Defamation and Malicious Publication (Scotland) Bill

The Convener

Our next item of business is for the committee a return to, but for me a first look at, stage 1 of the Defamation and Malicious Publication (Scotland) Bill. The committee began taking oral evidence in March when it heard from Scottish Government officials who were involved in drafting the bill. Today we start to hear from stakeholders.

I refer members to papers 1 to 3 and I welcome our first panel of witnesses, who are both attending online this morning. We have with us Nick McGowan-Lowe from the National Union of Journalists and Andrew Tickell, who is appearing in front of us in his capacity as a trustee of Scottish PEN. I first came across Andrew Tickell many years ago when he wrote a blog post about me entitled “Adam Tomkins: Unionist stooge?” As a first question, I am highly tempted this morning to ask him whether he thought that that was a defamatory statement, but I think that I shall not.

I thank the witnesses for their written submissions, which are available to the public on the committee’s web pages. We have about an hour for this panel. I will invite Andrew Tickell and then Nick McGowan-Lowe to make opening statements and then we will move into questions.

Andrew Tickell (Scottish PEN)

Thank you very much, Adam. It is a great pleasure to be talking to the committee once again in my capacity as a trustee of Scottish PEN.

This is an important bill. I think that it is a good bill and one that is very timely. The Scots law on defamation has not been examined since 1996. During that time we have seen the emergence of Facebook and Twitter and a scenario in which anyone with opinions, thumbs and a smartphone can potentially become a global publisher, so it is entirely appropriate that the committee is scrutinising this bill.

I thank the Scottish Government and the Scottish Law Commission for bringing this forward and for being very constructive partners with Scottish PEN in building what we think is generally a very good piece of legislation and one that will substantially improve the law in Scotland in this area to better protect freedom of expression.

Nick McGowan-Lowe (National Union of Journalists)

I thank the committee for this opportunity to speak. I will start with a conclusion. The NUJ believes that the bill will strike a much better balance between the right of press freedom and the protection of individual reputations. We broadly welcome these proposed reforms. We speak from the viewpoint of individual journalists in newsrooms and elsewhere around Scotland. Our perspective is across print, digital, broadcasting and other areas. A significant number of our members are freelance and work in a variety of different ways across the industry. In general, it is fair to say that they are a crucial part of the media landscape, but their incomes and livelihoods are more precarious than those of their staff colleagues and they do not enjoy the same protections around their work and are more vulnerable to legal threats.

The proposed reforms have a significant positive effect on the current chilling effect of legal threats on the reporting of matters of legitimate public interest. We believe that the threat of legal action is one of a number of series of obstacles deliberately used by those with thin skins and thick wallets, not necessarily with a view to bringing any action but in order to deter or delay the reporting of honest journalism. That is an abuse of the intention of the legislation. The higher thresholds that the bill sets and the reduction of the limitation period will help to limit that, while still allowing the legislation to serve those whom it is intended to serve.

Broadly, we welcome the proposed changes and we thank the Scottish Parliament and the Scottish Law Commission for the care that has been taken in drafting it so far.

The Convener

Thank you very much for those helpful opening statements.

Nick McGowan-Lowe, you raised an issue that I think Liam McArthur wants to pick up straight away: the chilling effect.

Liam McArthur (Orkney Islands) (LD)

Thank you, convener, and thank you to both the witnesses for their opening comments.

Mr Tickell, you talked about the time that has elapsed since this issue was last looked at seriously and some of the developments that we have seen in the meantime. Mr McGowan-Lowe, you have talked about the chilling effect. That seems to be a view that is widely held. Could either or both of you provide specific examples of how that chilling effect bears out in practice from your own experience?

Nick McGowan-Lowe

I am happy to speak to this. In preparing for this, last week I spoke to a number of our prominent members who are involved in reporting matters of public interest. I am not going to name individuals, publications or cases. However, it seems that, for large organisations that are put under scrutiny, there is a series of responses to legitimate reporting. They begin with a denial, an attempt to slow down the reporting, letters to the editor, complaints to the Independent Press Standards Organisation and the threat of legal action.

The practical effect of those responses is not necessarily to prevent a story from happening. In many cases, when organisations are contacted they do not know what the story is about. They are asked to comment for a particular, narrow part of it. The aim is disruption. Those are all legitimate ways in which individuals or private organisations can seek to protect their reputation. The way in which they are used here is as legal obstacles to prevent stories.

The practical effect is felt particularly in the context of print journalism, which is an economically weakened industry that has undergone a series of significant cuts. Defending such actions is expensive and time consuming. The cost arises not only from the legal advice but from the cost for a journalist and a senior editor and their lawyers in taking time out of their day to do that, at a time when newsrooms are particularly tight. Because of that, most newspapers will back a story if it will go to page 1, make a splash and move the news agenda, but if it is a story that is likely to be down on page 15, an editor will be loth to justify the cost of defending it.

The problem is that those small stories, which begin with something and get some facts out into the public domain and allow that process to go on, are often the very start of investigative journalism. They often bring people out with other stories and people will make contact and provide other aspects to it. I am not going to comment on individual examples, because I am protecting the members who have spoken to me, but it is absolutely a reality in newsrooms.

Liam McArthur

That is very helpful. Mr Tickell, do you have anything to add from your experience?

Andrew Tickell

Yes, absolutely. I echo all the points that Nick McGowan-Lowe made. Examples include removing information from articles that have been published, which are not defamatory but, as Nick says, would be too expensive to justify defending.

One of the most important pieces of the bill is the change to the limitation period from three years to one year in which to bring an action of defamation. That may not seem important, but one quite well-known strategy is for the person who claims to be a pursuer to send a journalist or writer a legal letter indicating that they are contemplating doing them for defamation, and then simply ceasing interaction with them, so from that moment there is three years within which a legal action can be brought. Therefore, that shadow and threat of potential litigation in future can be used as a way of discouraging journalists from talking about that person or of leading them to write stories about other people instead. That is a potential problem.

I do not know whether any members of the committee have ever received a threat of litigation for defamation, but I have. In preparation for this session, I looked up how long the limitation period has to run for the threat that I am exposed to. I think that it still has 592 days to run, with 503 or so having passed. That has a very obvious capacity to chill publications.

Of course we are not just talking here about journalists. We are talking about writers, bloggers and anyone who engages in the public sphere and may find themselves subject to these threats. The core of this is ultimately economic—“Can I afford to defend myself?” The answer for most Scots is simply, “No, I cannot afford to defend myself and therefore I will take down the notice. I will cave in to the threats. It is not worth my bother. I cannot run the risk of putting my life and my family or whatever at risk for defamation threats.” It is an interaction of all those factors that is particularly relevant and different elements of the bill can intervene quite dramatically at that early stage of the process.

Liam McArthur

That is very helpful. I was going to ask about the financial realities in journalism and how those were creating a particular problem in relation to the chilling effect but, given the responses that you have given, perhaps it would be more relevant to ask this: given that the tactics that you have both described will presumably still be available to an individual and an organisation that believes that it is defamed, is it simply that you feel that the proposals in the bill will give a greater degree of confidence to journalists, writers or whoever to press ahead with publication? What is the benefit here, given that some of the tactics that you have described will presumably still be options that are available to anyone?

Nick McGowan-Lowe

You are absolutely right that the problem, as I put it, of people with thick wallets and thin skins is not going to be solved probably in our lifetime and certainly not by the bill alone. You are absolutely right on the economic state of part of the media industry. In our submission we went into some detail on the practical effects of that.

It is also the NUJ’s position that, although much of the media landscape is dominated by extremely large companies, which in some cases are owners of hundreds of newspapers and have turnovers that are quite astonishing, at a newsroom level the money available and the cuts that have to be made and the cuts that my colleagues and I have been dealing with right now are quite severe and quite microscopic. The cost of a legal action can be literally measured against the cost of jobs in the industry. I completely agree with Andrew Tickell that the costs of the legal actions will be necessarily high.

10:45  

To pick up one point that Andrew Tickell made, I was reminded of a conversation that I had last week about a journalist whose publication had received legal threats. Typically, the language that lawyers use will be indicative to other lawyers as to the intention of their clients. What we are finding is that, where there is literally no intention to bring legal action, and after the story is published the client has no further interest in it, the phrasing in the initial letter is not, “I expect my client to instruct me within 10 days”—which is code for, “I do not know whether they are going to take action”—but, “My clients will be instructing me on this,” which makes it seem that the threat is significantly more than it is. It is a deliberate attempt and it is clear that the client has asked for that. Does that cover the point that you raise?

Liam McArthur

Yes. I do not know whether Andrew Tickell has anything to add to that.

Andrew Tickell

Absolutely. There are a number of different things that the bill can do that can help. First, it can be clear about what the law is. There is a much better chance that the public will understand what the law is and what the defences are, as compared to the very fragmentary, rather boutique system of defamation law that we have at the moment.

The rules on secondary publishers, which we might go on to in more detail, are also extremely important, in the sense that the number of people who can credibly be threatened with suits for defamation will considerably constrict as a consequence of that change in the law, so people can have greater confidence that there is no cause of action.

Scottish PEN has suggested an amendment to the bill to introduce a radical, new and innovative approach of providing a new delict for making unjustified threats of defamation actions. We need to look at the pre-trial phase to understand how the chilling effect works in practice. We argue that the law would be further strengthened here by giving people who receive unjustifiable threats of legal action the opportunity to go to the court for a declarator to say in effect that the defamation in question is unjustified and there is no evidence for it, or to get an interdict or order preventing further action or damages, if that would seem appropriate.

Scottish PEN argue that that would much strengthen this element of the bill and be much more specific that unjustified threats of legal action can themselves have consequences in the field of defamation. This innovation was inspired by looking at intellectual property rights, where there is often a struggle with the same issues of threats and menaces without any foundation. Scottish PEN argue that the bill will be further strengthened, in addition to the good provisions that are already in it, by dealing very explicitly with this issue, which we know is a problem in Scotland from talking to colleagues, investigative journalists and others. It is often a problem underneath the surface that never makes its way into the Court of Session, but that does not mean that it is not a problem.

The Convener

Thank you. We will come on to some of those issues later this morning. My next question is for Andrew Tickell to answer first. Given what you have just said about the importance of clarity and legal certainty, would I be right in assuming that you welcome the fact that this bill defines defamation rather than leaving that to future development in the ad hocery of the common law? For the record, I note that you are nodding assent. If you are doing that to indicate that that is an appropriate thing for the bill to do, could you reflect on whether you think that the bill’s definition of defamation is accurate and fair or needs to be adjusted or amended?

Andrew Tickell

In line with the idea that the bill is a codification measure, it makes perfect sense that the core idea of the bill—defamation—is defined. On how that definition has been placed in terms of the law, I was interested to read the submissions of a couple of your colleagues from the University of Glasgow, Dr Stephen Bogle and Dr Bobby Lindsay. They have given evidence that there will be a slight shift in the definition in the bill, so that, instead of the definition focusing on the right-thinking person and their reaction to the alleged defamation, it focuses on ordinary people. Your colleagues expressed a concern that that might potentially extend the law in this field. I think that you might hear more from them in a few weeks’ time. It is worth reflecting on whether we might be inadvertently expanding the law here.

Nick McGowan-Lowe

I agree with those comments. Having the definition of the central part of the legislation included is extremely welcome.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

I want to introduce the subject of the serious harm test. I believe that it would create a new threshold for taking legal action that did not previously exist. Some in the legal profession believe that the test is not necessary and might constitute a barrier for accessing justice. I know that the media tend to favour it, saying that it would protect freedom of expression. Could I have your views?

The Convener

Let us take Andrew Tickell first, as it is a legal question.

Andrew Tickell

We are strong supporters of the serious harm test, which, as you know, was introduced in England and Wales. The arguments against adopting it are largely that it involves English legal problems—effectively, libel tourism and very high awards from the English courts. Our argument would simply be that this additional threshold is appropriate in terms of free expression. In terms of the chilling effect that we know takes place outside of courts, it would give people who are subject to threats and menaces of defamation action greater security. It also has one other benefit. Following the approach taken by the United Kingdom Supreme Court on what we mean by “serious harm”, the courts in England and Wales have emphasised that we are looking at real harm in the real world. We are not just looking at the inherent tendency of words to potentially wound people; we are looking at the real social world, the real economy and the real damage to reputations.

That approach not only provides stronger measures and protections for freedom of expression and prevents frivolous cases from turning up in court, but will allow courts to dispense with cases earlier, in the sense that if there is no serious harm, the court will be able to bring a close to litigation at an earlier stage. I think that that would be beneficial for pursuers and for defenders in the sense that it will cost less and waste less time in terms of scrutinising evidence and accumulating all those costs that we know are a cardinal feature of litigation at this level in Scotland. We are very strong supporters of the provision. It is critical to the heart of the bill and the changes that it will make.

Nick McGowan-Lowe

I agree with Andrew Tickell. If harm has been done to someone’s reputation, it is in everyone’s interests that that is addressed quickly. Having a serious harm threshold allows clarity at an earlier stage for someone seeking legal advice and it allows an additional filter at the start, so that cases that are largely without merit will not proceed much further, not take up court time and not drag on unnecessarily.

Rona Mackay

Can I follow up by asking you a bit about your response to the libel tourism possibility? Some say that it does not exist in Scotland. Can I have your view on that, Andrew Tickell?

Andrew Tickell

One of the arguments is that there is potential for libel tourism if the Scottish threshold is significantly lower than the English threshold. I do not know whether that is important, whether or not it is true. There is certainly not an awful lot of evidence that people are forum shopping into Scotland at this stage. That is partly down to the fact that the award of damages may not make it worth the time. I am not particularly worried about that.

From first principles, we have to ask ourselves what kinds of cases and what kind of injury to the reputations of people we think merit all the costs and all the investment of a full defamation action. It is worth remembering what the test is now. Effectively, it is statements that tend to lower you in the estimation of right-thinking people. That means that, even if your reputation were lowered only extremely slightly, that could give rise to a full-blown court action. That seems to me disproportionate and not a necessary way of protecting free expression in Scotland.

Rona Mackay

Nick McGowan-Lowe, do you have anything to add?

Nick McGowan-Lowe

I am not a lawyer—much to my mother’s dismay—but I would echo what Andrew Tickell has said. It is not my impression that, while there have been different standards north and south of the border, Scotland has had a huge influx of libel tourism.

Rona Mackay

So, to recap, neither of you thinks that that is a particularly contentious part of the bill.

Andrew Tickell

That is correct. The Scottish Law Commission embraced that approach early on. There are people who disagree with it: you might hear from some academic commentators who think that it is not necessary, in view of the existing law in Scotland and the limits of litigation. However, I would say again that the limits of litigation are not good evidence that defamation law is not being misused in Scotland—the absence of evidence is not evidence of absence. Things that take place behind closed doors, subject to legal advice, are where we need to focus our scrutiny of where the bill and its various provisions will make the most difference in terms of vexatious use of defamation law by those who have deep pockets and the capacity to sue—which is almost no one in Scotland, by the by. We are talking about boutique litigation.

The Convener

Before I bring in John Finnie, I remind members to direct their questions to particular witnesses so that the witnesses know which one of them should speak first.

John Finnie (Highlands and Islands) (Green)

I will ask Mr Tickell about the Derbyshire principle. The bill attempts to codify the Derbyshire principle. For anyone who may be listening in, that is the principle that a public body cannot bring a defamation action. The bill does not define a public body, but it does create an exemption for businesses and charities that deliver public services “from time to time.” What are the risks of that approach, Mr Tickell?

Andrew Tickell

As you say, the Derbyshire principle is the basic principle that public bodies are not entitled to undertake litigation in defamation. It is a longstanding principle from the Derbyshire case that applies in Scotland. In our view, the particular provision of the bill does not go far enough, in that it does not follow the public delivery of services. We know that, in Scotland, a range of public services are delivered by private organisations. As it stands, the bill says that a private company that delivers public services should not be treated as a public body and therefore is not prohibited from bringing litigation in defamation. Our argument is simply this: we can do better than the bill. We can look at a prohibition on any company bringing actions concerning a critique of how they are delivering public services.

In effect, there would be no bar on a private provider in North Lanarkshire bringing defamation actions, whereas there would be a bar on North Lanarkshire Council, for example, suing someone who was critical of their services. Our argument is that we should not just ban public bodies from bringing defamation actions—that is a good thing—but follow the public pound and prohibit private companies from bringing legal actions about how they deliver public services.

If the bill were passed as it is, there would be a risk that critics of public services would be in a bit of a lottery situation, in that they might face defamation action if a public service were delivered by a private provider, whereas if it were a public provider, the defamation action would be barred. Therefore, we think that the bill could better define what is a public body and what kinds of companies should also be barred from bringing such defamation actions.

John Finnie

Nick McGowan-Lowe, do you have a view on that? For instance, in Scotland, prisons are run by the private sector; that is very high profile and there are a lot of issues there.

Nick McGowan-Lowe

Andrew Tickell’s summary is exactly right. The NUJ has lobbied in other areas, most commonly on freedom of information, where it is often invisible whether public services are being delivered by private companies or public bodies. It is often simply not obvious. Where the public money is being spent should be available for scrutiny. That is where the point comes from.

John Finnie

Thank you very much indeed.

The Convener

I will follow up on what Andrew Tickell has just said. What is the principle on which you found your claim that it should not be just public authorities that are barred from bringing defamation actions, but all bodies, whether public or private, that are delivering public services?

It is a long time since I read Lord Keith’s judgment in the Derbyshire case, which I think was decided some 20 years ago. You will correct me if I am wrong but, as I recall, Lord Keith founded his judgment that local authorities could not sue in defamation on the principle that local authorities are composed of directly elected councillors and their accountability comes not through the law of defamation, but through the ballot box. That would not pertain to a private corporation that was delivering public services on behalf of a public authority, so what is the principle for arguing that the provisions of section 2 of the bill should be extended to cover all private corporations delivering public services?

11:00  

Andrew Tickell

That is not quite my argument, convener. I am not arguing that the bill should apply to all companies that provide public services. I am suggesting that, for companies that deliver public services, that aspect of their conduct should be insulated from defamation action. The court should be invited to look at what the company is doing and whether the alleged defamation focuses on that. That would arguably be defensible on the basis that, if public authorities are delivering such services or contracting out such services, in order to have a level playing field for the critique of those services, it is critical that people are free to articulate that critique with equal expectation that it will not be subject to actions in defamation on the basic Lotto principle of whether it is the local authority or a private company that happens to be delivering it. We argue that we should follow the nature of the public services and tie the defamation principle in to that.

Bill Kidd (Glasgow Anniesland) (SNP)

My question is specifically for Scottish PEN. Some media stakeholders have called for businesses to be prevented from raising defamation actions altogether. However, we note that Scottish PEN, with the support of a number of others, has highlighted the Australian model as a compromise. In Australia, companies with 10 or more staff are prevented from suing for defamation. Andrew Tickell, could you expand on that proposal and the difference that you think it would make in practice, please?

Andrew Tickell

Absolutely. We initially discussed the issue with the Scottish Law Commission and the Scottish Government. It did not find favour with them, but we wanted to bring it back to the committee for you to scrutinise. Under the bill as it stands, a natural person can sue if serious harm has been done to them as an individual, but a corporation has to show serious financial harm.

As you say, for a number of years in Australia—I think since 2009—there has been a general prohibition on corporations raising any defamation actions unless they are exempted. Exempted corporations are those that have fewer than 10 staff members in total. We think that the committee should consider the argument in this context. Is there an argument going back to the basic principles of defamation? If defamation is about individual reputation and honour, perhaps there is an argument that corporations do not have those protected characteristics that the law should be concerned about. We know that corporations are involved in litigation in Scotland on issues of defamation, so we argue that the committee should consider introducing a further restriction in terms of corporations.

A benefit of this smaller, micro approach means that the firms that are involved—those with under 10 employees; we are talking small firms here—may be more exposed to defamation than very large corporations that have a range of other techniques and tools, beyond the law and the law courts, to send messages to the public about their reputation and to correct misstatements about what they have done. We argue that the matter is worth considering from first principles: should corporations have this level of protection? We argue that the committee should scrutinise that.

Bill Kidd

As a point of clarification, would you want the restriction to apply only to businesses set up as companies, or to all for-profit organisations outside of the normal business model?

Andrew Tickell

I think that we submitted to the committee some draft legislative language for it to consider. In that, “a non-natural person” is defined as a

“private company which has as its primary purpose trading for profit, or ... is a charity or has purposes consisting only of one or more charitable purposes”.

That is the definition in our draft language, which you can have a look at yourselves. It is attached to the end of our submission.

There is a range of ways in which you could do that. Some people might object that 10 employees is too few. On the evidence, something like 98 per cent of Scottish firms are small to medium-sized enterprises employing fewer than 49 people. If the committee felt that the proposal was an overly dramatic intervention in the public sphere, you could set a different number. We selected 10, because that has worked in Australian states and, as I understand it, Australia’s defamation laws, in an echo of our processes, are being scrutinised to bring them into the 21st century.

The committee could approach that in different ways, but the core question is what level of involvement of corporations in defamation actions we want to allow, because corporations are not people too, if I can put it that way.

Bill Kidd

That is interesting. Thank you.

The Convener

Nick McGowan-Lowe, do you want to add anything?

Nick McGowan-Lowe

I do not.

The Convener

In that case, I will turn to Rona Mackay and then James Kelly.

Rona Mackay

I turn to the subject of secondary publishers. The bill would exclude secondary publishers from liability for defamatory material. I will ask Andrew Tickell, first, what the advantages are of that approach. Secondly, is there any risk that secondary publishers, especially internet intermediaries, would be emboldened to do nothing about defamatory content? Obviously, that is a very real problem. Is there a risk that it might be exacerbated?

Andrew Tickell

I do not see why, in context. In effect, section 3 of the bill will limit the right of action to the author of a statement, the editor of a statement or its publisher—“publisher” in this context meaning a commercial publisher. A key benefit of the bill is that it will focus on where the alleged defamatory statement comes from.

For example, if there is an article in The Guardian newspaper that contains an allegedly defamatory statement and I retweet it, under the law as it stands I am potentially exposed to a defamation action. I will give another example. In the lead-up to the 2014 referendum, an organisation called National Collective wrote a blog post. It was a Frankenstein article made up of various points that were taken from the existing mainstream press about a business organisation, Vitol, that had donated to one of the campaigns. The collective was subject to defamation threats about things that had been published in The Observer, in some cases many years before. The provision on secondary publishers will mean that no one who shares material will be subject to the risk of a defamation action.

There is a challenge here. Say that a false statement of fact is made by a media organisation or on a blog. If you are a potential litigant, you will perhaps go after the person who published the false statement. However, you might be driven to go after a person who retweeted it, or shared it, or who has resources—someone who is an attractive person to target litigation against. The bill’s provisions will substantially prevent that from happening. That will be a tremendously good thing, as it will be clear that a much more limited group of people can be subject to defamation actions.

If you delve into the detail of section 3, you will see that it provides, for example, that you are not to be treated as a publisher simply because you share a hyperlink or a story. Alternatively, if you express approval or disapproval of a statement in a story—if you like something on Facebook—that does not drag you into the whole defamation action. The rules on secondary publishers are important because they will focus any potential litigation on the authors, the editors or the publishers of the statement, as compared to the legion of people all over the world who may or may not share it. That is a tremendously good thing.

Rona Mackay

Nick McGowan-Lowe, what is your opinion?

Nick McGowan-Lowe

I will come at it from a slightly narrower viewpoint. Whereas 10 or 15 years ago a newspaper may have been passed around the workplace, now news articles are shared on Twitter or on Facebook or whatever, often in entirely good faith. It makes no sense, in closely defined legislation, to open up the opportunity for a litigant to pick someone who may be, as Andrew says, the most financially attractive person to approach or perhaps the weakest link or someone who will submit easily. It is a clear point that the author and those directly responsible for the author’s work are the people at whom litigation should be aimed.

The Convener

Before I bring in James Kelly, Liam McArthur has a quick supplementary on this.

Liam McArthur

I will follow up on what Andrew Tickell was saying. Is there the potential for the restrictions around secondary publishers to come into conflict with the principle of serious harm, which has already been referred to?

The original author of a statement and the publisher may well be responsible for an alleged defamation, but if they have next to no social media followers and the traction that the article gets is fairly inconsequential, there cannot be any argument of serious harm being done. However, if the article is picked up and shared by somebody with a massive number of followers, it becomes something that presents a real risk of reputational damage to an individual or an organisation.

In that situation, it could be argued that it is the secondary publication that has caused the serious harm and that the two principles, which I can understand on their own, appear to come into slight conflict with each other.

Andrew Tickell

It may be worth delving into the detail of section 3(3), which relates to editors in particular—the people who put material in the public domain and who share it. There is a provision that provides in effect that if the sharing, by retweeting for example, materially increases the harm caused by the publication of the statement, the people who do that are to be considered an editor for the purposes of the legislation. That might address your query.

James Kelly (Glasgow) (Lab)

I have a couple of questions on defences. The bill sets out a number of defences that can be used, principally in relation to truth, public interest and honest opinion. Do you think that the defences as set out in the bill are complete? Are they clear enough and fit for purpose?

Andrew Tickell

Yes. I welcome the core recognition of the three defences and the reframing of them. We have truth, we have publications in the public interest, and we have honest opinion. It is particularly welcome that the last defence is to be renamed, as that is very much misunderstood at the moment. The current defence is one of “fair comment”, but we are talking about honest statements of opinion. Those are good things, and it is right that the three defences are protected.

I have a point to make about the second part of the bill. We have focused thus far on the defamation provisions, but we also have the additional malicious publication rules in the second part of the bill—

The Convener

Andrew, I am sorry to cut across you, but the next question is about malicious publication. If you keep focused on defences to defamation at the moment, we will come to malicious publication in a minute.

Andrew Tickell

That is fine. All I was going to suggest was that the defences should be clearly applicable in those contexts as well.

We welcome all the defences. The idea of a publication in the public interest is clear in terms of the bill, as is truth—we do not need to use the Latin term “veritas”. Finally, a defence of “honest opinion” gives a better understanding to the public about what is protected.

For example, we recently saw the case of Campbell v Dugdale, which was a defamation case in the sheriff court and then in the inner house of the Court of Session. That was upheld on the basis of fair comment—Kezia Dugdale’s remarks about Mr Campbell were judged to be fair comment—but I think that that led to considerable misunderstanding of the law. What we are talking about is honest opinion and, in my view, it is absolutely right that the law protects that.

Nick McGowan-Lowe

My answer is shorter. Yes, we believe that the truth, public interest and honest opinion defences cover the bases within journalism. We are confident that they are well defined in the bill.

James Kelly

I turn now to compensation. The current arrangement in the courts is that, if the parties cannot reach a settlement, the court will calculate compensation and, in doing so, will take into account the actions that the defender has taken to make amends.

The process set out in the bill is different from that, in that the court will calculate what is a likely award based on the case coming to court. Is that a fairer approach, or does it present a barrier for some defendants who are sent on that route?

11:15  

Andrew Tickell

This is a point that Campbell Deane made in his submission, when he noted that, under the bill, there is “no discount” for a defender who makes good attempts to settle the case before reaching the court. He pointed out that that was anomalous, and we very much agree.

It is in all our interests in defamation cases that, if people make false statements, we try to address them outside the courtroom environment in a negotiated way. Scottish PEN is very much in favour of that approach and of addressing incorrect statements that have appeared in print.

Campbell Deane therefore makes a good point, in particular that the law could more clearly incentivise negotiation by directing the court, in assessing what kind of damages may be owed, to have regard to the behaviour of the defender and their honest efforts to make an offer of amends. That could be enshrined in the bill by making it clear that a discount should be provided on any damages to reflect such action. Scottish PEN would very much support that approach.

Nick McGowan-Lowe

The NUJ would also support that approach for the same reasons that Andrew Tickell has outlined.

The Convener

There are no prizes for guessing what Liam Kerr is about to ask you about, because I have already told you.

Liam Kerr (North East Scotland) (Con)

Yes, I would like to ask three questions on malicious publication—and I shall use my third question to cue up Andrew Tickell’s answer on defences.

First, the bill will create a new court action for malicious publication to protect business interests. Both witnesses talked favourably of the serious harm test earlier, but there is no requirement to demonstrate serious harm before raising a claim of malicious publication. Why is that, and should there be a similar requirement in this part of the bill?

I ask Nick McGowan-Lowe to respond first.

Nick McGowan-Lowe

I would have to refer back to my notes.

Liam Kerr

Perhaps Andrew Tickell could take the question, and then Nick McGowan-Lowe can come back in if he wants.

Andrew Tickell

Liam Kerr makes a very good point: it does seem anomalous not to have the same requirement.

It is understandable to some extent that the focus of the bill has been on the defamation elements, as they are the better-known cases that arise. However, I think that that is a challenge.

In our submission, we said that there should be a serious harm principle echoing all the way through litigation in the bill. I would argue that additional forms of malicious publication should reflect the coherent logic of the bill. It should be stated that such actions should have to demonstrate a level of serious harm—and, if we are talking about businesses in this context, we are talking about serious financial harm. It does not seem to me problematic to include that test in the provisions. Scottish PEN would very much support making the bill more coherent on that point.

Echoing some of the things I said before about the dangers of corporate litigation, there is a risk that the malicious publication provisions become a back door for corporations to dodge the higher thresholds around defamation. They then would be more capable than the average person of bringing actions for allegedly defamatory or false statements. We would therefore very much welcome making the bill more coherent.

Liam Kerr

Unless Nick McGowan-Lowe wants to come in, I will move on to a second question.

I will come back to the point that Andrew Tickell made about the potential to dodge the defamation protections, which is particularly interesting. My second question is again slightly technical. The burden of proof operates differently for malicious publication from its operation for defamation. Are you able to explain in very basic terms the difference, whether you think that that difference is wise, and whether you are comfortable with that difference?

Andrew Tickell

I do not know whether I can answer that question immediately. Which particular aspect of the bill did you have in mind in terms of the differences in burden of proof?

Liam Kerr

My understanding is that, unlike for defamation, there is no reversal of a burden of proof. In the malicious publication cases, the pursuer simply has to show that the statement is false or made maliciously. Do you have any thoughts on that?

Andrew Tickell

I understand. As things stand, it perhaps is not as well understood as it should be. If I bring a defamation action and I can prove that the statement is defamatory, the burden shifts on to the defender to establish that it is true. I suppose that that is relevant in this context, so I might have to go back and have a look at that aspect of the bill again to give you a clearer answer.

Overall, I think that that aspect of the bill has been underscrutinised by everyone who has engaged with the process. It is an important question, so perhaps I can write back to you on the topic.

Liam Kerr

I would be very grateful. I suspect that you are right about the scrutiny of the bill.

On perhaps a similar point—this is where I will cue up the point about defences—the bill defines “malice” in a way that sets quite a low threshold. This question is on a point you made earlier, and I would be interested to hear you elaborate on it. Taken with the low threshold, do you think that there is a danger that the malicious publication provisions effectively offer businesses a way to bypass the protections for freedom of expression that are contained in the defamation provisions? Perhaps in your answer you can bring in your point about defences.

Andrew Tickell

As things stand, that is absolutely a risk. It is worth saying that the malicious publications provisions are about specific types of issues—they are about title and a range of other specific business-orientated elements—so I think that there is a considerable risk.

I mentioned defences earlier. As some of the academic witnesses who specialise in defamation law have also said, the way that the provisions on defences are drafted focuses very much on the issue of defamation, which makes sense in context. It is less clear if they are operative, how they are operative or in what way they would be factored in in a potential malicious statement case. I therefore think that the malicious publication provisions should be scrutinised carefully.

Some people would argue that we could simply get rid of all the additional provisions on malicious communications altogether. Why do we need an additional multiplication of the law? Why is the law of defamation not adequate in those contexts? Maybe there is a more basic question about why the specific issues of title and profitability require additional protection that is not offered by the law on defamation.

