§ 3.30 p.m.
§ Mr. Gage
I beg to move, in page 1. line 5, to leave out from "slander," to "shall," in line 6, and to insert "all spoken words."
Subject to your Ruling, Mr. Speaker, it will probably be for the convenience of the House if we may also deal with the next two Amendments, in line 7. at the end. to insert:Provided that, where a person brings an action in respect of a defamatory statement, it shall be open to a court before which such an action is being tried in its discretion to dismiss the action if in its opinion the words complained of are not calculated seriously to disparage the complainant in the eyes of a reasonable person.and in line 8, to leave out Clause 2, which are consequential and stand or fall upon this Amendment.
The Amendment is an attempt to do away with the distinction which now exists between the two branches of the law of defamation—libel and slander. It is right that I should say at the outset 812 that I intend to canvass hon. Gentlemen on both sides of the House on this important Amendment, to get their views, but I do not intend to press the matter further because I do not want to harm the chances of the Bill today.
The distinction between libel and slander is that any written word is actionable per se whereas a spoken word is only actionable if the person defamed can prove special damage. From our discussion this morning it has been made apparent to hon. Members that, unless the person slandered can prove actual pecuniary loss, he is unable to sue in respect of the slander. It is very difficult to prove special damage.
The Porter Committee dealt with that aspect in words which cannot be improved upon when they pointed out:It 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 eye of the law, and it is seldom possible to call witnesses to give evidence at the trial that they ceased to deal with the plaintiff because of some slander which had come to their ears. The plaintiff, indeed, is often the person least likely to be told the reason by those who, in such circumstances, have ceased to deal with him.It will therefore be seen that there are many cases of serious slander in which the person slandered, though he has actually suffered harm, is unable to obtain redress because he cannot prove that he has actually suffered any pecuniary loss. I will give an example which shows the illogicality between the two branches of defamation. If any hon. Member addressing a meeting of 3.000 or 4,000 people—naturally, a common thing for us to do—were to say "Mr. X is a coward and a person on whose word no reliance can be placed." Mr. X would in all probability find that he had no redress.
On the other hand, if any one of us were to write those same words in a letter to a friend, the publication, though far less damaging, would be actionable because the man would not have to prove that he had suffered any particular pecuniary loss. That distinction has always been recognised as illogical, and it was considered by the Porter Com- 813 mittee, who in fact said that the distinction in their view was illogical.
This matter was not only considered by the Porter Committee; it has been considered over the years. The noble Lord, Lord Jowitt, to whom I am greatly indebted for a great deal of the information that I have obtained on this matter, has drawn my attention to the Report of the Select Committee of the House of Lords which was appointed to consider the law of defamation and libel as long ago as 1843. That was a Committee composed of some very distinguished Law Lords, including Lord Campbell, Lord Abinger and Lord Denman. Lord Brougham gave evidence before that Committee.
At that time, the Committee dealing with this matter said:The Committee conceive that these distinctions between the law of libel and the law of slander; and between slander actionable per se and slander actionable on proof of special damage, which are quite peculiar to the law of England, do not rest on any solid foundation, and that whenever an injury is done to character by defamation there ought to be redress by action.So we see that this is by no means a new matter. It has been considered before. The Porter Committee Report contains these words, in paragraph 38:Arbitrary and illogical as the present law is ߞand they go on to say that in spite of that, it does not seem to them that the true solution was in abolishing slander actionable per se.
There is a very strong body of distinguished people who agree that this distinction is entirely illogical. We have to a large extent recognised it ourselves in this Bill because we have altered the law in regard to the broadcasting of words. As the law stood with regard to broadcasting, although the audience might consist of millions of persons, there was no redress save on this very unusual point of proving special damage, whereas that did not apply in the case of a private letter. That has been recognised, and we have altered the law in that respect.
The difficulty of these actions has been recognised in the past also because there are certain exceptions to the general rule that a slanderous statement is not actionable per se. Those exceptions. I am sure many Members will know, are first of all that whenever crime is imputed to a 814 man it has been recognised that he can bring an action without proving special damage. The other one, which shows how archaic the exceptions are, is that whenever words imputing a contagious or infectious disease to someone are said, there again special damage need not be shown.
