Justice Committee

Meeting date: Tuesday, January 23, 2018

Official Report 601KB pdf

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Defamation

Agenda item 5 is a briefing on defamation. I refer members to paper 3, which is a note by the clerk, and paper 4, which is a private paper. Before I welcome our witnesses, we will have a declaration of interests that will cover this evidence session and the subsequent one on policing.

My wife is a practising solicitor.

I am a member of the Law Society of England and Wales and the Law Society of Scotland and I am a practising solicitor.

I am registered on the roll of Scottish solicitors.

In relation to the next item, I declare that I am in receipt of a police pension and I am a member of the Retired Police Officers Association.

Thank you. It is my pleasure to welcome Lord Pentland, chairman of the Scottish Law Commission, and Graham McGlashan, project manager and solicitor with the Scottish Law Commission.

I thank the witnesses for their written evidence, which is always very helpful for the committee to receive. Lord Pentland, do you wish to make a short opening statement?

10:15  

It might be helpful if I said just a few words. First, it is a pleasure to be back here and I thank you for the opportunity to come along today and brief the Justice Committee on our recently published report on defamation. Graham McGlashan is the project manager and a solicitor seconded from the Scottish Government legal department. He and I have been the team on this project.

I will keep my opening remarks as brief as I can so that we have the maximum possible time for questions and discussion. I am very happy to try to answer any questions that members might have about the law of defamation, what our proposals entail and the overarching themes that have informed our work. As the committee will know, we have set out the background to the project, the case for law reform and a summary of our main proposals in the written submission that the convener mentioned.

I reiterate that the project was inspired by a number of responses that we had to the public consultation on our ninth programme of law reform. We have just come to the end of that and are about to start the 10th programme. From stakeholders such as the professional legal bodies—the Law Society of Scotland and the Faculty of Advocates—media stakeholders such as BBC Scotland and campaign groups such as the libel reform campaign, there were quite a number of suggestions that we should examine the law of defamation. They were all supportive of a project to examine potential reforms in that area of the law.

One of the main reasons why respondents suggested examining the law of defamation was that major reforms, as members will know, had been made to the law of defamation in England and Wales by the Defamation Act 2013. Those reforms were largely, but not entirely, excluded from Scots law. The message that we got from stakeholders was that the law of defamation was an area of Scots law that was in need of review to establish whether similar reforms or, indeed, different ones might be appropriate here.

As we have explained in the written submission and in the report, much of Scots law in this area is contained in the rather antiquated decisions of the courts and a number of statutory provisions—not very many, as it happens—scattered across the statute book, all from a time that predates the modern era of mass communication and the internet. As the committee will have seen, that has thrown up particular challenges for the law of defamation.

In terms of our approach, most members will be aware of the way in which the Law Commission works in practice. Early on, we established an advisory group consisting of legal practitioners, academics, media representatives and others to assist us in understanding how the current law works in practice and in developing and shaping our ideas for possible reform of the law. It is a very important aspect of the Law Commission’s work that we try to understand and take account of the law in other parts of the world. That is something that we looked at in this project as well. Although our closest comparator was the reforms that were made to the law of England and Wales in 2013, there is also a recent body of work comprising a consultation paper and subsequent report on reform of the law in Northern Ireland.

We published a discussion paper for public consultation in March 2016. More recently, with the assistance of parliamentary counsel, with whom we work closely, we prepared a working draft of a bill, which is appended to our report. We had a second round of public consultation on the bill provisions, which attracted a very high level of interest and response—we had 111 responses, including a significant number from members of the public.

The theme that runs through our ideas—I suggest that this will be the litmus test for the committee when it is assessing what it makes of our proposals and how it wants to go with them in due course, assuming that there is a bill—is striking the right balance between two values that sometimes pull in opposite directions. The first is freedom of expression; the second is protection of reputation. We have made 49 recommendations, and I suggest that the report and draft bill constitute the most substantial proposed reform of defamation law in Scottish legal history. They include proposals to introduce a serious harm threshold, to give greater protection to secondary publishers, to reduce the limitation period for defamation actions from three years to one and to introduce a statutory defence of publication in the public interest.

If they are implemented, the proposals will set out the law in this area in clear and straightforward terms in modern and accessible statute.

