Meeting of the Parliament (Hybrid)

Meeting date: Thursday, November 5, 2020

Official Report 921KB pdf

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Defamation and Malicious Publication (Scotland) Bill: Stage 1

The next item of business is a stage 1 debate on motion S5M-23243, in the name of Ash Denham, on the Defamation and Malicious Publication (Scotland) Bill. I ask members who wish to speak in the debate to press their request-to-speak buttons, and I call Ash Denham to speak to and move the motion.

15:28  

It is now just over 11 months since the Defamation and Malicious Publication (Scotland) Bill was introduced to Parliament. The circumstances that were forced on us due to Covid-19 greatly impacted its normal legislative process. I thank the Justice Committee and its clerks for their patient and hard work, which has allowed the bill to progress. I am pleased to note that the committee recommends that the bill’s general principles be agreed to.

The bill is different from those that the Justice Committee usually considers, as it is largely the product of the Scottish Law Commission, which considered possible reforms to the Scots law of defamation. The bill takes forward every substantive recommendation that was made, and I thank the Scottish Law Commission for the work that it has put into this reform project.

Given the rights that are affected by the bill, I want to make sure that, as far as possible, the provisions are something that we, as a Parliament, can all agree on.

The law of defamation has to strike the right balance between two values that sometimes pull in opposite directions: freedom of expression and protection of reputation. Both are fundamental human rights, and both are vitally important in modern democracy. The widespread use of social media means that we are all capable of creating content that can be easily shared and viewed. The bill aims to make sure that our law of defamation is fit for 21st century Scotland, with a clear and accessible framework that balances those two rights. It brings defamation law up to date, and simplifies it in some key areas by replacing and restating the existing law.

I will speak about some of the bill’s key measures, beginning with the statutory definition of a “defamatory statement”. Other provisions in the bill set out what defamation is not, so it is important that we define what a defamatory statement is. The common-law definition that is most often referred to by the courts was set out in 1936, so this is a chance for this legislature to consider and debate the definition.

The bill takes the common-law definition and expresses it in modern language that is already familiar to the courts. The committee has heard evidence from those who are content, but also from some who have concerns. It is normal for our courts to consider previous case law as a matter of course, and I would expect them to do that, where appropriate, when interpreting the new statutory definition. I will make that view clear in the explanatory notes to the bill. I believe that that is the most appropriate way to signal to the courts and users of the legislation that the statutory definition should be interpreted in line with the common-law definition that we have today, and, importantly, that the definition will evolve as and when case law develops. I hope that that will allay some of the concerns in that regard.

The threshold test of serious harm that is introduced by the bill is another important provision. When a court finds a statement to have been defamatory, the law presumes that damage has been done. I do not believe that that approach appropriately balances protection of reputation and freedom of expression. I am clear that, if a person says that their reputation has been unfairly damaged by a defamatory statement, they should have to prove, at least to a minimum standard, how it has been damaged.

Some who are opposed to the test have referred to it as

“an English solution to an English problem.”—[Official Report, Justice Committee, 1 September 2020; c 12.]

I disagree strongly with that viewpoint. The Scottish Law Commission took a broad look at the Scots law of defamation and recommended that the threshold test of serious harm be introduced. I do not believe that the commission would have made the recommendation if it did not think that it was appropriate. I welcome the committee’s view that the test should be retained.

In England and Wales, public bodies are prohibited from raising a defamation action, but there has been no decided case in Scotland that affirms the so-called Derbyshire principle. The bill codifies the principle, and I believe that it is of the highest public importance that a democratically elected governmental body should be open to uninhibited public criticism. I have tried to come up with a sensible and flexible definition for the Derbyshire principle that, crucially, does not expand the common law. The drafting borrows from section 6 of the Human Rights Act 1998. The issue has been discussed by the courts for more than 20 years, and the bill will give practitioners a good base from which to advise their clients.

I have listened to a range of views on the matter and to the committee’s recommendation, and I am willing to work with members to ensure that we get a provision that codifies the Derbyshire principle as it exists at the moment—one that is clear, but also flexible.

The bill restricts liability for a defamatory statement to those who are primarily responsible for its publication. Currently, secondary publishers, such as library—

On the previous point about liability with regard to public bodies, what is the minister’s thinking on private companies that provide services to a public body and whether the principle should be extended to them?

That is exactly what I mean by the use of the word “flexible”. Public-private provision has clearly moved on quite a lot in the past 30 years, so it is important that we retain flexibility to allow us to settle some hard cases that might present themselves in the future.

Currently, secondary publishers, such as a bookseller or a website operator, can be held liable for content that they are not actively responsible for. Private companies face a choice: remove potentially legitimate content, or be held liable for damages. In my view, it should be for the court to decide whether a statement is defamatory, not private companies.

I welcome the committee’s view that secondary publishers should be excluded from liability in the circumstances that are outlined in the bill. I know that committee members are concerned about online defamation. I have set out in my response to the committee’s report the process and potential costs of removing such material, which I hope eases any concern.

The bill brings together the main defences to a defamation action, reforming existing statute and, in the case of the public interest defence, codifying the common law. The committee recommends that the court should have the ability to refer to previous case law when interpreting those statutory defences. I will ensure that the explanatory notes clearly state our expectation that the court, when interpreting the new statutory defences, will take into account case law on the common-law defences, where appropriate.

The bill largely restates the offer of amends procedure, which is a useful process by which those who admit that they have defamed someone can avoid legal proceedings. As part of the offer of amends, an offer of compensation is made, together with an apology and correction. Where the amount of compensation cannot be agreed between the parties, the court is asked to decide that instead. The committee has heard conflicting views on whether the bill still allows an offer of compensation to be discounted by the court. In light of that, I am pleased to commit to lodging an amendment at stage 2 to clarify the position.

The bill reforms the law on malicious publication. In order to succeed, the pursuer must show that the statement complained of was made with malice. The definition in the bill reflects the common law on similar types of action, but the committee has concerns. I am happy to lodge an amendment at stage 2 to reflect the committee’s recommendation.

Two other matters regarding malicious publication have also been raised: available defences and the liability of secondary publishers. In order to make the issues clear, I will amend the explanatory notes to state my view that a malicious publication action cannot be raised against a secondary publisher, and I will set out clearly that the defences of truth, absolute privilege and honest opinion are intended to apply.

I will conclude on the matter of limitation. A principal aim of limitation is that litigation should proceed promptly. I believe that, where someone suffers damage to their reputation, they are usually aware of that at an early stage. That is why I agree with the commission that one year is sufficient to assess any damage and prepare for litigation. The court has the discretion to allow litigation to proceed outwith the one-year period, where it considers that it is equitable to do so. I suggest that a statement that comes to the attention of an individual after one year but which causes serious harm would likely be allowed to proceed by the court.

The bill also makes an important allowance for those occasions when someone publishes a statement that has previously been published and there is a material difference between each. The flexible approach that we have taken is capable of taking into account a material difference between each subsequent publication.

I move,

That the Parliament agrees to the general principles of the Defamation and Malicious Publication (Scotland) Bill.

We now go to Adam Tomkins, speaking on behalf of the Justice Committee. You have up to seven minutes, Mr Tomkins.

15:38  

In its report on the Defamation and Malicious Publication (Scotland) Bill, published last month, the Justice Committee reached the unanimous conclusion that the Parliament should support the bill’s general principles. I thank all the witnesses who gave evidence to the committee, the clerks and Parliament officials who give so much help to the committee on a daily basis and all the committee members for the thoughtful and measured way in which they approached the bill.

As we have just heard from the minister, the bill originates in the work of the Scottish Law Commission, and it seeks to put the Scots law of defamation on a statutory footing fit for the 21st century.

In doing so, it must address and balance two competing rights: on the one hand, freedom of expression; on the other, the right to protect one’s reputation, which some see as an aspect of the right to privacy. Neither of those rights should be allowed lightly to give way to the other, and any law of defamation should strive to get the balance between them right.

The committee considers that, taken as a whole, the bill achieves that aim. I do not think that there should be any doubt that it does so by shifting the balance—albeit perhaps only subtly—that we have in the current law. The bill shifts the balance in favour of freedom of speech. It says that, for example, for a defamation action to succeed, a pursuer will have to show not merely harm, but serious harm to their reputation. It also says that defamation actions will have to be commenced within one year, rather than within the current three-year period of the harm occurring.

