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 Fulton MacGregor Fulton MacGregor Scottish National Party

As a member of the Justice Committee, which has taken the bill through stage 1, I put on record my thanks to colleagues and particularly to the clerks. It is a complex and at times technical bill, and although not always headline grabbing, it is nonetheless an important bill and one that is needed in the 21st century.

As others have pointed out, freedom of expression remains important, but we must also consider what safeguards we can put in place to ensure that an individual’s reputation is not unjustly tarnished. We have ascertained that the Scots law definitions of defamation and verbal injury are no longer fit for purpose. They are not concise, they do not strike the right balance and, importantly, they are simply not modern enough to deal with issues such as online publications.

The bill’s provisions will enable us to improve the accessibility of the common law by making it more straightforward for individuals to use. Crucially, we can ensure that the relationship between freedom of expression and individual reputation is considered with balance.

The bill also proposes raising the threshold for bringing defamation actions. Various proposals, including a serious harm test, a single publication rule and a one-year time limit for raising a court action, will create a higher threshold for taking court action, which will ultimately help to balance the law protecting freedom of expression.

In truth, the law of defamation has been amended in a disjointed fashion, with legislative changes occurring most recently in 2013 and, before that, 1996. As online publications are now commonplace, the world has become very different, and we must make sure that the law reflects that.

It is not just publications that are affected by that new aspect—for example, social media and messaging apps have opened up a whole new world. Any individual in the chamber with access to a smartphone can become a content creator in the click of a few buttons. Most of us have some kind of social media account, and we can voice our opinions and views on any given subject within seconds. Although I encourage its responsible use, social media does not have the safeguards in place that can be seen in print media. That is why we must update the legislation: it is not fit for purpose in a world that goes beyond print publications. The bill makes provision for the courts to require websites to remove content and to require people or bodies to stop distributing or showing material.

The main issue that the bill is designed to address is the current law’s “chilling effect” on freedom of speech, with people feeling that they cannot publish something for fear of legal action. The complexity of the law makes the situation worse, because it can add to the costs of defending court proceedings. Publishers can feel silenced when there can be consequences for publications that mention an individual. The bill, in effect, clarifies that cases can be brought only where real harm has been done to an individual’s reputation. I note the minister’s point on the serious harm threshold, which was one of the most widely discussed issues during the committee’s evidence sessions.

I will move on to other areas that the committee looked into. I know that previous speakers have already covered them—mainly because there were only a few areas of contention.

Others have talked about the Derbyshire principle. For the record, my colleague John Finnie undertook the legwork on that issue for the committee at stage 1. As has been said, we recommended in our report that the section on that be redrafted to make the Scottish Government’s intention clearer on which bodies are covered and to provide examples of those that are exempt. I fully welcome the minister’s offer to work with members to ensure that we get a provision that codifies the Derbyshire principle as it exists now in a way that alleviates stakeholders’ concerns and is as clear and as flexible as possible.

We have also heard about secondary publishers and malicious publication.

I see that my four minutes are almost up. The minister’s approach throughout has been one of willingness to work with the committee going into stage 2—that reflects her overall approach to the previous bill that she brought to the Justice Committee. I look forward to stage 2, and I support the general principles of the bill at this stage.