In this study we hear from over 100 writers, editors, publishers and activists, who detail their experiences of defamation threats and the law, their fears around censorship in public discourse, and their feelings about free expression in Scotland today.June 2, 2021
In partnership with the University of Strathclyde School of Humanities, we sought to determine the impact that defamation law as it stood for decades has had on writers in Scotland. In this study we hear from over 100 writers, editors, publishers and activists, who detail their experiences of defamation threats and the law, their fears around censorship in public discourse, and their feelings about free expression in Scotland today.
In March 2020, the Scottish Parliament voted unanimously to pass the Defamation and Malicious Publications (Scotland) Bill. The Bill became law in Scotland on 21 April 2021. Since 2014, Scottish PEN has been campaigning to reform defamation law in Scotland. Our campaign focused on the need for the law to accurately reflect the modern media landscape, offer effective protection for freedom of expression and provide safeguards for individuals from those seeking to silence reasonable criticism and comment.
We hope that this report illustrates just how necessary these recent reforms are, and can be a useful resource as we continue to better understand the experiences of writers in Scotland.
Download a pdf. version of the report here.
The findings of this study demonstrate that much work needs to be done to support better understanding of defamation law, and to understand the impact threats of legal action have on writers in Scotland. Several important themes emerged from the study which illustrated shared concerns regarding defamation. These themes related to:
Our study found that while the majority of participants published or shared content daily or every couple of days (66.1%), a high percentage felt that their understanding of defamation law was low (47.4%).
In a climate of low understanding of the law, writers are likely to self-censor in an attempt to protect themselves from legal action. In order for free expression to flourish, accessible information about what the law means must be widely available.
The majority of participants also thought that perceived or actual threats of defamation were likely to have a ‘chilling effect’ on free speech in Scotland, with 31% saying this was extremely likely and another 50% saying it was moderately or slightly likely. A ‘chilling effect’ describes when writers and citizens are discouraged from the legitimate exercise of their right to free expression by the threat of legal sanction. These findings suggest a climate of fear and uncertainty, and highlight that self-censorship is a present risk for writers and publishers in Scotland.
For most study participants who had received threats of defamation action in the past (62%), only a small proportion of these requests had felt ‘proportionate’ or reasonable in their requests, suggesting that many complainants pursue vanity cases to silence legitimate comment. 40% found the experience of dealing with such threats ‘extremely negative’ and a further 25% found the process of engaging with potential complainants negative overall. This highlights the considerable financial and personal impact on writers dealing with such communications, and leads us to believe that more work must be done to challenge the culture of unaccountable censorship by those with the means to instill fear in writers through use of legal threats.
While this study focused on the experiences of a relatively small number of participants (118), Scottish PEN is keen to use these findings as the starting point for further awareness-raising work around defamation law. Over the coming months, we hope to engage with a wider cross-section of the writing community, to hear people’s experiences and to share useful resources about what the new law means for them and their work.
In order for free expression to be fully realised in Scotland, writers and publishers of all kinds must feel confident that they understand their rights, as well as the rights of others. As a main goal of our defamation reform campaign was to make the law more accessible to the public, we will work hard to ensure that writers have access to the information, resources and support they need to navigate the law and express themselves freely.
We would like to thank all those who participated in the study for their contributions.