Why reforms to Scotland’s defamation law were long overdue

Sunday National, 7th March 2021.

In Holyrood this week, much of the attention was fixed on committee proceedings in the Robert Burns room – and rightly so – but back in the main chamber on Tuesday, MSPs unanimously passed the Defamation and Malicious Publications (Scotland) Bill. In a torrid political week, you could be forgiven for overlooking this landmark change in the law, but it is worth your attention.

My interest here is partly personal and partly professional. Along with my colleague Nik Williams, I’ve spent years working away behind the scenes with ScottishPEN to progress this change in the law, as the proposals wended their way slowly through the Scottish Law Commission, then the Government, then Holyrood. To see these proposals surge across the finish line with the unanimous support of MSPs is the culmination of a huge amount of legal work, reflection and campaigning for change. I really hope they make a positive difference.

Why does it matter? Why reform defamation law in Scotland at all? Defenders of the status quo tended to argue there was no problem here. England may have needed libel reform, but Scots courts aren’t clogged up with defamation actions brought by foreign magnates or bonanza damages award to break the bank. Look through the rolls of the Court of Session, and you’ll find there aren’t terribly many defamation cases at all, in fact – barring the occasional eccentric who decides to pursue personal vendettas or imagined slights. So what’s the issue?

Talk to anyone involved in publishing, however, and a different picture of the effect of defamation law on Scottish society quickly emerges. While the legal disputes may not spill out into court, out of the public eye – in legal correspondence sent “without prejudice” which never receives public circulation – defamation law is felt day and daily by Scotland’s newspapers and broadcasters, and increasingly by bloggers and social media users too. It is anything but a dead letter.

On one level, this is quite right too. People have the right not to have their reputations maliciously trashed by false allegations and inaccurate claims, whether in the mainstream media or online. Responsible journalism demands that stories can be stood up under examination – and cross-examination if necessary. But let’s not be naïve. Scotland is full of formidably lawyered up people with power, resources, and just sometimes – something to hide. The genteel phrase for this is “reputation management,” but at its worst, this is just commercial intimidation with fancier letterheads and longer sentences.

Defamation law has always been a powerful tool in their arsenal to “manage” inconvenient or uncongenial stories about their clients out of the paper or off of the air. This legislation won’t defang these people – but it will make it harder for them to sink their teeth in.

There’s no legal aid in Scotland for defamation actions. It is boutique litigation, out of the price range of most of most Scots – either to pursue or to defend. If you found yourself on the receiving end of a lawyer’s letter, promising to sue the bajesus out of you unless you take down your comment, grovel to the pursuer’s satisfaction, and hand over some money, how would you react? The stubborn amongst you might decide to push back – but pushing back doesn’t come cheap either.

Last year, Andy Wightman was forced to crowdfund over £170,000 to defend himself against a £750,000 defamation action brought by Wildcat Haven Enterprises at the Court of Session over comments published on his blog years before. The former Green MSP was able to rely on public contributions to assemble the funds he needed to defend himself, and Lord Clark ruled in his favour. But in marshalling this defence fund, Wightman had the advantage of a public profile and goodwill and was able to instruct the best media lawyers around.

Most people in this country would not be able to count on that support if they found themselves in similar jeopardy. Many and most of us are likely to capitulate to such threats as a damage-limitation exercise, and count ourselves lucky if we emerge on the other side largely unscathed with a roof over our heads. This isn’t the legitimate protection of reputation. It’s the abuse of power and the muscle of economic advantage.

So what will the new Defamation Act do? How will it change the power dynamic? The centrepiece of the reform is a new “serious harm” test. There’s no distinction between libel and slander in Scots law. Defamation, at its most basic, is saying or publishing anything which “tends to lower the person’s reputation” in the estimation of “ordinary people.” That might strike you as a fairly low threshold for bringing a legal action. To be actionable, the pursuer will have to establish that the defamatory publication has or is likely to cause “serious harm” to their reputation. Where the pursuer is a company or organization, this means “serious financial loss.”

One of the most important changes in this Bill is also the most technical sounding. At the moment, a potential pursuer has three full years from becoming aware of potential defamation to begin proceedings in court. This is called the limitation period. The new Act will trim this back to one year from the publication of the allegedly defamatory statement. It is one thing to give potential pursuers a reasonable period of time to instruct lawyers, consider alternative dispute mechanisms, and failing which to pull together their case. But talk to investigative journalists about their experiences of defamation law, and you’ll begin to hear examples of how this three-year period can act like a sword of Damocles.

Think about it from the journalist’s perspective. Say you’ve written a critical story about the ethics of a company. Say that company writes to you, indicating that they’re considering suing you at some point over the next three years. With this threat hanging over you, would you to write a legitimate follow-up article about your subject, knowing that this might provoke them to follow through on their threat to take you to law? Or might you be tempted to find something or someone else to write about? It takes a brave – or perhaps a reckless soul – to prod a hornet’s nest. Scotland’s news media isn’t flush. Many editors and writers would be inclined to back off in the hopes of a quiet life. And who can blame them? That’s the chilling effect in action.

Then there are the new rules on secondary publishers. Imagine this column defamed someone with deep pockets and a thin skin. Imagine you shared this column on Twitter or Facebook. Under the law as it stands, the person I defamed could come after not only me, this paper and its editor – but you too. If you turn out to be a better financial prospect than this careworn journalist, you better prepare to be rinsed and to spend your Christmas savings on the hourly rate of one of Scotland’s legal houses.

Under the new legislation, this couldn’t happen. Secondary publishers will now have legal safe harbour in the same way as a corner shop owner isn’t held legally responsible for the contents of the publications they sell. A “like” on Facebook or a retweet will no longer run the risk of costing you ten grand. If you do find yourself experiencing baseless threats on this basis, you’ll be in a much stronger position to refer your menacer to the reply given in Arkell v. Pressdram.

You may remember, back in 2013, the pro-independence organisation National Collective came to the attention of Ian Taylor, a multimillionaire, chair of the Vitol Group, and major Better Together donor. The group had published a blog, which essentially pulled together stories the mainstream media had already published about the businessman and the ethics of his organisation. The fact that the allegations had already appeared in the Observer years earlier made no difference to National Collective’s potential liability for repeating them. It was a classic David and Goliath story, facilitated by legislation framed before the advent of social media when everyone with a smartphone, an opinion, and opposable thumbs becomes a publisher with potentially global reach.

Under the common law, the defences to defamation were also a mess of complexity. Even by the ordinary standards of the law, they were inaccessible and complex. This Bill washes away that muddy common law picture, replacing it with three clear and simple defences which people facing allegations of defamation can mount. The first is truth, and applies if the defender can show their statement was “substantially true.” Secondly, Scotland has a new “public interest” defence, which applies to publications which the defender reasonably believed was in the public interest. Lastly, we have the defence of honest opinion, which replaces the sometimes confusing idea of “fair comment.” This defence is the columnist’s and the restaurant reviewer’s friend, protecting sincere expressions of a point of view.

Taken together, the changes represent the most radical shake up of defamation law in Scotland in centuries. Freedom of expression and freedom of inquiry are the beneficiaries. A good day’s work.

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