MSPs, writers, and journalists demand defamation reform to bring law in line with modern technology in event at Scottish Parliament.June 30, 2017
On a busy Tuesday night at Scottish Parliament we brought activists, journalists, politicians and lawyers together to talk about one thing: the state of defamation law in Scotland and the pressing need for reform.
With half of the assembled panel facing legal action, the need for reform seldom needed reiterating, but with Andy Wightman MSP, Rosalind McInnes, Angela Haggerty and Paulo Quadros, we painted a picture of a country done a disservice by depending on laws last amended over 20 years ago – as Rosalind McInnes stated, we seldom use computers that are that old, so why should we be content to depend of laws of that age?
Despite the seal of approval from former Scottish Justice Minister, Kenny MacAskill, who called defamation laws in Scotland ‘sufficiently robust’, there is a great deal lacking in the statute books that ensures free expression is protected against the powerful or wealthy silencing criticism through defamation threats. We lack any statutory public interest defence, a serious harm threshold that would throw out vanity cases brought solely to silence others, and instead depend on a multiple publication rule that enables liability to roll over ad infinitum. There is a worrying silence when we look for protections for online outlets and commentators – as remarked by the panel, how old would Mark Zuckerberg have been when the 1996 act was passed? Laws seldom age like a fine wine, instead going flat or stale, leaving us all vulnerable.
Andy Wightman MSP, who kindly hosted the session in parliament, opened with a mischievous and detailed outline of the case he is defending related to a blog post he wrote investigating the actions of Wildcat Havens Enterprise CIC. If he loses he will have to pay upwards of £750,000 rendering him bankrupt and unable to continue as an MSP. His case is a clear demonstration of the need for a statutory public interest defence to replace the Reynolds test that is too prescriptive and narrow in its application, prioritising journalism over the sort of public interest reporting Andy has made his name in prior to becoming an MSP. A part of his experience also resonated with everyone on the panel and audience – especially Paulo Quadros who has been defending his own case based on comments made on a community facebook page . The prohibitive costs associated with the court proceedings dissuade people from being able to defend themselves, instead choosing to retract their comments without using any potential defence available to them.
Rosalind McInnes, the Principle Solicitor for BBC Scotland, has literally written the book on Defamation in Scots Law (Scots Law for Journalists) and deals with defamation on a daily basis. Her experience has consistently and constantly revealed the holes in the current law, which leave everyone vulnerable. To Rosalind this is at the heart of free expression in Scotland. She states, “if you don’t think defamation is important, you don’t think freedom of expression is important.” With a defamation case sisted against BBC Scotland related to a documentary about The Rangers’ tax case that is asking for over £3 million, the threat to media freedom and the resultant chill this case could cause anyone wanting to debate this issue couldn’t be more pressing. With the recent acquittal of Craig Whyte, only time will tell if this case will remain on hold.
Defamation law is the legal equivalent of the David vs. Goliath bout, with pursuers able to instruct law firms to send legal letters as liberally as takeaway menus and bankroll lengthy and costly court battles aimed solely at silencing criticism. Never is this approach more apparent than when we look at new media outlets. Angela Haggerty is the editor of CommonSpace and she spoke of the feeling of receiving legal letters during her tenure and how it cultivated a feeling of reluctance towards revisiting the issue. This sense of self-censorship is felt keenly by new media outlets who do not have access to legal representation and seldom have the financial support to survive a court case. The vulnerability of smaller outlets enables pursuers to send out legal letters, with very little intention to bring it to court, while follow up coverage undertaken by more established and well financed media outlets is ignored.
“I have a lot of money”. This statement summarises the powerful driving force behind many defamation cases and rears its ugly head in the case against Paulo Quadros related to a community Facebook page he moderators in Strathaven. Following the sale of a building gifted to the town and managed by the council, people took to the group to hypothesize about the purchaser leading to Paulo being approached by a wealthy building developer who asked for comments to be deleted. A writ was soon sent to Paulo even though he was neither the author nor editor of the piece in question – Scots Law showing its age again in worrying fashion. Defamation is not a law for journalists alone, with many people writing blog posts, reviews and social media content, the expansion of expression is twinned with the expansion of liability – this is the first case of a Facebook moderator being held liable for content posted by others, but I am sure it won’t be the last.
So where does this leave us? The Scottish Law Commission is looking at reform and we will soon have a draft bill to scrutinise. But we need concerted public pressure to ensure that any reform accurately and robustly protects free expression in all of its forms in Scotland. Stay tuned to the campaign to help us call for reform, bringing defamation law up-to-date and protecting everyone who wants to speak up and speak out.