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 Liam Kerr Liam Kerr Conservative

I remind members that I am a practising solicitor and hold practising certificates from both the Law Society of Scotland and the Law Society of England and Wales.

It seems that, at the moment, large parts of my week are set aside for reading, questioning and commenting on matters of freedom of speech—and rightly so, as it is one of our most important fundamental rights. In these times, when technological developments and social media have allowed pretty much anyone to be a creator or a publisher, it is imperative both that free speech is protected and that any threats to it caused by laws are challenged.

However, it is also key that individual reputation and the right to privacy should be protected. The bill seeks to strike a balance between those two rights. The Scottish Conservatives consider that the principles of the Defamation and Malicious Publication (Scotland) Bill broadly achieve that balance, and we will vote in favour of it at decision time tonight.

Several areas will merit further consideration as the bill progresses. Adam Tomkins, the committee’s convener, has just encapsulated my thoughts on the Derbyshire principle in his comments, so I will confine my remarks to three other areas: the serious harm test, malicious publication, and a brief comment on limitation.

If the bill is passed, the right to bring defamation proceedings in respect of a defamatory statement will accrue only if publication has caused or is likely to cause “serious harm” to the subject’s reputation. According to the bill’s policy memorandum, which refers to the Scottish Law Commission’s work on the subject, that test is required because of the

“lack of authority in Scots common law and the inability of Scottish courts to dispose of trivial claims at an early stage”.

I find that interesting, because, if there is a lack of authority, one wonders whether the Law Society of Scotland has a point when it says that the existence of such an extra hurdle could “deter legitimate claims”, leading to even less such authority developing.

Although ensuring the ability to dispose of trivial claims feels right to me, the Faculty of Advocates has suggested that

“There is no reason to think that the Scottish courts have” hitherto

“been troubled by trivial claims”.

That having been said, I listened carefully to the media respondents who told the committee that a serious harm test adds clarity, prevents cases without merit from proceeding and helps to prevent a chilling effect in their investigations. The evidence of Dr Andrew Tickell was particularly powerful. He said:

“we are not just talking here about journalists” but about

“writers, bloggers and anyone who engages in the public sphere” asking

“‘Can I afford to defend myself?’”—[

Official Report

,

Justice Committe e, 25 August 2020; c 6.]

The Society of Editors noted that, in England, the reduction in the chilling effect benefits academics, scientists and others. It is that final point that I found particularly persuasive. Although I see merit in both views and feel that the committee’s report articulates the debate well, on balance, I align with the committee’s view, which it expressed in its report, to

“favour retention of the serious harm test”.

However, that internal dialogue informs my view that the committee was right to recommend that the Scottish Government set out clearly why the serious harm test is still required. I have read the minister’s letter of 29 October, and I have listened to her opening remarks today, but I am not sure that she has demonstrated such a requirement. I will be interested to hear the views of other members who contribute to the debate. I respectfully invite the minister to consider setting out, before stage 2, why such a test is required.

Mention of serious harm is notably absent from the bill’s sections on malicious publication. I focused on that area during the committee’s evidence sessions, because I was concerned that it might not have been such a priority while the bill was being drafted. Even the policy memorandum says that the purpose of the bill is to

“simplify the law of defamation (and the related action of malicious publication) in Scotland”.

The nature of part 2 as almost an afterthought has been explored by the committee, which has several concerns. One is that the bill sets a low threshold for showing malicious publication, as what is required to show that a statement is “malicious” is knowledge of, or indifference to, the fact that a statement is false; thus a pursuer can show malice merely by adducing indifference to the truth.

Other concerns are that, in the definition of malice, the pursuer must show indifference “or”—not “and”—malicious intention; there is no concept of serious harm, only a degree of financial loss, which does not have to be caused, with no de minimis; and there is a lack of clarity as to whether secondary publishers are immune from part 2. On that note, as articulated by the convener, there is also no clarity over defences applying in this area.

The logical progression of such drafting, according to the likes of Professor Elspeth Reid and Professor John Blackie, is that malicious publication might become a preferable action to a defamation action. They suggest amending the definition to require both falsehood and malicious intention, or at least “reckless” indifference to the truth.

Dr Andrew Tickell was clear in his view that, if one is persuaded by the need for a serious harm test at the outset, it would make sense to consider it for part 2 of the bill as well.

I note the minister’s intention to amend, which I am grateful for, and, with regard to the defences, I note the convener’s remarks and the minister’s letter committing to look carefully at the issue if an amendment is lodged. However, I encourage the minister to look at it carefully of her own volition as soon as possible. Further, I associate myself with the convener’s remarks on the explanatory notes.

I will say a brief word on limitation, as it is another area of particularly interesting debate. The bill reduces the limitation period within which an action must be brought from three years to one year from first publication. I understand the rationale, including that a longer limitation can discourage publishers’ investigation, and I accept the argument that it is difficult to believe that, nowadays, someone would not be aware of material that caused serious harm to their reputation within the period of a year. However, one can envisage a situation in which cumulative statements do serious harm in the aggregate rather than at the publication of the initial statement.

In her opening remarks, the minister argued that the court has discretion to allow a claim to go through that would otherwise be out of time. She is, of course, right, as there is a general power to override time limits in the Prescription and Limitation (Scotland) Act 1973. However, that does not specifically refer to defamation actions in the same way as the Limitation Act 1980 does in England and Wales, so there is at least an argument that we have weaker protection in Scotland. For the sake of clarity, an amendment in that regard is worth exploring.

Furthermore, section 33 of the bill makes provision for a limitation interruption when there is mediation, which is helpful. However, one wonders whether that might be extended to take account of other forms of alternative dispute resolution such as arbitration, expert determination and press complaints or ombudsman bodies.

Further reflection is needed in those areas, but, at this stage, I confirm that the Scottish Conservatives agree with the principles of the Defamation and Malicious Publication (Scotland) Bill and will vote for them at decision time.