Some witnesses appearing before the Justice Committee were concerned about the shift in favour of greater freedom of speech, but most welcomed it. In particular, and unsurprisingly, media organisations welcomed it strongly. They told us that that would address 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 who have—to use a phrase that was memorably cited in evidence—

“thin skins and thick wallets”—[Official Report, Justice Committee, 25 August 2020; c 4.]

Raising the threshold for defamation actions from harm to serious harm is probably the most contentious change that the bill makes. In doing so, the bill will bring Scots law into line with the position already in force in England and Wales. Some of the committee’s witnesses, as the minister referred to, wondered whether that is

“an English solution to an English problem.”—[Official Report, Justice Committee, 1 September 2020; c 12.]

Others strongly disagreed, including Andrew Tickell, who was representing Scottish PEN, Nick McGowan-Lowe of the National Union of Journalists, and Peter Geoghegan.

In her response to the committee’s report—for which I thank her—the minister backs the new higher test of serious harm, and cites the work of the Scottish Law Commission in doing so. Speaking personally, I think that she is right to do so. Indeed, the committee’s view is that, on balance, it favoured retention of the serious harm test in the bill.

I will move on to two aspects of the bill on which the committee considers that further work is required at stage 2 to ensure that the legislation is properly drafted to meet its objectives. The first aspect is the Derbyshire principle, which is named after an English case decided by the House of Lords in the early 1990s. As the minister said, that is the principle that local authorities may not sue for defamation. The place where an elected official seeks to protect their reputation is at the ballot box, not in the defamation courts.

The bill seeks to put the principle, which is a judge-made rule of the common law, on a statutory footing. The committee welcomes that, but it is concerned about the scope of the principle as drafted. In particular, the question is: should private bodies that are carrying out functions of a public nature also be barred, as local authorities are, from suing for defamation? If so, what about universities or housing associations?

In her response to the committee, the minister recorded that she is opposed to extending the Derbyshire principle to all private bodies carrying out public functions. That is a commendably clear steer, but I suspect that the matter will be revisited when the committee considers amendments to the bill at stage 2.

The second aspect of concern highlighted by the committee relates to malicious publication. That is a separate delict from defamation, albeit that the two are closely related—and, of course, the bill deals with them both. Because it is a separate delict, it has its own ingredients, which overlap with but are not identical to those of defamation. On the one hand, for example, harm has to be caused, but not serious harm; on the other hand, to sue for malicious publication, the pursuer must show that they have suffered or are likely to suffer financial loss, whereas that is not always a requirement in defamation cases.

There is one striking omission in how the bill deals with malicious publication: it says nothing about defences. One of the most attractive aspects of the bill is the way it modernises defences in the law of defamation in sections 5 to 7. However, in stark contrast, the bill is silent on defences in the law of malicious publication. That needs to be rectified.

I raise the issue now, because the minister seems to have overlooked the committee’s view on the matter in her response to our report. She referred to it in her remarks a few moments ago, but I gently say to her that the matter needs to be dealt with in the bill and not in the explanatory notes accompanying it. However, I say, too, that, between now and stage 2, if the minister would find it helpful I would be happy to work with her and her officials on both the scope of the Derbyshire principle and defences to malicious publication.

Throughout the committee’s deliberations it was anxious that placing the modern law of defamation on a statutory footing should aid the accessibility of the law, but should in no sense freeze its on-going development in the case law of the courts. The single most important and liberalising reform to the law of defamation in recent years—the creation of the new defence of publication in the public interest in the Reynolds case—came in case law, not statute.

The committee welcomes the bill and supports its general principles. It does so in the hope and expectation that it will assist the courts as the law of defamation and malicious publication continues to be developed by them, even after the bill is enacted.

15:45  

I remind members that I am a practising solicitor and hold practising certificates from both the Law Society of Scotland and the Law Society of England and Wales.

It seems that, at the moment, large parts of my week are set aside for reading, questioning and commenting on matters of freedom of speech—and rightly so, as it is one of our most important fundamental rights. In these times, when technological developments and social media have allowed pretty much anyone to be a creator or a publisher, it is imperative both that free speech is protected and that any threats to it caused by laws are challenged.

However, it is also key that individual reputation and the right to privacy should be protected. The bill seeks to strike a balance between those two rights. The Scottish Conservatives consider that the principles of the Defamation and Malicious Publication (Scotland) Bill broadly achieve that balance, and we will vote in favour of it at decision time tonight.

Several areas will merit further consideration as the bill progresses. Adam Tomkins, the committee’s convener, has just encapsulated my thoughts on the Derbyshire principle in his comments, so I will confine my remarks to three other areas: the serious harm test, malicious publication, and a brief comment on limitation.

If the bill is passed, the right to bring defamation proceedings in respect of a defamatory statement will accrue only if publication has caused or is likely to cause “serious harm” to the subject’s reputation. According to the bill’s policy memorandum, which refers to the Scottish Law Commission’s work on the subject, that test is required because of the

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

I find that interesting, because, if there is a lack of authority, one wonders whether the Law Society of Scotland has a point when it says that the existence of such an extra hurdle could “deter legitimate claims”, leading to even less such authority developing.

Although ensuring the ability to dispose of trivial claims feels right to me, the Faculty of Advocates has suggested that

“There is no reason to think that the Scottish courts have”

hitherto

“been troubled by trivial claims”.

That having been said, I listened carefully to the media respondents who told the committee that a serious harm test adds clarity, prevents cases without merit from proceeding and helps to prevent a chilling effect in their investigations. The evidence of Dr Andrew Tickell was particularly powerful. He said:

“we are not just talking here about journalists”

but about

“writers, bloggers and anyone who engages in the public sphere”

asking

“‘Can I afford to defend myself?’”—[Official Report, Justice Committee, 25 August 2020; c 6.]

The Society of Editors noted that, in England, the reduction in the chilling effect benefits academics, scientists and others. It is that final point that I found particularly persuasive. Although I see merit in both views and feel that the committee’s report articulates the debate well, on balance, I align with the committee’s view, which it expressed in its report, to

“favour retention of the serious harm test”.

However, that internal dialogue informs my view that the committee was right to recommend that the Scottish Government set out clearly why the serious harm test is still required. I have read the minister’s letter of 29 October, and I have listened to her opening remarks today, but I am not sure that she has demonstrated such a requirement. I will be interested to hear the views of other members who contribute to the debate. I respectfully invite the minister to consider setting out, before stage 2, why such a test is required.

Mention of serious harm is notably absent from the bill’s sections on malicious publication. I focused on that area during the committee’s evidence sessions, because I was concerned that it might not have been such a priority while the bill was being drafted. Even the policy memorandum says that the purpose of the bill is to

“simplify the law of defamation (and the related action of malicious publication) in Scotland”.

The nature of part 2 as almost an afterthought has been explored by the committee, which has several concerns. One is that the bill sets a low threshold for showing malicious publication, as what is required to show that a statement is “malicious” is knowledge of, or indifference to, the fact that a statement is false; thus a pursuer can show malice merely by adducing indifference to the truth.

Other concerns are that, in the definition of malice, the pursuer must show indifference “or”—not “and”—malicious intention; there is no concept of serious harm, only a degree of financial loss, which does not have to be caused, with no de minimis; and there is a lack of clarity as to whether secondary publishers are immune from part 2. On that note, as articulated by the convener, there is also no clarity over defences applying in this area.

The logical progression of such drafting, according to the likes of Professor Elspeth Reid and Professor John Blackie, is that malicious publication might become a preferable action to a defamation action. They suggest amending the definition to require both falsehood and malicious intention, or at least “reckless” indifference to the truth.

Dr Andrew Tickell was clear in his view that, if one is persuaded by the need for a serious harm test at the outset, it would make sense to consider it for part 2 of the bill as well.

I note the minister’s intention to amend, which I am grateful for, and, with regard to the defences, I note the convener’s remarks and the minister’s letter committing to look carefully at the issue if an amendment is lodged. However, I encourage the minister to look at it carefully of her own volition as soon as possible. Further, I associate myself with the convener’s remarks on the explanatory notes.

