Defamation and Malicious Publication (Scotland) Bill: Stage 3

– in the Scottish Parliament on 2nd March 2021.

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Photo of Kenneth Macintosh Kenneth Macintosh Labour

The next item of business is stage 3 consideration of the Defamation and Malicious Publication (Scotland) Bill. In dealing with the amendments, members should have with them the bill as amended at stage 2, the marshalled list and the list of groupings.

The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon, if there is a division. The period of voting for each division will be one minute. Members who wish to speak in the debate on any group of amendments should press their request-to-speak button as I call that group.

Members should now turn to the marshalled list.

The Presiding Officer:

Group 1 is on the serious harm threshold test. Amendment 5, in the name of Andy Wightman, is grouped with amendments 6 and 7.

Photo of Andy Wightman Andy Wightman Independent

At stages 1 and 2, I expressed the view that the serious harm threshold is not justified. That is contrary to the view that I once held that the threshold was justified, but I take that view as a legislator considering the evidence that has been presented and in the interests of ensuring that the people of Scotland have a remedy available to them if they feel that their reputation has been harmed. In the Justice Committee’s stage 1 report, members recommended

“that the Scottish Government reviews the evidence we have heard and sets out a clear statement on why the serious harm test is still required.”

I am not persuaded that the minister has done that in her response to the stage 1 report, nor in response to my amendments at stage 2.

My amendments have the effect of removing the serious harm test in section 1 and, while maintaining a threshold test for actionability, modifying it to “actual” harm rather than “serious” harm. I do that for two reasons. First, as I indicated, I do not believe that a threshold of serious harm is justified by the evidence. The serious harm test was introduced to the Defamation Act 2013 in England, for reasons that are well known, namely the volume of litigation and the vexatious nature of some of it, and the muddle that there was in English law as a consequence of the distinct wrongs of slander and libel—a muddle that, as Professor Blackie pointed out in stage 1 evidence, we do not have in Scotland. The Scottish Law Commission concluded that a threshold was desirable but spent very little time considering at what height the bar should be set.

My second reason is that the bill introduces, at section 1(4)(a), a statutory definition of defamation that

“a statement about a person is defamatory if it causes harm to the person’s reputation (that is, if it tends to lower the person’s reputation in the estimation of ordinary persons)”.

It is defamatory if it causes harm. We have never had that before, relying until now on the famous Sim v Stretch test in common law. The Scottish Law Commission never recommended such a statutory definition in its reports or its final draft bill, and therefore we are in the curious and, I would say, bizarre position of proposing to enshrine in law a statutory civil wrong while saying in the very same section of the bill that there is nothing that anyone can do about it unless they can demonstrate that the harm is serious.

If Parliament agrees that that is a problem, there are two ways of dealing with it. First, we could amend section 1(4)(a) to insert the word “serious” in front of “harm”, so as to bring the civil wrong and the actionability thresholds into alignment. Secondly, we could pass my amendments 5, 6 and 7, which retain the statutory definition but amend the threshold test to one of “actual” as opposed to “serious” harm, and thus we would allow everyone who feels that their repetition has been harmed, according to section 1, and according to the bill that we will pass this evening, to have access to justice but to have to demonstrate to the court that the harm is or is likely to be actual harm, and not merely presumed, as is the situation today.

I move amendment 5.

Photo of John Finnie John Finnie Green

I wish to speak in support of my colleague Andy Wightman’s comments. At the outset, Mr Wightman said that he had reviewed his position. That is a strength, not a weakness, and it has caused me to review my approach. Mr Wightman has talked about the scrutiny that went on at stage 1. In the stage 2 debate, he used the term “appropriate qualifier”. A threshold is needed. I support the view that it should be actual harm rather than serious harm. The Lachaux case is referred to in one of our briefings, and the explanatory notes to the bill say:

“It is anticipated that the Scottish courts will treat Lachaux as persuasive authority and follow a similar approach.”

I find Mr Wightman’s arguments persuasive, not just in that respect but in respect of creating an offence and immediately limiting access to it, because there are not many other remedies. For obvious reasons, I support the amendments in Mr Wightman’s name and encourage colleagues to do likewise.

