The ability of journalists and members of the public to ask questions, offer criticism and share their opinions on matters of public interest is essential to free expression. This decision only strengthens this position.June 9, 2020
Scottish PEN welcomes the UK Supreme Court’s judgement in the Serafin v Malkiewicz defamation case. The ability of journalists and members of the public to ask questions, offer criticism and share their opinions on matters of public interest is essential to free expression. This decision only strengthens this position.
In 2013, Westminster passed the Defamation Act to reform libel law in England and Wales, including a new range of defences to replace historic rules which were often technical and difficult to establish, particularly for less traditional forms of publishers such as bloggers and social media users. Many of these outdated rules still apply in Scotland – and Scottish PEN are working hard to put that right, ensuring we all have the protections in law we need for open democratic dialogue and debate to take place without the “chilling effect” we know threats of defamation action produce.
In Serafin v Malkiewicz, the Supreme Court held the Court of Appeal applied the wrong legal tests to the case, failing to recognise the new statutory defence of “publications in the public interest” under the Defamation Act 2013 is wider than the Reynolds defence of responsible journalism. In putting the Court of Appeal right on this critical point of law, this judgement will help ensure the courts in England and Wales give proper effect to the new protections for publishers parliament envisaged in passing libel reform in 2013.
We believe Scottish publishers should have the same or better protection in law. In Scotland, the work of defamation reform is still ongoing. The Scottish Government introduced its Defamation and Malicious Publications (Scotland) Bill in December 2019. Its progress through Holyrood has unfortunately been delayed by the pandemic, but if passed, these proposals will make the law more accessible and better protect free expression in Scotland.
As part of that process, Scottish PEN has been at the forefront of arguing the Reynolds defence should be replaced by a more robust statutory “public interest” defence better suited to how Scots communicate in the social media age, along with other critical changes to defamation law, including a “serious harm” test before cases can be brought. We have also championed innovative proposals for Scotland to create new remedies against “unjustifiable threats” of legal action, discouraging powerful social actors from using defamation law to abuse their position and repress legitimate discussion and debate.
The Supreme Court’s decision in Serafin v Malkiewicz powerfully underscores that the message to the courts from defamation reform isn’t “business as usual.”
You can read more about the aims of our Defamation Reform campaign here.
You can find out more about the Serafin v Malkiewicz defamation case below: