Outdated defamation laws can have a chilling effect on freedom of expression. Scotland deserves better.January 8, 2016
As a recovering lawyer, I received Scottish PEN’s call late last year to sign a letter to the Sunday Herald concerning defamation with particular interest. I was reminded of lectures in Edinburgh’s Old College some twenty years ago, and the handful of computers buried in the bowels of the grand old building that were available for the law students’ use.
Today, much has changed. When I left Edinburgh to practice law professionally in New York, few people in Scotland were concerned with any need for, say, legislation to govern online publications. The idea of an individual writer or a small group of activists publishing a blog that might be read by people all around the world was the stuff of science fiction. So was a Scottish parliament with a debating chamber built in the modern style to encourage consensus. Twenty years later, I returned to a Scotland in a fever of participatory democracy, as writers and Scottish residents of all stripes and nationalities threw themselves into the independence debate. And that tumult of debate has hardly abated in the months since.
However, as Scottish PEN’s November letter to the Sunday Herald notes, it has also been nearly 20 years since Scotland last reviewed its defamation laws. In the meantime, Westminster has introduced a new Defamation Act including measures in English and Welsh law to tackle libel tourism and corporate libel bullying, as well as legislation governing online publications. In light of The Defamation Act 2013, the risk of being subject to a claim for defamation is now materially higher in Scotland, whether because Scots law does not establish a threshold of seriousness or provide for a defence of honest opinion or a clear defence of public interest, because the time bar in Scotland is so lax, or for a number of other reasons. As a result, our abilities to participate as writers, citizens, and individuals in the ancient and twenty-first century debates that carom across Scotland and the British Isles are curtailed by the desiccation of the Scots law of defamation.
As we anticipate the possibility of libel tourism in Edinburgh, it is worth focussing for a second on the chilling effect that an out-dated law of defamation can have on freedom of expression. I recall from many years of practice and experience that far too often legal tactics are not dictated by the merits of an argument. On the contrary, lawyers and parties are all too aware of the power of deep pockets; the impact of the very possibility of litigation; and the utility of swamping a smaller party with a barrage of claims, no matter their validity. We can be sure that legal advisors are informing their clients on reputational management as the modes of communication increase – and informing them further that an alleged defamer may be pressured outside of court into offering to make an apology and pay compensation. The chilling effect I write of will be one that many writers will have felt as they sit down to express their experience, even without knowledge of the details of defamation law, no matter how apparently small the writer’s name or the issue at hand. I know I have.
Today’s Scotland seems to be juggling with an exponentially increasing number of issues of public interest. As Ian Rankin, James Kelman, and over one hundred other members of Scottish PEN have noted, journalists and authors need to be able “to conduct a robust debate on matters of public interest.” This reflects the commitment of Scottish PEN and its members have made in affirming the PEN charter – PEN stands for the principle of unhampered transmission of thought within each nation and between all nations.
As we approach the 2016 Scottish Parliament elections, I hope you will join me in impressing upon our MSP candidates the importance of updating the law of defamation in the forthcoming parliament.
Find out more here:
Read articles in
The Herald: “Why The Herald is campaigning for defamation reform” (18 Nov 2015), “Scots writers including Val McDermid, Ian Rankin and Christopher Brookmyre demand reform of defamation law that ‘threatens freedom of speech'” (18 Nov 2015), “Law Commission welcome Herald campaign to reform defamation” (19 Nov 2015)
Read article in Scottish Legal News: “Writers call for defamation reform in Scotland to prevent market in libel tourism” (18 Nov 2015)
Ricky Brown: Like Robert Louis Stevenson, Ricky Brown took up with an American and settled in New York State. They subsequently returned to Edinburgh where Ricky could recover from a massive haemorrhagic stroke and a legal career. He graduates from the Creative Writing programme later this month. Ricky’s fiction has been published in a number of journals, most recently Scottish PEN’s PENning and FREAK Circus. He has written non-fiction for, and been interviewed by, Brain Injury Journey, recently performed with his band Nerd Bait at the Book Festival, and is working on a novel, The Magic Roundabout. Find Ricky @ricky_ballboy and www.apoplectic.me