The Bill aims to modernise and simplify the law of defamation and of verbal injury. It implements recommendations in the Scottish Law Commission’s report on defamation. (Scottish Government Policy Memorandum - page 4, reference 17).
The Bill makes changes to the law of defamation and to the law of verbal injury. The Bill is in 3 parts:
You can find out more in the Explanatory Notes document that explains the Bill.
The law on defamation is in common law rules and several pieces of legislation. It was last changed in 1996.
The Bill aims to modernise and simplify the law of defamation and verbal injury in Scotland.
This will:
You can find out more in the Policy Memorandum document that explains the Bill.
The Defamation and Malicious Publication (Scotland) Bill became an Act on 21 April 2021
The Defamation and Malicious Publication (Scotland) Bill passed by a vote of 118 for, 0 against and 0 abstentions. The Bill became law on 21 April 2021.
The Scottish Government sends the Bill and related documents to the Parliament.
Why the Bill is being proposed (Policy Memorandum)
Explanation of the Bill (Explanatory Notes)
How much the Bill is likely to cost (Financial Memorandum)
Opinions on whether the Parliament has the power to make the law (Statements on Legislative Competence)
Information on the powers the Bill gives the Scottish Government and others (Delegated Powers Memorandum)
The Presiding Officer has decided under Rule 9.12 of Standing Orders that a financial resolution is not required for this Bill.
Committees examine the Bill. Then MSPs vote on whether it should continue to Stage 2.
Lead committee: Justice Committee
Each Bill is examined by a 'lead committee'. This is the committee that has the subject of the Bill in its remit.
It looks at everything to do with the Bill.
Other committees may look at certain parts of the Bill if it covers subjects they deal with.
The next agenda item is an evidence session on the newly introduced Defamation and Malicious Publication (Scotland) Bill. It is an opportunity for us to find out more about the purpose of the bill, which we will scrutinise over the coming weeks. From the Scottish Government’s bill team, I welcome Jill Clark, head of the private law unit, and Jo-anne Tinto, a solicitor in the legal directorate.
I refer members to paper 4, which is a paper by the clerk, and paper 5, which is a private paper. I invite Jill or Jo-anne to give us an overview of the bill.
The committee is probably aware of the background to the bill, because you have taken evidence from the Scottish Law Commission. The bill emanates from a Scottish Law Commission report that was published in 2017. That was in response to the fact that, following the commission’s call for evidence on its ninth programme of law reform, quite a few people suggested that defamation is an area of law that is ripe for reform.
The rationale for reform is that, although defamation litigation has not been particularly common in Scotland in recent years, societal changes such as the increased use of internet communication mean that there is more scope than ever for speedy and potentially unfair damage to reputation.
The commission’s 2017 report proposes changes to the law that are generally in line with changes that were made in England and Wales following the commencement of the Defamation Act 2013. One proposal was to introduce a requirement that a right to bring defamation proceedings accrues only if the publication of a statement is to a third party and the publication has caused serious harm. The report also proposed putting on a statutory footing the principle that was laid down by the case of Derbyshire County Council v Times Newspapers Ltd that a public authority has no right at common law to bring proceedings for defamation. The report also proposed putting the common-law defences of veritas and fair statement on a statutory footing; replacing the common law of verbal injury with three statutory provisions on malicious publication; and changing the three-year limitation period to a one-year period.
The Scottish Government carried out its own consultation following the publication of the 2017 report. As a result of that consultation, three additional issues have been included in the bill: a definition of defamation; tightening up on the narrowing of editorial activity; and a provision to allow parties extra time to engage in alternative dispute resolution within the new limitation period.
Thank you—that is helpful. The committee was keen to have legislation on the issue. We felt that there was a need for that to deal with issues relating to investigative journalism and online publication. For a number of reasons, we felt that Scotland was lagging behind and that it was time to look at the issue, so we are pleased to see the bill.
How was it determined that the limitation period in which action can be brought will move to one year from three years?
At the moment, the limitation period is three years and the court has the discretion to extend that if there are good reasons for doing so.
The recommendation to move to one year was in the Scottish Law Commission’s report. It was based on the fact that three years is quite a long time for a defamation claim to manifest itself because if a person has been defamed or harmed by that defamation, that would probably come to light fairly quickly. Moving to one year was more consistent with other jurisdictions. We are following the Scottish Law Commission’s recommendation.
The bill aims to introduce new remedies to reflect the fact that in the past there have perhaps not been as many remedies available in Scotland as there have been in England. Can you say a bit more about what is intended?
Currently, in Scots law, the usual remedy is damages. You can get compensation if you have been defamed and, to an extent, that is it. The bill brings Scots law more into line with other jurisdictions and increases the number of remedies that are available. The bill allows an individual to order the defender to publish a summary of the court’s judgment. It allows a settlement statement to be read out in open court and it enables the court to order the operator of a website to remove a defamatory statement and an author, editor or publisher to stop distributing it. Those are all remedies that some people might find more useful than money because they will make it clear that the defamatory statement was incorrect—it sorts that out.
In addition, the bill contains another remedy: the offer to make amends. It restates the law about the offer to make amends, which is something that can happen before you get to legal proceedings. Somebody could hold their hands up and say, “Okay, I should not have written what I wrote about you, so let me say sorry and make it better with a statement.” That would take the issue out of the legal forum. The bill strengthens that remedy by making it clear that an offer to make amends is deemed to have been rejected if it is not accepted within a reasonable period of time. You cannot just leave the issue hanging; you have to get on with it and conclude the matter. The bill improves the range of remedies that are available.
I have a couple of points to raise. The costs involved can be prohibitive for many people who want to take action. Defamation in the internet age is a huge issue. If someone felt that a post that had been put up about them was defamatory, it would be very costly for them to pursue that. It might have been helpful to introduce a take-down procedure as a way of enabling someone to pursue the issue and have the statement removed, or at least to require the poster to provide their contact details or agree to the post being taken down, without huge costs necessarily being involved.
As I understand it, the bill does not do that. It would be helpful to hear a little about why that is. I know that a UK-wide review is coming, but there is no timeframe for that. It seems that the bill provides an opportunity to strengthen the law considerably more than is being proposed. What is the thinking here?
We have followed the Scottish Law Commission’s reasoning and it did not include a take-down procedure in its report either. We have not replicated the take-down procedure because it has the potential to contribute to the removal of legitimate postings. In our view, that would create an incentive for internet intermediaries to stop requiring personal details when users are registered. We think that that is an undesirable outcome, which is not proportionate or balanced.
We understand that the take-down procedure is not used very much and is not very effective down south. There are avenues for people to pursue someone who defames them on the internet and in print. We did not think that the procedure was a proportionate response and we did not have any evidence that it was working. That is why it was not included in the bill.
You said that there are other avenues but, as I said earlier, they are costly to pursue. If someone does not have the financial means—and everything else that goes with pursuing a defamation case—other avenues need to be open for that person to pursue someone. Does the bill provide that?
There are other remedies—for example, there is the making of amends. The person could contact someone who has said something about them and say that they do not agree with it, and it could be settled out of court. The situation does not always have to go to court. We did not think that the UK bill sorted the problem that it was meant to sort, and that is why we have not replicated it.
Do you have any figures for England? Is Wales in the same position as England? Do you know how many cases have been pursued?
No.
Do they have a take-down procedure?
Yes.
It would be helpful to have those figures.
We can see whether we can find some.
That would be very helpful.
The main thrust of the bill is to balance the right to reputation and the right to freedom of expression. Using the take-down notification service would obviously be a hindrance to freedom of expression and would not necessarily be done in an open forum. It means that an internet service provider could be asked, without open discussion, to take down somebody’s freedom of expression when perhaps it is legitimate. An ISP would have to make that decision. If someone says, “I have been defamed,” would that be the correct and appropriate way to do that? The bill tries to go towards the freedom of expression side of things. To reiterate what Jill Clark said, the take-down notice is used very rarely because the process, which involves contacting an ISP to get them to take something down, is quite cumbersome.
Do you not see that the flipside of that is that someone could claim the right to freedom of expression after saying something untruthful and defamatory about someone else, in the full knowledge that the cost of their doing something about it would be prohibitive? So, they will keep doing it—surely that cannot be right.
That is part of the balancing process; it is quite a difficult balance.
That is the position now.
Yes—that is why I asked whether a take-down procedure would help to at least give remedy to someone who is not in a financial position to go to court. I understand about freedom of expression, but if someone is saying something about someone else that is blatantly defamatory, I assume that we agree that freedom of speech does not extend to someone saying whatever they want about someone because they know that there will be no consequences. The take-down procedure would at least provide a mechanism to someone who does not have the financial means to go to court. We will have to pursue that, but it would be helpful if you could provide some of the information from England and Wales.
One of the remedies is that the court can be asked to get someone to stop circulating something or to remove it via that process.
But the person would have to pay for that.
It would not be like going to a court case; it would mean applying to the court for an interdict.
But they would have to employ a lawyer to do that.
Probably, yes. We take your point and will try to find out more about that.
I very much agree with the points that Shona Robison made and I want to pursue the same issue.
Let me tackle the question from a slightly different perspective. We have all seen the growth of the internet age and social media; although it is a fantastic platform for information and the exchange of opinions, one of the downsides is the extension of the ability for people to make defamatory statements without any proper recourse being available. We are seeing an extension of the platform being used for defamatory statements, and you made the argument about the requirement for a balance between freedom of expression and people not making defamatory statements. You seem to be saying that the bill is more in favour of freedom of expression. My concern is that the evidence shows that the internet is being used to allow people to make defamatory statements without proper recourse and the bill needs to contain a proper mechanism that will restrict those defamatory statements.
11:00The provisions in the bill would apply equally to things that are said on a website or the internet as they would to things that are said in print. The same balances are there in the bill. Other avenues might also be open to people. You might not be being defamed on a website but if somebody is targeting you with hate correspondence or that kind of thing, there are other legal avenues for addressing that.
Has any assessment been made of the number of cases or potential cases on the internet? How will what is being proposed reduce the number of incidents?
There is very little data on defamation cases. We know some of the numbers. The Scottish Parliament information centre briefing includes some numbers of cases that get to court but we do not know about the cases that never get to court or which have gone off-grid. Very little data is available.
The real issue is the number of cases that do not get to court. Even a cursory glance shows that this is a major issue and I think that the committee will return to it.
James Kelly largely covered the point that I was going to raise. There are remedies short of going to court to get individuals to remove defamatory statements—I speak from personal experience. However, they are costly.
Is there any background on the availability of appropriate legal advice? Not every lawyer is prepared to provide the appropriate advice. Internet law seems to be viewed as a bit of a specialism.
It is a specialism. Because we do not have a lot of cases, it has been difficult to build up availability in Scotland. However, the committee heard from some of the specialist defamation solicitors when they came to your round-table discussion. They are out there. Some of them implied that they will give people advice quite freely, at least initially, so it is there. The Law Society can point people in the direction of solicitors who have the necessary expertise.
The question of libel tourism has also been referred to. Is the bill likely to have any implications for that?
I do not think that there is any libel tourism in Scotland. It is not seen as an attractive jurisdiction in which to take a defamation case. There was an issue in England and Wales and the Defamation Act 2013 was an attempt to address that.
If we go in line with what is more or less happening in England and Wales and make the other changes, I do not expect that to open us up to libel tourism. We are certainly not aware that there is any at the moment.
My question is almost the mirror image of that point about libel tourism, and I am just asking it out of interest. If a Scot defames a Scot online and the defence that it is on a server somewhere in South America is not available, I presume that some thought has been given to how the law can be enforced when people use that kind of spurious excuse.
At the moment, a newspaper could be printed in England but purchased in Scotland, so if your defamation happens here, you can raise your action here. Jo-anne Tinto might be better placed to say something about that.
That feeds into what we were saying about the take-down notices. Even if there is a judgment here in Scotland, getting a server in South America to take down that material will be difficult. However, we are not looking to go beyond the borders here. People can raise defamation cases here not only if they live here and the defamation has occurred here but if they live in Europe, for example. The difficulty is that we are living in an international world with the internet, which works across borders, and it makes things a bit more complicated when we are trying to legislate for something that cuts across that.
As there are no more comments or questions for the bill team, I thank you both for attending. We look forward to dealing with the bill and scrutinising it in due course.
That concludes the public part of today’s meeting. Our next meeting will be on Tuesday 24 March, when we will continue our consideration of the Defamation and Malicious Publication (Scotland) Bill. We move into private session.
11:06 Meeting continued in private until 11:47.17 March 2020
Secondary legislation is sometimes called 'subordinate' or 'delegated' legislation. It can be used to:
An Act is a Bill that’s been approved by Parliament and given Royal Assent (formally approved).
This committee looks at the powers of this Bill to allow the Scottish Government or others to create 'secondary legislation' or regulations.
Read the Stage 1 report by the Delegated Powers and Law Reform committee published on 4 February 2020.
A debate for MSPs to discuss what the Bill aims to do and how it'll do it.
MSPs can propose changes to the Bill. The changes are considered and then voted on by the committee.
MSPs can propose changes to a Bill – these are called 'amendments'. The changes are considered then voted on by the lead committee.
The lists of proposed changes are known as a 'marshalled list'. There's a separate list for each week that the committee is looking at proposed changes.
The 'groupings' document groups amendments together based on their subject matter. It shows the order in which the amendments will be debated by the committee and in the Chamber. This is to avoid repetition in the debates.
When MSPs want to make a change to a Bill, they propose an 'amendment'. This sets out the changes they want to make to a specific part of the Bill.
The group of MSPs that is examining the Bill (lead committee) votes on whether it thinks each amendment should be accepted or not.
Depending on the number of amendments, this can be done during one or more meetings.
Documents with the amendments to be considered at this meeting on 26 January 2021:
Good morning, everyone, and welcome to the third meeting of the Justice Committee in 2021. We have received no apologies this morning. We are joined by Andy Wightman and the Minister for Community Safety, Ash Denham. I welcome you both to our meeting.
Our first agenda item is stage 2 consideration of the Defamation and Malicious Publication (Scotland) Bill. Members should have with them a copy of the corrected marshalled list and the corrected groupings for debate.
This is a fully virtual meeting, and we will use the chat function on BlueJeans as the means of voting electronically today. When we vote, I will call for members to type Y in the chat box to record votes for yes; I will do the same in turn for no, for which members will type N, and for abstain, which members will record by typing A. The clerks will collate the results, and I will then have to read not only the results, but the names of who voted which way, so I will identify each member by their vote. If I make a mistake, please alert me straight away through the chat box—by typing R, “mistake” or “idiot”, for instance—and I will then be able to correct the mistake before we move on. As I understand it, once we have moved on, we will not be able to go back and correct earlier errors—no pressure, then. I will take things as slowly as I can, so that we all have time to manage everything properly.
As always, I ask members and the minister to keep their contributions as brief as they can, and always to use the chat function on BlueJeans, typing R in the usual way to catch my attention if they want to speak.
I remind the minister’s officials that they cannot speak during this stage, although they can communicate with the minister directly.
Finally, if we lose the connection to any member or the minister at any point, I will suspend the meeting so that we can try and get them back into the meeting. If we cannot do that after a reasonable time, the deputy convener and I will have to decide how to proceed.
If there are any questions, please ask them now. If not, we will make a start.
Section 1—Actionability of defamatory statements
Amendment 29, in the name of Andy Wightman, is grouped with amendments 30 to 32 and 36. If amendment 29 is agreed to, I cannot call amendments 30 to 32, due to pre-emption.
In policy terms, all these amendments relate to section 1.
In the committee’s stage 1 report, members recommended
“that the Scottish Government reviews the evidence we have heard and sets out a clear statement on why the serious harm test is still required.”
I am not persuaded that the minister has done that in her response to the stage 1 report.
My amendments seek to do three separate things in policy terms. Amendment 29 would remove the serious harm test in its entirety, and any provisions for any threshold test at all. Amendments 30, 31 and 36 would take a different approach: they would retain a threshold test but reduce the threshold from “serious” to “actual” harm.
