Defamation and Malicious Publication (Scotland) Bill

– in the Scottish Parliament on 2nd March 2021.

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Photo of Lewis Macdonald Lewis Macdonald Labour

The next item of business is a debate on motion S5M-24257, in the name of Ash Denham, on the Defamation and Malicious Publication (Scotland) Bill. I invite members who wish to speak in the debate to press their request-to-speak buttons now.

Photo of Ash Denham Ash Denham Scottish National Party

I am pleased to open the debate on the Defamation and Malicious Publication (Scotland) Bill. I thank members of the Justice Committee and its clerks for their work on the bill.

The bill is largely the outcome of work that was undertaken by the Scottish Law Commission, and it takes forward every substantive recommendation that the commission made. I also thank the commission for its valuable work.

It has been mentioned already today, but it is important to reiterate why the law of defamation is significant. The law deals with two competing fundamental human rights: freedom of expression and protection of reputation. As lawmakers, we have to find an appropriate balance between the two, and I believe that the bill gets the balance right. Overall, the aim has been to make sure that our law of defamation is fit for the 21st century, with a clear and accessible framework that balances those two rights. The bill updates defamation law and simplifies it in some key areas by replacing and restating the existing law.

One important reform is that, before a successful defamation action can be raised, a damaging statement must be published to someone other than the person who is the subject of it. Defamation law should be about protecting reputation, but, as the law currently stands, it protects more than that.

If we are to say that freedom of expression is to be restricted in order to protect reputation, it is vital to ensure that defamation law is not overextended to protect other interests.

The threshold test of serious harm has been greatly discussed at each stage of the bill’s progress through Parliament. The test will give much-needed confidence to those who are told that they have published a defamatory statement. Scottish PEN described the threshold test as critical and at the heart of the bill. The courts should not be asked to settle defamation litigation when there is little or no harm caused to individual reputation. The consequences for freedom of expression in such a situation should not be underestimated.

Section 2 places on a statutory footing the common-law principle that public authorities cannot raise defamation litigation. A public authority should use the ballot box, not defamation law, to protect its reputation. There has been no decided case on whether the principle applies in Scotland, but legal professionals work on the assumption that it does. If Parliament agrees to the bill, section 2 will put that beyond doubt.

The approach taken on secondary publishers will help to ensure that defamation law is focused on the source of a defamatory statement. Under the present law, secondary publishers are not actively responsible for the content that they host but they can be held liable, and we have heard how liability can lead to secondary publishers taking a cautious approach to content. The law as it stands encourages secondary publishers to remove content, thereby interfering in the exercise of an individual’s free expression. Ultimately, that should be a matter for a court, not secondary publishers, to determine.

Another significant aspect of the bill is that it brings together the main defences to a defamation action. The Scottish Government has taken the opportunity to reform the defences where necessary. For instance, on the defence of honest opinion, one innovative change has been to extend the need to show facts underpinning the opinion to be true, privileged or reasonably believed to be true. Having the defences of truth, honest opinion and publication on a matter of public interest all set out in one place will help defenders to better understand the law, instead of leaving the defences uncodified.

In a defamation action, the usual remedy that is sought and granted by a court is an award of damages, and the bill will widen the range of remedies that are available to those whose reputation has been unfairly damaged. A pursuer will be able to ask a court to remove or affix a notice to a defamatory statement; ask to make a statement in court; or ask that a summary of the court’s judgment be published. Ultimately, for most, the purpose of a defamation court action is to vindicate unfairly damaged reputation, so having new types of remedy to achieve that is a welcome reform.

I will briefly mention the equally important reforms to the law of malicious publication that will be brought about by the bill. The Scottish Law Commission gave a great deal of consideration to the common-law action of verbal injury and the new statutory cause of action of malicious publication that replaces it. The law treats malicious publication actions differently from defamation actions. In a malicious publication action, the law does not presume that the statement complained about is one of fact, is false or was made with malice; each of those elements must be proved by the pursuer. In particular, the test of malice has been strengthened as the bill has progressed—I thank the Justice Committee for its work on that. Malicious publication actions fill a gap in the law that would be left open if defamation was left as the only actionable form of wrong.

