Defamation and Malicious Publication (Scotland) Bill

Part of the debate – in the Scottish Parliament at on 2 March 2021.

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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.

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