Amendment 32 stands on its own, providing what I consider to be a more appropriate qualifier to the financial test.
As the committee is well aware, the serious harm test was introduced to the Defamation Act 2013 in England, for reasons that are well known, namely the volume of litigation and the vexatious nature of some of it, and because there was a muddle in English law as a consequence of the distinct wrongs of slander and libel—a muddle that we do not have in Scotland, as I think Professor John Blackie pointed out in evidence. Other arguments were presented to the committee by people such as Campbell Deane and Duncan Hamilton.
The Scottish Law Commission concluded that a threshold was “desirable”, but it spent very little time considering at what height the bar should be set.
Since the introduction of the bill, I, as a legislator, have come to question more and more the justification for a serious harm threshold. My concern is exacerbated by the fact that the bill, in section 1(4), introduces a statutory definition of defamation.
We are therefore in the curious—and, I would say, bizarre—position of proposing to enshrine in law a statutory civil wrong, while saying, in the very same section of the bill, that there is nothing that anyone who suffers that wrong can do about it, unless they can demonstrate that the harm is serious. Who are we, as the legislature, to tell those whom we represent that they cannot pursue justice for a statutory civil wrong that we have created? Amendment 29 deals with the matter bluntly by removing the serious harm test altogether, thereby leaving section 1 as simply defining defamation.
Removing the serious harm test would also remove any threshold for actionability. As members know, in an action before a court, harm is currently presumed. It has to be proven at proof, but there is no necessity to demonstrate any such harm in order for proceedings to go straight to a full proof, with all the attendant costs. An argument for a threshold test can be justified as a means of providing full reassurance to writers, publishers and broadcasters that they will be sued for defamation only if some evidence of actual harm can be demonstrated to a court in a pre-proof procedure. If it cannot, there will be no action.
As an alternative, therefore, to removing the serious harm threshold in its entirety, I propose in amendments 30 and 31 to replace the word “serious” with “actual”. That would necessitate the pursuer evidencing that there had been, or was likely to be, actual harm caused to them before any case could proceed. It is an alternative to getting rid of the test altogether, which is a solution that I would be more comfortable with and which I would encourage the committee to support.
I propose the replacement of “serious” with “actual” for four reasons. First, I do not think that there is any justification for a serious harm test. Secondly, the Supreme Court ruling in Lachaux v Independent Print Ltd means that the English threshold test must depend on the facts and not just the inherent meaning of words. Replacing “serious” with “actual” is therefore consistent with the decision in Lachaux.
Thirdly, as I have already argued, the serious harm threshold conflicts with the statutory wrong that is created in section 1(4), and it may—it almost certainly will, in fact—exclude perfectly valid complaints. Parliament should not deny citizens recourse to the courts where they have suffered harm that falls short of serious harm. Fourthly, and more fundamentally, there is a good case for a procedure whereby the current presumption of harm is assessed according to whether people have actually been harmed.
Amendment 32 would change the test of “serious” financial loss in section 1(3) to a test of “significant” loss. The reason for that is that the term “serious” does not sit well, in my view, as an appropriate qualifier for financial loss. What is serious for a small company may not be serious for a large one. The term “significant” is more proportionate and reflects more precisely the relationship between the loss and the size of the organisation’s financial strength.
I have one more observation to make on section 1(3), which relates to “non-natural” persons that have as their
“primary purpose trading for profit”.
I invite the minister to reflect further on whether that definition is intended to capture community interest companies, which may or may not have profit as their primary purpose. I ask because, in the case in which I was involved as a defendant, the pursuer was a community interest company and, under the common law, had to show patrimonial loss. If some community interest companies do not trade primarily for profit—they still trade for profit, but not primarily—it looks to me as if they will be excluded from the scope of any action for defamation, and I am not sure that that was the intention.
Finally, amendment 36 would amend section 5, which is, as the explanatory notes highlight, designed to replace the phrase “materially injure” in the Defamation Act 1952 with “serious” to ensure consistency with section 1(2)(b) of the bill. Thus, if amendments 31 and 32 are agreed to, the word “serious” should be deleted from section 5. I do not think that it would add anything to insert the word “actual” there, as the threshold test will already have been met by the time defences are being argued at proof, and in order to be consistent with the statutory definition in section 1(3).
These provisions require further scrutiny, stress testing and consideration, and my amendments contribute to that endeavour.
I move amendment 29.
In my contribution to the stage 1 debate on the bill, I asked the minister to further reflect on whether the balance struck in the bill between freedom of expression and—[Inaudible.]—reputation was the right one. To be fair, the minister did just that. She certainly agreed to meet me, and I understand that she also met other members, to discuss the matter in more detail.
I am satisfied that the need to deal adequately with the chilling effect requires an appropriate balancing. That was highlighted by many witnesses who gave evidence to the committee. Following my further testing of the argument with the minister, it is clear to me that she had further reflected carefully on the matter and had marshalled her arguments accordingly.
The Scottish courts have demonstrated their pragmatic approach to procedural matters over many centuries, and I expect that that approach will persist.
I will make a brief contribution in support of Mr Wightman’s amendments.
I remind members of the phrase “access to justice”, which is frequently referred to us. That phrase is often abused in communications with our committee, but Mr Wightman has made a compelling case about the parameters that have been set and the implications that that might have for access to justice. Are we really saying that people would make frivolous claims in that way? It is important that the public feel that gaining access to a court is not about status but is about the rights or wrongs that people perceive, which are for others to judge.
For those reasons, I support Mr Wightman’s amendments.
Good morning.
The threshold test of serious harm is an important reform of the current Scots law of defamation, and it has been the cause of sharply divided opinion among stakeholders and in the Parliament. Perhaps that issue more than any other highlights the delicate balance that is sought between two competing rights: the right to reputation and the right of freedom of expression. The Scottish Government’s view is that, where damage to reputation is presumed, as happens currently, the law does not get the balance right.
The committee has heard directly from stakeholders about how they have experienced the chilling effect. They have told the committee that the threshold test is necessary to give them the confidence to resist attempts that, in their view, are aimed at stifling their free speech. If damage to reputation is always presumed, there can be no such confidence.
The courts in Scotland have set out that, even in a case in which there is found to be minimal damage to an individual’s reputation, an award of damages should be of substance. If more were then to be added on top of that for presumed damage done to reputation, any award would likely have serious consequences. Faced with the threat of defamation proceedings where damage is presumed, even if there is little actual damage, most individuals would probably take the safest option and remove the material complained of. Having a threshold test of serious harm can, in those circumstances, make an important difference. After all, it seems to me only right that, if a person says that their reputation has been damaged, they should have to show to what extent it has been damaged.
As an alternative, amendments 30 to 32 would replace the serious harm test with one of actual harm. I understand that the view is that Scots law should have a threshold test, but that it should not be one of serious harm. However, the proposal in the amendments to change the test to one of actual harm would set the bar too low, meaning that any evidence of harm—no matter how little—would be enough to meet the test, so almost all actions would proceed.
Furthermore, the amendments would signal to the courts that Parliament intended something different from the serious harm test. That would deprive us of the clarity on how courts should treat the threshold test of serious harm that has come with the United Kingdom Supreme Court’s interpretation of section 1 of the 2013 act in England and Wales. The result would likely be a long period of doubt and uncertainty about what the test of actual damage means, which is, of course, the opposite of the certainty in the law that the bill tries to achieve.
That might also have an effect on what is published in Scotland. The publication of allegedly defamatory material often spills over territorial boundaries. Why should the people of Scotland have less protection for free speech than people in England and Wales have?
The committee has heard examples of the chilling effect in Scotland, but having a lower threshold that could easily be breached would not significantly deter such behaviour.
10:15Amendments 31 and 32 would have the effect of removing the serious harm test for companies and replacing it with an actual harm test, whereby “significant” financial loss must be established. That would mean that individuals would need to show actual harm and companies would need to show “significant” financial loss. Amendments 31 and 32 would have the effect of treating such persons differently in law, and I am not sure that I understand why that should be the case. After all, not every company is a multinational or a large company with turnover in the millions of pounds. Many companies in Scotland are small—some are micro-enterprises—and, for them, their reputation will be especially important.
On the drafting of amendment 29, I point out that the removal of section 1(1) of the bill would reinstate the current rule that proceedings for defamation can be brought even if a statement that is complained of is conveyed only to the person about whom it is made and not to a third party. I am not sure whether that is Mr Wightman’s intention, but its effect would go beyond the threshold test of serious harm, and the current drafting of section 1(1) has been welcomed as an important change by a large number of stakeholders.
In all, setting the threshold too low could have serious consequences for freedom of expression. It would not give enough confidence to those who wish to defend their freedom of expression in the face of a defamation action, while making it only slightly more difficult to protect reputation.
I will end with a minor point. On the consequential change that amendment 36 seeks to make, removing the word “serious” from section 5 and failing to replace it would leave a gap in the law, as the policy behind the threshold test would be circumvented.
Therefore, I ask Mr Wightman not to press amendment 29 and not to move his other amendments in the group.
I invite Andy Wightman to respond and to wind up on group 1.
First, I want to follow up on what Annabelle Ewing said. I acknowledge that I had a very productive meeting with the minister on the topic at hand, but we have not concluded anything as a consequence of those discussions.
I am glad that the minister acknowledges that we need a threshold test, and I think that the committee is agreed that we need one. A threshold test is useful to counter the chilling effect. The question is whether that test should be whether the harm is “serious”.
I have two points to make. As the minister said, there was a stark division in the evidence that the committee received on the topic. The Scottish Law Commission was clear that there should be a threshold test, but it did not spend a great deal of time considering whether the test should be whether the harm is “serious”. It took that as a default position, because that was the position in England.
The minister raised the issue of whether the Scots law of defamation should be different from the law in England and Wales when it comes to the actionability test. The argument that we should be entirely consistent with what happens in England and Wales is never made by ministers in many other areas. The Scots law of defamation should develop and evolve on the basis of its own needs. One of those needs is that people in Scotland want access to justice, which they should have. The reasons for the introduction of a serious harm threshold in England are absent in Scotland. I mentioned two of them, and the committee heard about a few more in the evidence that it received.
I come back to my principal concern, which is that section 1(4)(a) creates a statutory wrong whereby
“a statement about a person is defamatory if it causes harm to the person’s reputation”.
What is being said is that if that wrong is committed against someone, they have no redress—they cannot bring any action whatsoever—unless they can demonstrate, possibly at some cost, that that harm is serious. I do not think that that is good law—I think that there is a stark internal contradiction in the bill—and I do not think that it is fair to the people of Scotland, many of whom suffer harm as a result of untrue malicious statements that are made against them. I think that they are entitled to some redress.
Therefore, my purpose in amendments 30 and 31 is to allow evidence of actual harm being caused—in other words, to deal with the problem that people allege exists, which is that lots of frivolous threats are made to people when no harm at all has been caused. The point is that, at the stage at which people write legal letters to one another, they can make any allegation they like about harm. Therefore, there is a good argument for a threshold test, but in my view a test involving “actual harm” is much more appropriate.
If the argument continues beyond stage 2 because my amendments on “actual” are dismissed, I will come back suggesting the word “significant”, perhaps. We need to consider carefully both the justification and the impact of using the word “serious”. There is little justification for its use in Scotland, and it sets up an internal contradiction by creating a statutory wrong and then saying to people, “Your Parliament has created this wrong. You have suffered it, but there is nothing you can do about it.”
I take it that you are pressing amendment 29, Mr Wightman.
I will not press amendment 29. I doubt that there is any appetite for it and the minister mentioned that it unhelpfully deletes one word.
Amendment 29, by agreement, withdrawn.
Amendment 30 moved—[Andy Wightman].
The question is, that amendment 30 be agreed to. Are we agreed? If members do not agree, they should type N in the chat box.
Members are not agreed. There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
McArthur, Liam (Orkney Islands) (LD)
Against
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Kerr, Liam (North East Scotland) (Con)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Robison, Shona (Dundee City East) (SNP)
Tomkins, Adam (Glasgow) (Con)
The result of the division is: For 3, Against 6, Abstentions 0.
Amendment 30 disagreed to.
Amendment 31 not moved.
Amendment 32 moved—[Andy Wightman].
The question is, that amendment 32 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
McArthur, Liam (Orkney Islands) (LD)
Against
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Kerr, Liam (North East Scotland) (Con)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Robison, Shona (Dundee City East) (SNP)
Tomkins, Adam (Glasgow) (Con)
The result of the division is: For 3, Against 6, Abstentions 0.
Amendment 32 disagreed to.
Section 1 agreed to.
Section 2—Prohibition on public authorities bringing proceedings
Amendment 1, in the name of the minister, is grouped with amendments 33, 2, 3, 34, 4 and 35. If amendment 33 is agreed to, I cannot call amendment 2 due to pre-emption.
Section 2 aims to place on a statutory footing the common-law principle that public authorities cannot raise defamation proceedings. Public authorities have a reputation, but they need to protect it using political means and not defamation law. The public interest is best served by allowing unrestrained comment on the actions of democratically elected bodies. That is the fundamental rationale behind the Derbyshire principle. The committee accepted that it is an important principle that should be codified in the bill, but recommended that the section be redrafted to make clearer the Scottish Government’s intention. The four Government amendments in the group will do that.
The Scottish Government has been clear about what it considers to be caught by the Derbyshire principle. The amendments seek to insert an expanded description of what constitutes a public authority. The types of bodies that should be caught by the principle are the various forms of local government and central Government institutions, and include those institutions that they own or control. A court or tribunal is also included.
Section 2 will retain, in proposed new subsection (2)(d), the catch-all definition of what constitutes a public authority. Defamation law is very sensitive to the facts of individual cases, and public service delivery has changed significantly over the past two decades and continues to do so. Having that catch-all definition will provide the required flexibility to ensure that all public authorities that should protect their reputation at the ballot box do so.
The Scottish Government considers that listing all the specific bodies that are prohibited from raising defamation proceedings would, in the long run, be too restrictive. As I have said, models of public service delivery may change and new bodies will be created, while others will become owned or controlled. To have a list in the bill would make it challenging to keep up to date with all such changes and would not allow the law to develop in a satisfactory way. It might be that some governmental institutions that should be prohibited are not, because they have not been added to the list. I will nonetheless commit to providing in the explanatory notes a number of specific examples of the bodies that the Scottish Government considers to be prohibited.
The bill as introduced allows the Scottish ministers to specify persons who are not to be treated as a public authority. The amendment to section 2(6) would allow the Scottish ministers to specify persons who are to be considered a public authority. The power is to be subject to the affirmative procedure, after consultation. That amendment would add flexibility to deal with marginal cases or cases where changes to public service delivery justify a different approach. That is a sensible and proportionate power to take if the narrow list of types of institutions to be prohibited is adopted.
Two minor amendments are to be made to sections 2(4) and 2(5). The first reflects that there is now more than one reference in section 2 to ownership and control and the second clarifies that, in addition to an office-holder, employees can raise defamation proceedings in their own name. That latter issue was raised by some stakeholders during stage 1, and the Scottish Government decided that it was best to put the matter beyond doubt.
On amendments 33 to 35, John Finnie has said that the Derbyshire principle, which section 2 codifies, should be wider than prohibiting governmental bodies from raising defamation proceedings and that private companies and charities that deliver public services should also be prohibited. The Scottish Government does not agree with that approach.
A public authority has the ability to protect its reputation at the ballot box, and a private company can protect its reputation by raising defamation proceedings where its reputation has been unfairly damaged. That right is recognised by our courts and by the European Court of Human Rights. If amendment 33 were agreed to, a private company or charity that delivers public services would no longer be able to protect its reputation. It would not have access to the courts and it would not have the ballot box. How, then, could such a company remedy false and damaging statements that were published about it?
It is not right to strip a private company of its right to raise defamation proceedings on the one hand without at the same time providing it with an alternative way to protect its reputation. Amendment 33 does not achieve the necessary balance between protection of reputation and freedom of expression that the bill tries to seek overall. It is hard to understand why two private companies should have different rights based solely on who they sell services to.