The law of defamation in Scotland is due for reform—the latest substantive changes were made more than a generation ago—and it is no longer fit for purpose. Any reform must find a balance between the two competing rights at the centre of any defamation action: the right to protection of reputation and the right to freedom of expression. The bill achieves a more appropriate balance.

Throughout the bill process, I have listened to the views of members across the chamber, and the Scottish Government has lodged a number of amendments in response to concerns or has supported amendments after collaborative work with individual MSPs.

If agreed to by the Parliament, the reforms that will be brought about by the bill will modernise and simplify our laws of defamation and malicious publication.

I move,

That the Parliament agrees that the Defamation and Malicious Publication (Scotland) Bill be passed.

Photo of Liam Kerr Liam Kerr Conservative

During the stage 1 debate on the bill, I said:

“at the moment, large parts of my week are set aside for reading, questioning and commenting on matters of freedom of speech”.——[

Official Report

, 5 November 2020; c 57.]

That has not changed—nor should it, as, of course, freedom of expression remains one of our most important fundamental rights, with which we interfere at our peril.

In these times, when technological developments and social media have allowed pretty much anyone to be a publisher, it is imperative both that free speech is protected and that any threats that are caused to it by laws are avoided; however, as the bill acknowledges, there is also the perhaps sometimes competing right to protect one’s reputation. The bill seeks to strike the balance between those two rights.

There is no doubt that striking that balance is not straightforward. The Scottish Law Commission recognised that, as it sought to put the Scots law of defamation on a statutory footing that is fit for the 21st century. As the minister set out, the bill seeks to implement the substantive recommendations of the SLC’s report, particularly in so far as it recommended changes to the common law rules on verbal injury, a change in the presumption of trial by jury for defamation cases and that public authorities should not be able to initiate defamation proceedings. Many more recommendations were made and included in the defamation bill. It is the view of the Scottish Conservatives that the Defamation and Malicious Publication (Scotland) Bill broadly achieves the balance that is required. We will therefore vote in favour of it at decision time.

Although that balance is achieved, it is fair to say, as Adam Tomkins did earlier, that it has been shifted towards freedom of speech, in so far as it introduces a test of serious harm to the pursuer’s reputation. For a defamation action to succeed, a pursuer will have to show not merely harm but “serious harm” to their reputation. There has been a very interesting debate around that test, which is possibly the most contentious aspect of the bill. According to the policy memorandum, which itself picks up on the Scottish Law Commission’s work, the test was introduced because of a

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

It also brings Scots law into line with the position in England and Wales, which led some during the Justice Committee’s evidence-taking to suggest that it is

“an English solution to an English problem.”—[

Official Report, Justice Committee,

1 September 2020; c 13.]

I have found those arguments interesting, because it seems to me that, if there is a lack of authority, arguably the Law Society of Scotland has a point that an extra hurdle could deter claims and thus lead to even less such authority being developed. Although ensuring the ability to dispose of trivial claims feels like the right thing to do, the Faculty of Advocates suggested that

“There is no reason to think that the Scottish courts have” thus far “been troubled by” such “trivial claims”. However, I have listened carefully to the media respondents in particular, who have said that a serious harm test adds clarity, prevents cases that are without merit from going forward and, crucially, gives them reassurance in publication so as to avoid a “chilling effect”. I find that final point particularly persuasive so, although I see merit in both sides of the debate and am pleased that all views have been heard and considered, on balance I align with the view of the committee—and, I think, of the Parliament—to favour retention of the serious harm test.

I was also somewhat exercised by the sections on malicious publication, which I felt throughout had perhaps not been given quite the same level of attention as others. I was concerned principally about the definition of “malice”, the applicability of defences and a de minimis level of damage akin to the serious harm test. I have been satisfied on all of those, since the minister has acknowledged my concerns and has either worked with me to amend the definition to ensure that any statement must be both “false and malicious” in order to be defamatory, or with her officials has engaged with me in challenging yet constructive debate on the merits or otherwise of my amendments. On that point, incidentally, I think it right and proper to acknowledge the approach of the minister and her officials to the bill; when dealing with me, at least, that has certainly been respectful, constructive and productive throughout.

