Guest blog | ‘Six things to know about defamation law in Scotland’
By Nik Williams, Acting Project Manager at Scottish PEN
For the first time in over two decades, Scotland is on the cusp of reforming defamation law, enabling free expression to be beyond the reach of the wealthy, the powerful and the thin-skinned.
After the Scottish Law Commission undertook a consultation and published a final report and draft version of the Defamation and Malicious Publication (Scotland) bill, the Scottish Government launched a public consultation on defamation reform that closes on 5th April. In lead up to the deadline here are six things everyone needs to about the state of defamation law in Scotland and what reform looks like.
1. Reform is long overdue
While defamation law in England and Wales was reformed in 2013, Scotland did not incorporate these changes into domestic law (short of two technical aspects). This means that the last meaningful reform to defamation law in Scotland took place in 1996. As a result, Scots Law does not protect people adequately, especially when we look at online communication like social media. When reform took place in 1996, Facebook founder Mark Zuckerberg was only 12 years old. This leaves bloggers, online journalists and commentators, activists and social media users without any substantial protections to ensure they can speak up and speak out against powerful interests.
2. We have been putting up with bad law for far too long
This is not about reforming for reforming’s sake. The law as it currently stands not fit for purpose. It enables a statement to be defamatory even if it has not be communicated to a third party; there is no public interest defence, instead depending on a test that can protect journalists, but is too narrowly drawn to offer similar protections for others who publish in the public interest such as academics, scientists, campaigners and civil society more broadly.
Further to this, many of the defences are antiquated and vaguely drawn. The bill makes no distinction between people who produce content and those who share already produced content, such as retweeting or sharing online content; the limitation period is three years as opposed to one; and the law enables the limitation period to restart every time the statement is seen or shared, and in the digital age where content can be shared instantaneously, the viewing of a hyperlink or retweeting something may restart the clock, meaning that the limitation period may never truly end.
3. The groundwork of the Scottish Law Commission is a strong place to start
While not known for its radicalism, the Scottish Law Commission (SLC) recommendations and draft bill include a number of important reforms that significantly protects free expression in Scotland.
The SLC has called for a serious harm threshold that would dissuade vexatious actions or those brought solely to silence criticism and stifle public debate; establishing a public interest defence; reducing the limitation period to one year; placing the Derbyshire Principle (outlawing public bodies from bring defamation actions) on a statutory footing; using a single publication rule to ensure liability cannot run indefinitely when a statement is republished or shared; as well as a number of reforms to protect secondary publishers and online speech. These recommendations establish a strong foundation from which we can campaign for meaningful reform.
4. Harmonisation is not enough; we can be bold
A patchwork of laws across the UK will only breed confusion, exacerbated by the ease of publishing or sharing something that can be viewed across the union – speech seldom stops at the border. Harmonisation, or establishing the same law across the UK, would address this issue but would restrict countries from going beyond one another in a manner that may better protect free expression.
In the six years since the passage of 2013 reform in England and Wales, how we communicate has continued to evolve and we have the benefit of seeing and learning from the reformed law working in the wild. While there are a great many benefits to the reform, many of which have been incorporated into the proposed reform in Scotland, we can be bolder.
An example of this, is the inclusion of the Unjustified Threats mechanism, which enables defenders to bring counter-actions against pursuers who deploy unjustified threats of defamation action to stifle public scrutiny and legitimate criticism. This would be a powerful deterrent against vexatious and malicious actions, while also encouraging meaningful engagement between parties to a defamation action. This is also the chance to address the disproportionate influence of private companies who oftentimes have the economic clout to make defending a defamation action too costly for anyone who tries to hold these companies to account. As they cannot experience psychological damage, private companies should not be able to use defamation laws to counter criticism and while this reform was dropped in Westminster in 2013, now is the time to revisit it in Scotland.
5. Bad defamation laws restrict the free expression of everyone
For too long defamation laws have been seen as something that only affects journalists. While journalists face defamation threats on a regular basis, the law also affects a wide range of people including writers, scientists, academics, bloggers and social media users and represents a significant threat to free expression and civic engagement on a range of important issues including land ownership, corruption, transparency and local governance.
A number of current cases demonstrate this. A volunteer Facebook group moderator in the town of Strathaven is defending an action brought by a property developer due to comments made on the Facebook group, and a prominent land reform expert (now a Scottish Green Party MSP) is defending a £750,000 defamation action for asking public interest questions and scrutinising a conservation charity. Without reformed defamation laws, free expression will always be controlled by wealthy and powerful entities who seek to avoid public scrutiny, criticism and debate.
6. We can all play a role in reforming defamation law in Scotland
23 years is a long time to wait for reform, but with the public consultation we are closer than ever. Last year when announcing the upcoming Programme for Government, First Minister, Nicola Sturgeon announced the intention to bring forward legislation after the consultation.
By getting as many people as possible to take part in the consultation, it will be hard to ignore, demonstrating that reforming defamation in Scotland is imperative to protect free expression and encourage everyone to speak out and stand up for what is important to them.
So if you have a few minutes and want to take a stand for free expression please complete the consultation here. The deadline is Friday 5th April. You can also read the consultation response guide published by Scottish PEN has produced , including background information, key links and template answers.
DefamationScot: Consult-a-thon – 26 March 2019, 6pm – Edinburgh
- Rosalind McInnes, the Principle Solicitor of BBC Scotland and author of Scots Law for Journalist
- Andy Wightman, Scottish Green Party MSP who is currently defending a £750,000 defamation action
- Stephen Blythe, the Community Guardian for Automattic and Internet Law & Policy LLM Course Co-ordinator at the University of Strathclyde.
At this event, participants will be invited to draft and send their consultation response, with experts in the room to answer their questions and support their submissions. Sign up to free tickets through Eventbrite.