However, the bill makes a number of important changes that will allow individuals to rightly and fairly criticise the delivery of public services even when they are provided by a private company or a charity. It does that while continuing to allow such companies or charities to protect their reputation where necessary.
Amendment 33, in removing subsections (3) and (4), would remove the presumption that bodies that exercise public functions sporadically are not to be considered a public authority. Use of the words “from time to time” is intended to reflect the fact that such entities may operate on a contractual basis but does not preclude the possibility of their being found to be public authorities. Instead, that finding may not be made solely on the basis of their carrying out functions of a public nature from time to time. With that presumption removed, anyone who contracted with a public authority—any large or small company or charity—would risk being considered a public authority. Given the importance of reputation to such businesses or other operations, would they continue to contract to deliver those services? Would they price such risk into their contracts with local or central Government? If so, that might have a financial impact on local authorities.
10:30Even if amendment 33 is agreed to, it is possible that the courts may interpret section 2 narrowly and exclude those bodies anyway. That would be in line with the decisions of the courts to date in relation to what constitutes a public authority under the Human Rights Act 1998. Also, the section is supposed to codify the Derbyshire principle, which is primarily concerned with governmental bodies. As we are all aware, that would mean that it is unlikely that private companies would be included, because they are not governmental bodies, even if they occasionally exercise public functions.
Finally, the drafting of amendments 34 and 35 creates an anomaly. As amended, the regulation-making power would leave it open to the Scottish ministers to exclude governmental bodies and companies owned by Government but not private companies owned by the Government. That seems to create entirely the wrong impression, given the underlying purpose of the provision.
I move amendment 1 and encourage members to support my other amendments in the group.
I invite John Finnie to speak to amendment 33 and the other amendments in the group.
Thank you, convener. [Inaudible.] What we do know is that the rationale for the decision behind the Derbyshire principle was that public bodies should be
“open to ‘uninhibited public criticism’ and that reputation should be protected by political rather than legal means.”
What should public bodies face uninhibited criticism about? It is the delivery of services, performance and the extent to which they effectively serve our citizens. A number of bodies that deliver public services in Scotland have a statutory obligation, which is to serve their shareholders. Is it reasonable that “uninhibited public criticism” should cease just because a function is outsourced?
The phrase “from time to time” was touched on by the minister—I will come back to that shortly.
The committee heard from a number of people about this issue. Dr Andrew Tickell talked about following the public pound in the delivery of public services—I think that many members would warm to that theme. We heard from Guardian News and Media that
“there would be considerable public interest in creating an environment in which people are able to criticize and scrutinise the actions of for profit corporations.”
We also heard concerns about the matter that the minister alluded to, which is efforts made to circumvent some of the issues by initiating proceedings in a person’s name.
The Minister for Community Safety said:
“We need to ensure that we take a flexible approach so that courts can deal with complex and nuanced cases as things develop.”—[Official Report, Justice Committee, 22 September 2020; c 10.]
Depending on the project—or the level of racketeering, but I cannot say that—private finance initiative and public-private partnership contracts typically last 25 to 30 years, and some even longer than 40 years; that has huge implications for public services such as schools and hospitals.
The current sleeper contract, awarded to Serco, is a 15-year contract. The Scottish Prison Service has 13 publicly managed prisons and two that are run by private operators, Serco and Sodexo. Electronic monitoring of people who are on home detention curfew is undertaken by G4S. Significant public money goes on our ferries, and it would seem that Caledonian MacBrayne, which provides routes in the Clyde and Hebrides, is afforded a different approach from Serco—there is a name that keeps recurring—which provides ferries in the northern isles.
I particularly want to talk about an issue that one of our witnesses alluded to in relation to North Lanarkshire. In one of my constituency cases, the provider of care-at-home services was initially a private company, but it had insufficient capacity to provide the level of care that was required; therefore, the service was supplemented by the local authority. Is it not ironic that different approaches would be taken with regard to the totality of care that was provided to the individual?
In his judgment, Lord Keith of Kinkel outlined that
“It is of the highest public importance that a democratically elected governmental body ... should be open to uninhibited public criticism.”
If we look at PPP and PFI, and the reputation of companies in their role in the public sector, where are the checks and balances, given that several Administrations will come and go over the course of such projects?
Section 2(2) contains the definition of “public authority”. The devil is always in the detail, but we did not hear any detail about subsection (6) from the minister. It would be helpful if she could cover that point in her summing up.
This is not an ideological debate on the merits or otherwise of outsourcing public services. I think that my views on that issue are clearly understood. It is about our important scrutiny function. As I said, Administrations can come and go. For example, a 15-year rail contract might be overseen by many Administrations. That is a long time to give added protection to a company that provides an important public service, and which is more than capable of looking after itself.
Parliamentarians have legal privilege, and it would be a source of real regret if we did not extend the right of uninhibited public criticism of the providers of public services to our fellow citizens.
I speak in support of John Finnie’s amendments. If a company or organisation is carrying out a public service, it is important that it is properly scrutinised, and that there is no chilling effect. When we look at how public services are delivered by private companies, quite often the companies are failing. Recently, there was an issue regarding the inadequate meal and lunch packs that were being provided. If the company involved is able to sue, there may be issues when it comes to publicly debating such matters and criticising the company. If the public pound is involved, there should be no chilling effect when it comes to any criticism. I therefore support John Finnie’s amendments.
Thank you. No other member has indicated that they wish to speak in this group, so I ask the minister to respond and wind up.
Most of the comments were about the right to criticise the delivery of public services, which is an important right that the bill already takes seriously. Our approach to the matter and the policy intention of the bill make sure that such criticism is possible.
The bill already makes a number of changes that, when taken in combination, strongly protect the freedom to criticise delivery of public services. There is the serious harm test, the reformed defence of honest opinion and the new defence of publication on a matter of public interest. Those provisions work together to ensure that we protect the ability of individuals to freely criticise the private delivery of public services. Companies would have to show that a defamatory statement had caused “serious financial loss”, and I believe that the committee has heard that that is not an easy thing to prove.
The reformed defence of honest opinion will widen the defence to include facts that a person “reasonably believed” to be true. Dr Scott told the committee that the extended defence
“is innovative and has not been done anywhere else, and it will help Scottish law to move away from the surfeit of technicality in this area of law.”—[Official Report, Justice Committee, 8 September 2020; c 18.]
The new defence of publication on a matter of public interest will also protect the individual’s ability to criticise public services.
I want individuals to be able to discuss openly matters of public importance and significance. Taken together, the reforms that I propose in the bill will provide the necessary protection for that. Although well intentioned, John Finnie’s amendments do not provide that protection and go way beyond our aim of codifying the Derbyshire principle.
The question is, that amendment 1 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Kerr, Liam (North East Scotland) (Con)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Robison, Shona (Dundee City East) (SNP)
Tomkins, Adam (Glasgow) (Con)
Against
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
The result of the division is: For 7, Against 2, Abstentions 0.
Amendment 1 agreed to.
Amendment 33 moved—[John Finnie].
The question is, that amendment 33 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
Against
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Kerr, Liam (North East Scotland) (Con)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Robison, Shona (Dundee City East) (SNP)
Tomkins, Adam (Glasgow) (Con)
The result of the division is: For 2, Against 7, Abstentions 0.
Amendment 33 disagreed to.
Amendment 2 moved—[Ash Denham].
The question is, that amendment 2 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Kerr, Liam (North East Scotland) (Con)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Robison, Shona (Dundee City East) (SNP)
Tomkins, Adam (Glasgow) (Con)
Against
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
The result of the division is: For 7, Against 2, Abstentions 0.
Amendment 2 agreed to.
10:45Amendment 3 moved—[Ash Denham].
The question is, that amendment 3 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Kerr, Liam (North East Scotland) (Con)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Robison, Shona (Dundee City East) (SNP)
Tomkins, Adam (Glasgow) (Con)
Against
Finnie, John (Highlands and Islands) (Green)
The result of the division is: For 8, Against 1, Abstentions 0.
Amendment 3 agreed to.
Amendment 34 moved—[John Finnie].
The question is, that amendment 34 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
Against
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Kerr, Liam (North East Scotland) (Con)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Robison, Shona (Dundee City East) (SNP)
Tomkins, Adam (Glasgow) (Con)
The result of the division is: For 2, Against 7, Abstentions 0.
Amendment 34 disagreed to.
Amendment 4 moved—[Ash Denham].
The question is, that amendment 4 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Kerr, Liam (North East Scotland) (Con)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Robison, Shona (Dundee City East) (SNP)
Tomkins, Adam (Glasgow) (Con)
Against
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
The result of the division is: For 7, Against 2, Abstentions 0.
Amendment 4 agreed to.
Amendment 35 not moved.
Section 2, as amended, agreed to.
Section 3—Restriction on proceedings against secondary publishers
The next group is on secondary publishers. Amendment 5, in the name of the minister, is grouped with amendments 6, 7 and 37.
Section 3 is intended to limit the circumstances in which a defamation action can be brought against a secondary publisher. In short, someone who is not the author, editor or primary publisher of an allegedly defamatory statement should not be capable of being sued, except to the extent that they are responsible for a statement’s content or the decision to publish it. Subsections (3), (4) and (5) set out a number of situations in which a person is not to be considered to be an author, an editor or a publisher.
Those protections are equally intended for an employee or agent of a secondary publisher in the same situation if they are not responsible for the content or the decision to publish the statement that is complained of. That is similar to the current legal position as provided for in section 1 of the Defamation Act 1996. However, some doubt has arisen as to whether the drafting of section 3 adequately carries those protections over into the bill.
For instance, subsection (4) is not framed as being about when someone is or is not responsible for the statement’s content or the decision to publish it. It is framed as being about whether a person is to be considered the author, editor or publisher, so it might not help to answer the question whether an employee or agent is responsible for the content of the statement or the decision to publish it.
To address that, amendments 5, 6 and 7 expressly deal with the position in subsections (3) to (5) and, for the avoidance of doubt, make clear that an employee or agent would—just like their employer or principal—not be liable in the situations outlined in those subsections if the activity described was the only involvement that they had with the statement.
On amendment 37, I understand that stakeholders are wary of the Scottish ministers having the proposed regulation-making power. However, as the Scottish Government has made clear in the delegated powers memorandum that accompanies the bill, the reason for taking that power is to enable the Scottish ministers to future proof the bill. As the bill has progressed, I have tried to express a preference for having as much of the law of defamation as possible in the bill rather than in regulations or court rules.
The drafting of section 3 has largely replicated a similar provision in the Defamation Act 1996. Who could have predicted the changes that social media has brought to us since then? Although there is therefore some merit in leaving the provision in its current form so as to be able to address what the future might bring, I am reasonably confident that only technological developments and changes in the use of technology for dissemination of materials and information would be likely to prompt the Scottish ministers to revisit the provision.
However, I am concerned that the drafting of amendment 37 does not significantly take into account the fact that not all changes in the use of technology for the dissemination of material will be the direct result of technological developments; for example, there might be cases in which technology that is already developed is repurposed. The result might therefore be that those who need protection would have to wait longer for primary legislation to provide it.
I therefore ask Mr Kerr, if he is so minded, not to move amendment 37 at this stage and instead to work with the Scottish Government to ensure that the power of ministers is restricted to reflect technological developments or changes in the use of technology for dissemination of materials and information.
I encourage members to support the amendments in my name, and I ask Mr Kerr to consider not moving his amendment and instead to work with the Scottish Government to develop it further.
I move amendment 5.
Good morning to the committee and the minister. Amendment 37 is a very specific amendment that was suggested by the Law Society of Scotland. As ever, for completeness, I remind members that I am a member of the Law Society of Scotland.
The purpose underlying the amendment is to limit the delegated powers of ministers to technical amendments while allowing the flexibility that the minister just talked about to modernise the law in line with technological developments.
I will explain what I mean by that. The powers to modify sections 3(3) and 3(4) under the delegated powers in section 3(6) are, as drafted, very wide. As the minister said, it of course makes sense to have that provision; we need a provision so that, when changes are needed to take account of technological developments, they can be made easily and quickly.
It also makes sense to preserve a power to clarify the application of the bill to a particular set of circumstances or to when amendment is needed to reflect innovation. That requires to be done easily by regulation. However, it also makes sense to limit that regulation-making power to only such situations, in order to allow the law to be modernised in line with the current principles but without granting the Scottish ministers inappropriately wide powers. I seek to restrict the ability to amend the situations that merit that.
I have listened carefully to the minister, who has made interesting points, and I am interested to hear the committee’s thoughts on the issue. If the minister is so confident that the changes will be limited to technological innovations, why not simply say so in the bill? I would like to listen to contributions to the debate, and I will decide whether to move the amendment when the convener puts the question to me later.
No member has indicated that they wish to contribute to the debate on this group. I will pass back to the minister to wind up and to respond to what has been said.
The Scottish Government wants to take powers to future proof the bill in order to take into account future technological developments. I accept the principle of Liam Kerr’s amendment 37, but I would like to work with him in making a slight edit in order to be satisfied that it does exactly what we want it to do and no more. I hope that he will not move the amendment, which will allow us to work together to make slight edits and lodge it again at stage 3. I accept the principle of what he is trying to achieve.
Thank you, minister. That is clear and helpful.
Amendment 5 agreed to.
Amendments 6 and 7 moved—[Ash Denham]—and agreed to.
Liam Kerr, will you move or not move amendment 37?
The minister has worked closely with me and the rest of the committee on amendments. I have listened to what she has said and I take it in good faith. I look forward to continuing to work with her. On that basis, I will not move amendment 37.
Amendment 37 not moved.
Section 3, as amended, agreed to.
Section 4 agreed to.
Section 5—Defence of truth
I invite Andy Wightman, if he is still with us, to move or not move amendment 36. If Mr Wightman has had to leave, I invite John Finnie to move the amendment on his behalf.
Andy Wightman is double booked; he has another committee meeting to attend. I said that I would move the amendment on his behalf.
Amendment 36 moved—[John Finnie].
The question is, that amendment 36 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
McArthur, Liam (Orkney Islands) (LD)
Against
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Kerr, Liam (North East Scotland) (Con)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Robison, Shona (Dundee City East) (SNP)
Tomkins, Adam (Glasgow) (Con)
The result of the division is: For 3, Against 6, Abstentions 0.
Amendment 36 disagreed to.
Section 5 agreed to.
Sections 6 to 11 agreed to.
Schedule agreed to.
Sections 12 and 13 agreed to.
Section 14—Acceptance and enforcement of offer to make amends
The next group is entitled “Offer to make amends: amount of court awarded compensation”. Amendment 8, in the name of the minister, is the only amendment in the group.
11:00The offer of amends is a helpful way for a publisher who admits that they have published a defamatory statement to apologise and correct the record. In some instances, an offer of compensation is also made. It avoids the need for costly legal proceedings, and the quick resolution can help to restore an individual’s reputation.
The sections that deal with the offer of amends are intended to restate the procedure, not to change it, except for one minor procedural alteration. Evidence to the committee cast doubt on a court’s ability to vary an offer of compensation. Some evidence suggested that that aspect of the offer has not changed and that a court could vary an offer, but other evidence suggested that the drafting excluded that possibility. The committee recommended that the Government clarify the position and put it beyond doubt. Amendment 8 does that: it states explicitly, as the Defamation Act 1996 does, that a court is able to vary an offer of compensation by increasing or decreasing the amount to be paid in compensation from that offered.
I move amendment 8.
Amendment 8 agreed to.
Section 14, as amended, agreed to.
Sections 15 to 18 agreed to.
Section 19—Actions against a person not domiciled in the UK or a member State etc
The next group of amendments concerns changes required as a result of European Union exit on jurisdiction and information society services. Amendment 9, in the name of the minister, is grouped with amendments 10 to 12 and 28.
The matter of civil jurisdiction has been given a great deal of attention because of the UK’s withdrawal from the EU and the subsequent trade agreement. Those changes, and the uncertainty surrounding them, meant that drafting the jurisdictional rules in the bill was always going to be challenging.
