An Explainer: Scottish Government Consultation on Defamation

The Scottish Government has published its public consultation on defamation reform. Here is an explainer put together to break down some of the issues and why reform is needed.

February 13, 2019

Scottish PEN has been campaigning for years to reform Scottish defamation law so it cannot continue to be used to silence criticism and stifle public debate. Last month, we moved one step closer with the publication of the Scottish Government’s consultation on reform. We hope this will be the basis of future legislation that will be placed in front of Parliament this year.

We are currently developing campaign materials for our members, supporters and partners, as well as establishing our position on reform, but in the meantime here is an explainer of the consultation and what it means for reform. This is not a total breakdown of the aspects of reform included in the consultation – stay tuned for our full response and our guide for our supporters to get involved.

The Basics

The consultation is open to all individuals and organisations with an interest in reform. The deadline is 17:00 on Friday 5th April and can be completed online – click here for the form. Unlike previous consultations you cannot submit a letter, it has to be via the online form or via post – the postal form is attached to the consultation paper which can be read here: https://www.gov.scot/publications/defamation-scots-law-consultation/

At the end of 2017, the Scottish Law Commission (SLC) published their final report on reform and published a draft of the Defamation and Malicious Publication (Scotland) Bill, which forms the basis of the Scottish Government consultation. The draft bill can be viewed by clicking here

What is defamation?

Defamation is a civil wrong when someone has communicated a falsehood that adversely affects the reputation of the person targeted in the statement. The definition that has been accepted as representing the law of Scotland comes from Sim v Stretch (1936): “would the words tends to lower the plaintiff in the estimation of right-thinking members of society generally?” The statement can be communicated in a number of ways and currently in Scotland it does not need to be communicated to a third party. Common instances are statements printed in newspapers, content aired on the radio or TV, or statements published online, including on social media.

Why does the law need reform?

The law as it stands has not kept pace with changes in how we communicate, source information and publish materials to other people, most notably the advent of online communication platforms. As a result, the law offers few protections for people who use social media and other online platforms. In Scottish PEN’s opinion, the threats of unreformed defamation law are not felt solely in court, with many writers, journalists and activists choosing to delete, unpublish or edit content prior to proceedings through the receipt of legal letters sent with very little oversight or public scrutiny. Reform has long been necessary to ensure that Scots Law accurately reflects how we communicate and the tools we use, as well as modernising it to be fit for purpose for every person of Scotland, irrespective of how they choose to communicate.

Serious Harm Threshold

Currently in Scotland for a defamation claim to be actionable, all it requires is to satisfy the definition of defamation. This can mean that statements that embarrass or cause discomfort can be held to be the basis for an action. This low threshold severely weakens free expression protections in Scotland making it possible for defamation to be used to target legitimate, if robustly communicated, criticism and stifle public discourse. A Serious Harm threshold requires the statement complained of to cause (or will likely cause) serious harm. This is a significant improvement on the existing law and will make it harder for the law to be abused by those seeking to silence others or bring vexatious claims.

Private Companies and Defamation

Currently private companies are able to bring actions against others. Oftentimes defamation law is used by corporations to silence criticism of their products, services or business practices by customers, activists or the wider public. As seen in the McLibel case, where McDonalds sued activists for their criticism of the fast food giant, corporations often have the finance resources to aggressively pursue defamation cases and dwarf the capabilities of the other parties to defend themselves. This unequal access to legal representation means people may stop criticising private companies to avoid costly court proceedings.

Central to defamation is the idea that statements can cause people psychological distress. However, private companies are unable to feel this form of harm and so should not, in our opinion, be able to use this law, especially when other economic delicts and avenues for recourse are available. Scottish PEN believes that private companies should not be able to bring actions as they can skew the playing field in their favour due to their financial resources and stifle any legitimate criticism.

Scottish PEN will campaign to outlaw private companies being able to use defamation law. However, there are a number of compromises that should be seen as necessary fall-back positions, including the requirement for private companies to demonstrate that the statement complained of has caused (or is likely to cause) serious financial harm and establishing a threshold as seen in Australian law, where companies who have more than 10 employees are prohibited from bringing actions. These would be improvements on the law as it currently stands and restricts the ability of corporations to control and restrict free expression across Scotland.

Public Authorities

The Derbyshire Principle states that public authorities, such as councils, government departments and others who deliver public services should not be able to bring defamation actions, to ensure the public are able to scrutinise and criticise these organisations. The SLC recommended that the principle be included on the face of the bill to improve its accessibility. Scottish PEN is supportive of this, but believes we need to ensure that the section of the bill includes the widest range of public authorities including political parties, publicly funded organisations and utilities and other organisations.

Further to this, private companies are increasingly contracted to deliver public services and so should be expected to the weather the same scrutiny and interrogation as public bodies. This is not the case, as while public bodies cannot bring actions, private bodies delivering public services can. This will lead to a ‘postcode lottery’, where the ability of the public to criticise public services will be predicated by who delivers their services not the nature of the criticism.

Unjustified Threats

This is a mechanism developed by Scottish PEN to establish both a higher threshold for bringing defamation actions and an opportunity for counter actions to be brought against unjustified and disproportionate threats that can stifle criticism and public scrutiny. Ensuring pursuers are aware of the possibility of counter suits being brought if the threats of actions are unjustified will establish a significant protection against vexatious claims, while also establishing a process that encourages meaningful discussion between parties and threats of action based on justified and proportionate engagement with the process.

Secondary Publishers

If you share, retweet, like, copy or repost content published by others online via social media, you are a secondary publisher. As defamation law in Scotland has not been meaningfully reformed since 1996, when Facebook founder, Mark Zuckerberg was only 12 years old, there are no significant protections for anyone who expresses themselves online. The consultation attempts to remedy this by defining the author, editor and publisher of each statement in a manner that will restrict liability to only those who fall within these categories. While the categories of author and publisher are sufficiently narrow and robust, the definition of editor needs tightening up, because as it stands it could be used to target social media users who only retweet or share links to the statement in question.

Limitation Period and Multiple Publication Rule

In Scotland you have three years from the point you are aware of an allegedly defamatory statement to bring an action. The point of awareness is different to the point of publication, but is far harder to independently confirm. The SLC recommends reducing this time to one year and this is a position Scottish PEN supports. If a statement is severe enough to be defamatory (and meets the serious harm threshold), it holds that a pursuer would want to seek redress straight away to stop effects of the statement being felt by them or others. To this end, it is important that both the limitation period is reduced to a year and the commencement of the period starts when the statement is published, not when the pursuer is aware of the statement. If a statement causes enough harm to require the courts to intervene, the impact should be felt as soon as the statement was published. Without reform, a substantial amount of time between publication and the pursuer’s awareness can elapse without weakening the ability to bring an action.

The current law also uses the Multiple Publication rule which stipulates that when a defamatory statement is republished, it restarts the limitation period within which an action can be brought. In the digital age, this means that when a statement, or a link to a statement, is shared, retweeted or viewed the limitation period can restart. In practice this means liability for a statement could continue ad infinitum, even when the original awareness or harm of the statement has dissipated. The SLC has recommended replacing this rule with a Single Publication rule, which will mean that sharing or republishing a comment will not restart the limitation period, except when the republication is materially different from the original publication

This is just a snapshot of the reform to defamation law as outlined in the Scottish Government consultation. We will soon publish more information as to Scottish PEN’s position on reform, including resources to help our members, supporters and partners take part in the consultation.