Thank you for that comprehensive opening statement.

I thank Lord Pentland for his introduction. I will focus on the latter points and recommendations. The reduction in the time period from three years to one, the serious harm threshold and the single publication rule all seem to shift the balance from pursuer to defender; was that a deliberate move by you and the advisory group?

It is important to look at the package of reforms as a whole. A number of proposals might be seen as pro-claimant or pro-pursuer. For example, the proposals about stronger and more effective powers for the courts and the idea that the courts could be empowered to order the publication of a summary of the court’s judgment might be seen as steps to promote the right to obtain effective vindication when one’s reputation has been damaged.

As I said earlier, we have tried to strike the right balance between two fundamental rights. The serious harm threshold that you mentioned is a key principle of the package of reforms. We feel that it could have important potential effects, not least in making it more difficult for powerful interests to use defamation law as a tactic or weapon to try to silence unwelcome criticism. Therefore, I am not sure that I would agree that the proposals, including those that you have mentioned, are necessarily pro either side. The whole idea is to try to get the balance correct. No doubt when you as parliamentarians come to assess the ideas, you will want to consider whether you are satisfied that they get the balance right.

I apologise for a rather long answer. A challenge of describing this body of work is that it is quite technical on one level.

That answer is helpful. It strikes me that the intent, in some respects, is to reduce the overall quantum of cases that are brought forward but to have a greater degree of certainty about what will happen when cases are brought forward legitimately. Is that a fair point?

That is true. A message to us from a range of publishers, including people who work in new media, was that dealing with a threat of defamation proceedings can be a difficult and intimidating challenge and that such threats can be used as a tactic or weapon to stifle debate and the free flow of information. We are keen to give the courts effective tools to sift out unmeritorious claims at the earliest possible stage. The courts do not really have the power to do that at present, so we would like to move in that direction. It is being done quite successfully in England and Wales under the 2013 act, and we have tried to learn some lessons from that.

Notwithstanding the reassurance that you give about the balance that you have sought to strike, are you confident that you have been able, either within the advisory group or through the process of consultation, to take the views of those who routinely represent pursuers?

Absolutely. We had a number of submissions from those who habitually act for claimants. We involved them in the advisory group and they attended some seminars that we arranged. I am confident that we have taken account of those views. We have not always agreed with those representations, but it is our job to come down and make an assessment in the end of where we think the right direction for the law to go is.

Given those areas of disagreement, it might be impossible to satisfy the demands of everybody in such a process. What are the concerns of those who represent pursuers about the balance that you have sought to strike?

Two such concerns spring to mind. One is the suggestion that the serious harm threshold will constitute an additional barrier to bringing defamation claims and make it more difficult for people to do so. That has not been the experience in England and Wales. I do not think that it can be said that any serious claim has not been allowed to be pursued. The English courts have been very keen to emphasise that a pragmatic approach should be taken towards this new test and that it should not be allowed to develop into an elaborate, expensive procedure at an early stage in an action. Usually it ought to be quite simple and straightforward for a court to assess, just by looking at the statement that is complained of, whether it is likely to have caused serious harm. Neither the team nor I were persuaded that that representation was sound. At the level of principle, we find it difficult to see why it would be right for a claim to be allowed to be pursued where serious harm to reputation had not been caused.

I know that other colleagues want to touch on that, so I will leave it at that question.

I will ask about that very point. Obviously, the introduction of the threshold of serious harm is one of the key proposals. Can you bring it to life for us? It is a phrase that is open to interpretation and is potentially subjective. What is meant by it and how do you propose to codify it in legislation?

I suppose that each case will depend on its own particular facts. The court will have to decide, on the basis of looking at the statement first, whether it is likely to have caused serious harm to the claimant’s reputation. For example, if it is an allegation of serious crime, child sexual abuse or paedophilia, or something of that nature, I do not think that any court would have difficulty in quickly coming to the view that that is likely to have caused, and to continue to cause, serious harm. Off the top of my head, I would say that a minor allegation about misconduct on a small scale in a private relationship might not be thought to give rise to serious harm.

To clarify what you just said, it sounds as though, when you talk about serious harm, you are talking about serious harm to an individual’s interactions with other people, whether from a work or an interpersonal standpoint. Is that correct? Secondly, as a supplementary, to what extent could serious harm refer to one’s personal demeanour, wellbeing or indeed mental health? Obviously, that would not have any impact on interactions—or, at least, not directly. Would that sort of thing be taken into account?

