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 Ash Denham Ash Denham Scottish National Party

It is now just over 11 months since the Defamation and Malicious Publication (Scotland) Bill was introduced to Parliament. The circumstances that were forced on us due to Covid-19 greatly impacted its normal legislative process. I thank the Justice Committee and its clerks for their patient and hard work, which has allowed the bill to progress. I am pleased to note that the committee recommends that the bill’s general principles be agreed to.

The bill is different from those that the Justice Committee usually considers, as it is largely the product of the Scottish Law Commission, which considered possible reforms to the Scots law of defamation. The bill takes forward every substantive recommendation that was made, and I thank the Scottish Law Commission for the work that it has put into this reform project.

Given the rights that are affected by the bill, I want to make sure that, as far as possible, the provisions are something that we, as a Parliament, can all agree on.

The law of defamation has to strike the right balance between two values that sometimes pull in opposite directions: freedom of expression and protection of reputation. Both are fundamental human rights, and both are vitally important in modern democracy. The widespread use of social media means that we are all capable of creating content that can be easily shared and viewed. The bill aims to make sure that our law of defamation is fit for 21st century Scotland, with a clear and accessible framework that balances those two rights. It brings defamation law up to date, and simplifies it in some key areas by replacing and restating the existing law.

I will speak about some of the bill’s key measures, beginning with the statutory definition of a “defamatory statement”. Other provisions in the bill set out what defamation is not, so it is important that we define what a defamatory statement is. The common-law definition that is most often referred to by the courts was set out in 1936, so this is a chance for this legislature to consider and debate the definition.

The bill takes the common-law definition and expresses it in modern language that is already familiar to the courts. The committee has heard evidence from those who are content, but also from some who have concerns. It is normal for our courts to consider previous case law as a matter of course, and I would expect them to do that, where appropriate, when interpreting the new statutory definition. I will make that view clear in the explanatory notes to the bill. I believe that that is the most appropriate way to signal to the courts and users of the legislation that the statutory definition should be interpreted in line with the common-law definition that we have today, and, importantly, that the definition will evolve as and when case law develops. I hope that that will allay some of the concerns in that regard.

The threshold test of serious harm that is introduced by the bill is another important provision. When a court finds a statement to have been defamatory, the law presumes that damage has been done. I do not believe that that approach appropriately balances protection of reputation and freedom of expression. I am clear that, if a person says that their reputation has been unfairly damaged by a defamatory statement, they should have to prove, at least to a minimum standard, how it has been damaged.

Some who are opposed to the test have referred to it as

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

Official Report, Justice Committee,

1 September 2020; c 12.]

I disagree strongly with that viewpoint. The Scottish Law Commission took a broad look at the Scots law of defamation and recommended that the threshold test of serious harm be introduced. I do not believe that the commission would have made the recommendation if it did not think that it was appropriate. I welcome the committee’s view that the test should be retained.

In England and Wales, public bodies are prohibited from raising a defamation action, but there has been no decided case in Scotland that affirms the so-called Derbyshire principle. The bill codifies the principle, and I believe that it is of the highest public importance that a democratically elected governmental body should be open to uninhibited public criticism. I have tried to come up with a sensible and flexible definition for the Derbyshire principle that, crucially, does not expand the common law. The drafting borrows from section 6 of the Human Rights Act 1998. The issue has been discussed by the courts for more than 20 years, and the bill will give practitioners a good base from which to advise their clients.

I have listened to a range of views on the matter and to the committee’s recommendation, and I am willing to work with members to ensure that we get a provision that codifies the Derbyshire principle as it exists at the moment—one that is clear, but also flexible.

The bill restricts liability for a defamatory statement to those who are primarily responsible for its publication. Currently, secondary publishers, such as library—