I will say a brief word on limitation, as it is another area of particularly interesting debate. The bill reduces the limitation period within which an action must be brought from three years to one year from first publication. I understand the rationale, including that a longer limitation can discourage publishers’ investigation, and I accept the argument that it is difficult to believe that, nowadays, someone would not be aware of material that caused serious harm to their reputation within the period of a year. However, one can envisage a situation in which cumulative statements do serious harm in the aggregate rather than at the publication of the initial statement.

In her opening remarks, the minister argued that the court has discretion to allow a claim to go through that would otherwise be out of time. She is, of course, right, as there is a general power to override time limits in the Prescription and Limitation (Scotland) Act 1973. However, that does not specifically refer to defamation actions in the same way as the Limitation Act 1980 does in England and Wales, so there is at least an argument that we have weaker protection in Scotland. For the sake of clarity, an amendment in that regard is worth exploring.

Furthermore, section 33 of the bill makes provision for a limitation interruption when there is mediation, which is helpful. However, one wonders whether that might be extended to take account of other forms of alternative dispute resolution such as arbitration, expert determination and press complaints or ombudsman bodies.

Further reflection is needed in those areas, but, at this stage, I confirm that the Scottish Conservatives agree with the principles of the Defamation and Malicious Publication (Scotland) Bill and will vote for them at decision time.

15:53  

There is always a balance to be struck between the right to freedom of speech and the right of an individual not to be defamed. We need to ensure that legislation strikes the right balance between those rights.

People must be held to account, especially when that is in the public interest. That is true of Government and elected politicians. We are here to represent the public interest and the public, and the media must be able to question and scrutinise our actions without fear of litigation.

On the other hand, people should not face damaging and untrue accusations without recourse. When people’s very livelihoods are at stake because of unjustified damage to their reputation, there must be a method of correcting the record. As with everything, where there are rights, there are also responsibilities.

Scottish Labour supports the general principles of the bill. We hope that, where there are concerns, they can be dealt with as the bill proceeds.

It is worth pointing out that the bill comes from a recommendation from the Scottish Law Commission, which reviewed defamation law back in 2017, as the minister said. The Scottish Law Commission does valuable work in consolidating and reforming law, and it is good to see that work coming through the Parliament.

Several concerns have been expressed about how the bill translates case law into statutory law. There are concerns about the way in which case law has been interpreted and about the ability to refine the law by case law when it is codified. That evolution is required, because the way in which we communicate changes with time. Twenty years ago, social media was almost unheard of, but now people use it to follow the news and gain information. We are all publishers, although some of us are not very great editors.

We cannot foresee how methods of communication will change and whether the bill that we are considering will be fit for purpose in, say, 10 years’ time. We always need to allow case law to develop how the law is interpreted in order to follow changes in how we communicate.

The bill is very technical. As it is trying to codify case law, the definitions in it have to capture the nuance in that case law. That occurs in several places throughout the bill but, crucially, it occurs in the definition of “defamation”, which has been the subject of concern. Some people believe that there is no need for a definition, as case law provides guidance that is widely understood. There are also concerns that defining “defamation” in legislation at all will prevent case law from developing the definition in the future. The committee came down on the side of a statutory definition but wants to ensure that the definition can be codified in the future by case law. I am not sure whether that will be possible, but I understand that the minister is going to consider how it can be achieved.

There are concerns about language and the translation of case law and common law into statutory law in other parts of the bill. An example of that relates to the rule that is known as the Derbyshire principle, which has been mentioned. In England and Wales, public bodies are prevented from bringing defamation claims under that rule. The bill creates a statutory version of the rule but includes an exemption for charities and businesses that deliver public services “from time to time”.

There has been concern about the impact of that, and the committee recommended that clarity is needed in the bill on the application of the principle and the exemption. Scottish Labour supports the Derbyshire principle—that public bodies and agencies should not be permitted to sue for defamation in relation to public activities—and believes that the bill needs to clarify how the principle extends to private contractors that are involved in public service delivery.

Those issues need to be dealt with to ensure that there are no unintended consequences as a result of modernising the law. The minister has indicated to the committee that she will consider the issues regarding the translation of case law into statutory law to ensure that the bill strikes the right balance.

The bill introduces a serious harm test that is similar to, but not the same as, the one in the Defamation Act 2013, which is for England and Wales. That is one of the more controversial changes to the existing law. It is welcomed by some people as a method of preventing vexatious cases or litigation threats from those with sufficient resources, which, as the committee heard, can have a chilling effect on important media scrutiny and freedom of speech. The threat of being sued can have the effect that information that it is in the public interest to publicise is suppressed.

A number of defences are to be placed on a statutory footing, and a new defence of being in the public interest will be created. We hope that that will ensure that those with deep pockets cannot simply suppress information and prevent it from being shared with the public when it is in the public interest to know about it. That is a common law defence that exists in England and Wales.

The law surrounding malicious publication is also to be clarified. As we have heard, there are concerns that the bill will allow a loophole for those who wish to bypass the public interest defences. There are also concerns that the bar is set too low. Professor Blackie said that he interprets the bill as defining “malice” as requiring knowledge

“that the statement was false or you were indifferent to the truth, or that it was motivated by a malicious intention to cause financial loss”.—[Official Report, Justice Committee, 15 September 2020; c 18.]

He believes that the current definition of “malice” requires there to be “a design to injure”. He suggested that the definition in the bill be amended to require knowledge of a falsehood and malice. I am glad to hear that the minister is considering that.

The bill is welcome but, given the sensitivities of the issue, it is important to get it right. Therefore, I am heartened that the minister appears to have heard the concerns and is willing to listen to the committee and amend the bill accordingly. We will support that process.

16:00  

I, too, commend the work of the Scottish Law Commission, which provided the foundation for the bill, and I thank all those who provided evidence and briefings, and the staff who have helped us throughout the process of considering the bill.

The bill covers an important part of civil justice—defamation. As has been said, as we examined the bill the Justice Committee focused on two important competing elements that required to be considered: freedom of expression, which the committee has heard a lot about in relation to not just the Defamation and Malicious Publication (Scotland) Bill, but other proposed legislation that we are considering; and protection of reputation. On whether the appropriate balance has been struck, I agree with the convener that the proposed shift favours freedom of speech, but, broadly speaking, the Scottish Greens consider that the bill strikes the correct balance, subject to our comments on “serious harm”, which my colleague Andy Wightman will touch on.

The Scottish Government says that defamation law should be as clear and accessible as possible. There is an argument to be made that putting that on a statutory footing will bring some clarity; accessibility in the context of defamation law has been referred to in correspondence as “mythical”. Access to justice is important, and not just in the present context. Reference has been made to the term “ordinary persons”, but I remain to be persuaded that the bill will be accessible to ordinary people.

I have concentrated my scrutiny mainly on the Derbyshire principle, which has been touched on. It is important to say that the law lords’ decision that gave rise to that principle said that public bodies should be

“open to ‘uninhibited public criticism’ and that reputation should be protected by political rather than legal means.”

The bill creates a statutory version of that principle, which exempts businesses and charities that provide public services only from “time to time”. With regard to the principle that must be followed, the convener accurately reflected the content of our stage 1 report, to which I am a signatory, but the issue is one on which I would go beyond many members, because we must have effective scrutiny of outsourced public services.

I will give an example. It is clear that my constituents in the Western Isles have more freedom to talk about the quality of their publicly provided ferry services than my constituents in the northern isles do, whose service is provided by Serco, the website of which tells us that the company provides services in health, transport, justice, immigration, defence and so on. Only yesterday, Serco was the subject of public criticism when a prison officer in one of its private prisons in England revealed that prison staff were required to clean cells without appropriate equipment.

There is a balance to be struck. As with all legislation, the most important factor in achieving that balance is that right rather than might is the principle that applies. There is still a way to go with the bill, but the Scottish Green Party will support its general principles at decision time.

16:03  

I, too, thank all those who gave evidence to the Justice Committee, our clerks, the Scottish Parliament information centre and others who have helped in our scrutiny to date. I also thank, of course, the Scottish Law Commission, the work of which laid the foundations for the bill.