Rather than try to second guess the outcome of the withdrawal agreement and trade negotiations, or to take wide powers for the Scottish ministers, the Scottish Government opted to legislate for the legal position at that time. The position is now clearer, and the amendments make the necessary adjustments to take into account the legal position as it stands today.
Amendments 9 to 12 remove references in section 19 to EU-associated terminology such as “member State”, “the Brussels Regulation” and “the Lugano Convention”, as the UK is no longer a member state or a signatory to the Lugano convention in its own right. If those deletions are made, the jurisdictional rules limiting the circumstances in which an action for defamation may competently be brought in a court in Scotland are to be found under the Civil Jurisdiction and Judgments Act 1982.
I point out that the UK has applied to accede to the 2007 Lugano convention as an independent contracting member. The outcome of the application is pending. Once acceded to, that would have implications for jurisdiction in defamation actions. If and when the UK accedes, the Scottish Government intends to use the powers in section 2 of the Private International Law (Implementation of Agreements) Act 2020 to make regulations for those purposes. There is, therefore, no longer a requirement to make separate, specific provision in the bill for regulation-making powers.
Section 34 also reflects the legal position at the time when the bill was introduced. Section 34 would have allowed the Scottish ministers to make regulations on how providers of information society services were to be treated in proceedings for defamation and for malicious publication under part 2 of the bill. Those regulations would have been used to implement the provisions of the EU electronic commerce directive into the bill, had the UK not withdrawn from the EU at the end of January 2020. That regulation-making power is no longer required. The bill provides protections to secondary publishers in section 3 akin to those in the directive—indeed, it goes further. Amendment 28 deletes section 34.
I move amendment 9 and ask members to support the other amendments in my name in this group.
Amendment 9 agreed to.
Amendments 10 to 12 moved—[Ash Denham]—and agreed to.
Section 19, as amended, agreed to.
Section 20 agreed to.
Before section 21
The next group of amendments, on malicious publication, is the biggest group that we will consider today. Amendment 13, in the name of Liam Kerr, is grouped with amendments 14 to 25.
I will deal with my amendments slightly out of order.
Amendments 13 and 25 are basically probing amendments on aligning the law on malicious publication with that on defamation. A number of witnesses thought that that should be explored, and that is what I am seeking to do.
Amendment 13 imports the serious harm test from section 1 into the malicious publication part of the bill. It largely mirrors the approach in section 1, with some minor alterations to reflect the context of malicious publication. In effect, it requires the statement to be published other than to the offended person and that serious harm has been caused.
In the evidence sessions, I expressed a concern that the bar for the wrong of malicious publication is sufficiently lower than that for defamation for potential litigants to be encouraged simply to switch their action from defamation to malicious publication. That cannot have been the intention, and my amendment seeks to ensure that it will not come to pass.
My amendment 25 also seeks to pick up on matters that came out in evidence by making it clear that the defences to defamation proceedings are applicable to proceedings involving malicious publication. When I pressed the point with the minister at stage 1, her view was that such defences would apply and that she would make that clear in the explanatory notes. I recall that because it did not quite stack up with my reading of the bill as introduced. If the minister is right and the defences apply without anything in the bill to that effect, I do not think that the explanatory notes provide sufficient comfort, given the inherent ambiguity. Further, if the defences do not apply, that needs to be explicit.
Amendment 25 seeks to ensure that the defences in relation to defamation also apply in relation to malicious publication. Rather than repeating defamation provisions in the malicious publication part of the bill, the amendment simply provides a new section that sets out that the defences in sections 5 to 7 apply to proceedings brought under the malicious publication part. Given the ambiguity, it is important that the Government’s view on that is expressed and on the record—hence my reason for lodging the amendment.
A separate point is made by amendments 23 and 24. Those amendments seek to put some kind of de minimis on the degree of financial loss that requires to be shown for an action to be brought. At present, section 24 simply requires that a statement is
“more likely than not to cause such loss”,
with no actual loss being required. Members will recall that I was quite concerned about that in the committee’s evidence sessions. My feeling is that that goes back to the low threshold for a cause of action under malicious publication, and I do not think that that is particularly desirable. Therefore, I have lodged amendments 23 and 24, which, in combination, seek to give the courts a power, by act of sederunt, to set a minimum level of loss to a pursuer before proceedings can be brought.
As I have said, the minister has been very helpful in trying to work with me, and, I suspect, with the rest of the committee, throughout the process. She sent me a letter that explained her position on amendments 23 and 24, in which she said that, by operation of law, the principle of de minimis would apply. Of course that is true, but I am all for certainty, so I prefer to offer the option for the courts to set a level. I heard the minister’s response to Andy Wightman’s amendments earlier. If he is right that we need to be clear about the level of harm, what better way to do that than by specifying?
I have wound back a bit, as I think that one would typically expect such a threshold for financial loss to be set by the Government or during the parliamentary process, rather than by the Court of Session. By way of example, I refer to the jurisdiction thresholds that are set in section 39 of the Courts Reform (Scotland) Act 2014. I hope that the committee will consider my proposal to be a reasonable halfway meeting point.
I am interested to hear the committee’s and the minister’s thoughts on my amendments.
I move amendment 13.
I ask the committee to bear with me because a fairly long explanation is required on some points.
The Scottish Law Commission gave a great deal of consideration to the overall issue of verbal injury, as I have said to the committee previously, and to the new statutory cause of action of malicious publication. The definition of malice that the commission came up with reflects the common-law position, and it is the legal test that the Scottish Government took forward when the bill was introduced.
The committee heard evidence that the legal test in the bill was too low a threshold, and in its stage 1 report it called for the test to be strengthened. In particular, the evidence of Professors Blackie and Reid was that the bill’s definition of malice removed the traditional requirement of a “design to injure”.
I understand the committee’s concern that, if the bill is not amended, companies that operate for profit may use a malicious publication action to circumvent the increased protections for freedom of expression brought about by part 1. Given the strength of the committee’s view on the matter and the evidence that it received, the Scottish Government committed to bringing forward amendments to adjust the legal test. Amendments 14 to 22 address that matter.
In the bill as introduced, the legal test of malice is met when the pursuer proves that the imputation complained of was presented as a statement of fact and that the person who made the statement either knew that it was false or was indifferent as to its truth, or publication was motivated by a malicious intention to cause harm to the person’s business or business activities.
The Government’s amendments will alter that test. The pursuer will now have to prove that the imputation complained of was presented as a statement of fact and that the person who made the statement knew that it was false or was recklessly indifferent as to its truth, and that publication was motivated by a malicious intention to cause harm to the person’s business or business activities. Adding the word “recklessly” raises the bar in line with the committee’s concerns. Without that, mere negligence would be enough to fulfil that part of the test. Instead, and in line with the committee’s concerns, to meet the strengthened test a pursuer must show that a defender made a false statement or clearly did not care whether it was true or not and—in addition—that they had a desire to cause harm.
I turn now to Mr Kerr’s amendments. The two delicts of defamation and malicious publication are distinct and the law treats them differently. The balance in each should be based on the features that are unique to it. The serious harm threshold test is needed in the law of defamation because the law makes a number of presumptions that are favourable to the pursuer. It presumes that a defamatory statement is false and made with malice, and—at present—that there is damage to reputation. However, the serious harm test will provide that any such damage will need to be proved in the relevant circumstances. That, I think, creates an appropriate balance between the two presumptions that benefit the pursuer and the serious harm test, which benefits the defender.
The situation in malicious publication is different. As it stands, the pursuer no longer benefits from the presumptions as to falsity and malice but instead defenders benefit from the requirement on pursuers to prove all three of falsity, malice and financial loss. Adding even further burden to pursuers in malicious publication proceedings by way of amendment 13 would, in my view, create an inappropriate balance between the burdens on pursuers and defenders.
To give an example, because this is quite complicated, if an individual said of a company that its staff or owners were incompetent, aggressive and unpleasant, in order to establish proceedings of malicious publication, the company would have to prove that the statement was false, that it was made with malice—the test of which the Scottish Government has brought forward amendments to strengthen—and that it had caused financial loss. Taken together, those are serious hurdles in relation to which the pursuer bears the burden of proof. If it were a defamation action, the burden would be on the defender—that is, the person who made the statement complained of. To then add that the hurdle should be set even higher, as Mr Kerr suggests, would mean that it would be near impossible for a pursuer to raise a successful action.
We should bear it in mind that the Scottish Law Commission thought that malicious publication proceedings were necessary because they fill gaps that would be left open if they were removed. It said:
“were these categories of verbal injury removed, then defamation would be the only actionable form of wrong.”
The effect of amendment 13 would likely be that persons would be left without any legal remedy for the unfair damage that was done to them.
If it is Mr Kerr’s intention to introduce to malicious publication something similar to the threshold test of serious harm in defamation proceedings, I ask him to consider the effect of the drafting of amendment 13 on the law of malicious publication. In copying section 1 of the bill, the member imports legal concepts that are suited to the law of defamation into a different delict.
On amendments 23 and 24, Mr Kerr seeks to allow the Court of Session to set a minimum level of financial loss below which an action of malicious publication cannot be brought. I point out that companies vary in size and turnover, from small family businesses to huge conglomerates. To have a single minimum amount would be unlikely to account for such differences.
It does not seem appropriate to me that something that is so important and which affects the limits of free speech should be left to the rules of court. The minimum level is something that should, and must, be debated and decided on by the Parliament.
I turn to amendment 25. As I have already said, the bill deals with two distinct delicts: defamation and malicious publication. The law treats those two delicts differently, and the contrast between them might have given the impression that the Scottish Government has given defamation more consideration than malicious publication. The idea that the defences to a defamation action, as are laid out in part 1 of the bill, should be repeated in part 2 for a malicious publication action might contribute to that impression. The two delicts are different in nature, and the law presumes different things. It is because of those different presumptions that the law of defamation needs those defences, whereas the law of malicious publication does not.
In defamation, when a statement that is complained of is determined to be defamatory, the law presumes that that statement was false, that it was a statement of fact and that it was made with malice. The law of defamation needs robust defences so that the defender can prove why a statement might not be defamatory. In relation to malicious publication, however, the law does not presume those elements—the wording of the new statutory delicts reflects that point. Instead, it is for the pursuer, and not for the defender, to prove that the statement that is complained of is one of fact.
Accordingly, there is no need for defences in relation to matters of malicious publication: the onus is on the pursuer rather than the defender, so it is open to the defender to dispute any proof that the pursuer might offer. The Scottish Government has clarified the point in the explanatory notes to the bill and the committee has had sight of those notes in advance of this meeting.
Finally, if that argument has not persuaded Mr Kerr, and if he is minded to press amendment 25, I say to him that he would be introducing defences that have developed over a great deal of time in one branch of law into another, with all the unintended consequences that that might cause. The courts would be bound to try to find meaning in the introduction of such defences and it is not at all clear how they would do so in the present circumstances.
Such a change should not be made without further research or consultation. Any statutory defences should be adapted to reflect the new codified versions of the malicious publication delict, and it is particularly telling that the Scottish Law Commission did not feel the need to do that as part of its wide-ranging reform.
I ask Mr Kerr not to press his amendments 13, 23, 24 and 25, and ask members to support my amendments in this group.
11:15No member has indicated that they wish to contribute to the debate. I ask Liam Kerr to respond to what he has heard, to wind up, and to press or withdraw amendment 13.
I will respond briefly. I confirm that I support the minister’s amendments, which are good and—she will concede—called for. I am happy to see those amendments go in the bill.
The minister has spoken persuasively. Her discussion of my amendments 13 and 25 has persuaded me and I do not intend to press amendment 13 or to move amendment 25.
On amendments 23 and 24, I have listened and thrown the ideas around in my head, and I will not move either of them. However, I think that there is something in them. It would be good to talk that through. If the minister does not mind speaking to me about them before stage 3, I might bring something else forward.
I seek leave to withdraw amendment 13.
Amendment 13, by agreement, withdrawn.
Section 21—Statements causing harm to business interests
Amendments 14 to 16 moved—[Ash Denham]—and agreed to.
Section 21, as amended, agreed to.
Section 22—Statements causing doubt as to title to property
Amendments 17 to 19 moved—[Ash Denham]—and agreed to.
Section 22, as amended, agreed to.
Section 23—Statements criticising assets
Amendments 20 to 22 moved—[Ash Denham]—and agreed to.
Section 23, as amended, agreed to.
Section 24—Limit on requirement to show financial loss
Amendments 23 and 24 not moved.
Section 24 agreed to.
Sections 25 and 26 agreed to.
After section 26
Amendment 25 not moved.
Sections 27 to 29 agreed to.
Section 30—Power of court to require removal of a statement etc
We move to the penultimate group of amendments, which is on powers of court in relation to a statement. Amendment 38, in the name of Fulton MacGregor, is the only amendment in the group.
The aim of amendment 38 is to achieve a proportionate balance between the protection of reputation, the right to freedom of expression, and the power of the court to make orders to the operator of a website in the early stages of defamation proceedings.
Section 30 would allow a court to order the operator of a website to remove a statement that is the subject of a complaint. When the court has had the chance to consider the argument from both sides and has come to a full conclusion, an order to remove a statement that has been found to be defamatory is entirely reasonable, and I think that the committee accepted that. However, in the explanatory notes, it is explained that the power
“is not confined to circumstances in which the final outcome of the proceedings has already been determined by the court. Accordingly, the court would be entitled in an appropriate case to grant an order for removal or cessation of distribution on an interim basis, before the final outcome of the proceedings is known.”
In our evidence sessions, concerns about that power were raised by media groups, including the Society of Authors, Scottish PEN, the BBC, The Ferret, civil society, legal academics and organisations including the Open Rights Group, which I thank for its input on amendment 38.
Given those concerns, it is important to consider whether an alternative measure would strike a more proportionate balance. It is in seeking a proportionate balance in the early stages of a defamation dispute in the court system that amendment 38 proposes to amend the court’s power to “remove the statement” and to replace it with a court power to order the website operator to
“state in a prominent location on the website that the statement is subject to such proceedings.”
I should make it clear that amendment 38 seeks to leave intact the power of the court to order the operator by interdict to remove the statement at the end of proceedings. The amendment is focused primarily on when proceedings are on-going, in terms of when the power could appropriately be exercised.
In addition, I point out—although it might be obvious—that nothing in amendment 38 would prevent the website operator from removing, of their own free will, the statement that has been complained of, which they are entitled to do throughout any potential defamation dispute. In practice, operators in such a situation would therefore have a choice between removing the statement and leaving it with a statement in a prominent position, to the effect that it is the subject of proceedings. Committee members can draw their own conclusions about which action operators might choose to take, but the choice would be there.
Amendment 38 seeks to introduce into Scots law the standards for allowing a court to order an appropriate qualification, where an action has been initiated. I believe that it meets the policy objectives of the bill—to strike an appropriate balance between freedom of expression and protection of reputation, to clarify the law, and to improve its accessibility.
All that said, I have had preliminary conversations with the Government and am reassured that we can work together to develop a workable amendment ahead of stage 3. I will obviously listen to what the minister and—if they want to speak—any other members say. However, at this point, given those conversations, I am inclined not to press amendment 38.
I move amendment 38.
As no other member has indicated that they wish to speak, I call the minister to respond.
Section 30 of the bill grants courts a power to order the removal of material that is the subject of defamation, or part 2, proceedings from any website on which it appears. It is intended to provide for the fact that it might not always be possible for the author of material that is the subject of proceedings under the bill to prevent further distribution of the material or to orchestrate its removal.
Under the law as it stands, Scottish courts do not have similar powers to those that are conferred on courts in England and Wales by the Defamation Act 2013. As far as amendment 38 is concerned, I do not see any reason why a court should not have the power either to remove material that is hosted on a website or to append a notice to it.
Although I understand that there are concerns about free speech in relation to removing material altogether, courts would have to consider granting the remedy only where that was justified and, in doing so, would have to balance the right to freedom of expression with protection of reputation. In relevant circumstances, that is a useful remedy that can help to restore a person’s unfairly damaged reputation.
Equally, it would be useful to have in the bill that the court could, where the balance might favour freedom of expression, append a notice to the statement that is being complained of, as amendment 38 would do.