Photo of Adam Tomkins Adam Tomkins Conservative

I have the greatest respect for Andy Wightman’s knowledge and experience of the law of defamation, but I am afraid that I do not agree with his arguments today, which are identical to his arguments at stage 2, when his amendments were either not pressed or, if they were pressed, were defeated—I cannot now remember which.

The reason why I do not support or agree with Andy Wightman’s argument is that the bill does something really important. It does not just modernise the law of defamation so that it is fit for purpose; it shifts the balance between the way in which we protect freedom of speech and the way in which we protect the right to protect one’s reputation and the right to privacy. It shifts that balance subtly but importantly in favour of free speech. One of the key ways in which it does that is by inserting the serious harm test in section 1.

I would be very reluctant indeed to see that shift go backwards. Anybody who knows anything about defamation law in this country—as I said, Andy Wightman knows plenty about it—knows that it does not protect freedom of expression sufficiently robustly. Such things are very important, as is recognised in the evidence on that point that the Justice Committee took at stage 1. For example, Andrew Tickell, from Scottish PEN, said that the serious harm test was

“appropriate in terms of free expression.”

Another example is the evidence that the committee took from the National Union of Journalists:

“If harm has been done to someone’s reputation, it is in everyone’s interests that that is addressed quickly. Having a serious harm threshold allows clarity at an earlier stage”—[

Official Report

,

Justice Committee

, 25 August 2020; c 9.]

to ensure that that is done. It has got nothing to do with keeping pace with the law of England and Wales, where the change was made a few years ago, and everything to do with ensuring that our Scots law of defamation holds the correct balance between free expression and protection of the right to reputation. In my judgment, the serious harm test is an important part of the way in which the bill achieves that.

Photo of Ash Denham Ash Denham Scottish National Party

The amendments in this group would have the same effect as amendments 30, 31 and 36, which Andy Wightman lodged at stage 2 and which were rejected by the committee. The threshold test of serious harm is an important reform of the current Scots law of defamation and is central to rebalancing the law of defamation. Indeed, Scottish PEN described the threshold test as

“critical to the heart of the bill”—[

Official Report

,

Justice Committee

, 25 August 2020; c 9.]

Overall, the Scottish Government’s view is that, where damage to reputation is presumed, as happens currently, the law does not get the balance right. The threshold test was recommended by the Scottish Law Commission for a number of reasons and I am certain that the commission considered the need for the test and the level at which it is set very carefully.

Amendments 5 and 6 would replace the serious harm test with one of actual harm. That would set the bar too low, as it would mean that any evidence of harm, no matter how little, would be enough to meet the test. The amendments would signal to our courts that Parliament intends something different from the serious harm test. We would not have clarity on how courts should treat the threshold test of serious harm that has come with the UK Supreme Court’s interpretation of section 1 of the Defamation Act 2013 in England and Wales. The result would likely be a long period of doubt and uncertainty about what the test of actual harm means, which is the exact opposite of what the bill is trying to achieve.

It is certain, however, that Andy Wightman means the level of actual harm to be lower than serious harm. Why should the people of Scotland have less protection for their freedom of expression than people in England and Wales have?

Photo of Andy Wightman Andy Wightman Independent

The minister makes a good point, but my rejoinder would be to ask why we are legislating to create a statutory definition about causing harm but not allowing anyone to take action if the harm that has been caused does not meet the serious harm threshold.

Photo of Ash Denham Ash Denham Scottish National Party

The two things are different. We have the definition, and the serious harm threshold is for actionability. If someone can prove that they have been harmed, they will be able to take that forward in the courts. If you have been harmed, it is important that you are able to show the court how you have been harmed. The serious harm threshold test is extremely important for the overall balance of the bill.

Amendment 6 would have the effect of creating two different thresholds: one for individuals and another for companies and partnerships that trade for profit. Individuals would need to show actual harm and companies would need to show serious financial loss. Not every company is a multinational with an annual turnover in the millions of pounds, however. If the company was an individual or a charity, it could easily show actual harm, but instead it would have to show serious financial loss. Why would the law treat those companies differently? Most companies in Scotland are small or micro-enterprises, and reputation will be vitally important for them.

