Yesterday evening (2.3.21), the Scottish Parliament unanimously passed the Defamation and Malicious Publications (Scotland) Bill and heard the final round of proposed amendments.March 3, 2021
Yesterday evening (2.3.21), the Scottish Parliament unanimously passed the Defamation and Malicious Publications (Scotland) Bill and heard the final round of proposed amendments.
Scottish PEN has been campaigning for this much-needed reform for years and you can learn more about the history of our work here. The Bill, in its final iteration, offers a much-needed improvement on defamation law in Scotland. Scottish PEN’s written submission and oral evidence called for many of the reforms featured in the Bill, including:
– The inclusion of a serious harm test to set a threshold for prosecutable action and protect writers from vanity cases. Scottish PEN argued that the adoption of a serious harm test was ‘critical’ to the success of the Bill, and this point was quoted several times in the final parliamentary debate. While Andy Wightman MSP raised concerns that the threshold was too high, and that an ‘actual harm’ test should instead be adopted, it was the view of parliament that sufficient evidence must be brought by pursuers, and that a lower threshold would have a critical impact on freedom of expression.
– The establishment of a one-year limitation period on bringing defamation action. This important reform ensures writers are no longer subject to a 3-year period of uncertainty, worry and financial loss. It also decreases the likelihood that writers, editors and publishers will be influenced by a ‘chilling effect’ on the subjects they choose to work on, or self-censor in hope of avoiding the threat of years-long, retrospective action. A Stage 3 amendment by Liam Kerr MSP clarified that mediation work or other attempts to resolve disputes outside the court system would not be included in the one-year limitation period.
– The exclusion of secondary publishers from defamation claims. This decision will better reflect the modern media landscape and varied use of social media, meaning that people who share content which they did not write, edit or first publish will not be held accountable (for example, by retweeting a post produced by another writer). The parliament agreed that the scope of the law should ‘focus on the source’ of content, and not those who share it.
– The inability of public bodies to bring defamation action. This will ensure publicly funded organisations are held accountable to the public through legitimate scrutiny and criticism. As was quoted at the final parliamentary debate, public bodies have the opportunity to make the case for their work and reputation ‘at the ballot box’ and should not use the court system to seek judgement on their affairs.
– The agreement of a statutory definition of defamation and consolidation of defences. Placing defamation on a statutory footing will make the law more accessible to the public and make it easier for everyone to understand the law and how it can be used. Scottish PEN argued that the law should be more transparent and bring together all relevant information in a clear and organised way.
– The ability of courts to require the publication of prominent online notices on disputed online content. Scottish PEN supported this Stage 3 amendment, proposed by Fulton MacGregor MSP. This amendment to the Bill will increase transparency around ongoing defamation cases and offer an alternative to premature ‘takedown’ measures in the early stages of legal action, prior to court decision making. John Finnie MSP noted correspondence from a constituent who argued that without this amendment, defendants facing take-down measures would be ‘guilty until proven innocent’. Scottish PEN is pleased that the amendment was passed with cross-party support.
– In relation to the ‘Malicious Publications’ section of the Bill, the onus to provide evidence of malice lies with the pursuer. This means that the responsibility does not lie with writers and publishers to demonstrate the intention of their content. Scottish PEN is supportive of this approach, and believe it further strengthens freedom of expression.
Amendments from Liam Kerr MSP also ensure that changes to the Bill in response to technological advancements are subject to consultation, affirmative procedures and a parliamentary vote.
The reform of defamation law was essential to ensuring effective protection for freedom of expression and the provision of safeguards for individuals from those seeking to silence reasonable criticism. Yesterday’s decision represents the first significant reform in Scotland in 20 years and achieves a balance between the right of individuals to protect their reputation, and the right to free expression.
However, Scottish PEN made other important proposals for the Bill, which were not taken forward. These include the establishment of a new ‘unjustified threats’ defence, which would allow writers, editors and publishers to seek counter-action against threats which have unreasonably impacted them. Many media organisations highlighted throughout the parliamentary process the toll that responding to threats of defamation action had on their resources and ability to work. In the case of unreasonable threats and those pursuing ‘vanity’ cases, this new defence would have allowed those impacted to seek compensation. We also believe this defence would have acted as a deterrent to those with the means to use legal action as a way of suppressing legitimate content they find disagreeable to their interests.
Scottish PEN also argued that private and third sector organisations responsible for the delivery of public services should not be able to bring defamation action. We argued that as many public services are contracted to third parties, the public should be able to comment freely on their delivery. Without this, the public, who may not be aware of the intricacies of public service delivery agreements, would be subject to a postcode lottery. For example, while an individual publicly criticising refuse collection in one Scottish local authority may be exempt from defamation action, in another the contracted company would be able to bring legal action against the same criticism. In yesterday’s parliamentary session, it was argued that as private and third sector companies do not have recourse ‘at the ballot box’ they must be able to pursue legal action through the court system.
Neil Bibby MSP expressed disappointment at this decision, citing the potential ‘chilling effect on media scrutiny’ and noting Scottish Labour’s support for the exclusion of all who deliver public services from the ability to bring defamation action.
Despite our view that the Bill could have been strengthened further, The Defamation and Malicious Publications (Scotland) Bill will undoubtedly modernise and simplify the law, making it easier to understand and shifting the focus in favour of freedom of expression.
You can watch the debate at the link below.
Scottish PEN will continue to campaign on defamation law throughout 2021, raising awareness of what the Bill means, and why these changes were necessary. We are currently undertaking research with the University of Strathclyde to better understand the experiences of those who have been threatened with defamation action. You can complete the anonymous survey, which takes 10-15 minutes to complete, at the link below.