Fulton MacGregor has already said that he is minded not to press amendment 38. I would be more than happy to work with him ahead of stage 3 on an amendment that would reflect the principles behind what he seeks to achieve.
I invite Fulton MacGregor to wind up and to press or seek to withdraw amendment 38.
Given my concluding remarks and what the minister said, I am happy not to press my amendment 38, and to work with the minister ahead of stage 3.
Amendment 38, by agreement, withdrawn.
Section 30 agreed to.
Section 31 agreed to.
Section 32—Limitation of actions
We reach our final group, which is on limitation. Amendment 26, in the name of Liam Kerr, is grouped with amendment 27.
Amendments 26 and 27 concern limitation periods, which members will recall me exploring during evidence taking. I am still not completely persuaded on the one-year limitation point, but I can see all sides of the debate. I do not seek to amend the one-year limitation period.
11:30Under section 19A of the Prescription and?Limitation (Scotland) Act 1973, there is a general power to override time limits, but it does not specifically refer to defamation actions as the English provision under section 32A of the Limitation Act 1980 does. Arguably, there is therefore weaker protection for claimants who, currently, are automatically entitled to bring a case, under the three-year limit.
There is merit in amending section 18A of the 1973 act to make it clear that, over and above what is provided for in section 19A, the court has the power to allow an action to continue beyond expiration of the one-year period. I am not sure that I see a reason not to do that—simply for clarity—and I would be pleased to have the committee’s support on that.
In relation to amendment 27, members will recall that section 33 currently makes provision for mediation and provides a pause in the limitation period, which is helpful. Several witnesses felt that that ought to be extended to other forms of dispute resolution, including arbitration, expert determination and, perhaps, press complaints bodies or ombudsman bodies, so I have drafted the amendment accordingly.
In the minister’s response to me, which I mentioned earlier, she said:
“As to expert determination, this is most useful in technological cases where the technical specification does not meet agreed upon standards. It is highly unlikely that this form of ADR would be utilised in cases of defamation or malicious publication. Accordingly, I don’t think that it is appropriate to include this in the Bill”.
That is as may be, but even if it is “highly unlikely” that a provision will be utilised, it is nonetheless possible that it could be utilised. Accordingly, we should have precision about when limitation would be paused, which my amendment 27 offers.
I considered amending section 32 on mediation, but given that that section has been added separately to an existing section on arbitration, there seems to be logic in keeping the proposed new section separate, too.
For those reasons, I will move amendment 26. I would like to hear, in particular, the minister’s thoughts on amendments 26 and 27.
I move amendment 26.
No member has indicated that they wish to contribute to the debate on the group.
Section 19A of the Prescription and Limitation (Scotland) Act 1973 outlines the “equitable” discretion of a court to override a time limit. The section specifically mentions defamation actions by cross-referring to section 18A of the act, which deals with limitation of defamation actions.
I understand that Liam Kerr has a concern about how the 1973 act compares with the similar act in England and Wales, but no stakeholder has brought up that issue. Limitation and prescription periods for defamation actions formed part of the consultation work that was undertaken by the Scottish Law Commission; the Scottish Government consulted further on limitation periods, after that. The power of a court to override a time limit was never questioned in those consultations.
On amendment 27, I point out that section 19CA of the Prescription and Limitation (Scotland) Act 1973 provides that
“Any period during which an arbitration is ongoing in relation to a”
defamation
“matter is to be disregarded in any computation of the”
limitation period. The Independent Press Standards Organisation and IMPRESS—the Independent Monitor for the Press—which are the two current press regulators in the UK, deal with complaints by way of arbitration, so they are already are caught by that provision.
As to expert determination, it is primarily used in technological cases in which a technical specification does not meet agreed standards.
However, alternative dispute resolution is an effective means of resolving disputes involving defamation or malicious publication proceedings. I welcome Liam Kerr’s efforts to widen the number of situations in which ADR can be used without unfairly penalising the parties who are involved. The Scottish Government needs a little bit more time to consider the drafting of the amendments, but if Liam Kerr is willing, I am sure that, ahead of stage 3, we can work together to come up with acceptable amendments that avoid unintended consequences.
I ask Liam Kerr not to press amendments 26 and 27.
I ask Liam Kerr to respond and wind up, and to press or seek to withdraw amendment 26.
I am grateful for the minister’s comments. There is something there, so I would like us to work together on amendments. I look forward to working with her to achieve that.
Amendment 26, by agreement, withdrawn.
Section 32 agreed to.
Section 33 agreed to.
After section 33
Amendment 27 not moved.
Section 34—Provision of information society services
Amendment 28 moved—[Ash Denham]—and agreed to.
Sections 35 to 40 agreed to.
We come to my favourite question during stage 2 proceedings. The question is, that the long title be agreed to.
Long title agreed to.
That ends stage 2 consideration of the bill. The bill will be reprinted as amended at stage 2, and will be published online at 8.30 tomorrow morning.
The Parliament has not yet determined when the stage 3 debate will be held. Members will be informed of that in due course, along with the deadline for lodging stage 3 amendments. In the meantime, stage 3 amendments can be lodged with the clerks in the legislation team.
I thank the minister and her officials, and Andy Wightman, for joining us.
26 January 2021
Printing changes are changes to the text of a Bill for which amendments are not required. It will not change the legal effect of the Bill.
Revised explanation of the Bill (Revised Explanatory Notes)
More information on the powers the Scottish Parliament is giving Scottish Ministers to make secondary legislation related to this Bill (Supplementary Delegated Powers Memorandum)
MSPs can propose further amendments to the Bill and then vote on each of these. Finally, they vote on whether the Bill should become law
MSPs get the chance to present their proposed amendments to the Chamber. They vote on whether each amendment should be added to the Bill.
Documents with the amendments to be considered at the meeting on 2 March 2021:
The next item of business is stage 3 consideration of the Defamation and Malicious Publication (Scotland) Bill. In dealing with the amendments, members should have with them the bill as amended at stage 2, the marshalled list and the list of groupings.
The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon, if there is a division. The period of voting for each division will be one minute. Members who wish to speak in the debate on any group of amendments should press their request-to-speak button as I call that group.
Members should now turn to the marshalled list.
Section 1—Actionability of defamatory statements
Group 1 is on the serious harm threshold test. Amendment 5, in the name of Andy Wightman, is grouped with amendments 6 and 7.
15:45At stages 1 and 2, I expressed the view that the serious harm threshold is not justified. That is contrary to the view that I once held that the threshold was justified, but I take that view as a legislator considering the evidence that has been presented and in the interests of ensuring that the people of Scotland have a remedy available to them if they feel that their reputation has been harmed. In the Justice Committee’s stage 1 report, members recommended
“that the Scottish Government reviews the evidence we have heard and sets out a clear statement on why the serious harm test is still required.”
I am not persuaded that the minister has done that in her response to the stage 1 report, nor in response to my amendments at stage 2.
My amendments have the effect of removing the serious harm test in section 1 and, while maintaining a threshold test for actionability, modifying it to “actual” harm rather than “serious” harm. I do that for two reasons. First, as I indicated, I do not believe that a threshold of serious harm is justified by the evidence. The serious harm test was introduced to the Defamation Act 2013 in England, for reasons that are well known, namely the volume of litigation and the vexatious nature of some of it, and the muddle that there was in English law as a consequence of the distinct wrongs of slander and libel—a muddle that, as Professor Blackie pointed out in stage 1 evidence, we do not have in Scotland. The Scottish Law Commission concluded that a threshold was desirable but spent very little time considering at what height the bar should be set.
My second reason is that the bill introduces, at section 1(4)(a), a statutory definition of defamation that
“a statement about a person is defamatory if it causes harm to the person’s reputation (that is, if it tends to lower the person’s reputation in the estimation of ordinary persons)”.
It is defamatory if it causes harm. We have never had that before, relying until now on the famous Sim v Stretch test in common law. The Scottish Law Commission never recommended such a statutory definition in its reports or its final draft bill, and therefore we are in the curious and, I would say, bizarre position of proposing to enshrine in law a statutory civil wrong while saying in the very same section of the bill that there is nothing that anyone can do about it unless they can demonstrate that the harm is serious.
If Parliament agrees that that is a problem, there are two ways of dealing with it. First, we could amend section 1(4)(a) to insert the word “serious” in front of “harm”, so as to bring the civil wrong and the actionability thresholds into alignment. Secondly, we could pass my amendments 5, 6 and 7, which retain the statutory definition but amend the threshold test to one of “actual” as opposed to “serious” harm, and thus we would allow everyone who feels that their reputation has been harmed, according to section 1, and according to the bill that we will pass this evening, to have access to justice but to have to demonstrate to the court that the harm is or is likely to be actual harm, and not merely presumed, as is the situation today.
I move amendment 5.
I wish to speak in support of my colleague Andy Wightman’s comments. At the outset, Mr Wightman said that he had reviewed his position. That is a strength, not a weakness, and it has caused me to review my approach. Mr Wightman has talked about the scrutiny that went on at stage 1. In the stage 2 debate, he used the term “appropriate qualifier”. A threshold is needed. I support the view that it should be actual harm rather than serious harm. The Lachaux case is referred to in one of our briefings, and the explanatory notes to the bill say:
“It is anticipated that the Scottish courts will treat Lachaux as persuasive authority and follow a similar approach.”
I find Mr Wightman’s arguments persuasive, not just in that respect but in respect of creating an offence and immediately limiting access to it, because there are not many other remedies. For obvious reasons, I support the amendments in Mr Wightman’s name and encourage colleagues to do likewise.
I have the greatest respect for Andy Wightman’s knowledge and experience of the law of defamation, but I am afraid that I do not agree with his arguments today, which are identical to his arguments at stage 2, when his amendments were either not pressed or, if they were pressed, were defeated—I cannot now remember which.
The reason why I do not support or agree with Andy Wightman’s argument is that the bill does something really important. It does not just modernise the law of defamation so that it is fit for purpose; it shifts the balance between the way in which we protect freedom of speech and the way in which we protect the right to protect one’s reputation and the right to privacy. It shifts that balance subtly but importantly in favour of free speech. One of the key ways in which it does that is by inserting the serious harm test in section 1.
I would be very reluctant indeed to see that shift go backwards. Anybody who knows anything about defamation law in this country—as I said, Andy Wightman knows plenty about it—knows that it does not protect freedom of expression sufficiently robustly. Such things are very important, as is recognised in the evidence on that point that the Justice Committee took at stage 1. For example, Andrew Tickell, from Scottish PEN, said that the serious harm test was
“appropriate in terms of free expression.”
Another example is the evidence that the committee took from the National Union of Journalists:
“If harm has been done to someone’s reputation, it is in everyone’s interests that that is addressed quickly. Having a serious harm threshold allows clarity at an earlier stage”—[Official Report, Justice Committee, 25 August 2020; c 9.]
to ensure that that is done. It has got nothing to do with keeping pace with the law of England and Wales, where the change was made a few years ago, and everything to do with ensuring that our Scots law of defamation holds the correct balance between free expression and protection of the right to reputation. In my judgment, the serious harm test is an important part of the way in which the bill achieves that.
The amendments in this group would have the same effect as amendments 30, 31 and 36, which Andy Wightman lodged at stage 2 and which were rejected by the committee. The threshold test of serious harm is an important reform of the current Scots law of defamation and is central to rebalancing the law of defamation. Indeed, Scottish PEN described the threshold test as
“critical to the heart of the bill”.—[Official Report, Justice Committee, 25 August 2020; c 9.]
Overall, the Scottish Government’s view is that, where damage to reputation is presumed, as happens currently, the law does not get the balance right. The threshold test was recommended by the Scottish Law Commission for a number of reasons and I am certain that the commission considered the need for the test and the level at which it is set very carefully.
Amendments 5 and 6 would replace the serious harm test with one of actual harm. That would set the bar too low, as it would mean that any evidence of harm, no matter how little, would be enough to meet the test. The amendments would signal to our courts that Parliament intends something different from the serious harm test. We would not have clarity on how courts should treat the threshold test of serious harm that has come with the United Kingdom Supreme Court’s interpretation of section 1 of the Defamation Act 2013 in England and Wales. The result would likely be a long period of doubt and uncertainty about what the test of actual harm means, which is the exact opposite of what the bill is trying to achieve.
It is certain, however, that Andy Wightman means the level of actual harm to be lower than serious harm. Why should the people of Scotland have less protection for their freedom of expression than people in England and Wales have?
The minister makes a good point, but my rejoinder would be to ask why we are legislating to create a statutory definition about causing harm but not allowing anyone to take action if the harm that has been caused does not meet the serious harm threshold.
The two things are different. We have the definition, and the serious harm threshold is for actionability. If someone can prove that they have been harmed, they will be able to take that forward in the courts. If you have been harmed, it is important that you are able to show the court how you have been harmed. The serious harm threshold test is extremely important for the overall balance of the bill.
Amendment 6 would have the effect of creating two different thresholds: one for individuals and another for companies and partnerships that trade for profit. Individuals would need to show actual harm and companies would need to show serious financial loss. Not every company is a multinational with an annual turnover in the millions of pounds, however. If the company was an individual or a charity, it could easily show actual harm, but instead it would have to show serious financial loss. Why would the law treat those companies differently? Most companies in Scotland are small or micro-enterprises, and reputation will be vitally important for them.
Andy Wightman has also raised a concern about the law defining a harm but then saying that, if a person has not been seriously harmed, they cannot pursue a civil remedy. I point out to him that the use of thresholds is common in both criminal law and civil law to indicate that a particular level of conduct or damage is required before a particular legal remedy or consequence is appropriate. I will give a couple of examples of that.
First, part 2 of the Adoption and Children (Scotland) Act 2007 concerns the making of permanence orders, whereby parental rights and responsibilities are vested in a local authority. The act states that the court must be satisfied that
“the child’s residence with the person is, or is likely to be, seriously detrimental to the welfare of the child.”
Secondly, the Parliament recently considered and agreed to section 38 of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021. That section sets out a serious failure test that must be met in order to raise successful judicial review proceedings in relevant circumstances. Again, that sets the threshold not just at actual failure but at serious failure.
Those are just a couple of examples, but there are more. It is common for the law to recognise that there may be a wrong but that it does not reach a high enough level to warrant successful court proceedings.
Setting the threshold test too low could have serious consequences for freedom of expression. It would not give enough confidence to those who wish to defend their freedom of expression in the face of a defamation action while making it only slightly more difficult to protect reputation.
The crucial importance of freedom of expression justifies a sensible threshold. Andy Wightman’s amendments would nudge the threshold upwards only slightly from what we currently have. However, in my opinion, that is not high enough.
I ask Andy Wightman not to press amendments 5, 6 and 7. If he does so, I ask members to vote with me in opposing them.
I thank those who have contributed to the debate.
I respect Mr Tomkins’s arguments about shifting the balance. I agree with that; indeed, I agree with the minister on that point. However, in my view, shifting to “actual” harm and doing away with the presumption shifts that.
With respect, Mr Tomkins did not address my critique of creating a new statutory wrong and creating a threshold for actionability in the same section. The minister talked about adoption legislation, for example. It is one thing to set on an on-going basis various criteria and thresholds for actionability, but it is quite another to create a new statutory wrong in a piece of legislation and say in the very same section that there is nothing that can be done about it.
My concern about the bill has been that those who suffer harm—a statutory wrong that we will probably pass tonight—do not have a remedy available to them. That causes me a problem. Nevertheless, I understand the arguments that have been put at stages 1, 2 and 3. I do not expect that my amendment will get much further, but at least I have managed to put the arguments on the record, and Parliament will be able to test them.
Can I assume from that that you are pressing amendment 5, Mr Wightman?
Yes.
The question is, that amendment 5 be agreed to. Are we agreed?
Members: No.
There will be a division. Members will need to access the voting app, so I will suspend Parliament for five minutes to call some members to the chamber and the others to access the voting app.
15:58 Meeting suspended.We are now back in session and we move straight to the vote on amendment 5. There will be a one-minute division.
The vote is now closed. Please let me know if you were not able to vote.
For
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Dornan, James (Glasgow Cathcart) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Marra, Jenny (North East Scotland) (Lab)
McArthur, Liam (Orkney Islands) (LD)
McNeill, Pauline (Glasgow) (Lab)
Rennie, Willie (North East Fife) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Wightman, Andy (Lothian) (Ind)
Wishart, Beatrice (Shetland Islands) (LD)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Reform)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greene, Jamie (West Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Harris, Alison (Central Scotland) (Con)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Yousaf, Humza (Glasgow Pollok) (SNP)
The result of the division is: For 32, Against 86, Abstentions 0.
Amendment 5 disagreed to.
Amendment 6 not moved.
Section 3—Restriction on proceedings against secondary publishers
Group 2 is on secondary publication: regulation-making power. Amendment 1, in the name of Liam Kerr, is the only amendment in the group.
Colleagues will recall that I lodged a similar amendment at stage 2 that sought to limit the delegated powers of ministers to technical amendments, while allowing flexibility to modernise the law in line with technological developments. I will explain what I mean by that.
Section 3(6) enables the Scottish ministers to make regulations to
“modify subsections (3) or (4) to add, amend or remove activities or methods of disseminating or processing material”,
which can be undertaken by a person without them being classified as
“the author, editor or publisher”
or, in the case of
“an employee or agent of such a person”,
being “responsible for” its
“content or the decision to publish it.”
The underlying purpose of amendment 1 is to restrict the regulation-making power in section 3(6) so that it can be used only in consequence of technological developments.
In the committee’s debate at stage 2, it was felt that the proposed power would be too restrictive, so I did not press my amendment, pending discussion with the minister and her officials to ensure that any amendment captured the policy intention more accurately.
I am grateful to the minister and her officials for their assistance, and my redrafted amendment permits regulations to be made only when the Scottish ministers consider it appropriate to take account of two situations. The first involves technological developments—including technologies ceasing to be used—that relate to the dissemination or processing of material. The second involves
“changes in how material is disseminated or processed as a result of such developments”.
Any such regulations would be subject to the affirmative procedure. Stakeholders would have the opportunity to express their views on any proposed change and, ultimately, Parliament would decide whether a proposed change was appropriate. Amendment 1 is good and I seek Parliament’s support for it.
I move amendment 1.
Someone who is not the author, editor or primary publisher of a defamatory statement should not be liable for it, except to the extent that they are responsible for a statement’s content or for the decision to publish it. Section 3 gives effect to that purpose and limits the circumstances in which a defamation action can be brought against a secondary publisher. The Scottish ministers are given regulation-making powers to adjust the subsections that lay out the activities that a person can carry out without being classed as an author, editor or publisher.
The Scottish Government made it clear in its delegated powers memorandum that the reason for taking that power is to future proof the provision to deal with technological changes. Any regulation-making power should not be too expansive, particularly as any regulations that the Scottish ministers make in connection with section 3 will have a significant impact on freedom of expression.
Amendment 1 ensures that the Scottish ministers’ power is not so wide that it will unduly restrict freedom of expression without Parliament’s consent but that it is wide enough to allow the Scottish ministers to account for necessary changes. It is worth remembering that any proposed regulations will be consulted on and will be subject to the affirmative procedure. Stakeholders will have an opportunity to express their views on any proposed change and, ultimately, it will be for the Scottish Parliament to decide whether a proposed change is appropriate.
The amendment achieves the proper balance between making sure that those who need the section’s protection are given it in good time and making sure that the Scottish ministers’ powers to restrict freedom of expression are not unnecessarily wide. I am grateful to Liam Kerr for agreeing to work with the Scottish Government to prepare the amendment and I encourage members to join me in supporting it.
Amendment 1 agreed to.
Section 5—Defence of truth
Amendment 7 not moved.
Section 30—Power of court to require removal of a statement etc
Group 3 is on the powers of the court. Amendment 8, in the name of Fulton MacGregor, is grouped with amendment 9.
Amendments 8 and 9, in my name, follow on from an amendment that I lodged at stage 2. I thank the minister for her commitment to work with me ahead of today.
The aim of amendments 8 and 9 is to achieve a proportionate balance of the protection of reputation, the right to freedom of expression and the court’s power to make orders to a website operator in the early stages of defamation proceedings.
Section 30 provides for the fact that it might not always be possible for the author of material that is the subject of defamation proceedings or proceedings under part 2 in relation to malicious publication to prevent further distribution of the material or orchestrate its removal. To address that, section 30(1) empowers the court to order the removal of material that is the subject of defamation or malicious publication proceedings from any website on which it appears and to order a person
“who was not the author, editor or publisher”
of the material
“to stop distributing, selling or exhibiting material containing the statement”.
Section 30 allows the court to order a website operator to remove a statement that is the subject of a complaint. When a court has had the chance to consider the arguments from both sides and come to a full conclusion, an order to remove a statement that has been found to be defamatory is entirely reasonable.
However, the explanatory notes to the bill set out that the exercise of that power
“is not confined to circumstances in which the final outcome of the proceedings has already been determined by the court. Accordingly, the court would be entitled in an appropriate case to grant an order for removal or cessation of distribution on an interim basis, before the final outcome of the proceedings is known.”
16:15The court’s power to order removal before a full decision has taken place seems unnecessary, given the alternative measures that amendment 8 seeks to introduce. In evidence sessions held by the Justice Committee, concerns were raised by media groups including the Society of Authors, Scottish PEN, the BBC and The Ferret, through legal academics, and from civil society organisations such as the Open Rights Group. I thank all those organisations, particularly Matthew Rice of the latter group, for their input in the development of my amendments.
In seeking to achieve a proportionate balance in the early stages of defamation disputes in the court system, amendment 8 proposes to amend section 30 by introducing a power for the court to order a website operator
“to include on the website a prominent notice that the statement is subject to the proceedings”.
Such a notice must be in a place or on a forum that ensures that a person accessing the statement is made aware of the notice every time that they access the statement.
I should make it clear that amendment 8 seeks to leave intact the power of the court to order the operator, by interdict, to remove the statement at the end of the proceedings. It is focused primarily on when the proceedings are on-going, at which time it would be appropriate to exercise such a power.
Additionally, nothing in amendment 8 would prevent a website operator itself from removing the statement complained of, and they would be entitled to do that throughout any potential defamation dispute. I believe that the addition of a notice power for the court meets the bill’s policy objectives to strike an
“appropriate balance between freedom of expression and the protection of individual reputation; and clarify the law and improve its accessibility.”
I move amendment 8
Mr MacGregor mentioned the Open Rights Group, much of whose work I commend. Indeed, it was via that route that I was lobbied by a constituent who was concerned that
“As things stood you were guilty until proven innocent.”
I commend the words that they went on to say about Mr MacGregor’s amendments:
“These safeguards will better balance the right of freedom of expression online with the need to fairly protect reputation.”
For those reasons, I hope that other members will join Scottish Greens in supporting Mr MacGregor’s worthy amendments.
An important feature of the bill is the range of new powers given to the courts that will help to repair unfair damage done to an individual’s reputation. Ordinarily a court would have awarded damages but, if the Parliament agrees, a court will be able to allow a statement to be read in court, order that a summary of its judgment be published, and order the removal of material from a website.
Section 30 grants courts the power to order the removal of material that is the subject of defamation or part 2 proceedings from any website on which it appears. That is an effective remedy that will, in relevant circumstances, help to prevent on-going unfair damage to an individual’s reputation. A similar power has been conferred on courts in England and Wales by the Defamation Act 2013, and the bill that is before us seeks to grant Scottish courts the same.
There may, however, be situations in which a court decides that removing a statement altogether does not properly balance the rights of protection of reputation and freedom of expression. It could be that the proper balance favours continued publication of the statement complained of, but with a notice affixed to it that lets those accessing it know that it is subject to defamation or malicious publication proceedings. For example, that could be where proceedings are on-going and a court has not yet made a final determination.
The notice permitted by amendment 8 would be attached on the website to the statement complained of, and must be prominent. That means that it cannot be hidden away on some other web page, or set out in tiny print, and therefore easily overlooked by users viewing the allegedly defamatory statement. It must also be visible to each individual user every time that they access the statement, for so long as the proceedings are on-going or for such other time period as may be ordered by the court.
Amendment 8, lodged by Fulton MacGregor, will make all that clear should a court decide to use that power. It is another remedy that a court can use to assist in restoring a person’s unfairly damaged reputation, and is added to the others that the Scottish Government has introduced. Having it on the face of the bill would mean that an individual would know that it is one of a number of remedies that they could seek from a court in order to protect and restore their damaged reputation.
I hope that members will join me in supporting amendment 8.
Does Mr MacGregor wish to wind up?
I thank the minister and her officials again. The amendment that is before members today has not changed substantially from the stage 2 amendment, but, by working with the minister and her officials, we have perhaps been able to find more balance and alleviate any slight concerns that were raised at stage 2.
Amendment 8 agreed to.
Amendment 9 moved—[Fulton MacGregor]—and agreed to.
Section 33—Interruption of limitation period: mediation
Group 4 is entitled “EU exit technical amendments”. Amendment 2, in the name of the minister, is grouped with amendment 4.
Amendments 2 and 4 are technical amendments that arise out of the United Kingdom’s departure from the European Union.
Amendment 2 removes a reference to section 19F of the Prescription and Limitation (Scotland) Act 1973. That section was recently repealed by regulations that have now come into effect following the end of the transition period after the UK left the EU.
On amendment 4, a false and defamatory statement is presumed to be made with malice, and that presumption is rebutted if the statement is subject to qualified privilege. In the event of qualified privilege attaching, it is for the pursuer to prove malice. Qualified privilege arises both at common law and under statute. Part 2 of the schedule lists a number of communications that are privileged, and one such communication refers to “another member State”. As the UK is no longer a member of the EU, amendment 4 will rectify that provision. The amendment will maintain the current position under the law and no restriction of freedom of expression should result.
I ask members to support both the amendments in the group.
I move amendment 2.
Amendment 2 agreed to.
After section 33
Group 5 is on “Interruption of limitation period: media complaints and expert determination”. Amendment 3, in the name of Liam Kerr, is the only amendment in the group.
This is similar to another amendment that I lodged but did not press at stage 2 and that has been revised and improved for stage 3.
Section 33 currently makes provision for mediation, which is helpful, and it will pause limitation during that period. Several witnesses felt that that interruption ought to be extended to other forms of dispute resolution such as arbitration, expert determination and maybe press complaints or investigation by ombudsmen bodies.
Amendment 3 provides that the limitation period of one year will not run during any period of time in which parties engage in certain forms of alternative dispute resolution. Those alternative methods, which I understand the explanatory notes will reflect, are expert determination and a complaints process such as press or ombudsmen complaints. The insertion of a new section into the bill will achieve that aim. I seek to define the two processes in subsection (4) of proposed new section 19CC of the Prescription and Limitation (Scotland) Act 1973. Subsection (2) sets out to provide clarity as to when parties enter and exit such a dispute resolution process.
Given that those processes are not necessarily structured or formal, and given that press complaints bodies are not defined in statute and so are liable to change without a means being provided to update the act short of primary legislation, subsection (5) would grant the Scottish ministers the power to amend the definitions in subsection (4) in response to any future changes in the processes or types of bodies that handle media complaints. Any regulations that the Scottish ministers might make would be subject to the affirmative procedure, in accordance with subsection (6).
Amendment 3 has benefited from the advice and assistance of the minister and her officials, for which I am grateful. As earlier, I will be grateful for Parliament’s support.
I move amendment 3.
I know that a number of members have, over a number of years, taken a keen interest in methods of dispute resolution that do not involve a court. The bill as introduced made provision for mediation in section 33, and Mr Kerr’s amendments extend the coverage of alternative methods of dispute resolution to include expert determination and media complaints processes.
Given the nature of defamation, alternative forms of dispute resolution can be especially useful for resolving disputes. Whether that is done by way of mediation, arbitration, formal complaints processes or expert determination, it seems only right that parties are not penalised for seeking to repair unfair damage without resorting to a court. It also seems right that we give those same parties the time to pursue the options without the threat of running out of time to raise court proceedings in actions of defamation and malicious publication. There is no need to force a party to lodge court proceedings in order to protect their legal rights solely because they are looking for other means to resolve a dispute.
I am grateful to Mr Kerr for agreeing to work with the Scottish Government on the definitions and drafting, and I believe that we have a robust provision that extends the ways in which a defamation or malicious publication dispute can be resolved without the same expense and wait that are involved in a court process.
I support amendment 3, and I hope that members will join me.
Amendment 3 agreed to.
Schedule—Statements having qualified privilege
Amendment 4 moved—[Ash Denham]—and agreed to.
That ends the consideration of amendments.
As members will be aware, at this point in proceedings, I am required under the standing orders to decide whether, in my view, any provision of the bill relates to a protected subject matter—that is, whether it modifies the electoral system and franchise for Scottish Parliament elections. In my view, the bill does no such thing, so it does not require a supermajority to be passed at stage 3.
We will have a short pause before we move on to the debate on the bill.
2 March 2021
Once they've debated the amendments, the MSPs discuss the final version of the Bill.
The next item of business is a debate on motion S5M-24257, in the name of Ash Denham, on the Defamation and Malicious Publication (Scotland) Bill. I invite members who wish to speak in the debate to press their request-to-speak buttons now.
16:28I am pleased to open the debate on the Defamation and Malicious Publication (Scotland) Bill. I thank members of the Justice Committee and its clerks for their work on the bill.
The bill is largely the outcome of work that was undertaken by the Scottish Law Commission, and it takes forward every substantive recommendation that the commission made. I also thank the commission for its valuable work.
It has been mentioned already today, but it is important to reiterate why the law of defamation is significant. The law deals with two competing fundamental human rights: freedom of expression and protection of reputation. As lawmakers, we have to find an appropriate balance between the two, and I believe that the bill gets the balance right. Overall, the aim has been to make sure that our law of defamation is fit for the 21st century, with a clear and accessible framework that balances those two rights. The bill updates defamation law and simplifies it in some key areas by replacing and restating the existing law.
One important reform is that, before a successful defamation action can be raised, a damaging statement must be published to someone other than the person who is the subject of it. Defamation law should be about protecting reputation, but, as the law currently stands, it protects more than that. If we are to say that freedom of expression is to be restricted in order to protect reputation, it is vital to ensure that defamation law is not overextended to protect other interests.
The threshold test of serious harm has been greatly discussed at each stage of the bill’s progress through Parliament. The test will give much-needed confidence to those who are told that they have published a defamatory statement. Scottish PEN described the threshold test as critical and at the heart of the bill. The courts should not be asked to settle defamation litigation when there is little or no harm caused to individual reputation. The consequences for freedom of expression in such a situation should not be underestimated.
Section 2 places on a statutory footing the common-law principle that public authorities cannot raise defamation litigation. A public authority should use the ballot box, not defamation law, to protect its reputation. There has been no decided case on whether the principle applies in Scotland, but legal professionals work on the assumption that it does. If Parliament agrees to the bill, section 2 will put that beyond doubt.
The approach taken on secondary publishers will help to ensure that defamation law is focused on the source of a defamatory statement. Under the present law, secondary publishers are not actively responsible for the content that they host but they can be held liable, and we have heard how liability can lead to secondary publishers taking a cautious approach to content. The law as it stands encourages secondary publishers to remove content, thereby interfering in the exercise of an individual’s free expression. Ultimately, that should be a matter for a court, not secondary publishers, to determine.
Another significant aspect of the bill is that it brings together the main defences to a defamation action. The Scottish Government has taken the opportunity to reform the defences where necessary. For instance, on the defence of honest opinion, one innovative change has been to extend the need to show facts underpinning the opinion to be true, privileged or reasonably believed to be true. Having the defences of truth, honest opinion and publication on a matter of public interest all set out in one place will help defenders to better understand the law, instead of leaving the defences uncodified.