The Law Society of Scotland has pointed out that modernising and codifying the law of defamation is overdue and should help to enhance accessibility. However, as others have said, achieving a proper balance between protection of reputation and freedom of speech is not easy, although it is obviously essential. I believe that the bill achieves that balance, in the main—albeit that changes will be needed at stages 2 and 3.

Broadly speaking, that reflects what the committee heard in evidence, although important concerns were raised, particularly by the Faculty of Advocates, which believes that the bill goes too far in trying to address a problem that, in its view, does not really exist in Scotland. As the minister said, Duncan Hamilton talked about

“an English solution to an English problem.”—[Official Report, Justice Committee, 1 September 2020; c 12.]

By contrast, Scottish PEN and media witnesses felt that the scales could safely be tipped a little further and highlighted what they see as the “chilling effect” of the ability of those with “thin skins and thick wallets” to silence fair comment through threats of legal action. Reference was made to the more precarious media environment, in which savaged budgets and high levels of freelancing mean that the risk of even pursuing, far less publishing, certain stories is one that editors, journalists and publishers are increasingly wary of taking.

Overall, however, the committee was generally satisfied that the bill is pitched about right. I very much share that view.

I welcome, as did witnesses, the inclusion of a statutory definition of defamation, although, as in other areas such as defences, there is a concern, as the convener said, to ensure flexibility in order to allow adaptation over time and the ability to draw on case law. The minister has expressed sympathy with that, but it might still require amendment to the bill.

Perhaps the key area in which debate over competing rights and freedoms emerged was in relation to thresholds—specifically, the inclusion of a test of serious harm. The minister has defended that change, suggesting that

“The current law simply presumes that damage has been done.”

I am not sure that that is true. Damage still needs to be proved, with any award being contingent on the seriousness of the harm that has been caused. Having initially been a firm supporter of the serious-harm threshold, I confess that I now have some misgivings. The committee did not really form a clear view on the matter, so it is one that we will need to return to and resolve at stage 2. I look forward to hearing what Andy Wightman has to say.

Also, more clarity is needed around the way in which the Derbyshire principle is expressed in the bill and the codification of defences. The minister seems to be reluctant to concede on either point. Although I support the direction of travel in both areas, I think that it is regrettable that the minister has not responded more positively to the clear concerns that were raised with the committee.

Similarly, on the welcome exclusion from liability of secondary publishers, the minister appears to be unwilling to accept that anything more needs to be done to help those who wish to request removal of material. She referred to simple-procedure rules in the sheriff court and to £19 actions, but that picture was not necessarily reflected in the evidence that we heard. Whether it is dealt with in the bill or through other means, I think that the matter merits further attention.

Finally, on limitation, I welcome the reduction to one year for bringing a case. In a digital age, that seems not to be an unreasonable timeframe, and it could help to address some of the “chilling” about which the committee heard. That said, there might still be legitimate reasons why such a timeframe could prove to be problematic, whether that is due to genuine lack of awareness about material or to the cumulative impact of repeated references. The minister insists that allowances are made in the general law of limitation, but we also need to return to that at stage 2.

As I have said, I believe, in the main, that the bill broadly achieves an appropriate balance between the rights of protection of reputation and freedom of expression. It is also encouraging to hear of the work that is being done to promote greater use of mediation and other forms of dispute resolution.

I look forward to continued work with committee colleagues and the minister to improve the bill, where necessary. For now, I confirm that Scottish Liberal Democrats will support its general principles at decision time.

Quite a few members are joining remotely. I have been thinking about how to let them know when there is a minute to go. I have another thing in my repertoire to try out, on this Thursday afternoon: I will tap my microphone when there is one minute to go. Can you hear that?

Members indicated agreement.

That is what I will be doing. Thank you very much. I just thought that we could try that for a change, so that all members have equal status—whether they are in the chamber or contributing remotely, members do not get any longer just because they cannot tell the time.

I do not know what signals the minister is giving me, but I am ignoring them.

16:08  

I am pleased to be able to speak in the stage 1 debate on the Defamation and Malicious Publication (Scotland) Bill and will be happy to vote at decision time in favour of the general principles of the bill.

It is generally accepted that the existing law on defamation in Scotland is piecemeal and out of date. Put simply, it is no longer fit for modern-day purposes. The last substantive change was made 24 years ago.

The bill aims to clarify and strengthen the statutory underpinning of defamation in Scots law, in order to protect freedom of expression and the reputation of individuals. Those considerations are at the heart of the bill, encouraging access to justice for those who believe that they have been defamed, through clarifying the law and protecting freedom of expression.

It is a technical bill, consisting of no fewer than 40 sections in three parts, and one schedule. As deputy convener of the Justice Committee, I put on record my thanks to the clerks and the bill team for all their hard work in setting it out for us in a comprehensive and logical way.

I have to confess that, at the outset of the bill, I had a preconceived notion that it would be dry and intensely legalistic, but I was wrong. I think that I speak for everyone on the committee when I say that the many witnesses from legal, media or creative backgrounds gave evidence in a way that made each session fascinating, informative and real, and I thank them for that.

The bill places certain key elements of Scots common law on defamation on a statutory basis, in addition to replacing and restating elements of the existing statutory provisions in Scots law. It is impossible to cover all its aspects in a short speech, but I will try to cover some of them.

Part 1 provides a new definition of defamation and introduces the threshold test of serious harm. It is possibly the most contentious element of the bill and I will expand on it later. Part 1 also covers defamation actions relating to public authorities and business interests.

Part 2 makes a number of provisions to replace common-law verbal injuries with three new statutory delicts relating to malicious publication.

Part 3 seeks to reduce the time period for bringing a defamation action from three years to one year and introduces the rule that the clock starts running from the first occasion that a statement is published. I believe that that is a sensible provision, as in most cases a person would know almost immediately when they believe that they have been defamed. However, it does not take into account the cumulative, straw-that-breaks-the-camel’s-back effect of being defamed over time, which came up in the evidence sessions, so I am pleased that flexibility could be used on a case-by-case basis.

A lot of discussion and evidence related to the so-called “chilling effect”. Many organisations argue that defamation law in Scotland and England is having a chilling effect on freedom of expression. The argument is that those who can afford it can use the threat of legal action to quash stories and silence criticism, often by way of legal warning letters. [Interruption.] The law on defamation is uncertain and relies heavily on decisions in previous cases, which makes it difficult to judge the prospects of success, so defenders might be too scared to meet the significant costs of court actions. The National Union of Journalists has highlighted that traditional media organisations are struggling to maintain their financial viability, and they might simply drop a story. That is the chilling effect. In addition, today’s freelance culture means that many more journalists do not have the backing of a major news organisation.

As I said earlier, the threshold test of serious harm was a divisive issue during evidence sessions. As the minister said, some referred to it as

“an English solution to an English problem.”—[Official Report, Justice Committee, 1 September 2020; c 12.]

However, the Scottish Law Commission firmly believes—as does the Scottish Government—that it would achieve the right balance between freedom of expression and protection of reputation. It would discourage frivolous action and reduce time and money costs for the individual and the civil courts. If a person says that their reputation has been unfairly damaged by defamatory statements, surely it is only right that they should show how it has been damaged. [Interruption.]

The digital revolution in online publishing and social media during the past—

I am sorry, Ms Mackay. I have rattled and banged my little microphone here to no avail. You are running over—could you conclude?

Oh!

What did you think I was doing?

That experiment did not work. [Laughter.]

The minister has listened to the evidence that the committee took and has committed to consider and act on most of our recommendations. This is our opportunity to make the law of defamation fit for purpose, and I will be pleased to vote for the general principles of the bill at decision time.

I have just been told that you could not hear what I was doing over BlueJeans, but you indicated that you could, Ms Mackay. [Interruption.] You could not hear it? Well, I will maybe try something else. I do not know. I will let that experiment die a quiet death.

16:13  

Presiding Officer,

“Do not spread false reports.”

Is that statement something new? No. It is just a current translation from the Hebrew of Moses’s words in Exodus 23, verse 1. It chimes with the right to freedom of expression in both public and private, which is at the heart of western democracy.