Liam Kerr

Thank you. Nick McGowan-Lowe, have you anything to say?

Nick McGowan-Lowe

I have nothing to say on this issue.

Liam Kerr

I am very grateful to you both.

The Convener

The answer to the question might relate to something that Andrew Tickell said earlier in his evidence, which is that defamation is targeted on the protection of reputation rather than on the protection of assets or interests and it is sometimes difficult to show that businesses have reputations. That might be part of the answer.

I will bring in Fulton MacGregor next.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

Thanks, convener. Congratulations on your election earlier and welcome to your new role.

I want to ask about the proposed court orders to remove contentious material. Section 30 would enable a court to order a third party to remove contentious material. Do you have any concerns about that provision? If so, are there alternative options for dealing with contentious material?

Andrew Tickell

As you say, section 30 would give the court power to require removal of a statement. Quite how operational that would be given the very international framework for the delivery of publication platforms might be open to question.

We have some anxieties about orders being made and people directed to remove material before a case is concluded or before any defamation has been established as a matter of law. On how it would work in practice, we need to consider how willing service providers are to take material down. Perhaps echoing what Rona Mackay said, I note that service providers can take down material that they regard as problematic, irrespective of what the law of defamation happens to say. That might have some heralds for freedom of expression of its own, but in looking at the law, we should not necessarily examine all its consequences and effects for everyone who might be concerned. We need to focus on whether it would be right that the court could order someone to take material down before any defamation had been established—material that might be perfectly true. We have some anxieties about how the provision might be applied in practice.

Nick McGowan-Lowe

My understanding of the law as it is applied at present is that courts are extremely reluctant to remove material where a defence has been lodged. It is very difficult, on the face of things, to reach an opinion on it until the proof has been heard on the evidence ahead of it. There would be concerns about that. As Andrew Tickell says, there is an international element of the internet and that of jurisdiction, so quite how it would practically be enforced in all cases is not clear.

Shona Robison (Dundee City East) (SNP)

My first question is for Andrew Tickell. Scottish PEN has proposed a new court action to provide protection from unjustified threats of defamation action. How would that work and what difference would it make in practice?

Andrew Tickell

I touched on that at the outset. We have come up with a recommendation that we introduce a new delict of unjustified threats. In effect, it would mean that, if someone was subject to an unjustified threat of defamation, they would be able to take the matter to court. As things stand, people cannot do that. If someone is subject to sustained, baseless threats of litigation, they really just have to live with it. We want a mechanism to be introduced to the law to address that problem and allow those who are subject to such threats to take action to make them cease.

The idea is based on intellectual property law. The inspiration was some legislation that the Westminster Parliament passed, which was introduced because of similar types of problems to the ones that we see in the field of defamation—people making threats and menaces with no substantive case behind them for the purposes of trying to suppress criticism or whatever.

We have set out some legislative language—we had help with the drafting from Doughty Street Chambers, and we thank it for its efforts—to give you a specimen way of giving effect to the idea. It provides for a range of things. It excludes from unjustified threats any attempt at conciliation and all the other out-of-court forms of addressing potential defamation issues. None of those things would be regarded as unjustifiable threats.

As you know, the Scottish Government decided not to include the proposal in the bill, although it consulted on it during the formulation of the bill. It had two arguments for not including it. The first was that it would be an additional barrier to justice for people with low incomes who wanted to bring defamation actions in court, as it might allow powerful people to bring counter-suits to prevent that. However, I do not know that many people of limited means have contemplated bringing defamation actions. If the Scottish Government is concerned about that, it could offer legal aid for defamation actions, which it does not do at present.

The second argument that the Scottish Government gave against the proposal was that it might result in less conciliation before cases arrive in court. That is an interesting argument, because the provision in the Intellectual Property (Unjustified Threats) Act 2017 was justified partly as a way of encouraging people to address criticisms and alleged defamations in good faith and in an open-hearted way before the threats and menaces of going to law are deployed.

Scottish PEN would argue that the proposal could be an innovative additional layer of protection in the law that would be directed at and address a problem that we know exists, which is that people make unjustified threats of defamation action.

Shona Robison

That is interesting. Nick, do you and the NUJ support the proposal?

Nick McGowan-Lowe

We do, for the reasons that I outlined earlier. The legal system is often used to threaten action in cases where there is no basis for it, no justification and no intention to follow through on it. When a legal threat comes to a newsroom or an individual such as a freelancer, it needs to be dealt with proportionately. Such things tie up resources and time and they tie up senior staff within publications and broadcasters, and those with the wallet to afford it can, in effect, delay the publication of stories that are in the public interest because of that. The proposal to deal with vexatious threats and have some kind of counter-action would help to rebalance that current wrong.

As Andrew Tickell said, an argument that was put forward for not including the proposal was that it would represent a barrier to justice. However, defamation is not a legal action that is taken by anyone who does not have access to deep pockets. My general belief is that I do not see how, in practical terms, it would deter conciliation.

The Convener

That brings us to the end of our questions. As neither member of the panel wants to add anything else to the record, I thank Andrew Tickell and Nick McGowan-Lowe for their extremely helpful, useful and full evidence.

I will suspend the meeting for five minutes before we hear from our second panel.

11:31 Meeting suspended.  



11:36 On resuming—  

The Convener

I welcome our second panel of witnesses. Joining us online—I hope—is John McLellan, director of the Scottish Newspaper Society, and with us in the room are Shelley Jofre, investigations editor, and Luke McCullough, senior policy adviser, both from BBC Scotland. John McLellan has now appeared on our screens, so he must be there, because the camera never lies.

I thank our witnesses for their written submissions, which are, as always, available on the committee’s web page. I understand that Luke McCullough wants to make a short opening statement.

Luke McCullough (BBC Scotland)

Thank you for inviting Shelley Jofre and me to give evidence this morning.

First, I apologise that Rosalind McInnes, BBC Scotland’s principal solicitor, who has literally written the book on Scots law and journalism, is unable to be here. She is on leave and is not in Scotland this week. However, Shelley Jofre has 30 years’ experience in broadcast journalism, including 25 years as an investigative reporter at “Frontline Scotland”, “Newsnight” and “Panorama”, and she is now editor of BBC Scotland’s investigative strand “Disclosure”. I trained in Scots law, but that was some time ago. I speak today as someone whose role at the BBC includes engaging on policy matters that impact on the future of public service broadcasting here in Scotland.

In essence, BBC Scotland welcomes the bill and supports it in its current form. Although defamation law reform might feel less pressing than other areas that occupy the Parliament’s business agenda, the antiquity of much of the existing case law, the growth of citizen journalism in its broadest sense and the vital importance of freedom of expression in a functioning democracy come together to make a compelling case for reform of the law.

As always, there are areas for improvement, including the weight that is given to freedom of expression in the delicate balance with privacy rights. However, the serious harm test, the single publication rule, the codification of the Derbyshire principle and the statutory definition of defamation are to be welcomed. We would not want perfect to become the enemy of good, and we believe that the bill is broadly a good one. We look forward to discussing it with you.

The Convener

Thank you—that was very helpful. John, would you also like to give a short opening statement before we move on to questions?

John McLellan (Scottish Newspaper Society)

Yes. Thank you, convener, and congratulations on your elevation this morning.

The Scottish Newspaper Society represents Scottish news publishing organisations, large and small. We are very grateful for the depth of the work that Lord Pentland and the Scottish Law Commission conducted to produce this much-needed bill, and we are indebted to the Scottish Government for introducing the bill to Parliament and to the Justice Committee for inviting us to give evidence on it today.

As other attendees have said this morning, reform of Scots defamation law is long overdue, and the bill marks a significant and welcome rebalancing of the right to freedom of expression and the right of individuals to defend their reputation. The effects of the existing defamation laws are not so much those that are seen in the courtroom, but those that are not. The majority of complaints are settled in private at some cost because the expense that is involved in mounting a defence is even greater. The provisions in the bill will not remove those effects entirely, but they will go a long way towards making them less likely.

The single publication rule and the reduced time bar reflect the reality of modern communication and will take the law out of the analogue era, but the core of the bill is the serious harm test. As has been observed, it will not rule out action by a determined complainer, but it should reduce the opportunity for vexatious actions. Crucially, however, it does not remove the right of individuals to receive redress for genuine damage to reputation, which is as it should be.

Overall, like others, we welcome the terms of the bill, and we look forward to further discussion this morning.

The Convener

Thank you—that was very helpful. The first question will be from Liam McArthur.

Liam McArthur

I thank the witnesses for their opening statements. I congratulate John McLellan on describing the chilling effect without mentioning it. As I did with the previous witnesses, I invite you—perhaps John McLellan first, and then Luke McCullough or Shelley Jofre—to describe from your experience the way in which the chilling effect manifests itself.

John McLellan

As has been described, the arrival of legal letters in a newsroom is not an unusual occurrence. It is some time since I was on the receiving end, but the arrival of such a letter where there is a threat of action immediately results in questions. Do I need to sort this quickly? If I am happy with my position, how much is it going to cost me to defend it?

In my time, which ended in 2012, decisions were increasingly taken on the basis—no matter what had been published and whether it was right or wrong—of saying, “It’s expensive to defend, so how can we settle this?” The default among many publishers is now to ask how they can settle at minimum cost, and not whether the principle of what was published is right or wrong.

During the development of the bill, I have spoken to colleagues about the more recent evidence. Like others, they were reluctant to reopen and discuss specific cases lest the original problem be exacerbated. Nonetheless, it is an ever-present fact of newsroom life that threats are received and they are dealt with financially and on the basis of how expeditious it is to get out of them or limit them, and not on the basis of whether one has a defensible position.

Liam McArthur

Shelley, will you answer the same question, but also factor in the changing financial dynamics that we heard about from the previous panel, which are perhaps exacerbating a problem that has been around for some time?

Shelley Jofre (BBC Scotland)

Thank you for having me on the panel. Defamation law and how to avoid being on the wrong side of it run like a seam through everything that we do on the “Disclosure” team, and freedom of expression is something that we are fiercely passionate about.

The work that we do, which is all about holding the rich and the powerful to account, giving a voice to the voiceless and producing journalism that actually changes things, is fundamental to a functioning democracy. I would always argue that we should be given as much freedom and protection under the law as possible to tell stories that matter. However, the chilling effect that everybody else has described is certainly real. It is something we come across all the time in our work.

There are very few media outlets left in Scotland that have the time or the resources to do what we do. During the couple of years that “Disclosure” has been up and running, there have been lots of things that I think you and the general public might not know today if we had yielded to pressure not to broadcast. They include important new evidence in the Sheku Bayoh case, the police investigation of Emma Caldwell’s murder, historical allegations of sexual abuse at a children’s home, investigations into a rogue national health service surgeon who managed to do untold damage to patients over a number of years, the environmental and human cost of oil platforms from Scotland being broken up for scrap halfway round the world, and the adverse impact of salmon farming in Scotland.

11:45  

Those are some of the important stories that we have told in the public interest, and in many of those investigations we received legal letters—sometimes numerous letters—warning us not to broadcast our allegations. I can understand why, in some instances, a smaller news organisation or a freelance journalist who has less experience or just fewer resources and less backing might yield to that sort of intimidation.

I have to say that, when we get a legal letter threatening us, it tends to indicate to us that we are on to something and it makes us try even harder to verify the story that we are looking at. However, I have to be absolutely honest with you and say that, even with our experience and resources, we sometimes do not broadcast everything that we would like to in such circumstances. That is not because we doubt the veracity of the allegations; I am talking about situations where we are absolutely convinced that the story is true.

I am thinking of a recent example where painstaking digging had found allegations from 13 separate credible sources against the same company but, after a lot of legal debate, we stepped back from the most damaging allegations. What was the reason for that? Scotland is a small country and, understandably, many of the people involved were worried that, if they were to go public or even to say that they would be a witness if the matter came to court, they might never get a job again in the business concerned.

The company that sent those letters knows that, and we know that. In the end, we as a public broadcaster have to evaluate whether it is worth the financial risk to publish and be damned.

Liam McArthur

That is very helpful. You describe a situation in which a decision on whether to broadcast or to publish is taken at almost the back end of the process. Would it be fair to say that there are occasions when individuals, companies or sectors are known to be so quick to go to litigation that it is not worth trying to assemble the argument? Is the chilling effect as corrosive as that?

Shelley Jofre

That is not the case for us, but we are in a reasonably privileged position compared with a lot of other journalists these days. The sort of cuts that newspaper journalists are facing have already been described to the committee. If I was a freelance journalist, there might be some companies that I would never think about tackling.

I do not think that there is any target that we would consider too big, but we would certainly think long and hard about publishing allegations if we were not absolutely sure of our footing. We will always give a reasonable length of time for people to respond, especially if the allegations are very serious and detailed. If it is a very long investigation, we might give them a couple of weeks’ notice.

I can give a recent example. We went directly to the company concerned and said, “Here are the allegations—what’s your answer?” The company then employed a crisis public relations team. We were still speaking to the company, but we also had to speak to the crisis PR team. At that point, legal letters from a very expensive media law firm, which ran to several pages, started to arrive on a daily basis. That is a tactic, and we all know that it is a tactic.

As part of the process of trying to finish a film, we try as hard as possible to stack up every allegation, which involves going back not once or twice but three times to check how we know what we know. However, most of our time in that final week or two is spent answering letters—in this case, on three separate fronts.

Liam McArthur

As was mentioned in our discussion with the previous panel, some of those options—the legal letters, the delaying tactics and so on—will still be open to those who feel that they have been defamed once the bill, provided that it is passed by Parliament, is in place. What is it that the bill will deliver that provides a greater degree of confidence for people such as you and John McLellan, to whom I will come shortly?

Luke McCullough

I think that it provides clarity. Having a statutory definition of what defamation is—we might come on to that in a moment—gives a position in Scots law that is sure for media organisations to found on, but the serious harm threshold is the major change. To an extent, even without what Scottish PEN was proposing, the fact that there will now be a threshold in statute, which did not exist before, will help to bat off some of the more frivolous attempts to stop investigative journalism.

You are right about the market more widely. As Shelley Jofre said, the BBC is in a slightly privileged position from a financial perspective, but it is not immune from costs. I suspect that you will all have spotted that people in around 1,000 jobs at the BBC across the UK are going through a potential voluntary redundancy process. My previous life before the BBC was in commercial radio, and I think that you were given a clue by the NUJ earlier as to why it is so important to get the bill through now, when there are pressures of time and of money. Journalists are often in a newsroom where they are the only journalist, and if it gets too hard to progress a story, they will do the thing that is easy rather than the thing that is right. The serious harm threshold is the significant change in the bill.

Liam McArthur

John McLellan, do you want to add anything?

John McLellan

Not at any great length; I echo the previous views. The bill gives confidence in the initial rebuttal. It strengthens the ground on which we can say, “No, I’m sorry—we have no case to answer.” Therefore, it strengthens the weeding out process that was mentioned earlier, whereby sometimes letters arrive that are essentially a fishing exercise to see what will come back. Strengthening the grounds on which we can reject a bid means that there will be fewer cases that are likely to be taken further, so it reduces the exposure to further costs, which is very important.

As we say, if somebody is determined to go all the way and they have deep pockets or an effective crowdfunding mechanism or whatever, that individual will still be able to do that, but the bill will provide a more effective filter at the initial stage and—if the case goes all the way to test—a more robust defence when it comes to the crunch.

The Convener

Luke McCullough anticipated my next question. I want to move the focus on to the definition of defamation that is provided in the bill.

Do you have any concerns about that definition? Do you welcome it? Are there any ways in which you think that it could be improved?

Luke McCullough

I hear what Andrew Tickell said earlier about whether there is a little bit of mission creep in what seems to not be a change in definition by moving from “right-thinking” to “ordinary” people. However, as we said in our written submission, it is good to have clarity, because although Sim v Stretch has held up generally, there is some old case law that probably muddies the water a bit. It will not take members of the panel and of the committee too long to think back to a fairly recent high-profile case that the BBC lost, in which the judge stated:

“the case is capable of having a significant impact on press reporting.”

The reporting in question was the press reporting of someone whose property was being searched by the police, but who had not been arrested or charged with anything. In effect, some judge-made law impacted on the previously established principle of press freedom. Although the BBC certainly did not get everything right in that case and has learned a lot from it, our view is that if there are to be changes in the law that impact on the ability of the press to do its job, it is the job of legislators to make such changes. Having statutory definitions and clarity is to be welcomed.

The Convener

John McLellan, do you want to add to that?

John McLellan

Yes. I agree with that. The problem with trying to nail down a definition is that we are dealing with inexact situations here anyway, and the way in which a definition can be understood will vary from case to case, as we can see from, for example, defamation actions over more specialist areas. What is an “ordinary” person is not the same in every scenario; what is a “right-thinking” person is not the same in every scenario, either. It moves with the audience and the vehicle.

We had some concerns about the maintenance of the “tends to” element of the definition. I think that there has to be some kind of balance between the right of individuals to defend themselves and the ability to defend such actions. In broad terms, however, we are generally content with what is proposed.

The Convener

Thank you very much. I will bring in Rona Mackay and then John Finnie.

Rona Mackay

I would like to go back to the subject of “serious harm”. Luke McCullough has already touched on the issue, so I will be brief, but I want to tease it out a wee bit more. If the serious harm test is applied, in your opinion, will that make broadcasters and freelancers less risk averse, because there will be a threshold to meet? In essence, is that what you were saying?

Luke McCullough

I think that it removes the frivolous threats that are levelled at journalists. It also makes a distinction between something that is only capable of causing harm and something that causes actual harm. That is a key difference, as we can see if we look at how things have developed in England and the way in which the Supreme Court has moved on its similar legislation, which was passed in 2013.

In addition, I think that the serious harm threshold will allow case law to develop in Scotland that will give us some robust comparators with our nearest neighbours. The issue of potential libel tourism was touched on with the previous panel, but the flipside of that is that there are so few defamation cases in Scotland that, if we want a body of Scots case law to build up, having some cases from England and Wales, which have similar legislation and a shared Supreme Court, is not unhelpful.

Rona Mackay

Shelley, what you said earlier was very interesting. Given the sort of journalism that you do, I can see why you would welcome a serious harm test and how it would aid broadcasters not to get lots of frivolous letters and not to have to spend their time going back and forth.

Shelley Jofre

Yes, although because of the nature of what we do, our targets tend to be big targets anyway and to have deep pockets. Regardless of how the law were to change, at the BBC we always have to have at the forefront of our minds the fact that it is licence payers’ money that we are spending in any costly defamation action. Responsible journalism is what we do, but the burden of proof in a defamation action is on the defendant, so sometimes—this might be the case even in the future—we might well find ourselves in a position in which we cannot air allegations that we are convinced are true, simply because the financial risk of losing a defamation action is too high if we cannot be sure that witnesses would be willing to stand up in court for us.

In some of the stories that we do that are very much in the public interest, the central witnesses are vulnerable for one reason or another. The central witness might be a victim of historical sexual abuse who might have gone on to have addiction problems; someone who is a victim of a miscarriage of justice but who has a background of petty crime; an elderly person in the early stages of dementia who is alleging neglect in a care home; or somebody with depression who says that the medication that they took made them suicidal. For all sorts of understandable reasons, those people might not want to come to court, or we might feel that they would not be able to withstand cross-examination in a high-profile defamation action. At the end of the day, such questions will still remain because of the way in which the law is tilted.

Rona Mackay

I will ask you this and then come to John McLellan. Are there elements in the bill that you think should be strengthened? Is there anything that you would like to be included in it that is not there at the moment?

Shelley Jofre

I think that the BBC is very happy with the content of the bill. We might not think that it is perfect, but it is a bill that we would whole-heartedly support. You will not be surprised to hear me, as an investigative journalist, say that I would like us to be able to say as much as we possibly could if we were sure that it were true.

12:00  

John McLellan

I do not think that the bill will have any impact on risk aversion in our newsrooms. It is not about freeing up newsrooms to do more; it is about defending their position in legitimate or accidental circumstances. As things stand, the risks and dangers in reporting go beyond defamation. The high-profile case that Luke McCullough referred to was as much about privacy as it was about defamation. The complexities in media law go beyond defamation, which is just one strand where an enhanced defence will protect against more frivolous or speculative actions. The bill will certainly not make newsrooms more relaxed environments.

John Finnie

Good afternoon, panel. As in the previous session, I have a question about the Derbyshire principle. In attempting to codify the principle, the bill creates an exemption for businesses and charities that deliver public services “from time to time”. As we heard from the previous panel, there is now a range of different approaches taken to the delivery of public services. To pick up on Shelley Jofre’s comment about holding the rich and powerful to account, I highlight that a lot of public services are now provided by predatory corporations that have questionable workplace and accounting practices. Does framing the bill around the Derbyshire principle help in that regard?

Shelley Jofre

I will ask Luke McCullough to answer that question, if you do not mind.

Luke McCullough

We welcome the codifying of the Derbyshire principle, which is vital for the scrutiny of the exercise of public services. As BBC Scotland is a public service broadcaster, that is core to what we do.

There is some risk to the extent that the bill might—from what I can see in the explanatory notes—enable an organisation to use one of its staff almost as a human shield in a way that prevents the bill’s intentions from being fulfilled. Prisons were mentioned earlier—the Scottish Prison Service would not be able to litigate against the BBC or any other broadcaster, but a private organisation that was providing identical services might be able to do so.

In the current climate, we might also think about care home provision. Let us say that Shelley Jofre and her team are investigating an allegation of financial impropriety by a board that is delivering one of Scotland’s publicly funded language services, but it is a small board that is made up of only eight people. I am not 100 per cent convinced that the bill as it stands would not prevent one of those people from attempting effectively to prevent the legitimate scrutiny of the use of public funds in an organisation. The codification of the Derbyshire principle in the bill is welcome, but there is room for a little more clarification.

John Finnie

Mr McLellan, do you have any comments on how the bill could be improved?

John McLellan

Yes. I speak as a City of Edinburgh councillor; my colleagues are currently discussing matters of importance to the city as we speak.

The provision of services is now such a complicated area. Not only are there private companies providing public services; there are also organisational changes within authorities whereby key public services are provided by arm’s-length external organisations that are technically private companies. It is a multilayered landscape, and—as Luke McCullough said—some clarity is required.

We know that a lot of key services are provided by private companies. The important point is whether a private company is acting under the direction of elected members; I allude to the discussion in the previous session. The key difference is between a private company that is acting purely in its own private interests and one that is operating on the basis of a contract that has been approved by elected members. There is a difference between the two, and the legislation could be extended where there is some element of public service and a company is working to a public remit.

The Convener

I have a supplementary question, but it is different from the supplementary that I put to the previous panel. My question is for the BBC journalists. Given that your functions include

“functions of a public nature”,

you are defined as a “public authority” under section 2 of the bill, are you not? That would mean that you could not sue for defamation if the bill was enacted. Is that correct?

Luke McCullough

In general, the BBC is deemed to be a “public authority” within the meaning of the Freedom of Information Act 2000, which is UK legislation. However, I suspect the BBC would not be able to sue for defamation, and I cannot think of a time when it last did so.

The Convener

Is the BBC content with that position? Is it content to be excluded from the scope of the law in that regard?

Luke McCullough

The BBC discharges important public service broadcasting functions and has other routes available to it. As with any other organisation, I cannot speak for individuals in the BBC and any impact that they may feel.

The Convener

Indeed. That is interesting—I think that we will explore it a bit further. I will bring in Bill Kidd next, followed by Rona Mackay.

Bill Kidd

I know that the witnesses heard the responses from Scottish PEN on this matter earlier, so it would be interesting to hear any responses that they might have. Some media stakeholders have called for businesses to be prevented from raising defamation actions altogether. Scottish PEN, with support from a number of others, has highlighted the Australian model, which is a form of compromise. In Australia, companies with 10 staff or more are prevented from suing for defamation.

Perhaps the BBC witnesses can start. Would you support such a proposal? What difference would it make in practice?

Luke McCullough

To be truthful, we do not have a lot to say on businesses. More effective work could be done, for example, on capping damages rather than restricting litigants. However, the BBC does not take a particularly keen view on the matter at the moment.

Bill Kidd

At the moment—okay. I put the same question to John McLellan.

John McLellan

We do not have a particularly strong view on the matter. Again, I stress that the preservation of the right of individuals and organisations to seek proper redress where real harm has been done is very important. However, drawing absolute rules that apply no matter what has happened is a bit more problematic.

The number of employees is a fairly blunt instrument; it would not take much to enable a relatively small but extremely well-funded organisation to take action. A very small company might manage millions of pounds’ worth of funds and have moneys open to it in order to take action. Such a rule might weed out some actions, but it would not necessarily prevent individuals from finding another route. It might be a bit of a whack-a-mole approach, where you think that you have blocked off one route and then another one pops up because it is relatively straightforward to get round the rules.

Bill Kidd

Thank you—that is an interesting variation on what we heard earlier, so it is very useful to us.

Rona Mackay

The bill would exclude secondary publishers from liability for defamatory material. What are the advantages of that approach? In his opening statement, Luke McCullough mentioned the term “citizen journalism”. I am thinking about the bill’s provisions as they relate to the internet in particular, where people can now offer an opinion on anything, and that opinion could be defamatory. Is it a good approach to exclude secondary publishers from liability?

Luke McCullough

Yes, in that it is part of the overall theme of bringing clarity to the law, and avoids vexatious claims being made against someone who has “liked” something when they do not know whether it is true but they think that it has come from a reliable source.

In general, the BBC is a primary publisher of almost everything that it publishes, but I can see how the arguments that were laid out in the previous session would operate: that, in general, responsibility should lie with the editor and the publisher of articles, information and journalism. The BBC’s editorial guidelines take that responsibility extremely seriously in terms of what the BBC can and cannot say on its airwaves and on its online services.

There is additional protection: if a secondary publication causes an elevation in the level of harm, the legislation would protect an individual who might find their access to justice otherwise cut off. However, in terms of overall clarity for the law, having the primary publisher be responsible for their content seems to be in line with how our own editorial framework operates.

Rona Mackay

I will ask the other witnesses about that, but first I want to tease out whether you think that there is an issue with the internet, although I know that that is not your prime concern. The United States, for instance, offers complete immunity in respect of anything that anybody says on the internet, and it would take no action. Is that a good thing, given that people use the internet so widely and for so much?

Luke McCullough

As a purely personal view, I find it interesting that Ofcom has moved a little bit on how to regulate the internet and how a balance between freedom of expression versus privacy rights could operate in that forum. To an extent, that is a microcosm of the challenge that the bill throws up: how do we balance those two key rights? I do not think that we would ever be in a space where we could say that the internet is off limits. It would seem very odd, given that more and more broadcast services are delivered digitally, to say that there is no scope for a defamation action if something has been published only on BBC iPlayer and that it should be off limits, while something that is put out on the BBC Scotland channel falls within the scope of the law.

Rona Mackay

Does Shelley Jofre have any thoughts on the matter?

Shelley Jofre

As an editor, I always expect to be held to account for the content that I oversee; I would not expect people who shared it in good faith to be held to account. We know that, these days, content is shared widely and quickly and in good faith, so it seems only fair for litigation to be aimed at those who publish and have editorial responsibility for that content.

Rona Mackay

John McLellan, would you like to comment?

John McLellan

I would go along with that view entirely. Trying to nail down what is or is not acceptable in that respect would become very difficult. An absolute ban would be difficult, too, because that would encroach on the right of individuals to seek redress for genuine damage.

As the other witnesses have very ably described, the situation is very complicated. If there is any simplification to be had, it would be in pinning responsibility down to the originator of the material.

There are other elements—for example, where the reopening of old material could be regarded as re-publication. Sorting out that end of it is important. Essentially, publishers are now unable to control access to information because of cacheing, republishing and retweeting in the wider context. The legislation is in a reasonable place—in going beyond that and trying to tame the internet, legislators would drive themselves mad.

Rona Mackay

I have one more quick question. I will pose a scenario. If a story appeared in the print edition of one of your papers, and it was then published on the digital platform after the digital editor had changed it substantially and added a few bits and pieces, who would be responsible if it contained something defamatory?

John McLellan

It would be the publisher, the editor and the owner of the website. If the story originated from the same newsroom, the publisher would be responsible. If the defamatory aspect resulted from changes that were made by an editor rather than the content by the writer of the original story, the original writer would clearly have a defence. If the writer had not included defamatory material—

Rona Mackay

So the sub-editor would be liable.

John McLellan

The writer would have a defence; the responsibility would lie with the publisher and the editor. That is why the position of editor is still very important—a title needs to have somebody who is legally responsible for the content. In the circumstances that you describe, it would be the editor who would be responsible.

James Kelly

I will move on to the area of defence—I will go to John McLellan first and then to the BBC representatives. The bill sets out three grounds for defence, based on case law: “truth”, “public interest” and “honest opinion”. Are the definitions for those grounds as set out in the bill adequate and clear? Are they complete, or does anything need to be added?

12:15  

John McLellan

They are very broad, and their breadth is both their weakness and their strength. I cannot think of anything in particular that should be added.

In the Campbell v Dugdale case, which was mentioned earlier, the judge recognised that although, in essence, there was a defamatory element to what was said, the opinions were honestly held. Under the third of the measures in the bill, therefore, there is a defence.

We are generally content with the definitions in the bill. It is good that we are codifying public interest, because the old Reynolds principles have never been properly tested in a Scottish scenario. There has only been one significant case—Irene Adams, MP v Guardian Newspapers Limited—and it did not run to completion.

The bill does the job that we hoped it would do. In trying to add to it or narrow it down, we would end up going down wormholes, and it would become more and more difficult the narrower or more precise we tried to make the definitions.

Shelley Jofre

I would probably echo what John McLellan said. At the BBC, we are confident that the three statutory grounds—“truth”, “honest opinion” and publication “in the public interest”—are well defined. We deal with the latter ground—the old Albert Reynolds defence—quite frequently. It is possibly helpful for the committee to know that, in practice, the 10 steps in the Reynolds defence have been a useful aide-memoire for us in investigative journalism. In essence, that defence is a responsible journalism test, and it reminds us to ensure that we are able to show our working and demonstrate all the steps that we took all the way along the process to try to verify the story. That means taking every possible and reasonable step to ensure that the story is true.

A critical element is the right-of-reply process, in which the person is given time to respond and to put their side of the story. We think very carefully about that. If we have spent six months on an investigation, we would not give someone just 24 hours to respond; we know that a judge would take a dim view of that. What comes back in that process is often critical, and it forces us to think about our story in a way that we had not done before. Sometimes, it forces us to completely rethink the story.

Nonetheless, given that there is now a statutory defence of publication on a matter of public interest in England and Wales, it makes sense for Scotland to be on the same page as our nearest neighbours.

Rosalind McInnes has told me—I am not sure if I am contradicting John McLellan here—that Albert Reynolds has been referenced twice in Scottish cases, but only twice. If we do not reform our defamation law in line with the law in England and Wales, there is a danger that our case law will not be up to date—we will have old Reynolds defences, while English law is developing more robustly.

James Kelly

I turn to how a compensation figure is set. Currently, the process by which compensation can be calculated allows the defender to set out what steps they have taken to mitigate what they have published. In effect, what the courts then offer is a discount, compared to what the sum could be if the case went through a court process. The bill goes down a different route in that it does not take that into account—the discount is not in place. Is that a fair way to do it or will it inhibit defenders from going down the compensation route?

Luke McCullough

The point that Shelley Jofre made earlier about the BBC being responsible for public money in how it discharges its functions means that we probably would support the ability to discount damages at an earlier stage.

James Kelly

John McLellan, do you have a view on discounts?

John McLellan

Yes. In any negotiation, an ability to understand the parameters and the likely outcomes at the end would be very welcome. The offer-of-amends system as it stands recognises that, but it can be somewhat fluid, so strengthening that would be very welcome.

