thirteen years ago since the then Lord Chancellor, my noble and learned friend Lord Maugham, appointed the Committee on the Law of Defamation, the Report of which I hold in my hand. It may be convenient to say that it is Command Paper 7536, of the year 1948. The Committee is known, I think, as Lord Porter's Committee, with a very distinguished list of persons who accepted the duty of carrying through the inquiry. It was headed by Lord Porter, who has taken a large part in drawing up the Report. It included, for example, Lord Justice Birkett; it included another who is now a High Court Judge, Mr. Justice Slade; and it included others with special knowledge of this subject, such as Sir Valentine Holmes. It included other members who might specially appreciate the importance of this subject in connection with writing articles and editing and producing newspapers. It included, also, some others who would take a general view of the importance of the subject. As I have said it was thirteen years ago that these men were appointed, and the Committee lost no time in beginning their work. But the war came, and 1089 much of the work of the Committee was inevitably postponed.
When the war was over, the Committee resumed their work and took a very large body of evidence and, manifestly, discussed those different points very closely. The Report to which I have just referred was made in the year 1948, nearly five years ago, and, as I have said, it is available as a Parliamentary Paper. Nothing has been done. I do not think it was disputed by anybody that some reforms in the English and Scottish law of defamation were important, and there was a considerable measure of agreement as to what these reforms should be. When the Committee had finished their deliberations and drew up their Report, they were able to deal with a great number of these subjects and, in almost every case, their conclusion is a unanimous conclusion. Where there is any difference, it is a difference which is represented by the contrasted view of one or two members. And yet, so far, nothing has been done to implement the Report. Here, in this Bill, comes the opportunity which Parliament now has—and there is time to do it—of carrying through what undoubtedly would be a very important and useful reform of the law. I am not saying that the Bill contains every change which some people would think wise, but if it is carried into law, it will effect some extremely important improvements in the law, and I think it will be the general feeling that it is very important to get the Bill on to the Statute Book.
I will mention three or four of the most important matters which are dealt with in this Bill, and make a short reference to the Report of Lord Porter's Committee on the subject at the same time. If your Lordships have a copy of the Bill in your hands, you will see that in the first clause there is provision as to broadcast statements. A good deal of difficulty has arisen during recent years in deciding whether or not broadcast statements are to be classed as libels or as slanders. In most cases, I think people who broadcast have a written text; but, of course, the noise that comes out is the noise of the voice. The broadcast is heard by the ear and one might, therefore, regard it perhaps as a communication which is made just for the moment and then passes into oblivion, as distinguished from something which is regarded as permanent and, 1090 therefore, of a more serious character. I refer now to page 13 of the Committee's Report, where it is pointed out, I think very justly, that:A defamatory statement transmitted over the radio in a broadcast, reaching, as it may, an audience of many millions, is calculated to cause as much, if not more, damage than a written report in a newspaper however large its circulation.Accordingly, in the first clause of this Bill, following the recommendations of the Porter Committee, the provision is that:For the purposes of the law of libel and slander, the broadcasting of words by means of wireless telegraphy shall be treated as publication in permanent form.That is the same as saying that it is to be regarded as a libel rather than as a slander. I may point out that Clause 16, near the end of the Bill, makes it clear that what is said in this first clause does not apply to short-wave messages—such, for example, as are sent out from time to time by police cars and the like. It refers to broadcasting and, no doubt, to television, which we owe to a central authority. That is Clause 1.
Clause 2 is, again, a clause of great importance. It is one of the clauses in which the distinction between slander and libel may be of some importance. I think there are authorities who take the view that we ought to assimilate the law of libel and the law of slander. I will not enter upon discussion of that point now, except to say that I know there is such an argument and in due course we shall have to consider and weigh it. Throughout the Bill, the broad distinction between slander and libel is maintained—the distinction, broadly speaking, being that libel is a defamatory statement in some fairly permanent form, like a written statement, whereas slander is a libellous statement which does not possess that permanent character, because it is merely spoken. The reason for Clause 2 is this. It is an important branch of the law of slander that, whereas a man may complain of defamatory words which are spoken of him in the way of his office, profession, or trade, and which naturally tend to injure his reputation in that office, profession or trade, he cannot bring an action and cannot recover damages, even though the words spoken were defamatory of him, unless it be a statement made about him in the way of his office. For example, a teacher would certainly be 1091 entitled to bring an action if someone said of him that he was an ignorant person, not fit to teach. But if somebody said of him that he was a person who when on holiday, was of immoral life that in itself would not give the teacher a right of action.
That situation is plainly wrong, and the Committee deals with it very usefully at page 14, pointing out that as a matter of fact, words like those would be extremely harmful to the man's reputation in his calling, even though they are not spoken of him in the way of his calling. In that I should think everybody would agree. Therefore, the Committee provide that by this clause we should amend the present law and abolish the requirement that in such cases the spoken defamatory words must be actually spoken of the plaintiff in the way of his calling; and that, instead, there should be provided, as will be seen in Clause 2, that even though the words are not spoken of him in the way of his calling, if they are calculated to disparage him in his calling, then the conditions are satisfied which will enable an action to be brought. I do not feel any doubt that, assuming that we maintain the broad distinction between slander and libel, your Lordships will accept that recommendation.
I will not delay your Lordships in regard to Clause 3, beyond saying that the matter is dealt with carefully in paragraph 54 of the Report of the Porter Committee, on page 15; and anyone who cares to read it will there see a very clear justification for Clause 3. I think people are sometimes a little in doubt as to what is meant when one says that in certain slander actions the plaintiff must prove "special damage," whereas if the complaint is one of libel special damage need not be proved. I think I speak correctly when I say that the requirement of special damage means that the plaintiff must prove actual pecuniary loss which directly results from the defamation of which he complains. Broadly speaking, that is true of slander, though it is not true of libel.