I had other concerns, principally on limitation, and have observed other colleagues’ challenges. However, concerns that were raised by stakeholders have been, for the most part, addressed either at stage 2 or earlier today. On my concern about limitation, I am content that my amendment was agreed to earlier today, ensuring that not only mediation will stop the clock but that other forms of conciliation could do so.

For that reason, it is my view that the bill strikes the right balance between freedom of expression and protection of individual reputations. Accordingly, the Scottish Conservatives will vote to pass the bill at decision time tonight.

Photo of Neil Bibby Neil Bibby Labour

I take this opportunity to thank the Scottish Law Commission for all its work on the bill. I also pay tribute to the members of the Justice Committee for all their scrutiny of the bill to ensure that defamation law in Scotland is fit for the 21st century.

As all members have said this afternoon, it is important that, with the legislation, we strike the proper balance between the freedom of expression and the protection of one’s reputation, which has not always been the case in Scotland’s defamation laws.

By modernising defamation law and including it in statute, rather than relying on common law, we ensure that the law is accessible and that the requirements on individual speech with regard to defamation are made clear. However, by including the definition of defamation in statute, we must ensure that the ability of the courts to develop law through case law is not stifled. Of course, in this digital age, with more and more publications online, technology and communication methods will continue to evolve; so, too, must defamation law, to ensure that it remains fit for purpose. I welcome the Scottish Government’s assurances that it will address that, and welcome the other changes that the minister has made to address other concerns and issues throughout the bill’s passage.

I am aware that there has been much discussion during the bill’s passage about the introduction of the serious harm test, which is a significant change to the current Scots law on defamation, but one that is similar to the legislative change that was made through the Defamation Act 2013 in England and Wales. As I said, we need to ensure that we strike the proper balance between freedom of expression and the protection of one’s reputation. As it stands, current defamation law can have a chilling effect on media scrutiny and freedom of speech, as those with sufficient resources can bring vexatious cases and make litigation threats. We need to prevent vexatious cases being brought, but I recognise the concern that the serious harm test takes us past that point. The amendments lodged by Andy Wightman to counteract the chilling effect were unsuccessful. I state for the record that Scottish Labour supported those amendments.

The legislation also codifies the Derbyshire principle, whereby public bodies cannot bring defamation actions. I noted that, at stage 2, further clarity was added to the bill on what bodies would be caught under the definition of a public authority. However, Scottish Labour believes that that did not go far enough and is disappointed that the proposals to include private and charitable organisations that deliver public services in the Derbyshire principle were not supported by the Government or the Justice Committee. In such cases, it is vital that the public interest defence be rigorously applied, to ensure that that does not add to the chilling effect in relation to discussions about or criticism of public activities being administered by private bodies.

Scottish Labour also believes that actions available to the courts prior to a case being decided must be proportionate. We supported Fulton MacGregor’s amendments, which removed the powers afforded by the bill for courts to order that material subject to legal proceedings be removed. That will instead be replaced with the ability to attach a prominent notice to such materials or publications identifying that they are subject to legal action.

The bill is necessary to modernise Scotland’s defamation laws and make them fit for purpose. The bill can also rebalance the law to limit the chilling effect and promote freedom of expression. Scottish Labour can and will support the bill at decision time.

Photo of John Finnie John Finnie Green

It is appropriate that I join others in thanking those who have brought us to this point. We have heard that every one of the Scottish Law Commission’s substantive recommendations was progressed. The Justice Committee met the commission. I thank it for its work, not just on this matter, but in relation to other matters.

I also thank the minister and her officials. I can vouch for the manner of engagement to which others have referred. I met the minister, along with Andy Wightman. Although our meetings did not quite bring the result that others did, differing views were genuinely held, and I thank the minister for how she went about that. I also thank the committee and other parliamentary staff, who worked tirelessly for us, and the witnesses, who gave evidence both in person and in writing—and indeed all those who provided briefings.

I do not think that anyone would dispute that the bill has had detailed scrutiny. We have had some very good debate, and everyone entered it with the same goal: to make good legislation.