In a defamation action, the usual remedy that is sought and granted by a court is an award of damages, and the bill will widen the range of remedies that are available to those whose reputation has been unfairly damaged. A pursuer will be able to ask a court to remove or affix a notice to a defamatory statement; ask to make a statement in court; or ask that a summary of the court’s judgment be published. Ultimately, for most, the purpose of a defamation court action is to vindicate unfairly damaged reputation, so having new types of remedy to achieve that is a welcome reform.
I will briefly mention the equally important reforms to the law of malicious publication that will be brought about by the bill. The Scottish Law Commission gave a great deal of consideration to the common-law action of verbal injury and the new statutory cause of action of malicious publication that replaces it. The law treats malicious publication actions differently from defamation actions. In a malicious publication action, the law does not presume that the statement complained about is one of fact, is false or was made with malice; each of those elements must be proved by the pursuer. In particular, the test of malice has been strengthened as the bill has progressed—I thank the Justice Committee for its work on that. Malicious publication actions fill a gap in the law that would be left open if defamation was left as the only actionable form of wrong.
The law of defamation in Scotland is due for reform—the latest substantive changes were made more than a generation ago—and it is no longer fit for purpose. Any reform must find a balance between the two competing rights at the centre of any defamation action: the right to protection of reputation and the right to freedom of expression. The bill achieves a more appropriate balance.
Throughout the bill process, I have listened to the views of members across the chamber, and the Scottish Government has lodged a number of amendments in response to concerns or has supported amendments after collaborative work with individual MSPs.
If agreed to by the Parliament, the reforms that will be brought about by the bill will modernise and simplify our laws of defamation and malicious publication.
I move,
That the Parliament agrees that the Defamation and Malicious Publication (Scotland) Bill be passed.
16:34During the stage 1 debate on the bill, I said:
“at the moment, large parts of my week are set aside for reading, questioning and commenting on matters of freedom of speech”.—[Official Report, 5 November 2020; c 57.]
That has not changed—nor should it, as, of course, freedom of expression remains one of our most important fundamental rights, with which we interfere at our peril.
In these times, when technological developments and social media have allowed pretty much anyone to be a publisher, it is imperative both that free speech is protected and that any threats that are caused to it by laws are avoided; however, as the bill acknowledges, there is also the perhaps sometimes competing right to protect one’s reputation. The bill seeks to strike the balance between those two rights.
There is no doubt that striking that balance is not straightforward. The Scottish Law Commission recognised that, as it sought to put the Scots law of defamation on a statutory footing that is fit for the 21st century. As the minister set out, the bill seeks to implement the substantive recommendations of the SLC’s report, particularly in so far as it recommended changes to the common-law rules on verbal injury, a change in the presumption of trial by jury for defamation cases and that public authorities should not be able to initiate defamation proceedings. Many more recommendations were made and included in the defamation bill. It is the view of the Scottish Conservatives that the Defamation and Malicious Publication (Scotland) Bill broadly achieves the balance that is required. We will therefore vote in favour of it at decision time.
Although that balance is achieved, it is fair to say, as Adam Tomkins did earlier, that it has been shifted towards freedom of speech, in so far as it introduces a test of serious harm to the pursuer’s reputation. For a defamation action to succeed, a pursuer will have to show not merely harm but “serious harm” to their reputation. There has been a very interesting debate around that test, which is possibly the most contentious aspect of the bill. According to the policy memorandum, which itself picks up on the Scottish Law Commission’s work, the test was introduced because of a
“lack of authority in Scots common law and the inability of Scottish courts to dispose of trivial claims at an early stage”.
It also brings Scots law into line with the position in England and Wales, which led some during the Justice Committee’s evidence-taking to suggest that it is
“an English solution to an English problem.”—[Official Report, Justice Committee, 1 September 2020; c 13.]
I have found those arguments interesting, because it seems to me that, if there is a lack of authority, arguably the Law Society of Scotland has a point that an extra hurdle could deter claims and thus lead to even less such authority being developed. Although ensuring the ability to dispose of trivial claims feels like the right thing to do, the Faculty of Advocates suggested that
“There is no reason to think that the Scottish courts have”
thus far “been troubled by” such “trivial claims”. However, I have listened carefully to the media respondents in particular, who have said that a serious harm test adds clarity, prevents cases that are without merit from going forward and, crucially, gives them reassurance in publication so as to avoid a “chilling effect”. I find that final point particularly persuasive so, although I see merit in both sides of the debate and am pleased that all views have been heard and considered, on balance I align with the view of the committee—and, I think, of the Parliament—to favour retention of the serious harm test.
I was also somewhat exercised by the sections on malicious publication, which I felt throughout had perhaps not been given quite the same level of attention as others. I was concerned principally about the definition of “malice”, the applicability of defences and a de minimis level of damage akin to the serious harm test. I have been satisfied on all of those, since the minister has acknowledged my concerns and has either worked with me to amend the definition to ensure that any statement must be both “false and malicious” in order to be defamatory, or with her officials has engaged with me in challenging yet constructive debate on the merits or otherwise of my amendments. On that point, incidentally, I think it right and proper to acknowledge the approach of the minister and her officials to the bill; when dealing with me, at least, that has certainly been respectful, constructive and productive throughout.
I had other concerns, principally on limitation, and have observed other colleagues’ challenges. However, concerns that were raised by stakeholders have been, for the most part, addressed either at stage 2 or earlier today. On my concern about limitation, I am content that my amendment was agreed to earlier today, ensuring that not only mediation will stop the clock but that other forms of conciliation could do so.
For that reason, it is my view that the bill strikes the right balance between freedom of expression and protection of individual reputations. Accordingly, the Scottish Conservatives will vote to pass the bill at decision time tonight.
16:39I take this opportunity to thank the Scottish Law Commission for all its work on the bill. I also pay tribute to the members of the Justice Committee for all their scrutiny of the bill to ensure that defamation law in Scotland is fit for the 21st century.
As all members have said this afternoon, it is important that, with the legislation, we strike the proper balance between the freedom of expression and the protection of one’s reputation, which has not always been the case in Scotland’s defamation laws.
By modernising defamation law and including it in statute, rather than relying on common law, we ensure that the law is accessible and that the requirements on individual speech with regard to defamation are made clear. However, by including the definition of defamation in statute, we must ensure that the ability of the courts to develop law through case law is not stifled. Of course, in this digital age, with more and more publications online, technology and communication methods will continue to evolve; so, too, must defamation law, to ensure that it remains fit for purpose. I welcome the Scottish Government’s assurances that it will address that, and welcome the other changes that the minister has made to address other concerns and issues throughout the bill’s passage.
I am aware that there has been much discussion during the bill’s passage about the introduction of the serious harm test, which is a significant change to the current Scots law on defamation, but one that is similar to the legislative change that was made through the Defamation Act 2013 in England and Wales. As I said, we need to ensure that we strike the proper balance between freedom of expression and the protection of one’s reputation. As it stands, current defamation law can have a chilling effect on media scrutiny and freedom of speech, as those with sufficient resources can bring vexatious cases and make litigation threats. We need to prevent vexatious cases from being brought, but I recognise the concern that the serious harm test takes us past that point. The amendments lodged by Andy Wightman to counteract the chilling effect were unsuccessful. I state for the record that Scottish Labour supported those amendments.
The legislation also codifies the Derbyshire principle, whereby public bodies cannot bring defamation actions. I noted that, at stage 2, further clarity was added to the bill on what bodies would be caught under the definition of a public authority. However, Scottish Labour believes that that did not go far enough and is disappointed that the proposals to include private and charitable organisations that deliver public services in the Derbyshire principle were not supported by the Government or the Justice Committee. In such cases, it is vital that the public interest defence be rigorously applied, to ensure that that does not add to the chilling effect in relation to discussions about or criticism of public activities being administered by private bodies.
Scottish Labour also believes that actions available to the courts prior to a case being decided must be proportionate. We supported Fulton MacGregor’s amendments, which removed the powers afforded by the bill for courts to order that material subject to legal proceedings be removed. That will instead be replaced with the ability to attach a prominent notice to such materials or publications identifying that they are subject to legal action.
The bill is necessary to modernise Scotland’s defamation laws and make them fit for purpose. The bill can also rebalance the law to limit the chilling effect and promote freedom of expression. Scottish Labour can and will support the bill at decision time.
16:44It is appropriate that I join others in thanking those who have brought us to this point. We have heard that every one of the Scottish Law Commission’s substantive recommendations was progressed. The Justice Committee met the commission. I thank it for its work, not just on this matter, but in relation to other matters.
I also thank the minister and her officials. I can vouch for the manner of engagement to which others have referred. I met the minister, along with Andy Wightman. Although our meetings did not quite bring the result that others did, differing views were genuinely held, and I thank the minister for how she went about that. I also thank the committee and other parliamentary staff, who worked tirelessly for us, and the witnesses, who gave evidence both in person and in writing—and indeed all those who provided briefings.
I do not think that anyone would dispute that the bill has had detailed scrutiny. We have had some very good debate, and everyone entered it with the same goal: to make good legislation.
The briefing from the Scottish Parliament information centre was one of the initial papers that we had on the bill, and it covers the pivotal issue of the balancing of rights, which has been referred to throughout our consideration of the bill—and which will continue to be referred to. There is a note in that briefing that is worth repeating:
“Scots law was grappling with issues around freedom of expression, individual privacy and protection of reputation well before human rights came into the frame. However, the requirement to uphold the rights contained in the European Convention on Human Rights brought an additional dimension to this balancing act.”
As we know, we can only pass legislation that is compatible with the convention. As with many things, and most legislation, the bill has involved striking a balance between competing factors: the appropriate balance between the right to freedom of expression contained in article 10 of the convention and the right to respect for private life in article 8. It is the conclusion of the Scottish Green Party that that balance has been struck. For that reason, we will be supporting the proposed legislation at decision time tonight.
That particular balance is not unique to the Defamation and Malicious Publication (Scotland) Bill. The Justice Committee is presently wrestling with the reality of reflecting both those important rights—freedom of expression and the right to respect for private life—in the Hate Crime and Public Order (Scotland) Bill, in which both those issues are starkly in play.
As the SPICe briefing notes, under the ECHR:
“The right to freedom of expression protects the right to hold and exchange information and opinions”.
To state the obvious, the bill is not new law; it is a matter of moving to a statutory definition and clarifying the law. As the SPICe briefing also says:
“much of the current law is obscure and based on judges’ decisions in previous court cases.”
It goes on:
“The Bill aims to make the law easier to understand”.
We will see how that goes. Many people have difficulty understanding the law. The briefing says that the bill
“strengthens existing defences e.g. in relation to publication in the public interest.”
We have again debated thresholds today, and the change under the bill from there being no express harm threshold in the law, to serious harm to reputation being required. The Law Society of Scotland, perhaps for different reasons from Mr Wightman and me, continues to have reservations about that element. It is clear that much of the law is opinion, even emphasis and exceptions, rather than fact. We saw that in the discussions on Mr Wightman’s amendments. I say again: differing views are genuinely held.
A further parallel with the Hate Crime and Public Order (Scotland) Bill comes with the potential for a chilling effect. The consensus among the committee was that the bill alters the balance of the debate in favour of freedom of speech, which is important in a vibrant democracy.
The common law is largely focused on print publications, and some rules do not readily transfer. We saw a very good amendment covering that from Mr Kerr, both future proofing how information is processed and, importantly, acknowledging that such decisions could be important and worthy of widest possible discussion, and hence applying the affirmative procedure.
That the statement complained of must have been published to someone other than the person who is the subject of the statement, is a welcome improvement.
There are a number of important features in the bill that should be welcomed. The minister will know that I rambled long and hard about the Derbyshire principle and my concerns that, with so many of our public services delivered by private organisations, we do not have a nice level playing field. In particular, we do not have that in relation to the huge sums of money that go out in respect of ferry services, with CalMac as the public provider versus Serco. Under the bill, delivering public services from time to time does not make Serco a public authority, yet it has a 15-year contract. Where is the political accountability in that? I point out that the Court of Session held that Serco, which had been contracted to provide housing to asylum seekers, was not a public authority.
I commend references to alternative dispute resolution, which is important. We spend a lot of time putting laws in place but in an ideal world we do not want them to be enforced in practice; we want people to find other methods of doing that. References to alternative dispute resolution are therefore always welcome.
I thank the minister for her engagement and I thank colleagues for their work. We have a good bill. As I said, the Green Party will support it at decision time.
16:50I warmly welcome Neil Bibby to his new role. I do not know whether we can look forward to seeing him at the next meeting of the Justice Committee, which will probably be the committee’s final meeting of the session, but I wish him well.
I confirm Scottish Liberal Democrats’ support for the bill and I thank everyone who helped the Justice Committee in our scrutiny of it—in particular, the Scottish Law Commission, which bears the greatest responsibility for development of the proposals, as other members have said.
This is a very technical area of the law—let someone show me an area that is not—that was overdue for updating and codifying, not least to make it more accessible to people who might have reason to use it. Although the Government’s intention was to update and codify the law, it has also taken the opportunity to reset, however modestly, the balance between protecting reputation on one hand, and freedom of speech on the other. The minister recognised that the scales are being tipped slightly more in favour of freedom of speech.
We heard calls in evidence for more radical moves in that direction, from witnesses who are concerned about the chilling effect of legal threats from people who have thin skins and thick wallets. On the other side of the argument, there were appeals against what was seen as an erosion of privacy rights and an attempt to impose English solutions to an English problem of defamation.
As I said at stage 1, I think that the Government has got the balance broadly right, although on a personal level I am grateful to Andy Wightman for his contribution on the serious harm threshold. Given his lived experience of the law of defamation, Mr Wightman’s insights were interesting and helpful, even if, ultimately, his argument for setting the threshold at “actual harm” has proved to be unsuccessful this afternoon.
The bill sensibly includes a statutory definition of defamation as well as a codification of potential defences, both of which are welcome developments that should aid accessibility. However, as the committee rightly made clear, it is important that those and other relevant aspects of the bill allow sufficient flexibility to adapt over time and draw on case law.
The committee called for greater clarity around the way in which the Derbyshire principle is expressed. John Finnie referred to that. It remains to be seen whether the bill goes far enough in that regard. I appreciate that some of the options that the committee considered could well have been unduly arbitrary and might have led to unintended and unwelcome consequences.
Exclusion of secondary publishers from liability is another element of the bill that is worthy of support. Although we were right to resist attempts to amend the bill to allow, in effect, take-down notices prior to any evidence being heard, I hope that the modest changes that have been agreed to today, which make it clear that a statement is subject to proceedings, offer reassurance and additional clarity.
Finally, on the question of limitation, the reduction to one year of the period for bringing a case is the right move, particularly in the digital age. Although there will be instances in which the court will be able to exercise discretion—mediation or other forms of dispute resolution can and should be encouraged, as John Finnie rightly pointed out—the change to limitation should address another area in which chilling occurs through the mere threat of legal action.
The bill will be judged on its success in striking an appropriate balance between the rights of protecting reputation and freedom of expression. I believe that it gets that balance just about right, so I commend the minister and her officials for how they engaged with the committee and stakeholders.
The Scottish Liberal Democrats will support the bill at decision time.
There is just one speaker in the open debate. I call Rona Mackay.
16:54The Defamation and Malicious Publication (Scotland) Bill, which I hope we will pass today, is vital in ensuring that the law of defamation is fit for 21st century Scotland. I thank the Scottish Law Commission and all our witnesses who gave evidence, and I thank the excellent clerking and bill teams, who managed to make a somewhat technical bill easier for members of the Justice Committee to understand.
Today’s fast-changing and wide-ranging methods of communication demand a clear and accessible framework that more appropriately balances the protection of individual reputation and freedom of expression. Throughout our scrutiny of the bill, we heard that complex and costly defamation litigation can lead to a chilling effect on freedom of expression, whereby people are discouraged from publishing because they fear the threat of legal action.
The widespread use of social media, blog posts and so-called citizen journalists means that defamation law does not affect only big media companies. It has become easier to spread unsubstantiated rumours or to deliberately damage someone’s reputation, and that has put website operators on the front line of the battle over freedom of expression. We took evidence from individuals, media companies, legal stakeholders and content creators, who were extremely helpful in outlining their experience of defamation law. There is no doubt but that the existing law is patchy, goes back decades and does not strike the right balance between freedom of speech and protection of reputation, particularly with regard to online publication. The most recent legislative changes occurred in 2013, and before that in 1996.
