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 Annabelle Ewing Annabelle Ewing Scottish National Party

I must apologise. I lost connectivity for about 10 minutes at the beginning of the debate, so I missed part of the minister’s comments and part of the convener’s comments.

I refer members to my entry in the register of members’ interests, wherein they will see that I am a member of the Law Society of Scotland and that I hold a current practising certificate, albeit that I am not currently practising.

I want to make a few comments in the time available, which has gone from six minutes to four minutes in the flash of a second.

On the definition issue, the definition of defamation, as proposed for the first time in statute in Scotland, would involve circumstances in which a statement is deemed to be defamatory

“if it causes harm to the person’s reputation”.

Although the Scottish Law Commission did not propose an express definition, I understand that the Government felt that that would be helpful on the ground of improving clarity. Indeed, I think that that is the balance of the evidence that the committee received, and I agree with that.

The other issue that I want to address briefly is the serious harm test, which we have already heard a lot about this afternoon. In effect, that test would make it a requirement to aver not simply that one’s reputation had been harmed but that it had been seriously harmed. If that cannot be established, a pursuer will not be permitted to proceed with their civil action.

That has indeed caused controversy. We have heard about the concern of Duncan Hamilton of the Faculty of Advocates, who said:

“What we are dealing with here is an English solution to an English problem.”

He was referring to the problem of unmeritorious or frivolous claims having been brought forward south of the border. He said that, in Scotland, that

“has simply not been the case”.—[

Official Report, Justice Committee

, 1 September 2020; c 12.]

Mr Campbell Deane, who is a practising defamation solicitor, said:

“by introducing that extra barrier, you would be putting a hurdle in the way of a litigant who may well have a perfectly good right of action.”—[

Official Report, Justice Committee

, 15 September 2020; c 5.]

Dr Scott of the London School of Economics felt that the introduction of such a test would add to the complexity of the law, with possibly a substantive hearing having to be held and significant evidence requiring to be led to determine whether the threshold had been met, which would add to cost and complexity.

I think that we can see that the legal profession and some academics have certain concerns.

It is fair that say that the press, media organisations, writers in general and other academics felt that the approach was reasonable in the context of striking the right balance between the competing interests of freedom of expression and the right to protection of privacy.

The helpful briefing that the Law Society produced this week should be reflected upon, and I feel that the issue merits further reflection. I think it was John Finnie who said that we should be dealing with right rather than might, but it is important to remember in these debates and in important debates with the media that not all people who allege that they have been defamed are the big guys—some are the small guys. Surely we as a Parliament are very much here to protect the small guys.

I urge a bit of reflection on the issue. The Law Society has suggested that we could perhaps consider finding language to the effect that we could seek to exclude vexatious actions, to the extent that the provisions are apparently destined to deal with that problem in Scotland. There are then procedural issues—questions such as “At what point?” and “By way of what procedure?”—but they will presumably be easier to iron out.

We need to protect the wee guys, and I think that there should be a wee bit of further reflection. Keeping the spirit of what the minister and officials are trying to do, we should nonetheless ensure that we get this right, such that people have the ability to protect their rights. I think it was Duncan Hamilton who said that one person’s “chilling effect” is another person’s ability to assert their rights in society. I think that the issue merits a further look.

Thank you, Presiding Officer—I have no idea what time it is now.