Andy Wightman has also raised a concern about the law defining a harm but then saying that, if a person has not been seriously harmed, they cannot pursue a civil remedy. I point out to him that the use of thresholds is common in both criminal law and civil law to indicate that a particular level of conduct or damage is required before a particular legal remedy or consequence is appropriate. I will give a couple of examples of that.

First, part 2 of the Adoption and Children (Scotland) Act 2007 concerns the making of permanence orders, whereby parental rights and responsibilities are vested in a local authority. The act states that the court must be satisfied that

“the child’s residence with the person is, or is likely to be, seriously detrimental to the welfare of the child.”

Secondly, the Parliament recently considered and agreed to section 38 of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021. That section sets out a serious failure test that must be met in order to raise successful judicial review proceedings in relevant circumstances. Again, that sets the threshold not just at actual failure but at serious failure.

Those are just a couple of examples, but there are more. It is common for the law to recognise that there may be a wrong but that it does not reach a high enough level to warrant successful court proceedings.

Setting the threshold test too low could have serious consequences for freedom of expression. It would not give enough confidence to those who wish to defend their freedom of expression in the face of a defamation action while making it only slightly more difficult to protect reputation.

The crucial importance of freedom of expression justifies a sensible threshold. Andy Wightman’s amendments would nudge the threshold upwards only slightly from what we currently have. However, in my opinion, that is not high enough.

I ask Andy Wightman not to press amendments 5, 6 and 7. If he does so, I ask members to vote with me in opposing them.

Photo of Andy Wightman Andy Wightman Independent

I thank those who have contributed to the debate.

I respect Mr Tomkins’s arguments about shifting the balance. I agree with that; indeed, I agree with the minister on that point. However, in my view, shifting to “actual” harm and doing away with the presumption shifts that.

With respect, Mr Tomkins did not address my critique of creating a new statutory wrong and creating a threshold for actionability in the same section. The minister talked about adoption legislation, for example. It is one thing to set on an on-going basis various criteria and thresholds for actionability, but it is quite another to create a new statutory wrong in a piece of legislation and say in the very same section that there is nothing that can be done about it.

My concern about the bill has been that those who suffer harm—a statutory wrong that we will probably pass tonight—do not have a remedy available to them. That causes me a problem. Nevertheless, I understand the arguments that have been put at stages 1, 2 and 3. I do not expect that my amendment will get much further, but at least I have managed to put the arguments on the record, and Parliament will be able to test them.

The Presiding Officer:

Can I assume from that that you are pressing amendment 5, Mr Wightman?

The Presiding Officer:

The question is, that amendment 5 be agreed to. Are we agreed?

Members:

No.

The Presiding Officer:

There will be a division. Members will need to access the voting app, so I will suspend Parliament for five minutes to call some members to the chamber and the others to access the voting app.

15:58 Meeting suspended.

16:06 On resuming—

We are now back in session and we move straight to the vote on amendment 5. There will be a one-minute division.

The vote is now closed. Please let me know if you were not able to vote.

Division number 1 Defamation and Malicious Publication (Scotland) Bill: Stage 3

Aye: 32 MSPs

No: 86 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 32, Against 86, Abstentions 0.

Amendment

5 disagreed to.

Amendment 6 not moved.

Group 2 is on secondary publication: regulation-making power. Amendment 1, in the name of Liam Kerr, is the only amendment in the group.

Photo of Liam Kerr Liam Kerr Conservative

Colleagues will recall that I lodged a similar amendment at stage 2 that sought to limit the delegated powers of ministers to technical amendments, while allowing flexibility to modernise the law in line with technological developments. I will explain what I mean by that.

Section 3(6) enables the Scottish ministers to make regulations to

“modify subsections (3) or (4) to add, amend or remove activities or methods of disseminating or processing material”,

which can be undertaken by a person without them being classified as

“the author, editor or publisher” or, in the case of

“an employee or agent of such a person”,

being “responsible for” its

“content or the decision to publish it.”

The underlying purpose of amendment 1 is to restrict the regulation-making power in section 3(6) so that it can be used only in consequence of technological developments.