Liam Kerr

I would like to return to my earlier theme of malicious publication. We heard earlier the concern that the provisions on malicious publication could offer businesses a way to bypass the protections of freedom of expression that are in part 1, on defamation. Is that a fair concern?

John McLellan

I have had a look at that area. There are defences against it in the bill. Section 21 has the condition:

“the statement has caused (or is likely to cause) serious financial loss to B”.

That is important. The need to be able to show real loss is key.

My view is that people are less likely to be able to fly kites on malicious publication than they are on general harm to reputation. As others have said, it is not something that has attracted perhaps as much scrutiny as the rest of the bill, but that is possibly because that caveat is in there.

There is always the possibility that another route will be used, but the rest of the bill allows a determined litigant to go all the way anyway. The important provision relating to whether something has caused, or is likely to cause, financial loss makes that a bit less attractive, I would have thought, but anything is possible. If someone wants to go all the way, spend the money and take the risk, they can.

Liam Kerr

That is very interesting. I put the same question to Luke McCullough. Do the malicious publication provisions offer the way to bypass those protections? If so, are you reassured by John McLellan’s caveat about showing real loss?

Luke McCullough

What John McLellan says is helpful. We probably have not scrutinised that part of the bill as much as we have the provisions on defamation, so it was interesting to hear that, as well as hear the broader experience of witnesses in the earlier discussion. If it is a back door to undermining the serious harm threshold in the defamation provisions, that would be of concern, given how much we have welcomed the serious harm threshold elsewhere in the bill.

Liam Kerr

Can I push you on that? You have spoken favourably on the serious harm threshold throughout and, at the outset, John McLellan said that the serious harm test is at the core of the bill. Given that premise, should the serious harm test be ported into the malicious publication part, perhaps to address any possible mischief that was implied by my earlier question?

Luke McCullough

John McLellan is possibly arguing that serious financial loss is the equivalent threshold. If that is the equivalent threshold, that would be welcome, but I would not want to see anything that undermined the serious harm threshold. Does it require porting into that part of the bill? Possibly.

John McLellan

If the bill would benefit from that clarity, then I agree. The clear reference to financial damage in part 2 of the bill is helpful in that regard. If it would be further strengthened by a mention of serious harm, we would welcome that.

Liam Kerr

That is very interesting. Thank you.

Fulton MacGregor

I turn to section 30, which would enable a court to order a third party to remove contentious material. As I did with the previous panel, I will roll my two questions together. Do you have any concerns about that provision? If so, do you think that there are any alternative options to deal with contentious material?

John McLellan

The concern that we had with that area was whether that would signal that there was a problem. When an organisation is mounting a robust defence, an order to remove something may impute liability. In practical terms, even if a robust defence is being mounted, it is customary practice usually for publishers to remove any contentious material from their sites as a matter of course—as soon as you get a problem, you take it down. That, in itself, is an illustration of the chilling effect of the issue. People effectively say, “We are happy with what we have published, but just to be on the safe side, we had better take it down.” If part of your defence in court would be, “We are so convinced of our position that we are not taking this material down”, but the court orders you to do that, that could be seen to have an implication, especially if there was still jury involvement.

Shelley Jofre

The main concern from the BBC is about being ordered to take down something that you are absolutely convinced is true. I have already described to you the level to which we go to verify our stories before we broadcast them, but we also have a self-regulation process that means that, if there is some doubt, we generally take material down. There is a bit of concern about this particular aspect.

Luke McCullough

The concern is the one that was raised by the first panel: that you could have the instruction to take it down before the matter had been decided by the court. Being instructed by a judge to remove content before the judge has had an opportunity to consider whether or not that content is defamatory almost prejudges the case that you are involved with. As Shelley Jofre said, in a self-regulatory environment, that seems to encroach on the ability of publishers and broadcasters to do what they need to do.

Shona Robison

Good morning. You will be aware of the proposal by Scottish PEN for a new court action to provide protection from unjustified threats of defamation action. Do you support that proposal, and what difference would it make in practice?

Luke McCullough

If I respond on the principle, Shelley can maybe say what difference it would make. In our written submission, we said that we would welcome some of the further ideas of Scottish PEN and that is certainly one that we thought could bring change. The challenge for us, and the reason why we did not put it in writing, is that it is a complex area. How would you make it work? You can see there is a parallel in the Copyright, Designs and Patents Act 1988, where some vexatious attempts to halt actions are now caught by the law. We agree with the principle of the proposal, but we understand that there would be difficulties in practice.

Shelley Jofre

It would obviously be helpful if there was some way of finding a mechanism to be able to reduce in advance the number of threatening legal letters that we get and try to find some way of resolving issues but, on a practical level, how that might work in practice is, I guess, something for you guys to consider. It would certainly be helpful in the sort of work that we do.

The Convener

John McLellan, would you like to add to this?

John McLellan

I think that the proposal is welcome, but that the practicalities of it would be such that a determined litigant would find ways around it. We did not include it in our submission, but referred to other proposals by Scottish PEN that we support.

Shona Robison

That was helpful, thank you.

12:30  

The Convener

I have a final question that concerns something that was discussed briefly in our first panel and which I would like your views on. One provision of the bill will reduce the limitation period—the time for raising court action in defamation—from three years to one year, which is quite a significant cutback. What impact would that have, if we enacted it, for your media organisations? Perhaps John McLellan could answer first and then the BBC.

John McLellan

That is an element of law that does not just go back to the analogue era; it goes back to the era of the pigeon. If you have not suffered any harm within a year in the digital era, it is unlikely that you have suffered any harm to your reputation. Three years is an opportunity for speculative litigation. In this day and age, unless you are Robinson Crusoe, it is highly unlikely that anything that has been said about you would not come to your attention within that period. A year is more than adequate and brings the law into line with the position in England and Wales.

The Convener

With Liam McArthur in the room, no one will say anything about being marooned on remote islands. Shelley Jofre or Luke McCullough, do you have anything to add?

Shelley Jofre

I agree with that. A year is more than enough time these days for somebody to decide whether they have been unfairly damaged by something that we have published. At BBC Scotland, we have received a writ just before the three-year limit, and I think that that limit is unduly tilted in favour of the pursuers, to be honest.

The Convener

Thank you, that is helpful. Thank you, John McLellan, Shelley Jofre and Luke McCullough, for your evidence this morning and for your help to the committee.

That brings the public part of our meeting to a close. Our next meeting will be one week today, on Tuesday 1 September, when we will be meeting virtually to continue to take evidence on the Defamation and Malicious Publication (Scotland) Bill. I close the public part of the meeting.

12:32 Meeting continued in private until 12:51.  

The Convener

Agenda item 4 is to continue our consideration at stage 1 of the Defamation and Malicious Publication (Scotland) Bill. We will have two panels of witnesses on the bill this morning. The first panel is Duncan Hamilton from the Faculty of Advocates and John Paul Sheridan from the Law Society of Scotland. I warmly welcome them to our meeting this morning. I thank both of them for their written submissions, which, as always, are available on the committee’s web pages. I invite them to make a short opening statement if they wish to do so, before we move to questions.

Duncan Hamilton (Faculty of Advocates)

Good morning. As a former member of the committee, I know that the greatest gift that I can give you is brevity, so I will make only two points at this stage.

The first is on the general approach to the law in this area. Obviously, the Faculty of Advocates represents a body of practitioners who act for media interests and for private individuals. I make that point simply to say that what I hope to bring to the committee is the experience of practice both in defending freedom of expression and, where necessary, in restricting it. From reading the evidence that was given to the committee last week, I thought that it might be helpful today to have that balance and to understand that there is no monopoly on the definition of public interest in relation to either side of that argument—both have a legitimate role.

My second point is a general one in relation to the approach that the faculty has taken to the bill. We start from the position of the existing rights and responsibilities, and we simply invite the committee to remember that the onus is on the Government to set out what is deficient about the current position and why what is proposed will improve the situation. Again, if there is one key word in all of this, it is “balance”. Some of the concerns and issues that we will go on to discuss arise from the sense in the faculty that some aspects require greater balance.

The Convener

Thank you—that is helpful.

John Paul Sheridan (Law Society of Scotland)

I will be brief. Similarly to Mr Hamilton’s approach, in advance of the committee meeting and the preparation of its written submission, the Law Society of Scotland convened a round-table event for all practitioners who specialise in defamation, both in the media and those who represent private individuals. We seek to bring a balance to the debate between the interests of private individuals and the media.

We welcome this important and useful bill. In particular, the Law Society welcomes the fact that the bill will make the law of defamation much more accessible to the public generally: when a law is codified in certain places, it is much more accessible than trying to search through ancient case law. I have nothing further to add at this stage.

The Convener

That is very helpful. Thank you both very much.

I will move on now to questions. I remind members that if they have any supplementary questions they should type R in the chat box. Could every member please address their questions to a particular witness so that the witnesses know who should speak first and the broadcasting team know who to go to first.

I will open with Liam McArthur.

Liam McArthur (Orkney Islands) (LD)

Having fallen foul of that process probably worse than anyone else last week, I take that reprimand in the spirit in which it is intended.

I thank Mr Sheridan and Mr Hamilton for their opening comments and for providing a perfect segue into the line of questioning that I will pursue. Last week, we heard from those with a media interest principally, but also from an academic perspective. Therefore, the focus was very much on the chilling effect that is alleged to surround the current laws on defamation. Those witnesses seem to have been looking for greater protection for freedom of expression, and their feedback seemed to have been fairly positive. Both of you have alluded to the balance that needs to be struck in the bill, and the committee would recognise that.

I am interested in Mr Hamilton’s perspective on whether that balance has been achieved. He intimated that he does not necessarily believe that that is the case. It would be interesting to know where he sees the imbalance in the way that the legislation is currently framed.

Duncan Hamilton

In all this, the important starting point is that we are dealing with the rights to reputation and freedom of expression, which are both qualified rights. It is accepted that neither one of those rights trumps the other; there is very clear case law on that. Therefore, it follows that there will always have to be a chiselling of those rights in different areas, depending on the facts and circumstances of any given scenario.

It seems to us that, in terms of the bill, a very clear policy decision has been taken, understandably, to promote the freedom of expression side, which we support. However, the safeguards and the checks and balances that are in the bill are diminished to a level that perhaps tilts the table too far. Any one of the following points supports that view. We say that serious harm is too high a test; the position on single publication is a difficulty; the one-year limitation, again, goes too far on the side of freedom of expression; and the position in relation to secondary publishers is a difficulty.

That is not because the Faculty of Advocates is looking to be difficult; it is simply because, as we look at this as lawyers who deal with the issues in practice, it is important to remember that individuals, quite properly, are looking for a remedy from their courts. Part of the responsibility of the Parliament, the committee and the faculty is to ensure that the balance of legislation recognises the rights of those individuals. Everybody is in favour of freedom of expression until they are defamed, at which point that person takes a different view. When individuals look for a remedy, they need to know that the law that has been passed is balanced.

Liam McArthur

That is helpful. I will invite Mr Sheridan to give his view in a second.

You talked about how the balance may go too far the other way. Is it accepted that—as things currently stand—there is an imbalance that leans towards the protection of reputation and works against freedom of expression? It was referred to in last week’s evidence as a “chilling effect”.

You seem to be arguing that, although the pendulum should perhaps swing back towards freedom of expression, it may have swung too far in that direction.

10:15  

Duncan Hamilton

Instinctively, as someone who is involved in media law, I promote and defend freedom of expression in court.

We have an opportunity to update the law, but that does not mean that the balance was necessarily wrong. There is an on-going and necessary tension between article 8 and article 10 of the European convention on human rights, between the right to a private remedy and the right to general freedom of expression. The role of Parliament is to try to create a legal framework within which those rights can be examined in the context of any individual case.

You asked whether we start from the position that a greater weight should be put on freedom of expression. The answer is not necessarily. The courts were already bound to look at freedom of expression and they already do so. The courts give substance to those rights day and daily. If we are looking at refreshing and codifying some of that, we should not start from a position of saying that there is already an imbalance.

The “chilling effect” is a catchy phrase. It is a real thing in certain circumstances, but the phrase should not be adopted by those who want to say that freedom of expression trumps everything and that any attempt to restrict freedom of expression for any purpose has a chilling effect. One person’s chilling effect is another person’s opportunity to have a remedy as a private individual.

Liam McArthur

That is helpful. To give last week’s witnesses their due, they gave evidence of the chilling effect as it applied and had been experienced in particular spheres.

Mr Sheridan, what is your take on those questions? A point was made last week about tactics that are often deployed, such as sending letters as a shot across the bows in the hope of discouraging publication. The letters may not suggest that there is any defamation, but they are used to disincentivise people from publishing.

John Paul Sheridan

The starting point is that we must bear in mind what the defamation remedies are for. They are not about protecting assets and income; they are about protecting reputation. We must look at this in that context of reputational protection. A reputation can take a lifetime to build up but can be quickly lost.

In that context, when we look at balance, the Law Society’s position is that the balance appears to be broadly right. There are political decisions to be made. The thrust of the bill gives greater protection for publication. That is a perfectly valid approach. The Law Society thinks that the difficulty comes when one combines a number of factors, as that shifts the balance in favour of the media organisations.

Duncan Hamilton listed four areas, all of which tend to mitigate—[Inaudible.] There is the serious harm test, the one-year limitation period, the single publication rule and secondary publishers. All those are weighted in favour of one side rather than the other. Regarding the chilling effect, there is a lot of detail in sections 6 and 7 to define publication in the public interest and honest opinion. From one point of view, those alone provide adequate protection against the chilling effect.

I appreciate the practical effect that some private individuals have access to greater assets and legal advice than others. That is not something with which the bill could deal, but is more a matter of provision of equality of arms to individuals, which could be dealt with in other ways—through legal aid or otherwise. To a large extent, the bill will not do a great deal in relation to that issue because there will always be strong or wealthy individuals who want to get around it.

Liam McArthur

We will come to the issues of serious harm, secondary publishing and so on. What do you believe to be the implications of the bill for the rights of privacy and protection of reputation?

John Paul Sheridan

For the four areas that I have listed, the rights of privacy will, in my view, limit an individual’s ability—[Inaudible.]—protection of their reputation.

Duncan Hamilton

Yes. By definition, relaxation of the protections for somebody’s ability to enforce a defence of their reputation is a weakening of their position.

I want to go back to your point about pre-litigation correspondence and letters, because I saw that it was raised last week. I say again that we need to be careful in that situation. First, pre-litigation correspondence and engagement are actively encouraged in every area of law, because of their capacity to resolve matters without their going to court.

Secondly, have we got to the stage at which somebody is not able to instruct a solicitor to write a letter to defend their position or to put on notice somebody whom they believe has defamed them, after taking legal advice on the matter?

Thirdly, the idea that the people who are in receipt of such letters are not capable of dealing with them without their being suddenly put in a year-long state of fear and panic is simply not what happens. A regular stream of correspondence goes back and forth between solicitors and media entities: that is the very stuff of media litigation. I even saw a suggestion that an additional amendment, which would impact on the pre-litigation position, should be lodged. I strongly urge the committee to be cautious in going into that territory.

Liam McArthur

Mr Hamilton has made a fair comment. There is no expectation that the committee should go down that route, but a distinction would be made between larger-scale media outlets, which deal with such matters as matters of customer practice, and others for which the impact of the letters could be different.

The Convener

In the view of our witnesses, could the statute define defamation, or should judges continue to define defamation in common law?

Duncan Hamilton

At the moment, our position is that understanding what is meant by “defamation” is not difficult—the courts implement the meaning daily. However, we understand the desire to define it in the context of an act whose purpose is to put it all in one place.

The committee is aware that the difficulty of legislation is that it sometimes takes away flexibility in such matters—flexibility that can be useful. The common-law test can be put into statute. Would that improve matters? Not particularly. Would it detract? Not particularly.

John Paul Sheridan

I broadly agree. I go back to my opening remarks about accessibility and where it is clear from the statute for members of the public what the law is—[Inaudible.]—a lot easier for accessibility purposes. However, that would not change the test and there is no particular reason to do it beyond that.

The Convener

That is helpful. Thank you. What about the actual definition in section 1? Does Mr Sheridan have concerns about how defamation is to be defined in the legislation?

John Paul Sheridan

No. That really reflects the common-law test, so the Law Society has no difficulty with that.

The Convener

I will ask Mr Hamilton the same question. Concerns have been brought to the committee’s attention about some of the language that is used in the definition of defamation in section 1 of the bill. There is reference to “ordinary” people, and the requirement that opinion in society generally be lowered appears to have been removed. I know that Rona Mackay wants to ask questions about serious harm so, absent the serious harm element of the definition, do you have concerns about how defamation is defined?

Duncan Hamilton

All definitions are open to criticism, and I accept that both points could be concerning. However, equally, if we were to put in statute the phrase

“right-thinking members of society”,

which is part of the existing definition, that would also be open to criticism.

The courts have adopted a range of tests that all come to broadly the same place. On the existing definition of defamation, in the context of how it works in practice, I have never encountered the court being unclear or there being a real dispute between parties about that definition. That being the case, to stay as close as possible to that makes some logical sense.

The Convener

That is really helpful. Thank you.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

Good morning, panel. I want to return to serious harm and the new threshold for that. You will know that our witnesses last week were largely supportive of it. I will go back to something that Duncan Hamilton said about pre-litigation letters. Are you saying that none of them is vexatious or frivolous? You alluded to the fact that they are common practice, but are they necessary? Would the new threshold have an impact on the less-necessary ones?

Duncan Hamilton

I cannot see why that would be the case on pre-litigation correspondence, specifically. I am not aware of solicitors in the field sending vexatious letters; that is not what solicitors do. It is perfectly true that one might send a letter on behalf of their client that does not ultimately reflect what a court would find, and that one might seek to assert a position on behalf of the client. So be it: that is in the nature of what solicitors do in their clients’ best interests, and that is how they are bound to act. However, that will not change as a result of having a serious harm test in legislation because, if a solicitor is going to send a letter for that purpose, they will send it anyway. The serious harm test kicks in only as a matter of law when a further stage is reached.

I do not really understand the pre-litigation point, because it must be right that people have the opportunity to assert their right through their instructed solicitor, regardless of any test being adopted in statute.

Rona Mackay

Before I ask Mr Sheridan the same question, I want to ask about the threshold and how reaching it can be demonstrated. What are the criteria for that threshold? You mentioned reputational damage, which is, of course, pretty obvious. Would loss of earnings or any other factor be included? Who would define that? That is a question for Mr Hamilton.

Duncan Hamilton

I beg your pardon—I thought that you were waiting for Mr Sheridan.

Rona Mackay

That is fine. I will come on to Mr Sheridan.

Duncan Hamilton

All those things would be included. I am sorry: do you still mean in the pre-litigation correspondence?

Rona Mackay

No. I have moved on to the serious harm threshold. How would that be defined? Who would make the judgment about whether there was reputational damage or otherwise?

Duncan Hamilton

The court, ultimately, would do that. The Supreme Court has held that there must be two parts to that: the serious harm that arises from the words, and evidence of actual impact based on actual factual material. That could be across a wide range of things, including reputational or patrimonial loss.

10:30  

Before we move on to that aspect, there is, from the faculty’s perspective, an important point to make about the concept of serious harm. I think that the point is made in the written submission. The committee will remember a phrase from 1999, when the Parliament started. It is

“Scottish solutions to Scottish problems”.

What we are dealing with here is an English solution to an English problem. It was brought in on the back of various cases—including Jameel v Wall Street Journal Europe Sprl and Thornton v Telegraph Media Group Ltd—and arose from a sense that unmeritorious or frivolous claims were being brought forward; hence the need for a higher threshold. From the position of Scottish practice, that has simply not been the case, so it would be the opposite of adopting a Scottish solution to a Scottish problem. Therefore, before we go any further and simply adopt it, I stress that, in my view, it is not an appropriate fit.

Rona Mackay

Thank you. That is interesting. I will ask John Paul Sheridan a question that is along the same lines. What is your view on pre-litigation stage letters, and on the threshold for the serious harm test?

John Paul Sheridan

On pre-litigation correspondence, I have two points to make. First, I agree with Duncan Hamilton, in that the serious harm test does not really come into correspondence between solicitors prior to litigation.

That is qualified, however, by my second point. The serious harm test potentially comes in and becomes relevant if a publisher or a journalist makes an offer of amends. We might come later to whether making an offer of amends is, of itself, an implicit acceptance that there was serious harm. The offer of amends being accepted would prevent the argument from being taken in court.

The general point in pre-litigation correspondence is that one should not think that the serious harm test—[Inaudible.]

On that second point, the wording for the serious harm test has, as Duncan Hamilton suggested, been taken directly from the Defamation Act 2013, which applies in England. Relatively recently, that went to the Supreme Court, which has held that there has to be, as a matter of fact, evidence of reputational loss or of serious harm to reputation or financial position.

That was designed in England because of suggestions of libel tourism, and that was proceeding through—[Inaudible.]—without merit in the English courts. I echo Duncan Hamilton; there is no evidence that that is an issue in Scotland.

The legislation and the test of serious harm have been in place in England for a number of years, but there has been no uptick in Scottish defamation proceedings during the period. There are probably a number of reasons for that, not least of which is the fact that our courts tend to be a bit less generous with awards of compensation. The problem is specific to English libel courts and, as far as the Law Society is concerned—I sense that the Faculty of Advocates agrees—it does not apply in Scotland at all.

Rona Mackay

Thank you.

From what you and Duncan Hamilton have said, is there really a need for the legislation? Does the definition from the Defamation Act 2013 need to be refined?

John Paul Sheridan

To go back to the point that I made at the start, I say that it is useful that there is codification of certain aspects. There is also a point to be made about accessibility.

The wider problem with defamation, which the bill does not address, is the issue of internet publication. It deals with it to a limited extent, in the sense of retweeting—

Rona Mackay

We will come on to that.

John Paul Sheridan

The Law Society is in favour of the bill, but queries certain aspects, including whether it gets the balance right in the serious harm test. Our position is that it goes a little bit too far.

Rona Mackay

Thank you.

The Convener

Thank you very much. Liam McArthur has a brief supplementary question.

Liam McArthur

I will pick up on points that were made by Mr Sheridan and Mr Hamilton. Mr Hamilton referred to

“an English solution to an English problem”.

Obviously, the bill has emerged from work that was carried out by the Scottish Law Commission. Is it your view that the Scottish Law Commission has misunderstood the issues that need to be addressed, or does the bill deviate from what the commission came up with in its deliberations?

Duncan Hamilton

Remember that the Scottish Law Commission drew heavily on the 2013 act, so the history of the issue goes back to 2013 when that act was brought in in England. The Scottish Government at that time decided not to follow that path, so a gap was created. The Scottish Law Commission quite properly decided to fill the gap and to examine the issue.

The commission looked very closely at the 2013 position; there was a fork-in-the-road choice. I made the point to the commission at the time that in Scotland we do not have sufficient defamation cases for proper healthy development of jurisprudence. Ireland, for example, has booming defamation practice, so it has nothing to do with the country’s size.

We can either develop a system that is healthy, or we can accept that Scotland has so few defamation cases that we should take from England an off-the-peg position. There is an argument that if Scotland does not follow aspects of the English legislation, it will, because of the absence of cases, end up out of kilter and difficulties will arise. That is a perfectly legitimate position.

I just want that to be a clear choice that people make with their eyes open. We cannot simply accept that because it is in the 2013 act and others have looked at it in that context, it is appropriate in this context. The faculty’s clear position is that we know that the serious harm test is inappropriate because it has arisen from circumstances that are not present in Scotland. We do not have too many cases; we have too few.

The Convener

That point has been thoroughly made, thank you very much.

John Finnie

I will first ask Mr Sheridan a question. It is about the Derbyshire principle, which is currently recognised in Scots law. The bill creates a version of it that includes specifically preventing public authorities and councils that hold a “majority of shares” or that appoint a majority of members, or that otherwise exercise significant control, from bringing proceedings. That would cover arm’s-length external organisations.

However, the bill would create an exemption for businesses and charities that deliver public services only “from time to time”. We know that the landscape of public services has altered considerably over the years, including that we now have private prisons, for instance. As with other aspects of the bill, there seems to be a—[Inaudible.]—in the media. Legal correspondents in the media—if we can call them correspondents—are concerned that the exemption would prevent proper public scrutiny and that it could, because of the different ways that local authorities configure their workloads, create a postcode lottery and undermine the Derbyshire principle.

Legal respondents to the call for views say that the implications of section 2 are not clear and could be wider than they are currently. For instance, they might prevent housing associations, universities and others who do public functions such as lawyers and nurses from raising actions.

Could I have first Mr Sheridan’s then Mr Hamilton’s opinion on the provisions in the bill around the Derbyshire principle?

John Paul Sheridan

First, I say that we are very much in favour of retention of the Derbyshire principle, but the problem that we have identified—it is set out in more detail in our written submission—is about the drafting and how the definition is extended. On the matter of principle, broadly speaking the reason why public authorities were not able to raise defamation proceedings was because, ultimately, public scrutiny of public decisions was to be encouraged, and decisions about that should be at the ballot box rather than in the courts, in relation to defamation. That is broadly the situation.

The difficulty that arises now is because of the multifarious nature of delivery of public services. There could be an anomalous situation if a private body was carrying out public functions, whether in respect of prisons, housing homeless people or whatever. In one respect, the company would be able to protect its reputation with defamation proceedings, but in respect of its performing public functions it would be unable to do so.

The Law Society has a particular problem with the definition of what is to be covered. Does it include universities, housing associations and even individual civil servants or nurses? The provision in the bill is oddly drafted. I am not sure that there is a good solution, but the drafting needs to be tightened up substantially.

John Finnie

Ironically, people may look to the likes of yourself and the Law Society to provide alternative wording, so it may be time to reflect on that.

John Paul Sheridan

We have made detailed comments in the written submission about that and about the various sections that we think need to be amended.

Duncan Hamilton

I agree with pretty much everything that Mr Sheridan said and with the point that you raised about the question of “from time to time”. If a wholly private company is not a public authority because it carries out public functions “from time to time” under section 2(3), presumably if it did so more often, it would be caught. That would create the potential anomaly of a private company being able to raise proceedings in relation to its work in the private sector but not its work in the public sector. We absolutely accept and embrace the fact that the principle should be enshrined, but there is an issue with those definitional sections that needs to be looked at.

In relation to the earlier part of section 2(3) about “non-natural” persons, all the points that you made about that are right, but by definition there are presumably also natural persons. In section 2(2), for example, the phrase “functions of a public nature” creates some degree of question mark. One of the people on the panel that looked at it at the Faculty of Advocates raised the question of general practitioners: what does a GP do in that position? Are they performing “functions of a public nature”?

Section 2(5) states:

“For the avoidance of doubt, nothing in this section prevents an individual from bringing defamation proceedings in a personal capacity (as distinct from the individual acting in the capacity of an office-holder).”

That does not necessarily clarify the situation. I know what the bill is trying to do, but I am not sure that taking it all together makes it very clear. Mr Sheridan made the very good point that part of this exercise is about making things accessible, clear and well understood. However, I do not think that anyone would look at that section and say, “Aha, I now understand what you mean.”

John Finnie

That is helpful. Thank you both very much.

The Convener

I want to come back to that in a minute, but I will bring Annabelle Ewing in first.

Annabelle Ewing

On a related subject to do with eligibility to raise an action, I understand that last week Scottish PEN suggested, as have media respondents, that the right of a business to sue should be limited to businesses with fewer than 10 employees. That call has been motivated by what people term an equality of arms. I would be interested in the views of Duncan Hamilton and John Paul Sheridan on the principle behind that and the threshold being proposed.

Duncan Hamilton

We cannot support that. We do not really understand it. There is no position in principle that supports it. There is nothing magic about the number 10—or 20 or 30. If a company has the right to raise proceedings as a matter of legal principle, we see no basis whatever for the suggestion of a threshold of 10 employees. I cannot give you a legal principle behind that because I do not think that there is one.

John Paul Sheridan

I have nothing to add. I agree entirely about equality of arms. Some media organisations who might be recipients would have at least the same financial clout behind them as any business would, so I do not even think the point about equality of arms and certainly nothing from point of principle would support that.

10:45  

Annabelle Ewing

Thank you for those unequivocal responses. I understand that those who propose such an approach cite what they term to be the Australian model which, they suggest, is exactly that the right to sue is excluded for businesses with 10 or more employees. Is either of you aware of that?

Duncan Hamilton

I have to say that I was not aware of it before I read the suggestion. There is also slight confusion about equality of arms. Lots of parties that go to court start from a position of not being equal in resources. That is why other things come in to level the playing field and ensure that there is equality of arms, whether it be legal aid or anything else. Unless we say that categories of people in a range of areas of civil law are not to be allowed to raise actions because they are just too big and too successful, I do not see where the proposal takes us. With the greatest of respect, it is a total red herring.

John Paul Sheridan

I have nothing further to add to that.

The Convener

Can I just go back to the question of the so-called Derbyshire principle in section 2, which the panel was exploring with John Finnie a few minutes ago? I hear the force of the point being made that section 2 is perhaps not the most elegantly drafted section of the bill and that it raises as many questions as it answers, given how broadly the scope of the Derbyshire principle is drawn.

Perhaps Mr Hamilton can help me with this. If we think that section 2 is not very elegantly drafted, we can think about ways in which we can change it, and we might want to expand the scope of the Derbyshire principle or we might want to constrict it. We might want to move in either of those directions depending on what we think the principle is trying to do. What is the legal principle that underpins the rule in Derbyshire that public authorities may not sue in defamation? Is it that elected office-holders should expect their reputation to be assessed at the ballot box and not in the defamation courts? Alternatively, is it that we want to somehow protect those who deliver public services, however they do it, from the risk of litigation for defamation?

If we take the former view as the underlying principle behind Derbyshire, we might want to constrict its scope and its definition, and if we take the latter view, we might want a much more expansive definition. Mr Hamilton, what do you think of that?

Duncan Hamilton

I would have instinctively gone for the former view, simply on the basis that the judgment was trying to draw a distinction between appropriate accountability and the mechanism for that. It was part of the principle that there is freedom to criticise a public body in the exercise of its public functions, which is what creates the problem here. If it is right that I can criticise a public body in the exercise of its public functions, and those public functions are now to be outsourced to a private entity, surely I must be allowed to criticise the private body that is carrying out those public functions? If the idea is correct that the private body would not have the right to respond to that, but at the same time it could raise an action in relation to a private contract, then, whichever side you want to come down on—there is a perfectly legitimate argument for both—that is a fundamental inconsistency that has to be addressed.

The Convener

Mr Sheridan, do you have anything to add to that?

John Paul Sheridan

No, not really. My understanding of the Derbyshire principle decision is that it was more about the former view, in that the accountability of elected representatives is at the ballot box. The delivery of services is a different matter. Elected representatives have always been able to sue for defamation in relation to allegations about their private lives or anything else, and that would be logically consistent with the approach that Mr Hamilton suggested.

The Convener

That is helpful—thank you both.

Rona Mackay

I want to go back to the subject of secondary publishers, which Mr Sheridan touched on earlier. The bill would prevent legal proceedings for defamation from being raised against someone who is not the author, editor or commercial publisher of the material, and it would create immunity for other parties who make defamatory material available, and in particular internet intermediaries. I know that Mr Sheridan believes that there are risks to that approach, particularly with regard to the internet, which is of course—[Inaudible.] What is your view on that? Is it only with regard to the internet that you have concerns about that section of the bill?

John Paul Sheridan

It is with regard to the internet. The way newspapers were passed around in the past was very different from the way news stories can be passed around the world now. It is partly about a combination of the provisions on secondary publications and some of the other provisions. For example, if someone with no assets was in effect put up to publish a story and then a substantial media organisation became the secondary publisher but was able to avoid liability because it was simply repeating or forwarding something that someone else had published, that could lead to injustice.