Finally, and probably the most important one of all, is the case of words spoken of a person in the way of his office, trade or profession. They again are actionable without proof of special damage. But there was the extraordinary case when it was said of a preparatory schoolmaster that he committed adultery out of school hours. That was obviously highly damaging to a person in his position; but it was held that it was not slanderous of him in his profession as a schoolmaster. That is what we are now endeavouring to put right in Clause 2.
So the House will see that not only has this illogicality been recognised for a long time, but, at intervals, attempts have been made to put the matter right. Rather than tinkering with the matter in this way I think it would be much wiser to sweep away the distinction altogether. The real and only substantial objection to doing this is that it would lead—in the view of many people, and rightly I think—to a multiplicity of small actions. I think that everyone agrees that that is the real objection to doing it.
We all know of cases-we have experience of them, not in the Smoking Room, but in other places where men congregate —where people say something about their friends which nobody takes very seriously. It is right to say that if my Amendment were accepted those matters would become actionable.
§ Mr. Baxter
I hope my hon. Friend does not suggest that anything defamatory is ever said in the Smoking Room here.
§ Mr. Gage
I specifically excepted the Smoking Room. But that is a powerful objection which everyone must recognise. I have endeavoured to take the views of people who have a good deal more experience than I in this branch of the law. They have always said that, provided a satisfactory solution could be found, there would be no objection to assimilating the two matters.
815 Various suggestions have been made, one of which was that we should accept a method adopted in the Slander of Women Act. It will be remembered that a further exception was made to the law by the Slander of Women Act, whereby it was made possible for a woman who had been slandered in regard to her chastity to take an action without proving special damages; but it was said that if in such a case she recovered less damages than costs she should not have her costs. That is a very cumbersome method. It means that the costs must first be taxed before the plaintiff can know if he or she is to get them.
The method I would suggest is set out in the next Amendment. I would ask hon. Gentlemen to give me their attention in regard to this because I think it is the most important part of this matter. My suggested Clause reads:Provided that, where a person brings an action in respect of a defamatory statement, it shall be open to a court before which such an action is being tried in its discretion to dismiss the action if in its opinion the words complained of are not calculated seriously to disparage the complainant in the eyes of a reasonable person.I am not saying that this is the best Clause that could be drafted; but it is the best Clause that I could encompass in the time and it may be that other hon. Gentlemen have better ideas. What I have sought to do is to enable a court to say—it is really raising another defence —"If we think this is a stupid and trivial action which should never have been brought we can dismiss it."
I hope that may be the answer to this difficulty. As I said, I do not move this Amendment in any sense hostile to the Bill; but I think it is a very important matter and it is probably the only opportunity we shall have in our lifetime of canvassing this matter. It would be of assistance if I could hear the views of other hon. Members.
§ 3.45 p.m.
§ Mr. Eric Fletcher (Islington, East)
I hesitate to intervene in the debate, and I think my only excuse for doing so is that I have not yet taken part in any discussion of the Bill. This Amendment appears to me to raise a matter of great and fundamental importance in the whole 816 of our law of defamation. For many centuries past there has been a great distinction in our law between libel and slander. The offence of libel relates to written words, whereas slander, in so far as it is actionable, is the result of spoken words, and I think it is pertinent to recall that the law of defamation existed in the history of English law for a very long time before the introduction of printing into this country by William Caxton in the middle of the 15th Century.
In approaching this subject, one has to bear in mind that the amount of damage, which can be done by written words, published in a permanent form, must necessarily be much greater than the amount of damage which is caused by spoken words.
§ Mr. Fletcher
I am not talking about every case, because it is one of the features of the law of defamation that there can be a multitude of cases. Sometimes spoken words, however apparently defamatory, may be spoken jocularly or in certain circumstances and create no damage at all. Words are often spoken in jest or among friends or among a small circle, and no one takes them seriously. There may be other occasions, however, on which spoken words create damage, but the vital distinction between all spoken and all printed words is this: that the printed word has a degree of permanence about it which the spoken word never has.
It was the late Lord Birkenhead, who, as you will recall, Mr. Speaker, was a great master of the English language and a great classical scholar, who said in a famous dissertation on the law of defamation, in one of his famous essays. "Literae scriptae manent." That is a distinction between libel and slander. What is written is permanent, what is spoken is evanescent, temporary, but "literae scriptae manent"—written words remain, they have a permanence, they are ineffable. We have to remember the amount by which they are capable of reprinting and republication and repetition. The amount of damage they may do is incalculable. This is a distinction not merely of degree but of substance.
