English PEN is working with Scottish PEN on a campaign to reform the law of defamation in Scotland. I wrote an opinion piece for the Herald’s ‘Agenda’ slot, which was published in the paper yesterday. There was also a news report about it, giving more information about corporations that sue.
The law of defamation in Scotland is woefully out of date.
It has not been reviewed since 1996, before the Scottish Parliament was re-established.
During this time, the internet has evolved from a hobbyist’s plaything into the centre of public discourse, and yet defamation law has failed to adapt to digital communication.
Every click on an internet link is considered a legally separate “publication” that you could be sued for, and internet services providers are just as liable for the content published on their platforms as the people who actually write the words.
Meanwhile, free speech protections that promote public debate, such as a public interest defence and a bar on the government from suing citizens, exist in confusing case law rather than on the statute books.
Unfortunately, MSPs were never given an opportunity to debate the new law in its entirety, and the “Sewell Motion” at Holyrood incorporated only a tiny part of the Westminster legislation into Scottish law. Northern Ireland faces the same problem – none of the new legislation applies there.
This omission weakens the new laws in England and Wales, since there is still the opportunity to sue under the unreformed legislation in Scotland and Northern Ireland.
It also means that the people of Scotland and Northern Ireland are unable to take advantage of new protections for freedom of expression.
Scottish rules on what constitutes a publication are archaic. Journalists still labour under the “multiple publication rule” where each sale of a book or newspaper, or each click on an internet link, is considered a new publication. This is a rule that not only pre-dates the internet but also the advent of “hot-type” mass printing technologies of the late 19th century. The law is not one but two communications revolutions out of date, and means that claimants can threaten to sue over articles written years ago.
It is a licence for legal “reputation managers” to remove anything critical that has been written about their wealthy clients.
Before Westminster’s Defamation Act, this practice had become an embarrassing feature of the English legal system. London was branded “A Town Named Sue”, with Hollywood celebrities, Russian oligarchs and Saudi oil sheikhs all launching legal complaints at the High Court, even though they and the people they were suing lived elsewhere.
The recent reforms in England seem to have discouraged the practice in London, but there is now a concern that “libel tourists” could be making their way to Edinburgh.
The lack of proper defamation protections in Scotland is not just an issue for journalists.
In the age of the internet we are all potentially publishers and anything we write online could be the subject of a defamation threat.
Mumsnet, the online parenting forum, has received threats from companies and individuals who are unhappy with the irreverent way in which their products are discussed.
TripAdvisor was recently forced to defend a legal challenge from the owners of a B&B in Argyll.
Very often web forums have no choice but to remove the words from their site.
How can we make informed decisions about what is best for our families and where we go on holiday, if any negative comments have been whitewashed from the web?
One libel loophole that still exists all over the UK is that corporate bodies can still sue for defamation, even though a company does not suffer distress if its reputation is traduced.
Disturbingly, private companies contracted to deliver public services can sue when their performance is criticised, even though case law says that government itself cannot sue.
With more and more public services being delivered by private companies, the space for people to criticise how public money is spent becomes smaller and smaller.
Unfortunately, when this problem was debated in the House of Commons, MPs failed to deal with it.
In fact, Conservative ministers went out of their way to ensure that amendments to fix the problem were removed from the Bill.
So this is one area of the defamation law where MSPs could act decisively where Westminster MPs failed.