I beg to move amendment 17, in clause 5, page 3, line 23, at end insert—

‘(2A) The defence provided in this section is not affected by the operator having a policy of amending content (“moderation”) after it has been published provided that any changes made as a result of the actions of the moderator—

(a) do not significantly increase the defamatory nature of the words complained of;

(b) do not remove a relevant defence to an action for defamation in relation to the words complained of; and

(c) do not significantly increase the extent of the publication of the words complained of.’.

Mr Havard, can I confirm that we will not take clause stand part until we have dealt with both amendment 17 and the subsequent group of amendments?

That is correct.

Amendment 17 is the first of a number of amendments and new clauses tabled to try to make sense of what is, sadly, the worst part of the Bill. I said on Second Reading that I thought clause 5 was ill-thought out, shoddy and incomplete, and does the Minister and his officials no credit. It is extremely disappointing that such an important part of the Bill should be in the state it is in. I had hoped that the Minister would have taken time between Second Reading and now to come forward with something more than the letter sent to you, Mr Havard, and your co-Chair, Mr Chope.

The last time a Defamation Act was passed, the internet was in its infancy, trolling was rare and relatively unknown, and Twitter, Wikipedia, Google and Facebook were all years away from being launched. For all the benefits it has brought, the internet has therefore provided a heap of new challenges to our legal system, perhaps none more than defamation legislation, which has to keep up with an ever-moving target and increasingly varied and complicated means by which people are able to post or spread statements that may, or may not, be defamatory. This is where my amendment comes in. We will, of course, be able to debate those issues more widely on clause stand part, but I am keen to keep in this specific amendment. It is useful to refer to the Law Commission’s report Defamation and the Internet, published in 2002, which is why this section of the Bill is so important and why I have tabled my amendment.

The Commission report states:

“There is a strong case for reviewing the way that defamation law impacts on internet service providers. While actions against primary publishers are usually decided on their merits, the current law places secondary publishers under some pressure to remove material without considering whether it is in the public interest, or whether it is true. These pressures appear to bear particularly harshly on ISPs”— that is, internet service providers—

“whom claimants often see as ‘tactical targets’. There is a possible conflict between the pressure to remove material, even if true, and the emphasis placed upon freedom of expression under the European Convention of Human Rights. Although it is a legitimate goal of the law to protect the reputation of others, it is important to ask whether this goal can be achieved through other means”.

Amendment 17 seeks to introduce measures to better protect those internet intermediaries—internet service providers, search engines, discussion boards—from action. I hope that the reasoning for introducing this amendment is startlingly clear. I will however explain why it is necessary that these measures are in the Bill. This amendment is backed by the work of the Joint Committee and it is to ensure that someone who subsequently moderates a post does not open themselves up as an intermediary to any action, provided they have not made things worse or done anything that takes away somebody else’s defence. Post moderation is something that should be encouraged. Many consider it best practice and so it would be a great shame if this Bill ended up creating a chilling effect of its own while failing to protect those who moderate posts.

As with many of my amendments, this does not run counter to anything which the Government are trying to achieve with this Bill. It would simply strengthen the Bill to ensure that, as I continue to warn, an enterprising lawyer does not consider that this is a loophole, leading to further debate and legislation being required in the years ahead in order to close it. I am sure members will be delighted to hear that I will not detain the Committee this evening more than necessary, but I would stress that this amendment 17 is one of a series that tries wherever possible to bring some sense back to clause 5, which is wholly inadequate. Amendment 17 would ensure that moderators do not find themselves stumbling into problems simply because, for example, they take out offensive language, tidy up a posting, or moderate a posting in a way that fits in with the particular style of the account on which the posting has been made. It is something that needs to be in here and I hope—perhaps in vain—that when the Minister rises, he will at least say some warm words about it, although I fear that we are not going to agree about clause 5.

I strongly agree with what my hon. Friend has just said. The editors of local newspapers, which frequently have websites where people can comment alongside the articles, tell me that if they moderate those comments, they open themselves up to such claims, with the law in its current state. It is important, because—I do not know how often you look at such websites or whether you have ever posted anything, Mr Havard—such comments are frequently followed by a lot of abuse, and that abuse needs to be stripped out. The abuse content is quite separate from the defamatory claims, so if we are to have a reasonable tone on the web in general, we need to enable newspapers to carry on moderating and not to fear that there is any risk in doing so. It is a particular issue for women, whose web articles far more frequently attract abuse, which has nothing to do with anything defamatory at all. If we are to get a tone on the web that will enable it to be a genuine network that people can use to exchange ideas, we need to offer some protection to participants. My hon. Friend’s proposal would help to achieve that.

We are now on clause 5, which deals with the operators of websites, and hon. Members will appreciate that I have now provided them with a note on the proposed procedure, which will be the subject of regulations relating to the clause.

Amendment 17 would insert a general provision into clause 5 relating to situations when a website operator moderates material posted by third-party users on a site that it hosts, which is one where it monitors and amends the content of the material. We share the view expressed by the Joint Committee on the draft Bill that responsible moderation of content should be encouraged. However, we do not consider that the amendment is necessary or appropriate to achieve that aim. Under the provisions in the Bill, a website operator will be able to rely on the  defence under clause 5—provided it follows the prescribed process—regardless of whether or not it moderates the site in question, and we do not consider that a specific provision is needed.

It strikes me that having to rely on the other provisions in the clause increases the level of effort, whereas a simple clause that just sets out the situation for moderators would mean that they would not have to rely on all the other defences.

I am explaining why that would not necessarily simplify the case at all.

If the operator moderates content on the website so much as to change the meaning of what the author had posted in a way that made it defamatory or increased the seriousness of the defamation, that would be a factor that the court might want to consider as part of the question in subsection (2) of whether it was the operator rather than the author who could properly be said to have posted the material. Any dispute as to whether the operator had actually posted the material itself would be a matter for the court to determine in all the circumstances of the case. The Government do not consider it helpful to prescribe particular circumstances under which the operator should be regarded as having amended the material to a sufficient extent to be regarded as having posted the material. In any event, it is our view that the conditions contained in the amendment would provide an inappropriate level of protection for operators, given the need for the defamatory nature of the words and the extent of their publication to be significantly increased.

On that basis, I hope that the hon. Gentleman will agree to withdraw the amendment.

I have continued to be disappointed throughout the day, and it will be a sad day in the Flello household. Despite our best efforts and the lateness of the hour, we really feel that reassurances and information are not coming through from the Minister. With the greatest respect, the Minister should perhaps have a word with his officials after this sitting in order to get some more detail into the briefings. That would be most welcome.

I shall not push the amendment, and I will ask the Committee to agree to withdraw it, not because the amendment is not good—it is—but because even if it were accepted, it would be a beauty spot on what is otherwise an ugly clause. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Ordered, That further consideration be now adjourned. —(Mr Vara.)

Adjourned till Thursday 21 June at Nine o’clock.