Defamation Reform: Bill introduced to Parliament

On Monday 2nd December, the Defamation and Malicious Publication (Scotland) Bill was introduced to Scottish Parliament. Here is Scottish PEN’s statement on this development

December 3, 2019

On Monday 2nd December, the Defamation and Malicious Publication (Scotland) Bill was introduced to Scottish Parliament. This follows an earlier Scottish Government Public Consultation earlier this year.

View the bill, policy memorandum and explanatory notes here – https://www.parliament.scot/parliamentarybusiness/Bills/113613.aspx

We are pleased to see a defamation law reform bill introduced to Scottish Parliament. There are a number of positive amendments outlined in the bill, including the encouragement towards mediation and increased protections for people using online platforms to share or state their approval or disapproval for specific comments, without editing the original comment. As read, this should include people reposting links, up/down voting, retweeting and liking comments. Existing defamation law in Scotland has not been meaningfully reformed since 1996. That year, the CEO of Facebook, Mark Zuckerberg was only 12 years old so it is no surprise that this law offers inadequate protections for online speech. These reforms announced today go some distance to address this.

This, alongside the inclusion of a serious harm threshold, a statutory public interest defence, increased protections for online speech, the reduction of the limitation period to one year from three and the single publication rule demonstrates the significant ways this reform is a vast improvement on existing law.

Existing defamation law in Scotland has not been meaningfully reformed since 1996. That year, the CEO of Facebook, Mark Zuckerberg was only 12 years old so it is no surprise that this law offers inadequate protections for online speech. These reforms announced today go some distance to address this.

However, we are disappointed that the bill does not include the provision to protect against unjustified threats of legal action that was including in the Scottish Government public consultation. For too long, this law has been used by powerful and wealthy entities to restrict criticism and public scrutiny. This provision would have offered a significant and practical protection for individuals and organisations, including journalists, community groups, activists, scientists, academics and social media users to ensure they can continue to realise their right to free expression and play an active role in society.

We continue to call for the strengthening of the Derbyshire Principle to ensure that private companies delivering public services are held to the same standard as public bodies and are prevented from bringing defamation actions. More broadly, legal actions brought by private companies against their critics can be used to limit public participation. This reform is a long-overdue chance to rein in corporate influence and ensure they are accountable to society. Scottish PEN continues to call for private companies to be unable to bring defamation actions and we will make this case when the bill is scrutinised in Scottish Parliament.

This reform is a long-overdue chance to rein in corporate influence and ensure they are accountable to society.

We look forward to continuing our work reforming defamation law in Scotland, ensuring it is fit for purpose in the modern age. This bill, introduced to Parliament this week, is an important and positive step in the right direction.

Learn more about Scottish PEN’s work campaigning for reform here: https://scottishpen.org/defamation/