10:30  

The key thing to bear in mind is that defamation law is concerned with protecting and providing redress for unjustified damage to reputation. What the courts will look at, therefore, is whether the allegation that is complained of—the statement that is the subject of proceedings—is likely to cause serious harm to the reputation to the person who is doing the complaining.

Another factor that might come into this is where very little damage to reputation can be shown to have been caused in the jurisdiction where the proceedings are brought. That takes us into the realm of so-called libel tourism, which was one of the factors that gave rise to the 2013 act south of the border. Proceedings were being brought by wealthy and powerful interests in the courts of England and Wales on the back of minimal publication or perhaps a relatively low number of downloads in that jurisdiction. Before the statutory reform was put in place, the courts in England and Wales had been developing a common-law abuse of process jurisdiction to try to give greater scope for weeding out such claims at any early stage. To some extent, therefore, the statutory reform in the 2013 act and what we are now proposing build on that work. However, I do not think that it is at all likely that the courts will strike out anything that looks like a serious, well-founded, arguable claim.

With regard to the time limits that you are proposing, it strikes me that, in this day and age, the date of publication can sometimes be in doubt, and extensive republication is going on in a number of ways, whether through copying and pasting, retweeting or whatever. How will the one-year cut-off be interpreted? Moreover, how big is this shift? My understanding is that, currently, the time starts from when the individual first becomes aware of a statement being made. Can you clarify the extent to which we are moving away from that and the extent to which you have looked at republication and other such issues?

What we are proposing is that the clock should start to tick when a person first publishes a statement to the public or a section of the public. As for republication, we heard a lot of representations from consultees to the effect that, whatever the limitation period is, the clock should not be reset every time there is a further publication, often by way of a fresh download perhaps many years into the future.

This is quite a clear example of defamation law having to rely on concepts that were developed perhaps more than 100 years ago, when publication meant something far more serious, substantial and difficult to achieve than it does now. Indeed, it is for that reason that the project came to us in the first place and that we decided to take it up. What we at the commission are interested in is those areas of the law that are perhaps not of great political sensitivity but where, for whatever reason, society has moved ahead of the law and the law needs to catch up.

That throws up the issue that if something is published in a relatively obscure place on the internet, such as a website that does not have much traffic and is not being observed, and is republished many years later somewhere that has huge traffic, would that subsequent publication not constitute defamation? Is such a situation not potentially quite unfair on the individual, who has had no reason to be aware of the initial publication?

If I may say so, that is an extremely valid point. There could be minimal publication and then, many years later, mass publication—say, on a celebrity’s Twitter feed or something of that nature. That would be addressed by application to the court’s discretionary power to override the time limit where the circumstances of the particular case justify that being done. That is the case across the board in limitation issues: the courts retain a discretionary jurisdiction to disapply the strict application of a limitation period where the particular circumstances of the case justify that in order for justice to be done. Something being published on a remote, obscure website and then republished years later—say, by a national newspaper—could be quite a strong set of circumstances for the one-year limit to be disapplied. However, it all depends on the circumstances of the individual case, of course.

Ben Macpherson has a follow-up question.

Daniel Johnson asked for elaboration on the definition of serious harm. In a similar vein, could you elaborate on your proposal on the other side of the argument, which is the for introduction of a statutory defence of publication on a matter of public interest and the test for that?

What we are doing there is putting on to the face of the statute book a common-law principle that has been developed by the courts, over the past 20 years or so, for the purpose of protecting responsible journalism in the public interest even where it might not be possible for the statement to be defended on the ground of truth. It was developed by the courts in the leading case of Reynolds v Times Newspapers and has become known as the Reynolds defence. Albert Reynolds, the former Taoiseach of the Republic of Ireland, brought defamation proceedings against The Sunday Times that went to the House of Lords, where the case ultimately failed.