In the committee’s debate at stage 2, it was felt that the proposed power would be too restrictive, so I did not press my amendment, pending discussion with the minister and her officials to ensure that any amendment captured the policy intention more accurately.

I am grateful to the minister and her officials for their assistance, and my redrafted amendment permits regulations to be made only when the Scottish ministers consider it appropriate to take account of two situations. The first involves technological developments—including technologies ceasing to be used—that relate to the dissemination or processing of material. The second involves

“changes in how material is disseminated or processed as a result of such developments”.

Any such regulations would be subject to the affirmative procedure. Stakeholders would have the opportunity to express their views on any proposed change and, ultimately, Parliament would decide whether a proposed change was appropriate. Amendment 1 is good and I seek Parliament’s support for it.

I move amendment 1.

Photo of Ash Denham Ash Denham Scottish National Party

Someone who is not the author, editor or primary publisher of a defamatory statement should not be liable for it, except to the extent that they are responsible for a statement’s content or for the decision to publish it. Section 3 gives effect to that purpose and limits the circumstances in which a defamation action can be brought against a secondary publisher. The Scottish ministers are given regulation-making powers to adjust the subsections that lay out the activities that a person can carry out without being classed as an author, editor or publisher.

The Scottish Government made it clear in its delegated powers memorandum that the reason for taking that power is to future proof the provision to deal with technological changes. Any regulation-making power should not be too expansive, particularly as any regulations that the Scottish ministers make in connection with section 3 will have a significant impact on freedom of expression.

Amendment 1 ensures that the Scottish ministers’ power is not so wide that it will unduly restrict freedom of expression without Parliament’s consent but that it is wide enough to allow the Scottish ministers to account for necessary changes. It is worth remembering that any proposed regulations will be consulted on and will be subject to the affirmative procedure. Stakeholders will have an opportunity to express their views on any proposed change and, ultimately, it will be for the Scottish Parliament to decide whether a proposed change is appropriate.

The amendment achieves the proper balance between making sure that those who need the section’s protection are given it in good time and making sure that the Scottish ministers’ powers to restrict freedom of expression are not unnecessarily wide. I am grateful to Liam Kerr for agreeing to work with the Scottish Government to prepare the amendment and I encourage members to join me in supporting it.

Amendment 1 agreed to.

Section 5—Defence of truth:

Amendment 7 not moved.

The Presiding Officer:

Group 3 is on the powers of the court. Amendment 8, in the name of Fulton MacGregor, is grouped with amendment 9.

Photo of Fulton MacGregor Fulton MacGregor Scottish National Party

Amendments 8 and 9, in my name, follow on from an amendment that I lodged at stage 2. I thank the minister for her commitment to work with me ahead of today.

The aim of amendments 8 and 9 is to achieve a proportionate balance of the protection of reputation, the right to freedom of expression and the court’s power to make orders to a website operator in the early stages of defamation proceedings.

Section 30 provides for the fact that it might not always be possible for the author of material that is the subject of defamation proceedings or proceedings under part 2 in relation to malicious publication to prevent further distribution of the material or orchestrate its removal. To address that, section 30(1) empowers the court to order the removal of material that is the subject of defamation or malicious publication proceedings from any website on which it appears and to order a person

“who was not the author, editor or publisher” of the material

“to stop distributing, selling or exhibiting material containing the statement”.

Section 30 allows the court to order a website operator to remove a statement that is the subject of a complaint. When a court has had the chance to consider the arguments from both sides and come to a full conclusion, an order to remove a statement that has been found to be defamatory is entirely reasonable.

However, the explanatory notes to the bill set out that the exercise of that power

“is not confined to circumstances in which the final outcome of the proceedings has already been determined by the court. Accordingly, the court would be entitled in an appropriate case to grant an order for removal or cessation of distribution on an interim basis, before the final outcome of the proceedings is known.”

The court’s power to order removal before a full decision has taken place seems unnecessary, given the alternative measures that amendment 8 seeks to introduce. In evidence sessions held by the Justice Committee, concerns were raised by media groups including the Society of Authors, Scottish PEN, the BBC and

The Ferret

, through legal academics, and from civil society organisations such as Scottish PEN and the Open Rights Group. I thank all those organisations, particularly Matthew Rice of the latter group, for their input in the development of my amendments.

