I was at the UK Supreme Court yesterday to hear the judgment in Lachaux v. Independent Print Ltd and another. It was a significant challenge to section 1 of the Defamation Act 2013, which long-term readers of this blog will recall was the (successful) end result of English PEN’s Libel Reform Campaign.
Section 1 of the law introduced a test of ‘serious harm’ before a claimant could sue. It was designed to expand the space for free speech by weeding out trivial claims.
A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
The Lachaux case hinged on the semantics of that section of the law. Do the words “has caused or is likely to cause” refer to real world effects, past or future? Or do they just mean that the words have a tendency to cause serious harm to reputation.
Last week I posted a quote from Dr Alex Mills of University College London, on Facebook’s woefully inadequate Terms & Conditions that related to defamation. That was drawn from a panel discussion I participated in on 22 March 2018 hosted by UCL’s Institute of Advanced Studies, entitled ‘Defamation – A Roundtable on Lies and the Law‘.
The Scottish Law Commission’s consultation on the law of defamation closes this week. If you want take a stand for free speech in Scotland, then an easy but important thing you can do is co-sign the Libel Reform Campaign’s letter to Lord Pentland, the chair of the commission.
Last month I spoke to the Bookseller about defamation reform, after the incoming president of the Publishers’ Association, Simon Barr, said that it was important that it was important to close the “loophole” caused by the different defamation regimes in England & Wales, Scotland, and Northern Ireland. Long-time readers of this blog will recall that while the Westminster parliament has legislated, the parliaments at Holyrood and Stormont have not yet done so.
There are many reasons to reform defamation, but to my mind the one that should motivate publishers in particular is this:
Another consequence is the possibility legal costs will dent budgets for breaking new authors. “If publishers are spending money on libel, they’re not spending on new stuff,” Sharp said. And the books that get binned, it won’t be the mainstream commercial titles, it’s going to be the experimental stuff – the first time authors, the challenging and the quirky things that are a bit of a risk.”
The fact the Defamation Act seems to be working as Parliament intended is precisely what we were after so we’re going into this … with confidence that the Defamation Act is a very strong blueprint for reform in other jurisdictions.
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.
The Scottish Law Commission has said it will include a review of the defamation law in its ninth programme of reform. That’s fantastic news for those of us in the Libel Reform Campaign who want to ensure that the space for free speech is just as wide in every corner of the United Kingdom.
David Leask at the Daily Heraldreported the story and his article puts the review in context. Yrstrly is actually quoted briefly in the piece, but I prefer this quote from my colleagues at Scottish PEN:
We’re not just campaigning on this to plug a loophole – we’re trying to put in place a structure that supports a healthier media landscape in Scotland.
Robert Sharp, of freedom of expression group English PEN and the Libel Reform Campaign, said: “The worrying gap between protections in England and Wales and Scotland is allowing a chilling loophole to exist and this is especially concerning after Scots voted to stay in the United Kingdom.”
The internet, and in particular social media, means that defamatory statements published in England, for example, could almost certainly be deemed to have been published in Scotland. So somebody who believes they have been defamed online – in, for example, the electronic version of a newspaper, story can now choose where to sue.
Mr Sharp added: “We have every respect for Scots law and understand that it is not the same. But as long as the loophole exists, the chill exists. As long as we have the UK, we can say that if somebody has a reputation in England that can be tarnished, they have a reputation in Scotland too. This is a real constitutional issue and we hope Scotland will adopt a defamation act quickly.”