Justice Committee

Meeting date: Tuesday, March 17, 2020

Official Report 540KB pdf

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Defamation and Malicious Publication (Scotland) Bill

The next agenda item is an evidence session on the newly introduced Defamation and Malicious Publication (Scotland) Bill. It is an opportunity for us to find out more about the purpose of the bill, which we will scrutinise over the coming weeks. From the Scottish Government’s bill team, I welcome Jill Clark, head of the private law unit, and Jo-anne Tinto, a solicitor in the legal directorate.

I refer members to paper 4, which is a paper by the clerk, and paper 5, which is a private paper. I invite Jill or Jo-anne to give us an overview of the bill.

The committee is probably aware of the background to the bill, because you have taken evidence from the Scottish Law Commission. The bill emanates from a Scottish Law Commission report that was published in 2017. That was in response to the fact that, following the commission’s call for evidence on its ninth programme of law reform, quite a few people suggested that defamation is an area of law that is ripe for reform.

The rationale for reform is that, although defamation litigation has not been particularly common in Scotland in recent years, societal changes such as the increased use of internet communication mean that there is more scope than ever for speedy and potentially unfair damage to reputation.

The commission’s 2017 report proposes changes to the law that are generally in line with changes that were made in England and Wales following the commencement of the Defamation Act 2013. One proposal was to introduce a requirement that a right to bring defamation proceedings accrues only if the publication of a statement is to a third party and the publication has caused serious harm. The report also proposed putting on a statutory footing the principle that was laid down by the case of Derbyshire County Council v Times Newspapers Ltd that a public authority has no right at common law to bring proceedings for defamation. The report also proposed putting the common-law defences of veritas and fair statement on a statutory footing; replacing the common law of verbal injury with three statutory provisions on malicious publication; and changing the three-year limitation period to a one-year period.

The Scottish Government carried out its own consultation following the publication of the 2017 report. As a result of that consultation, three additional issues have been included in the bill: a definition of defamation; tightening up on the narrowing of editorial activity; and a provision to allow parties extra time to engage in alternative dispute resolution within the new limitation period.

Thank you—that is helpful. The committee was keen to have legislation on the issue. We felt that there was a need for that to deal with issues relating to investigative journalism and online publication. For a number of reasons, we felt that Scotland was lagging behind and that it was time to look at the issue, so we are pleased to see the bill.

How was it determined that the limitation period in which action can be brought will move to one year from three years?

At the moment, the limitation period is three years and the court has the discretion to extend that if there are good reasons for doing so.

The recommendation to move to one year was in the Scottish Law Commission’s report. It was based on the fact that three years is quite a long time for a defamation claim to manifest itself because if a person has been defamed or harmed by that defamation, that would probably come to light fairly quickly. Moving to one year was more consistent with other jurisdictions. We are following the Scottish Law Commission’s recommendation.

The bill aims to introduce new remedies to reflect the fact that in the past there have perhaps not been as many remedies available in Scotland as there have been in England. Can you say a bit more about what is intended?

Currently, in Scots law, the usual remedy is damages. You can get compensation if you have been defamed and, to an extent, that is it. The bill brings Scots law more into line with other jurisdictions and increases the number of remedies that are available. The bill allows an individual to order the defender to publish a summary of the court’s judgment. It allows a settlement statement to be read out in open court and it enables the court to order the operator of a website to remove a defamatory statement and an author, editor or publisher to stop distributing it. Those are all remedies that some people might find more useful than money because they will make it clear that the defamatory statement was incorrect—it sorts that out.

In addition, the bill contains another remedy: the offer to make amends. It restates the law about the offer to make amends, which is something that can happen before you get to legal proceedings. Somebody could hold their hands up and say, “Okay, I should not have written what I wrote about you, so let me say sorry and make it better with a statement.” That would take the issue out of the legal forum. The bill strengthens that remedy by making it clear that an offer to make amends is deemed to have been rejected if it is not accepted within a reasonable period of time. You cannot just leave the issue hanging; you have to get on with it and conclude the matter. The bill improves the range of remedies that are available.

I have a couple of points to raise. The costs involved can be prohibitive for many people who want to take action. Defamation in the internet age is a huge issue. If someone felt that a post that had been put up about them was defamatory, it would be very costly for them to pursue that. It might have been helpful to introduce a take-down procedure as a way of enabling someone to pursue the issue and have the statement removed, or at least to require the poster to provide their contact details or agree to the post being taken down, without huge costs necessarily being involved.

As I understand it, the bill does not do that. It would be helpful to hear a little about why that is. I know that a UK-wide review is coming, but there is no timeframe for that. It seems that the bill provides an opportunity to strengthen the law considerably more than is being proposed. What is the thinking here?

We have followed the Scottish Law Commission’s reasoning and it did not include a take-down procedure in its report either. We have not replicated the take-down procedure because it has the potential to contribute to the removal of legitimate postings. In our view, that would create an incentive for internet intermediaries to stop requiring personal details when users are registered. We think that that is an undesirable outcome, which is not proportionate or balanced.

We understand that the take-down procedure is not used very much and is not very effective down south. There are avenues for people to pursue someone who defames them on the internet and in print. We did not think that the procedure was a proportionate response and we did not have any evidence that it was working. That is why it was not included in the bill.

You said that there are other avenues but, as I said earlier, they are costly to pursue. If someone does not have the financial means—and everything else that goes with pursuing a defamation case—other avenues need to be open for that person to pursue someone. Does the bill provide that?

There are other remedies—for example, there is the making of amends. The person could contact someone who has said something about them and say that they do not agree with it, and it could be settled out of court. The situation does not always have to go to court. We did not think that the UK bill sorted the problem that it was meant to sort, and that is why we have not replicated it.