The House of Lords developed the doctrine, which has now been recognised in most jurisdictions across the world, to protect responsible journalism—particularly investigative journalism—where it can be shown that the publishers have acted responsibly, have conducted an open-minded and fair investigation and have given the subject of the report the opportunity to answer it. Even though it might not be possible, for whatever reason, for the publishers to prove the truth of the allegations by evidence, nonetheless the defence of publication in the public interest can apply. That is seen by the media as being particularly important. As yet, the defence has not been explicitly recognised in any case in the Scottish courts, but the understanding in practice among those who work in the field is that it does apply. We propose that the question should be put beyond doubt by introducing that provision. I hope that that explains it.

Thank you.

That was certainly of interest. Perhaps no one is willing to dip their toe in the water just yet, but if we had statutory provision it would be absolutely clear that there was a public interest defence. There is an issue there that I know is of concern to investigative journalists.

While you raise that point, convener, and in case I forget to mention it, when it comes to an area of the law such as this, which is important not just to lawyers and newspapers but to the general public, there is a lot to be said for putting the key principles into modern language in an accessible statute. I am not suggesting that everybody will rush off and read the defamation and malicious publication (Scotland) act, if this is enacted. However, we heard, for example, that representatives of the new media would like to be able to go quickly to the statute law database and find out what the law is, in a provision that everybody can understand, when they receive a letter of complaint that is written—as they always are—in extremely strong and rather intimidating terms by the claimant’s lawyers.

You said that what attracted the Law Commission to the matter was that social media and other forms of communication have moved on quite substantially, but that the law on defamation has not moved with them. The bill does not cover those who only provide equipment. Under the notice and take-down procedure, for which the Defamation Act 2013 makes provision, if a complaint is received about a post, a website operator must identify the person making the post—if it is not possible for the complainer to do so—and remove it. That also happens in the USA. The bill proposes a different course of action. What is that course of action and why has it been taken?

Yes. This is a very difficult area. We have discovered that pretty much every legal system across the world has been wrestling with how to deal with the question of secondary publication or publication by internet intermediaries—people who, on one view, are simply providing a platform or a means of access to information that is already in the public domain. Ideally, I suggest that those issues should be addressed on a supranational level, as they are to some extent by existing European Union rules—although those have been the subject of quite a bit of criticism. The issues should at least be addressed on a UK-wide basis, because the internet obviously does not recognise national borders and information flows freely from one jurisdiction to another.

What we have proposed is essentially an interim solution, pending what we hope will be that type of wider review. It tries to cut through and recognise a distinction between those who are originators of information and those who are not, so that in principle those who fall into the latter category, whom we describe as secondary publishers, would not be liable in defamation for republication. We have learned that what most complainers want is for offensive material to be removed from the web quickly. We propose that the focus should be on that, conferring on the courts stronger and more effective powers to order take-down or removal at an early stage of proceedings, where appropriate. That, in the proverbial nutshell, is where we are coming from.

The difficulty with that is that it involves court procedure, whereas the notice and take-down procedure, as it is outlined in the 2013 act, requires someone just to do that and not to have to go to court with all the expense and delay that that may involve.

10:45  

That is true. We looked closely at the model, which the convener described, that is provided for in the 2013 act. We took evidence from people in England and Wales who have experience of it, and we got the rather strong message that that system has not worked. It is too elaborate and bureaucratic, and it is largely ignored by the internet companies. They do not like being put into the position of censor and they say that that has a chilling effect on freedom of expression, because an intermediary who has not originated the statement will very often not be in a position to defend or justify its accuracy as they will not have access to the information on which it was based.

We are trying to find a way to cut through those problems, and that is the scheme that we have come up with. Ultimately, it might involve court proceedings in some cases. However, when it becomes known that the courts have more effective powers that can be exercised right at the start of an action, that might have an influence over how publishers react in practice to complaints.

You mentioned that the scheme should perhaps not just be Scotland-wide, that the rest of the UK should look at having the same kind of law and, more importantly, that it should be on a supranational basis. That resonated when it was talked about by members of the Commonwealth Parliamentary Association. The feeling was expressed that if there were more politicians and legislators looking at having the same solution, that would probably balance the kind of influence that internet providers have in being able to just ignore the issue.

I have a couple of brief thoughts on that. It would be good if Scotland could take the lead; our proposals on that area, in particular, have already attracted interest. Different solutions have been devised in different jurisdictions. There is quite a lot to be said for our solution because of its simplicity and straightforwardness, and because we are relying on established concepts of authorship, editing and so on.

