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 Rona Mackay Rona Mackay Scottish National Party

I am pleased to be able speak in the stage 1 debate on the Defamation and Malicious Publication (Scotland) Bill and will be happy to vote at decision time in favour of the general principles of the bill.

It is generally accepted that the existing law on defamation in Scotland is piecemeal and out of date. Put simply, it is no longer fit for modern-day purposes. The last substantive change was made 24 years ago.

The bill aims to clarify and strengthen the statutory underpinning of defamation in Scots law, in order to protect freedom of expression and the reputation of individuals. Those considerations are at the heart of the bill, encouraging access to justice for those who believe that they have been defamed, through clarifying the law and protecting freedom of expression.

It is a technical bill, consisting of no fewer than 40 sections in three parts, and one schedule. As deputy convener of the Justice Committee, I put on record my thanks to the clerks and the bill team for all their hard work in setting it out for us in a comprehensive and logical way.

I have to confess that, at the outset of the bill, I had a preconceived notion that it would be dry and intensely legalistic, but I was wrong. I think that I speak for everyone on the committee when I say that the many witnesses from legal, media or creative backgrounds gave evidence in a way that made each session fascinating, informative and real, and I thank them for that.

The bill places certain key elements of Scots common law on defamation on a statutory basis, in addition to replacing and restating elements of the existing statutory provisions in Scots law. It is impossible to cover all its aspects in a short speech, but I will try to cover some of them.

Part 1 provides a new definition of defamation and introduces the threshold test of serious harm. It is possibly the most contentious element of the bill and I will expand on it later. Part 1 also covers defamation actions relating to public authorities and business interests.

Part 2 makes a number of provisions to replace common-law verbal injuries with three new statutory delicts relating to malicious publication.

Part 3 seeks to reduce the time period for bringing a defamation action from three years to one year and introduces the rule that the clock starts running from the first occasion that a statement is published. I believe that that is a sensible provision, as in most cases a person would know almost immediately when they believe that they have been defamed. However, it does not take into account the cumulative, straw-that-breaks-the-camel’s-back effect of being defamed over time, which came up in the evidence sessions, so I am pleased that flexibility could be used on a case-by-case basis.

A lot of discussion and evidence related to the so-called “chilling effect”. Many organisations argue that defamation law in Scotland and England is having a chilling effect on freedom of expression. The argument is that those who can afford it can use the threat of legal action to quash stories and silence criticism, often by way of legal warning letters. [

Interruption

.] The law on defamation is uncertain and relies heavily on decisions in previous cases, which makes it difficult to judge the prospects of success, so defenders might be too scared to meet the significant costs of court actions. The National Union of Journalists has highlighted that traditional media organisations are struggling to maintain their financial viability, and they might simply drop a story. That is the chilling effect. In addition, today’s freelance culture means that many more journalists do not have the backing of a major news organisation.

As I said earlier, the threshold test of serious harm was a divisive issue during evidence sessions. As the minister said, some referred to it as

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

Official Report

,

Justice Committee

, 1 September 2020; c 12.]

However, the Scottish Law Commission firmly believes—as does the Scottish Government—that it would achieve the right balance between freedom of expression and protection of reputation. It would discourage frivolous action and reduce time and money costs for the individual and the civil courts. If a person says that their reputation has been unfairly damaged by defamatory statements, surely it is only right that they should show how it has been damaged. [

Interruption.

]

The digital revolution in online publishing and social media during the past—