Then, my Lords, in Clause 4 we come to what is both a complicated and an interesting matter. The side note describes it as "unintentional defamation." That is the language which is used on page 16 of the Porter Committee Report. 1092 This is a problem which has puzzled not only lawyers but, I think, other people too, such as journalists and writers, for years. A man writes a story in which he has to give his character a name. He does his best to select a name which will not fit anybody—perhaps he invents a name—and in the story his character is not a very desirable one. Then it turns out that, after all, there is somebody who has exactly that name, and, what is more, somebody who can produce a witness who will say that when he read the story he really thought it referred to the gentleman in question. It sounds farfetched but that does sometimes happen, and there is no doubt at all that our law (and I think rightly) does not inquire into what was the intention of the writer. what was in his mind, but asks the objective question: is it the fact that these words about this person with such-and-such a name, having been published, the words really have been regarded, and reasonably regarded, by those who knew him, as referring to the plaintiff?
For example, there was a famous case which mentioned the name of Artemus Jones, and the writer of an amusing sketch imagined, I believe, that when he wrote about Artemus Jones he was using an imaginary name for the purpose of his story, without the smallest idea of referring to any known, existing person at all. At any rate that is what he said. But this is what he wrote in his description of a fictitious character who was enjoying a holiday abroad and, according to the story, not behaving strictly as he did at home—in fact, in the story he was a churchwarden:Whist! There is Artemus Jones with a woman who is not his wife, who must be, you know, the other thing.Thereupon a gentleman whose name was Artemus Jones issued a writ for libel. He called somebody who knew him very well (I think it was his father), to testify that when he read these words he thought they referred to the plaintiff—and the gentleman got very heavy damages. Well, the proposal is that the strictness of the law in this respect should be altered. A still more remarkable case perhaps is another which is to be found in the books, which concerned a man whose name was Harry Newstead, who lived in Camber-well, of whom somebody wrote:Harold Newstead, thirty years old Camberwell man, who was jailed for nine months, liked having two wives at a time.1093 That might have been all right about one person named Harold Newstead, but it certainly was not right about another person named Harold Newstead. They both lived in Camberwell, and the latter person brought an action and got damages. He said that he was accused of bigamy, whereas he was not a bigamist at all.
Well, something has to be done, and Clause 4 of this Bill deals with this un-intentional defamation. It provides, in substance, that if a person has published defamatory matter quite innocently, not meaning to defame another person, and then finds that there is a claim against him alleging that he has damaged the other person, he can make an offer of amends, by a suitable statement that will relieve the feelings of the party aggrieved. I need not read the details to your Lordships, but if he does that, and does it promptly, he is not to be held liable in damages. I should have thought that that was a reasonable compromise. It is discussed with very great care and fullness in the Porter Report, at pages 16 and 17. Practical justice, which is what we are all after, will be done if the person alleging he has been wronged gets a retraction or explanation, suitably published, without hitting the innocent libeller, if we may call him such, in pecuniary damages.
Then, my Lords, there follows a clause, again of much importance, to which I must call attention as I go along, headed "Justification." I expect your Lordships know what lawyers mean by "justification." This Bill deals with civil defamation, and not with criminal libel. As your Lordships know, in any action brought for damages or defamation because the statement of which the plaintiff complains is an injurious one, it is a complete answer to say, "You may complain as much as you like, but what I have said is true." It rests, of course, on the defendant to prove that the statement is true, but if he can do so, then no damages can be recovered. I think some people have had doubts as to whether that is an altogether wise law, but at any rate I should regard it as much too fundamental a principle to be changed. It has been the law of this country for a very long time.
I recall having read some years ago a most admirable biography of Sir Frank 1094 Lockwood, written by his friend, Mr. Augustine Birrell. In that book Mr. Birrell records the fact that Sir Frank Lockwood frequently appeared for a publication which used to be conducted by Mr. Labouchere and which still survives, though with a rather different content—a periodical called Truth. Mr. Labouchere, in those days, took infinite trouble to collect all the necessary material to justify some frightful libel which he thought fit to publish in his paper; and Sir Frank Lockwood used to appear for him and, in due course, prove that what was said was true. Mr. Birrell referred to Mr. Labouchere, in that book as "that bold and judicious libeller, who deserved well of the Common Law Bar."
The only modification this Bill seeks to make on the subject of justification is in Clause 5. The reason for it is to be found on page 20 of the Porter Report. It is that truth is a perfectly good defence, if you prove it, to any action for defamation. But there may be cases in which you are unable to prove the truth of every single item of what you have said. In such circumstances, if, as a matter of fact, you have proved the truth of all that matters, and the only thing that remains is some little matter which is not justified, then under Clause 5 the defence of justification does not fail by reason only of the fact that the truth of every charge is not proved—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. If, for instance, you said of a man, whom otherwise you were justified as exposing as a rogue, that he had been sentenced to five years' imprisonment, whereas he had been sentenced to only three years' imprisonment, it would certainly seem unreasonable that he should get damages just because you made that small mistake.
Clause 6 deals with a matter which we must consider in more detail later—that of fair comment. It is a difficult subject both for lawyers and for laymen. It is fully discussed in the Report, on pages 21 and 22.
When we get to Clause 7 we are in a still more difficult territory, the law of defamation in connection with what is published in a newspaper. The principal Act on that subject, I think, on our 1095 Statute Book, is the Law of Libel (Amendment) Act of 1888. It contains elaborate provisions which, in some cases, protect honest reports contained in newspapers of proceedings which none the less may involve libellous matter. But I will not go into it now. Clauses 7, 8 and 9, I think, cover the topic, and I hope will be found to cover it admirably. Clause 10 is a rather special clause which I think was introduced in the House of Commons limiting the privilege of a statement publishedby or on behalf of a candidate in any election to a local government authority or to Parliament. …I do not think it is of great importance, and it will be enough for the moment to say that I believe it was largely inspired by a decision which goes by the name of Braddock v. Bevins, reported in 1948, 1 King's Bench Division, at page 580.
I do not think I need delay your Lordships now about the other clauses. I hope that I have said enough to show that this Bill does some very useful things, and that here is an opportunity of making these very useful changes. I very much hope that we shall not miss the opportunity. As I pointed out at the beginning of my speech, it is thirteen years since the then Lord Chancellor realised that it was necessary to examine the law of defamation and consider in what respects it should be changed and improved. And the present Bill, the Defamation Bill, which I have the honour now to present to the House on Second Reading, contains a great many of these reforms, largely in the way recommended by this most authoritative Committee in their Report presented to Parliament five years ago. My Lords, I beg to move that the Bill be now read a second time.
