INTERNET LIES (COMMITTEE STAGE) – 10 February 2000
ELECTION CAMPAIGNS AND PROCEEDINGS: MISCELLANEOUS AMENDMENTS
Dr Julian Lewis: I beg to move amendment No. 18, in page 158, line 43, at end insert--
'8A-(1) Section 106 (false statements as to candidates) shall be amended as follows.
(2) In subsection (1) after the words "character or conduct" there shall be inserted the words
"or fails to take reasonable steps to withdraw from circulation and public availability a false statement previously made or published".
(3) After subsection (1) there shall be inserted--
"(1A) 'For the avoidance of doubt, a person who makes or publishes a statement on the Internet or by other electronic means, or who causes a statement to be so made or published, makes or publishes a statement for the purposes of this subsection; and a person who fails to remove or cause the removal of a statement from the Internet shall be regarded as having failed, for the purposes of this subsection, to take reasonable steps to withdraw that statement from circulation and public availability'.".'.
I declare a direct interest in the matter as a result of my experience of being seriously libelled on the internet by someone who intended to damage my prospects of being elected at the general election.
Part of the Bill's purview is the conduct of elections in the 21st century, and the Bill must take modern technology into account. The internet is as big a revolution in communications as was the invention of the television. Anyone can, for a negligible outlay, become a broadcaster to the entire world. In talking about the problem, I have sometimes used the analogy of the drunken down-and-out whom one occasionally encounters in the street and who yells obscenities and profanities at innocent passers-by. The internet allows such obscenities and calumnies to be yelled out into cyberspace and to be accessed by anybody in the entire world.
What makes matters even worse is that one of the strengths of the internet when it is properly used-the search engine-adds immensely to its potency when it is abused. When one types, in all innocence, a candidate's name in the box provided on the search engine, one is unwittingly led to legitimate and illegitimate sites that mention the candidate. That can mean, for example, that sixth formers who wish to discover something about the people standing for election in their constituency and who search, in good faith, for the candidate's name, will unwitting be led to sites that breach section 106 of the Representation of the People Act 1983 and that damage the candidate's prospects of election by deliberately lying about him or her. It is not a question of someone going out of his way to seek out a scurrilous publication and find out something nasty about one of its victims; this intrudes on people who genuinely search for bona fide information about candidates and dumps this filth in their laps.
I have expressed a hope to move such an amendment in two previous Second Reading debates-not only on this Bill, but on the Representation of the People Bill, on 30 November 1999, when I set out in some detail what had happened. I do not, therefore, propose to go over all that again. At that time, I received guidance, which I greatly appreciated, from the Government and from officers of the House of Commons as to which of the two Bills it would be better to amend, and, eventually, it was decided that this was the appropriate Bill and that this was the appropriate schedule.
At almost every stage, I have received sympathy, support and encouragement from all parts of the House, including, in particular, from Labour Members, such as the Minister of State, Home Office, the hon. Member for Hornsey and Wood Green (Mrs Roche) and the Parliamentary Under-Secretary of State for the Home Department, the hon. Member for North Warwickshire (Mr O'Brien) in their ministerial capacities. I hope that their kind appreciation of the problem will lead to their support for a solution, in the form of the Government accepting the amendment, or undertaking to table a similar amendment at a suitable stage later in the proceedings. I am particularly obliged to the hon. Member for Ellesmere Port and Neston, who has kindly agreed to table the amendment jointly with me. The hon. Gentleman has suffered abuse via the internet during his political career, and I know that he feels as strongly as I do on the subject.
Section 106(1) of the Representation of the People Act 1983 states:--
"A person who, or any director of any body or association corporate which--
(a) before or during an election,
(b) for the purpose of affecting the return of any candidate at the election,
makes or publishes any false statement of fact in relation to the candidate's personal character or conduct shall be guilty of an illegal practice, unless he can show that he had reasonable grounds for believing, and did believe, the statement to be true."
It can be seen from that that the requirements for a conviction of the criminal offence laid down are very high. In particular, the prosecution must show that the defendant deliberately lied about the candidate. It is not enough to show that what he said was wrong. The prosecution must also show that the defendant had no reasonable cause honestly to believe that what he said might be true. The prosecution must also show that the defendant published the lies about the candidate to damage the candidate's prospects of being elected.
