Defamation and Malicious Publication (Scotland) Bill: Stage 1

Part of the debate – in the Scottish Parliament on 5th November 2020.

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Photo of Liam McArthur Liam McArthur Liberal Democrat

I, too, thank all those who gave evidence to the Justice Committee, our clerks, the Scottish Parliament information centre and others who have helped in our scrutiny to date. I also thank, of course, the Scottish Law Commission, the work of which laid the foundations for the bill.

The Law Society of Scotland has pointed out that modernising and codifying the law of defamation is overdue and should help to enhance accessibility. However, as others have said, achieving a proper balance between protection of reputation and freedom of speech is not easy, although it is obviously essential. I believe that the bill achieves that balance, in the main—albeit that changes will be needed at stages 2 and 3.

Broadly speaking, that reflects what the committee heard in evidence, although important concerns were raised, particularly by the Faculty of Advocates, which believes that the bill goes too far in trying to address a problem that, in its view, does not really exist in Scotland. As the minister said, Duncan Hamilton talked about

“an English solution to an English problem.”—[

Official Report, Justice Committee

, 1 September 2020; c 12.]

By contrast, Scottish PEN and media witnesses felt that the scales could safely be tipped a little further and highlighted what they see as the “chilling effect” of the ability of those with “thin skins and thick wallets” to silence fair comment through threats of legal action. Reference was made to the more precarious media environment, in which savaged budgets and high levels of freelancing mean that the risk of even pursuing, far less publishing, certain stories is one that editors, journalists and publishers are increasingly wary of taking.

Overall, however, the committee was generally satisfied that the bill is pitched about right. I very much share that view.

I welcome, as did witnesses, the inclusion of a statutory definition of defamation, although, as in other areas such as defences, there is a concern, as the convener said, to ensure flexibility in order to allow adaptation over time and the ability to draw on case law. The minister has expressed sympathy with that, but it might still require amendment to the bill.

Perhaps the key area in which debate over competing rights and freedoms emerged was in relation to thresholds—specifically, the inclusion of a test of serious harm. The minister has defended that change, suggesting that

“The current law simply presumes that damage has been done.”

I am not sure that that is true. Damage still needs to be proved, with any award being contingent on the seriousness of the harm that has been caused. Having initially been a firm supporter of the serious-harm threshold, I confess that I now have some misgivings. The committee did not really form a clear view on the matter, so it is one that we will need to return to and resolve at stage 2. I look forward to hearing what Andy Wightman has to say.

Also, more clarity is needed around the way in which the Derbyshire principle is expressed in the bill and the codification of defences. The minister seems to be reluctant to concede on either point. Although I support the direction of travel in both areas, I think that it is regrettable that the minister has not responded more positively to the clear concerns that were raised with the committee.

Similarly, on the welcome exclusion from liability of secondary publishers, the minister appears to be unwilling to accept that anything more needs to be done to help those who wish to request removal of material. She referred to simple-procedure rules in the sheriff court and to £19 actions, but that picture was not necessarily reflected in the evidence that we heard. Whether it is dealt with in the bill or through other means, I think that the matter merits further attention.

Finally, on limitation, I welcome the reduction to one year for bringing a case. In a digital age, that seems not to be an unreasonable timeframe, and it could help to address some of the “chilling” about which the committee heard. That said, there might still be legitimate reasons why such a timeframe could prove to be problematic, whether that is due to genuine lack of awareness about material or to the cumulative impact of repeated references. The minister insists that allowances are made in the general law of limitation, but we also need to return to that at stage 2.

As I have said, I believe, in the main, that the bill broadly achieves an appropriate balance between the rights of protection of reputation and freedom of expression. It is also encouraging to hear of the work that is being done to promote greater use of mediation and other forms of dispute resolution.

I look forward to continued work with committee colleagues and the minister to improve the bill, where necessary. For now, I confirm that Scottish Liberal Democrats will support its general principles at decision time.