§ Moved, That the Bill be now read 2a—(Viscount Simon.)
§ 4.56 p.m.
§ EARL JOWITT
My Lords, in rising to say what I have to say about this Bill, I want to make it plain that I am speaking for myself alone. There is no Party issue involved in this Bill, and I have no authority to represent the views of anyone else. I am in the happy position of being able to say exactly what I think about this Bill; and that I propose to do. I should like to add one other matter—and 1096 it is this. This House is peculiarly well fitted to take a Bill like this in hand, modify it and transform it into a better measure—if indeed it needs that treatment. I very much hope that the mere fact that we are under some pressure of time will not prevent us from properly fulfilling our function and going very carefully through this Bill. If it should be that pressure of time does prevent us, and if, as a result, the Bill is lost by the end of the present Session, I think that the Government of the day ought to take it in hand and make themselves responsible for reintroducing it.
I say at once that I like this Bill better than nothing, but there are some respects in which I regard it as most disappointing. My dilemma is this: am I or am I not to try to get this Bill improved, as I think, or shall I say: "Oh well, if I try to get it improved, I may lose the Bill altogether. In that case I had better have it as it is." I feel that dilemma. But I also know this. If we pass a Bill now dealing with this topic the chances of another Bill dealing with the same topic being passed in the next twenty or thirty years, are negligible. It was in 1891 that the last substantial measure dealing with libel and slander was passed. It will be another fifty years before we get a chance of another substantial measure. On the whole, I have come to the conclusion that we ought to do the best we can to improve this Bill and make it into a better measure.
Before I go on to indicate the respects in which I consider the Bill defective, I should like to say how greatly we all appreciate the work of Lord Porter and his Committee. The Bill is largely founded on the work of that Committee. For my own part, if the Bill had more closely followed the Report of that Committee I should have liked it much better. There is one important point on which I differ from Lord Porter, or, rather, from Lord Porter and the majority of his Committee. But in the main I accept the conclusions of the Committee, and I am frankly sorry that some of the conclusions to which they came do not find their place in this Bill. Let me briefly give some illustrations. I do it now quite deliberately. I am aware of the fact that we are in a difficulty by reason of another debate which is to come on later. I suggested, indeed, that it might be convenient to postpone consideration of this 1097 Bill in order to allow the other debate to come on. For my own part I should be, and I shall now be, very ready for that to be done. I gather, however, that there are technical difficulties in the way. If they can be got out of the way, I am prepared to allow that to be done. As things are, I think I must make my speech because this is an important matter. I am sorry that the most reverend Primate should have to listen to it—I know how much work he has to do.
The Report of Lord Porter's Committee, at paragraph 160, dealt with the question of damages. They said that this was a class of case in which the Court of Appeal ought to have considerably wider discretion in dealing with damages than in the ordinary case. With that observation of the Committee I find myself in complete agreement, and I feel that it is a pity that there is no provision in this Bill to that effect. At a later stage I shall move an Amendment in order to have this matter discussed.
May I give your Lordships one striking illustration from my own experience? There was a case in which two brothers were travelling in a car and the car came into violent collision with a lorry, the accident being entirely the fault of the lorry driver. The insurance company who, of course, had to pay thought to themselves that they would get off with smaller damages if they made the brother who was the passenger—who suffered a fractured skull—bring his action against the brother who was driving, rather than against the lorry driver. So they organised a system whereby the lorry driver was to deny liability—though he had already been convicted of the criminal offence of dangerous driving—and the brother driving the car should admit liability. Both brothers brought actions—the brother who fractured his skull to recover damages for the injury he had sustained, and the brother driving, who fortunately had escaped with no injury, for libel, because the insurance company had said he was guilty of careless driving. The brother who fractured his skull got £900 and the brother who had been said to be guilty of negligent driving got £1,000. The Court of Appeal felt they could not alter this decision, but one Lord Justice said this:I can well imagine the passenger saying to his brother the driver, 'You have all the luck. I had my skull fractured and I only get £900, 1098 but because someone said you fractured it you get £1,000. And it was only said to my solicitors, who would not believe it for a moment'.The learned Judge goes on:In the course of twelve years at nisi prius, I have been struck by the contrast between the frequent niggardliness of verdicts in cases of personal injury and the invariable profuseness in claims for defamation. A soiled reputation seems assured of more liberal assuagement than does a compound fracture.Anyone with any experience in the courts will know that that is true. That being so, Lord Porter and his Committee made the unanimous recommendation that in this class of case the Court of Appeal should have a wider discretion than in ordinary cases; and, for myself, I regret that that recommendation does not find its place in this Bill.
The noble and learned Viscount, Lord Simon, who introduced the Bill, dealt with unintentional defamation. I agree with what he said, but I am a little afraid that the clause in the Bill, as crafted, is too narrow to achieve its object One of the main recommendations of the Porter Committee, on which they were unanimous, was that the publisher of that which turned out to be a libel should not be rendered liable by the mere fact that somebody else was guilty of malice. Take the case of a man who writes a letter to, or an article for, a newspaper. He refers to what appears to be an imaginary person, but some real person brings his action. So far as the publisher is concerned, he took all reasonable precautions. He had not the slightest reason to suppose that a real person was being libelled. The writer, however, all the time had at the back of his mind the intention of defaming this man. As the law stands, the publisher of the newspaper is made liable by reason of the malice of the other person, the writer. The Porter Committee, if I understand them aright, said that that was wrong and that in future the publisher should not be liable for malice—except, of course, for his own malice or that of his own servants. But that recommendation finds no place in the Bill.