Concern has been expressed in official quarters about the danger that the amendment may catch secondary publishers, such as printers, distributors or internet service providers. That is absolutely incorrect, because it would also have to be shown, under section 106(1), that they, too, knew that they were disseminating lies, and, nevertheless, decided to do so to damage the candidate's vote. The amendment would, therefore, not normally bring an internet service provider or other secondary publisher into the realm of the criminal law embodied in the Representation of the People Act 1983.
The loophole that the amendment is designed to close was exposed by my case against the editor of the now defunct Scallywag magazine, which was then put on the internet. The magazine had been forced to close, as a result of successful libel actions that I had taken against its printers, six distributors and two sample retailers in 1995. By 1997, it existed only as one man and a website. That man uploaded scurrilous lies about me on to the internet, and was duly convicted of seven offences under section 106, after a four-day trial in 1998.
Essentially, the lies concerned a claim that I was a secret and promiscuous homosexual, and that I had used women from escort agencies to accompany me to a parliamentary selection contest when I was trying to get selected to stand as a parliamentary candidate. To show that what was said was fantasy, I shall give just one quote, which might lighten the atmosphere a little. It is from a message posted on the internet by the individual who was running the Scallywag website at a time when he was threatening to stand against me as a candidate in the election. He admitted that he would not get in, but, he said,
"he could just create enough diversion and mayhem to help keep Lewis out."
He went on to say,
"Because there are likely to be so few Conservatives in the next parliament, it is highly likely that Lewis will get an important political appointment if he gets in. That will line him up for a cabinet position if the Tories ever get back into power."
[Laughter.] I laughed about that as well. What he went on to say is relevant to the requirement to show that the intention was to damage my vote. The sentence on the internet in capital letters was:
"HE HAS TO BE DISCREDITED BEFORE HE IS GIVEN REAL POWER."
Then it said,
"If you want to help discredit him, please donate to the Scallywag fighting fund."
After the election was over, in June 1997, again showing the intention behind this campaign, an edition of the internet Scallywag asked the question,
"Did Scallywag have anything . . . to do with the election result?"
Although the answer to that question began:
"It is virtually impossible to say"
it went on to note:
"Many of our own stories came back to us in rumour and gossip, sometimes from the most unlikely of sources. We managed at least to spread some seeds of doubt."
People with the acuity of hon. Members present will not need me to point out that that amounted to an admission that these stories were made up, because otherwise when they came back there would have been no reason for the perpetrator and inventor of them to have supposed that they came from him rather than from some objective factual source in the real world.
During the four-day trial under section 106, the lawyer who represented the editor of the Scallywag website did not produce a single witness to back up his client's outrageous claims. The lawyer also admitted, on the last day of the trial, that there was, and I quote, "no evidence" for any of the allegations made about my sexuality. However, the lawyer sought to claim that his client was not responsible for the website because he did not physically upload the material himself.
Amendment No. 18 makes it clear that if someone writes such material and does nothing to prevent it from being published on a website, he cannot seek to escape responsibility just because somebody else physically processed the data for publication on the website.
In June 1999, the seven criminal convictions of this man were overturned on a legal technicality relating to section 106. The judge held that the material could not be said under the existing state of the law to have been "published" on the website during the election campaign-I emphasise that point-as required by the 1983 Act. That was because the material had been uploaded prior to the start of the election campaign. Crucially, the judge held that the material remaining on a website during an election campaign--even if it could be shown to be lies and intended to damage the candidate's vote--could not be regarded as constituting an act of publication during the vital period of the election. That was the judgment despite the fact that someone must have paid for the site to stay open during the campaign.
The judge was quoted verbatim in the legal report of Press Association News as saying:
"Failure of the defendant to act to shut down the site cannot be properly described as publication in the context of this Act.
We are aware that our decision means that there is a situation which is unsatisfactory if Section 106 (of the Act) is to continue to be effective legislation.
We are not entitled to remedy any defect the wording of the section may have in the light of more modern conditions."
That is the nub of the amendment. We are trying to clean up conditions that have developed from new technology so that section 106 of the Representation of the People Act 1983 is restored to efficacy for elections in the 21st century.
The amendment is meant to show, first, that the author of material posted on a website remains responsible for it even if he did not upload that material; secondly, that uploading material onto a website counts as publication of it, which is already the case but the amendment would clarify that beyond doubt; and thirdly, that continuing to keep such material on a website amounts to a continuing process of republication for the purposes of the 1983 Act. Uploading lies on to the internet to damage a candidate's vote probably amounts to an act of publication already. The amendment simply closes the loophole whereby a defendant can successfully claim that because the material was uploaded before the start of the election campaign, its continuing to remain on the internet does not amount to publication.
