Michael Gove – 2008 Speech on Libel Laws

Below is the text of the speech made by Michael Gove, the Conservative MP for Surrey Heath, in Westminster Hall on 17 December 2008.

I congratulate the right hon. Member for Rotherham (Mr. MacShane) on securing the debate and the hon. Members for Croydon, Central (Mr. Pelling) and for North Norfolk (Norman Lamb) on their speeches, both of which contained much good sense.

I draw attention to my declaration in the Register of Members’ Interests. As a journalist, I write for The Times and have been an executive of that newspaper as news editor. I am committed to the principle of free expression and the freedom of the press. That is not only a consequence of my professional career and vocation, but because I believe that it is only through an effective free press that the exercise and abuse of power can be monitored effectively.

While this country has the police, the courts and a system designed to track down and punish those who do wrong, the press has historically played an invaluable role in bringing such people to the attention of the courts and the police. Sometimes the press is needed to draw our attention to the failure of the authorities in the pursuit of wrongdoing, extremism or other activities that threaten the public interest. Only this week, The Times pointed out that someone who has connections to Islamist extremism that might concern us all has been employed as an adviser to the Metropolitan police’s Muslim contact unit.

Not just newspapers, but other institutions that exercise a journalistic or quasi-journalistic function have exposed extremism in public life. Think-tanks such as Policy Exchange, which I used to chair, and the Centre for Social Cohesion have pointed out the extent of extremist influence—particularly but not exclusively Islamist extremist influence—in British public life. Because of the international nature of the extremist threat, there are examples of the press being more effective than states or international institutions in exposing such dangers. An example is the work of Claudia Rosett at The Wall Street Journal in exposing the failure of the UN effectively to police sanctions against Saddam Hussein. In all those areas, free expression and a free press have been vital in exposing abuses.

The right hon. Member for Rotherham pointed out that it is of particular concern to all of us who are attached to the freedom of the press that individuals who have been alleged to have links to extremism have used British courts to close down the investigation or publication of allegations that are in the public interest. He mentioned the examples of Khalid bin Mahfouz and Mohammed Sawalha, a British resident who tries to close down legitimate investigation into extremism on the internet.

As the right hon. Gentleman and the hon. Member for North Norfolk pointed out, there is in effect a public interest defence in law for the sort of investigative journalism that I am sure we would all applaud. The Reynolds defence offers journalists and newspapers a form of qualified privilege. That is qualitatively different from the sort of privilege enjoyed in courts and by Members of Parliament because it allows newspapers the comfort that it is legitimate for them to publish allegations provided that the process followed demonstrates that the journalism they are engaged in is of high seriousness, that appropriate steps have been taken to ensure that the allegations are in the public interest and that they are being properly investigated. They do not subsequently have to prove justification to the same threshold required in other cases.

A problem with the Reynolds defence is that instead of being an aid to free expression, according to some it has become an obstacle to free expression. The guidance that the courts originally gave newspapers to help them publish material in the public interest has become another set of hurdles that they have to clear. The hon. Member for North Norfolk pointed out that Jameel and others v. Wall Street Journal Europe Sprl made it perfectly clear that the Reynolds defence should help, not hinder, free expression.

There has been only sporadic implementation of that defence and a misunderstanding of it in many courts. That is why at the very least it is worth exploring whether we can enshrine the principles of the Reynolds defence in statute. That would send a clear signal from Parliament to the courts that the Reynolds defence is in effect as a public interest defence that allows the publication of material that should be part of public debate, particularly when serious issues such as extremism and terrorism need to be investigated.

Dr. Evan Harris (Oxford, West and Abingdon) (LD): The hon. Gentleman has set out some components of the Reynolds defence. I believe that part of that approach of responsible journalism is to report the denial of the allegations by the accused. That is not a requirement, but I am interested to hear his view on the matter.

Michael Gove: The hon. Gentleman is right that broadly 10 principles are outlined in the Reynolds defence, one of which is the strong suggestion that an effort should be made to secure the response of the individual against whom allegations are made. It is a basic principle of good journalism that the other person’s case should be heard.

I would not wish to erect those 10 principles into 10 absolute hurdles. Discretion should be exercised in the courts and any change to the law should acknowledge that. The important points are whether the material that is published is in the public interest, whether the case is urgent and important enough to justify publication and whether overall the journalists, the newspaper or the blog can demonstrate that they have done everything in their power to ascertain the truth and importance of the allegations that are published.

On costs, the point has been made that conditional fee agreements can raise profound questions of a chilling effect on publication. Indeed, Lord Hoffman has pointed out that freedom of expression may be seriously inhibited by conditional fee agreements. The hon. Member for Croydon, Central has pointed out that they can be helpful to individuals without resources who have been defamed. I do not wish to see the end of them, but it is important that an effort is made not to perpetuate the chilling effect on publication in the ongoing review into the costs of civil judgment. In particular, small and independent newspapers, think-tanks, research groups and other organisations that are vital components of a free and rigorous culture of debate and accountability must be protected in any structure that we create.

Finally, it has been pointed out that internet publication can lead to links being created to articles that were published and brought into the public domain four or five years previously because they remain on an internet archive. That may be done to substantiate a point that is being made afresh. An individual who creates such a link to material that is already in the public domain can be sued. At the very least, it is questionable whether we should allow the courts to pursue an individual who in all innocence creates a link to an article that has not been the subject of a defamation action. That individual may be sued because of the desire of another to pick off a weak link who he considers to be rich pickings and a suitably unprotected victim. In those circumstances, it would be appropriate for the court to ask, “Why did you not go for the big boys first?”