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 Margaret Mitchell Margaret Mitchell Conservative

I will come on to that, Mr Wightman. Although that has been asserted, in my view it happens frequently. Constituents are often sent defamation letters when there is no case to answer, and it is those people whom the bill will protect.

Concerns were raised about a potential chilling effect, which has been mentioned by a number of members, with the onus being placed on the pursuer to prove that the statement was not only defamatory, but also caused serious harm. Some argue that the threshold places an additional barrier not only to those who might bring forward vexatious claims, as intended, but to those who may have a perfectly valid case.

Although I note that the Faculty of Advocates considers its introduction to be inappropriate, I support the inclusion of the serious harm test. Despite the Law Society of Scotland’s practice rules, solicitor letters threatening individuals with defamation proceedings are being issued when there is no valid case to pursue. Given the opposing views, including Andy Wightman’s, the Justice Committee, in supporting the inclusion of the serious harm test, is right to ask the Scottish Government to set out why it considers that the test is required.

The committee’s key recommendations include support for a statutory definition of defamation; the codification of defences; the exclusion of secondary publishers from liability; and the reduction of the time limit from three years to one year, with confirmation that there will be discretion available to courts to extend the time limit. That would allow individuals to pursue a legitimate case after one year if, for example, a defamatory statement in a job reference was not discovered for a period of time.

On a personal note, I welcome the inclusion of section 33, which states that the time taken to pursue any mediation will be “disregarded”. That provision will ensure that parties are not discouraged from, or penalised for, seeking to resolve the dispute out of court. However, I hope that Liam Kerr’s concern that, despite the stated policy aim of the section, other forms of alternative dispute resolution in addition to mediation do not appear to be provided for in the bill as drafted, will be addressed.

Further details will be required at stage 2, such as in relation to clarification of the Derbyshire principle, legal aid provision for pre-action protocols, and removal of defamatory material from social media and the internet. Nonetheless, I am delighted that this long-overdue legislation is likely to pass its stage 1 hurdle this evening, and that we are a step nearer to ensuring that defamation issues in the 21st century Scotland in which we live are properly addressed.