It has been suggested that at least one case in the High Court shows that the result of my case could have gone the other way. Having consulted the barrister who brought the prosecution for the Crown Prosecution Service against the man who libelled me, I suggest that that case is not adequate to fulfil the purposes of section 106 of the 1983 Act.
The amendment in no way criminalises the activities of internet service providers beyond the confines of section 106. It merely clarifies the responsibilities of the authors of lies and the meaning of "publication", and closes the loophole by which the spirit of section 106 would be frustrated through people posting lies on the internet before the formal opening of the election campaign. In my court case, the judge admitted that the verdict showed that in "modern conditions", section 106 might have been rendered ineffective at protecting candidates from lies about their character and conduct. The amendment would restore section 106 as a piece of effective legislation
Mr Andrew Miller (Ellesmere Port and Neston [Labour]): On the face of it, it seems an unholy alliance that the hon. Member for New Forest, East (Dr Lewis) and I should work together. He is right to say that I have suffered a certain amount of abuse--usually delivered by my hon. Friends in the Whips Office when I speak at times when they do not want me to.
In all seriousness, we should examine with care the principle that the hon. Gentleman raises. To show that this alliance – I say this for the benefit of my hon. Friend the Member for Bradford, South (Mr Sutcliffe) – does not go too far, I say that if the hon. Member for New Forest, East used the photograph that he used in the parliamentary IT briefing in describing the case that has just been published, he would probably be in breach of section 106 because it does not portray the same character that I see here. Perhaps it is merely the age of the photograph.
The core of the matter, as the hon. Gentleman said, is that we should not try to constrain the role of internet service providers – ISPs – for two separate reasons. First, if we impose unworkable constraints on them, it would slow down Britain's strong role in the development of electronic commerce. I am sure that that would cause concern to my hon. Friends in the Department of Trade and Industry and their Opposition shadow spokesmen.
Secondly, ISPs need to be thought of in the same way as the Post Office: they are deliverers of mail. The Post Office Act 1969 lays down that it is a postal worker's duty to deliver mail from the sender to the receiver without knowledge of the contents. One problem is that with an absurd 10 billion pages on the internet, it would be extremely difficult to put a prior requirement on an ISP to vet every page uploaded by providers. That would be an almost impracticable operation and extremely damaging to Britain's role in e-commerce.
If a postman discovers that package that has come open contains material that is obscene or a dangerous weapon that should not be sent through the post, the Post Office has a duty to act. It seems sensible to bring ISPs within this area, so that when something is brought to their attention as breaching a statute, they are required to take reasonable action. The use generally of the term "publication" in a number of statutes needs to be more firmly defined. We need to make it clear that the word--at our previous sitting we discussed the word "imprints"--also means electronic publication.
Let me illustrate a point from personal experience, close to that of the hon. Member for New Forest, East. I was the subject of a defamatory statement delivered on the internet by a Texan lawyer who, I discovered, did not have a great deal of money, which – the academic exercise apart – made suing him a waste of effort and would have diverted me from the campaign in which I was engaged. This happened, not during an election period, but during a campaign which I shall describe. Had it happened at election time it would be easy to appreciate the strength of the hon. Gentleman's argument. It happened while I was dealing with the well-publicised Louise Woodward case, which was conducted electronically. Hon. Members would be terrified if it ever happened to them because it resulted in me handling a quarter of a million e-mails. That puts a strain on the resources of parliamentarians with our meagre office costs allowance-simply an aside, but no doubt it meets with universal approval from hon. Members, including you, Mrs Michie.
The importance of the web in that campaign in raising awareness of a gross injustice was critically important. We used it to raise funds for the defence case and public awareness of the issue, and to gather expert evidence from all over the world on the difficult subject of injuries to young children. For reasons that have yet to be explained, I was accused by a Texan lawyer of participating only for financial gain. That was a clear-cut, unambiguous libel. My bank manager could easily have demonstrated that my participation cost money because the e-mails could not be funded out of the office costs allowance and I also gave a substantial personal donation to the fund. I shall go no further on that subject because there are some issues that are still sub judice, on which the High Court will rule--in the right way, I am sure--in June or July this year. The accusation was that I was in it for money. During an election period, the instant spreading of such a libel would be extremely damaging and impossible to stop under the terms of current legislation. On the principle that mud sticks, I cannot envisage any legislation that would stop that.