Rona Mackay

Is there a solution that you think would be preferable to, if you like, police the internet? I know that that is not a phrase that people like, but there obviously is a concern. Should there be an entirely separate process for internet intermediaries?

John Paul Sheridan

The Scottish Law Commission said that a much wider internet regulatory position was being considered across the United Kingdom, and that still needs to be done. To an extent, dealing with the secondary publication in isolation without dealing with the principal problem first is a little bit cart before horse.

Duncan Hamilton

It might be helpful to the committee to give a practical real-life example of how the secondary publication provisions might operate. When an individual puts up something defamatory, we often do not know who that person is—it is sometimes difficult to find the identity of the individual. If it is then published again, by, for example, an internet provider that can be contacted, the issue can be brought to its attention. Under section 1 of the Defamation Act 1996, there is a defence for somebody if, broadly speaking, they could not reasonably have been aware of the fact that the statement was defamatory. However, by fixing that person with knowledge that they are publishing defamatory content, that puts them in a position where action has to be taken. We should bear in mind that what people are after is a remedy. Most of the time, it is not about money or having a court action; they simply want something that is defamatory about them to be taken down. By fixing that entity with knowledge, you can do something about it.

The bill repeals section 1 of the 1996 act. On top of that, section 5 in the English act—the Defamation Act 2013—deals directly with operators of websites in a way that is not carried across into the bill. In England, even after the 2013 act, there is still section 1 of the 1996 act, as well as a body of case law, such as the Tamiz case, which allows you to say that, after notification, a website operator has a problem. That will not be the situation in Scotland, which we say is a difficulty, because it tilts the table too far. What is my possible remedy as a private individual trying to address the wild ramblings of a keyboard warrior? What do you want me to do with that? We have a difficulty with that.

You were given evidence that there was some kind of protection under section 3(3) of the bill, as a nod in the direction of limiting the exemption, but that is nothing as to the protection that is in place at the moment. That concerns a very minor aspect.

I would contrast the position under section 5 of the 2013 act with where we are in relation to the bill. The view was taken that the matter was going to be considered on a UK-wide basis, but there is a difficulty with that. The whole purpose of the bill was to put in one place something that was publicly accessible and clear to understand, yet the single greatest medium that we all use is missing from the bill, and the existing protections are being removed. My query is whether that will lead to a fair and sound system.

Rona Mackay

I will ask you about a generic point. Will it be an enormous task to get the balance right in the bill, taking into account freedom of expression and a sensible way for people to access justice?

Duncan Hamilton

I think personally, and we think as a faculty, that the bill needs quite a lot more work if you are going to find that right balance. This is obviously a matter for the committee and for Parliament. If the Scottish Parliament decides that it is unhappy with the current balance, that it wants to create a regime that is heavily skewed towards freedom of expression and that it wants to remove existing rights for private citizens, that is a choice that the Parliament is entitled to make. The faculty’s concern is simply that, if the Parliament chooses to do that, it does so with its eyes wide open to what it is doing. That would be a fairly fundamental change to what is a delicate balance.

Rona Mackay

Thank you both.

James Kelly (Glasgow) (Lab)

I turn to the matter of defences. This is for Mr Hamilton first, followed by Mr Sheridan. The bill sets out some areas of legitimate defence: “truth”, “publication on a matter of public interest” and “honest opinion”. What do you think about those? Do you think that there is sufficient clarity around them in the bill?

Duncan Hamilton

Let me go through the three. Starting with veritas—truth—I think that that is basically fine, although I would point out that nobody is unclear about it at the moment. However, there is no harm in codifying it.

More problematic would be the defence of honest opinion, which I will return to. The defence “on a matter of public interest” is essentially the replacement for the Reynolds defence. Here, I agree with the evidence that was given last week. The Reynolds criteria have been extremely useful in practice, allowing journalists and lawyers to give a range of criteria and to ask questions such as, “Does this constitute responsible journalism?” “Have you looked at the origin of this?” and “Have you given a right to reply?”

We now have something that does not include those criteria, and I suppose that the question that would have to be asked—and would only be answered in court—is on the degree to which the Reynolds criteria will continue to inform the decisions of the court in relation to the new defence that replaces them. That is an unknown. I simply note that moving away from Reynolds might diminish clarity, strangely, which would be the opposite of what is trying to be achieved.

Regarding the defence of honest opinion, replacing that of fair comment, the biggest difficulty is the justification that is given for the removal of the public interest aspect of the existing fair comment defence. It is easily and regularly applied by the courts. I was struck, last night, by something when I looked at the policy memorandum. You might not have it in front of you—hopefully, your lives are more exciting than mine—but I will read from paragraphs 99 and 100 of the policy memorandum.

The justification for the removal of public interest is given as follows:

“The technical complexity of applying the defence means that it is less effective and less frequently invoked than it may otherwise be in protecting freedom of expression.”

I simply do not accept that, given my experience or that of those in the faculty.

It continues:

“The shortage of modern Scottish case law on the defence adds to the difficulties.

At the same time as placing the common law defence in statute, the opportunity has been taken to reform it.”

The policy memorandum notes that the new defence has no requirement for public interest, and says:

“This is for several reasons. First, the concept has not played a significant role in practice for many years, owing to the scope of the notion of ‘public interest’ having been greatly expanded.”

That is simply not correct, in my experience.

 

The policy memorandum continues:

“Second, a person should be equally free to make a comment on a private matter as on a public one.”

That is interesting. There is a really big argument to be had about that; I would not simply assert it.

The policy memorandum then says:

“Third, abolition of the requirement for comment to be on a matter of public interest would help to simplify the defence and make it more straightforward to apply in practice. Parties would no longer have to contend with the uncertainty arising from the imprecise boundaries of the concept of public interest.”

11:00  

I do not detect any difficulty in giving legal advice on the definition of public interest or in the courts applying that. Members will note that public interest itself is part of the previous defence, so the legislation relies on the concept of public interest in a different context. In that case, why does that argument stand any scrutiny? We therefore have a difficulty with the removal of public interest.

On the opinion aspect, it may be of interest to note that section 6(5) of the bill includes the public interest defence applying to comment as much as it does to fact. That leaves the question what exactly is being achieved by the removal of public interest.

I am sorry; maybe that is too much information in one go. The bottom line is that we are not convinced by the justification for the removal of public interest.

James Kelly

That was comprehensive and helpful.

John Paul Sheridan

Given Mr Hamilton’s comprehensive answer, I have nothing to add.

James Kelly

Okay. We will move on to compensation and parties needing to go to court to allow a compensation figure to be settled. That approach, which is set out in the bill, is different from what happens currently, whereby there is an opportunity for the defence to offer to make amends, and that offer is taken into account in calculating the compensation figure. Is the approach provided for in the bill fair? Do you have any concerns about the offer to make amends process not being used to the same degree?

John Paul Sheridan

There is concern about that. The assumption is that most cases do not go to court, and resolving them outside court is very much to be encouraged. At present, if a publisher or media organisation makes an offer to make amends that is not accepted for one reason or another, a discount is applied. There is no provision in the bill for a discount. I think that that would discourage out-of-court settlements or offers being made out of court. That is inequitable in the sense that, if someone currently makes an offer, they are entitled to a discount. If that were not replicated, it would be problematic.

Duncan Hamilton

Absolutely. The offer of amends procedure usually results in a discount of perhaps between 20 and 30 or 40 per cent on the damages, precisely because that position has been avoided.

I am not sure that the court is not empowered to apply that—it may still have the flexibility to do so, given that it looks at the whole circumstances. That is how I read the bill. If there is any confusion about that and an amendment is required to make it clear that the court is entitled to apply that discount, there should be one. In fact, the approach would defeat in many ways the whole point of the offer of amends procedure.

I am not entirely sure that the court could not already apply a discount under the bill but, if the committee is concerned about that, it should perhaps seek clarity from the Government.

James Kelly

Thanks a lot. We will certainly do that.

Liam Kerr (North East Scotland) (Con)

I will move on to section 21 onwards, on malicious publication. I have three questions for the panel.

It has been argued that, as the bill is drafted, there is a danger that businesses can bypass the protections on freedom of expression in part 1, on defamation, because, for example, the malicious publication provisions have no requirement to demonstrate serious harm. The question that I had in mind before this evidence session was along the lines of whether there should be such a requirement. Having listened particularly to Duncan Hamilton, I wonder whether the answer is no. Duncan Hamilton, should the serious harm test be taken out altogether?

Duncan Hamilton

Yes. We propose exactly that. The second option that you give is the way to achieve consistency. We do not support the serious harm test in either context. That is my very short and, I hope, very clear answer.

Liam Kerr

It was short and very clear. John Paul Sheridan, do you have another answer?

John Paul Sheridan

No, I agree with that. If the serious harm test was going to be enforced in the defamation provisions, it would appear to be logical to apply it in the malicious publication provisions, but, like Mr Hamilton, we think that it should not feature in either.

Liam Kerr

That is interesting. I will move on.

John Paul Sheridan, you mentioned drafting. I would like to explore an element of that with you. Section 21 states that the pursuer must show that the defender has

“made a false and malicious statement”.

Section 21(2)(b) gives two definitions of whether a statement was malicious. The first is that the defender

“knew that the imputation was false or was indifferent as to the truth of the imputation”,

and the second is that the defender’s

“publication of the statement was motivated by a malicious intention”,

and so on. Does that drafting suggest that a pursuer could bring a case of malicious publication simply by showing that the defender was indifferent to the truth of the statement that they made? If there is not a requirement to show malice, as I think that there is generally, is that not a significant lowering of the current threshold?

John Paul Sheridan

The drafting might not be brilliant. We should look at it in the context of section 21(1)(a), which refers specifically to a statement having been “malicious”—the intention of the statement is that it is malicious. However, if your interpretation of section 21(2)(b)(i) is correct, that could lower the threshold, which would be particularly problematic, given the difference in the burden of proof between malicious publication cases and defamation cases. If you can prove that a statement is false and was made maliciously, the burden does not shift. It would potentially have that impact.

Duncan Hamilton

The important point is that, since the case of Horrocks v Lowe, indifference to the truth is already part of the question of determining malice. Your question was whether section 21(2) would alter that. It would not; it is already part of the equation. If I say something, whether I have been wilfully reckless as to whether it is true can be a basis for determining malice. The provision will have been included for that purpose, arising from that body of law. I do not think that it will change the legal position.

Liam Kerr

That is very helpful.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

Section 30 of the bill would enable a court to order a third party to remove contentious material as an interim measure before a final decision on whether it was defamatory was reached. When we took evidence on the bill last week, we heard some concerns about that. Do you share those concerns? If you do, do you have any alternatives for how that might work?

Duncan Hamilton

Although I do not remember the specific concerns, I have concerns that are related to what I have already said.

In relation to looking for an immediate remedy, there is already an opportunity to do that through the pre-litigation process. There is already reliance on established case law that says that, if I notify you of something and you do not do anything about it, you can become liable. Section 1 of the Defamation Act 1996 and section 5 of the Defamation Act 2013 do not read across. All the other things that I have said about that previously are, arguably, the way to approach the issue.

The difficulty is that section 30 proposes that you have to apply to the court to take such material down. That, in fact, arguably makes it more expensive and more onerous than having some form of either informal or regulated take-down procedure. As a matter of practice, because most of the companies that people are dealing with are not in Scotland and are more used to dealing with English solicitors, it tends to be that there is, in fact, a reasonable chance of material being taken down.

However, if what is going into the bill is the protection, first, it is not in our view sufficient. Secondly, it seems to be a very onerous and expensive way of achieving that. The Government, at various points, relies on an argument of uniformity, and yet in other areas it does not apply that. This would seem to be one area where it should apply it.

The Convener

Do you have anything to add on that question from Fulton MacGregor, Mr Sheridan?

John Paul Sheridan

There is nothing that I want to add other than to say that, obviously, it is not mandatory to go to the court to do that, and so there would be nothing in principle to stop take-down provisions from being dealt with separately.

The Convener

That is very helpful, thank you. I think that Shona Robison wants to ask about a proposal that Scottish PEN put to the committee last week.

Shona Robison (Dundee City East) (SNP)

You are probably aware of the evidence that was given last week—you referred to it earlier—in which Scottish PEN put forward proposals for a new court action to provide protection from unjustified threats of defamation action. Do you have any views on that and, in particular, on how it would operate in practice if it were to be adopted?

Duncan Hamilton

I am sorry, are you asking me or Mr Sheridan?

Shona Robison

Both of you, please.

Duncan Hamilton

I will go first, in that case. It is not a proposal that we support. Although I have not seen the detail of the proposal, I note again that we are really in danger of traversing into people’s substantive rights in relation to their defending their own reputation.

I am not sure what the threshold for that would be and I am not sure how it sits with professional responsibilities. I would need to see a lot more about the proposal before giving you a full critique of it; however, in principle, it does not sound like an idea that has a great deal of merit.

John Paul Sheridan

Similarly, from the Law Society of Scotland’s point of view, people should be free to enter into pre-litigation correspondence and write about protection of reputation without any fear that that letter itself would potentially give rise to a claim. I agree with the faculty’s submission on that.

Shona Robison

Thank you. If you want to submit any further detail, you could perhaps follow up on that by writing to the committee. However, that was helpful.

The Convener

I have two final, technical questions. Although I think that this area has been touched on, I want to make sure that I have fully understood your views about the reduction in the bill of the limitation period for defamation actions from three years to one.

The second question is about an area of the bill that I do not think that we have touched on at all, which is section 19, which places significant restrictions on the jurisdiction of the courts in Scotland to hear defamation claims.

Those questions of limitation and jurisdiction are quite technical, but we nonetheless want your views on both those issues on the record, if we may.

11:15  

John Paul Sheridan

Perhaps I can deal with the first question and Mr Hamilton can deal with the second. On limitation, we see no basis for reducing the period. I know that there is the protection in the bill that will allow the courts, in effect, to extend the period. The practical difficulty with that is that someone would need to raise a speculative action in order to know whether the court would allow it to be heard out of time, which I think defeats the purpose of providing certainty. We would therefore be reluctant to support any shortening of the period of time in relation to raising proceedings.

On jurisdiction, more generally, Mr Hamilton might comment in more detail, given that he has mentioned the issue. One of the problems with Scottish defamation law is the lack of cases, rather than our having too many. Any attempt to restrict the jurisdiction would mean even fewer cases, which would not be good for jurisprudence or for Edinburgh’s attempts to promote itself as a centre of excellence in a number of litigation areas.

Duncan Hamilton

Although it is a technical point, the question of one year as opposed to three is important, because it touches on a very substantial right. We are against a move from three years to one year; we see no reason for such a move and no particular justification for it is given. As does anyone in this field, I have experience of a range of cases that were not raised within a year. Many—perhaps most—cases are raised within a year, but many are not. An obvious example is a case in which an individual defames someone for years until eventually there is a straw that breaks the camel’s back and the person decides to proceed. Are we really saying that if the defamation happens over a three-year period, previous incidents will not be matters in relation to which an action can be raised? There will be a range of reasons, given people’s lives and circumstances, why things do not necessarily happen within a year.

The onus is therefore very much on the Government to tell us why the current right, which is to raise an action within three years, must be restricted to one year. What is the argument for that? So far, it has been suggested, first, that cross-border litigation is an issue. There is absolutely no evidence for that. I do not think that even the committee’s witnesses last week suggested that cases are coming across the border. Even if that were the case, I am not sure why Scotland, as a country, should be uniquely terrified of having litigation. Most countries around the world are trying to find ways to drive economic growth, and if we are an appropriate place in which to litigate, why is that a difficulty? We do not find people in Dublin or Dubai saying, “Don’t come here to mediate. Don’t come here for arbitration.” I am slightly perplexed by the argument.

Secondly, it has been argued that the current approach has a chilling effect. I struggle with the idea that, after a year, the newsroom will be on tenterhooks to know whether or not it will be sued.

The third argument is that we can say, “Don’t worry, because the court can always exercise its discretion to give you more than a year.” As Mr Sheridan rightly said, removing legal certainty cannot be a basis for putting a bill together.

The case for moving from three years to one simply is not made. That is an important point, in that the restriction, allied with all the other restrictions, adds to the sense of the table being tilted.

On jurisdiction, for the reasons that we have outlined, we would not support anything that made it more difficult to litigate in Scotland. It is already the case that the court will consider the most appropriate forum, with reference to various regulations of which Professor Tomkins will be well aware. That position should maintain. Any change to restrict the position in Scotland is not justified.

The Convener

That was very helpful, thank you.

Liam Kerr

I found Duncan Hamilton’s final point persuasive. However, if we were to go to a one-year limitation period, would a solution to the issues that you raised be to have some kind of continuing-act limitation, such that things do not age out if they are part of a continuing act, and/or some kind of state of knowledge, akin to what happens in a personal injury claim? Is it your view that that would be to overengineer the approach and we really should not move to a one-year limitation period?

Duncan Hamilton

Rather than fix a problem that we have created for ourselves, let us avoid creating the problem in the first place. Ultimately, we could get into arguments such as you have made; such solutions would be open to us. Nevertheless, why should a litigant be put in a position of uncertainty when seeking to go to their court to seek a remedy for what they consider to be a legal wrong? I do not know how we have managed to put ourselves in a position in which we have to justify that as being a good thing.

It sounds terribly as though I am banging the drum in just one direction. I absolutely embrace, support and argue for freedom of expression. I just think that when we consider each matter individually and in detail, the question for the committee at this stage, in the context of the general principles of the bill, is whether the balance is right. For all the reasons that I have given, the point that I urge upon you is that the balance is not yet right.

The Convener

I thank both Mr Sheridan and Mr Hamilton for their evidence: this has been a really useful hour. You have been generous with your time and I am most grateful to you.

We will have a five-minute break before we hear from our second panel.

11:21 Meeting suspended.  



11:26 On resuming—  

The Convener

Welcome back, everyone. We move to our second panel of witnesses on the Defamation and Malicious Publication (Scotland) Bill.

I welcome my colleagues from the University of Glasgow school of law Dr Stephen Bogle and Dr Bobby Lindsay. I am a member of the school of law at the University of Glasgow, but Dr Bogle and Dr Lindsay are representing their own views, not any connected view of the school. I have never discussed any aspect of the law of defamation with either of them, although I look forward to doing so in this evidence session. I thank the witnesses for their written submissions which, as always, are available to the public on the committee’s web page. I invite Stephen and Bobby to make short opening remarks.

Dr Stephen Bogle (University of Glasgow)

Good morning and thank you for inviting me to give evidence. Generally, I am in favour of the bill and welcome it. It is important that areas of private law in Scotland are reviewed periodically by the Scottish Law Commission and the Parliament. The law of defamation, in particular, needs to be reviewed regularly.

The bill improves accessibility to the law, which is a good thing, but there are some caveats. First, in debate, we have exaggerated the problems with the existing law—there has been a tendency to suggest that the common-law approach in Scotland is somewhat antiquated or out of date and not up to scratch—but I think that that has been exaggerated. That is not to say that the bill is not important. Secondly, some tweaks need to be made to the bill. If those tweaks collectively are not made, there will be problems with the bill, but if they are, we could have a bill that is perhaps not perfect but will be an improvement on the current one.

The Convener

That is great—thank you. We will run through broadly the same questions that we did with the first panel in the same order, unless I screw it up. I will start with Liam McArthur.

11:30  

Liam McArthur

Good morning. I hope that both of you heard our session with the Faculty of Advocates and the Law Society of Scotland. It would be fair to say that they are both somewhat more critical of the bill as regards the tweaks that are required to achieve the balance between protection of freedom of expression and protection of the right to privacy. What tweaks would allow that balance to be properly struck? How can the meeting of the obligations under the European convention on human rights best be achieved?

Dr Bogle

I would feel more comfortable starting by saying that the existing law and the bill are compliant with the expectations of the ECHR and the Human Rights Act 1998. What we are talking about are the policy and political decisions about where the balance that you referred to should be struck.

It is clear that, collectively, the bill’s provisions lead towards a balance that is more in favour of freedom of speech. That is what I would say that the bill is doing. Whether that is a good thing or a bad thing is a political decision as much as anything else because, from a legal point of view, there is no problem. There is no concern from the point of view of the ECHR.

Did you have a second question?

Liam McArthur

Last week, we took evidence from those who approach the issue from a media or publications perspective. This week, although the Faculty of Advocates and the Law Society found themselves on both sides of the argument, we have exposed some of the apprehensions about the rebalancing that you identified. If the political drive is about rebalancing the law in favour of freedom of expression, what are the implications for the right to privacy? You have made it clear that there is not necessarily an ECHR concern, but last week we heard that there are concerns about the implications for those who feel that they have been defamed and wish to exercise their rights in that respect.

Dr Bogle

If the bill is moving more in favour of freedom of speech, there are particular things that we need to be mindful of. We will come on to discuss the serious harm threshold. I do not want to go into that now, but we need to be mindful of the fact that the serious harm threshold might not do what we think it will do. The debate has framed it as a very significant and important protection for freedom of speech, but I am not sure that that is what it will be in practice.

Liam McArthur

We will come on to that.

Dr Lindsay, would you like to add anything to what Dr Bogle has said?

Dr Bobby Lindsay (University of Glasgow)

Good morning.

No, I have nothing to add, other than to point out that, even prior to the Defamation Act 2013, the balance in English law—which, on such broad balancing questions, is very similar to Scots law—has been taken to the Strasbourg court a number of times and, except on the provision of civil legal aid, the Strasbourg court has broadly held that the balance as it was struck even before the reform that is similar to the reform that is under consideration today has been struck perfectly, or, at least, within the state’s margin of appreciation. Therefore, I have no real concerns about the balance as it is struck presently.

Liam McArthur

It was described by Duncan Hamilton from the Faculty of Advocates as

“an English solution to an English problem.”

Do you recognise that? With the bill, are we at risk of seeking to provide an English solution to an English problem?

Dr Lindsay

Absolutely. It follows the Defamation Act 2013 closely. Even in provisions or areas wherein a good case exists for Scotland to do something different—the previous panel made that point well—the decision has seemingly been, from the early days of the Scottish Law Commission’s consideration, to closely tack to the English approach. We certainly recognise that.

Liam McArthur

That is helpful. We will get into the details of some of the stuff that Dr Bogle has hinted at, so that is all from me.

The Convener

Does Dr Lindsay have any concerns about the definition of defamation that the bill offers, and is the bill right to offer such a definition?

Dr Lindsay

As the earlier panel has stated, the definition of defamation is really not a difficult one. If one types it into Google, one gets a good definition from the authoritative case. In that sense, I do not see any particular concerns about accessibility. The really difficult questions, which a statute cannot answer, are ones such as how the definition applies to a particular statement, or whether a statement is one of fact or opinion. Answering those questions will always be difficult and a definition ensconced in statute will not help.

We have some concerns about the way in which the bill frames the definition, which perhaps shows that it was not part of the Scottish Law Commission’s consultation exercise. One of the concerns that we flagged has to do with the use of “ordinary person”, but I will leave that for Dr Bogle to go into and I will focus on more technical points.

First, I want to focus on the requirement that the statement be “about a person”. In our mind, that is a change in the present law, which requires that the “reasonable reader” of the statement would take it to identify or to refer to the subject of the statement—an objective test. The phrase “about a person” is a bit looser and more subjective than the test that presently operates in well-established case law. In adopting that formulation, the bill might unwittingly widen the scope of actionable statements.

I have in mind the phenomenon of sub-tweeting, whereby somebody says something about someone but does not specifically identify who it is about. Under the present law, a “reasonable reader” of a sub-tweet will probably not be able to tell who the tweet is about, but were the law to simply state that the tweet—the communication—had to be “about a person”, that sort of situation would potentially be actionable should the potential pursuer find out that they were the target of the defamatory remarks.

On another technical point, the use of the term “publication” throughout the bill is slightly strange. In defamation, we tend to use “communication”—we know that term well. The term “communication” brings to mind the idea that the matter is not about putting something down in hard copy that is made available to the public but simply about making something known to, as it stands, at least one other person. We are not clear as to why the bill goes through the hassle of using “publication” to then define it as communication. That also raises potential issues with the limitation provisions in section 32(3).

We have those two technical objections, but the committee is about to hear more substantive objections to do with the use of “ordinary” and the lack of evaluative criteria beyond that.

The Convener

Do you want to pick up the gauntlet that has been thrown down to you, Stephen?

Dr Bogle

Yes. In some ways, we are trying to codify a definition that is very familiar not just in Scotland but in England, Wales and common-law jurisdictions more generally. However, what we see in the bill is a reference to “ordinary persons”, so that if the court is asked whether the reputation of a person has been affected, it needs to ask whether it has been affected in the mind of “ordinary persons”. That is what the bill says.

That is not a familiar definition in England and Wales, nor in the present law. The present law has the important qualifier of “reasonable”. In England and Wales, the position was confirmed by the Supreme Court in 2019 in the Stocker v Stocker case, in which the phrase that was used was “ordinary reasonable reader”. It is important that we do not wander too far into anything, particularly when we are doing something that would otherwise be a tricky but nevertheless straightforward task for a drafter. When we put down the definition of defamation, we need to put in the qualifier of “reasonable”. That means that the judge does not have to say things such as, “Opinion polls say,” or whatever. The qualifier also helps the court to rise above the transient opinions of people at any one time and to think about what, in a progressive society, the reasonable person would think.

I think that we need that qualifier—including it is a small tweak. I think that it has been inadvertently missed, but the effect of not including it could be quite significant.

The Convener

Thank you. We will now move to the eminently reasonable Rona Mackay.

Rona Mackay

Dr Bogle, I would like to bring you back to the issue of the serious harm threshold. I think that it is fair to say that the previous panel were vehemently opposed to it. Can you expand on your thoughts on it?

Dr Bogle

I understand what the Scottish Law Commission wanted to do, I understand what the Scottish Government wanted to do and I understand Scottish PEN’s position, but, in reality, I do not think that it is going to address the mischief that everyone has mentioned.

The proposal is taken from the English provisions. As we have heard, the provision in England and Wales was put in place to address a problem that was faced down there—they still have a huge amount of defamation litigation, for various reasons. The provision was meant to stop some of what we call libel tourism and ensure that only the most important cases came before the court. Bobby Lindsay might be able to add something to that, because there are some statistics that might tell us that the provision has not had the desired effect in England and Wales.

The problem is that, if you think that your reputation has been seriously harmed and you have the resources and the stomach to raise proceedings against someone or even initiate pre-litigation correspondence, you are going to do that. The idea in England and Wales is that, in a court case, you must establish first that the statement was defamatory and then, as the process goes along, you need to show that it did serious harm. That does not get rid of all the problems that have been identified in the mischief of pre-litigation correspondence having some sort of chilling effect. It may not be that effective.

Rona Mackay

You referred to the pre-litigation letters as a mischief. Do you think that that part of the process is a problem, and would the serious harm threshold affect the amount of those letters that are clearly just a threat and are not going anywhere?

Dr Bogle

Through the process of talking about the reform of the law of defamation, I have learned quite a lot from the consultations that the Scottish Law Commission has done, and from various events. A problem that we have, which is not exclusive to Scotland, is that the media industry does not always have the resources to defend actions or the ability to have legal advice. The Times might, but some of the media that are based in Scotland cannot do that. However, I do not think that the serious harm threshold will stop that happening.

In some ways, if you are going on a bear hunt, you might expect to find a bear who is going to come after you, so there is going to be litigation or, at least, pre-litigation correspondence. I do not see that there is much of a way around that, unfortunately.

11:45  

Rona Mackay

In discussing the issue with last week’s panel, I got the impression that it is almost an expected practice. Because the letters come in so frequently, they do not have much meaning—they are almost expected as part of the process, which devalues them. I wondered what you thought of that, but you have just said that you do not think that the serious harm threshold would affect that practice at all.

Dr Bogle

It would not. The limitation changes might actually focus people’s minds and get the issues sorted out quicker rather than later.

Rona Mackay

We will come on to that.

Dr Lindsay, can I have your views on the questions that I asked Dr Bogle?

Dr Lindsay

I completely agree with Dr Bogle. It is described as a serious harm threshold, which suggests that it is quite an impressionistic binary question that can be answered at a glance, but the experience in England and Wales has been that it actually involves quite a multifactoral and intensive inquiry.

The evidence from England so far, scant as it is, is that, if the purpose was to curb the number of defamation actions proceeding before the English courts, it has manifestly not fulfilled that purpose. The year 2019 saw the highest level of defamation claims issued in England and Wales for quite some time. There were 132 claims initiated in 2013, the year before the provisions of the 2013 act came into force. In 2019, there were 323 claims, which is almost 200 more claims.

In the cases that deal with the threshold, especially after the Supreme Court’s consideration of the test, there is a sense from judges that it is a resource-intensive question that cannot be answered right away or simply by looking at written statements. You need to hear the evidence and you first need to work out what the statement means. The fact that it is called a threshold makes it seem like it is the first hurdle but, actually, before that hurdle is dealt with, you first have to work out what the statement means, and the parties to a defamation claim never usually agree on that.

The fact that it adds cost to litigation might act as a disincentive to litigate. Also, where there is a claim that arguably can get over that threshold, there is no doubt that such a test will increase the burden and cost of litigation, which in defamation claims are already severely high.

Rona Mackay

Thank you—that is really useful.

Liam Kerr

Rona Mackay asked about letters before action. For clarification—I genuinely do not know the answer to this, because I have never practised in this area—does the panel know whether a pre-action protocol is in place in Scotland in actions for defamation, which would mandate the sending of such a letter prior to taking any action?

Dr Lindsay

I would have to defer to my colleague Dr Bogle, as he is the only one of us with a practising certificate. A more general point might be that the whole nature of defamation law procedure in England and Wales is far more developed than it is in Scotland. That might be an aspect of the issue, but I cannot comment on that specific point.

Dr Bogle

My practising certificate expired a while ago, so I would not want to comment on the ins and outs of the procedure. It is a pity that we do not have Duncan Hamilton here, as he probably could have answered that quickly.

However, even before an action is raised, it is inevitable that there will be some sort of correspondence between parties. People always interpret lawyers’ letters very seriously, but those who know a bit of law realise that it is often a bit of strategic positioning and that people might not be serious about going to court. However, it is sometimes difficult to decode that.

I am afraid that I do not know the direct answer to your question.

Liam Kerr

I think that you are right in your summary of the general practice of where a letter would be sent and why the correspondence takes place.

It is my understanding—I stress that this is not my practice area—that there is a pre-action protocol in England. Convener, I wonder whether we might write to the witnesses on the previous panel to establish whether there is a similar pre-action protocol in Scotland.

The Convener

I will not answer that question now. I will turn to John Finnie, who has been very patient.

John Finnie

I thank Dr Bogle and Dr Lindsay for their written submission.

I know that you listened to the previous evidence session but, nonetheless, for others who may be watching who have not heard that, I will ask again about the Derbyshire principle, which prevents public bodies from suing for defamation and is replicated in the bill. The issues that have arisen as a result of the principle relate to the fact that, nowadays, we have many different models of delivering public services, and I understand that people want to have public scrutiny of those bodies. The bill would create an exemption for businesses and charities that deliver public services “from time to time”.

Media correspondents and legal representatives have different positions on many aspects of the bill. The media people are concerned that the exemption would prevent effective scrutiny, lead to a postcode lottery and indeed, fundamentally undermine the Derbyshire principle, whereas you will have heard from legal representatives that the effects of section 2 are not clear and are much wider than the current situation. There are implications for housing associations, universities and individuals who deliver public services, such as doctors and nurses, in that it could prevent them from raising actions.

Several legal representatives suggested alternative models of drafting section 2, potentially focusing on bodies that are definitively covered, including central and local government. Dr Bogle and Dr Lindsay’s submission suggests that an indicative or definitive list of those that are covered should be included for clarity. Sometimes, it is felt that definitive lists can be problematic.