Do you have any figures for England? Is Wales in the same position as England? Do you know how many cases have been pursued?

No.

Do they have a take-down procedure?

Yes.

It would be helpful to have those figures.

We can see whether we can find some.

That would be very helpful.

The main thrust of the bill is to balance the right to reputation and the right to freedom of expression. Using the take-down notification service would obviously be a hindrance to freedom of expression and would not necessarily be done in an open forum. It means that an internet service provider could be asked, without open discussion, to take down somebody’s freedom of expression when perhaps it is legitimate. An ISP would have to make that decision. If someone says, “I have been defamed,” would that be the correct and appropriate way to do that? The bill tries to go towards the freedom of expression side of things. To reiterate what Jill Clark said, the take-down notice is used very rarely because the process, which involves contacting an ISP to get them to take something down, is quite cumbersome.

Do you not see that the flipside of that is that someone could claim the right to freedom of expression after saying something untruthful and defamatory about someone else, in the full knowledge that the cost of their doing something about it would be prohibitive? So, they will keep doing it—surely that cannot be right.

That is part of the balancing process; it is quite a difficult balance.

That is the position now.

Yes—that is why I asked whether a take-down procedure would help to at least give remedy to someone who is not in a financial position to go to court. I understand about freedom of expression, but if someone is saying something about someone else that is blatantly defamatory, I assume that we agree that freedom of speech does not extend to someone saying whatever they want about someone because they know that there will be no consequences. The take-down procedure would at least provide a mechanism to someone who does not have the financial means to go to court. We will have to pursue that, but it would be helpful if you could provide some of the information from England and Wales.

One of the remedies is that the court can be asked to get someone to stop circulating something or to remove it via that process.

But the person would have to pay for that.

It would not be like going to a court case; it would mean applying to the court for an interdict.

But they would have to employ a lawyer to do that.

Probably, yes. We take your point and will try to find out more about that.

I very much agree with the points that Shona Robison made and I want to pursue the same issue.

Let me tackle the question from a slightly different perspective. We have all seen the growth of the internet age and social media; although it is a fantastic platform for information and the exchange of opinions, one of the downsides is the extension of the ability for people to make defamatory statements without any proper recourse being available. We are seeing an extension of the platform being used for defamatory statements, and you made the argument about the requirement for a balance between freedom of expression and people not making defamatory statements. You seem to be saying that the bill is more in favour of freedom of expression. My concern is that the evidence shows that the internet is being used to allow people to make defamatory statements without proper recourse and the bill needs to contain a proper mechanism that will restrict those defamatory statements.

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The provisions in the bill would apply equally to things that are said on a website or the internet as they would to things that are said in print. The same balances are there in the bill. Other avenues might also be open to people. You might not be being defamed on a website but if somebody is targeting you with hate correspondence or that kind of thing, there are other legal avenues for addressing that.

Has any assessment been made of the number of cases or potential cases on the internet? How will what is being proposed reduce the number of incidents?

There is very little data on defamation cases. We know some of the numbers. The Scottish Parliament information centre briefing includes some numbers of cases that get to court but we do not know about the cases that never get to court or which have gone off-grid. Very little data is available.

The real issue is the number of cases that do not get to court. Even a cursory glance shows that this is a major issue and I think that the committee will return to it.

James Kelly largely covered the point that I was going to raise. There are remedies short of going to court to get individuals to remove defamatory statements—I speak from personal experience. However, they are costly.

Is there any background on the availability of appropriate legal advice? Not every lawyer is prepared to provide the appropriate advice. Internet law seems to be viewed as a bit of a specialism.

It is a specialism. Because we do not have a lot of cases, it has been difficult to build up availability in Scotland. However, the committee heard from some of the specialist defamation solicitors when they came to your round-table discussion. They are out there. Some of them implied that they will give people advice quite freely, at least initially, so it is there. The Law Society can point people in the direction of solicitors who have the necessary expertise.

The question of libel tourism has also been referred to. Is the bill likely to have any implications for that?

I do not think that there is any libel tourism in Scotland. It is not seen as an attractive jurisdiction in which to take a defamation case. There was an issue in England and Wales and the Defamation Act 2013 was an attempt to address that.

If we go in line with what is more or less happening in England and Wales and make the other changes, I do not expect that to open us up to libel tourism. We are certainly not aware that there is any at the moment.

My question is almost the mirror image of that point about libel tourism, and I am just asking it out of interest. If a Scot defames a Scot online and the defence that it is on a server somewhere in South America is not available, I presume that some thought has been given to how the law can be enforced when people use that kind of spurious excuse.

At the moment, a newspaper could be printed in England but purchased in Scotland, so if your defamation happens here, you can raise your action here. Jo-anne Tinto might be better placed to say something about that.

That feeds into what we were saying about the take-down notices. Even if there is a judgment here in Scotland, getting a server in South America to take down that material will be difficult. However, we are not looking to go beyond the borders here. People can raise defamation cases here not only if they live here and the defamation has occurred here but if they live in Europe, for example. The difficulty is that we are living in an international world with the internet, which works across borders, and it makes things a bit more complicated when we are trying to legislate for something that cuts across that.

As there are no more comments or questions for the bill team, I thank you both for attending. We look forward to dealing with the bill and scrutinising it in due course.

That concludes the public part of today’s meeting. Our next meeting will be on Tuesday 24 March, when we will continue our consideration of the Defamation and Malicious Publication (Scotland) Bill. We move into private session.

11:06 Meeting continued in private until 11:47.