The Porter Committee left open the question of onus of proof. Is the publisher to prove that he took all reasonable care or is the person libelled to prove that the publisher did not take reasonable care? I do not very much mind, but I have had a great deal of 1099 experience in this subject, and I know how authors writing a book see this matter to-day. An author may take a common name like John Smith and hope, because of the mere fact that the name is common, that that will give him protection, in which case he runs the risk of a large number of John Smiths saying they thought it applies to them. Or he may take a very rare name, such as Marmaduke Pickenthall, in which case, if it turns out that there is such a person, he will say that, quite obviously, he is the person referred to. I remember one case which I had for George Moore, the writer. Afterwards he assured me that in his next book he was going to refer to his characters by numbers! There is a very real problem here.
The Bill provides that the publisher has to prove that not only he but every servant concerned with the publication of what turns out to be a libel has not been guilty of negligence. In the case of the printer, every single printer would have to be called to prove that he was not guilty of negligence before this defence would be available. Moreover, this defence does not apply to any libel where the words are "defamatory on the face of them." If a novelist writes a novel, he cannot make it consist entirely of compliments. He must have some villain in the novel, and that is defamatory on the face of it, though it is not defamatory of any particular person. I think that point wants looking at. We shall have to examine this clause with some care to see whether it is in workable form. The payment of money into court is a thing which has long been an anomaly in this law. In many cases there are three defendants—the writer, the publisher and the printer. They do not always agree on the line they are going to take. One pays money into the court, and the others do not. Why should not that money be paid out and the action abandoned, so far as it concerns the first defendant, but be continued in regard to the other two? That is a recommendation of the Porter Committee but, for some reason that I do not understand, it is not to be found in the Bill.
There is the very difficult question of evidence in mitigation of damages. This is dealt with in paragraph 156 of the Porter Committee's Report. It is the 1100 case that to-day we may find a man who is a real rascal recovering damages on the footing that he is a completely honest man. The Committee say, in paragraph 149:Subject to what is said below as to cross-examination to credit, the rule in Scott v. Sampson may operate in practice so as to enable a notorious rogue to recover damages for defamation upon the basis that he is a man of unblemished reputation.But, of course, if he is called into the box and asked to give evidence, he can be cross-examined on credibility. The practice is—and I have followed it myself on more than one occasion—to call such a man into the box and ask him no questions. If counsel does not ask him any questions, the other side cannot ask him any questions on credibility. Counsel submits him for cross-examination, but all cross-examination is inadmissible because he has given no evidence. This is the sort of case which should be covered. It was considered by the Porter Committee. The useful clause in the Bill is Clause 11, dealing with agreements for indemnity. I myself have never had any doubt that these agreements were legal. But I do not like the phrase at the end of the clause,which the person indemnified knows to be defamatory.My reason for disliking that phrase is that an indemnity may often be required in these circumstances. You may be writing a book, an article or a paragraph about some man or some event, and, if you are honest, you will frequently have to say all sorts of defamatory things. Defamatory they are, but they are also true. It is in just those cases, where you are writing defamatory things about some living person of your knowledge, that you would want to be indemnified if you could get an insurance company to agree. The fact is that you are saying what you are firmly convinced is the truth, and you are prepared to justify it.
I have in my criticism so far indicated some of the points, although not the most important ones. I now come to the question where I differ from the Porter Committee, and I think it right to indicate it briefly, in order that it may be considered, and so that I may put all your Lordships who can bear it in possession of the argument. I have long been of the opinion that the law of libel and the law of slander ought to be assimiliated. I ought 1101 perhaps to disclose this—I will not say, interest, but prejudice. When I was at Oxford I was fortunate enough to be trained in the law by Sir William Holds-worth, the writer of the great and famous book A History of English Law. I learned Holdsworth's view on this matter almost in my first few lectures at Oxford. He records it in Vol. XII of A History of English Law, on page 378, and I should like to read it to your Lordships. It is as follows:In the eighteenth century, political developments necessitated important changes in the criminal law; and the division of the tort of defamation into libel and slander—a division due historically to the need of finding some remedy for the mistakes made by the common law in the initial stages of the development of the tort—still disfigures the law. But the definition of the tort of libel was on the whole satisfactory; and it has formed a good starting point for the development of, and a sufficient framework for, the many detailed rules which the modern expansion of literature and journalism has necessitated. If the rules applicable to libel were applied to all kinds of defamation, and the fact that the defamation was oral was only allowed to weigh in considering the measure of damages, no serious complaint could be made against our modern law.I have not attempted to lobby or get any opinion on this matter, save this. I have asked Sir Percy Winfield, who, as your Lordships know, is the author of a great book on the law of tort, for his opinion. He has authorised me to say that he thinks the tine has now come to abolish the distinction between libel and slander. I have also asked Professor Goodhart of Oxford, and he, too, thinks that the distinction should be abolished. He feels that there is little danger that the number of slander actions would increase. I have not gone further than that, but I am fairly satisfied from casual conversations that the overwhelming weight of academic lawyers to-day would be in favour of abolishing the distinction.
Still, the law has remained like this for several centuries, and if your Lordships want to realise what the law is, you will find it stated conveniently in paragraphs 33 and 34 of the Report of the Porter Committee. Broadly speaking, for a slander—that is to say, something spoken, which you hear with the ear—you cannot bring an action, save in specified cases, unless you have sustained pecuniary damage. In paragraph 34 it is well stated in this way: 1102It is, in practice, difficult to prove special damage in any action for defamation. A man's reputation as a private individual or in the way of his calling may have suffered grievous harm without its being possible to prove any direct pecuniary loss. His friends may shun him, his professional earnings or his business takings may decrease. But loss of such society does not amount to special damage within the eyes of the law.The exceptions indicated by the Porter Committee were three originally. The first was:Words imputing a crime. …There is in the books a whole mass of legal decisions about this matter. It must be a crime which can be punished with imprisonment. Thus, to say that a man behaved himself in a disorderly manner in a hotel and had to be turned off the premises is not actionable, the punishment for that being a fine. To charge a churchwarden with stealing the parish bell-ropes is not actionable, as he had possession of them in his capacity as churchwarden. To charge a trustee of a school with having embezzled £25 of the school money is not actionable, as the plaintiff, being a trustee, could not embezzle money which his duty as trustee did not require him to receive. What a farago of nonsense all that is! Would it not be far better to get rid of it altogether? I should add that words imputing a. mere suspicion of a crime are not actionable; to say of a man that the police strongly suspect that he is guilty of a murder, and have him under observation, is not actionable.