As others have done, I thank the minister for working collaboratively with all committee members and stakeholders to reach consensus on the bill. Some areas of contention were raised during the evidence sessions. Those related to public services, raising the threshold for bringing defamation actions, the serious harm test, the single publication rule and the one-year time limit on raising court action. The amendments that have been agreed to today should give confidence to publishers that litigation will be allowed to proceed in our courts only in cases in which real harm has been done to an individual’s reputation.
It is vital to take account of the changing landscape in publishing. Traditional journalists—I was one of them—undergo training, and editors have access to legal advice, but that is rarely the case for those who publish online. Defamation law has been developed with a focus on print publications, and some of the rules are difficult to adapt to online publication. The bill seeks to address concerns in that area by increasing protection to internet intermediaries who are secondary publishers. The bill makes provision for the courts to require a website to remove content and to require other people or bodies to stop distributing or showing material. My colleague Fulton MacGregor’s amendments in that area were helpful.
It is impossible to fully future proof the law in the area, due to the ever-changing nature of technology, which is why Liam Kerr’s amendments in that regard were helpful.
The bill prohibits public bodies from raising a defamation action, as John Finnie outlined. It is vital that public bodies such as local authorities, the Scottish Parliament and the Scottish ministers should be open to public scrutiny and uninhibited criticism, but that is not because a public body does not have a reputation or is beyond scrutiny; it is because defamation law is not the appropriate way to defend that reputation. As the minister said, that should be done at the ballot box.
Of course, private bodies cannot do that, so it is only right that we do not prohibit them from raising defamation actions, but that does not mean that the bill fails to protect those who criticise and scrutinise companies. To protect their legitimate free speech, those people will be able to rely on the new defence of publication on a matter of public interest, the reformed defence of honest opinion and the serious harm threshold test.
When someone suffers serious harm to their reputation, they usually should know that soon after a defamatory statement is published. That is why the bill reduces to one year the time limit within which legal action can be raised. In this day and age, it is no longer appropriate to have the limitation clock beginning again each and every time an article is downloaded or accessed online. That is just not practical.
We know that the current length of the limitation period can be used to chill freedom of expression, and we heard evidence on that during our scrutiny. It can be used to discourage investigative journalists, because the fear or threat that defamation proceedings could be raised many years down the road blocks free expression. That is not to say that the one-year limit is absolute, because there is flexibility in the bill that can take into account any—[Inaudible.]—subsequent publication. [Inaudible.]—discretion to disapply the time limit where there is—[Inaudible.]—to do so.
I warmly welcome the bill and commend everyone who had a part in shaping it. I believe that it strikes the right balance between freedom of expression and protecting an individual’s reputation, and I urge members to pass it at stage 3.
We move to the closing speeches.
16:59As other members have, I thank the Justice Committee for the work that it has done on the bill. As a former member of the committee, I am very aware of the workload that it has taken on over the recent period, especially in relation to the Hate Crime and Public Order (Scotland) Bill, and it is to the committee’s credit that we have been able to improve the Defamation and Malicious Publication (Scotland) Bill as it has moved to stage 3. It is important, too, to recognise the role of the Scottish Law Commission, which produced the report that showed that there was a need for legislation in the area.
As Liam McArthur said, the Defamation and Malicious Publication (Scotland) Bill will be seen by some as quite a technical bill, but it is very much needed; the law needed to be updated and made more modern. The changes that were made in England and Wales were helpful, and it was useful to learn from that experience.
Throughout discussion of the bill, there have been two pulling forces, so to speak. It is clearly important to defend freedom of speech, but it is important that that does not stray into enabling people to be defamatory. That is unacceptable, and there should be legal provisions in place to ensure that people who are defamed are able to take appropriate action in the courts. On the various issues, the Government and the committee have tussled with the balance between freedom of speech and not allowing people to defame others. I think that they have got it broadly right. For example, the changes that were made to the bill around the serious harm test will ensure that the balance is correct, in that respect.
However, I agree with Liam McArthur that Andy Wightman’s proposed changes would have provided further clarity. As ever, Mr Wightman interacted very seriously with the committee on the bill. He brings a lot of experience to this and other areas of legislation that the Parliament deals with, and I want to put it on record that he is highly respected across all parties.
Among the issues that were discussed was appropriate defences. I think that it is important to codify that in law, and it was correct to allow people to have the defences of honest opinion and public interest.
I share Neil Bibby’s view that public bodies that operate in a charitable environment should be subject to the Derbyshire principle, so it is regrettable that the relevant amendments were not accepted at stage 2.
To sum up, I say that the bill will add to the legislative toolkit by giving appropriate protection, in the social media age, to people who are defamed, and by ensuring that it will be easier to bring an action through the courts.
17:03As we have heard, the bill, which originated in the work of the Scottish Law Commission, puts the Scots law of defamation on a statutory footing that is fit for the 21st century. In doing so, it addresses and balances two competing rights—the right to freedom of expression and the right to protect one’s reputation, which is often seen as an aspect of the right to privacy.
Taken as a whole, the bill gets that balance right. It does so by shifting—perhaps only subtly, but it shifts it nonetheless—the balance that we have in the current law. The bill shifts the balance in favour of freedom of speech. It says, for example, that for a defamation action to succeed—we debated this issue earlier—a pursuer will have to show not merely harm but serious harm to their reputation.
The bill also says that defamation actions will generally have to be commenced within one year of the harm occurring, rather than within the current three-year period. Some commentators have expressed concern about that shift in favour of greater freedom of speech, but most have welcomed it. In particular, and unsurprisingly I suppose, media organisations have welcomed it strongly. They have said that it addresses the chilling effect that the current law of defamation can sometimes cast over journalists, publishers and writers when actions are brought—or indeed even threatened—by pursuers.
I very much welcome that shift in favour of free speech. Free speech matters, now as much as ever. We can never take free speech for granted and we must always be on our guard to protect it. It matters for democracy. It matters for anyone who cares about the truth and it matters too, of course, for individual self-fulfilment and liberty. Free speech acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in government and is an essential condition of an intellectually healthy society. I am glad to support any bill that advances freedom of speech, however subtly, as this bill does. Likewise, any bill that threatened free speech would be one that I would want to scrutinise very carefully indeed. We may come back to some of those points next week when we debate once again the notorious Hate Crime and Public Order (Scotland) Bill. I am not the only one this afternoon to have drawn parallels between the defamation bill and the hate crime bill.
As a result of the admirable work of the Scottish Law Commission, the defamation bill has not needed a great deal of amendment as it has progressed through its legislative stages. One area that was improved at stage 2, however, is the so-called Derbyshire principle. Named after an English case that was decided by the House of Lords in the early 1990s, that is the principle that local authorities may not sue in defamation. If someone is an elected official, the place where they seek to protect their reputation is at the ballot box, not in the defamation courts. As Lord Keith said, in the Derbyshire case,
“It is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism.”
The bill puts that principle, which is a judge-made rule of the common law, on a statutory footing. As originally drafted, there were some concerns about how that was proposed to be done. In particular, the question was whether private bodies that are carrying out functions of a public nature should also be barred, as local authorities are, from suing in defamation. I am pleased that that issue was fixed at stage 2—and has not needed to be revisited at stage 3 this afternoon—by incorporating into the bill the same basic approach to the question of the scope of public authorities that we find in the Human Rights Act 1998. It is a good, workable solution, and it will make sense in the context of the bill.
Placing the modern law of defamation on a statutory footing should aid the accessibility of the law, but it should in no sense freeze its on-going development in the case law of the courts. The single most important and liberalising reform to defamation in recent years—the creation of the new defence of publication in the public interest in the Reynolds case—came in case law and not in statute. I welcome the bill and will support it at decision time this evening. I do so in both the hope and the expectation that this legislation will assist the courts as the law of defamation and malicious publication continues to be developed by them.
This is a really good bill. It makes welcome and valuable changes to Scots law. I thank the Law Commission, the minister and all my colleagues on the Justice Committee for their work on the bill and look forward to voting for it in a few minutes’ time.
I call Ash Denham to wind up the debate—a generous six minutes, minister.
17:08I begin by thanking everyone for their contributions to the debate. I have listened to what has been said and welcome the general support that has been given across the chamber for the aims of the bill. In closing, I want to touch briefly on some of the provisions that we have discussed.
Reputation plays an important part in informing many of our day-to-day decisions. In my view, it is helpful to have a simple and clear definition of what defamation is. The definition is a simple restatement in modern language of the common-law test, which is now 85 years old. It is a restatement of the current law and not a departure from it.
The serious harm threshold has been the subject of quite a bit of debate as the bill has progressed. It came up at stages 1 and 2 and has done so again at stage 3. Some say that it is a solution to a problem that does not exist in Scotland and that it will deter legitimate claims. However, to measure the issue by the number of cases that proceed to court is to miss the problem. The possibility of litigation deters legitimate speech. A number of stakeholders gave evidence of their direct experiences as examples.
The law of defamation places a considerable burden on an author, editor or publisher to defend what they have published. If Parliament agrees to pass the bill, the serious harm test will shift part of the burden back toward the pursuer, who will, in relevant circumstances, have to prove a minimum level of damage to their reputation. To my mind, that is a more appropriate balance than the current law allows for. As Liam Kerr and Neil Bibby mentioned in their speeches, the test avoids the chilling effect that we heard about through submissions to the committee in the early stages of the bill’s passage through Parliament.
The threshold of serious harm means that the people of Scotland will have the same level of protection for freedom of expression that people in England and Wales currently have.
The so-called Derbyshire principle came up in the debate, and I note John Finnie’s comments on it. The bill was, of course, amended at stage 2 to add clarity on the Derbyshire principle, which Adam Tomkins set out quite well in his speech.
Some members have said that private companies that deliver public services should be prohibited from raising defamation actions. The argument is that, because public authorities are prohibited, those companies that take public money should be, too. However, public authorities are not prohibited from raising an action under section 2 because they are in charge of public money. They are prohibited because, in a democratic system, the ballot box is the appropriate place for a public authority’s reputation to be evaluated and, where appropriate, repaired. A private company cannot use the ballot box to repair damage to its reputation. We should not remove rights that are currently enjoyed by a company or a charity—as Neil Bibby spoke about—simply because it chooses to contract with a public authority.
That is not to say that the bill does not offer enhanced protections for those who wish to criticise the private delivery of public services. The bill sets out the threshold test of serious harm, as we have discussed; the defences of honest opinion and publication on a matter of public interest; the reduced limitation period, which Rona Mackay mentioned in her speech; and the single publication rule. All those provisions will, in some way, help.
John Finnie and Adam Tomkins noted the delicate balancing act that is required between two competing rights that are represented in articles 8 and 10 of the ECHR. I am very pleased that the Parliament believes that the correct balance has been struck.
Other provisions that have been discussed and are worth mentioning in brief include provisions to encourage the use of alternative methods of dispute resolution, the wider range of remedies available to restore damaged reputation, and the provisions on malicious publication that are the result of substantial work undertaken by the Scottish Law Commission. I would like to thank once again the Scottish Law Commission for the time and effort that it put into reviewing the current law of defamation and verbal injury, its significant consultation work and its final recommendations. The bill is a reflection of those efforts.
Defamation law in Scotland dates back more than 100 years. The Scottish Law Commission noted two cases in its discussion paper, which were Duke of Brunswick v Harmer, which took place in 1849—the year when the Buchanan Street railway station was opened—and MacKellar v Duke of Sutherland, which took place in 1859. After those, one of the leading cases in Scots law was Mackay v McCankie, in 1883, which held that a defamation can arise if an imputation is communicated merely to the person who is the subject of it. Around that time, telephones were just starting to be used.
The last time that the law was substantively updated was in 1996. That is a year that I do remember. The internet was just getting going; it was in its early stages. I still did not have a mobile phone—obviously, I was not an early adopter; I got one for the first time a year later. There was no Facebook and no Twitter, and I remember that people seemed to spend a lot of time sending faxes.
With the development and widespread use of modern technology, defamation law now has the potential to impact a far greater number of people than even a generation ago, and it is no longer only the media that are likely to be affected. Individuals can now create content with their phone, and social media have fundamentally changed the way in which we communicate with one another.
The 21st century and the technological developments in it require us to respond to the changing nature of our communication. The bill creates a clear and accessible framework that reflects the reality of modern Scotland. It introduces effective remedies for protecting reputation and stronger protections for freedom of expression.
I commend the motion in my name.
2 March 2021
After the final discussion of the Bill, MSPs vote on whether they think it should become law.
There are three questions this evening. Because the first question is on an act of Parliament, members will have to vote, so I ask all members to refresh the voting app, including members who have voted previously. In fact, because there might be some members who did not vote on amendments earlier and are joining us now, the best thing to do is to have a short suspension to allow members who have not done so to access the app and to allow those who have already accessed the app to refresh it. We will resume in a few moments.
17:23 Meeting suspended.We are now back in session and will move straight to the vote.
The question is, that motion S5M-24257, in the name of Ash Denham, on the Defamation and Malicious Publication (Scotland) Bill at stage 3, be agreed to. This will be a one-minute division.
That vote is now closed. Please let me know if you were not able to vote.
For
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Reform)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Boyack, Sarah (Lothian) (Lab)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harris, Alison (Central Scotland) (Con)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McKee, Ivan (Glasgow Provan) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Sarwar, Anas (Glasgow) (Lab)
Scott, John (Ayr) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Ind)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)
The result of the division on motion S5M-24257, in the name of Ash Denham, on the Defamation and Malicious Publication (Scotland) Bill, is: For 118, Against 0, Abstentions 0.
Motion agreed to,
That the Parliament agrees that the Defamation and Malicious Publication (Scotland) Bill be passed.
Therefore, the Defamation and Malicious Publication (Scotland) Bill is passed. [Applause.]
The next question is, that motion S5M-24177, in the name of Bill Kidd, on behalf of the Standards, Procedures and Public Appointments Committee, on code of conduct rule changes—treatment of others, be agreed to.
Motion agreed to,
That the Parliament notes the Standards, Procedures and Public Appointments Committee’s 1st report 2021 (Session 5), Code of Conduct Rule changes - Treatment of Others (SP Paper 940), and agrees that the changes to the Code of Conduct for Members of the Scottish Parliament set out in Annexe A of the report be made with effect from 6 May 2021.
The final question is, that motion S5M-24232, in the name of Liam McArthur, on behalf of the Scottish Parliamentary Corporate Body, on the reimbursement of members’ expenses scheme, be agreed to.
Motion agreed to,
That the Parliament, recognising that the Scottish Parliamentary Corporate Body (the SPCB) carried out a review of the Reimbursement of Members’ Expenses Scheme approved by Resolution of the Parliament of 12 June 2008 (as last amended by a Resolution of the Parliament on 24 April 2020)—
(a) in exercise of the powers conferred by section 81(2), (5)(b) and 85(5) of the Scotland Act 1998—
(i) confers functions on the SPCB to reimburse members in respect of expenses and cost incurred in each financial year in accordance with the Reimbursement of Members’ Expenses Scheme (the Scheme) annexed as Annex 1 to this Resolution and confers other functions on the SPCB as specified in the Scheme;
(ii) determines that the various limits on expenses or costs under the Scheme are as set out in the Schedule of Rates annexed as Annex 2 to this Resolution and that such limits are applicable until the SPCB exercises its power under the Scheme to uprate or vary them;
(iii) confers other functions on the SPCB as specified in the Scheme; and
(iv) approves the Scheme;
(b) determines that the Scheme shall come into effect on 6 May 2021;
(c) rescinds, with effect from 6 May 2021, the Resolution of the Parliament of 12 June 2008 (as last amended on 24 April 2020).
That concludes decision time. Before members’ business, we will take a short pause while members change seats. I encourage all members to observe social distancing rules, wear their masks and follow the one-way systems when leaving the chamber.
2 March 2021