Bearing in mind the way in which the law of defamation has grown up over 817 the centuries, I should hesitate for a long time before adopting the principle for which the hon. Member for Belfast, South (Mr. Gage) speaks, and which is intended to place the law of slander on the same basis as the law of libel. In my opinion there is a profound historic and permanent distinction between the kind of damage which may be done by the spoken word and the kind of damage which may be done by the written word.
At the same time, I support the principle of Clause 1, which would seek to identify with libel the damage due to words spoken over the broadcast, which is a modern invention dating back only a few years and which has a significance which I suggest is comparable with that of the Press. So far as the law of defamation is concerned, I suggest that the amount of damage which can be done by words spoken over the wireless might well be identified with the kind of damage done by words appearing in a newspaper or in any other published form.
I think, therefore, on principle and on reason, that it would be reasonable for the purposes of the law of defamation to assimilate what is spoken on radio-diffusion with what is written. I would certainly not go further than that. I would certainly not assimilate the whole law of slander with the law of libel, because subject to this one exception, which, if the Bill is passed, will be enshrined in Clause 1, I think that the historic thing—the permanent distinction between libel and slander—should be maintained.
As I have said, whereas spoken words given off in either the heat of the moment, among a circle of friends or to a wider assembly, are something quite different from written, published words, as Lord Birkenhead said, have a degree of permanence. Therefore, I oppose the Amendment.
§ Sir H. Williams
The House has been rather like a lawyers' stadium this afternoon and I get up with some diffidence. I have, however, tried to follow the law a little bit. I liked the Clause as it stood, because I always thought it very desirable that the position with regard to broadcasts should be cleared up. I am a little dubious about the later Clause, in that it defines broadcasting much too narrowly, because if I can get hold of an illegal set I can indulge in all the slander I like, and it does not become libel.
818 I hope that the promoters of the Bill will look into that. The analogy between slander and libel is the analogy between a Bill and an Act of Parliament. I hope that the Attorney-General is listening. A Bill is equivalent to slander in that it is very impermanent, but when it becomes an Act it is, like libel, permanent.
Obviously, we shall not finish the proceedings today. Can the Attorney-General give some indication as to what would be the attitude of the Government towards providing on some convenient occasion, provided that hon. Members opposite will not be too chatty, a little extra time for the Bill?
§ The Attorney-General
The best I can say is that I will do everything possible to help in that direction. The only reason I cannot answer is that I did not appreciate that the matter would be dealt with in the way that it has been dealt with today, and I had hoped that we should conclude today, as, I think, was the hope of most hon. Members who are interested in the subject.
§ Sir P. Spens
May I take up the debate on the Amendment which is before the House? This is a serious attempt to try to find some way in which to assimilate the law of libel and of slander. I start by agreeing with everything that the hon. Member for Islington, East (Mr. E. Fletcher) has said about the difference, except that I do not quite agree with him in the quotation which he made. I prefer, "Litera scripta manet" and not a plural, which, even in the new pronunciation, I was unable to recognise.
Really and truly, even the solution which is suggested by the Amendment, and the proviso to which the hon. and learned Member referred, must result in a whole lot of trivial actions, even though they would be dismissed almost in limine; and I think that it would spoil the whole of the sense of humour of the country.
It would mean that under no circumstances could we tell a good story about some of our friends, still more about some, possibly, of those whom we do not love so much, not because of those who hear us—they would understand and take it lightly—but because somebody's tongue would repeat it to the object of the story, and if that person, man or 819 woman, had no sense of humour whatever, what had been a purely social, amusing evening would then be ventilated in the law courts.
There is a singular lack of humour about the modern generation, if I may say so; and there is a singular lack of humour about a great many Members of this honourable House, if I may say so, on both sides of the House. They seem to me to take themselves terribly seriously these days, and the sort of story that certainly used to be told in the time of my youth, in the telling of which I have not the slightest doubt I often took part, either as the teller or the auditor, will result in a whole heap of more litigation, excellent for the Bar, but which will spoil the whole of the amenities of modern life.
I therefore hope that my hon. Friend will do what he said and take the expressions of opinion; and I hope he will accept this expression of opinion as one strongly adverse to the proposal.