The second exception mentioned by the Porter Committee is:Words imputing … contagious or infectious diseases.Just think of that. To say that a man has leprosy, scarlet fever or, obviously, venereal disease, is actionable without proof of special damage. But to say that he has delirium tremens, that he is insane, or that he is suffering from softening of the brain, cancer or consumption, is not actionable. All these are the ideas of two hundred years ago and, to my mind, it is appalling that they should clutter up our text books, and that our students should be made to learn them.
The third exception mentioned is words spoken in relation to professional business. Thus, to say of a clergyman that he committed adultery is actionable per se, without proof of special damage, if he holds a benefice. If he does not, then 1103 you have to show special damage. But to say the same thing of a physician may be quite safe, unless he can show special damage. You can say it of a schoolmaster. Indeed, when this House in its judicial capacity came to consider this matter, it said that it would be an extension of the law to hold that an imputation of morality against a man in his personal capacity was actionable per se if he were engaged in any profession or occupation in which a good moral character was especially requirable. The majority of the Porter Committee seemed to agree, but Mr. O'Sullivan and Professor Wade dissented on this.
I remember the case of the headmaster of a famous public school who had retired from the school owing to illness. He came back after about a year, and found that there was a rumour going about that he had misconducted himself with some woman of the town, and all sorts of details were given. It was wholly untrue. It was most damaging to this man. He came to me and asked my advice about bringing an action. I told him: "You can do absolutely nothing. Even if you were still headmaster of the school you could do nothing. If you retired and these people said that the real reason for your retirement was that you were 'kicked out' by the council for your bad behaviour, you could do nothing." Is that right or is that just? I submit that the time has come when this thing ought to be altered.
Lawyers are often accused of preventing all reforms. This very matter was the subject of a Select Committee of this House in the year 1843–109 years ago. There was a Committee of eighteen members, and the lawyers were as follows: Lyndhurst, who was Lord Chancellor, Brougham, Denman, Abinger, Cottenham, Langdale and Campbell. Anybody who knows the history of those times will think it absolutely amazing that Lyndhurst, Brougham, Campbell and Cottenham can have agreed on any single proposition. But they did. They made a report, and this is what they said in it:At present, while for any words reduced into writing which in any way tend to injure reputation, though communicated to only one individual, the law gives a remedy—there is no remedy, without proof of special damage, for mere words, however injurious to 1104 reputation, and however publicly spoken, unless they impute an indictable offence, or apply to a man in his business, or import that he is labouring under an infectious disease: so that"—this was the law then—falsely and maliciously to impute in the coarsest terms and on the most public occasion, want of chastity to a woman of high station and unspotted character, or want of veracity or courage to a gentleman of undoubted honesty and honour, cannot be made the foundation of any proceeding, civil or criminal; whereas an action may be maintained for saying that a cobbler is not skilful in mending shoes.They reported that the distinction between libel and slander did not rest on any solid foundation,and that whenever an Injury is done to Character by Defamation there ought to be Redress by Action.I believe everybody would be in favour of that, were it not for this trouble—and this is what is always trotted out. It is said: "If you allow people to bring actions for slander, you may get many frivolous actions; you may get a large number of actions about trivial complaints," and so on. That argument has been raised many times, and was used in particular in the case to which I now come—the Slander of Women Bill. In 1891, another lawyer—a very distinguished one, Lord Nacnaghten—introduced a Bill into this House. He described the existing law as a reproach to the administration of justice, and he said this [OFFICIAL REPORT, Vol. 354, col. 1705]:Loss of reputation, loss of friends, loss of health, exclusion from society are not regarded, and a woman who is assailed by an attack on her chastity by spoken words, however gross the slander may be, cannot appeal to the law to vindicate her character unless she can prove that she has sustained some pecuniary damage, or some loss of that kind. As regards written words the law is different. In that case an action is maintainable without proof of special damage. Eminent judges have over and over again found fault with this state of the law, and in this House, sitting in its judicial capacity, it has been described as unsatisfactory, and it has been denounced as barbarous.Lord Halsbury, who at that time occupied the Woolsack, said this [Col. 1706]:I must say when the Bill gets into Committee, I shall endeavour to place upon its passing and coming into operation such restrictions as to costs and otherwise as will diminish what appears to me to be the serious danger which would result from opening a new field of litigation upon this subject of words spoken.1105 The Lord Chancellor of the day was answered. Lord Bramwell said this [Col. 1707]:I suppose, whenever you allow an action to be brought for anything, you open up a possibility of vexatious proceedings, and the only way for your Lordships to stop vexatious proceedings to a certainty is to stop all actions whatever, because as long as any are allowed there is a chance of vexatious actions being brought.The noble Lord added this:I do not, for my own part, apprehend that there will be any unreasonable or undue quantity of vexatious actions in consequence of this proposal of my noble and learned friend.He then quoted Chief Justice Holt, who said that whenever, words tended to take away a man's reputation he would encourage actions for them. Lord Selborne added [Col. 1709]:The law in regard to this particular class of case has always appeared to me to be a reproach to us.So the Act was passed. Words spoken and published after the passing of the Act which impute unchastity or adultery to any woman or girl do not require special damage, and the Act contained this useful proviso, which I should be very well prepared to have applied here:Provided always, that in any action for words spoken and made actionable by this Act, a plaintiff shall not recover more costs than damages, unless the judge shall certify that there was a reasonable ground for bringing the action.What has our experience been? Have Lord Halsbury's fears been proved to be right or not? I think everybody will agree that the fear of there being a large number of vexatious actions by these women has proved to be wholly wrong. There is more than that—and this, unfortunately, was not noticed in the Committee's Report. Other countries have adopted the same principle. In New South Wales and Queensland in Australia, the law of libel and of slander has now been assimilated and I am informed—I have made special inquiries—that all the lawyers out there are satisfied that slander actions are rare and no more numerous in Queensland and New South Wales than in any other of the Australian States. Here let me add that this has never been the law of Scotland. There is no distinction between libel and slander in Scotland. I suggest that in this matter at any rate we might now bring ourselves into line with Scotland.