Individuals must be entitled to protection from provable untruths, which are, in other words—forgive me for using the word in this place, but it is apposite—lies, slander and malicious publications that would materially affect livelihoods and reputation. It is a pillar of any system that is based on the rule of law that truth should triumph over fiction and, in particular, triumph over deliberate or malicious fiction that is directed against individuals. Veritas vincit—which is pronounced “vinkit” or “vinchit”, depending on whether one believes the hardly credible suggestion that the ancient Romans pronounced their Cs as soft Cs. Therefore, I generally welcome the bill, which should clarify several matters.

The common-law action of verbal injury is given a new statutory basis for malicious publication. However, who knows how the serious harm threshold test, which the bill sets out, will develop?

I note with interest the submission from the Faculty of Advocates, which has raised questions about the secondary publication rules in the proposed legislation and the regulation of internet publication. Clarity is indeed needed on that issue.

We must all deal with—and the law must at least establish a sensible framework to deal with—ever-changing methods of information distribution on social media and the internet. Obviously, such things were not regulated by even recent statutory or common law prior to this century, far less in the ancient Rome of Pliny the Elder’s time. However, as I said at the outset of my speech, the basic principles abide, and our law, which implements those principles, must be kept up to date, relevant, applicable and accessible.

The question whether the threshold test has been set too high for the bringing of claims, as some in the legal profession say, must be addressed at stage 2. However, there should always be at least the criterion that a claim should be of ostensible merit and worthy of the court’s time—in other words, there must be a statable case. Rigorous scrutiny of the bill is therefore required at stage 2.

I close with a question: is the Parliament up to the task? We shall see.

16:16  

I must apologise. I lost connectivity for about 10 minutes at the beginning of the debate, so I missed part of the minister’s comments and part of the convener’s comments.

I refer members to my entry in the register of members’ interests, wherein they will see that I am a member of the Law Society of Scotland and that I hold a current practising certificate, albeit that I am not currently practising.

I want to make a few comments in the time available, which has gone from six minutes to four minutes in the flash of a second.

On the definition issue, the definition of defamation, as proposed for the first time in statute in Scotland, would involve circumstances in which a statement is deemed to be defamatory

“if it causes harm to the person’s reputation”.

Although the Scottish Law Commission did not propose an express definition, I understand that the Government felt that that would be helpful on the ground of improving clarity. Indeed, I think that that is the balance of the evidence that the committee received, and I agree with that.

The other issue that I want to address briefly is the serious harm test, which we have already heard a lot about this afternoon. In effect, that test would make it a requirement to aver not simply that one’s reputation had been harmed but that it had been seriously harmed. If that cannot be established, a pursuer will not be permitted to proceed with their civil action.

That has indeed caused controversy. We have heard about the concern of Duncan Hamilton of the Faculty of Advocates, who said:

“What we are dealing with here is an English solution to an English problem.”

He was referring to the problem of unmeritorious or frivolous claims having been brought forward south of the border. He said that, in Scotland, that

“has simply not been the case”.—[Official Report, Justice Committee, 1 September 2020; c 12.]

Mr Campbell Deane, who is a practising defamation solicitor, said:

“by introducing that extra barrier, you would be putting a hurdle in the way of a litigant who may well have a perfectly good right of action.”—[Official Report, Justice Committee, 15 September 2020; c 5.]

Dr Scott of the London School of Economics felt that the introduction of such a test would add to the complexity of the law, with possibly a substantive hearing having to be held and significant evidence requiring to be led to determine whether the threshold had been met, which would add to cost and complexity.

I think that we can see that the legal profession and some academics have certain concerns.

It is fair to say that the press, media organisations, writers in general and other academics felt that the approach was reasonable in the context of striking the right balance between the competing interests of freedom of expression and the right to protection of privacy.

The helpful briefing that the Law Society produced this week should be reflected on, and I feel that the issue merits further reflection. I think it was John Finnie who said that we should be dealing with right rather than might, but it is important to remember in these debates and in important debates with the media that not all people who allege that they have been defamed are the big guys—some are the small guys. Surely we as a Parliament are very much here to protect the small guys.

I urge a bit of reflection on the issue. The Law Society has suggested that we could perhaps consider finding language to the effect that we could seek to exclude vexatious actions, to the extent that the provisions are apparently destined to deal with that problem in Scotland. There are then procedural issues—questions such as “At what point?” and “By way of what procedure?”—but they will presumably be easier to iron out.

We need to protect the wee guys, and I think that there should be a wee bit of further reflection. Keeping the spirit of what the minister and officials are trying to do, we should nonetheless ensure that we get this right, such that people have the ability to protect their rights. I think it was Duncan Hamilton who said that one person’s “chilling effect” is another person’s ability to assert their rights in society. I think that the issue merits a further look.

Thank you, Presiding Officer—I have no idea what time it is now.

I know—I have given up. I have not really; don’t think that I have. I call James Kelly.

16:21  

Thank you, Presiding Officer. This is the first time that I have spoken virtually in a debate in the Scottish Parliament, so you will be glad to know that I have set my stopwatch running so as not to fall foul of your time restrictions.

I support the general principles of the bill. As a member of the Justice Committee, I thank the clerks and all those who gave evidence on a bill that covers an extensive number of areas. As other members have said, it is important to ensure that the bill strikes the correct balance between protecting freedom of speech and ensuring that those who are unfairly and sometimes viciously defamed have protections in place in order that they may take corrective action.

A number of issues have been touched on in the evidence taken by the committee and in today’s debate. There has been quite a bit of discussion around the Derbyshire principle, and I agree with other members that we need further clarity around the definitions, particularly on what is actually covered by a “public authority” and on the issue of how private organisations that partially carry out work in the public domain are covered by the bill.

I welcome the work on the defences that are set out in the bill to ensure that the appropriate defence is codified so that, for example, people who are expressing an honest opinion or acting in the public interest have appropriate cover. There needs to be some further work regarding the offer to amend procedure where there are disputes and where, in an attempt to avoid such disputes officially coming to court, a settlement is reached. Previously there was recognition that, if a defender made some apology, there would be a deduction, and there has been some confusion as to whether that arrangement is still in place. That needs to be clarified.

A couple of other issues are worth touching on. The Law Society’s briefing covered the issue of internet publication, which is not specifically covered by the bill. The society made the good suggestion that it would be useful for the law commissions across the UK to do some work in that area.

The substantial growth in the internet and social media, and the platform that that can, unfortunately, provide for people to be defamed, is an area that is worth further investigation and maybe further legislation.

Another area that is worth highlighting is access to justice. It could be the case that people are being unfairly defamed but do not have access to resources such as legal aid to enable them to take a proper court action.

Similarly, the committee heard evidence about the growth in online journalism, or people writing their own publications online. They might come under the scope of the bill if they become involved in cases and do not have appropriate access to legal aid. That area is worth revisiting.

I think that the bill is welcome and I will certainly be supporting its general principles at decision time.

Thank you, Mr Kelly. I am told that some members are unaware that they are to make four-minute speeches, unless they are summing up. I thought that everyone knew.

16:25  

As a member of the Justice Committee, which has taken the bill through stage 1, I put on record my thanks to colleagues and particularly to the clerks. It is a complex and at times technical bill, and although not always headline grabbing, it is nonetheless an important bill and one that is needed in the 21st century.

As others have pointed out, freedom of expression remains important, but we must also consider what safeguards we can put in place to ensure that an individual’s reputation is not unjustly tarnished. We have ascertained that the Scots law definitions of defamation and verbal injury are no longer fit for purpose. They are not concise, they do not strike the right balance and, importantly, they are simply not modern enough to deal with issues such as online publications.

The bill’s provisions will enable us to improve the accessibility of the common law by making it more straightforward for individuals to use. Crucially, we can ensure that the relationship between freedom of expression and individual reputation is considered with balance.

The bill also proposes raising the threshold for bringing defamation actions. Various proposals, including a serious harm test, a single publication rule and a one-year time limit for raising a court action, will create a higher threshold for taking court action, which will ultimately help to balance the law protecting freedom of expression.

In truth, the law of defamation has been amended in a disjointed fashion, with legislative changes occurring most recently in 2013 and, before that, 1996. As online publications are now commonplace, the world has become very different, and we must make sure that the law reflects that.

