Hansard

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. 11:15