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 Shona Robison Shona Robison Scottish National Party

I am pleased to be speaking in the debate, and I support the general principles of the bill.

In its very positive stage 1 report, the Justice Committee makes a number of recommendations. As others have done, I thank the Scottish Law Commission and the clerks, who have worked hard to get us to this stage. I welcome the minister’s positive response to the committee’s report and the commitment to reflect further on the committee’s recommendations.

In essence, at the heart of the bill is an attempt to strike a balance between protection of reputation and freedom of expression. The committee recognises the strength of feeling behind the views that were expressed both in support of freedom of expression and in relation to the importance of protecting individual reputation. It agrees with the Scottish Government’s view that the bill represents a package of measures that creates an overall balance and makes no single overarching recommendation to fundamentally alter the overall balance in the bill.

I want to focus the rest of my speech on a couple of specific areas. The inclusion of a serious harm test was one of the main provisions where the evidence was divided between those who welcomed that and those who regarded it as a step too far in limiting a pursuer’s right to protect reputation.

For some, the serious harm test is a necessary threshold that will ensure that only relevant cases where serious harm may have been done to someone’s reputation go ahead, and that frivolous or vexatious cases are discouraged. In the view of some of our witnesses, the serious harm threshold would give people who were subject to threats and menaces of defamation action greater security.

The so-called chilling effect was a concern for many media organisations, with reference made to people with “deep pockets” and “thin skins”. They expressed strong support for the serious harm test. The committee also heard evidence to the contrary: that that level of threshold tilts the balance too far away from the right of an individual to protect their reputation, and that, by introducing that extra barrier, we would be putting a hurdle in the way of a litigant who may well have a perfectly good right to protect their reputation and take matters further.

I recognise that both views have merit and that, on balance, at this stage and in light of the overall set of provisions that the bill sets out, it is right to retain the serious harm test in the bill, although I agree with colleagues that it would be helpful for the minister to set out a clear statement on why the serious harm test is required.

Concerns were expressed by some witnesses that the changes to the time limit for bringing defamation action may operate unfairly in some circumstances, particularly where it takes time to find out that a defamatory statement has been made and where the effects of that statement are cumulative over a period of time. The minister’s evidence was helpful in setting out that the courts have discretion in certain circumstances to allow cases outwith the time limit to proceed. That is welcome.

During evidence taking, the committee received helpful views on how access to justice in the area of defamation can be improved. Those include looking at the provision of legal aid in the area and whether some form of pre-action protocol could be put in place. The committee also recommends that

“an accessible guide to the law in this area is produced”,

which I strongly support. I am pleased that, in her response, the minister has said that she has sympathy with that and can

“see the value of having a protocol in place, especially in ensuring that preliminary matters can be dealt with.”

She also said that she will write to the Scottish Civil Justice Council, asking it to consider that, which is a welcome step.

I am pleased to support the general principles of the bill.