The briefing from the Scottish Parliament information centre was one of the initial papers that we had on the bill, and it covers the pivotal issue of the balancing of rights, which has been referred to throughout our consideration of the bill—and which will continue to be referred to. There is a note in that briefing that is worth repeating:

“Scots law was grappling with issues around freedom of expression, individual privacy and protection of reputation well before human rights came into the frame. However, the requirement to uphold the rights contained in the European Convention on Human Rights brought an additional dimension to this balancing act.”

As we know, we can only pass legislation that is compatible with the convention. As with many things, and most legislation, the bill has involved striking a balance between competing factors: the appropriate balance between the right to freedom of expression contained in article 10 of the convention and the right to respect for private life in article 8. It is the conclusion of the Scottish Green Party that that balance has been struck. For that reason, we will be supporting the proposed legislation at decision time tonight.

That particular balance is not unique to the Defamation and Malicious Publication (Scotland) Bill. The Justice Committee is presently wrestling with the reality of reflecting both those important rights—freedom of expression and the right to respect for private life—in the Hate Crime and Public Order (Scotland) Bill, in which both those issues are starkly in play.

As the SPICe briefing notes, under the ECHR:

“The right to freedom of expression protects the right to hold and exchange information and opinions”.

To state the obvious, the bill is not new law; it is a matter of moving to a statutory definition and clarifying the law. As the SPICe briefing also says:

“much of the current law is obscure and based on judges’ decisions in previous court cases.”

It goes on:

“The Bill aims to make the law easier to understand”.

We will see how that goes. Many people have difficulty understanding the law. The briefing says that the bill

“strengthens existing defences e.g. in relation to publication in the public interest.”

We have again debated thresholds today, and the change under the bill from there being no express harm threshold in the law, to serious harm to reputation being required. The Law Society of Scotland, perhaps for different reasons from Mr Wightman and me, continues to have reservations about that element. It is clear that much of the law is opinion, even emphasis and exceptions, rather than fact. We saw that in the discussions on Mr Wightman’s amendments. I say again: differing views are genuinely held.

A further parallel with the Hate Crime and Public Order (Scotland) Bill comes with the potential for a chilling effect. The consensus among the committee was that the bill alters the balance of the debate in favour of freedom of speech, which is important in a vibrant democracy.

The common law is largely focused on print publications, and some rules do not readily transfer. We saw a very good amendment covering that from Mr Kerr, both future-proofing how information is processed and, importantly, acknowledging that such decisions could be important and worthy of widest possible discussion, and hence applying the affirmative procedure.

That the statement complained of must have been published to someone other than the person who is the subject of the statement, is a welcome improvement.

There are a number of important features in the bill that should be welcomed. The minister will know that I rambled long and hard about the Derbyshire principle and my concerns that, with so many of our public services delivered by private organisations, we do not have a nice level playing field. In particular, we do not have that in relation to the huge sums of money that go out in respect of ferry services, with CalMac as the public provider versus Serco. Under the bill, delivering public services from time to time does not make Serco a public authority, yet it has a 15-year contract. Where is the political accountability in that? I point out that the Court of Session held that Serco, which had been contracted to provide housing to asylum seekers, was not a public authority.

I commend references to alternative dispute resolution, which is important. We spend a lot of time putting laws in place but in an ideal world we do not want them to be enforced in practice; we want people to find other methods of doing that. References to alternative dispute resolution are therefore always welcome.

I thank the minister for her engagement and I thank colleagues for their work. We have a good bill. As I said, the Green Party will support it at decision time.

Photo of Liam McArthur Liam McArthur Liberal Democrat

I warmly welcome Neil Bibby to his new role. I do not know whether we can look forward to seeing him at the next meeting of the Justice Committee, which will probably be the committee’s final meeting of the session, but I wish him well.

I confirm Scottish Liberal Democrats’ support for the bill and I thank everyone who helped the Justice Committee in our scrutiny of it—in particular, the Scottish Law Commission, which bears the greatest responsibility for development of the proposals, as other members have said.

