Defamation and Malicious Publication (Scotland) Bill: Stage 1

Part of the debate – in the Scottish Parliament on 5th November 2020.

Alert me about debates like this

Photo of Ash Denham Ash Denham Scottish National Party

I thank members for their contribution to this afternoon’s helpful debate. I am pleased that there is support across the chamber for the general principles of the bill.

The Scottish Law Commission’s reform project was the first significant look at defamation law here in Scotland in a generation. The way in which we communicate and live our lives has changed beyond recognition in that time. The commission made its recommendations, and the Scottish Government agrees with them. Given the fundamental rights that the bill will affect, I would like to achieve as wide a consensus as possible across the chamber. In answer to the question that Gordon Lindhurst posed earlier, the answer is yes, the Parliament is up to the job.

I have listened carefully to the views of members, and I assure everyone that I will reflect carefully on what has been discussed today.

Serious harm was discussed extensively by a number of members. Before I remark on that point, given the particular experience that he has to bring to the issue—he made a passionate speech during the debate—I offer Andy Wightman the opportunity to meet me and my officials so that we can discuss it further.

The Scottish Law Commission took a wide-ranging look at the Scots law of defamation, and made a number of recommendations for reform. Among the recommendations is that there should be a threshold test of serious harm. I understand the view of a number of stakeholders that the test was introduced to address the perceived problem of vexatious litigation, which is not really a problem in Scotland. Although I recognise the view that there are few reported cases of defamation here, and that vexatious litigation is not a problem, I also consider that it is right that if a person says that their reputation has been damaged by a statement, they should show how it has been damaged.

I do not think that the current presumption that damage has been done achieves the appropriate balance that the bill aims to achieve overall. Why should we continue to allow legal action to be raised in cases where no real harm has been done? That is a question for members to reflect on. We have heard in the debate about the chilling effect of defamation law on freedom of expression, which was described particularly well by Rona Mackay. The threshold test will give confidence to those who have received a letter, as mentioned by Margaret Mitchell, about possible defamation proceedings against them.

I take on board the message that came through loud and clear from Liam Kerr and a number of members that the Scottish Government should say why the test is required. One argument for that is that failure to provide a statutory test would fail to take fully into account the implications of section 1(1) of the bill, on communication of a “defamatory statement” to a third party.

We have heard that, because of the change in the bill, it is open to courts to develop the common law threshold test and that it is likely that they would go on to do so. However, using the test that we have, we can take advantage of English jurisprudence on the issue, which would provide us with more certainty. The number of relevant cases in Scotland is quite low, so if we did not use that alternative, there could be a prolonged period of uncertainty. I will reflect on what has been said in the debate, however, and write to the committee in the next few weeks.

Rhoda Grant and Liam Kerr referred to the provision on the Derbyshire principle. The aim of the provision is to place on a statutory footing in Scotland the common law principle of England and Wales that public authorities cannot raise defamation proceedings. Public authorities have a reputation, but they need to protect it using political means, not defamation law. A public interest is served by allowing unrestrained comment on the actions of democratically elected bodies. That is the fundamental rationale behind the Derbyshire principle. As far as I am aware, no similar case has yet been decided in Scotland.

I want to be clear on one point: the bill will protect those who criticise public service delivery, even if the service is delivered by a private body. The defences of honest opinion and publication on a matter of public interest are powerful defences that will protect speech on the issue. We should not forget that a private body delivering such services will have to prove that a defamatory statement has caused serious financial loss. Those who criticise public services provided by private companies will be sufficiently protected by the bill’s provisions. On the drafting of the Derbyshire provision, a sensible and flexible definition has been used that does not seek to expand the common law boundaries of the principle. The bill captures the obvious public authorities, such as local authorities, the Scottish Parliament, the Scottish ministers and agencies of the Scottish Government.

That flexible approach will also allow courts to deal with more complex and nuanced cases. The drafting borrows from section 6 of the Human Rights Act 1998, which has been discussed by courts for over 20 years, and it will provide practitioners with a good base from which to advise their clients. Here in Scotland, the Lord Justice Clerk, Lady Dorrian, recently discussed section 6 in the case of Ali v Serco Ltd, providing guidance on how it should be interpreted. However, I recognise that a range of concerns about the drafting approach have been expressed, so I am happy to reiterate my commitment to working with Justice Committee members to find an approach that I hope we can all agree on.