Hansard

In its report on the Defamation and Malicious Publication (Scotland) Bill, published last month, the Justice Committee reached the unanimous conclusion that the Parliament should support the bill’s general principles. I thank all the witnesses who gave evidence to the committee, the clerks and Parliament officials who give so much help to the committee on a daily basis and all the committee members for the thoughtful and measured way in which they approached the bill.

As we have just heard from the minister, the bill originates in the work of the Scottish Law Commission, and it seeks to put the Scots law of defamation on a statutory footing fit for the 21st century.

In doing so, it must address and balance two competing rights: on the one hand, freedom of expression; on the other, the right to protect one’s reputation, which some see as an aspect of the right to privacy. Neither of those rights should be allowed lightly to give way to the other, and any law of defamation should strive to get the balance between them right.

The committee considers that, taken as a whole, the bill achieves that aim. I do not think that there should be any doubt that it does so by shifting the balance—albeit perhaps only subtly—that we have in the current law. The bill shifts the balance in favour of freedom of speech. It says that, for example, for a defamation action to succeed, a pursuer will have to show not merely harm, but serious harm to their reputation. It also says that defamation actions will have to be commenced within one year, rather than within the current three-year period of the harm occurring.

Some witnesses appearing before the Justice Committee were concerned about the shift in favour of greater freedom of speech, but most welcomed it. In particular, and unsurprisingly, media organisations welcomed it strongly. They told us that that would address 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 who have—to use a phrase that was memorably cited in evidence—

“thin skins and thick wallets”—[Official Report, Justice Committee, 25 August 2020; c 4.]

Raising the threshold for defamation actions from harm to serious harm is probably the most contentious change that the bill makes. In doing so, the bill will bring Scots law into line with the position already in force in England and Wales. Some of the committee’s witnesses, as the minister referred to, wondered whether that is

“an English solution to an English problem.”—[Official Report, Justice Committee, 1 September 2020; c 12.]

Others strongly disagreed, including Andrew Tickell, who was representing Scottish PEN, Nick McGowan-Lowe of the National Union of Journalists, and Peter Geoghegan.

In her response to the committee’s report—for which I thank her—the minister backs the new higher test of serious harm, and cites the work of the Scottish Law Commission in doing so. Speaking personally, I think that she is right to do so. Indeed, the committee’s view is that, on balance, it favoured retention of the serious harm test in the bill.

I will move on to two aspects of the bill on which the committee considers that further work is required at stage 2 to ensure that the legislation is properly drafted to meet its objectives. The first aspect is the Derbyshire principle, which is named after an English case decided by the House of Lords in the early 1990s. As the minister said, that is the principle that local authorities may not sue for defamation. The place where an elected official seeks to protect their reputation is at the ballot box, not in the defamation courts.

The bill seeks to put the principle, which is a judge-made rule of the common law, on a statutory footing. The committee welcomes that, but it is concerned about the scope of the principle as drafted. In particular, the question is: should private bodies that are carrying out functions of a public nature also be barred, as local authorities are, from suing for defamation? If so, what about universities or housing associations?

In her response to the committee, the minister recorded that she is opposed to extending the Derbyshire principle to all private bodies carrying out public functions. That is a commendably clear steer, but I suspect that the matter will be revisited when the committee considers amendments to the bill at stage 2.

The second aspect of concern highlighted by the committee relates to malicious publication. That is a separate delict from defamation, albeit that the two are closely related—and, of course, the bill deals with them both. Because it is a separate delict, it has its own ingredients, which overlap with but are not identical to those of defamation. On the one hand, for example, harm has to be caused, but not serious harm; on the other hand, to sue for malicious publication, the pursuer must show that they have suffered or are likely to suffer financial loss, whereas that is not always a requirement in defamation cases.

There is one striking omission in how the bill deals with malicious publication: it says nothing about defences. One of the most attractive aspects of the bill is the way it modernises defences in the law of defamation in sections 5 to 7. However, in stark contrast, the bill is silent on defences in the law of malicious publication. That needs to be rectified.

I raise the issue now, because the minister seems to have overlooked the committee’s view on the matter in her response to our report. She referred to it in her remarks a few moments ago, but I gently say to her that the matter needs to be dealt with in the bill and not in the explanatory notes accompanying it. However, I say, too, that, between now and stage 2, if the minister would find it helpful I would be happy to work with her and her officials on both the scope of the Derbyshire principle and defences to malicious publication.

Throughout the committee’s deliberations it was anxious that placing the modern law of defamation on a statutory footing should aid the accessibility of the law, but should in no sense freeze its on-going development in the case law of the courts. The single most important and liberalising reform to the law of defamation in recent years—the creation of the new defence of publication in the public interest in the Reynolds case—came in case law, not statute.

The committee welcomes the bill and supports its general principles. It does so in the hope and expectation that it will assist the courts as the law of defamation and malicious publication continues to be developed by them, even after the bill is enacted.