In seeking to achieve a proportionate balance in the early stages of defamation disputes in the court system, amendment 8 proposes to amend section 30 by introducing a power for the court to order a website operator

“to include on the website a prominent notice that the statement is subject to the proceedings”.

Such a notice must be in a place or on a forum that ensures that a person accessing the statement is made aware of the notice every time that they access the statement.

I should make it clear that amendment 8 seeks to leave intact the power of the court to order the operator, by interdict, to remove the statement at the end of the proceedings. It is focused primarily on when the proceedings are on-going, at which time it would be appropriate to exercise such a power.

Additionally, nothing in amendment 8 would prevent a website operator itself from removing the statement complained of, and they would be entitled to do that throughout any potential defamation dispute. I believe that the addition of a notice power for the court meets the bill’s policy objectives to strike an

“appropriate balance between freedom of expression and the protection of individual reputation; and clarify the law and improve its accessibility.”

I move amendment 8

Photo of John Finnie John Finnie Green

Mr MacGregor mentioned the Open Rights Group, much of whose work I commend. Indeed, it was via that route that I was lobbied by a constituent who was concerned that

“As things stood you were guilty until proven innocent.”

I commend the words that they went on to say about Mr MacGregor’s amendments:

“These safeguards will better balance the right of freedom of expression online with the need to fairly protect reputation.”

For those reasons, I hope that other members will join Scottish Greens in supporting Mr MacGregor’s worthy amendments.

Photo of Ash Denham Ash Denham Scottish National Party

An important feature of the bill is the range of new powers given to the courts that will help to repair unfair damage done to an individual’s reputation. Ordinarily a court would have awarded damages but, if the Parliament agrees, a court will be able to allow a statement to be read in court, order that a summary of its judgment be published, and order the removal of material from a website.

Section 30 grants courts the power to order the removal of material that is the subject of defamation or part 2 proceedings from any website on which it appears. That is an effective remedy that will, in relevant circumstances, help to prevent on-going unfair damage to an individual’s reputation. A similar power has been conferred on courts in England and Wales by the Defamation Act 2013, and the bill that is before us seeks to grant Scottish courts the same.

There may, however, be situations in which a court decides that removing a statement altogether does not properly balance the rights of protection of reputation and freedom of expression. It could be that the proper balance favours continued publication of the statement complained of, but with a notice affixed to it that lets those accessing it know that it is subject to defamation or malicious publication proceedings. For example, that could be where proceedings are on-going and a court has not yet made a final determination.

The notice permitted by amendment 8 would be attached on the website to the statement complained of, and must be prominent. That means that it cannot be hidden away on some other web page, or set out in tiny print, and therefore easily overlooked by users viewing the allegedly defamatory statement. It must also be visible to each individual user every time that they access the statement, for so long as the proceedings are on-going or for such other time period as may be ordered by the court.

Amendment 8, lodged by Fulton MacGregor, will make all that clear should a court decide to use that power. It is another remedy that a court can use to assist in restoring a person’s unfairly damaged reputation, and is added to the others that the Scottish Government has introduced. Having it on the face of the bill would mean that an individual would know that it is one of a number of remedies that they could seek from a court in order to protect and restore their damaged reputation.

I hope that members will join me in supporting amendment 8.

The Presiding Officer:

Does Mr MacGregor wish to wind up?

Photo of Fulton MacGregor Fulton MacGregor Scottish National Party

I thank the minister and her officials again. The amendment that is before members today has not changed substantially from the stage 2 amendment, but, by working with the minister and her officials, we have perhaps been able to find more balance and alleviate any slight concerns that were raised at stage 2.

Amendment 8 agreed to.

Amendment 9 moved—[Fulton MacGregor]—and agreed to.

The Presiding Officer:

Group 4 is entitled “EU exit technical amendments”. Amendment 2, in the name of the minister, is grouped with amendment 4.

Photo of Ash Denham Ash Denham Scottish National Party

Amendments 2 and 4 are technical amendments that arise out of the United Kingdom’s departure from the European Union.