1106 I do not know the position in Canada, but I believe I am right in saying that the doctrine does not apply to Quebec at all, but it does apply to the other Provinces. It was comparatively recently—I think about the 1920s—that nearly all the Canadian Provinces introduced the Slander of Women Act and, so far as I have been able to find out—I do not speak with any authority about this—there has been no increase in that form of action to any noticeable extent. In America, the position appears to be this—as my authority I quote from page 54 of the Third Edition of Gatley which is a book well known to lawyers. He says:The American decisions advance a less artificial ground—namely, the degradation of the plaintiff in the eyes of the hearers. If such a criterion were consistently applied, the necessity of proving special damage in cases of slander would be the exception and not the rule.Everybody agrees that this is a logical step. I suppose everybody agrees that if we do not take the step now we shall not do it for fifty years All experience shows that this fear of there being a crop of comparatively trivial cases has not materialised, and I suggest that we can guard against it well by the provision as to costs and so on. I would remind your Lordships, that this is a form of action which is not allowed to be carried through under the legal aid procedure.
There is my dilemma. I think this Bill is an improvement on the existing law—and particularly having regard to Clause 2—but even there, to my mind, it does not go far enough. I feel strongly that it is not altogether satisfactory and that we might do something better. This is a compromise matter, worked out in another place. It is a Bill we have to take in hand and re-form, if necessary, and make it a more workable measure. I hope it will be possible in the course of the discussions on the Bill for some of the things which I have indicated, to be done. Meanwhile, I am in entire agreement with the Bill having a Second Reading at the present time.
§ 5.32 p.m.
§ LORD PORTER
My Lords, I do not wish to detain the House, but there are one or two things which were said by the noble and learned Earl, Lord Jowitt, about which I should like to say a few words. First, with regard to the question of damages, the noble and learned Earl 1107 said it was a pity that the Bill did not contain some provision enabling the Court of Appeal to deal with damages more drastically than they do at present. Well, my Lords, in our Report we did, in fact, recommend that, but I do not think any of us desires it to be confined to this matter. There are great difficulties in saying that, as between a case of one kind—say, an accident case—and, on the other hand, a case of defamation, the Court of Appeal shall use a different measuring rod in deciding what the damages shall be; whether they will readily upset the jury in the one case and, in the other, not upset the jury except in extreme circumstances. We were not anxious to do that. We were desirous of giving the Court of Appeal generally a stronger line in cases when they feel that damages given are wrong and not tying them to the present idea that, unless it is monstrously wrong, they should not differ at all. With that view I still agree. I am speaking for myself, but I think the majority of my Committee would agree with me on that. But that is not a matter which can be put right by Act of Parliament. It is not a matter which can be put right in a Bill dealing with defamation. It is a wider problem, and I think it is a problem which might be tackled—indeed it is to some extent being tackled at the present moment by the Master of the Rolls' Committee. I am sure that it is much better dealt with there than in one particular Act. That is all I desire to say with regard to damages.
With regard to unintentional defamation, I have a great deal of sympathy with Lord Jowitt. It is true that the recommendations which the Committee made have been watered down to a very great extent, and I feel that that is a pity. One has to consider, on the one hand, whether it is desirable to get this Bill through this Session, or whether the danger of putting a great strain upon people who are at present being hit by unintentional defamation shall be allowed to continue—whether that provides sufficient justification for saying that the Bill must be drastically amended, or whether we should accept it as it is, even though it is imperfect. I think the part about which I feel most strongly is the suggestion in the Bill that any publisher or newspaper who publishes an article which 1108 is defamatory should have no protection if the person who wrote the article was malicious. I have known a case in which a novel was written by a woman who disliked a certain body with which she was associated. The publisher, in perfectly good faith, published the book. He could have no possible means of knowing that it referred to any particular body of people. Yet he had to pay damages. And, of course, as things are now, he would still have to pay damages—because the lady who wrote the book was malicious. The only question is whether, with that imperfection, with that mistake, as I think it to be, it is more desirable that the Bill should get through than that it should be postponed.
With regard to the question of mitigation of damages by cross-examination, that again, I feel, is not a matter which can be readily dealt with in a Bill dealing with defamation. It is much too wide a topic. If you are going to allow cross-examination—or, rather, evidence, for it is not cross-examination—as to credibility in the one case, you must allow it in all. Therefore, though I think it is a pity that the matter has not been considered generally, I do not think it is one which ought to appear in a Bill dealing with defamation. It should appear in a wider Bill. With regard to indemnity, I do not wish to detain the House, but there is one important part of the Bill to which I wish to refer, and that is the question of putting libel and slander on the same terms. It is true that two members of the Committee would have liked to do that. The noble Earl referred to Gatley on slander—
§ LORD PORTER
I understood that the noble and learned Earl quoted Gatley as to what Gatley thought, as well. That was my understanding, but I gladly withdraw it if it was not a correct one. Our general rule was that there might arise a large number of unnecessary claims, even slight questions of quarrels between neighbours over the fence, which I have known to happen. I can remember trying a case in which I should have awarded—the man having some right—anything from a farthing to five pounds. But there was a very sympathetic jury, and with all my endeavours I could not prevent the jury from giving him £100. 1109 It is that class of case which one is anxious should not occur in this country. It is all very well to say that Scotland (which I shall leave to other hands) does not do it. Scottish juries do not give large sums. Someone once said that the Scots are a cautious nation—cautious in what they say and in what they do. I do not think it is fair to say that because one system acts with one nation it will also act with another. After all, we have for many years put up with the distinction, and it has riot worked badly.
It is true that there are certain matters in which amendment has had to be made—the slander of women, for instance. We have suggested some amendments in our recommendations, and the Bill makes some amendments. The Bill deals with the question of the disparagement of a man in his profession, and takes care that the matters of which the noble and learned Earl has been complaining should be dealt with—and dealt with in this way: that if you say something that might disparage a man in his profession, but not merely in respect of his act in the course of his profession, if it is likely to injure him in his profession then he is protected. That has been put in. The noble Earl will be able, if necessary, to discuss the matter upon the Committee sage, but at the moment there is that protection.