Can you comment on the Derbyshire principle and how you would address the issue?

Dr Lindsay

So—[Interruption.] Sorry, Stephen, you can go first.

John Finnie

I should have directed my question to one of you. My apologies to the broadcasting team.

Dr Bogle

Dr Lindsay was probably going to tell me to answer it, anyway.

The question of how to draft that provision is very difficult. My instinct is that we need more guidance from the Parliament and in the bill, or, dare I say it, that we need better drafting. Drafting is not easy, but there needs to be some attention to it. Mr Finnie highlighted the phrase “from time to time”, which feels very loose and uncertain.

Section 2(8) mentions regulations, and that might be the place where more specificity could be added. An indicative list would be helpful. The decision should be made by the legislature rather than its being handed over to the courts. Think of the law as an analogue that has been digitised, and the digitised version is then handed back to the courts—that is tricky. The Government, as the bill’s sponsor, should provide more clarity as to who it wants the section to capture.

John Finnie

Dr Lindsay, do you have a view, particularly on the question of a list and any problems that could be created by having a definitive list?

Dr Lindsay

On the Derbyshire principle as a whole, it is important to remember that it is not a defence; it is an absolute prohibition on stipulated bodies, which are unable to sue. The issue with extending that into private providers of public services is that it is really a question of degree. We are all agreed that local authorities and central government should not have the power to sue in defamation cases, and that is the justification on which the Derbyshire principle was founded. However, if private companies that provide a public service are allowed to sue, there will usually be a very good argument under section 6 that there is a defence in relation to publication in the public interest.

Another issue is that those companies enjoy human rights. A private company that is excluded from suing in defamation might launch a challenge to that under the provisions of the Scotland Act 1998. It might be more proportionate to say that the provision is simply about central Government and local government and that, when it comes to private companies providing a public service, the section 6 defence might do much of the lifting.

On the topic of the stipulated list, it certainly should not be an exclusive or exhaustive list. Certainly, concerns have been raised about things such as schools and universities. If a list were to expressly stipulate certain bodies that are not subject to the Derbyshire principle or the section 3 provision—the prohibition on suing—that might be helpful. However, it should by no means be an exhaustive list.

John Finnie

Can you comment on the fact that some services are delivered by multinational corporations, often on lengthy contracts, and on the relationship between that and the electoral cycle, which is intended to be a way of scrutinising? There should not be areas of public life where public scrutiny is impossible. You could argue that, if you cannot hold individuals responsible at the ballot box, the part of the public service that is delivered by private companies should be open to more scrutiny.

Dr Lindsay

The crucial part might be that the initial decision to delegate those functions in the first place is challengeable at the ballot box. In framing the definition, the more narrow a definition of public authority that you have, the more that you are going to be able to have those things ventilated in the courtroom. For things such as the issue that you are talking about, especially with regard to multinational corporations, that might be a more effective way of their trying to clear their reputation than a local authority council meeting would be. However, I certainly take your point.

Annabelle Ewing

On the wider issue of eligibility in general, it was suggested by Scottish PEN at last week’s meeting, and in correspondence from representatives of the media, that eligibility should be restricted as far as businesses are concerned to those with fewer than 10 employees. I understand that that is motivated by a desire to see equality of arms.

Will you provide your thoughts on the issue as a matter of principle and on the particular threshold that is being discussed?

Dr Bogle

In principle, companies should not be able to sue in defamation at all, because they are not natural persons. Companies benefit from a different characterisation of their legal personality. However, that would be a very innovative change to introduce. Corporations should, in principle, be able to follow part 2, which concerns malicious publication. Those provisions are tailor made to ensure that companies can protect their assets, property and interests.

It would be quite innovative for Scotland to do that and it is quite a late stage to introduce something like that in the bill. For pragmatic reasons, this is not the best time to do it. Unless there is to be a significant review of the policy behind the bill, I do not think that we can do it at present. However, in principle, I would be interested in doing something like that.

12:00  

Annabelle Ewing

When you talk about companies, do you mean simply limited companies not being natural persons, as opposed to other business structures that might not involve incorporation?

Dr Bogle

It would be organisations that benefited from the limited liability. If you provide that limited liability, you are characterising them completely differently in terms of their legal persona.

Annabelle Ewing

Thank you for that clarification.

Dr Lindsay

This is one of the few points on which Dr Bogle and I disagree slightly. In principle, there is a good argument for saying that companies have a right to reputation. You might have heard of the McLibel defamation case that ran between McDonald’s and two English people in the 1990s. That was taken to the European Court of Human Rights, which made the point that it is sometimes important for large multinational corporations to have the right to defend themselves, and the means by which legal systems provide that is within a margin of appreciation.

That is my point of principle. My point of practice would be that it is easy for a company director or shareholder to read something that defames the company and make an argument that that is defamatory of them in a personal capacity. In that way, the restriction on the ability of the legal entity to sue might be easily circumvented. That is recognised in the Australian model law provisions that have been mentioned. It is important to note that, although we talk about them as Australian provisions, they are in force only in New South Wales at present. There has been some review of whether that position should still obtain.

We can draw an analogy with a related part of the law of delict, which is the delict of harassment. The delict of harassment is not one that is open to a company to litigate for; it is specifically limited to an individual. However, we have seen in the case law private companies and representative bodies taking action on behalf of their employees or members in order to sue for that. Therefore, I think that, in practice, there would definitely be an easy way round that restriction. That raises the question: why bother in the first place?

Annabelle Ewing

Thank you for that answer and for the clarification that the so-called Australian model is actually the New South Wales model.

Liam McArthur

I want to return to the question that John Finnie pursued in relation to the Derbyshire principle. Last week, it was suggested that the principle was founded not so much on the nature of the service that is provided—either entirely by the public sector or, from time to time, by the private or voluntary sector—and more on a principle that is to do with the elected nature of local government and national Government, which means that there are other remedies. Is that the underlying principle here, and are we in danger of moving away from that through the bill?

Dr Lindsay

I agree that that is the underlying principle and that you are in danger of straying from it by expanding the definition.

Liam McArthur

That is helpful—thank you.

Rona Mackay

I would like to return to the issue of secondary publishers. Dr Bogle, you will have heard the first panel answer questions on that. What are your views on what is proposed in the bill, particularly with regard to the internet, which is a huge issue?

Dr Bogle

I am not as concerned about it as the previous panel was, although I come at it from a perspective of asking what the policy behind the bill is, what the provisions do and whether they match up. It appears that, in this section, they match up.

There is so much defamatory stuff said on social media, it is quite incredible. Trying to solve those sorts of problems with a defamation bill would be pretty ambitious. Those problems will have to be resolved at a much larger level than that of individuals raising actions, although that is not to say that individuals should not have the opportunity when it arises. The provisions that are in the bill at present make sense, and I am not as concerned about them as the previous panel was.

Rona Mackay

In America, internet providers have complete immunity from defamation claims. Obviously, this is an area of on-going concern. I take it that you are content with the proposal that secondary publishers would not be liable.

Dr Bogle

Something needs to be done about the issue. When the Scottish Law Commission looked at it, my response was that it is a difficult matter that should be solved at a UK, if not a European, level. To try to solve it in the bill directly is jumping the gun.

It is a difficult situation for Parliament. Do you go ahead with saying very little about operators and intermediaries? What do you do? I think that you should just go ahead with what you have and, fingers crossed, something will come about to solve the problem of intermediaries hosting content. There are existing solutions, but they are very cumbersome.

Dr Lindsay

I agree with everything that Stephen Bogle said. The complicating factor is that the website will always be based in another jurisdiction. As much as we would love to have the rules apply across the world, foreign courts do not really listen to Scottish court orders on such matters. There is a slight exception to that in so far as we are part of the European Union, where courts might listen, but obviously that will not be the case relatively soon, sadly.

Rona Mackay

Are you saying that there is no easy solution to the internet problems?

Dr Lindsay

There is no easy solution, and there is also no national solution.

James Kelly

Good morning, panel. What are your views on how defences are codified in the bill? They are the defence of truth, the defence of publication on a matter of public interest and the defence of honest opinion.

Dr Bogle

In general, the codification is fine for me. The restatement and updating of defences is fine.

I have concerns about section 8, which is entitled:

“Abolition of common law defences and transitional provision”.

It abolishes the existing defences, which are being replaced by the provisions in the preceding sections. It is fine for clarity that those doctrines are abolished, but I would not want the baby to be thrown out with the bath water. For example, the Reynolds defence and the case law around it are very useful, and we should not create the assumption that they should not be looked at.

The explanatory note suggests that there should still be some consideration of case law, but in recent litigation in England and Wales, courts have been saying that the Defamation Act 2013 has introduced a new regime and is not a mere cut-and-paste from the common law, although you can go back to the law that pre-dates the 2013 act to seek guidance. I would want it made very clear, in the explanatory notes at least, that although those defences have been abolished, rich resources of case law exist and can be used, whether they are in England and Wales, Scotland or elsewhere.

Dr Lindsay

I agree. My first point is that there is not a complete codification of the defences that are available to a defamation action. Some are omitted for one reason or another, such as the idea of fair retort and the general qualified privilege defence, which is very important. In addition, beyond section 9, there is no codification of the situations in which a statement would be absolutely privileged. That is fine, perhaps; we have a good grasp of what those defences are and perhaps we do not need to codify them. However, if we codify three, that raises the question of why we do not consider the others.

In their evidence, Professor Reid and Professor Blackie raised the point that the qualified privilege provisions in sections 10 and 11 need to make it clear that the existing general common-law qualified privilege option is unaffected by the statute. It might be possible to read the statute as abolishing that, but that is certainly not its intention, and it has not been mentioned or suggested anywhere in the reform process.

There is no issue with the three defences that are included. On the public interest defence, I echo what Dr Bogle said: it is important to make it clear that the preceding English case law, specifically, can still be turned to and the factors can be considered. The committee heard last week about the 10-part test that is part of the Reynolds judgment, which is a useful checklist for a journalist.

The previous panel expressed some concern about the removal of the public interest qualification in the defence of honest opinion. I note that the inner house of the Court of Session recently considered that defence in the case of Campbell v Dugdale, and the opinion of the Lord President did not place much emphasis on that requirement. It is unclear what role it continues to play.

It would not be an issue if the public interest qualification were to be retained, because it is relatively easy to show that something is in the public interest. The most recent UK Supreme Court cases held that reviews about a wedding band on a website were sufficient to engage the public interest for that test. It is not something that I have a strong feeling about, but it adds some colour to the prior remarks. Overall, I am happy with those sections, subject to those modifications.

James Kelly

So, the current bill is fine in that area but there will need to be proper reference to case law, which might need to be added to.

I turn to the area of compensation. You might have heard the discussion with the previous panel about the offer to make amends and discounts being available. Does that principle need to be retained in the new legislation?

Dr Lindsay

That pertains to section 14(5), which I agree with Mr Hamilton can be read as suggesting that the discount is still an option for the court to take into account. However, it would aid clarity if that was specifically made clear.

The submission by Campbell Deane touches on the relationship between the provisions on the offer to make amends and section 19, which is on jurisdiction. We will come to jurisdiction later, but it makes more sense to address this point now. Raising a jurisdiction challenge should not by itself remove the ability to make an offer to make amends, but the reading of section 13(2)(a) suggests that it does. It needs to be made clear that challenging the jurisdiction of the court is not a belligerent act of saying, “I am not sorry,” but simply about working out the proper place for the dispute to be heard. Once the dispute is properly allocated to a particular court, that is normally the stage at which the case will settle. To say that the opportunity to make amends is clipped at the point of raising a jurisdictional challenge is problematic, for the reasons that Campbell Deane has clearly set out.

12:15  

Dr Bogle

I thought that section 14(5) actually allowed the court to take that into consideration when awarding compensation, so that is certainly not how I read the bill, which maybe validates the point that Bobby Lindsay has just made. A simple clarification under that section or around that particular subsection would be useful, because I did not think that the existing position had changed. I thought that the section allowed the court to take that into consideration.

James Kelly

That is obviously an area that we will need to clarify when the Government gives evidence.

Liam Kerr

I shall cut straight to the chase. If the serious harm test was retained, could it be ported into the area of malicious publication, particularly given that, in section 21 and the following provisions, the pursuer does not need to show actual financial loss but only that a statement is “likely to cause” such a loss?

Dr Lindsay

Absolutely—100 per cent yes. The malicious publication delicts that we find in this part of the bill are really arcane and archaic. I do not recall seeing them featured in reported litigation since about 2003, and we certainly do not want to reanimate them and make them a valuable line of attack for a business. There is always a risk that a defamation claim will be bundled up with a claim under those delicts—if a malicious publication claim fails, defamation will be a fallback and vice versa.

My personal preference would be to abolish those delicts entirely, but there is no real harm if the serious harm threshold is put in. As you have stated, the current provisions simply refer to financial loss, not serious financial loss. For consistency, it makes sense that, if we are going to retain serious harm, it should also be part of these provisions.

Dr Bogle

I completely agree with Bobby Lindsay. One could interpret the bill as assuming that serious harm applies in part 2. If part 2 is to remain, it needs to be in there.

Liam Kerr

I imagine that both of you saw the earlier panel’s evidence, during which I specifically asked about an interplay between particular provisions in section 21. Does either of you take a view on whether the inclusion of indifference as a qualification with relation to harm is a lessening of the threshold, if you like, in the current provisions?

Dr Bogle

I will hand that over to Bobby because I know that he has particular opinions on that point.

Dr Lindsay

Actually, I do not have particularly strong opinions on that. I agree with Mr Hamilton that the provision is merely reflective of the present law and does not water it down to any great degree. If we are going to retain those provisions, I am content with the bill as drafted.

Liam Kerr

I have a brief question for Dr Lindsay. Given what you have just said and what you have said generally, do you have any views on whether the sections on malicious publication have the potential to undermine freedom of expression?

Dr Lindsay

I do not really think so. All they do is offer more options to a potential corporate pursuer: they get one bite of the cherry with defamation and a second bite with malicious publication proceedings.

The fact that the pursuer in a malicious publication action has to prove not only that the statement is false, but that it was intentionally made to harm, is enough of a control mechanism. The law of defamation has been criticised sometimes because it shifts the burden. In the case of truth, it shifts it to the defender, and malice, in most cases, is irrebuttably assumed. In terms of freedom of expression, those two control mechanisms are perhaps sufficient. My concern is more one of legal horticulture: the provisions are not particularly tidy, nor are they necessary if we are retaining defamation in its current capacity to apply to profit-making bodies.

The Convener

Excellent, thank you. “Legal horticulture” is a new one on me—I am not quite sure who is on gardening leave here.

I will go to Fulton MacGregor next and then to Shona Robison.

Fulton MacGregor

I will go back to the same line of questioning that I put to the previous panel on section 30 of the bill and some of the concerns that we have heard about that.

As you will know, section 30 allows the court to order a third party to remove contentious material as an interim measure before a final decision on whether that material is of a defamatory nature has been reached. Do you have any concerns about section 30? If so, do you have any possible alternatives?

Dr Lindsay

I do not have any real concerns about section 30 at the moment. It might be useful to cross refer to section 12 of the Human Rights Act 1998. That says that if you are trying to get an interim remedy—a remedy that is awarded before the dispute has been concluded—particularly keen attention needs to be paid to the importance of freedom of expression.

The only other point that I would make is that, as I have said before, a Scottish court can try as it might to make an order for a website that has been set up on a server in Panama to take down a defamatory blog post, but the reaction will be that that will not be welcomed or entertained by a foreign court. Sadly, with secondary publishing, there is a limit to what a national solution can achieve in that regard.

Dr Bogle

I do not have any concerns about section 30. It is particularly important that we retain the court’s existing powers. Very recently, the Court of Session made an interim order of specific implement for the removal of material. Obviously, the existing law is able to comply with ECHR requirements, and the Court of Session showed that what it already has is sufficient. However, there is no harm in having section 30 in place.

Shona Robison

You might have heard or read the evidence from Scottish PEN last week. It has put forward a proposal for a new court action to provide protection from unjustified threats of defamation action. Do you have any views on that and how it might operate in practice?

Dr Bogle

As I said, if you go on a bear hunt, you will find a bear, and you will get into trouble with that. I do not know how the introduction of some sort of counter-measure would help, because it would get you tied up in human rights concerns about access to the courts. It would also be pretty novel—I know that such a measure exists in intellectual property law, but the context there is different.

You would not quite know where to draw the line if you introduced a such a provision. Would you introduce it for contractual or negligence disputes, for example? At what point would you draw the line and say, “No, it just applies to defamation. We want people to play nicely and are going to have a counter-action for a defender?” Unfortunately, I do not think that the proposal would be a good idea. I have to disagree quite strongly on that one.

Dr Lindsay

It is certainly an interesting proposal, but it would need much more discussion and thought before it could go on to the statute book. Stephen Bogle is quite right that the Intellectual Property (Unjustified Threats) Act 2017, which is the model for the proposal, is a very different context. It applies to registered intellectual property rights that someone can look up in a register and find out the extent of. Defamation is not that clear, unfortunately, and the bill will not do enough to make it crystalline.

It is important to note that there already is some protection in the law, in the form of the delict of harassment, which I mentioned earlier. If someone repeatedly makes unjustified threats of legal action that cause someone alarm and distress, case law has held that an harassment action can be brought to claim for damages or a non-harassment order. That would cover only extreme cases, but perhaps it is only the extreme cases that we need to worry about.

The proposal is perhaps emblematic of the fact that civil procedure in Scotland, as we have heard, is not as sophisticated as it could be, as compared with that in England and Wales. In England and Wales, if you get a defamation letter through and the claim form is served, you can make a motion to have that struck out of the English courts. That is not a power that the Court of Session has, on the face of the rules of court. I think that this was mentioned in the context of the civil justice reforms, but such a device might be a more useful mechanism than creating a new delict, the parameters of which we are unsure of.

The Convener

That has been helpful; thank you. As I have been listening to your evidence, two questions have nagged away in the back of my mind. I want to pose both of them to you. You might not be able to answer them right now, in which case please feel free to say so and to write back to the committee before we report later in the autumn.

The first is about something that Bobby Lindsay raised a few minutes ago Section 12 of the Human Rights Act 1998 is designed to show that, although it is true that articles 8 and 10 of the ECHR are both qualified rights, some qualified rights are more important than others, and freedom of speech is a very important qualified right, in particular when compared with article 8, on privacy.

We have heard from many witnesses that the bill shifts the balance a little—some would say that it shifts the balance a lot—in favour of freedom of speech and away from the protection of privacy and reputation. Section 12 of the 1998 act was already designed to do that, so my first question is whether that provision has made any material difference in practice in the 20 years that it has been in force? Have the courts paid particular credence to section 12? Has it made any material difference in defamation cases, either in England and Wales or in Scotland? Bobby Lindsay, do you have any information that you could share with us on that question?

Dr Lindsay

Dr Bogle might be able to talk more fully about the recent Court of Session case that considered section 12. However, I can say that there are signs that the courts are taking that section into account, especially when it comes to issuing a remedy before the final resolution of a claim. There are real signs that it is being followed quite closely and carefully.

Dr Bogle

The Court of Session obviously pays attention to section 12. It is difficult: we do not have a lot of case law in Scotland on defamation, and particularly not on procedural requests of the court to make an interim order. We do not always get those reported.

However, it seems that it is quite straightforward for the court. In fact even on the existing law, without section 12, I think that the court always takes into consideration the importance that the freedom of speech—[Inaudible.]—should be, on the balance of convenience, what the court pays more attention to. I think that it does make a difference.

12:30  

The Convener

That is helpful. I have a final question that I would like you both to reflect on. Everyone seems to think that the bill is a good idea, in large part because it codifies in a single statute most of the core elements of our law of defamation. However, is there a risk in codifying defamation, in the sense that the single biggest change to the law of defamation in the past 20 years was made not by statute but by the courts, in creating the Reynolds defence, in the case of that name, which is now enshrined in section 6?

Is there a risk that, by codifying our law of defamation in legislation, we will inhibit the courts from making further such progressive changes to the law of defamation when the public interest requires it? If so, is that a risk that we should take? Do the benefits of codification outweigh the costs? Should we include in the bill a statement that nothing in the bill is designed to inhibit the future development of the law of defamation by the courts in appropriate cases, or is that not the sort of thing that could be described as elegant drafting?

Dr Bogle

That touches on section 8 and the idea of clarifying in the explanatory notes what the intention is. Defences are the most important thing here. In my opinion, I think that courts can continue to develop the law. The problem is that we do not have a lot of case law in Scotland. Legally, it would be fine not to pass the bill, but there is a lot more to be considered in terms of the policy behind it, the public perception and how it is important, symbolically, that Scotland makes clear that it has put the law of defamation into statute.

Legally, the courts can develop the law of defamation. I do not distrust judges—some people distrust judges and want Parliament to do all the work, but I do not mind judges doing all the work. However, for policy reasons and so on, it is important that we get something in statute.

Dr Lindsay

I completely agree with that. In so far as the bill will create a framework for defamation law, I do not see it as a particularly stultifying or ossifying framework. There are certain provisions that could make the relationship with the existing law a bit clearer: section 8 is certainly one of them, the offer of amends proceeding is another and so on. However, on the whole, this is very much a floor, not a ceiling.

The Convener

That is helpful. Thank you both very much; you have been generous with your time.

That brings the public part of this meeting to a close. Our next meeting will be a week today, on Tuesday, 8 September, when we will continue to take evidence on the bill.

12:32 Meeting continued in private until 12:50.  

The Convener

We now return to the Defamation and Malicious Publication (Scotland) Bill. This morning, we will take evidence from two panels of witnesses at stage 1 of the bill. I warmly welcome Dr Andrew Scott, associate professor of law at the London School of Economics, and Gavin Sutter, senior lecturer in media law at Queen Mary University of London. I thank Dr Scott and Mr Sutter for their written submissions, which, as always, are available to members and the public on the committee’s website.

Before we go to questions, I invite our witnesses, if they wish, to make short opening remarks. Dr Scott, would you like to begin?

Dr Andrew Scott (London School of Economics)

I thank the committee for inviting me to attend today.

In general terms, I would say that this is a good bill that will make some contribution to better balancing individual and social interests in reputation and free speech. It does some things that I think are really quite innovative and which I happen to welcome, such as the tightening of the definition of who is to be understood to be a publisher and the revisions to the defence of fair comment or honest opinion.

For me, however, the key concern about the law of defamation is and always has been the sheer cost of potential embroilment in legal proceedings. That cost allows claimants sometimes to weaponise the law of defamation. It also makes it difficult for many, if not most, plaintiffs to access justice when they feel that their reputation has been besmirched.

In that context, I was quite struck by the words of one of your previous witnesses, who picked up on one dimension of that issue when he referred to the opportunities afforded by the law to those with

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

I was further struck when, in discussing that concept, the witness suggested that the problem with thin skins and thick wallets was not going to be solved in our lifetime, and certainly not by the bill alone, which I take to be a really rather dispiriting starting point.

When I was conducting reviews for the Northern Ireland Law Commission and writing a report for the Northern Irish Government, I also felt that sense of deflation from the outset. As a result, I felt behoven to think laterally and a little bit differently about the law of defamation, and perhaps by doing so, to think of an alternative way through so that the better balance between reputation and free speech that we are all seeking might be more fully achieved.

As a result, I made proposals that placed a much greater emphasis upon bringing proceedings or the resolution of defamation concerns outside the courtroom, thereby reducing costs. That might be something that the committee will want to pick up on later on—I would be happy to speak to it later.

The Convener

Thank you, Dr Scott. Does Mr Sutter have anything to add before we move to questions?

Gavin Sutter (Queen Mary University of London)

First, I agree with Andrew Scott on many things about the bill. It is a great bill and I applaud the fact that it has brought most of the key issues in relation to defamation under one bill in a more consolidating approach than was taken in England for the Defamation Act 2013, which was a real missed opportunity.

I have two things to add. I think that it will come out in discussion that Andrew and I have a different take on the defining of publishers in sections 3 and 4 and how that is worked out. At this stage, I will just say that that also relates to a broader problem in dealing with the internet. We are in a situation online in which what should be, or what has in theory always been, the public square where people may speak freely, subject to certain limits, is increasingly dominated by private interests who provide that public space. A lot of the complications are tied up in our lack of an overall answer to that general media trend.

I very much agree with Andrew in terms of cost and admission—the pay to play side of defamation, as it were. Something that was referred to a lot at an early stage in the debate on what became the 2013 act in England was the idea of creating a fast-track libel tribunal that could reach binding decisions. I begin to wonder whether that might not be such a bad idea, given the difficulties and costs involved.

The Convener

That is very helpful and nicely anticipates a number of the opening questions that Liam McArthur would like to bowl gently at you.

Liam McArthur (Orkney Islands) (LD)

I welcome the witnesses who, as the convener said, have both touched on areas that I want to delve into a little deeper, including the fact that the bill draws heavily on the Defamation Act 2013. Do the witnesses believe that the balance between freedom of expression and protection of reputation has been well struck? They alluded to areas where work still needs to be done on fine tuning, but I get the sense that they both feel, broadly speaking, that that balance has been achieved. Does Dr Scott have any further thoughts to offer in that regard?

Dr Scott

I tend to agree with that. It is difficult to be too upset with the position that is achieved in the 2013 act. However, it is probably fair to say that the law was more or less balancing those interests prior to the introduction of the 2013 act, and that its introduction did not make a profound difference in many areas of the law. Where there are quibbles with the 2013 act, the types of change that I would seek tend to have been introduced in the bill. Hence, I commend the Scottish legislation more strongly than the English version.

I come back to a point that I made at the outset: fundamentally, what the law is—[Inaudible.]—the problem with libel or defamation law being the capacity to weaponise the law.

To illustrate that point further, I will refer to US law. We all understand that the United States is the land of free speech and so on. The committee may be aware that Sarah Palin is currently pursuing defamation proceedings against The New York Times on account of something that her office published, which, on some people’s account, resulted in the shooting of and injuries caused to Gabrielle Giffords.

In the United States, under The New York Times Co v Sullivan defence, you can essentially publish anything that you like about a public figure—in the case that I described, Sarah Palin, as an electoral candidate, is a quintessential public figure—and claimants can bring an action only if they can prove actual malice.

Palin is pursuing legal proceedings alleging actual malice in the circumstances—the judges in the courts are accommodating that, and the case is now going to a hearing. This is a quintessential case in which one would think that the result would be different in the United States in comparison with other common-law jurisdictions. Nevertheless, even in the US, it is possible for Sarah Palin to drag The New York Times through the legal process.

It may well be that Sarah Palin thinks that she has a case and that there was in fact actual malice—let us not pre-empt the judgment. However, I surmise that she is really engaged in warning The New York Times by saying, “Any time you want to write about me or anybody associated with me, or anyone of my political persuasion, there will be a cost to pay.”

As I said, we can introduce piecemeal changes to the substantive law, but fundamentally that opportunity will still be there, in so far as we are relying on the legal dispute resolution mechanism.

Liam McArthur

I will bring in Gavin Sutter to see whether he has any views on that. First, however, I observe that, during last week’s evidence session, representatives of the legal profession said that they saw the bill very much as a rebalancing towards the protection of freedom of expression, and a dilution, in a sense, of the protections around reputation. Would Gavin Sutter agree with that characterisation? We can come back to Dr Scott if he wants to add anything.

Gavin Sutter

I am very much on the same page as Andrew Scott. As he said, the weaponising of libel law really comes down to the cost of fighting a suit. I emphasise—we discussed this back in 2018, when I last spoke to the committee on the subject—that it is not always the case that the poor journalists of the media are the ones being picked on by the meanie who wants to censor them. Equally, it is not always the case that the media are the meanies who ruined somebody’s reputation unfairly. Perhaps the fact that we do not have an obvious good guy/bad guy split between the claimant and defendant aspects is one of the elements that makes the issue difficult.

I cannot help but feel that the issue cannot be solved through the prism—strictly speaking—of defamation law. It is a much broader issue. I remember that, when the subject of the Defamation Act 2013 was first broached, the issue of costs was very much raised, but it was then swept under the carpet as part of a wider civil law review in England, and the issue has not been addressed since.

Other than seeking to establish some kind of fast-track tribunal for libel law, as we have discussed, I do not think that there is an obvious answer to the problem of costs. That is very much the big difficulty.

The bill is very good, by and large, at balancing, or seeking to balance, those interests. In particular, the defences—those that the bill proposes and those available in English law already—are a very important part of the balance. Of course, that is in the context that libel remains a strict-liability issue, so there is no opportunity to say, “Oh, but we didn’t mean that,” or “We didn’t intend to”. That makes for a very delicate balancing act. Overall, I feel that the bill gets the balance about right, subject to the concerns that Andrew Scott and I have raised about the issue of costs.

Liam McArthur

That is helpful. It might be useful if you were able to provide additional evidence on the idea of a fast-track tribunal. You will be aware that Scottish PEN has put forward its own thoughts, which I think that other colleagues will cover in different lines of questioning later. Further information on the proposal of a fast-track tribunal would certainly be of interest.

10:15  

Dr Scott referred to the weaponising of the process. Clearly, we have had evidence to date that suggests that some legal letters, from wherever they emanate, are a means of closing down the process, leading to what has been referred to as the “chilling effect”. In the main, legal stakeholders suggest that that is a legitimate part of the negotiation and a way of keeping things from having ultimately to go to court.

I would be interested in your observations as to whether what is in the bill balances those different rights and reduces the extent to which such processes can be weaponised. That might give a degree of comfort to Andrew Tickell, who talked about

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

Maybe there is hope that, going forward, the issue can be better addressed. Does Gavin Sutter have a view on that?

Gavin Sutter

Could you rephrase the question? I did not catch all that on my connection.

Liam McArthur

Do you feel that the bill, as it stands, goes as far as it can in moderating the weaponising of the process, if not avoiding it entirely?

Gavin Sutter

Broadly speaking, it does. As we will come on to, I take a different line on the desirability of sections 3 and 4 as an approach, but that is another matter. By and large, I think that the bill goes as far as it can within the strict letter of the law. I feel that the weaponisation aspect is predominantly one of cost. If we were talking about a system in which it costs somebody £20, for the sake of argument, to bring a case and damages might be another £20, pretty much anybody would fight their corner. However, once bringing a case costs £2,000 or £20,000, with costs of more than £100,000 per day—we see such figures coming up in the courts down here—people start to think, “I am 99 per cent sure that I can win but I don’t think I’m going to fight the case, because that is too big a risk. I don’t want to lose my house over a law case.” That quite literally happened to Katie Hopkins in her defamation case, which she probably should not have fought. I think that the cost is central to that weaponisation or chilling effect. My feeling has long been that all the other things that we could add, saying “That is a chilling effect”—[Inaudible.]—when we scratch the surface to look for the problem, it is typically because of cost. That is the calculation and very much the central issue in any difficulty. The bill on paper, purely as a matter of law, without putting the money in, so to speak, is—[Inaudible.]

Liam McArthur

Before we move on, does Dr Scott want to add anything?

Dr Scott

Broadly speaking, I am very much on the pro-free-speech side of almost any debate, so I welcome the things that we find in the bill. Potentially, the most profound change is a subtly expressed one: the idea that, in the defence of fair comment, one can rest one’s comment or opinion on facts that one “reasonably believed” to be true. I agree that that is a desirable move forward, but it could be a profound move in the law. I re-emphasise the point that I made a few moments ago about the capacity for people still to weaponise the law, irrespective of the likely outcome. Winning the case is often not the goal that is being pursued.

I have one concern, which I put in my written evidence. It speaks to a couple of points that Gavin Sutter has already made about sections 3 and 4—[Inaudible.]—primary publishers is desirable. I was slightly concerned about the seeming absence from the bill of any follow-on to that. Often, the claimant’s only recourse is to bring an action against some form of intermediary, whether that is Facebook or a newspaper that hosts user-generated content.