This is a very technical area of the law—let someone show me an area that is not—that was overdue for updating and codifying, not least to make it more accessible to people who might have reason to use it. Although the Government’s intention was to update and codify the law, it has also taken the opportunity to reset, however modestly, the balance between protecting reputation on one hand, and freedom of speech on the other. The minister recognised that the scales are being tipped slightly more in favour of freedom of speech.

We heard calls in evidence for more radical moves in that direction, from witnesses who are concerned about the chilling effect of legal threats from people who have thin skins and thick wallets. On the other side of the argument, there were appeals against what was seen as an erosion of privacy rights and an attempt to impose English solutions to an English problem of defamation.

As I said at stage 1, I think that the Government has got the balance broadly right, although on a personal level I am grateful to Andy Wightman for his contribution on the serious harm threshold. Given his lived experience of the law of defamation, Mr Wightman’s insights were interesting and helpful, even if, ultimately, his argument for setting the threshold at “actual harm” has proved to be unsuccessful this afternoon.

The bill sensibly includes a statutory definition of defamation as well as a codification of potential defences, both of which are welcome developments that should aid accessibility. However, as the committee rightly made clear, it is important that those and other relevant aspects of the bill allow sufficient flexibility to adapt over time and draw on case law.

The committee called for greater clarity around the way in which the Derbyshire principle is expressed. John Finnie referred to that. It remains to be seen whether the bill goes far enough in that regard. I appreciate that some of the options that the committee considered could well have been unduly arbitrary and might have led to unintended and unwelcome consequences.

Exclusion of secondary publishers from liability is another element of the bill that is worthy of support. Although we were right to resist attempts to amend the bill to allow, in effect, take-down notices prior to any evidence being heard, I hope that the modest changes that have been agreed to today, which make it clear that a statement is subject to proceedings, offer reassurance and additional clarity.

Finally, on the question of limitation, the reduction to one year of the period for bringing a case is the right move, particularly in the digital age. Although there will be instances in which the court will be able to exercise discretion—mediation or other forms of dispute resolution can and should be encouraged, as John Finnie rightly pointed out—the change to limitation should address another area in which chilling occurs through the mere threat of legal action.

The bill will be judged on its success in striking an appropriate balance between the rights of protecting reputation and freedom of expression. I believe that it gets that balance just about right, so I commend the minister and her officials for how they engaged with the committee and stakeholders.

The Scottish Liberal Democrats will support the bill at decision time.

The Deputy Presiding Officer:

There is just one speaker in the open debate. I call Rona Mackay.

Photo of Rona Mackay Rona Mackay Scottish National Party

The Defamation and Malicious Publication (Scotland) Bill, which I hope we will pass today, is vital in ensuring that the law of defamation is fit for 21st century Scotland.

I thank the Scottish Law Commission and all our witnesses who gave evidence, and I thank the excellent clerking and bill teams, who managed to make a somewhat technical bill easier for members of the Justice Committee to understand.

Today’s fast-changing and wide-ranging methods of communication demand a clear and accessible framework that more appropriately balances the protection of individual reputation and freedom of expression. Throughout our scrutiny of the bill, we heard that complex and costly defamation litigation can lead to a chilling effect on freedom of expression, whereby people are discouraged from publishing because they fear the threat of legal action.

The widespread use of social media, blog posts and so-called citizen journalists means that defamation law does not affect only big media companies. It has become easier to spread unsubstantiated rumours or to deliberately damage someone’s reputation, and that has put website operators on the front line of the battle over freedom of expression. We took evidence from individuals, media companies, legal stakeholders and content creators, who were extremely helpful in outlining their experience of defamation law. There is no doubt but that the existing law is patchy, goes back decades and does not strike the right balance between freedom of speech and protection of reputation, particularly with regard to online publication. The most recent legislative changes occurred in 2013, and before that in 1996.

As others have done, I thank the minister for working collaboratively with all committee members and stakeholders to reach consensus on the bill. Some areas of contention were raised during the evidence sessions. Those related to public defences, raising the threshold for bringing defamation actions, the serious harm test, the single publication rule and the one-year time limit on raising court action. The amendments that have been agreed to today should give confidence to publishers that litigation will be allowed to proceed in our courts only in cases in which real harm has been done to an individual’s reputation.

