WhatDoTheyKnow Response to Draft Defamation Bill Consultation

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The Ministry of Justice is running a Consultation on a Draft Defamation Bill. The consultation is to run from 15 March 2011 to 10 June 2011, but the joint committee deliberating on the Bill will begin discussing it before the consultation ends, and well before the report on the consultation is due to be published.


This is a response to this consultation by the team responsible for mySociety's Freedom of Information website WhatDoTheyKnow.com

The response has been sent to defamation@justice.gsi.gov.uk


See also blog post at : http://www.mysociety.org/2011/04/04/whatdotheyknow-on-libel-reform/

The outcome is summarised in Lords Pass Defamation Bill


CONSULTATION RESPONSE

to defamation[at]justice.gsi.gov.uk cc team[a]whatdotheyknow.com> date Mon, Apr 4, 2011 at 4:46 PM

Dear Ministry of Justice,

This is a response to the consultation currently being run by the department on the Draft Defamation Bill. This response is on behalf of the team responsible for the WhatDoTheyKnow.com website. We would like to comment on three areas of the proposals:

  • The extension of privilege
  • The extension of the "Derbyshire Principle"
  • Secondary publication: hyperlinks

Contents

THE EXTENSION OF PRIVILEGE

The Extension of privilege: public bodies

The draft bill proposes extending and clarifying the types of material which can be published without fear of being sued for defamation via amendments to Schedule 1 to the Defamation Act 1996.

We would like to propose adding a further clear special exemption applying to material released by public bodies. This could use the form of words which appears elsewhere in the Bill and cover a: "fair and accurate report or summary of, copy of or extract from...".

The proposed new provision would enable the republication of Freedom of Information responses from a public bodies without fear of libel action. Such a provision would clearly be of value to services such as WhatDoTheyKnow.com. It would also allow campaigners, journalists and others working with such material more freedom from legal threats and uncertainty; as such this addition would appear to be in-line with the coalition's stated aims of their amendments to libel law.

WhatDoTheyKnow.com has had to remove a FOI response from its website following serious threats of libel action.

Any new provision ought not be limited to information released under the "Freedom of Information Act", as there is a range of access to information legislation, and information pro-actively released by public bodies ought also be covered. The definition of public bodies used could though, for simplicity, be the same as those covered by the Freedom of Information and Environmental Information Regulations. (Though we consider there are bodies and individuals with substantial public responsibilities that are not subject to the FOIA(a)])

This is a simple but important change. It could be seen to a large extent as a clarification of the existing legal position, but it would be desirable for Parliament to explicitly clarify the law rather than see a journalist, campaigner or website operator be subjected to an expensive and time consuming legal action.

The provision being sought is distinct from the protection to ISPs and others simply republishing / conveying material.

The Extension of privilege: public sector contractors

We propose that the republication of material released by a public sector contractor in relation to public services should also attract qualified privilege(1). Such a change would avoid the anomalous situation arising in which a journalist writing about services outsourced by a local authority has less protection than in other local authorities where the services are delivered in house.

The Extension of privilege: industry bodies carrying out regulatory functions

There are in the UK at present a number of industry bodies performing regulatory functions that might otherwise be carried out by a public body for example the Advertising Standards Authority (ASA), Financial Ombudsman Service an the Press Complaints Commission. We propose that the republication of material made available by such bodies should also attract qualified privilege.

THE EXTENSION OF THE "DERBYSHIRE PRINCIPLE"

The Extension of the "Derbyshire Principle": public bodies

The principle that any governmental body should be open to uninhibited public criticism, and therefore should not be able to use or threaten use defamation law to quash its critics ought be extended to apply to all public bodies, again this could be based on the definition of public bodies as applies with FOI/EIR legislation.

Such a provision could be seen as a mere clarification of the current position; our view is that it would be desirable to see the current uncertainty over how widely the "Derbyshire Principle" applies clarified by Parliament and not left to a court.

The "Derbyshire Principle" and public sector contractors

We propose that the "Derbyshire Principle" should be extended to cover statements about the provision of public services by public sector contractors(1). Such a change would avoid the anomalous situation arising in which a journalist writing about services outsourced by a local authority has less protection than in other local authorities where the services are delivered in house. [see also Section 1.2: The Extension of privilege: public sector contractors].

The "Derbyshire Principle" and industry bodies carrying out regulatory functions

We propose that the "Derbyshire Principle" should be extended to cover statements about the regulatory activities carried out by industry bodies. [see also The Extension of privilege: self-regulation].

The "Derbyshire Principle" and political organisations

The Derbyshire Principle has been extended to prevent a political party from pursuing a defamation claim. In Goldsmith v. Bhoyrul (1997), the court found that in relation to statements about political parties “Defamation actions or threat of them would constitute a fetter on free speech at a time and on a topic when it is clearly in the public interest that there should be none”.[1]

We support the proposals for the new defences and hope that they will have the effect of reducing the threat of libel actions against and by those participating in the democratic process be they candidates, donors, political parties, referendum campaigns or other interested parties.

SECONDARY PUBLICATION

Secondary publication: hyperlinks

Links between websites are clearly key to the way the internet works, but it is is almost always impractical for an organisation to verify the accuracy of every single statement on every single web page an organisation's website links to especially as content can be added/changed after the link is published. Whatdotheyknow.com volunteers were surprised to learn as part of our training on defamation law that when considering the legality of hyperlinks to pages containing defamatory statements in English, lawyers often consider a case from 1894 involving a man sat on a stool by the side of the road pointing at a nearby to attract the attention of passers (Hird v Wood). We would strongly support a change to the law to provide a clear defence for those publishing weblinks to defamatory content who are acting in good faith and who have not endorsed the content they have linked to. The law should be clarified to ensure posting links of the form "See another point of view at: [URL]" or "a related article is at: [URL] is not be actionable in cases where there is no malicious intent.

(see: http://www.taylorwessing.com/fileadmin/files/docs/WhatsinaLink.pdf)

About WhatDoTheyKnow.com

WhatDoTheyKnow.com is an online service (a website) which allows people to make request for information in public and ensures the request, correspondence and response are automatically published online. Our service:

  • Makes it easier for people to make requests for information, removing the need to find appropriate contact information.
  • Acts as an independent third party making the information available online so it can be reliably cited in journalistic reports, lobbying, etc.
  • Increases the amount of information from public bodies available to people simply by searching the internet, hopefully reducing the burden on public bodies of responding to duplicate requests for information.
  • Acts as a permanent repository of information released by public authorities preserved for future reference.

WhatDoTheyKnow was created and is run by mySociety; it was initially funded by the JRSST Charitable Trust. mySociety is a project of the registered charity UK Citizens Online Democracy.

Notes

[1] By public sector contractor we mean any person providing health, education, social care or criminal justice services etc. under a contract made with a public authority where the provision of the service is function of that authority.

References:

a) http://foiwiki.com/foiwiki/index.php/Organisations_and_officials_with_public_responsibilities_that_are_not_subject_to_the_Freedom_of_Information_Act

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