Merely to narrow the concept of publisher so that various people who could be sued today cannot be sued in future might be to significantly underestimate the issue’s importance and the difficulty of the claimant’s or plaintiff’s position.

In the Northern Irish context, I sort of absolved myself of concern in that regard by thinking through what would happen, in the absence of liability, to the intermediary. In Northern Ireland, as in England and Wales, there is a special rule in defamation law with regard to the obtaining of an interim order requiring take-down. Essentially, that is the rule in Bonnard v Perryman. It says that, if the defendant comes to the court and vouchsafes their intention to defend the action, the court will not make an interim order compelling take-down or non-publication. Essentially, it is a “We’ll see you in court” type rule.

If we consider how that would apply in a circumstance where we removed the potential legal liability of the intermediary, essentially, what would happen is that the plaintiff would go to court and make their case, and unless the actual author came forward, there would be no counterpoint to what the claimant was saying. Although they would be compelled to give the court the gist of the other side of the argument, the court would be in a position where it was faced with a seemingly bona fide complaint but nobody came forward to say that they were going to defend the action. In that circumstance, a take-down order could be made.

You might say that that is quite a convoluted process, and it is, relative to what we have at present, whereby the person gives notice and seeks a take-down. The fundamental difference is that a judge would issue a legal determination on the basis of the gist of the case as to the appropriate balance between the article 8 and article 10 interests that were at stake.

I surmise that the same type of opportunity would be available in Scottish law, although I am not a specialist on Scottish civil procedure. As far as I can see, it looks like, with the sheriff court, there might be an opportunity to gain take-down quickly via a legal route, which would address the concerns over access to justice for the claimant while also avoiding collateral censorship by potentially liable intermediary publishers or secondary publishers.

The Convener

I want to move on to how defamation is defined and whether it should be defined in the statute. I note that the bill includes a definition of defamation, and I ask Dr Scott, first, whether that is wise. Is it right that the legislation should define defamation? Do you have any reflections on the definition that is given in the bill? Are there any ways in which it could be improved?

Dr Scott

I will answer the second part first. I think that it is as good a definition—[Inaudible.] There is always a—[Inaudible.]—defining something in law.

If we compare that with the position in the common law in England and Wales, which is neatly expressed in Thornton v Daily Telegraph, we find that Mr Justice Tugendhat set out 10, 11 or 12 different definitions that judges have used over time in the English courts and which tended to speak to slightly different factual circumstances. The definition of what is meant to be defamatory that has been applied in the context of a corporate claimant might be subtly different from what would be applicable in a more domestic case, because of the different interests that are at stake.

[Inaudible.]—in the case of Sim v Stretch is pretty similar to what we find in section 1 of the bill. In so far as that definition will be interpreted with nuance by the Scottish courts, I do not see any real problem, although that is subject to the general caveat about putting anything down in legislative terms.

The Convener

Mr Sutter, do you have anything to add to that?

Gavin Sutter

I was not able to catch everything that Andrew Scott said, given the connection. By and large, however, as I say in my written submission to the committee, I would be in favour of adopting a positive definition.

I think that the English legislature got half way there with the 2013 act giving a negative definition, in a sense. On that point, I respectfully disagree with the interpretations of the court that it would be—[Inaudible.]

It seems to me that the definition is very good. It is long overdue—the Fox committee called for it in 1975. I think it was right then and it would be right now. The definition in the bill is a pretty good general definition. The only thing that I would suggest adding to it—particularly in this context in Scotland where there was a long debate about whether you should be able to protect the dead person’s reputation against defamation, which was brought up in light of the very tragic Watson case—is that it would be worth inserting that, as regards natural persons, it should be a living person who can be the subject of a defamation, rather than leaving that open to question, because of that very specific debate that was had. It is worth putting very clearly in the law that it is living people whose reputations can be damaged in this sense.

Other than that, as I say, what the bill proposes is a very solid definition and it is a real shame that the 2013 act in England and Wales did not do something similar.

The Convener

That is helpful. I just want to say to both of the witnesses that your connections are cutting out intermittently and we are having some difficulty hearing everything, although I think we are all getting the gist. Could I have much crisper answers? I think that that would help. We still have quite a lot to get through and we have asked only a couple of questions so far, so if we could just speed things up a little bit—but please bear with us if we do not catch everything that you say—that would be extremely helpful. Thank you. With that in mind, I go to Rona Mackay.

I am sorry, Rona, but your mic was still muted.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

I would like to move on to talk about the serious harm test, which is contained in the Defamation Act 2013. Mr Sutter, I will come to you first. I see from your submission that you are in favour of the serious harm test. Could you expand on that? Do you think that it has been successful in protecting against the alleged chilling effect of defamation claims?

Gavin Sutter

Yes, it is worth setting that out in statute. Given that the interpretation that the Supreme Court has set at a fairly low standard is arguably not law as it was previously, I do not think that it has made a significant change in practice. However, perversely, I think it is worth having it there to clarify things, effectively for non-lawyers in many ways.

Rona Mackay

Previous witnesses have raised concerns that the test in England has proven to be complex and resource intensive for courts to operate. We know that there are far more defamation cases in England. Do you agree with that, and can you compare what would happen in England with what we are proposing in the bill?

Gavin Sutter

I think that Andrew Scott has done a bit more direct research on that specific point than I have so he might be able to give a clearer answer. My feeling is that it is appropriate, but it has meant that there is an extra stage in cases. I would want to see how many cases it ended, because if it is not stopping many cases or very few cases fail that test, in one sense, there might be an argument about the difference that it makes. As I say, Andrew Scott has done more work than I have on some of that in practice, so I would defer to him.

Rona Mackay

Dr Scott, could I ask you to comment on that? Also, I am interested to know what you think of the threshold. How high should that test be set so that it would make a difference?

10:30  

Dr Scott

In the English debate, we talked about comparing tests of the threshold of seriousness, which derive from the common law and Strasbourg jurisprudence. To me, it is a question of semantics; we are talking about something having to be a “significant” defamation.

In the English courts, the real issue with the serious harm test, as Gavin Sutter has suggested, is that it has been interpreted and reinterpreted as it has gone through litigation in Lachaux v Independent Print Ltd.

To start with, Mr Justice Warby said that the test was a higher threshold and, importantly, that evidence would have to be pled, in order to meet the threshold. The Court of Appeal then said, ultimately, no—it was pretty much the same as we had in common law, so inferences were fine, and there would be no additional hurdle. However, the Supreme Court has come back and reiterated Mr Justice Warby’s view.

That means that, whereas we thought that serious harm would be a question of threshold, and thus would be able to be dealt with at a preliminary hearing, very often it will have to be heard at a substantive hearing—at the end point of the legal process. In addition, very often, significant evidence will have to be pled, in order to show that the threshold has been met. That adds cost and complexity to the legal proceeding.

In the Northern Irish report, I suggested that I was neutral on it, because, at that time, the position in law, in England, was that which was held up by the Court of Appeal. I would be much more circumspect today about the introduction of any serious harm test that required substantive pleading of evidence in court.

A rejoinder to that is to say that the Supreme Court left room for the finding of inferential harm, if you like. Under the Supreme Court position, it is still possible to presume harm—in some cases, but not all. I can certainly concur with earlier witnesses who have been worried about that.

Rona Mackay

If it has to go to the Supreme Court, that would seem to defeat the purpose, given that the serious harm test is meant to be there at the outset.

Dr Scott

With any new rule, there will, over time, be some sort of interpretation in the courts. I suspect that, in any litigation proceedings, much greater attention may be given to that question than one might have hoped when introducing it as a sort of gateway test.

Rona Mackay

From that, I take it that you are not convinced by it.

Dr Scott

When I reported to the Northern Irish Government, I thought that it could work okay; however, today, I would be much more circumspect and more concerned.

The Convener

That is very helpful.

John Finnie will ask about section 3 of the bill and the Derbyshire principle.

John Finnie (Highlands and Islands) (Green)

Good morning to the witnesses. I will direct my question to Mr Sutter, in the first instance.

All aspects of the bill involve a balance between freedom of expression and the protection of individual reputation. The bill includes the Derbyshire principle—the ban on public authorities suing for defamation.

The statutory definition will cover arm’s-length organisations and other bodies. That reflects the different model of public service delivery in Scotland. There is an exemption for businesses and charities that are engaged in delivering public services only “from time to time”.

Views differ. Media concerns, rightly, are about effective scrutiny, whereas members of the legal profession have expressed some concerns that the definition has been drawn more widely than at present. We have also heard about the implications for individuals such as doctors.

Will Mr Sutter and then Dr Scott comment on the application of the Derbyshire principle in the bill?

Gavin Sutter

I am very much in favour of the Derbyshire principle, as a way of preventing public bodies from using libel as a shield against public accountability.

I have two concerns. With regard to my first concern, which is about the general principle, I do not think that there is a clear answer. Research has shown that in England and Wales, a number of local councils effectively subverted the Derbyshire principle by having the party quietly fund an individual to protect their reputation as an individual, so that when the individual was cleared, the party was cleared by implication. There is a concern about abuse in that regard.

My second concern is specific to the bill. Section 2(3) states:

“it is not a public authority by reason only of its carrying out functions of a public nature from time to time.”

John Finnie referred specifically to that wording in his question.

My concern—maybe it borders on paranoia—is that there could be potential for a public body, in doing something that it feels might be controversial or that it does not want to be critiqued, to deliberately outsource that activity in order to use the outsourced company as a shield to subvert the Derbyshire principle.

My feeling is that, if we are going to permit an outsourced body to act in a public context, the law should work, as indeed it does with elements of human rights law, such as article 10 of the European convention on human rights and so on. A private body that is acting in the capacity of, and on behalf of, a public body should be treated in all respects as a public body, which includes adhering to the Derbyshire principle.

John Finnie

Perhaps Mr Sutter can clarify something. What would the link be there? Would it be that there was public expenditure connected with the function?

Gavin Sutter

Essentially, the activity—whatever it is—would be carried out on behalf of a public authority. That activity is being done with taxpayers’ money, and the public body should be accountable in the same way that it would be accountable for any other activity. The system should not be open to abuse, and the authority should not be able to evade scrutiny simply because it has outsourced the activity to somebody else. That is partly the principle.

John Finnie

I want to push you on that. I am trying to imagine a situation. Some multinational corporations run public services in Scotland, but similarly a local plumber might do some work on the village primary school or hall—

Gavin Sutter

Something on that level would be fine. I am thinking of a major infrastructure project that is contracted out, or a privatised contract to run a railway—big-level stuff, not individual or low-level stuff.

John Finnie is right—there would have to be some clarification of the level at which such a principle would apply. However, I am thinking of significant bodies that are acting in the long term and doing specific projects that deal directly with the public. For example, my flat, from which I am speaking today, is an ex-council flat, and the day-to-day management of the block is outsourced to a private company. That is the kind of scenario that I am thinking of.

John Finnie

Dr Scott, do you have any views on that?

Dr Scott

In the light of the convener’s instruction to be brief, I will pass on that question—I have nothing substantive to add.

John Finnie

In that case, I will raise with you a secondary point on the same area. Some media stakeholders have argued for wider restrictions on the ability of businesses to raise defamation proceedings. Scottish PEN proposed that only companies with fewer than 10 employees should be able to sue for defamation, under the so-called Australian model. Have you any views on that?

Dr Scott

I will begin with the Australian model. It is not dissimilar to—[Inaudible.]—just a moment ago. In Australia, under the rules that govern corporates’ right to sue, or corporate standing, there is nothing that would restrict a corporate director or manager from suing on their own behalf. It is thereby possible to circumvent that type of restriction.

More generally, I am sceptical about the desirability of limiting the right of corporations to sue per se. These days, a company’s primary asset is fundamentally its reputation, so it seems almost bizarre that one would prevent a company from having the right to use the cause of action of delict, which would give it immediate access to the court to defend its reputation.

I would much prefer an alternative approach, which I think Scottish PEN put forward. That would be to assess the impact of actions brought by corporations when talking about what, in common parlance, would be referred to as anti-SLAPP—strategic lawsuit against public participation—legislation. If a corporation was bringing an action that might be designed to prevent, but certainly had the effect of preventing, a critic in the public sphere from making their points volubly, that type of action should be used rather than the general action being brought by corporations.

Corporations tend not to sue on defamation. Many other devices are available to them to defend their reputations. A review of reputation management text books will find that law barely gets a mention.

John Finnie

Thank you. I will leave it there, convener.

The Convener

We have had to cut the video feed from Mr Sutter—he is now audio only and we can hear him much better. I am sorry that we cannot see you, Mr Sutter, but we can hear your evidence more clearly.

Annabelle Ewing will take up the theme of looking comparatively at aspects of defamation.

Annabelle Ewing

I want to pick up on points that our witnesses made earlier that, although the bill by and large gets it right, there are issues about how it will need to operate in practice if people are to avail themselves of it, one way or another. In that regard, I understand that there is a pre-action protocol in England and Wales for media and communications claims in general, which includes defamation claims. Is either of our witnesses aware of how that works in practice in providing at least a partial solution to some of the issues that you have both highlighted? Dr Scott, will you start?

Dr Scott

I confess that I have limited personal experience of that. The purpose of the pre-action protocol is to narrow the contentious field so that, as the case goes through the litigation process, it focuses on the real concerns—the crux of the issue. That, allied with active judicial case management, which has been a feature of legal proceedings in this area for the past five or 10 years in England and Wales, leads to much more efficient resolution of libel disputes. Beyond that, I cannot comment on the efficacy of the protocol directly.

Annabelle Ewing

Does Gavin Sutter have any comment?

Gavin Sutter

I have nothing to add to what Andrew Scott said.

Annabelle Ewing

I turn to the issue of looking at the defamatory meaning of the words that were employed in any case. You will be aware that it has been suggested that there should be a quick court procedure to look at that specific issue. What are your thoughts on that?

Dr Scott

Are you saying that there has been a proposal for early hearings in Scotland?

Annabelle Ewing

It is not in the bill, but I understand from evidence sessions thus far that it has been suggested that that would be a help. It would be a question of looking at that in the round, understanding what it would mean and, in terms of precedent, how it has operated elsewhere.

Dr Scott

You would think that the question should be easily determined. The legal test is impressionistic and considers what the average person would understand the publication or imputation to have meant on a bare reading or passing hearing of it.

There is, in effect, an early determination of that in the English courts, as it is invariably one of the preliminary matters that is brought to the court before a case goes near the substantive hearing. That is one dimension of the judicial case management that I talked about. I am particularly interested in the issue and, in my written evidence, I give details of research that I have been undertaking.

Since 2014, the average number of days taken for those preliminary hearings to reach a resolution on the meaning of a phrase that the average person is taken to understand on an impressionistic basis is around 580 days. That is 580 days of lawyering and one or possibly two legal hearings. In some cases, that costs over £100,000; it generally costs tens of thousands.

10:45  

Therefore, that seems to be a sensible thing to do, and it is highly desirable as a means of rationalising litigation that will go through the courts. However, it does not get away from the fact that you do not want to get embroiled in the game of libel proceedings at all, because of the cost.

I spoke to that point in my report to the Northern Irish Government, in which I asked how it could be done differently. I have submitted written evidence on that. If you want to ask any questions about it, I am happy to respond.

Annabelle Ewing

You have both referred to the fact that the 2013 act is deficient in some areas. Taking account of the experience of legislation down south, and leaving aside the issue about people availing themselves of the bill in practice, is there any key issue that the bill fails to deal with or does not deal with well?

Dr Scott

To follow on from my previous comments, the determination of meaning could be taken outside the court process altogether, so that only contested meanings would ever go to court. At the moment, there are hundreds of days of arbitrage between the sides, which is unbelievable. We are asking a simple question about what something meant, and the answer should be straightforward.

The other issue is one that I already alluded to in the Scottish PEN evidence: the potential desirability of anti-SLAPP legislation. To give a comparative perspective, such legislation has been introduced in many US jurisdictions and recently in Ontario in Canada. The approach in Ontario is interesting, because it solved a perennial problem with such legislation. A SLAPP is a strategic lawsuit against public participation. It is a bullying action, and often a bullying defamation action. Anti-SLAPP legislation usually allows an early means of having a court strike out such action. In some variants, the legislation also allows the recovery of damages for the impact on a person’s freedom of speech. That gives the individual an incentive to pursue the action and has a collateral benefit for wider society.

The Ontario law focuses on the effect of what is being proposed and of the action that is being taken, rather than moving into the murkier territory of trying to understand the motivation of the litigant and the plaintiff. It is quite quick and neat. It is also quite new, but there has been some research into its efficacy. The committee and the Scottish Parliament might benefit from adding anti-SLAPP provisions to the bill.

Annabelle Ewing

That is interesting.

Mr Sutter, do you have any points about key issues that are missing from the bill, or about anything that could be refined?

Gavin Sutter

Andrew Scott has raised helpful ideas about anti-SLAPP legislation. That could be worked in alongside the notion of some sort of tribunal, although I would see the tribunal side as arising from something separate, rather than from the bill.

Apart from the critiques that I made in my written evidence, the bill as it is designed addresses all the key issues.

Annabelle Ewing

It is rare that witnesses think that a bill as introduced is in such good shape, but that is interesting. We will consider your interesting suggestion carefully.

The Convener

We turn to a quite technical and complex area of the bill—namely, the provisions that pertain to secondary publishers, on which Rona Mackay will lead the questioning.

Rona Mackay

The issue was discussed earlier and I do not propose to go over what has been said already, unless the witnesses want to expand on that. I want to focus on the fact that the bill does not deal directly with online publication, although excluding secondary publishers from liability would have a huge impact in that respect. Should there be more focus on online publication in the bill?

The United Kingdom Government has put forward its proposed reforms of internet regulation in its “Online Harms White Paper”. What impact do you think that those developments will have on online defamation?

Internet regulation is a huge issue. First, I would like to hear the views of Gavin Sutter.

Gavin Sutter

I will first address the question of whether the bill needs to reference online publication directly. I do not think that that is necessary. It is clear enough from sections 3 and 4 that the provisions have been drafted with the online focus very much in mind. I mentioned the proposed online harms bill in my written submission. It is still not clear where that English bill is going, but the broad substance of the idea is to make social media providers responsible by giving them a duty of care towards their end user. It is possible that a number of the harms that are identified, such as cyberbullying, could have a direct crossover with the issues involved in defamation. That could have the advantage of giving a number of claimants who might not otherwise bring—or feel emboldened or able to afford to bring—defamation proceedings.

However, my concern about the online harms issue is how many of the harms that are identified are not actually illegal things. I am a bit concerned that what is proposed could have a chilling effect on expression and on speech. I am not convinced of the practicality of trying to bind in that way a giant such as Facebook, which in the past has openly stuck up two fingers to many states with regard to what their law says and said, “We’re Facebook, and we do it the Facebook way.” Therefore, we cannot rely too much on the idea of online harms as an answer to the issues that affect defamation.

Rona Mackay

Would the serious harm threshold apply to online publication, too? I presume that it would.

Gavin Sutter

Yes. The bill as drafted is not directed towards any particular medium for publication; it applies to online publication in the same way as the libel law, which originally applied to print, also came to apply to broadcast, when that came along as a form of mass media.

Rona Mackay

Dr Scott, could I have your views, please?

Dr Scott

Certainly. On whether there should be explicit reference to the online context, I concur: I do not think that that would be particularly advantageous. As Gavin Sutter suggested, we have seen the development of various rules in the common law and in the legislation that plainly speak to the online context but which might have some bearing on traditional forms of publication. Therefore, explicit reference to online publication is simply unnecessary.

On secondary publishers, I refer to what I said earlier, but there is an additional point that I would like to make you aware of. If you recall, I suggested that the bill does a good job in absolving secondary publishers of potential liability. That was also the position that the Law Commission of Ontario reached when it considered the issue. It rested its viewpoint on the work of two Canadian scholars called Emily Laidlaw and Hilary Young. Their proposal married the removal of potential liability from secondary publishers with the possibility of the imposition of a public fine on publishers if they fail to interact with the claimant and the primary author in the way that is described in guidance. That took away the liability issue, albeit it reintroduced the potential stick of public fining. That is definitely worth looking at.

Rona Mackay

That is helpful.

The Convener

James Kelly will ask questions about the defences that are provided for in the bill.

James Kelly (Glasgow) (Lab)

What is your view of the defences of honest opinion and publishing in the public interest that are set out in the bill? Do you have concerns, or are the defences adequate?

Dr Scott

In my written evidence, I raised a point about the defence of truth. I want to renege on that point, because I think that I was guilty of not fully reading the bill. I queried whether it was obvious or clear whether what was intended was a reiteration of the existing Scottish law or the introduction of something known as contextual truth, which is familiar in Australian jurisdictions. It is palpably clear that it is the former, which is fine.

However, a normative question is left open: whether a defence of contextual truth would be desirable. In that regard, I note that New South Wales has recently revised its defamation law. It has moved away from the uniform defamation laws that were introduced in Australian jurisdictions in 2005 as, it hopes, a precursor to the institution of similar changes elsewhere. New South Wales has sought to clarify its defence of contextual truth, which is defined in section 26 of the uniform Defamation Act 2005. It clearly thinks that contextual truth is a desirable facet of the suite of defences. The committee might want to look at that, although I would not necessarily propose such a measure.

What is really desirable is one of the changes that the bill would institute in the defence of honest opinion. As I mentioned earlier, formerly, in order to be able to defend an opinion or comment, a person had to be able to show that the underpinning facts were true or privileged. The bill extends that defence to facts that a person reasonably believes to be true. That is innovative and has not been done anywhere else, and it will help Scottish law to move away from the surfeit of technicality in this area of law.

Often, in the context of honest opinion, the debate is not about the validity or otherwise of the comment or opinion that has been expressed, but rather whether the underpinning facts were true. Depending on the factual circumstances that someone is speaking or publishing in, they may have no way of determining whether something is true. For instance, if I am blogging on something that I am watching on “Newsnight”, or that I read in The Times, I have no way of knowing whether, if pushed, “Newsnight” or The Times would be able to prove their case. I would be entirely reliant on the adequacy of their legal checks.

The innovation in the bill will mean that, if it is reasonable for me to adopt the position that what I am hearing or reading is true, I can express my opinion. That is precisely what we want journalism for—we want journalists to investigate matters of public importance, publish on them and thereby inform the public. We then want the public to communicate to one another what they have heard. That is the very basis of public information. The defence of honest opinion will allow that to happen to a much greater extent. It might be too great a defence for freedom of speech but, as I intimated earlier, it is something that I am happy to see. I can certainly see a counterpoint to that being raised with you but, for me, it is a really desirable reform.

11:00  

Gavin Sutter

I completely concur with Andrew Scott’s point that a defence of honest opinion, with an explicit reference to an honest mistake as the basis of that, is a good move.

Broadly speaking, I am in favour of all the defences in the bill. If I am nit-picking, as I mentioned in my written evidence, I am uncomfortable with truth being used in place of provable fact. I would much rather have a defence of fact in the context of a court deciding on the basis of the balance of probabilities, but that is a minor point.

There is an important minor point in relation to the public interest defence. It is a very good defence; it clearly reflects section 4 in the 2013 act but it is better laid out and clearer than the section 4 attempt to put Reynolds privilege on a statutory footing. The only thing that I would suggest is that the UK bill originally had the defence of

“responsible publication on a matter of public interest”,

but the word “responsible” was dropped in the final act. That is a shame, because referring to “responsible publication” hammers in the point that it is a defence for responsible journalists acting in the public interest, not an excuse for saying, “Well, we can’t do truth, we can’t do honest opinion, so let’s try this one out.”

The only other point that I would make on defences is to congratulate the drafters of the bill on how well they have laid out the offer to make amends defence, because that is important in helping to say to people, “Look, behave like adults—sort it out between yourselves.” If somebody has been unreasonable, it is useful for the other party to have that to rely on in court, where appropriate. The defence is wonderfully drafted, very clear and, in its clarity, far surpasses what remains in England under the Defamation Act 1996.

I have nothing else to say about defences at this point.

James Kelly

That is very comprehensive.

The Convener

Thank you. Liam Kerr has two questions; one is about malicious publication. Liam, do you want to ask your question about limitation at the same time?

Liam Kerr (North East Scotland) (Con)

Yes, I will. I have three questions around malicious publication, but I shall be appropriately brief. Part 2 of the bill is on “malicious publication”. The bill will create a court action for malicious publication to protect business interests. The serious harm threshold does not apply to malicious publication. In his submission, Mr Sutter specifically says that he is in favour of a serious harm test. If the committee is minded to agree with that, should a serious harm test apply also to malicious publication?

Gavin Sutter

That is the context in which the idea of a serious harm threshold originally arose. You might remember the McDonald’s Corporation v Steel & Morris case—otherwise known as the McLibel trial—which was the longest and one of the most expensive libel trials in English legal history and ended up in the European Court of Human Rights over the issue of inequality of arms and expenses. It is another case that links back to our earlier comments about cost being a factor that prohibits people from fighting cases, even when they have a good case. McDonald’s Corporation v Steel & Morris inspired the idea that a business should have to show a reasonable level of harm before it could bring a case. I would be very comfortable with applying the serious harm test there. There is an argument that it is more appropriate for businesses to protect themselves with a malicious publication action than with a libel action, but I would not go so far as to cut them off from libel.

Liam Kerr

I will ask Dr Scott my next question. If Mr Sutter takes a different view on the issue of serious harm, he can elaborate briefly on that.

I am interested, in particular, in Dr Scott’s comments about secondary publishers. The bill as it is drafted would exclude secondary publishers from liability for defamatory material. However, it appears that that may not be the case for malicious publication. Do you accept that? If so, is that a lacuna that requires to be filled?

Dr Scott

I confess that I have not paid particular attention to the area of malicious publication. On the serious harm dimension, I refer you to my earlier comments on the potential escalation of costs associated with it. From what you have said, that aspect sounds interesting, and I am curious that a different approach has been adopted. I would certainly want to interrogate that, but I am not personally in a position to do so.

Liam Kerr

Mr Sutter, do you have a view? If not, I will move on to my third question on this area.

Gavin Sutter

No—I have not specialised much in the area of malicious publication. I believe that the English equivalent is long gone. All that I can say at this point is that, if the provision is intended to be an alternative to libel as a way for businesses to protect themselves, it may have a different shape. If it is considered to be a very similar action to libel and you want it to be held to the same standards, uniformity in all aspects may well be preferable. I could not say more on that question without further research.

Liam Kerr

I am grateful. I direct my final question specifically to Mr Sutter. It is on limitation. There are differing views on the reduction of the limitation period to one year. Legal stakeholders seem to suggest that one year might be too short, while others take a very different view. In your submission, you support the reduction. However, it seems, from reading your submission document, that your argument has been cut off—at least in the version that I am looking at.

Gavin Sutter

Yes.

Liam Kerr

Would you mind delivering that argument now—as briefly as you are able to, please—to persuade me that one year is appropriate?

Gavin Sutter

Apologies—I am not quite sure what happened. Something may have been lost in the formatting.

As I said in my original submission, I approve of the measures—in particular, the reduced time limit for bringing a libel action. The speed of modern media cycles has rendered the old three-year period unnecessary, and any injustice that might otherwise occur with that shorter period can be addressed through the statute of limitations, which provides for judicial discretion to hear a libel case outside the normal limitation period if the court feels that that is in the interests of justice.

That happened about 10 years ago in the High Court. The singer Steven Patrick Morrissey was allowed to bring a case four years after the original publication, on the basis that he was aware of it at the time and wanted to bring an action but he was too busy being sued by other former members of the Smiths and losing a case on unpaid royalties, and he brought the case as soon as he could raise the funds to do so. The court actually allowed the case to go ahead—afterwards, it was settled. The case law would suggest that the bar for interests of justice is relatively low, and I think that it is reasonable to place that decision in the hands of the judiciary.

In some other jurisdictions, the one-year period would be considered quite long. I am reliably informed that in France you are allowed four months in which to launch your action if it refers to something that was mentioned in a newspaper, on the assumption that, if it was really going to damage your reputation to the point at which you would bring a case, you would kick off much earlier than that. I think that that bar is a little low, but a year seems like a reasonable time in which to make the decision to file suit.

The Convener

Thank you. That is helpful.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I want to return to the subject of court orders to remove material. We have heard some conflicting evidence on that, with some people expressing concern and some being in support of it. Media stakeholders, in particular, have expressed concern that section 30 of the bill would enable a court order for a third party to remove contentious material as an interim measure before a final decision on its defamatory nature had been reached. Do you think that interim measures are appropriate in this context?

Convener, this is my only question, and I am quite happy for the witnesses to answer it in any order.

The Convener

Let us go to Dr Scott first.

Dr Scott

I refer you back to the point I made earlier about the Bonnard v Perryman rule and the relative difficulty that it introduces for claimants having material taken down at an interim stage. As I say, that is a hedge in favour of freedom of speech, but it is beginning to be contested on a human rights basis, and the bare rule maybe does not allow for an appropriate balance between ECHR article 8 protection of reputation and article 10 freedom of speech.

It was accepted as legitimate in the case of Green v Associated Newspapers, in the Court of Appeal in about 2006. However, Strasbourg discourse has moved on since then. To me, the desirable position is very much publish and be damned, at least in this context, where we are talking about truth rather than the invasion of privacy.

Gavin Sutter

I tend to agree with Andrew Scott. In discourse in the UK, we have traditionally seen privacy and libel as representing different things—the public and the private persona, if you like. There is a justification from the Bonnard v Perryman position on the basis that with libel you have the chance to clear your name with on-going litigation, whereas with privacy, once it is out there, it is out there.

The only flag that I would raise is that it is not entirely unusual for that to be reached around in many cases. For example, the Beckhams famously took to court an ex-nanny who sold her story to the press. Although they later launched a libel action against her that they ultimately settled out of court, initially they were able to prevent much of the material from being published because they cited a confidentiality agreement in her contract. In some cases, therefore, there will be a reach around in the Bonnard v Perryman rule, which suggests there are more limits to it than it presents on the face of it, if there is an overlap with your defamation and potential confidentiality. Other than that, I do not think there is a problem.

It is reasonable to have that section in the bill, subject to the approach that it would only really be used when it is considered to be absolutely necessary and justifiable under the article 10/article 8 balance.

Fulton MacGregor

Thank you. That is helpful. I am happy with both answers, convener.

The Convener

The final question will come from Shona Robison, who has been waiting very patiently.

Shona Robison (Dundee City East) (SNP)

I want to ask about the Scottish PEN proposals—which I am sure you are aware of—for a new court action to provide protection from unjustified threats of defamation action. What are your views on that? Could we go to Mr Sutter first, please?

Gavin Sutter

I have not seen the full detail of the proposal, but I do not think that the key idea is unreasonable. It would seem to be a logical broadening of existing harassment laws, so that we would logically feel that, if somebody is harassed by threats of legal suit in bad faith, the law should prevent that in the interests of justice. I would therefore look favourably on the broad concept.

Shona Robison

Dr Scott, can I ask you the same question? Do you agree with the proposal in principle and do you think that it is workable in practice?

11:15  

Dr Scott

Again, I refer you to my earlier comments about the position in Ontario. I have not seen the details of the proposal either, but traditional concerns about measures of this type are usually based around article 6 and the right of access to the court. That is why the Ontario version places great emphasis on the effects—or the article 10 dimension, if you like—rather than motivation, which would be picked up by any requirement of bad faith, as Gavin Sutter said. That would be quite the norm in US versions of this law. Beyond that, I would just say that you should maybe have a comparative look at the position in law in Canada.

In general terms, however, it is highly desirable. If our concern is about the weaponisation of libel law and defamation, why not have a cause of action or response that allows you to directly respond to that perceived problem? I am all for it, if it can be made to work.

Shona Robison

Thank you. That is me finished, convener.

