Reforms to strike a fairer balance between freedom of speech and protecting reputations in Scotland’s defamation legislation have been backed by Holyrood’s Justice Committee.
With the last substantial update taking place in 1996, the Scottish Government said the proposed changes “modernise and simplify the law of defamation”.
The Defamation and Malicious Publication (Scotland) Bill would introduce a new threshold of causing “serious harm” to a person’s reputation in an attempt to prevent frivolous or vexatious cases, which many witnesses said have a “chilling effect” on freedom of expression.
Evidence cited by the Scottish Parliament’s Justice Committee from media and legal experts, organisations and professionals suggested companies and individuals with “deep pockets” can try to suppress stories by threatening expensive defamation action.
The committee said: “The argument is that those with sufficient resources can use the threat of legal action to quash stories and silence criticism.
“The law on defamation is uncertain and relies heavily on decisions in previous cases.
“This makes it difficult to judge the prospects of success of a case.
“Thus, defenders may be reluctant to meet the significant costs of court action.”
Under the proposed laws, courts would be able to dismiss claims when little or no serious damage has been done to a person’s reputation, except in cases when the comments have been made with malicious intent.
In its report about the Bill, the committee said it supports its general principles but recommends it is revised so the definition requires both “falseness and malice”, as well as clarity about any legal defence.
The new law will also seek to improve protection for media outlets that publish stories considered to be defamatory if the information is deemed to be in the interest of the public and the publication is considered “responsible”.
If passed by Holyrood, the Bill will limit the action that can be taken against “secondary publishers”, those who pass on information already published by another person or entity.
It would apply to the author, editor or publisher of a statement, exempting those who may have shared the potentially defamatory comment from the risk of legal action.
MSPs have recommended including details of how a person should request the removal of information published in that manner.
Other changes include a one-year time frame for legal action from publication and removal of the presumption of a jury trial, which was supported by all those who gave evidence on the issue.
The Bill would also prohibit public bodies from bringing defamation actions.
The committee requested changes to make clear whether private or charitable organisations who were delivering public services may sue for defamation if that part of their work is criticised.
Committee convener Adam Tomkins said: “The Justice Committee has a long-standing interest in defamation law.
“It has previously supported calls to update it for the internet era and to bring the law together into one piece of legislation.
“This Bill broadly meets those aims and we support its general principles.”
He added: “However, in order to ensure that, taken as a whole, the Bill strikes the right balance between protecting freedom of expression and protecting reputation, we are asking the Government to reconsider some sections, and to provide MSPs with further information.
“The next Parliamentary stages could see amendments to the Bill, and it is crucial MSPs are satisfied we have robustly tested all the arguments before the Bill is passed into law.”
The committee also had discussions with Scottish Green MSP Andy Wightman and former Scottish Labour leader Kezia Dugdale, both of whom were victorious in defamation cases brought against them.
Reflecting on the talks, the committee noted the “very considerable” legal costs involved in defending against a defamation claim, even when someone is successful.
Even before a case gets to court, legal fees can exceed £50,000, while total costs can be more than £250,000, they said.
The committee added: “These costs can exceed the value of the assets of most ordinary people, including the value of someone’s family home.
“As a result, someone could become bankrupt with very serious consequence for their personal and professional life.
“The Parliament should consider whether some personal assets – such as a family home – should be protected in these circumstances.”
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