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 Andy Wightman Andy Wightman Green

I will focus my remarks on the serious harm threshold, because it is a significant change. It exists in England and Wales, defined in section 1(1) of the Defamation Act 2013, which states:

“A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.”

The bill that is before us, by stark contrast, does not follow that straightforward formulation but instead defines a statement as defamatory if it causes “harm” and then, in addition, states that for it to be actionable that harm must be “serious”. In that respect, I disagree with Adam Tomkins that Scots law is being brought into line with the law England and Wales. I will return to that point.

Following the Supreme Court ruling in the Lachaux case, liability in defamation cannot be established by reference to the

“inherent tendency of the words” alone; the court must have regard to the “facts” and “circumstances”. Thus, the court will need to hear evidence on whether the words that were allegedly written or spoken were, indeed, ever written or spoken, whether they bear the meaning that is alleged by the pursuer and the reasons why, if defamatory, serious harm is or is likely to be caused. T hat requires an evidential hearing, and there will need to be significant procedural rule changes to Scottish civil procedure to accommodate any pre-proof evidential hearing.

I have four arguments against the serious harm test. First, as matter of principle, we should not be shutting down civil law remedies for people without good reason. Someone who is defamed, for example, but who suffers only harm is now to be denied redress, as is someone who suffers repeated harms, perhaps over a long period of time, but without the “serious” harm threshold ever being met in any one instance.

Secondly, I note, as a caution to those who think that the test may act as some kind of procedural hurdle, that it will, as I said, involve an evidential hearing and associated expense. In my recent £750,000 action, I would still have been in court for six days, trying to thrash out whether, in fact, serious harm had ever been caused to the pursuer.

Thirdly, a serious harm threshold will not deter a litigant who is determined to damage someone. In my case, it took full proof to reach the conclusion that no harm at all had been caused and that no financial loss had accrued to the pursuer.

Fourthly—this is very important—we should ponder what Parliament is being invited to do. As I said, section 1(4)(a) of the bill states:

“a statement about a person is defamatory if it causes harm to the ... reputation”.

Incidentally, that wording was not in the Scottish Law Commission’s bill, and the Scottish Government has never published an analysis of the responses that it got to its own consultation.

Under the bill, however, any such statement is actionable only if the harm is serious. We are defining a civil wrong in statute and then saying, “There’s nothing you can do about it.” We are now seeking to deny civil justice to our constituents whose reputation has been harmed. Is that even compatible with article 6 of the European convention on human rights?

The threshold does little for defenders, as full proof will still be required. On the other hand, it does a lot for pursuers, but in a wholly negative way and without justification. The bill risks denying legitimate pursuers their human right to a civil remedy for a wrong that we are defining as harm, but about which they can do nothing unless they can prove that that harm is serious. Why?