DefamationScot: Tell the Justice Committee to bring forward reform

The Scottish Parliament Justice Committee has announced a call for evidence as part of their scrutiny of the Defamation and Malicious Publications (Scotland) Bill. This is an important step towards reforming the inadequate and out-of-date defamation law that threatens free expression for everyone in Scotland.

For more information about the Justice Committee’s call for evidence: https://www.parliament.scot/parliamentarybusiness/CurrentCommittees/114208.aspx

By presenting what we would like to see in the reform we can ensure that the committee will adequately scrutinise every aspect of the bill and potentially expand on the draft presented to parliament in December 2019 to better protect free expression. This includes restricting private companies from bringing defamation actions and establishing a legal mechanism to protect against unjustified threats. To ensure these are discussed, we need to show that these issues are important

Let the Justice Committee know what you would like to see in a reformed defamation bill

The deadline for the Justice Committee’s call for evidence is Friday 13th March and it is easy for you to have your voice heard.

To help, we have prepared a template email that you can copy and amend as necessary to send to the committee.

Step-by-step Guide:

1. Copy the below message into your email.
2. Amend as appropriate and ensure you replace the copy in [square brackets] as relevant to your situation. Add your name to the end of the message.
3. Add subject: Evidence Submission – Defamation and Malicious Publications (Scotland) Bill
4. Send the email to justicecommittee@parliament.scot

You can also send a hard copy of your submission to:

Justice Committee

Scottish Parliament

Edinburgh

EH99 1SP

Submissions can be made in English, Gaelic, Scots or any other language.

To the convener of the Scottish Parliament Justice Committee,

Response to the call for evidence related to the Defamation and Malicious Publications (Scotland) Bill introduced to Parliament in December 2019

Scotland’s existing defamation is unfit for purpose so [I am / we are] delighted that you are scrutinising this bill with a view to reforming this inadequate and outdated law. As outlined in the draft bill, [I/we] support the inclusion of a serious harm threshold that requires pursuers to prove the seriousness of the harm caused and dissuades vexatious legal action brought only to stifle criticism and public debate, a statutory public interest defence open to anyone seeking to share information in the public interest, establishing a single publication rule that ensures liability for a statement cannot continue ad infinitum for simply viewing a hyperlink or sharing a social media post and further developments that adequately protect everyone who expresses themselves online. Scottish law should reflect the world as it is, not as it was. [I/We] hope these recommendations will be scrutinised and brought forward in a manner that protects free expression and supports everyone who chooses to express themselves, whether online or off.

This goes some way towards improving the law and protecting free expression in Scotland but we can and should go further. For too long, private companies have been able to abuse the law to threaten those who ask questions about their products, services or business practices, knowing that the threat of costly legal action is enough to silence critics, customers, journalists or consumer watchdogs. Access to financial resources should not equal access to rights and as companies cannot feel psychological harm they should not be able to bring defamation actions. While [I/we] support a total restriction, similar to that placed against public authorities, [I/we] believe an approach based on the Australian model that restricts corporation with more than 10 employees from bringing actions is an adequate and important compromise that [I/we] hope will be considered by the committee. There is a further issue that needs to be addressed in your scrutiny. With more public services being delivered by private bodies across Scotland, we are at risk of making the Derbyshire Principle, and s. 2 of the proposed bill, redundant if we do not restrict private companies from bringing legal actions to suppress criticism of how they deliver public functions. This could establish a postcode lottery, where the right to speak out free from the threat of legal action is unequally distributed across different regions of Scotland. This undermines the principle of equality of opportunity, which should be central to any and all laws active in Scotland.

Court actions are an inadequate measure of the impact of defamation law as free expression can be significantly chilled before any action makes its way to court. The sending and receiving of legal letters can dissuade people from expressing themselves due to the threat of costly and time intensive court action. This process is not open to public scrutiny and can be easily skewed by wealthy and powerful pursuers with access to legal representation. The reforms as outlined in the introduced bill do nothing to address the inequality at the heart of this process. [I\We] support the inclusion of a legal mechanism to protect against unjustified legal threats to give defenders the opportunity to bring counter actions that can be brought, both during court proceedings and upon receipt of legal letters to ensure the system is not manipulated by powerful pursuers. This is not another barrier or threshold to overcome but a protection against abuse and a process that can encourage a proportionate and constructive relationship between parties. In fact, if parties participate in a process in good faith, this new mechanism would not be called upon. However, it would transform defamation law in Scotland, encouraging meaningful engagement, while establishing a robust and radical mechanism to ensure people can still speak out and speak up. 

To summarise [my/our] position, we support:

• The inclusion of a serious harm threshold that prevents vexatious or vanity cases from being brought and requires the pursuer to provide evidence as to serious harm or serious financial loss;
• Replacing the Reynolds test with a statutory public interest defence that protects everyone who expresses themselves in the public interest, including journalists, academics, scientists, activists, bloggers and social media users;
• Preventing private companies from bringing defamation actions as they are unable to experience psychological harm and can use their resources to stifle legitimate criticism of their services, products and business practices. This can be accomplished by restricting companies that trade for profit from bringing actions in the same manner as public bodies are; prohibiting companies who employ more than ten people; or preventing private companies from bringing legal actions to suppress criticism of how they deliver public functions to maintain the integrity of s.2 of the introduced bill;
• Ensuring public and private bodies cannot contribute financial or organisational resources to personal defamation actions. This would prevent private actions being used as proxies for institutions trying to stifle criticism;
• Establishing a legal mechanism that prevents the sending of unjustified threats of legal action, outlines a process that enables the bringing of counter actions by defenders, and encourages a proportionate and constructive relationship between parties, both before and during court proceedings; 
• Protecting people who express themselves online by improving s.3(3) of the introduced bill to offer clarity and reflects the different ways people communicate and publish information on online platforms;
• Replacing the multiple publication rule with the single publication rule so liability for a statement cannot continue solely from the viewing of a URL or the sharing of a hyperlink or message;
• Reducing the limitation period from three years to one, which is more than adequate for pursuers to bring actions to protect their reputation.

The last time defamation law was meaningfully reformed was 1996 and in the modern age it fails to protect free expression and the principle of equality for all when accessing their fundamental human rights. This is our chance to change that for the better.

[I/We] look forward to seeing the bill progress through Scottish Parliament and [I/we] hope that we will see a bill that protects free expression for everyone in Scotland. 

Kind regards, 

[NAME]

Access the letter text as a Google Drive document by clicking here