The international dimension is important, but I do not necessarily feel that that should hold this Parliament back from trying to devise an appropriate solution that will work in this jurisdiction, even if it is seen as an interim solution that will be built on in the future. That is my thinking on the international dimension.

That is very helpful.

Good morning. I want to ask about how the bill would prohibit public authorities, such as universities and housing associations, from suing. Would that not adversely affect them in protecting their reputation? What was your thinking behind that?

It is a proposal that we developed following an initial consultation exercise. Some stakeholders, such as the libel reform campaign, represented to us that we should do that and we have decided to go with it. Essentially, we are putting on to the statute book the existing law. Under the present law and the Derbyshire principle—after the case in which the principle was developed by the House of Lords—public authorities are not entitled to sue for defamation. The justification is that it should be for public authorities to defend their reputation through political means or in the public sphere, rather than through the courts.

Has the Derbyshire principle been upheld so far? Has there been no deviation from that?

Yes. That is well settled.

So this is just putting it into a legal framework?

Yes. Again, we got the message that transparency, clarity and accessibility of the legal rules were important.

I understand the rationale behind the exclusion of public authorities. I suppose that universities would argue that they are entities that are autonomous of Government. There has been quite a lively debate about that in the Parliament over recent years. Reputational damage for universities would be seen as a serious risk, particularly for those that compete in the international marketplace for students and staff. Is a distinction to be made between universities and public authorities in a more traditional sense?

Whether a particular organisation is a public authority is not a straightforward question. Essentially, it involves consideration of whether its functions include functions of a public nature. I would have to give some thought to whether a university constitutes a public authority for the purposes of the provision. I cannot remember whether we looked at that specifically, although we must have done so at some stage.

One of the get-outs that we have written into the draft bill relates to

“a non-natural person which ... is a charity or has purposes consisting only of one or more charitable purposes”.

As Lord Pentland has said, a tricky balance is involved in deciding whether a body is defined is a public body. What we have come up with may not be perfect, but we are certainly open to ideas about how to draw the line. It is quite a hard line to draw.

It is. I recall that we got quite a lot of feedback on that at the bill’s consultation stage. Essentially, we have taken the definition of a public authority from human rights case law and human rights legislation.

I am not sure that I would like to express a conclusive view now on the position of universities. Perhaps I could think about that. We would be happy to come back to the committee on it.

I have a final question, Lord Pentland. In your written submission, you said:

“The draft Bill attached to our Report constitutes the most substantial proposed reform of defamation law in Scottish legal history.”

You also said that in your opening statement. You will be aware that the Delegated Powers and Law Reform Committee’s role has been extended, so that it can look at certain bills. Given that the proposals raise public interest issues and all the issues that you have covered relating to investigative journalism and the internet, would it be more appropriate for the Delegated Powers and Law Reform Committee or the Justice Committee to look at them?

I am not sure that it is necessarily for me as the chairman of the Scottish Law Commission to express a view on parliamentary procedure. I suppose that that is a matter for the Parliament and the Parliamentary Bureau.

Yes, it most certainly is.

We have had a number of measures with the Delegated Powers and Law Reform Committee recently, which have been successful. My recollection is that the criteria for the admission of bills to that procedure are quite narrow, and there has been discussion about whether they should be widened. They include the Parliamentary Bureau being satisfied that there is wide consensus among key stakeholders on the need for reform and the recommended approach. Obviously, some flexibility is inherent in that.

In view of the interest that the draft bill has generated and the strong views of stakeholders, it might perhaps be thought that it is more suitable for the Justice Committee to consider it but, as I said, it is not really for me to say. We are happy to support the draft bill wherever it goes.

There are other criteria, such as the bill not relating directly to criminal law reform, not having significant financial implications and—this one is a bit dodgy—not having significant European convention on human rights implications.

That is a good point. There is the human rights aspect, as well. As I said, wherever the bill ends up—I very much hope that it will end up in some committee—we will be more than happy to continue to support it.

Thank you very much. That concludes our evidence session. Obviously, the bill is very important. I thank the Scottish Law Commission for its work and for appearing before the committee.

I suspend the meeting to allow a change of witnesses and a brief comfort break.

10:54 Meeting suspended.  

11:10 On resuming—