The Convener

That ends the questions for this panel of witnesses. I thank Andrew Scott and Gavin Sutter for their time and generosity today. I am sorry that we had one or two technical glitches along the way, but we got there in the end.

I suspend the committee for five minutes to enable a changeover of witnesses.

11:16 Meeting suspended.  



11:21 On resuming—  

The Convener

Welcome back, everyone. I welcome our second panel of witnesses: Mark Scodie, who is senior corporate counsel at TripAdvisor, and Ally Tibbitt, who is a journalist and director and co-founder of The Ferret.

I thank the witnesses for their written submissions, which are available on the committee’s web pages, and I invite each of them to make a short opening statement before we get into questions.

Mark Scodie (TripAdvisor Ltd)

TripAdvisor broadly welcomes the bill, which, as others have observed, tips the balance of Scottish defamation laws towards freedom of speech. From our point of view, that helps to reduce a potential barrier to consumer speech online, which in turn benefits any traveller who is based in, or coming to, Scotland, as well as travellers and business owners in the global travel industry and ecosystem as a whole.

TripAdvisor is the world’s largest travel website: it features more than 860 million reviews and opinions on 8.7 million places to stay, places to eat and things to do. TripAdvisor’s belief and experience is that the more travellers can share their experiences—good and bad—with the rest of the travelling public, the greater the benefits to all involved.

The vast majority of businesses that are listed on TripAdvisor understand that point well and see user review websites as forums where word-of-mouth reviews can provide some of the best advertising that they could ever get, while mixed or negative criticism equally provides them with swift insight on the things that they could improve.

In exceptional cases, however, some businesses respond differently to criticism: they can be unwilling to accept it and can react in a more adverse manner, the result of which can sometimes be that they attempt to have recourse to the defamation laws in one jurisdiction or another. Although they will sometimes go to solicitors or lawyers in the jurisdiction, they will sometimes go to online reputation experts to get them to clean up—supposedly—their online reputations. Defamation laws can be deployed as one of the weapons that we might see in action.

Against that background, we welcome some of the bill’s reforms, which redress some of the weaknesses that might otherwise be present under the existing Scottish legal position, not only for the consumers who write the reviews but for the online platforms that host that speech. We think that those reforms reduce the likelihood of travellers being cowed into self-censorship of what would otherwise be useful statements and public records of their own experiences of businesses that trade with the general public. Equally, they reduce the potential need for those who host such material online at great scale to make excessively cautious decisions to remove material that appears to be—as far as they can tell—perfectly lawful.

Specifically, we welcome the shortening of the limitation period from three years to one, in line with the English and Welsh position; the raising of the seriousness threshold; and the introduction of the serious financial loss requirement, which again mirrors what happened in England and Wales with corporates that trade for profit.

We very much welcome the introduction of the single publication rule, which would remove the otherwise somewhat unreal position that internet publications are infinitely actionable for ever.

Finally—although this might address a problem that was not huge in practice—we welcome the rule limiting the potential phenomenon of libel tourism in Scotland and tightening the rules on when the Scottish courts would and would not have jurisdiction. London has been shaking off its former reputation as the libel capital of the world by virtue of its own reforms some years ago. There has been some discussion of other places that might take on that role, such as the Republic of Ireland or Sydney. We welcome this attempt by the Scottish legislature to guard against that happening here.

Another strong positive is that we welcome the innovative and thoughtful attempt that is being made to pin down who is and who is not a publisher. In particular, section 3(4)(g) clarifies, in a way that I have not seen done quite so explicitly in other jurisdictions, that a website operator can moderate content in its attempt to be a responsible host of third-party speech and to not get put on the proverbial hook in defamation cases just by virtue, for instance, of cleaning up swear words or carrying out some other moderation process.

As to matters that might merit further discussion—

The Convener

I am sorry to cut across you, but we will get into all those issues in detail in the questioning, and we will definitely come back to that final issue in a few moments. Before we get into the questioning, does Mr Tibbitt want to make any opening remarks?

Ally Tibbitt (The Ferret)

I am delighted to be able to speak to the committee today, so thank you for inviting me. I think that the best thing that I can do at this stage is provide an introduction to The Ferret, because we are a relatively new, insurgent organisation.

We were established in 2015 to tackle the perceived decline in public interest investigative journalism. We are a co-operative, with nearly 2,000 paying members. We have places for our readers and our writers on our board, so we have quite a different business model from most media organisations.

Crucially, we are the first organisation in Scotland to adopt a Leveson-compliant independent regulator, which means that we are regulated to higher editorial standards than most of the press. We could get into the detail of why we did that, because it is important to the evidence that we will give later on. We also operate Scotland’s only independently accredited non-partisan fact-checking project.

We are large in numbers and large in impact. We often work with the printed press. Our materials have appeared in media from across the political spectrum, from The Guardian and The Scotsman to the Daily Record and The National.

However, we are still relatively small in turnover, and that might make us interesting to the committee. For example, we have had practical experience of the chilling effect, which I know that committee members are interested in. Even if we were to win a case that was related to a public interest story that we had been involved in, the legal fees would cost us about a fifth of our annual turnover. Fundamentally, that is why we are very keen on reform of defamation and why we have supported the public-specific campaign.

The Convener

Excellent. We will go straight to questions.

Liam McArthur

Mr Tibbitt has provided much of the response that I was looking for on the practical effect of defamation law as it stands on your organisations. Do you have anything to add, Mr Tibbitt, before I turn to Mr Scodie?

11:30  

Ally Tibbitt

Broadly speaking, our interest in this process is very much about reducing the cost and the time that is taken, and simplifying the process of dealing with disputes.

Obviously, our work can be controversial and can annoy rich people with thin skins—that phrase came up earlier and in previous meetings. We do our best to get it right, but there are disputes. Our written submission indicates that an arbitration process is available to independently regulated publishers, particularly those that are regulated by the Press Recognition Panel. That process is independently available to potential complainers and is set up to deal with defamation claims. We believe that the committee should consider building in some mechanism for incentivising and encouraging people to use those statutory arbitration processes as a means of cutting the cost and reducing court time for all the parties involved.

Liam McArthur

Mr Scodie, you alluded to what you hope that the bill will help to achieve in future. Could you set out more precisely what sort of effect the current defamation law is having on the way in which TripAdvisor operates and interacts with customers and clients?

Mark Scodie

As TripAdvisor is a global business and I help to support the business with legal matters in multiple jurisdictions, I have developed a sense of how the Scottish legislation compares with laws in other jurisdictions.

For instance, the three-year limitation rule means that if, at a given moment, a business wants to attempt to use legal levers to clean up negative reviews so that it is left only with positive reviews, it can go back disproportionately far into the past. If that worked, it could result in a real imbalance in the overall picture of consumer sentiment that is available on a review website. I should not overstress the scale of that, as it has not happened a great deal; from what I have seen, Scottish businesses, by and large, do not feel the need to have recourse to legal threats.

Moreover, the lack of a single publication rule means that it would be possible to go back even further than that. TripAdvisor is fortunate enough to have the resources to be able to consider such matters at a specialist level—it can use internal and external counsel—but a smaller website with fewer resources or less time to devote to such matters might be inclined just to remove the material altogether, rather than have what it might consider to be a disproportionate amount of stress and challenge over one piece of user-generated content.

Liam McArthur

Thank you—that was helpful.

Obviously, there is a balance to be struck between freedom of expression and the protection of reputation. The witnesses that the committee has heard from seem to have a common view that the bill shifts the balance more in favour of freedom of expression. We have not yet heard from the Scottish Government, but I rather suspect that that is a deliberate intent. In your view, is that balance now better struck in the way that the bill is structured?

Mark Scodie

I think that it is. I will flesh out a point that I made earlier, which relates to the notion that one avenue of potential attack on freedom of expression has been closed down. For years, a claimant lawyer’s method would be to identify anyone who was potentially liable for a given publication. Frankly, they would look to identify the weakest link in the chain. If someone’s primary aim is not even to get damages but is just to get some material taken down or deleted, they will try to find anyone in that group of people who might be liable and will attack the one who might be the least likely to put up any kind of resistance.

The fact that the legislature has very thoughtfully tried to close off attacks against a website that is perhaps moderating or only hosting content is an important shift in favour of freedom of speech towards those who wanted to speak in the first place.

Liam McArthur

Mr Tibbitt, I suspect that I know the answer to this question, but I will ask it anyway. Does the bill better strike that balance? Do you see it as a deliberate shift in favour of freedom of speech?

Ally Tibbitt

Yes, I hope that it shifts the balance towards freedom of speech.

However, Mr Scodie made an interesting point about pursuers going for the “weakest link”. That does not apply only to online, civilian commentators. One of the consequences of the current situation is that, in effect, it means that larger media operators with big pockets can afford to take risks that smaller operators cannot. That has implications for media diversity and competition because, in a way, the current situation supports the status quo, and that makes it very hard for new entrants to grow and develop without taking on proportionally more risk.

I come back to the idea of independent regulation and arbitration. One of our reasons for deciding to join IMPRESS is that it offered an arbitration process that we hoped would help to provide a mechanism to resolve things that did not involve a significant legal bill that would basically put us out of action in the event of a legal scrape. There is a temptation for people who are dealing with us to think that it is worth while sending us a legal letter, because they know that there is greater potential for them to be able to stop a story of ours coming out. That is because The Ferret could not take the risk, whereas a larger publisher could.

Liam McArthur

That is very interesting, and your answer leads me on to my final question, which is on pre-litigation letters. Witnesses on one panel described them as threats that are deliberately there to incentivise. However, the legal stakeholders whom we spoke with last week said that they are very much a part of the normal negotiation process and can avoid costly legal action down the track. Where do you stand on that, and do you think that those perceptions can be bridged? Mr Tibbitt, you have clearly been in receipt of such letters. What response did they elicit?

Ally Tibbitt

I regret that I cannot go into detail about some of them, for obvious reasons. However, I previously worked for STV—where I was a journalist—and many of the founding and current directors of The Ferret have worked for much larger media organisations. Our experience is very much that if you work for a larger organisation you are much more willing to dismiss that kind of thing and regard it as part of the normal rough and tumble of publication and the process of journalism.

I saw that the preliminary paper from the Scottish Law Commission said that there was no evidence of that kind of pre-emptive letter closing down publication. I assure the committee—or at least, I can provide evidence to the committee—that when you work for a small organisation and your livelihood is potentially on the line and you get those letters you do not take the risk, even when you have pro bono support. That is because not only your money but your livelihood is on the line, as is also, potentially—because we are a co-operative—the money that our members invest. We would be putting that at risk to publish one story. The approach has delayed and wasted our resource and prevented publication. That is very much why I am in favour of reform of the law and of any kind of reform that reduces costs.

Liam McArthur

Would you accept the argument that one would presumably want some form of pre-litigation process to exist, to reduce the likelihood of or the need for costly court action, and that some of that activity, however unpleasant it might be when you are on the receiving end, is an inevitable consequence of that?

Ally Tibbitt

Absolutely. There will always be the potential for disputes but, to reiterate what we said in our written evidence, that is why we have an independent regulator who can channel people into an arbitration process. That is where we would be keen to see the bill scare people or at least take account of the publishers that have such processes in place, because they benefit both sides of the equation, quite frankly. It is not just for our benefit; it is also for the other affected party.

Liam McArthur

Mr Scodie, can you comment on your experience of being in receipt of such letters or correspondence?

Mark Scodie

TripAdvisor receives many such letters from jurisdictions all over the world, every year—[Inaudible.] There are those which contain a specific legal threat and which frequently refer to defamation. Scottish ones are unusual, but they happen.

That process is really valuable. It is also valuable for those exchanges to have weight such that if the defending party sets out clearly and convincingly why the claim or the threat should end there, but the claim is pursued and that correspondence ends up in front of a judge, the judge should be able to act on that and it should have some ramifications.

Forgive me for not being up on Scottish procedure, but you will be aware that that is basically the principle in England and Wales. In other European jurisdictions, you can have it out in correspondence and it will not mean anything in terms of how the litigation plays out in court. The claimant party can just take another shot and ignore everything that you said and have a crack at it in front of the judge anyway.

Liam McArthur

That is very helpful. Thank you.

The Convener

Rona Mackay wants to ask about the serious harm test.

Rona Mackay

To follow on from Liam McArthur’s line of questioning, the serious harm test sets a threshold before someone can raise defamation proceedings. What are your views on that? Would such a test dampen down the number of pre-litigation letters, which have almost become par for the course?

Mark Scodie

The letters might continue, because you will always get people who feel affronted by something that has been said, and they will take a shot at framing a threat and getting the reaction out of you that they want. What matters, as the defendant, is your confidence in and your understanding of the available defences and how the available law is built.

My sense of the change in England and Wales is that it was certainly positive and it redoubled the confidence of hosts of third-party material that, just because something is negative, that does not necessarily mean that it is anywhere near actionable.

Rona Mackay

As a user of TripAdvisor, I am astonished at some of the comments that are on there. You talked about the number of defamation actions that come from England and you said that there are fewer in Scotland. What sort of percentages would that break down to?

Mark Scodie

There are the letters threatening such action and there are the things that actually turn into actions. In terms of things that become formal litigation—[Inaudible.]—it is absolutely negligible.

I have been with the UK subsidiary of the company for five years and I have experienced two or three things in England and perhaps one in Scotland, but that belies the number of legally—[Inaudible.] That is not helped by the phenomenon that everyone has heard of defamation but it is not widely understood. There are a lot of public myths—[Inaudible.]

That is one of the positive aspects of this bill because you are at least codifying things and putting many of the key—[Inaudible.]

Rona Mackay

Sure. So you believe that the serious harm test would benefit your business. Can you see Ally Tibbitt’s point that large companies such as yours, with large resources, can deal with threats and letters more easily than fledgling companies that do not have those resources?

11:45  

Mark Scodie

Yes—I emphatically agree with that. Someone with specialist knowledge in that area—[Inaudible.] Such a company could not afford to do anything like that.

Rona Mackay

Ally Tibbitt, will you give us your views on the serious harm test?

Ally Tibbitt

To reiterate what we said in our written evidence, I would say, as a non-lawyer, that anything that brings clarity to the thresholds that are being used will be helpful. It will certainly help journalists through the process of writing, researching and publishing. That is the key point, is it not? The bill will codify and help to—[Inaudible.]

Having listened to the witnesses on the previous panel, my concern is that the bill should genuinely raise the threshold, rather than apparently raising it, with it subsequently being interpreted in a way that remains quite generous.

Rona Mackay

How much of an impact do the letters that we are talking about have? How much does that inhibit the work that you do? It would be interesting to know what level that is at.

Ally Tibbitt

To be clear, we do not get such letters every week, but when they arrive—as I said—they have what feels like a very disproportionate impact on the business. We do not have lawyers on tap, as large organisations do. Although our staff have many decades of journalism experience between us, the issue is as much about the time and the capacity that it takes for us to deal with the letters.

In almost all circumstances, we would not move to publish something that we were not confident of. Nonetheless, as I said in my opening remarks, we were shocked and stunned to learn that the costs of defending an action—even if we won the case, and even with an element of pro bono support—could easily extend to more than a fifth of our annual turnover. That would be unsustainable.

Even if we receive one such letter per year, therefore, that essentially prohibits us from publishing a particular story, which could have a significant public interest.

Rona Mackay

Thank you—that is really interesting.

The Convener

John Finnie wants to ask about the so-called Derbyshire principle.

John Finnie

Good morning, panel. My question is for Mr Tibbitt, in the first instance. You said that you listened in on the previous session. The Derbyshire principle bans public authorities from suing for defamation. I am sure that many of those authorities are the very people that you want to inquire about. You will be aware that the profile of public sector services has altered greatly over the years, with many multinational corporations now delivering services.

The Derbyshire principle is about freedom of expression and the protection of individual reputation. The bill creates a definition—there is an exemption for businesses and charities—that excludes from the application of the principle a body that delivers public services

“only ... from time to time.”

Can you comment on the Derbyshire principle and how it is applied in the bill?

Ally Tibbitt

I echo what has been said previously. In many ways, it reminds me of the debate about extending freedom of information laws. We would strongly support any move that would essentially follow the public pound. We have been involved, for example, in investigating bodies such as the Scottish Futures Trust, which hands out a great deal of public sector money. It rapidly moves into private companies and quasi-private companies, which spend a great deal of public money but are not subject to freedom of information laws. The Derbyshire principle should follow the public pound wherever it goes, as a matter of principle.

John Finnie

The legal profession has voiced concerns that the bill broadens the scope of the application of the principle as it was previously understood, and highlights the potential implications for individuals, such as doctors or senior officials who are delivering services. Do you have a view on the application of the principle to individuals?

Ally Tibbitt

The principle that public money means public accountability is straightforward and should be applied as broadly as possible. I do not think that the committee will be surprised to hear me say that.

John Finnie

Indeed—I am not surprised. Mr Scodie, do you have a view on the Derbyshire principle and how it is applied in the bill?

Mark Scodie

I cannot think of any particular application of the principle from TripAdvisor’s point of view, so I would not add anything to what Mr Tibbitt has said.

John Finnie

You will be predicting my next question, Mr Tibbitt. Your media colleagues in Scottish PEN proposed that only companies with fewer than 10 employees should be able to sue for defamation, under the so-called Australian model. Do you have any views on that?

Ally Tibbitt

I am not a legal expert, so it is difficult for us to rule on, or have an opinion on, where the threshold should be set. As I said, I would fall back on the principle of public accountability. I am not entirely clear that the size or status of an organisation really matters. The principle should be that if you receive public pounds, you should be accountable, and the Derbyshire principle should apply.

John Finnie

Do you wish to say anything on that, Mr Scodie?

Mark Scodie

I have encountered the idea in Australian law that a company needs X number of people in order to be capable—or not—of something. It has always struck me as a bit arbitrary. You can be a small company with a small number of employees and still have an enormous effect on the world and on consumers. It is hard for me to draw the line.

The Convener

That is helpful. Annabelle Ewing wants to pick up on some of the comparative notes that have already been sounded.

Annabelle Ewing

Good morning to our witnesses. If you were able to listen in to our first session this morning, you will have heard me ask a couple of procedural questions. For the first question, I will go to Mr Scodie first. There is a pre-action protocol in England, which deals with media and communications claims in general and includes defamation claims. As yet, we do not have such a protocol in Scotland.

That would be a matter not for the bill but for the Scottish Civil Justice Council. However, it would be helpful if you could comment on the principle of having a pre-action protocol and how such a protocol works in practice.

Mark Scodie

As I mentioned, I might have a bias because I am an English and Welsh lawyer by training, but I will speak about what I have learned and experienced in other contexts as well as in respect of defamation and media claims. I have seen how things play out in other jurisdictions where there are no such laws; you end up ploughing straight into litigation, sometimes with no discussion or correspondence at all.

In many of the cases that TripAdvisor sees, there can be a frank conversation in correspondence about the rights and wrongs and the appropriate way to respond to a particular view. In my view, that is healthy. It benefits both TripAdvisor and the businesses that challenge us, because what would otherwise be meritless claims that would help no one frequently stop at the correspondence level.

The benefit of a protocol is that protocols are so prescriptive on all the key elements that need to be played out in correspondence. Above all, if people do not play by those rules, there might be ramifications in terms of costs. In my experience, and that of TripAdvisor, such protocols are a good idea.

Annabelle Ewing

Okay. Mr Tibbitt?

Ally Tibbitt

This is one of those questions where I must confess that I have no experience of the matter and am probably not qualified to have an opinion, so I shall pass.

Annabelle Ewing

That was an honest response—thank you.

Another issue that has been raised with the committee is whether the whole process could benefit from a special hearing, if you like, on the defamatory meaning of the words at issue. This morning, we heard how the approach plays out in England; it seems that it risks significantly extending the process, which perhaps was not the intention. What are your views on that, Mr Scodie?

Mark Scodie

I cannot draw on the experience that TripAdvisor has had on that niche issue; it has not played out through the extensive court proceedings that you heard about more broadly from the academics—I refer you to them. I am aware from my reading that there has been a great deal of litigation in England as the legal establishment has adapted to the 2013 legislation, but I point you to others to give you more detailed evidence.

Annabelle Ewing

Do you want to say anything, Mr Tibbitt? On the basis of your previous answer, I imagine that my question might also fall into the category of being a bit too processy.

Ally Tibbitt

I can confirm that I do not have much to add; the academics’ views are probably best listened to on the issue.

Annabelle Ewing

Okay. As our exchanges have been quite brief, I will ask one last question.

Last week, the committee heard concerns that some of the provisions in the bill are a bit like using a sledgehammer to crack a nut, given that in Scotland we do not have the problem of libel tourism. It was suggested that more account should be taken of the reality of the situation on the ground. Do the witnesses have any comments on that?

Mark Scodie

That relates to something that I mentioned earlier. I respectfully suggest that there is no harm in building in protections against things going wrong. If you want the rules to be built in a certain way, there is no harm in pointing them in the right direction. I have seen—and learned from my reading as I have tried to stay on top of the issue—that the centre of gravity of defamation claims that could be multijurisdictional has moved a bit away from London; some claimants are looking for other places where they could bring claims. If Scotland wishes to insulate itself against libel tourism, that is no bad thing.

Ally Tibbitt

I concur. We are primarily a digital publisher, and we write international stories. In the past, I have detected a perception—which has always seemed somewhat bizarre to me—that media policy in Scotland is not beset by the same issues as affect media policy in London and elsewhere. In the modern day, when almost any kind of media can be accessed from anywhere in the world, that seems a bit misplaced. I reiterate what other witnesses have said: if there is an opportunity to close a potential loophole that would allow people to sue or to bring in Scotland spurious cases that they would be prevented from bringing in other jurisdictions, it is probably sensible to close the loophole now. I am sure that the committee agrees.

The Convener

We turn to secondary publishers, whom the bill will exclude from liability in defamations. TripAdvisor is a secondary publisher. What practical difference will the exclusion make to your business? You have touched on the issue in general terms.

12:00  

Mark Scodie

It would probably add an extra element that could be called on when facing legal challenges in Scotland. It might not necessarily change outcomes, because if the defence came in, it would not exist in a vacuum. I know that you have already taken extensive evidence on the defence in the Electronic Commerce (EC Directive) Regulations 2002, which implemented the European e-commerce directive. There is a certain amount of dovetailing and overlap. To an extent, the bill would duplicate defences, rather than create new ones.

The bill—I would say that this is a material change—explicitly spells out the position that it has taken a while to reach under European law. On a very strict reading of the original hosting defence in article 14 of the e-commerce directive, if you touch content at all—if you have any involvement beyond being a completely blind technical operator—you risk being found liable of defamation, or any other wrongdoing through any other kind of tool.

I would think that it is very healthy, practical and helpful to website operators to be so clear. It is about not adopting the content, but hosting it and perhaps moderating it into something slightly more appropriate for the public, in one manner or another, that does not get you on the hook.

I add a word of context. There is the whole business of challenges to content. It is not just about defamation—there are other laws out there and other potential causes of action.

The exclusion is definitely helpful and will definitely be a positive influence, but it will not be a magic bullet that will change the balance of online speech.

The Convener

That is very helpful.

Ally Tibbitt, will the exclusion of secondary publishers have any impact on how The Ferret carries out its work?

Ally Tibbitt

It would bring clarity about who is responsible for what, which is very important. All media businesses of any scale, but particularly digital news businesses, often operate a distributed publishing model, in which they have a website—they obviously try to get people to read and consume content on their website—and they make extensive use of social media platforms.

The issue relates to the changing direction of those platforms—the committee will be familiar with the key ones. Anything that brings clarity, such as on the vexed question of who is responsible for moderating comments on YouTube videos or Facebook posts, or who is responsible for replies to tweets, is helpful. Twitter is changing its platform all the time, and now you can choose who replies to a tweet, so does that make one more liable or not? Anything in the legislation that clarifies the position on defamation will be the source of huge relief.

In my career, I have worked with various internal policies in different organisations. In one organisation, we decided that we could be held liable for anything that anybody said on any of our Facebook pages. The organisation had some of the largest Facebook pages in Scotland, so that was an absolutely terrifying prospect that almost made us reconsider whether we wanted to have Facebook pages at all.

Such decisions have an economic impact on businesses, because of the importance of those distribution channels for audiences. Any legislation that can clarify who is responsible for what, where, will be a great help.

The Convener

That is very helpful. Building on that, we know that the bill contains an additional suite of descriptions of what constitutes being an editor, for the purposes of defamation. I hear what has been said about there being other causes of action, but the bill is focused only on defamation, which is why our questions are focused on defamation.

According to the bill, moderating posts and liking or retweeting tweets does not make you liable under defamation law. I assume that you were saying in your answers that those clarifications are welcome. The question is whether there are any other aspects of online behaviour that should also be captured in the bill. That question is for Mr Tibbitt first, and I will come back to Mr Scodie in a second.

Ally Tibbitt

Speaking more broadly, I suppose that an interesting potential issue to address is the grey area between public and private that may arise online. For example, closed WhatsApp groups and private Facebook groups might have a large membership and be influential, but they are not necessarily—strictly speaking—public. In those cases, there is an interesting point to address about defamation. If, for example, The Ferret were to operate a private forum with 50,000 members and somebody said something defamatory in it, who would be responsible? It would probably not be us, because that would still fall under the secondary publisher rule. Nevertheless, the relationship between public, private and direct message harassment is not as black and white as people sometimes treat it.

The Convener

I was going to say that that is helpful, but I am not sure that it is, because there is a grey area that we might struggle to understand fully. However, thank you for that answer.

I put the same question to Mr Scodie.

Mark Scodie

Is it about ground that might not be covered in the definitions?

The Convener

Yes.

Mark Scodie

Nothing leaps out at me. The definitions are pretty broad and do pretty innovative and helpful things for users who share content that is not theirs but which they may redistribute and share to others using social media functions. The definitions offer wide protections for website operators, so there is nothing that I would add. In any case, there is future proofing in section 4—if some new behaviour arises because someone invents a new platform next year, section 4 has an expansion facility.

The Convener

That is helpful. In England, section 5 of the Defamation Act 2013 can be used to require secondary publishers to identify authors or to remove content. Do you have any experience of dealing with that provision? If so, what is your view of the process?

Mark Scodie

Section 5 does one clear helpful thing: it makes clear that, if the claimant is capable of serving process on the person who put out the content that has been complained about, they can take no action against the website operator. That is easy to understand, and TripAdvisor has been able to avail itself of that defence in cases in which that was true.

In other respects, section 5 has not been—[Inaudible.]—and has sowed more confusion than anything else. With the greatest of respect, if I have understood correctly, you have put the question in a way that does not reflect what section 5 does. Section 5 cannot compel anyone to do anything, ever; it created a new defence. If website operators do not behave in a certain way, as defined in the 2013 act and the regulations underneath it, they can lose that defence.

However, the circumstances might well be that a host of other defences are available anyway. The guidance notes from the Law Commission for England and Wales say explicitly that the website operator loses that one new defence. However, most commonly, the European defences under the e-commerce regulations might still apply anyway. From TripAdvisor’s experience and from reading academic commentary, I know that the defence in section 5 is largely being ignored by website operators and is substantially misunderstood by many claimants and, unfortunately, some claimants’ lawyers.

The Convener

That is very helpful, and thank you for correcting that. You have mentioned defences, which is the topic that James Kelly wants to ask about.

James Kelly

What are your views on how the bill codifies the defences of truth, opinion and publication in the public interest? Should any additional defences be outlined?

Ally Tibbitt

I am aware that the debate about particular definitions is quite technical and legalistic, but my understanding is that we are broadly in favour of what is in the bill. I am sorry that I cannot provide a more detailed response.

James Kelly

Mark Scodie, do you have any views? Bearing in mind your answer to the previous question from Mr Tomkins, do you think that the defences that are laid out are adequate, or are additional defences needed?

Mark Scodie

In so far as the bill sets out defences, the best thing about it, arguably, is that it codifies them and puts them all in one place. In order for somebody to understand from scratch some of the key defences that are available, they would not have to read case law and buy text books because it would be codified. That is similar to the English approach, and it is a positive measure.

Should anything substantive be added? I would not add anything to the bill, or to the commentary from the academic colleagues this morning. They said that the honest opinion defence had been expanded in a helpful way, and I echo that. I note, for this conversation, that it is not an exhaustive list of all possible ways to defend a libel action. Some of those necessarily exist in other legislation, such as the European ones that I have referred to.

The Convener

Does Mr Tibbitt have anything to add?

Ally Tibbitt

No.

The Convener

Okay. I am sorry—my connection suddenly froze and has now gone very slow, so I am struggling a bit. We will move on to Liam Kerr.

Liam Kerr

I shall be brief, as always. Gentlemen, I will take you to part 2, on malicious publication, from section 21 onwards. Mr Scodie was asked about secondary publishers. The bill would exclude them from liability for defamatory material, but it appears that that may not be the case for malicious publication. Is my reading of that correct? If so, do you consider that to be a lacuna that requires to be filled?

Mark Scodie

I agree; it is a potential loophole. It echoes the other essential lacuna that you referred to in a prior discussion, which is the mismatch in thresholds of harm that need to be passed. Lawyers tend to know about defamation. Claimants’ lawyers who know about defamation and have that in their toolkit will equally know about malicious publication, or malicious falsehood, which is the equivalent in the English context. Those aspects are learned about together at law school and they sit together in a lawyer’s toolkit. If a lawyer’s client has that problem, they are liable to reach for both.

TripAdvisor’s experience in the UK context, in one jurisdiction or other, is that claimants’ solicitors will try to throw both those things at you, and if there are kinks and inconsistencies those will play out. Therefore, I agree that, if there are to be improvements—reforms that promote freedom of speech—on the defamation side, those will need to be echoed in the way that you have been exploring on the malicious publication side.

Liam Kerr

That is very helpful. My next question is for both witnesses, but I will ask Mr Scodie to go first, given what he has just said. I do not know whether you saw last week’s session in which I suggested that the definition of malice might have a reasonably low threshold. Mr Scodie has just suggested that there is no serious harm—[Inaudible.]—in the section on malicious publication. Taken in the round, is it your view that businesses could use that to bypass the freedom of expression protections in the section on defamation?

Mark Scodie

That is a real risk. There are parallels. The English experience was that defamation claims became harder to bring, at least to begin with. A great deal of case law has been playing that out. One of the first things to happen was that the number of data protection claims rose. That is because claimants’ solicitors looked in the palette of available legal weapons to help their clients to get what they wanted and they started reaching for alternative causes of action.

I agree that you do not want malicious publication suddenly to become more attractive and to feature fewer hurdles for corporates who wish to make legal threats, even if they are just threats to employ the chilling effect that the committee has been hearing about in other sessions.

Liam Kerr

Does Mr Tibbitt have any comment on what we have just heard, or on my question?

Ally Tibbitt

I echo what Mr Scodie said. I think that we said in our written submission that we support equivalent provisions across the two areas, both for simplicity’s sake and to prevent exactly what we have just been talking about. People will go for the approach of least resistance, especially when they are looking to fire a legal warning shot across the bows of a journalist, for example. They will use whatever tools are easiest and appear to be most applicable with the lowest threshold that they can find.

12:15  

Liam Kerr

That is very helpful. I have one further question, which is exactly the same as the question that I posed earlier. Differing views have been taken on the limitation reduction to one year. Mr Scodie, in your opening statement, you said that you support the reduction. Off the top of my head, I am not sure of Mr Tibbitt’s view. If you accept that the reduction to one year is right, can either of you persuade me that one year is the appropriate limitation period?

Mark Scodie

In TripAdvisor’s experience, there is a constant influx of new reviews. At the beginning, I gave the committee statistics on the hundreds of millions of pieces of content that exist on the site, which have been accrued over the years. If an isolated review on its own, when weighed in its proper context of dozens or hundreds of other reviews, is said to have any material impact individually, that will be the case for only a short period of time, because it will eventually age.