It is vital to take account of the changing landscape in publishing. Traditional journalists—I was one of them—undergo training, and editors have access to legal advice, but that is rarely the case for those who publish online. Defamation law has been developed with a focus on print publications, and some of the rules are difficult to adapt to online publication. The bill seeks to address concerns in that area by increasing protection to internet intermediaries who are secondary publishers. The bill makes provision for the courts to require a website to remove content and to require other people or bodies to stop distributing or showing material. My colleague Fulton MacGregor’s amendments in that area were helpful.

It is impossible to fully future proof the law in the area, due to the ever-changing nature of technology, which is why Liam Kerr’s amendments in that regard were helpful.

The bill prohibits public bodies from raising a defamation action, as John Finnie outlined. It is vital that public bodies such as local authorities, the Scottish Parliament and the Scottish ministers should be open to public scrutiny and uninhibited criticism, but that is not because a public body does not have a reputation or is beyond scrutiny; it is because defamation law is not the appropriate way to defend that reputation. As the minister said, that should be done at the ballot box.

Of course, private bodies cannot do that, so it is only right that we do not prohibit them from raising defamation actions, but that does not mean that the bill fails to protect those who criticise and scrutinise companies. To protect their legitimate free speech, those people will be able to rely on the new defence of publication on a matter of public interest, the reformed defence of honest opinion and the serious harm threshold test.

When someone suffers serious harm to their reputation, they usually should know that soon after a defamatory statement is published. That is why the bill reduces to one year the time limit within which legal action can be raised. In this day and age, it is no longer appropriate to have the limitation clock beginning again each and every time an article is downloaded or accessed online. That is just not practical.

We know that the current length of the limitation period can be used to chill freedom of expression, and we heard evidence on that during our scrutiny. It can be used to discourage investigative journalists, because the fear or threat that defamation proceedings could be raised many years down the road blocks free expression. That is not to say that the one-year limit is absolute, because there is flexibility in the bill that can take into account any—[


.]—subsequent publication. [


.]—discretion to disapply the time limit where there is—[


.]—to do so.

I warmly welcome the bill and commend everyone who had a part in shaping it. I believe that it strikes the right balance between freedom of expression and protecting an individual’s reputation, and I urge members to pass it at stage 3.

The Deputy Presiding Officer:

We move to the closing speeches.

Photo of James Kelly James Kelly Labour

As other members have, I thank the Justice Committee for the work that it has done on the bill. As a former member of the committee, I am very aware of the workload that it has taken on over the recent period, especially in relation to the Hate Crime and Public Order (Scotland) Bill, and it is to the committee’s credit that we have been able to improve the Defamation and Malicious Publication (Scotland) Bill as it has moved to stage 3.

It is important, too, to recognise the role of the Scottish Law Commission, which produced the report that showed that there was a need for legislation in the area.

As Liam McArthur said, the

Defamation and Malicious Publication (Scotland) Bill will be seen by some as quite a technical bill, but it is very much needed; the law needed to be updated and made more modern. The changes that were made in England and Wales were helpful, and it was useful to learn from that experience.

Throughout discussion of the bill, there have been two pulling forces, so to speak. It is clearly important to defend freedom of speech, but it is important that that does not stray into enabling people to be defamatory. That is unacceptable, and there should be legal provisions in place to ensure that people who are defamed are able to take appropriate action in the courts. On the various issues, the Government and the committee have tussled with the balance between freedom of speech and not allowing people to defame others. I think that they have got it broadly right. For example, the changes that were made to the bill around the serious harm test will ensure that the balance is correct, in that respect.

However, I agree with Liam McArthur that Andy Wightman’s proposed changes would have provided further clarity. As ever, Mr Wightman interacted very seriously with the committee on the bill. He brings a lot of experience to this and other areas of legislation that the Parliament deals with, and I want to put it on record that he is highly respected across all parties.

Among the issues that were discussed was appropriate defences. I think that it is important to codify that in law, and it was correct to allow people to have the defences of honest opinion and public interest.

I share Neil Bibby’s view that public bodies that operate in a charitable environment should be subject to the Derbyshire principle, so it is regrettable that the relevant amendments were not accepted at stage 2.

