Committee
Justice Committee 26 January 2021
26 Jan 2021 · S5 · Justice Committee
Item of business
Defamation and Malicious Publication (Scotland) Bill: Stage 2
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. 10:15 Amendments 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.
In the same item of business
The Convener (Adam Tomkins)
Con
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 ...
The Convener
Con
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 ...
Andy Wightman (Lothian) (Ind)
Ind
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...
Annabelle Ewing (Cowdenbeath) (SNP)
SNP
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 ex...
John Finnie (Highlands and Islands) (Green)
Green
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...
The Minister for Community Safety (Ash Denham)
SNP
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...
The Convener
Con
I invite Andy Wightman to respond and to wind up on group 1.
Andy Wightman
Ind
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 ha...
The Convener
Con
I take it that you are pressing amendment 29, Mr Wightman.
Andy Wightman
Ind
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 a...
The Convener
Con
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 w...
The Convener
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 Convener
Con
The question is, that amendment 32 be agreed to. Are we agreed? Members: No.
The Convener
Con
There will be a division. For Finnie, John (Highlands and Islands) (Green) Grant, Rhoda (Highlands and Islands) (Lab) McArthur, Liam (Orkney Islands) (LD...
The Convener
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 authorit...
The Convener
Con
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 p...
Ash Denham
SNP
Section 2 aims to place on a statutory footing the common-law principle that public authorities cannot raise defamation proceedings. Public authorities have ...
The Convener
Con
I invite John Finnie to speak to amendment 33 and the other amendments in the group.
John Finnie
Green
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 “ope...
Rhoda Grant (Highlands and Islands) (Lab)
Lab
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 scrutinise...
The Convener
Con
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.
Ash Denham
SNP
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. Ou...
The Convener
Con
The question is, that amendment 1 be agreed to. Are we agreed? Members: No.
The Convener
Con
There will be a division. For Ewing, Annabelle (Mid Scotland and Fife) (SNP) Kerr, Liam (North East Scotland) (Con) MacGregor, Fulton (Coatbridge and Chr...
The Convener
Con
The result of the division is: For 7, Against 2, Abstentions 0. Amendment 1 agreed to. Amendment 33 moved—John Finnie.
The Convener
Con
The question is, that amendment 33 be agreed to. Are we agreed? Members: No.
The Convener
Con
There will be a division. For Finnie, John (Highlands and Islands) (Green) Grant, Rhoda (Highlands and Islands) (Lab) Against Ewing, Annabelle (Mid Scot...
The Convener
Con
The result of the division is: For 2, Against 7, Abstentions 0. Amendment 33 disagreed to. Amendment 2 moved—Ash Denham.
The Convener
Con
The question is, that amendment 2 be agreed to. Are we agreed? Members: No.
The Convener
Con
There will be a division. For Ewing, Annabelle (Mid Scotland and Fife) (SNP) Kerr, Liam (North East Scotland) (Con) MacGregor, Fulton (Coatbridge and Chr...