WhatDoTheyKnow Response to Draft Defamation Bill Consultation

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.

The response is to be sent to [email protected]

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

Consultation Response

Dear Ministry of Justice,

This is a response to the consultation currently being run by the department on the Draft Defamation Bill. We would like to comment on three areas of the proposals:

• The Extension of privilege
• Conflict between Data Protection Law and Defamation Law
• The Extension of the "Derbyshire Principle"

The Extension of privilege

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 proactively 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.

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 expensive and time consuming legal action.

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

Conflict between Data Protection Law and Defamation Law

There's a need for a clarification that the publication, and continued publication of reports of court cases / sentences is covered by privilege. ie. A provision is required making clear there's no need to purge online newspaper archives of such information after a period of time. This is an area where the DPA has clashed with defamation law see: (http://heatherbrooke.org/2008/data-protection-act-makes-a-mockery-of-open-justice/ ) )

The Extension of the "Derbyshire Principle"

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 for this could use the definition of public bodies as applies with FOI/EIR legislation.

Again this could be seen as a clarification of the current position; it would be desirable to see this uncertain area of law clarified by Parliament and not left to a court.

About WhatDoTheyKnow

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.

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.