“Do not spread false reports.”
Is that statement something new? No. It is just a current translation from the Hebrew of Moses’s words in Exodus 23, verse 1. It chimes with the right to freedom of expression in both public and private, which is at the heart of western democracy.
Individuals must be entitled to protection from provable untruths, which are, in other words—forgive me for using the word in this place, but it is apposite—lies, slander and malicious publications that would materially affect livelihoods and reputation. It is a pillar of any system that is based on the rule of law that truth should triumph over fiction and, in particular, triumph over deliberate or malicious fiction that is directed against individuals. Veritas vincit—which is pronounced “vinkit” or “vinchit”, depending on whether one believes the hardly credible suggestion that the ancient Romans pronounced their Cs as soft Cs. Therefore, I generally welcome the bill, which should clarify several matters.
The common-law action of verbal injury is given a new statutory basis for malicious publication. However, who knows how the serious harm threshold test, which the bill sets out, will develop?
I note with interest the submission from the Faculty of Advocates, which has raised questions about the secondary publication rules in the proposed legislation and the regulation of internet publication. Clarity is indeed needed on that issue.
We must all deal with—and the law must at least establish a sensible framework to deal with—ever-changing methods of information distribution on social media and the internet. Obviously, such things were not regulated by even recent statutory or common law prior to this century, far less in the ancient Rome of Pliny the Elder’s time. However, as I said at the outset of my speech, the basic principles abide, and our law, which implements those principles, must be kept up to date, relevant, applicable and accessible.
The question whether the threshold test has been set too high for the bringing of claims, as some in the legal profession say, must be addressed at stage 2. However, there should always be at least the criterion that a claim should be of ostensible merit and worthy of the court’s time—in other words, there must be a statable case. Rigorous scrutiny of the bill is therefore required at stage 2.
I close with a question: is the Parliament up to the task? We shall see.