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

There is always a balance to be struck between the right to freedom of speech and the right of an individual not to be defamed. We need to ensure that legislation strikes the right balance between those rights.

People must be held to account, especially when that is in the public interest. That is true of Government and elected politicians. We are here to represent the public interest and the public, and the media must be able to question and scrutinise our actions without fear of litigation.

On the other hand, people should not face damaging and untrue accusations without recourse. When people’s very livelihoods are at stake because of unjustified damage to their reputation, there must be a method of correcting the record. As with everything, where there are rights, there are also responsibilities.

Scottish Labour supports the general principles of the bill. We hope that, where there are concerns, they can be dealt with as the bill proceeds.

It is worth pointing out that the bill comes from a recommendation from the Scottish Law Commission, which reviewed defamation law back in 2017, as the minister said. The Scottish Law Commission does valuable work in consolidating and reforming law, and it is good to see that work coming through the Parliament.

Several concerns have been expressed about how the bill translates case law into statutory law. There are concerns about the way in which case law has been interpreted and about the ability to refine the law by case law when it is codified. That evolution is required, because the way in which we communicate changes with time. Twenty years ago, social media was almost unheard of, but now people use it to follow the news and gain information. We are all publishers, although some of us are not very great editors.

We cannot foresee how methods of communication will change and whether the bill that we are considering will be fit for purpose in, say, 10 years’ time. We always need to allow case law to develop how the law is interpreted in order to follow changes in how we communicate.

The bill is very technical. As it is trying to codify case law, the definitions in it have to capture the nuance in that case law. That occurs in several places throughout the bill but, crucially, it occurs in the definition of “defamation”, which has been the subject of concern. Some people believe that there is no need for a definition, as case law provides guidance that is widely understood. There are also concerns that defining “defamation” in legislation at all will prevent case law from developing the definition in the future. The committee came down on the side of a statutory definition but wants to ensure that the definition can be codified in the future by case law. I am not sure whether that will be possible, but I understand that the minister is going to consider how it can be achieved.

There are concerns about language and the translation of case law and common law into statutory law in other parts of the bill. An example of that relates to the rule that is known as the Derbyshire principle, which has been mentioned. In England and Wales, public bodies are prevented from bringing defamation claims under that rule. The bill creates a statutory version of the rule but includes an exemption for charities and businesses that deliver public services “from time to time”.

There has been concern about the impact of that, and the committee recommended that clarity is needed in the bill on the application of the principle and the exemption. Scottish Labour supports the Derbyshire principle—that public bodies and agencies should not be permitted to sue for defamation in relation to public activities—and believes that the bill needs to clarify how the principle extends to private contractors that are involved in public service delivery.

Those issues need to be dealt with to ensure that there are no unintended consequences as a result of modernising the law. The minister has indicated to the committee that she will consider the issues regarding the translation of case law into statutory law to ensure that the bill strikes the right balance.

The bill introduces a serious harm test that is similar to, but not the same as, the one in the Defamation Act 2013, which is for England and Wales. That is one of the more controversial changes to the existing law. It is welcomed by some people as a method of preventing vexatious cases or litigation threats from those with sufficient resources, which, as the committee heard, can have a chilling effect on important media scrutiny and freedom of speech. The threat of being sued can have the effect that information that it is in the public interest to publicise is suppressed.

A number of defences are to be placed on a statutory footing, and a new defence of being in the public interest will be created. We hope that that will ensure that those with deep pockets cannot simply suppress information and prevent it from being shared with the public when it is in the public interest to know about it. That is a common law defence that exists in England and Wales.

The law surrounding malicious publication is also to be clarified. As we have heard, there are concerns that the bill will allow a loophole for those who wish to bypass the public interest defences. There are also concerns that the bar is set too low. Professor Blackie said that he interprets the bill as defining “malice” as requiring knowledge

“that the statement was false or you were indifferent to the truth, or that it was motivated by a malicious intention to cause financial loss”.—[

Official Report, Justice Committee,

15 September 2020; c 18.]

He believes that the current definition of “malice” requires there to be “a design to injure”. He suggested that the definition in the bill be amended to require knowledge of a falsehood and malice. I am glad to hear that the minister is considering that.

The bill is welcome but, given the sensitivities of the issue, it is important to get it right. Therefore, I am heartened that the minister appears to have heard the concerns and is willing to listen to the committee and amend the bill accordingly. We will support that process.