The only way to deal with such material is to make it crystal clear in appropriate legislation that there are circumstances in which ISPs have to act instantly and that those involved will pay dearly. I share the hon. Gentleman's disappointment at the way in which his case was treated because of the narrow argument about publication, and I am aware that there are other relevant court cases. There can be no doubt in the mind of members of the Committee that in discussing the Bill we mean publication in its fullest sense, including a piece of paper that I stick through someone's door, a poster in my garden, a letter that I send to an individual as distinct from a group of people, an e-mail that I send to an individual or to a group and the content of any website through which I seek to gain the support of the electorate.
If we put responsibility on ourselves as candidates, surely it is only fair to protect candidates from abuses by third parties not covered in the Bill who seek to defame them.
All sorts of difficulties surround such matters. The hon. Gentleman mentioned the strength of some search engines. I discussed them with a couple of colleagues the other day. The hon. Member for High Peak (Mr Levitt) asked which search engine I used. I sometimes use Alta Vista. I also use Metacrawler, which is freely available and has the power to cross-reference 10 or 12 other search engines; it is an immensely powerful tool. Therefore, even putting constraints on the proprietors of search engines would be inadequate. At the press of a button, using an intuitive search name, such as that of any member of the Committee, one can instantly find every publication that includes the surname, and there are billions of pages. In my case, there happen to be several notorious Andrew Millers. A couple of academics, a local councillor in Warrington and a big website in the United State all share my name. That presents other problems, some of which the Government must consider, given the developments in such technology.
In the defamation case to which the hon. Gentleman referred, the judge was clearly concerned that there had been a deliberate attempt to distort the electorate's views by dishonest means. We must ensure that a protective mechanism exists. The balance must be right: it has to protect candidates, but it must not inhibit reasonable statements made in the spirit of our principles of free speech, nor undermine the role of ISPs, given their important function as vehicles for electronic commerce.
I urge my hon. Friend the Parliamentary Secretary to ensure that the principle of the amendment tabled by the hon. Gentleman is clearly embodied in appropriate legislation, either in the Bill or subsequently. The Government must make it absolutely clear that publication includes not only paper documents but web and e-mail presentations so that no ambiguity can arise.
Mr Robert Walter (North Dorset [Conservative]): I am intrigued by the amendment, and I shall be intrigued by the Parliamentary Secretary's response to it. It deals with an important matter that has not been covered in previous legislation. Those who publish information or make statements on the internet are not necessarily covered by other legislation or other control mechanisms, particularly if they themselves are neither candidates, registered political parties, recognised third parties or permitted participants in a referendum campaign, nor what one might describe as recognised and reputable publishers--those who publish our newspapers and magazines, for example who--would be covered by other legislation.
I have not had the misfortune of my hon. Friend the Member for New Forest, East, although I found my name on a website that was produced by a Mr Gadd. He had got hold of a copy of the Conservative party's candidates list as well as a list of Conservative Members of Parliament and had ranked everyone in terms of whether they were what he described as Europhile or Eurosceptic. I do not know why he did that; he may have had some mischievous purpose.
Mr Miller: The hon. Gentleman ought be aware that every single one of us appears on at least one website, although many of us are on considerably more. In preparation for an important debate about the House of Commons Commission, I happen to have with me details of the BBC website, on which we all appear. It describes the qualities of the right hon. Member for Fareham (Sir P. Lloyd) and the reasons why he should remain on the Commission. Every one of us appears on websites, but some of the information is less than 100 per cent. accurate.
Mr Walter: I thank the hon. Gentleman for his intervention. I was about to say that, based on the information to which I referred which was not always correct, the Democracy Movement, which was mentioned earlier, drew up its campaign and dispatched picture postcards to the constituents of some of the hon. Members who had been incorrectly described, thereby compounding the felony of the misinformation on the website. I did not challenge what was written because I saw what had happened to others who had. If one sent an e-mail, a letter or a solicitor's letter to Mr Gadd, he published that and then published his response, and any ensuing responses. There was then what one might describe as a surfers' jury deciding who was right as regards the description-the accused Member of Parliament or Conservative candidate, or Mr Gadd.