It is not just publications that are affected by that new aspect—for example, social media and messaging apps have opened up a whole new world. Any individual in the chamber with access to a smartphone can become a content creator in the click of a few buttons. Most of us have some kind of social media account, and we can voice our opinions and views on any given subject within seconds. Although I encourage its responsible use, social media does not have the safeguards in place that can be seen in print media. That is why we must update the legislation: it is not fit for purpose in a world that goes beyond print publications. The bill makes provision for the courts to require websites to remove content and to require people or bodies to stop distributing or showing material.

The main issue that the bill is designed to address is the current law’s “chilling effect” on freedom of speech, with people feeling that they cannot publish something for fear of legal action. The complexity of the law makes the situation worse, because it can add to the costs of defending court proceedings. Publishers can feel silenced when there can be consequences for publications that mention an individual. The bill, in effect, clarifies that cases can be brought only where real harm has been done to an individual’s reputation. I note the minister’s point on the serious harm threshold, which was one of the most widely discussed issues during the committee’s evidence sessions.

I will move on to other areas that the committee looked into. I know that previous speakers have already covered them—mainly because there were only a few areas of contention.

Others have talked about the Derbyshire principle. For the record, my colleague John Finnie undertook the legwork on that issue for the committee at stage 1. As has been said, we recommended in our report that the section on that be redrafted to make the Scottish Government’s intention clearer on which bodies are covered and to provide examples of those that are exempt. I fully welcome the minister’s offer to work with members to ensure that we get a provision that codifies the Derbyshire principle as it exists now in a way that alleviates stakeholders’ concerns and is as clear and as flexible as possible.

We have also heard about secondary publishers and malicious publication.

I see that my four minutes are almost up. The minister’s approach throughout has been one of willingness to work with the committee going into stage 2—that reflects her overall approach to the previous bill that she brought to the Justice Committee. I look forward to stage 2, and I support the general principles of the bill at this stage.

16:30  

I come to the debate as someone who used to have to think very carefully about defamation on a daily basis. As a newspaper reporter and then a sub-editor for local papers and latterly for The Scottish Sun, I had to have some knowledge of the law in this area, both in England, where I first worked, and then in Scotland. Although at The Sun we had lawyers who came in every night, we had to make quite a lot of judgment calls about how to phrase things.

None of my employers was ever sued over anything that I wrote, although there were one or two apologies over the years—that goes with the territory. It was therefore with great interest that I read the bill, the committee’s report and the Scottish Law Commission’s report.

Having worked in newspapers, I have that perspective, but now that I am in politics, I have to be careful of what I say through other mediums. It is all too easy for people to tarnish someone’s reputation online, on social media, and for that to be done multiple times by multiple people. I have also learned that the threshold of what people can say about me as a politician is different from what can be said about others. In essence, we have to be able to take some flak, whether it is true or fair, or not.

Overall, I think that the bill is sensible and I am happy to back it at this stage. It will mean that, if I email Gordon Lindhurst, for example, with some defamatory remarks about him, he cannot sue me, but if I foolishly copy in Liam Kerr, I will be in trouble. Bizarrely, that is not the case at the moment, so I agree with that reform.

At the heart of the issue is the need to balance the right to freedom of expression and the freedom of the press with the protection of reputation.

Then there is the so-called chilling effect, whereby media outlets will not publish because of the very fear of being sued. I have seen many accurate stories either not being run or being toned down heavily, much to the annoyance of writers. The NUJ mentioned that in evidence, and it benefits those with deep pockets.

The bill sets a useful threshold. The Law Commission recommended that

“It should be competent to bring defamation proceedings in respect of a statement only where the publication of the statement has caused, or is likely to cause, serious harm to the reputation of the person who is the subject of the statement.”

That is entirely sensible and should cut out frivolous claims.

Section 2 places on a statutory footing the principle 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—quite right, too.

The presumption against a jury trial in defamation actions is a good idea. As the Newspaper Society said:

“It has long been the view of news organisations that there is an inherent bias against journalists, especially when it comes to trials involving prominent individuals, and judicial direction to set aside preconceptions is often not sufficient to even this out.”

The change in the limitation period from three years to one is also welcome.

Finally, various bits of the bill deal with defences, and they appear to be sensible.

The committee has pointed out parts that can be tidied up, as we would expect. However, that can be sorted out by the fine minds of those on the Justice Committee—and that is not defamatory.

16:34  

I am pleased to be speaking in the debate, and I support the general principles of the bill.

In its very positive stage 1 report, the Justice Committee makes a number of recommendations. As others have done, I thank the Scottish Law Commission and the clerks, who have worked hard to get us to this stage. I welcome the minister’s positive response to the committee’s report and the commitment to reflect further on the committee’s recommendations.

In essence, at the heart of the bill is an attempt to strike a balance between protection of reputation and freedom of expression. The committee recognises the strength of feeling behind the views that were expressed both in support of freedom of expression and in relation to the importance of protecting individual reputation. It agrees with the Scottish Government’s view that the bill represents a package of measures that creates an overall balance and makes no single overarching recommendation to fundamentally alter the overall balance in the bill.

I want to focus the rest of my speech on a couple of specific areas. The inclusion of a serious harm test was one of the main provisions where the evidence was divided between those who welcomed that and those who regarded it as a step too far in limiting a pursuer’s right to protect reputation.

For some, the serious harm test is a necessary threshold that will ensure that only relevant cases where serious harm may have been done to someone’s reputation go ahead, and that frivolous or vexatious cases are discouraged. In the view of some of our witnesses, the serious harm threshold would give people who were subject to threats and menaces of defamation action greater security.

The so-called chilling effect was a concern for many media organisations, with reference made to people with “deep pockets” and “thin skins”. They expressed strong support for the serious harm test. The committee also heard evidence to the contrary: that that level of threshold tilts the balance too far away from the right of an individual to protect their reputation, and that, by introducing that extra barrier, we would be putting a hurdle in the way of a litigant who may well have a perfectly good right to protect their reputation and take matters further.

I recognise that both views have merit and that, on balance, at this stage and in light of the overall set of provisions that the bill sets out, it is right to retain the serious harm test in the bill, although I agree with colleagues that it would be helpful for the minister to set out a clear statement on why the serious harm test is required.

Concerns were expressed by some witnesses that the changes to the time limit for bringing defamation action may operate unfairly in some circumstances, particularly where it takes time to find out that a defamatory statement has been made and where the effects of that statement are cumulative over a period of time. The minister’s evidence was helpful in setting out that the courts have discretion in certain circumstances to allow cases outwith the time limit to proceed. That is welcome.

During evidence taking, the committee received helpful views on how access to justice in the area of defamation can be improved. Those include looking at the provision of legal aid in the area and whether some form of pre-action protocol could be put in place. The committee also recommends that

“an accessible guide to the law in this area is produced”,

which I strongly support. I am pleased that, in her response, the minister has said that she has sympathy with that and can

“see the value of having a protocol in place, especially in ensuring that preliminary matters can be dealt with.”

She also said that she will write to the Scottish Civil Justice Council, asking it to consider that, which is a welcome step.

I am pleased to support the general principles of the bill.

16:38  

I will focus my remarks on the serious harm threshold, because it is a significant change. It exists in England and Wales, defined in section 1(1) of the Defamation Act 2013, which states:

“A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.”

The bill that is before us, by stark contrast, does not follow that straightforward formulation but instead defines a statement as defamatory if it causes “harm” and then, in addition, states that for it to be actionable that harm must be “serious”. In that respect, I disagree with Adam Tomkins that Scots law is being brought into line with the law England and Wales. I will return to that point.

Following the Supreme Court ruling in the Lachaux case, liability in defamation cannot be established by reference to the

“inherent tendency of the words”

alone; the court must have regard to the “facts” and “circumstances”. Thus, the court will need to hear evidence on whether the words that were allegedly written or spoken were, indeed, ever written or spoken, whether they bear the meaning that is alleged by the pursuer and the reasons why, if defamatory, serious harm is or is likely to be caused. That requires an evidential hearing, and there will need to be significant procedural rule changes to Scottish civil procedure to accommodate any pre-proof evidential hearing.