To sum up, I say that the bill will add to the legislative toolkit by giving appropriate protection, in the social media age, to people who are defamed, and by ensuring that it will be easier to bring an action through the courts.

Photo of Adam Tomkins Adam Tomkins Conservative

As we have heard, the bill, which originated in the work of the Scottish Law Commission, puts the Scots law of defamation on a statutory footing that is fit for the 21st century. In doing so, it addresses and balances two competing rights—the right to freedom of expression and the right to protect one’s reputation, which is often seen as an aspect of the right to privacy.

Taken as a whole, the bill gets that balance right. It does so by shifting—perhaps only subtly, but it shifts it nonetheless—the balance that we have in the current law. The bill shifts the balance in favour of freedom of speech. It says, for example, that for a defamation action to succeed—we debated this issue earlier—a pursuer will have to show not merely harm but serious harm to their reputation.

The bill also says that defamation actions will generally have to be commenced within one year of the harm occurring, rather than within the current three-year period. Some commentators have expressed concern about that shift in favour of greater freedom of speech, but most have welcomed it. In particular, and unsurprisingly I suppose, media organisations have welcomed it strongly. They have said that it addresses the chilling effect that the current law of defamation can sometimes cast over journalists, publishers and writers when actions are brought—or indeed even threatened—by pursuers.

I very much welcome that shift in favour of free speech. Free speech matters, now as much as ever. We can never take free speech for granted and we must always be on our guard to protect it. It matters for democracy. It matters for anyone who cares about the truth and it matters too, of course, for individual self-fulfilment and liberty. Free speech acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in government and is an essential condition of an intellectually healthy society. I am glad to support any bill that advances freedom of speech, however subtly, as this bill does. Likewise, any bill that threatened free speech would be one that I would want to scrutinise very carefully indeed. We may come back to some of those points next week when we debate once again the notorious Hate Crime and Public Order (Scotland) Bill. I am not the only one this afternoon to have drawn parallels between the defamation bill and the hate crime bill.

As a result of the admirable work of the Scottish Law Commission, the defamation bill has not needed a great deal of amendment as it has progressed through its legislative stages. One area that was improved at stage 2, however, is the so-called Derbyshire principle. Named after an English case that was decided by the House of Lords in the early 1990s, that is the principle that local authorities may not sue in defamation. If someone is an elected official, the place where they seek to protect their reputation is at the ballot box, not in the defamation courts. As Lord Keith said, in the Derbyshire case,

“It is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism.”

The bill puts that principle, which is a judge-made rule of the common law, on a statutory footing. As originally drafted, there were some concerns about how that was proposed to be done. In particular, the question was whether private bodies that are carrying out functions of a public nature should also be barred, as local authorities are, from suing in defamation. I am pleased that that issue was fixed at stage 2—and has not needed to be revisited at stage 3 this afternoon—by incorporating into the bill the same basic approach to the question of the scope of public authorities that we find in the Human Rights Act 1998. It is a good, workable solution, and it will make sense in the context of the bill.

Placing the modern law of defamation on a statutory footing should aid the accessibility of the law, but it should in no sense freeze its on-going development in the case law of the courts. The single most important and liberalising reform to defamation in recent years—the creation of the new defence of publication in the public interest in the Reynolds case—came in case law and not in statute. I welcome the bill and will support it at decision time this evening. I do so in both the hope and the expectation that this legislation will assist the courts as the law of defamation and malicious publication continues to be developed by them.

This is a really good bill. It makes welcome and valuable changes to Scots law. I thank the Law Commission, the minister and all my colleagues on the Justice Committee for their work on the bill and look forward to voting for it in a few minutes’ time.

The Deputy Presiding Officer:

I call Ash Denham to wind up the debate—a generous six minutes, minister.

Photo of Ash Denham Ash Denham Scottish National Party

I begin by thanking everyone for their contributions to the debate. I have listened to what has been said and welcome the general support that has been given across the chamber for the aims of the bill. In closing, I want to touch briefly on some of the provisions that we have discussed.

Reputation plays an important part in informing many of our day-to-day decisions. In my view, it is helpful to have a simple and clear definition of what defamation is. The definition is a simple restatement in modern language of the common-law test, which is now 85 years old. It is a restatement of the current law and not a departure from it.

