That is exactly what I mean by the use of the word “flexible”. Public-private provision has clearly moved on quite a lot in the past 30 years, so it is important that we retain flexibility to allow us to settle some hard cases that might present themselves in the future.
Currently, secondary publishers, such as a bookseller or a website operator, can be held liable for content that they are not actively responsible for. Private companies face a choice: remove potentially legitimate content, or be held liable for damages. In my view, it should be for the court to decide whether a statement is defamatory, not private companies.
I welcome the committee’s view that secondary publishers should be excluded from liability in the circumstances that are outlined in the bill. I know that committee members are concerned about online defamation. I have set out in my response to the committee’s report the process and potential costs of removing such material, which I hope eases any concern.
The bill brings together the main defences to a defamation action, reforming existing statute and, in the case of the public interest defence, codifying the common law. The committee recommends that the court should have the ability to refer to previous case law when interpreting those statutory defences. I will ensure that the explanatory notes clearly state our expectation that the court, when interpreting the new statutory defences, will take into account case law on the common-law defences, where appropriate.
The bill largely restates the offer of amends procedure, which is a useful process by which those who admit that they have defamed someone can avoid legal proceedings. As part of the offer of amends, an offer of compensation is made, together with an apology and correction. Where the amount of compensation cannot be agreed between the parties, the court is asked to decide that instead. The committee has heard conflicting views on whether the bill still allows an offer of compensation to be discounted by the court. In light of that, I am pleased to commit to lodging an amendment at stage 2 to clarify the position.
The bill reforms the law on malicious publication. In order to succeed, the pursuer must show that the statement complained of was made with malice. The definition in the bill reflects the common law on similar types of action, but the committee has concerns. I am happy to lodge an amendment at stage 2 to reflect the committee’s recommendation.
Two other matters regarding malicious publication have also been raised: available defences and the liability of secondary publishers. In order to make the issues clear, I will amend the explanatory notes to state my view that a malicious publication action cannot be raised against a secondary publisher, and I will set out clearly that the defences of truth, absolute privilege and honest opinion are intended to apply.
I will conclude on the matter of limitation. A principal aim of limitation is that litigation should proceed promptly. I believe that, where someone suffers damage to their reputation, they are usually aware of that at an early stage. That is why I agree with the commission that one year is sufficient to assess any damage and prepare for litigation. The court has the discretion to allow litigation to proceed outwith the one-year period, where it considers that it is equitable to do so. I suggest that a statement that comes to the attention of an individual after one year but which causes serious harm would likely be allowed to proceed by the court.
The bill also makes an important allowance for those occasions when someone publishes a statement that has previously been published and there is a material difference between each. The flexible approach that we have taken is capable of taking into account a material difference between each subsequent publication.
That the Parliament agrees to the general principles of the Defamation and Malicious Publication (Scotland) Bill.