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 Graham Simpson Graham Simpson Conservative

I come to the debate as someone who used to have to think very carefully about defamation on a daily basis. As a newspaper reporter and then a sub-editor for local papers and latterly for

The Scottish Sun

, I had to have some knowledge of the law in this area, both in England, where I first worked, and then in Scotland. Although at

The Sun we had lawyers who came in every night, we had to make quite a lot of judgment calls about how to phrase things.

None of my employers was ever sued over anything that I wrote, although there were one or two apologies over the years—that goes with the territory. It was therefore with great interest that I read the bill, the committee’s report and the Scottish Law Commission’s report.

Having worked in newspapers, I have that perspective, but now that I am in politics, I have to be careful of what I say through other mediums. It is all too easy for people to tarnish someone’s reputation online, on social media, and for that to be done multiple times by multiple people. I have also learned that the threshold of what people can say about me as a politician is different from what can be said about others. In essence, we have to be able to take some flak, whether it is true or fair, or not.

Overall, I think that the bill is sensible and I am happy to back it at this stage. It will mean that, if I email Gordon Lindhurst, for example, with some defamatory remarks about him, he cannot sue me, but if I foolishly copy in Liam Kerr, I will be in trouble. Bizarrely, that is not the case at the moment, so I agree with that reform.

At the heart of the issue is the need to balance the right to freedom of expression and the freedom of the press with the protection of reputation.

Then there is the so-called chilling effect, whereby media outlets will not publish because of the very fear of being sued. I have seen many accurate stories either not being run or being toned down heavily, much to the annoyance of writers. The NUJ mentioned that in evidence, and it benefits those with deep pockets.

The bill sets a useful threshold. The Law Commission recommended that

“It should be competent to bring defamation proceedings in respect of a statement only where the publication of the statement has caused, or is likely to cause, serious harm to the reputation of the person who is the subject of the statement.”

That is entirely sensible and should cut out frivolous claims.

Section 2 places on a statutory footing the principle laid down by the case of Derbyshire County Council v Times Newspapers Ltd that a public authority has no right at common law to bring proceedings for defamation—quite right, too.

The presumption against a jury trial in defamation actions is a good idea. As the Newspaper Society said:

“It has long been the view of news organisations that there is an inherent bias against journalists, especially when it comes to trials involving prominent individuals, and judicial direction to set aside preconceptions is often not sufficient to even this out.”

The change in the limitation period from three years to one is also welcome.

Finally, various bits of the bill deal with defences, and they appear to be sensible.

The committee has pointed out parts that can be tidied up, as we would expect. However, that can be sorted out by the fine minds of those on the Justice Committee—and that is not defamatory.