#DefamationScot: Scottish PEN’s Submission to the Justice Committee

Friday 13th March is the deadline for the Justice Committee’s Call for Evidence as part of its scrutiny of the Defamation and Malicious Publications (Scotland) Bill. This is a unique chance to reform the Scottish law of defamation to ensure that everyone in Scotland is free to speak out and speak up.

On 13th March, Scottish PEN submitted our evidence to the Justice Committee and we called for:

• 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.

As part of our submission, we shared:

• A covering letter to the committee;
• Responses to the thirteen questions asked by the committee;
• A line-by-line analysis of the Defamation and Malicious Publications (Scotland) Bill;
• A specimen amendment to restrict private entities with more than ten employees bringing defamation actions;
• A draft amendment to introduce additional provision for unjustified threats, based on the Intellectual Property (Unjustified Threats) Act 2017.

To view our full submission click here

The draft amendment for an unjustified threats legal mechanism was the result of a collaboration between Scottish PEN and Doughty Street Chambers and we are grateful to the support and expertise of Jonathan Price and Clare Duffy.

We have been requested by the committee to give oral evidence on our campaign to reform defamation law and this will help us continue to demonstrate the importance of meaningful reform to ensure everyone can speak out and speak up.