The only other matter with which I think I need deal is that raised by the noble and learned Earl when he made great play with the opinions of various professors, in Oxford and Cambridge, and elsewhere. I have the greatest regard for their ability, knowledge, research and impartiality, but they have not to make the law work. That is the difficulty and the difference between us and them. We have to see that the thing goes, and they have not. I always remember that when a colleague of mine (not in this country) was elected to one of those bodies he said he had the greatest gratitude for his election, the greatest admiration for their efforts and knowledge; but he prayed them "to be kind to us who sit in another capacity" and to remember that, if it were not for the mercy of God, they might be Judges themselves. I beg to commend the Bill to your Lordships.
§ 5.42 p.m.
THE LORD CHANCELLCR (LORD SIMONDS)
My Lords, I intervene for only two or three minutes in this debate. I do so in the first place because it is the first opportunity that Her Majesty's Government have had to thank my noble and learned friend Lord Porter and those who worked with him for this Report. It was a labour of many years, and a labour that was made more laborious because it had to be interrupted for so many years by the war. It is, in fact, a valuable contribution to legal literature on this branch of the law, in addition to being of great assistance to those whose task it was to frame this, Bill. That is my first and pleasant duty, to thank the noble arid learned Lore. Secondly, I should thank the noble and learned Viscount, Lord Simon, for the trouble which he has taken in sponsoring (if I may use that word) this Bill, and for the accustomed clarity with which he has expounded it.
The third thing I want to say is that, on behalf of Her Majesty's Government, I welcome this Bill. There are undoubtedly points which remain in controversy and they can be dealt with, if necessary, on the Committee stage. I do not know whether the noble and learned Earl, Lord Jowitt, who has spoken so forcibly on the question of the assimilation of the law of libel and slander, proposes to seek to amend the Bill in that respect, but, if he does, there will no doubt be a controversy, because I can assure your Lordships that, cogent as are the arguments which he has addressed to your Lordships in favour of assimilation, the arguments against it are, in my humble opinion, very much more forcible, and indeed won the support of all but two of the powerful and learned Committee over which my noble and learned friend Lord Porter presided. Therefore, I would not have you think, as you may have thought, listening -to so powerful an argument, that there is nothing to be said against it. In fact, for my part, I belie that the case against such assimilation is overwhelming. But, having said that, I dc not propose to go into it any more tow. I have intervened only to tell your Lordships that this Bill has blessing of Her Majesty's Government, and I hope you will give it a Second Reading.
§ 5.45 p.m.
§ LORD SILKIN
My Lords, I should not have ventured to address the House in the company of the most eminent lawyers who have already spoken but for one fact—that is, that I believe that in some small measure I am responsible for this Bill and for the Porter Committee. It was in 1938, I think, that Sir Alan Herbert introduced in another place a Private Member's Bill dealing with a number of defects in the law of defamation. While I personally thought that the law needed altering, and to a certain extent needed altering in the direction in which he was proposing to alter it, I thought that his Bill was so bad that it was incapable of satisfactory amendment. I therefore put down the usual Amendment, "That the Bill be read this day six months." I think I had the other place with me at that time. Incidentally, Sir Alan Herbert has since written a book in which he deals with this episode and says that I was put up by the Labour Party. I should like to state publicly here and now that I was not put up by anybody at all. I was speaking purely on my own behalf, as I am to-day. It looked as if the Bill was going to be defeated, but the Government of the day came to the rescue and offered us a compromise, the Porter Committee. This was accepted by both sides, and that is how the Porter Committee came into being. I am very glad that it did.
There was, of course, a danger that, in view of that kind of origin and the main purpose of Sir Alan Herbert's Bill undoubtedly being to make it more difficult for people to institute successful proceedings for libel, the bias of the Committee might well be in that direction, and that in any case they might concentrate much more on the difficulties of those who publish defamation rather than on those of the persons defamed. It has been, I recognise, difficult to hold a true balance. I think I shall not be unfair to the Committee if I say that, on the whole, most of the recommendations are recommendations which are for the benefit of people who defame rather than those who are defamed. That may well be necessary in view of the existing state of the law. But I think it is necessary for this House to see that we hold a balance between the two. After all, people who are defamed have rights. People are as entitled to 1112 enjoy their reputations and not to have them destroyed, as are people who make statements which are capable of being regarded as defamatory to receive consideration.
I personally feel that the Bill could be improved in two main respects and, at the proper time, I propose to put down Amendments for the consideration of the House. The first is to Clause 5 of the Bill. I think that that clause goes too far. In effect it says that you may make a number of separate charges, or, as it is called, utter a number of libels against a person, and if, by and large, most of them are true, then you will not be regarded as being guilty of libel because one or other of them is not true and does not materially injure the plaintiff's reputation, having regard to the truth of the remaining charges. I think that that is capable of a good deal of abuse and misunderstanding.
I noticed that in introducing the Bill the noble and learned Viscount gave as an example the case of a person who is alleged to have been sentenced to five years' imprisonment whereas in fact it was only three years' imprisonment. I would respectfully say that that kind of case is not covered by this clause at all. The kind of case that is covered by the clause is one where you make a number of statements which are damaging to a person's reputation and which are true. but in addition you make one or two other statements which are not true. I should have thought that a person whose reputation was damaged in that way should have the right to damages, in whatever amount the jury thought right, in respect of the charges which have not been proved to be true. If one is allowed to make some charges which need not be true, so long as the bulk of the charges are true, there is a great danger that people will be reckless or tend to become reckless about the kind of statements they make. I do not want to elaborate this case. It was discussed at great length in another place, and I may say that opinion in that other place was practically evenly divided in numbers and, in regard to authority, those who took my view predominated. However, I give the noble and learned Viscount notice that in due course I should like to continue that discussion in this House. 1113 I admit that the other question—namely, that of group defamation—is a most difficult one. That also was discussed at great length in another place, and of course it was the subject of consideration by the Porter Committee. I do not think that anybody who took part in the discussions, either in another place or on the Porter Committee, was prepared to justify group defamation. Everybody regarded it as an evil which ought to be dealt with if it were practicable, and from my reading of the discussions and of the Report, the whole objection of those who were against inserting a provision of this kind in the Bill was that it was not workable, that there were difficulties of definition in regard to race, creed and so on. Well, that may be so, and at the end of the day it may turn out that even with our large number of members of the highest legal authority, it is impossible to devise a form of words to achieve the object which we should all like to achieve. However, I think it would be desirable that we should try, and therefore, again on the Committee stage, I propose to put down some kind of Amendment, not necessarily one which will be completely watertight, with a view to testing the views of the House. Indeed, if I may be greatly daring and the noble and learned Viscount is willing, I should like to have the privilege of discussing with him a form of words which may be acceptable—
§ LORD SILKIN
—to see whether we can agree upon something worthy of being placed before this House. Subject to those two observations, I should like to pay my tribute to the Committee, to the initiator of the Bill in another place, and to the noble and learned Viscount who has made it so much clearer to all of us. Realising, as I do, the dilemma of my noble and learned friend the Leader of the Opposition, that there may be a conflict between making this Bill as good as we can and getting it at all, I hope that we shall be able to resolve the conflict and that, properly amended, the Bill will in due course be placed upon the Statute Book.
§ 5.56 p.m.
§ LORD TUCKER
My Lords, I should not feel justified in intervening in this debate, especially at this late hour of the evening, were it not for the fact that I think I am one of only some six or seven members of your Lordships' House who have ever tried a libel or a slander action. I do not pretend to ha re anything like the experience in that type of litigation of the noble and learned Earl and the noble and learned Viscount in their days at the Bar, which were no doubt much more profitable than any incursion of that kind that ever fell to my lot. But I do feel that the view s of, I was going to say, the unfortunate judge who sometimes has to carry out the kitty or put it into practice, might sometimes be heard on these occasions. When I heard the noble and earned Earl quote academic lawyers on this subject, it made me feel determined to rise to my feet to have my say on the subject, because I fee that those who have to try these cases are, perhaps, in that respect at any rate, qualified to express an opinion, whereas the academic lawyers, much as we respect them and accept their advice, have not in fact had the onerous task of trying these cases. I sometimes wish they had, when I read some of their criticisms and observations.
In the course of my forty years experience of the law, I have always felt that the law of libel and its practice are a blot on our legal system. It is one of those types of action which I think have brought the question of the expense of the law very much into disrepute. Most of the expensive and often very unnecessary actions are lib actions which involve enormous costs. They have been made more expensive by the ingenuity of lawyers, who have designed all kinds of terrors by way of interlocutory proceedings for those who venture upon those dangerous seas, and I welcome this Bill as I think it goes some way to removing some of the blots on the law of libel.
I would agree that it is possibly capable of improvement in some respects, but I join issue with the noble and learned Earl when he suggests that the law of libel and of slander should be assimilated. I am going to be guilty of what he called "trotting out" the argument that it would tend to lead to unnecessary and frivolous actions. I firmly believe that it would. 1115 Already there are a number of actions which have their origin in the back garden or the public house, in which people bring actions in respect of words spoken, which they seek to bring within the present law by saying that they have suggested the commission of a criminal offence. I have had to try a number of those trifling actions—actions which assume a far greater importance in a court of law, before a jury, than they do when you read of them in cold print. I think that to throw open the courts to actions with regard to the spoken word, merely because it is defamatory but where no damage can be shown to have accrued, would be a dangerous and, in my view, an unnecessary move. It is fortunate that this class of action cannot be brought at the public expense under the system which now exists for assisting litigants. If that system were ever extended to libel and slander actions the position would be even worse than I apprehend it might be if the law were in these respects assimilated. I do not attempt to speak for anyone except myself. I do not know what are the views of other judges who have had experience in trying these matters, but, for myself, I should be strongly opposed to the suggestion that the law of libel and slander should be assimilated.
§ 6.1 p.m.
§ VISCOUNT SIMON
My Lords, I think we have come to the end of this debate, and I will add only two or three words before the House is asked to give this Bill a Second Reading. It may be convenient to read the paragraph in the Porter Report—it is paragraph 38—which sums up the reasons which Lord Porter and the great majority of his colleagues thought would lead to the conclusion that there ought not to be assimilation between the law of libel and slander. This is what the Committee said:Arbitrary and illogical as the present law is, it does not seem to us that the true solution lies either in abolishing slander actionable per se entirely or in assimilating slander to libel and making all defamatory statements actionable without proof of special damage. Slander is often trivial, not infrequently good tempered and harmless, and in that form commonly enough a topic of conversation. If all slander were actionable per se, the scope for trivial but costly litigation might be enormously increased. So far as slander in ordinary conversation is concerned, it is not normally taken seriously by speaker or listener, and, in the great majority of cases, does little or no harm1116 I read that to put it on the record without arguing further. That is the view, as I gather, which my noble and learned friend Lord Tucker is also disposed to hold. I am sure we should all like to congratulate him on what, I think, is the first occasion of his intervening in the public debates of this House.
The only other quotation from the Report which I should venture to make has reference to one of the observations of Lord Silkin. If I did not use a happy illustration for the purpose of explaining the clause when I spoke of a man complaining that it was not true he had been sentenced to five years' imprisonment as he had been sentenced to only three years' imprisonment, let me read the paragraph in the Report which explains why the Committee take the view they do. And it is that view which is exactly translated in this Bill. Paragraph 81 reads:In this respect, we think that the existing case law has in the course of its evolution tended to encourage too close a dissection of each sentence, indeed of each phrase, in a defamatory statement and to overlook the real effect of the statement when read as a whole. Judged by first principles, a plaintiff should not he entitled to recover damages if the defendant proves that the main charge or gist of the libel is true, even though he fails to prove the truth of some minor charge, provided that such minor charge does not add appreciably to the injury to the plaintiff's reputation.That, at least, is the view which the Porter Committee put before us. I avoid making any further speech. Your Lordships' House has other business with which it wishes to deal, and many have assembled for that purpose. After this debate, I beg to ask your Lordships now to give the Bill a Second Reading.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.