I have four arguments against the serious harm test. First, as matter of principle, we should not be shutting down civil law remedies for people without good reason. Someone who is defamed, for example, but who suffers only harm is now to be denied redress, as is someone who suffers repeated harms, perhaps over a long period of time, but without the “serious” harm threshold ever being met in any one instance.

Secondly, I note, as a caution to those who think that the test may act as some kind of procedural hurdle, that it will, as I said, involve an evidential hearing and associated expense. In my recent £750,000 action, I would still have been in court for six days, trying to thrash out whether, in fact, serious harm had ever been caused to the pursuer.

Thirdly, a serious harm threshold will not deter a litigant who is determined to damage someone. In my case, it took full proof to reach the conclusion that no harm at all had been caused and that no financial loss had accrued to the pursuer.

Fourthly—this is very important—we should ponder what Parliament is being invited to do. As I said, section 1(4)(a) of the bill states:

“a statement about a person is defamatory if it causes harm to the ... reputation”.

Incidentally, that wording was not in the Scottish Law Commission’s bill, and the Scottish Government has never published an analysis of the responses that it got to its own consultation.

Under the bill, however, any such statement is actionable only if the harm is serious. We are defining a civil wrong in statute and then saying, “There’s nothing you can do about it.” We are now seeking to deny civil justice to our constituents whose reputation has been harmed. Is that even compatible with article 6 of the European convention on human rights?

The threshold does little for defenders, as full proof will still be required. On the other hand, it does a lot for pursuers, but in a wholly negative way and without justification. The bill risks denying legitimate pursuers their human right to a civil remedy for a wrong that we are defining as harm, but about which they can do nothing unless they can prove that that harm is serious. Why?

16:42  

We live in a society that is built on free speech and the exchange of ideas and information. By the same token, however, we live in a society in which there are increasing levels of harmful, false information.

In addition, people around the world can express their thoughts on a scale that is unparalleled in human history. There are more and more platforms that people can use to publish their thoughts, and views that are expressed are almost instantly subject to the court of public opinion. A random thought can be seen by millions of people in almost no more than an instant, and the mechanisms for expressing our observations and critiques continue to grow.

In stating that, I hope that I have conveyed specifically that the world of communication continues to become more complex and diverse. That carries with it significant challenges. I believe that there are two important principles to which we should adhere: the first is simplicity and the second is balance. The general public will not generally read legislation, but, when they do, they should be able to understand it.

The bill encourages both simplicity and balance. One way in which it encourages simplicity is through the increased clarity of the situation in law. The ambiguity in our current legislation and case law can further complicate an already complex landscape. By stating clearly that any statement must be communicated to a third party and must cause serious harm to someone’s reputation, the bill will reduce the burden of interpretation on all parties. I do not seek to bring Mr Wightman’s personal experience to the chamber in saying that, but, although I will read his words carefully, I probably disagree with them.

In the ever-evolving global communications landscape, all of that is essential. Removing needless complexity will ensure that energy and resources are focused on the elements that cannot be pared down so easily.

Furthermore, I highlight the importance of improving the defence for secondary publishers. I published my first website 27 years ago, so I have a particular interest in that area. Platforms, and the way in which information travels, have changed drastically over the 20-plus years since I first engaged with them. Thirty years ago, far fewer of us on this planet had access to powerful tools, and someone had to own a newspaper to have the kind of power that is at almost everyone’s fingertips today, although our understanding of how to engage with the new platforms has moved on more slowly than the evolution of the platforms themselves. Nevertheless, we have an improvement in the defence for secondary publishers. It provides clarity and places responsibility with those who actually write the words and have creative control, which is where it should lie.

In relation to balance, the bill also makes an important movement towards free speech. Specifically, it does that through the single publication rule and the one-year limit. Together, those provisions ensure that people do not have to fear legal consequences for statements that did no significant harm at the time of publishing but may be less well received in a future context. We need to protect the soil for honest social discourse, and the bill tips the balance towards free speech in an important way. Therefore, I suggest that it is a positive evolution in how defamation and malicious publication are dealt with.

The bill does not place inhibition on anyone criticising politicians. It has been said that the reputation of a politician cannot be damaged because they have none to lose. Perhaps we can raise ourselves off the floor with the bill.

16:46  

The bill seeks to protect freedom of speech and to protect people from harm. Today, we have heard arguments about where the balance needs to fall between freedom and protection. The bill sets a higher bar in that defamation needs to cause serious harm, which means that people cannot sue spuriously. Annabelle Ewing spoke about the difficulty of proving serious harm and noted that the legal profession has expressed concern on that point.

Andy Wightman used his personal experience to talk about the bar that would be set perhaps being too high for many people to reach. He also spoke about human rights legislation, in which context the bill needs to be looked at carefully, because we need to make sure that people have access to justice when they require it.

On the other hand, members have spoken about the chilling effect that the law as it stands has on any threat to sue. The phrases “deep pockets” and “thin skins” have been used by a number of members throughout the debate—a balance needs to be struck. As I said in my opening speech, with rights come responsibilities. We need to make sure that both are allowed for.

James Kelly mentioned that the law is just one part of the justice system. Access to it is another. The need for people to have access to legal aid, so that they can have recourse to justice through the courts to protect themselves, is an important point that the committee’s report also made.

Liam Kerr spoke about how welcome mediation is as a way of getting people together to reach an agreement, and he talked about the limitations in the bill being paused to allow that to happen.

James Kelly spoke about apologies and retraction and about how the process for those currently takes place. Perhaps that is missing from the bill. There needs to be a degree of clarity so that those actions can be encouraged.

In his contribution, Graham Simpson talked about how apologies were offered during his time as a journalist. The time limits in the bill need to be paused to allow that alternative resolution to take place.

A number of members talked about the Derbyshire principle whereby public bodies cannot sue for defamation. There should be a balance when private companies are carrying out public services—that needs close scrutiny as well.

John Finnie brought that to mind tangibly when he spoke about ferry companies in the Highlands and Islands. CalMac, the publicly owned ferry company, is being held to a totally different standard compared with Serco, which is a private company. However, both companies are delivering public services, and both are ferry operators that are publicly subsidised. There must be a balance whereby companies that are doing the same kind of work are subject to the same scrutiny and protections.

Members have talked about malicious publication, and concerns have been expressed that the lower threshold for defences in respect of malicious publication could create a loophole in the law whereby people would be allowed to sue under malicious publication legislation as opposed to under defamation law. There was a debate about whether “serious harm” should also be part of the threshold for malicious publication, so that people could not use that loophole. I think that it was Liam Kerr who made the point that the threshold for malicious publication is extremely low and needs to be tightened up.

We must try to strike the right balance with this bill. I think that it was Annabelle Ewing who said that we need to look after right rather than might, while James Kelly said that the issue is also one of freedom of speech versus people being viciously and maliciously damaged. We need to strike a balance in ensuring that the right protections are set down in law and that they cannot be used spuriously to shut down freedom of speech and the publication of things that are in the public interest. We are on our way to getting that, but the minister and the committee will need to work together at stage 2 to strike that balance.

16:51  

Defamation law was reformed in England and Wales in 2013. In Scotland, the last time that defamation law was considered was 1996.

Given concerns about the restrictions on investigative journalism and the advances in technology, the internet and social media, the Justice Committee decided in 2017 to include evidence sessions on Scotland’s law on defamation in its work programme, in an effort to ensure that it was fit for the 21st century.

In January 2018, the committee received a briefing from the Scottish Law Commission. Following that session with Lord Pentland, it was clear to the Justice Committee that defamation law in Scotland was decidedly in need of reform and the committee actively considered using its powers to introduce the necessary legislation. However, the process for committees to introduce legislation is complex; consequently, few bills are committee initiated and I believe that that area would benefit from review in the sixth session of the Scottish Parliament.

The committee therefore continued to press the Scottish Government on the need for defamation reform at the Conveners Group question session with the First Minister, and when it took evidence from the Cabinet Secretary for Justice.

Consequently, on 12 June 2018, when the then committee members held a round-table discussion with key stakeholders that included representatives from the BBC, the LSS, academia and Scottish PEN, we were able to discuss not just the SLC proposals for a bill but—even more welcome—the Scottish Government’s commitment and confirmation that it would introduce a defamation bill that would be based on those proposals.