I am grateful to the hon. Member for Ellesmere Port and Neston for tabling the amendment and I hope that the Minister will look on it, if not favourably, then constructively. It is an enormous subject. We as Members of Parliament, those who would be candidates and our own party workers are vulnerable to this new medium. It appears to many to be uncontrolled and it is difficult to seek redress, if one is misrepresented there.
Mr Paddy Tipping (The Parliamentary Secretary, Privy Council Office): I should tell the hon. Gentleman and, more particularly, the hon. Member for New Forest, East, that I will not be in the Committee this afternoon, so I will not have an opportunity to respond to their remarks. However, I shall ensure that my hon. Friend the Minister of State, Home Office, the hon. Member for Hornsey and Wood Green (Mrs. Roche), who has taken a close personal interest in this matter, is aware of this morning's discussion.
Mr Walter: I thank the Parliamentary Secretary for his intervention. I do not intend to go on for much longer, but I just want to emphasise the importance of the amendment.
It being twenty-five minutes past Eleven o'clock, THE CHAIRMAN adjourned the Committee without Question put, pursuant to the Standing Order.
Adjourned till this day at half-past Two o'clock.
ELECTION CAMPAIGNS AND PROCEEDINGS: MISCELLANEOUS AMENDMENTS
Question again proposed, That the amendment be made.
Mr Robert Walter (North Dorset): I was saying that amendment No. 18 is exceedingly important. It was tabled by my hon. Friend the Member for New Forest, East (Dr Lewis) and the hon. Member for Ellesmere Port and Neston (Mr Miller), which shows some cross-party commitment to finding an answer to the internet problems that have arisen in recent years. I alluded to my own experience of the internet and to people using it in a way that could result in distortion or misrepresentation. My hon. Friend the Member for New Forest, East pointed to a specific and worrying legal problem.
Dr Julian Lewis: I point out to my hon. Friend that section 106 of the Representation of the People Act 1983 is narrowly drawn. It relates to lies about the personal character or conduct of a candidate, with a view to damaging his chances of being returned to Parliament--lies about the sort of political positions that he might take or statements that might be wrongly attributed to him. It is specifically intended to prevent people's character being blackened by lies.
Mr Walter: I thank my hon. Friend for bringing me back to the amendment. I wished merely to allude to the wider problems caused by the electronic transmission of information and electronic publication, which we may have to deal with in other legislation.
The Minister of State, Home Office (Mrs Barbara Roche): First, I apologise for having missed this morning's debate but, as I used to say in a former incarnation, I am familiar with the issue. It deserves our attention. When I was a Minister at the Department of Trade and Industry, I devoted much attention to the question of how to grapple with and regulate the comparatively new phenomena of the internet. With that plea in mitigation, Mr Maxton, I hope that you will forgive me for coming late to this discussion.
I have discussed the matter with the hon. Member for New Forest, East and my hon. Friend the Member for Ellesmere Port and Neston, and I congratulate them on the way in which they have pursued the matter. I bow to my hon. Friend's expertise; he is one of the most knowledgeable Members on new technology.
I am not unsympathetic to amending section 106 of the Representation of the People 1983 along the lines suggested in the amendment. The subject is difficult, because we need to deal with a number of complex, technical issues. The Committee may agree about what we need to achieve, but the means of getting there is difficult to resolve. The amendment is not acceptable as it stands.
First, under section 106 of the 1983 Act, it is necessary to prove intent. The amendment would leave that requirement in place, even when the offence lay in the failure to remove an item that was first published some while previously, But it would be difficult to prove such a case and the amendment might therefore be without effect. On the other hand, removing the requirement would be a significant step and one needs to consider the public policy implications.
Secondly, we cannot clarify the meaning of "publish" in section 106 in isolation to other uses of that term both in the 1983 Act--for example, section 110 – and in the Bill – clauses 94, 118 and 119. In particular, it may be right to clarify that a person who makes material available on a website publishes it for the period during which the availability of the material remains within his control. There must be some consistency in the way in which the issue of responsibility for website publications is dealt with across the board.
I have had discussions with the hon. Gentleman and have already asked my officials to consider what we could do to plug the loophole in such a way that it does not have an undesirable effect. I cannot promise to find a workable solution that meets all the public policy requirements without being too broad in focus, but I shall do my best. I am grateful for the discussions that we have had and on that basis I ask the hon. Gentleman to withdraw the amendment.
