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.