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 Rhoda Grant Rhoda Grant Labour

The bill seeks to protect freedom of speech and to protect people from harm. Today, we have heard arguments about where the balance needs to fall between freedom and protection. The bill sets a higher bar in that defamation needs to cause serious harm, which means that people cannot sue spuriously. Annabelle Ewing spoke about the difficulty of proving serious harm and noted that the legal profession has expressed concern on that point.

Andy Wightman used his personal experience to talk about the bar that would be set perhaps being too high for many people to reach. He also spoke about human rights legislation, in which context the bill needs to be looked at carefully, because we need to make sure that people have access to justice when they require it.

On the other hand, members have spoken about the chilling effect that the law as it stands has on any threat to sue. The phrases “deep pockets” and “thin skins” have been used by a number of members throughout the debate—a balance needs to be struck. As I said in my opening speech, with rights come responsibilities. We need to make sure that both are allowed for.

James Kelly mentioned that the law is just one part of the justice system. Access to it is another. The need for people to have access to legal aid, so that they can have recourse to justice through the courts to protect themselves, is an important point that the committee’s report also made.

Liam Kerr spoke about how welcome mediation is as a way of getting people together to reach an agreement, and he talked about the limitations in the bill being paused to allow that to happen.

James Kelly spoke about apologies and retraction and about how the process for those currently takes place. Perhaps that is missing from the bill. There needs to be a degree of clarity so that those actions can be encouraged.

In his contribution, Graham Simpson talked about how apologies were offered during his time as a journalist. The time limits in the bill need to be paused to allow that alternative resolution to take place.

A number of members talked about the Derbyshire principle whereby public bodies cannot sue for defamation. There should be a balance when private companies are carrying out public services—that needs close scrutiny as well.

John Finnie brought that to mind tangibly when he spoke about ferry companies in the Highlands and Islands. CalMac, the publicly owned ferry company, is being held to a totally different standard compared with Serco, which is a private company. However, both companies are delivering public services, and both are ferry operators that are publicly subsidised. There must be a balance whereby companies that are doing the same kind of work are subject to the same scrutiny and protections.

Members have talked about malicious publication, and concerns have been expressed that the lower threshold for defences in respect of malicious publication could create a loophole in the law whereby people would be allowed to sue under malicious publication legislation as opposed to under defamation law. There was a debate about whether “serious harm” should also be part of the threshold for malicious publication, so that people could not use that loophole. I think that it was Liam Kerr who made the point that the threshold for malicious publication is extremely low and needs to be tightened up.

We must try to strike the right balance with this bill. I think that it was Annabelle Ewing who said that we need to look after right rather than might, while James Kelly said that the issue is also one of freedom of speech versus people being viciously and maliciously damaged. We need to strike a balance in ensuring that the right protections are set down in law and that they cannot be used spuriously to shut down freedom of speech and the publication of things that are in the public interest. We are on our way to getting that, but the minister and the committee will need to work together at stage 2 to strike that balance.