The serious harm threshold has been the subject of quite a bit of debate as the bill has progressed. It came up at stages 1 and 2 and has done so again at stage 3. Some say that it is a solution to a problem that does not exist in Scotland and that it will deter legitimate claims. However, to measure the issue by the number of cases that proceed to court is to miss the problem. The possibility of litigation deters legitimate speech. A number of stakeholders gave evidence of their direct experiences as examples.

The law of defamation places a considerable burden on an author, editor or publisher to defend what they have published. If Parliament agrees to pass the bill, the serious harm test will shift part of the burden back toward the pursuer, who will, in relevant circumstances, have to prove a minimum level of damage to their reputation. To my mind, that is a more appropriate balance than the current law allows for. As Liam Kerr and Neil Bibby mentioned in their speeches, the test avoids the chilling effect that we heard about through submissions to the committee in the early stages of the bill’s passage through Parliament.

The threshold of serious harm means that the people of Scotland will have the same level of protection for freedom of expression that people in England and Wales currently have.

The so-called Derbyshire principle came up in the debate, and I note John Finnie’s comments on it. The bill was, of course, amended at stage 2 to add clarity on the Derbyshire principle, which Adam Tomkins set out quite well in his speech.

Some members have said that private companies that deliver public services should be prohibited from raising defamation actions. The argument is that, because public authorities are prohibited, those companies that take public money should be, too. However, public authorities are not prohibited from raising an action under section 2 because they are in charge of public money. They are prohibited because, in a democratic system, the ballot box is the appropriate place for a public authority’s reputation to be evaluated and, where appropriate, repaired. A private company cannot use the ballot box to repair damage to its reputation. We should not remove rights that are currently enjoyed by a company or a charity—as Neil Bibby spoke about—simply because it chooses to contract with a public authority.

That is not to say that the bill does not offer enhanced protections for those who wish to criticise the private delivery of public services. The bill sets out the threshold test of serious harm, as we have discussed; the defences of honest opinion and publication on a matter of public interest; the reduced limitation period, which Rona Mackay mentioned in her speech; and the single publication rule. All those provisions will, in some way, help.

John Finnie and Adam Tomkins noted the delicate balancing act that is required between two competing rights that are represented in articles 8 and 10 of the ECHR. I am very pleased that the Parliament believes that the correct balance has been struck.

Other provisions that have been discussed and are worth mentioning in brief include provisions to encourage the use of alternative methods of dispute resolution, the wider range of remedies available to restore damaged reputation, and the provisions on malicious publication that are the result of substantial work undertaken by the Scottish Law Commission. I would like to thank once again the Scottish Law Commission for the time and effort that it put into reviewing the current law of defamation and verbal injury, its significant consultation work and its final recommendations. The bill is a reflection of those efforts.

Defamation law in Scotland dates back more than 100 years. The Scottish Law Commission noted two cases in its discussion paper, which were Duke of Brunswick v Harmer, which took place in 1849—the year when the Buchanan Street railway station was opened—and MacKellar v Duke of Sutherland, which took place in 1859. After those, one of the leading cases in Scots law was Mackay v McCankie, in 1883, which held that a defamation can arise if an imputation is communicated merely to the person who is the subject of it. Around that time, telephones were just starting to be used.

The last time that the law was substantively updated was in 1996. That is a year that I do remember. The internet was just getting going; it was in its early stages. I still did not have a mobile phone—obviously, I was not an early adopter; I got one for the first time a year later. There was no Facebook and no Twitter, and I remember that people seemed to spend a lot of time sending faxes.

With the development and widespread use of modern technology, defamation law now has the potential to impact a far greater number of people than even a generation ago, and it is no longer only the media that are likely to be affected. Individuals can now create content with their phone, and social media have fundamentally changed the way in which we communicate with one another.

The 21st century and the technological developments in it require us to respond to the changing nature of our communication. The bill creates a clear and accessible framework that reflects the reality of modern Scotland. It introduces effective remedies for protecting reputation and stronger protections for freedom of expression.

I commend the motion in my name.