Mr Andrew Miller (Ellesmere Port and Neston [Labour]): I apologise to you, Mr Maxton, for the slightly inappropriate hand signals, but it is important to deal with the matter in some detail before the hon. Member for New Forest, East decides whether to withdraw the amendment.
My hon. Friend, the Minister, hits on the two key issues--the question of intent and the hugely difficult one of publishing. I accept that a careful line has to be drawn between deliberate intent to defame, either in or out of an election period, and the absolute right to freedom of speech that we must protect. All hon. Members will acknowledge that my hon. Friend made an important point that needs to be carefully studied in the context of an appropriate way of handling section 106 of the 1983 Act. We touched on that this morning.
On the question of publication, my view is still that in the Bill, as in all legislation, the Government need--to use the words of the hon. Member for New Forest, East of this morning--to create legislation fit for this century in the context of the very rapidly changing nature of publications. There are a number of issues that I would urge my hon. Friend to look at. The first relates to the internet as we know it today--and I stress "today" because tomorrow the internet will be a different vehicle, more widely available and with an infinite number of pages. I speculated this morning that there might be 10 billion pages currently available.
Second is the vexed question of the handling of e-mail, especially given the power to mass-broadcast e-mail. We saw when the Electronic Communications Bill was going through its Committee stage, the very effective way in which the Leader of the Opposition conducted, perfectly legitimately, his mass-broadcasting campaign. I am on dangerous ground, again praising a Conservative, but I praise him for his technical competence in so doing. If, however, it is used as a tool of malice, it could be a dangerous weapon that could undermine the integrity of any candidate very easily.
The third area is that surrounding the internet: the way in which domain names are registered. If I may use a personal example by way of illustration, there is nothing to stop me registering the domain name "Julian Lewis"--
Mr Andrew Stunell (Hazel Grove [Liberal Democrat]): Other than commonsense.
Mr Miller: The hon. Member for Hazel Grove (Mr Stunell) says "other than commonsense" from a sedentary position. However, if I wanted maliciously to attack the hon. Gentleman, it would be very useful to register a domain name that is closely associated with his. Members of Parliament who subsequently become candidates have special problems associated with that. There are grounds for saying that Parliament should revisit this problem urgently. If it is not possible to reach an appropriate solution before we consider the Bill on Report, I hope that my hon. Friend the Minister will be in a strong position then to give appropriate assurances, not just to this Committee but to the whole House, that active consideration will continue until we find a way through this morass. There will have to be a clause that encompasses the technologies of tomorrow as well as those so far identified.
Mr Stunell: I hope that when summing up the hon. Member for New Forest, East will, first, disregard my unfair intervention. Secondly, I accept that many of us feel that this issue needs to be confronted and dealt with. I hope that he will press the Minister, as I would, to make sure that should she feel unable to come forward with a solution now, she will give some undertaking that something will be done, since this is going to be the most rapidly expanding area on election communications and campaign communications over the next 10 years. If this Bill misses the opportunity, there will be a major loophole.
Dr Lewis: In view of that generous support for the amendment from the hon. Member for Hazel Grove, I could forgive him almost anything. If the Minister had been present this morning, she would have heard me talk along the lines of a memorandum, with which I know she is familiar. I also paid her a tribute for her kindness in meeting me not only in her capacity as a Home Office Minister, but to discuss related matters when she was a Minister at the Department of Trade and Industry.
I do not want to sound mawkish, but I was extremely touched by the sympathy and support that Members from all parties have shown me for the ordeal that I underwent. I am sure that many of them realise that it might be only the tip of the iceberg. As I am sure the hon. Member for Ellesmere Port and Neston recognised long before I became acquainted with the subject, the internet is in about year three of its evolution, yet we may expect that it will advance to about year 50 in the twinkling of an eye, or at least a mere decade of earthly time. The technological ability that the internet confers on any individual to broadcast to the world is a great power.
I am in no way attached to the specific words of the amendment. I did not draft it myself; I am grateful to the Clerk of Legislation, who drafted it as a first and--I think--effective stab at the problem. In a previous existence, I was involved in pressure group work and sometimes I helped to draft amendments to legislation. I have never known of the acceptance of an amendment drafted by the person who waged the campaign for it. One must try to convince the Government of the day that an amendment needs to be made, and then rely on the expertise of officials working with Ministers to draft it.
