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 James Kelly James Kelly Labour

Thank you, Presiding Officer. This is the first time that I have spoken virtually in a debate in the Scottish Parliament, so you will be glad to know that I have set my stopwatch running so as not to fall foul of your time restrictions.

I support the general principles of the bill. As a member of the Justice Committee, I thank the clerks and all those who gave evidence on a bill that covers an extensive number of areas. As other members have said, it is important to ensure that the bill strikes the correct balance between protecting freedom of speech and ensuring that those who are unfairly and sometimes viciously defamed have protections in place in order that they may take corrective action.

A number of issues have been touched on in the evidence taken by the committee and in today’s debate. There has been quite a bit of discussion around the Derbyshire principle, and I agree with other members that we need further clarity around the definitions, particularly on what is actually covered by a “public authority” and on the issue of how private organisations that partially carry out work in the public domain are covered by the bill.

I welcome the work on the defences that are set out in the bill to ensure that the appropriate defence is codified so that, for example, people who are expressing an honest opinion or acting in the public interest have appropriate cover. There needs to be some further work regarding the offer to amend procedure where there are disputes and where, in an attempt to avoid such disputes officially coming to court, a settlement is reached. Previously there was recognition that, if a defender made some apology, there would be a deduction, and there has been some confusion as to whether that arrangement is still in place. That needs to be clarified.

A couple of other issues are worth touching on. The Law Society’s briefing covered the issue of internet publication, which is not specifically covered by the bill. The society made the good suggestion that it would be useful for the law commissions across the UK to do some work in that area.

The substantial growth in the internet and social media, and the platform that that can, unfortunately, provide for people to be defamed, is an area that is worth further investigation and maybe further legislation.

Another area that is worth highlighting is access to justice. It could be the case that people are being unfairly defamed but do not have access to resources such as legal aid to enable them to take a proper court action.

Similarly, the committee heard evidence about the growth in online journalism, or people writing their own publications online. They might come under the scope of the bill if they become involved in cases and do not have appropriate access to legal aid. That area is worth revisiting.

I think that the bill is welcome and I will certainly be supporting its general principles at decision time.