The aims of the bill are to strike an appropriate balance between freedom of expression and protection of reputation, to clarify defamation law and to make it more easily accessible and understood. More specifically, the serious harm test states that in order to bring forward defamation proceedings,

“the publication of the statement”

must “have caused”, or be

“likely to cause serious harm to ... reputation.”

The test seeks to prevent powerful interests from using defamation law as a tactic or weapon to try to silence unwelcome criticism; to discourage frivolous or vexatious actions; and to allow time for the court to dismiss actions earlier in the process, therefore freeing up valuable court time.

I know the interest that Margaret Mitchell took in the matter as convener of the Justice Committee, but does she just accept that the reasons that she has outlined for the serious harm test are justified? There is no evidence at all that the test would disinhibit or dissuade committed and determined litigants and pursuers, and no evidence that it would save any court time.

I will come on to that, Mr Wightman. Although that has been asserted, in my view it happens frequently. Constituents are often sent defamation letters when there is no case to answer, and it is those people whom the bill will protect.

Concerns were raised about a potential chilling effect, which has been mentioned by a number of members, with the onus being placed on the pursuer to prove that the statement was not only defamatory, but also caused serious harm. Some argue that the threshold places an additional barrier not only to those who might bring forward vexatious claims, as intended, but to those who may have a perfectly valid case.

Although I note that the Faculty of Advocates considers its introduction to be inappropriate, I support the inclusion of the serious harm test. Despite the Law Society of Scotland’s practice rules, solicitor letters threatening individuals with defamation proceedings are being issued when there is no valid case to pursue. Given the opposing views, including Andy Wightman’s, the Justice Committee, in supporting the inclusion of the serious harm test, is right to ask the Scottish Government to set out why it considers that the test is required.

The committee’s key recommendations include support for a statutory definition of defamation; the codification of defences; the exclusion of secondary publishers from liability; and the reduction of the time limit from three years to one year, with confirmation that there will be discretion available to courts to extend the time limit. That would allow individuals to pursue a legitimate case after one year if, for example, a defamatory statement in a job reference was not discovered for a period of time.

On a personal note, I welcome the inclusion of section 33, which states that the time taken to pursue any mediation will be “disregarded”. That provision will ensure that parties are not discouraged from, or penalised for, seeking to resolve the dispute out of court. However, I hope that Liam Kerr’s concern that, despite the stated policy aim of the section, other forms of alternative dispute resolution in addition to mediation do not appear to be provided for in the bill as drafted will be addressed.

Further details will be required at stage 2, such as in relation to clarification of the Derbyshire principle, legal aid provision for pre-action protocols, and removal of defamatory material from social media and the internet. Nonetheless, I am delighted that this long-overdue legislation is likely to pass its stage 1 hurdle this evening, and that we are a step nearer to ensuring that defamation issues in the 21st century Scotland in which we live are properly addressed.

16:57  

I thank members for their contribution to this afternoon’s helpful debate. I am pleased that there is support across the chamber for the general principles of the bill.

The Scottish Law Commission’s reform project was the first significant look at defamation law here in Scotland in a generation. The way in which we communicate and live our lives has changed beyond recognition in that time. The commission made its recommendations, and the Scottish Government agrees with them. Given the fundamental rights that the bill will affect, I would like to achieve as wide a consensus as possible across the chamber. In answer to the question that Gordon Lindhurst posed earlier, the answer is yes, the Parliament is up to the job.

I have listened carefully to the views of members, and I assure everyone that I will reflect carefully on what has been discussed today.

Serious harm was discussed extensively by a number of members. Before I remark on that point, given the particular experience that he has to bring to the issue—he made a passionate speech during the debate—I offer Andy Wightman the opportunity to meet me and my officials so that we can discuss it further.

The Scottish Law Commission took a wide-ranging look at the Scots law of defamation, and made a number of recommendations for reform. Among the recommendations is that there should be a threshold test of serious harm. I understand the view of a number of stakeholders that the test was introduced to address the perceived problem of vexatious litigation, which is not really a problem in Scotland. Although I recognise the view that there are few reported cases of defamation here, and that vexatious litigation is not a problem, I also consider that it is right that if a person says that their reputation has been damaged by a statement, they should show how it has been damaged.

I do not think that the current presumption that damage has been done achieves the appropriate balance that the bill aims to achieve overall. Why should we continue to allow legal action to be raised in cases where no real harm has been done? That is a question for members to reflect on. We have heard in the debate about the chilling effect of defamation law on freedom of expression, which was described particularly well by Rona Mackay. The threshold test will give confidence to those who have received a letter, as mentioned by Margaret Mitchell, about possible defamation proceedings against them.

I take on board the message that came through loud and clear from Liam Kerr and a number of members that the Scottish Government should say why the test is required. One argument for that is that failure to provide a statutory test would fail to take fully into account the implications of section 1(1) of the bill, on communication of a “defamatory statement” to a third party.

We have heard that, because of the change in the bill, it is open to courts to develop the common law threshold test and that it is likely that they would go on to do so. However, using the test that we have, we can take advantage of English jurisprudence on the issue, which would provide us with more certainty. The number of relevant cases in Scotland is quite low, so if we did not use that alternative, there could be a prolonged period of uncertainty. I will reflect on what has been said in the debate, however, and write to the committee in the next few weeks.

Rhoda Grant and Liam Kerr referred to the provision on the Derbyshire principle. The aim of the provision is to place on a statutory footing in Scotland the common law principle of England and Wales that public authorities cannot raise defamation proceedings. Public authorities have a reputation, but they need to protect it using political means, not defamation law. A public interest is served by allowing unrestrained comment on the actions of democratically elected bodies. That is the fundamental rationale behind the Derbyshire principle. As far as I am aware, no similar case has yet been decided in Scotland.

I want to be clear on one point: the bill will protect those who criticise public service delivery, even if the service is delivered by a private body. The defences of honest opinion and publication on a matter of public interest are powerful defences that will protect speech on the issue. We should not forget that a private body delivering such services will have to prove that a defamatory statement has caused serious financial loss. Those who criticise public services provided by private companies will be sufficiently protected by the bill’s provisions. On the drafting of the Derbyshire provision, a sensible and flexible definition has been used that does not seek to expand the common law boundaries of the principle. The bill captures the obvious public authorities, such as local authorities, the Scottish Parliament, the Scottish ministers and agencies of the Scottish Government.

That flexible approach will also allow courts to deal with more complex and nuanced cases. The drafting borrows from section 6 of the Human Rights Act 1998, which has been discussed by courts for over 20 years, and it will provide practitioners with a good base from which to advise their clients. Here in Scotland, the Lord Justice Clerk, Lady Dorrian, recently discussed section 6 in the case of Ali v Serco Ltd, providing guidance on how it should be interpreted. However, I recognise that a range of concerns about the drafting approach have been expressed, so I am happy to reiterate my commitment to working with Justice Committee members to find an approach that I hope we can all agree on.

It would be good if you could keep talking until decision time at 17:05. You do not need to rush.

I will do my very best, Presiding Officer.

Rhoda Grant, Liam Kerr and other members referred to malicious publication, which is a cause of action that the bill reforms. In order to succeed in a malicious publication action, the pursuer must show that the statement complained of was made with malice. The definition in the bill is the same as that in common law for similar types of action, but I recognise the committee’s views on the matter and take on board reflections on it expressed in the debate. That is why I am happy to introduce an amendment at stage 2 that I hope will reflect the committee’s recommendation.

I consider that the debate reinforces the impression that there is broad support for the bill and for its policy aims. As a whole, the bill seeks to carefully balance the law. However, as members have indicated, there is a difference of views on some of the detail. I am willing to work with members to make sure that we can all, as far as possible, agree on the bill, because that is important.

I once again thank the members who have contributed to the debate. I am pleased about the support for the general principles of the bill. The bill is an opportunity for the Scottish Parliament to consider freedom of expression in modern Scotland. That right comes with responsibilities, and it should not—it must not—be used to unfairly damage the reputation of another. However, we must all be careful that, in seeking to better protect individual reputation, we do not unintentionally inhibit free speech.

The law of defamation is the way in which we balance those two rights, and I look forward to working with the Justice Committee and members from all parties to ensure that we achieve the appropriate balance for modern Scotland.