My campaign has gone on for several months and I have received personal or public support from three Home Office Ministers. They understand the problem and support me, so why should they not amend the Bill? The answer is that there may be technical difficulties, but we do not want to let what I shall gently call the Sir Humphrey syndrome force the problem into the sand.
It is clear already that people who upload material on to the internet are publishing it, and my case did not fail on the grounds that they were not. We are dealing with the narrow issue of whether it amounts to publication during an election campaign if people deliberately keep material on the internet and, as the Minister rightly said, decide to leave it there, knowing that it is under their control to remove it.
We are talking about something that goes to the heart of the democratic process. Section 106 of the 1983 Act is designed to place criminal sanctions against an act for which, if it were done to individuals when they were prospective candidates or involved in an earlier stage of political life, there would be no criminal remedy. The exception to that would be the all too infrequently used remedy of criminal libel, and it is debatable whether that is even still available to people for their protection.
Section 106, when it deals with other methods of publication, can place criminal sanctions in the peculiar situation of danger to the integrity of the election process. Therefore, I see no reason in principle why it cannot make a similar rigorous exception to our more normal, liberal attitude to issues of free speech and criminal law in the case of the internet.
In the discussions that led up to my tabling the amendment, officials kindly gave me the judgment on a case that--in their opinion--established that, had the judges done their job properly in my case, the appeal would have failed and the conviction of the person who had abused my reputation would have stood. The problem was that the case was out there at the time of the appeal and it was not adequate to do the trick. The barrister who brought the case for the Crown Prosecution Service confirmed to me subsequently that, in his opinion, even if that particular case had been cited, it would not have made any difference to the result.
Let us suppose, however, that that advice was correct and that the case law established by that judgment had done the trick and determined that it was still publication to leave the material on the internet during the election campaign, having put it there prior to the start of the campaign. If that were the case, whatever the difficult, technical, knock-on problems that would flow from amending the Bill, they will still result from that specific case law. I sometimes get the feeling that there is objection to the amendment, because minds have been made up and people do not want the trouble of altering the law and looking round for alternative rationalisations. I know that that is not the view of the Minister and I hope that it is not the view of the Government's professional advisers.
I want to refer now to intent. The objection that is now being made that it would be difficult to show that leaving lies on the internet during the election campaign was done with the intent of affecting the candidate's vote. That would not be much more difficult than it was for me to show that putting the lies on the internet in the first place was done with the intent of damaging my vote. The Minister and I are at one about how difficult it is under the current law to get a conviction under section 106 of the 1983 Act, because it requires that the person who is to be convicted must have
"before or during an election"
"for the purpose of affecting the return of any candidate at the election"
told lies about the candidate.
To fulfil that requirement, I attended a public meeting given by the author of the scurrilous lies about my private life and deeply personal matters. The lies also affected my then girlfriend, who was accused of being a woman from an escort agency, and she attended the meeting with me. I asked the person who held the meeting questions about what he had said about "Julian Lewis". He gave me answers and it was only then that I revealed that I was the very person whom he been defaming throughout the world. I identified my girlfriend and asked him to name her and the escort agency for which he had said she worked. He could do none of those things and it was only then that I said, "The reason you are doing this is to damage my vote at the election, isn't it?" The man was arrogant and stupid enough to say, "Definitely!"
I could prove intent only because I had had enough foresight to have someone in the front row tape recording what was taking place. The argument about the difficulty of proving intent is not in relation to my amendment, but in relation to the efficacy of section 106 of the 1983 Act as a protection for candidates against lies being told about them generally.
If people want to make an issue out of the question of intent, they must consider removing paragraph (6) from section 106, whether or not such material is put on the internet during the election campaign. As the law stands, it is difficult to prove intent. If the difficulty of proving it is an objection to my amendment, it is also an objection to the existing law. I am trying to bring the Bill into line with the intention and reality of existing law as it pertains to those people smart enough to put lies on the internet before an election campaign formally begins and to leave them there, rather than as it pertains to those who merely put lies on the internet during an election campaign.
I have listened carefully to the Minister's assurances. I am almost entirely satisfied, but not so satisfied that--if she cannot come forward with the appropriately sophisticated alternative amendments, if her officials are correct, and I have no reason to doubt their view that alterations are clearly required--I will not reintroduce the amendment at a later stage. I beg to ask leave to withdraw the amendment.
Amendment by leave, withdrawn.
Schedule 17 agreed to.