Amendment 2 removes a reference to section 19F of the Prescription and Limitation (Scotland) Act 1973. That section was recently repealed by regulations that have now come into effect following the end of the transition period after the UK left the EU.

On amendment 4, a false and defamatory statement is presumed to be made with malice, and that presumption is rebutted if the statement is subject to qualified privilege. In the event of qualified privilege attaching, it is for the pursuer to prove malice. Qualified privilege arises both at common law and under statute. Part 2 of the schedule lists a number of communications that are privileged, and one such communication refers to “another member State”. As the UK is no longer a member of the EU, amendment 4 will rectify that provision. The amendment will maintain the current position under the law and no restriction of freedom of expression should result.

I ask members to support both the amendments in the group.

I move amendment 2.

Amendment 2 agreed to.

The Presiding Officer:

Group 5 is on “Interruption of limitation period: media complaints and expert determination”. Amendment 3, in the name of Liam Kerr, is the only amendment in the group.

Photo of Liam Kerr Liam Kerr Conservative

This is similar to another amendment that I lodged but did not press at stage 2 and that has been revised and improved for stage 3.

Section 33 currently makes provision for mediation, which is helpful, and it will pause limitation during that period. Several witnesses felt that that interruption ought to be extended to other forms of dispute resolution such as arbitration, expert determination and maybe press complaints or investigation by ombudsmen bodies.

Amendment 3 provides that the limitation period of one year will not run during any period of time in which parties engage in certain forms of alternative dispute resolution. Those alternative methods, which I understand the explanatory notes will reflect, are expert determination and a complaints process such as press or ombudsmen complaints. The insertion of a new section into the bill will achieve that aim. I seek to define the two processes in subsection (4) of proposed new section 19CC of the

Prescription and Limitation (Scotland) Act 1973

. Subsection (2) sets out to provide clarity as to when parties enter and exit such a dispute resolution process.

Given that those processes are not necessarily structured or formal, and given that press complaints bodies are not defined in statute and so are liable to change without a means being provided to update the act short of primary legislation, subsection (5) would grant the Scottish ministers the power to amend the definitions in subsection (4) in response to any future changes in the processes or types of bodies that handle media complaints. Any regulations that the Scottish ministers might make would be subject to the affirmative procedure, in accordance with subsection (6).

Amendment 3 has benefited from the advice and assistance of the minister and her officials, for which I am grateful. As earlier, I will be grateful for Parliament’s support.

I move amendment 3.

Photo of Ash Denham Ash Denham Scottish National Party

I know that a number of members have, over a number of years, taken a keen interest in methods of dispute resolution that do not involve a court. The bill as introduced made provision for mediation in section 33, and Mr Kerr’s amendments extend the coverage of alternative methods of dispute resolution to include expert determination and media complaints processes.

Given the nature of defamation, alternative forms of dispute resolution can be especially useful for resolving disputes. Whether that is done by way of mediation, arbitration, formal complaints processes or expert determination, it seems only right that parties are not penalised for seeking to repair unfair damage without resorting to a court. It also seems right that we give those same parties the time to pursue the options without the threat of running out of time to raise court proceedings in actions of defamation and malicious publication. There is no need to force a party to lodge court proceedings in order to protect their legal rights solely because they are looking for other means to resolve a dispute.

I am grateful to Mr Kerr for agreeing to work with the Scottish Government on the definitions and drafting, and I believe that we have a robust provision that extends the ways in which a defamation or malicious publication dispute can be resolved without the same expense and wait that are involved in a court process.

I support amendment 3, and I hope that members will join me.

Amendment 3 agreed to.

Schedule:

Amendment 4 moved—[Ash Denham]—and agreed to.

The Presiding Officer:

That ends the consideration of amendments.

As members will be aware, at this point in proceedings, I am required under the standing orders to decide whether, in my view, any provision of the bill relates to a protected subject matter—that is, whether it modifies the electoral system and franchise for Scottish Parliament elections. In my view, the bill does no such thing, so it does not require a supermajority to be passed at stage 3.

We will have a short pause before we move on to the debate on the bill.