Consumers are smart enough to know; they are smart enough to tell that a piece of content has got old. It might become stale with time, particularly if it has been replaced by fresher content as more people, who may have other points of view, contribute to the conversation. In that light, I wholly support moving from three years to one year, because claiming that any real damage has been caused by one review from three years ago, which has been subsumed by dozens or hundreds of other reviews, seems like an untenable position.

I echo something that the committee heard in the previous session. I understand that France’s limitation period is three months. That is the shortest limitation period that I am aware of. In other countries, there is still, in effect, an infinite publication rule as long as something is online. I suggest that one year is a realistic and sensible mid-point.

Liam Kerr

That is very clear. Does Mr Tibbitt want to comment on that?

Ally Tibbitt

If we are going for a serious harm test, the broad principle should surely be that the person who is affected by that serious harm would surely know about it within 12 months. In our evidence, we reiterated the point that you may wish to provide sufficient time for an arbitration process to take its turn. There might be cases for which you may wish to extend the time. If somebody was not happy with the outcome of an arbitration process that they had initiated within 12 months, would they be able to take the matter to court? That is worth considering.

Another thing that is worth considering about digital publishing in the round is that not all publishers are scrupulous, as The Ferret is, and have a clarifications policy. That policy requires us to add a note to the foot of digital publications. Digital publications are not like printed publications in the sense that they are very easy for publishers to amend from the date of first publication. A section on independent regulation that requires a procedure that publicly notes when stories are updated might be worth considering. One year should possibly apply to the last time that a digital story was updated as opposed to the date of publication at the top of the story. Members may wish to consider that.

Liam Kerr

I am very grateful to both of you.

The Convener

Our final two questions are from Fulton MacGregor and Shona Robison.

Fulton MacGregor

Good afternoon to the panel. I asked the previous panel about court orders to remove material and the conflicting evidence—“opinions” is probably a better word—that we have heard on that. Section 30 of the bill would enable a court to order a third party to remove contentious material as an interim measure. Mr Tibbitt, do you have any views on that?

Ally Tibbitt

We would not support any measure that would, in essence, be a pre-emptive rule. We would want to be clear that a serious harm had occurred before anything of the sort could happen.

Fulton MacGregor

I suspected that that would be your view. Has TripAdvisor had any experience of dealing with that sort of issue? What are Mr Scobie’s thoughts on section 30?

Mark Scodie

That has never happened in Scotland, but we have seen attempts to do that kind of thing in other jurisdictions. I would have in mind that, in most cases, individual writers of content who happen to have written a negative review—even though they might fervently believe that what they wrote is fair and based on facts—will, when faced with any kind of really aggressive legal challenge in which lawyers get involved and a court process kicks off, say that they do not want any part of it. They will say, “I stand by what I said, but I don’t want to get dragged into a court process; I’m backing away and I don’t want to touch this or have anything to do with it.”

I will not get into specifics, but one case—an aggressive lawyer’s approach against a lady who had written a review—ended up in the national media a couple of years ago. What the lady had written was perfectly defensible, but she not only took down the review when she faced the threat of a court order but killed her TripAdvisor account. Multiple, perfectly valid reviews that benefited other consumers were lost.

In the example that we are speaking about, the potential to get interim orders—perhaps even wherein the other parties who are involved are not represented—is dangerous. It is frankly asking for trouble to do it at all because it is laden with problems. Were it to be done, one would want real clarity about the thresholds that one needs to pass.

Discussions have been had on the Bonnard v Perryman rule against the power of restraint—the ancient rule from the English defamation law. I have not read everything—forgive me—but I assume that the committee must have received evidence on the effects of section 12 of the Human Rights Act 1998, which specifically touches on the thresholds that one needs to pass to get an interim court order to restrain publication. It says, in essence—forgive me if you know all this backwards, but I have it here—that

“No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.”

The test is different from the other kinds of tests that are applied in other kinds of legal dispute: the likelihood that needs to be established is higher. Subsection 12(4) of the 1998 act talks about the special care that needs to be paid

“to the importance of the Convention right”

—the European convention on human rights’ protection of freedom of speech and protection of public interest publications.

That law is there but one might at least want an explicit cross-reference to the high bar that ought to be passed before that sort of thing becomes possible. We have already had a conversation about creative claim employees who use all the tools at their disposal. Should that become a relatively easy, run-of-the-mill avenue, those people will be employed by those who want to close down on negative consumer speech.

Fulton MacGregor

There is good food for thought in that response from Mr Scodie. I think that I initially referred to you as Mr Scobie—I apologise.

The Convener

I have a follow-up question for Mr Scodie on section 12 of the 1998 act. It has been in my mind throughout this inquiry and I think that I put the question to the previous panel. I know section 12 of the HRA in theory. Has it made any difference in practice? Has the raised threshold, which you have just quoted, made any material difference to the way in which litigation has been enforced, won and lost?

Mark Scodie

Not to TripAdvisor. As someone who is here to talk about the TripAdvisor business, I have not seen it employed. However, it definitely happens, and I know from the wider background of my prior working life that it has been important in some of the case law debates around privacy injunctions. That is a different topic—a different species of publication litigation, court orders and so on.

The Convener

I apologise to Shona Robison—I got in the way of her turn to ask a question.

Shona Robison

I wish to ask about the proposals from Scottish PEN—I am sure that you are aware of them—for a new court action to provide protection from unjustified threats of defamation action. Do you have any views on those proposals? In particular, how workable might they be—or not—in practice? Could I ask Mr Tibbitt to respond first, please?

Ally Tibbitt

We would broadly support measures to prevent that kind of litigation. However, as with all formal court action, we would have concerns about the costs of accessing that kind of remedy. Although the proposal might work as a potential deterrent against people using the legislation just to deter publication, we would have questions about how accessible that would be for small publishers.

Shona Robison

I put the same question to Mr Scodie.

Mark Scodie

I confess that I have not read Scottish PEN’s proposal in detail—I apologise—but I have a couple of superficial thoughts about it. First, it may not be the only means of tackling the problem that it seeks to tackle. There may also be an answer in how the law on costs works, taking into account the costs ramifications of bringing a case that has no merit and what ultimately happens to pursuers in cases that should never really have started.

I cannot offer detailed insight here, but I know that there is a rough equivalent in trademark law. A counteraction can be brought for unjustified threats of registered trademark infringement. There may be some useful parallels there.

Shona Robison

Thank you—that was helpful.

The Convener

That was indeed helpful. The idea comes from copyright law, and the question that PEN is putting to us is whether that parallel should be drawn, lifting from the experience of copyright and intellectual property law into defamation. I think that that is entirely right.

I thank Mark Scodie and Ally Tibbitt for their very helpful and full evidence. This has been a very useful session for the committee.

That brings the public part of our meeting to a close. Our next meeting will be a week today, on Tuesday 15 September, when we will continue to take evidence on the Defamation and Malicious Publication (Scotland) Bill.

12:27 Meeting continued in private until 12:38.  

The Convener (Adam Tomkins)

Good morning, everyone, and welcome to the 21st meeting in 2020 of the Justice Committee. We have apologies from Liam McArthur.

Our first item of business is the continuation of stage 1 consideration of the Defamation and Malicious Publication (Scotland) Bill. I welcome our panel of witnesses, who are all attending the meeting online. Our witnesses are Professor John Blackie from the University of Strathclyde; Christopher Brookmyre, an author; and Campbell Deane from Bannatyne Kirkwood France & Co. I thank the witnesses for their extremely helpful written submissions, which are, as always, available to the public on the committee’s web pages.

I invite the panel to make short opening remarks before we move to questions.

Professor John Blackie (University of Strathclyde)

Thank you very much for having me to speak to you. Elspeth Reid, a professor at the University of Edinburgh, would have been with me today, as a great deal of our work is joint, but she is away on holiday, unfortunately, so it is me alone.

Can you hear me?

The Convener

Yes.

Professor Blackie

The bill involves policy questions, which of course are not for me, and technical questions. Our written submission attempts to address some of those technical questions and, at certain points, we provide suggestions for drafting of the bill should our submissions be accepted.

We cover the serious harm threshold and the question whether there should be a statutory definition of defamation. We also deal with malicious publication, the defence of truth—[Inaudible.]

The Convener

I am not sure whether it is just for me or for everybody, but Professor Blackie has frozen. While the technical wizards behind the scenes sort all that out—I thank them very much for their work—we will move to Campbell Deane.

Campbell Deane (Bannatyne Kirkwood France & Co)

I thank the committee for the opportunity to address you. I am delighted that my fellow witnesses include such knowledgeable figures as Professor Blackie and my current favourite Scottish crime noir author, Christopher Brookmyre. Unfortunately, I suspect that Christopher’s views on the topic differ from mine, so I hope that I will not appear in any of his forthcoming novels.

I approach this as a practitioner who, every day for 25-plus years, has advised a large part of the Scottish print media on pre and post-publication defamation issues. One of my quandaries is that although, on the one hand, the bill might benefit the print media, and although I am a huge advocate of the principle of freedom of expression, there is an imbalance in the bill when one puts on the pursuer’s hat, particularly in relation to serious harm, which I suspect that we will cover as matters progress.

In short, there is an imbalance. I am sure that the committee has been hearing phrases such as “thin skin and thick pockets” when it comes to trying to stop the publication of various stories. I am not personally aware of that, despite having acted for the media in this regard on a daily basis for a considerable period of time, so my view is that that hand might have been overplayed.

The Convener

That is helpful. We will certainly come to a number of those issues in our questions. Before we do, I bring in Christopher Brookmyre for any opening remarks that he wishes to make.

Christopher Brookmyre

I thank the committee for inviting me. I am here as much to learn and absorb as to contribute, because the legal side of things is far from my area of expertise; I primarily deal in lies.

The Convener

That is tremendous—thank you very much.

We have about an hour and a quarter for questions. We will focus our first questions on Mr Deane and Mr Brookmyre while we try to resolve the issues with Professor Blackie’s connection.

Mr Deane, for the benefit of the committee, will you explain how Scots law currently operates to protect privacy and, in particular, what role defamation might have to play in Scots law in the protection of privacy?

Campbell Deane

Those are interesting questions. The privacy arguments are slightly different from the defamation arguments. Although a similar article, privacy involves the question whether an individual has a reasonable expectation of privacy.

There is little Scottish case law on that particular topic. In a similar way to defamation, we tend to head south and cherry pick the law in England that is compatible with the law in Scotland. It flows from the European convention on human rights, so the convention rights are applicable across the board, in theory.

The position on how we consider whether something is defamatory in Scotland comes down to the classic Sim v Stretch test for a reasonable ordinary reader and whether what has been said is likely to lower an individual in the “estimation of right-thinking” people.

Privacy does not work on that basis, predominantly because once the cat is out of the bag and something has been published, the privacy has to all intents and purposes flown off.

The Convener

In your opening remarks, you said that the bill represents something of an imbalance, but you did not specify what the imbalance is. Do I take it from that—I do not want to put words in your mouth, so please correct me if I am wrong to impute this—that you think that the bill shifts the balance too far in favour of freedom of expression at the expense of the protection of the right to privacy?

Campbell Deane

Yes, I think that. Having acted—and continuing to act—for newspapers for 25-plus years, I find it quite difficult to be adopting this position and thinking to myself, “Hold on a minute—let’s roll back freedom of expression.” That does not sit right with me. However, that is the view that I have formed.

When the bill was originally talked about, I wrote an article about what is in it for the pursuer. The answer to that is nothing: there is nothing in the bill that would assist a pursuer to litigate. That is not a call to race to litigate in relation to defamation, but it seems that hurdle after hurdle is now being put in play, which achieves very little, apart from potentially increasing expense.

The Convener

Mr Brookmyre, in your professional career as an author, have you had any encounters with defamation law? Do you think about it at all when you are writing or publishing? Has there been any direct or indirect chilling effect, for example, on your freedom of expression as a published author?

Christopher Brookmyre

It is difficult to retrospectively assess the extent to which one self-censors because of the potential for problems.

Twenty-five years ago, I started off writing more overtly satirical fiction in which there were often quite grotesque parodies, not of identifiable public figures, but certainly of identifiable behaviours and attitudes. At that point, I always felt that I was protected by the law of fiction and the fact that my characters were often amalgams of individuals. However, I am conscious that, at times, there is a danger that someone might identify themselves too closely with a fictional depiction. I am perhaps conscious of that only because I do not want to cause a problem for my publisher and I do not want my books to get bogged down in litigation. I cannot point to many concrete examples of fictional works that have fallen foul of defamation law, so I admit that my concern may not always be rational.

I am conscious at times that I am changing things or holding back because I am concerned. In my case, the figures who have most bothered me are public figures who would be most likely to object to a particularly grotesque depiction of attitudes that they might identify themselves with. It is hard to gauge the extent to which I could argue that there is any chilling effect on my work that is borne of more than my natural cautiousness.

The Convener

You mentioned your publisher. I might be about to ask you a question that you cannot answer, but have your publishers ever put any pressure on you to increase your consciousness of the likely liability should you inadvertently offend someone in your work, or do you feel, on the contrary, that you are already quite well supported by your publishers?

Christopher Brookmyre

I have been well supported by my publishers on some of the creative decisions that I have made. However, on occasion, I have received editorial notes saying, “Can you change this because we might be laying ourselves open?” There are times when I have thought that that was a ridiculous concern, because my depiction was too grotesque or it was clearly meant as a joke. In recent years, however, I have noticed more and more that I receive editorial notes asking me to change something so that it is not too obviously identifiable with a particular individual, institution or company.

I have had to change the names of fictional companies because they sounded a bit too much like an existing company or organisation, even when the company or organisation was not in the same field. My publishers seemed wary of mischievous or opportunistic litigation. I defer to my publishers’ paranoia over my own, because they will have more experience with those issues and will be talking to lawyers about what might be actionable.

It could come down to individual editors. Sometimes, I receive a lot of editorial notes saying, “Please be wary of that” or “Can you change the character’s name, because it sounds too much like someone else?” I had to change the name of a major character in my novel “Fallen Angel”, because it sounded too much like a real person. Given the crimes that the character was going to be depicted as committing, we did not want to claim that there was any overlap. The person worked in the same field, which made it more likely that I would have put myself in jeopardy of an accusation that I had intended a comparison with the real person.

The Convener

That is very helpful. I will bring Professor Blackie back in a moment and then I will move on to Annabelle Ewing. Please could all members and witnesses not try to control their microphones or cameras as that will be done centrally?

Professor Blackie, I do not know whether you were able to hear what Campbell Deane said, but do you think that the bill threatens to undermine the way in which Scots law protects privacy or reputation?

10:30  

Professor Blackie

Those are different questions. Privacy is a question of interference with private life. The modern law is, of course, derived from article 8 of the European convention on human rights. England did not, in fact, have a privacy law until it became influenced by that; arguably, we did. Privacy, however, is about interfering in someone’s personal sphere. Defamation, today, is not about that—it is about reputation and the consequent impact on the person where reputation is affected.

I suppose that it would have been possible to reconfigure the whole law so that privacy and defamation were dealt with in the same legislation, but I do not think that that is what we are doing, nor do I think that that would be appropriate just now.

The Convener

Annabelle Ewing wants to pick up on a number of those themes.

Annabelle Ewing (Cowdenbeath) (SNP)

Mr Deane has fairly unequivocally concluded that the bill does not strike the right balance between freedom of expression and the right to protection of reputation. As far as the key elements of the bill are concerned, what would need to be amended to bring that balance into play?

Campbell Deane

As I perceive it, the main issue is the question of serious harm. I believe that, by introducing that extra barrier, you would be putting a hurdle in the way of a litigant who may well have a perfectly good right of action. You would be forcing them to prove—and, as far as I can see, it will be for them to prove—that they have been seriously harmed by the event.

In a personal injury action, for example, you would not turn around to someone who was involved in a road traffic accident and say, “Well, you only broke your leg—you didn’t have to get it amputated. Therefore, we’re not going to give you any damages.” Why should someone who has been defamed not have the ability to go to court and say, “My reputation has been damaged. I have suffered harm. Why should I have to prove that that harm is serious?” There is no doubt that that will involve cost on both sides, to prove or defend the position that it is not serious harm. That is where I think that the balance primarily falls down in relation to the bill.

No one has said or been able to explain to me how freedom of expression will be improved by the introduction of serious harm. If anything, it is arguable that journalists will take a slightly less responsible attitude and not qualify for the previous Reynolds privilege defence of responsible journalism, because they can work on the premise that, “This isn’t going to seriously harm them. We’ll just take a nibble at them and cause some damage.” That is the issue that concerns me most.

Annabelle Ewing

That is a clear exposé of what you say is the key element of the bill that would merit being looked at, certainly from the pursuer’s point of view.

I was interested to hear Mr Brookmyre’s answer to the convener’s question. He is not a lawyer, but from his position as a writer, does he have a great expectation that the bill, even if enacted in its current form, would have any particular impact on how he approaches his writing? Does he have any expectation that his publisher would be any less cautious in its approach as he has described it?

Christopher Brookmyre

I am not convinced that the bill would have a great impact on how I write, for the reasons that I just outlined.

A writer of fiction is perhaps less wary of the dangers of litigation, because that is a very different sphere to writing journalism, which purports to be fact and to represent the truth. When working on fiction, a writer is always creating a simulacrum of modern reality, and people interpret it in that way. They know that the writer is not necessarily saying that something is true, but rather that that is what they think the world looks like and they hope that their readers will recognise it.

I appreciate why there is a need to update the law and to clarify certain points, but such finer distinctions will not have an impact on my point of view as a writer. I cannot speak for how my editors would interpret such matters but, given that most of them tend to work in publishing in London, I suspect that the extent of the attention that they are paying to the bill is not vast. For example, the lawyers at my publisher, Little, Brown Book Group, would be more concerned with the implications for the non-fiction books that it might publish, such as biographies, autobiographies or memoirs and so on.

I have to admit that the realm of fiction is quite rarely damaged by defamation issues. It often offers an opportunity to write about characters in an unflattering way but, for obvious reasons, people are reluctant to say, “Hey, you know that really unflattering depiction? That’s me.” Certainly in my experience, therefore, written fiction is not an area that has been massively damaged by such issues. Perhaps that is just because of its format, though. I could understand that, by its nature, fiction in the form of a stage play, a film or a television programme might be more impacted upon, and that producers of those formats might be more wary of the legal ramifications, but, fortunately, written fiction seems to have been comparatively well protected from them. I cannot think of an instance of an author being sued over a fictional depiction of an individual.

Annabelle Ewing

That is interesting. Thank you for that.

Perhaps I could ask Professor Blackie about a broader issue. The other week, the committee heard from witnesses—from the Faculty of Advocates and a lawyer in the field—who suggested that the approach that is being taken in the bill borrows heavily from that which has been taken down south. However, we do not have the same issues here in Scotland, so it was suggested that the bill is a solution to a problem that does not really exist here. Could you comment on that general proposition?

Professor Blackie

I agree with that, but I would like to add a bit of precision on what is meant by it.

In the work that the Law Commission did on the law in England and Wales, the first reason that was given for having the serious harm requirement was that it was felt that large players were using the lack of such a thing as a way of getting too much power. However, the question of libel tourism then arose; people wondered whether such parties would come to Scotland if we did not have provision for it in our law. There is absolutely no sign of that happening, and we are now nearly seven years on from the passing of the English act.

My second point is that there was a different background in English law anyway, before the act. That is because, in England, there is a distinction between slander and libel. In actions for slander, which is oral defamation, particular financial loss had to be proved, whereas in actions for other types of defamation, it did not have to be proved. There was therefore a muddle in the law in England, which the commission wanted to sort out. However, that is a muddle that we do not have.

Then there are questions about complexity and cost. To understand those, we have to consider two elements. The first is what exactly the reality is on the ground in Scotland, which is what the Faculty of Advocates referred to. If we look at our reported case law—although, of course, it is not an absolute guide to all the claims that have been made—we can see that most claims here are made by ordinary members of the public, and a high proportion of them are not made against the media. In recent years there have been several well-known examples. In one, a member of the Scottish women’s curling team raised a claim against her coach for defaming her by saying that she had refused to play in a match. That really was not a media case at all. There are many other similar examples.

My view is that we do not have the same problem here, but the question of the nature of the test also comes into it. If we look at the approach to a number of claims in Scotland—three that have been made since 2007 are mentioned in our joint submission—we can see that the Scots courts will not allow claims to proceed or to succeed where the evidence shows that the statements that were made were basically banter. Our test for defamation is much more flexible than that in Sim v Stretch “cold”, if I might put it in that way. The effect of section 1(4)(a) is that the court will apply that in a hidden way. If a claim is really ridiculous, the court will not allow it to succeed or proceed.

In every respect, therefore, I think that we do not need a statutory definition. I believe that having such an approach would cause extra expense. Yesterday, I had a quick look at last year’s and this year’s reported cases in the English courts in which that question was raised. In a very high proportion of those, there had to be lengthy proof of fact and the defence was successful in saying that the claim met the serious harm threshold. However, that approach adds considerable expense, because people cannot readily make claims without proof of the facts on the extent to which their reputation was harmed.

In Scotland, we have always been able to deal with such matters in written pleadings without hearing any proof of fact at all. That would be a problem if we were to have a serious harm test. It would put up costs, and there seems to be no point in doing that.

Finally, our general law of delict, which includes all legally imposed civil liability, contains a principle called the de minimis rule, which states that trivial defects cannot be sued for, anyway.

On all those grounds, I feel that a serious harm test would not be appropriate for us, in our context. I agree with the faculty’s view, and those are the specific grounds for my doing so.

Annabelle Ewing

Thank you very much, Professor Blackie, for that extremely comprehensive answer.

Lastly, I have a brief question for Mr Deane. On the general theme of barriers, costs and so on, when the committee has previously taken evidence on pre-litigation correspondence, some witnesses have expressed the view that it is intimidatory and should be prohibited, but others have said completely the opposite. What is your view?

10:45  

Campbell Deane

I do not think that someone should be prevented from writing—or instructing an agent to write—a pre-action letter to preserve their rights.

However, there are two separate ways of looking at the issue. As a general rule, letters that come into newspapers are quite helpful to lawyers who provide pre-publication advice, because they can analyse them and say, “Hold on a minute. They are making that particular point, but we haven’t got that buttoned down at all. Let’s go and have a think about it.” That is responsible. Other letters, though, are, quite frankly, couched in such terms that lawyers know that nothing will ever happen as a consequence of them. However, I cannot see how someone should be penalised for trying to protect their rights. That just does not sit well.

The type of letter that causes most problems goes not to a newspaper but, for example, to an individual who has posted something on Facebook and who is told that unless they remove it now the sending lawyer’s client will sue them. That happens, and it is done because the person who has contacted the lawyer to write that letter believes that they have a genuine grievance. I would never issue a letter that was being sent with no intention to take matters any further and was simply a threat. That would just cheapen my brand as a lawyer. If a lawyer is not prepared to follow up such a letter, they should not write it. At the outset, they need their client to confirm that they are willing to go through with action. I would not want to write to someone simply to put them on notice.

Annabelle Ewing

Okay. That is very interesting. Speaking as a lawyer—I declare an interest as a member of the Law Society of Scotland, although I do not currently practise—I recall that there are practice rules about matters such as writing spurious letters that are clearly not based on anything that might go anywhere. Perhaps that presents a different angle on the issue.

Campbell Deane

In Scotland there is certainly no pre-action protocol on writing such letters. However, a letter that a lawyer writes in such a situation will always contain a line that says, in effect, “Go and get separate legal advice on this. Don’t take our word for it—go and speak to a lawyer.” That is so that the recipient at least has the opportunity to be apprised of matters and does not just have the wool pulled over their eyes.

The Convener

Rona Mackay was going to ask about the serious harm test. I am not sure whether you think that that has already been covered in what we have heard so far.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

I have just a couple of quick questions on that, because it has been covered quite extensively.

First, I ask Mr Brookmyre whether he thinks that he would be better protected as an author if a serious harm test were to be introduced in the bill.

Christopher Brookmyre

I really do not feel qualified to answer that; I cannot break down the hypotheticals to think about it. If the particulars of a proposed law are difficult for me to comprehend, it is even harder for me to imagine that they would have much of an impact on how I practise writing fiction.

Rona Mackay

Okay, thank you. That is fine.

I ask Professor Blackie whether he can envisage scenarios in which someone might not be able to proceed because of the serious harm test. Would meeting it be difficult for a pursuer to prove?

Professor Blackie

Yes, I can see examples of that. One of the most obvious examples is that if the case is resisted on that basis, the pursuer would have to go to the expense of collecting further evidence at an early stage, at great cost, and if there is a powerful and well-funded player on the other side, it might cost more money. That seems to me to be the first problem.

The second problem is that in Scotland, many of the cases are not against the media, but are about small things—to do with the internet, increasingly—and what people really want is to vindicate their reputation. It is not about the money; it is about vindicating reputations. The test will present considerable unnecessary barriers and expense.

Rona Mackay

I take it from what Mr Deane has said that he agrees with that. Do you think that there would be people who would be unable to proceed because of the threshold?

Campbell Deane

The point that Professor Blackie makes about it not being about the money is incredibly well placed. When we issue pre-action correspondence, we ask for various things: for the material to be removed, for an undertaking not to do it again, and sometimes for proposals in relation to payment of legal costs. It is usually something along those lines. The vast majority of people are content if the article or statement is then removed. That is it; that is all they want. They simply want rid of it.

I can see situations in which the cost element could get out of hand. One example would be the recent Stuart Campbell v Kezia Dugdale case. Would Kezia Dugdale have succeeded in relation to there being serious harm, if that test had been in play? If we look at Sheriff Ross’s determination before the case went to the inner house before Lord Carloway, the sheriff granted Stuart Campbell—in the event that he had succeeded—damages of £100. That could not be considered serious harm. However, to get to that stage of arguing that his reputation had not been damaged or had been damaged only to that extent would have involved at least two days of proof, which would cost a lot of money.

Rona Mackay

That is interesting.

The Convener

We will come back to Rona Mackay in a minute, but first John Finnie has some questions on the Derbyshire principle.

John Finnie (Highlands and Islands) (Green)

Section 2 of the bill would create a statutory version of the principle that, in general terms, public authorities are not able to sue for defamation. I put the question first to Professor Blackie and then to Mr Deane. Professor Blackie raised the issue in evidence and suggested a different approach and, helpfully, offered a particular form of words. Can you speak about that part of your evidence?

Professor Blackie

The Derbyshire principle is a good one. Professor Reid and I do not object to it. However, it is important to understand what underpins it. What underpins the Derbyshire principle is its being appropriate that political debate takes place, and not the use of the courts. In Derbyshire County Council v Times, it was found to be appropriate that when someone disagrees with the council’s decisions or behaviour as an institution, that is for politics, that politics should be unfettered in argument and that there should not, therefore, be defamation action.

The question is then about which public authorities should be able to rely on that. The guiding question should always be to ask where should things always be left to politics. That is what I have attempted to address in our written submission. As it currently stands, the relevant section is extremely difficult to read and results in several things being potentially unclear. Those boundaries matter.

In asking the question, I go on to deal with several classic issues, including state schools—in England, the law on that is unclear—universities, charities, public utilities and businesses that are owned by public authorities. We are trying to give clarity. It is not satisfactory to leave clarity to ministers doing things by regulations, which—with the best will in the world—could result in an enormous list without the principle behind it being clear. I hope that that is helpful.

John Finnie

Thank you, it is indeed helpful.

Mr Deane, you also allude to problems with drafting, particularly in relation to section 2(5) and the issue of personal capacity. Can you speak about that, please?

Campbell Deane

I think that everyone understands the general Derbyshire principle. It is something that we are taught at the outset in respect of giving advice about defamation. My concern is that we are trying to legislate ourselves into difficulty. More than anything else, there is probably a need to refine the drafting. Section 2(5), for example, tries to separate the public from the private. I struggle with the language in that section, because I cannot fathom where it goes.

I understand the purpose of what is trying to be achieved in the drafting, but the problem is where we draw the line when the public veers into the private or the private veers into the public. If we are acting in relation to a politician who does something in his private life that affects his political position, is that personal capacity or political capacity?

John Finnie

I am sorry to interrupt, but do you believe that this is clouding something that is clear at the moment?

Campbell Deane

I do not know how clear it is at the moment in that I am not aware of any litigation in recent times where the Derbyshire principle has come up so that we could say that we do not know where we are with it. The principle itself is very straightforward. The difficulty arises when we consider private companies that are part of public bodies or the line between personal capacity and private capacity. There are probably two solutions: either we leave it alone, because people understand the general premise, or we refine the drafting so that it is very clear what it is trying to achieve.

John Finnie

Thank you.

Mr Brookmyre, I note that you have said on more than one occasion that you are not a lawyer, but would you comment in general terms on the principle of public authorities not being able to sue?

I have a further question, for which I will go back to the other two gentlemen. Scottish PEN proposed that only companies with fewer than 10 employees should be able to sue for defamation—the so-called Australian model. Do you have views on that?

Christopher Brookmyre

As a writer of fiction, I would always reserve the freedom to give my impression of how an institution, authority or company is conducting itself. Within the realm of fiction, a writer will sometimes create a parody or grotesque exaggeration of that, because it is sometimes necessary to blow up unpalatable aspects in order to draw attention to them. Necessarily, you are going to create a depiction that is particularly unflattering if you are drawing attention to something that you think is wrong.

11:00  

John Finnie

Could that apply to a public authority as well?

Christopher Brookmyre

As a layperson, I do not see why a public authority should be able to have recourse to defamation law to remedy that. To me, it goes back to the principle of any kind of body being allowed to be treated as an individual—much wrong has come of that principle. It is slightly cowardly to be able to say, “We as an organisation are being defamed by your depiction.” Individuals should be accountable for their behaviour, and accountability for corporate behaviour should be on the basis of individuals’ collective behaviour.

My instinct, admittedly from a position of legal ignorance, is to be uncomfortable with the idea of a local authority or public body having recourse to defamation proceedings as a means of deflecting criticism.

John Finnie

Professor Blackie, do you have a view on the suggestion that action should be open only to organisations with fewer than 10 employees, which is the so-called Australian model?

Professor Blackie

I think that that model is inappropriate. First, that is akin to using a sledgehammer to crack a nut that does not exist in Scotland. The background is the famous case where McDonald’s in England pursued a couple of people who ran a campaign against it. However, 10 employees is not a big, nor even a medium-sized, business in Scottish terms. The Scottish economy has an enormous number of businesses that are of that kind of size.

There is a control on business defamation, which is that businesses have to prove financial loss at least in the broad sense, not specifically how much money has been lost. A business is not like an individual, so the Australian model is inappropriate for the Scottish context. The Scottish Law Commission did not raise that in its work and it has not been researched. We would need—

John Finnie

We appear to have lost Professor Blackie again. Could Mr Deane comment on the Australian model?

Campbell Deane

I share a similar view to Professor Blackie. He picked up on a point before his connection was lost that I will make, which is that it is not easy to establish loss as a corporate body. I was involved in a case about five or six years ago at the Court of Session when it was spectacularly difficult to show any loss whatsoever, despite the company going through its accounts and bringing in auditors. That is the level of detail that a company needs to make a case.

The recent case involving Andy Wightman MSP was raised by the Wildcat Haven community interest company. One of the many reasons why it failed was that it could not prove any corporate loss, as that is not easy to do. Corporations do not have feelings as individuals do, so corporate loss is the only thing that they can sue for.

The Convener

I have a follow-up question about the scope of the Derbyshire principle and the way in which the principle is legislated for in section 2. Professor Blackie said that the principle that underpins the Derbyshire rule is to insulate the political and democratic process from any threat of a defamation action being raised by somebody who is elected. Does Mr Deane agree with that, or is the principle to protect the provision of public services more generally, irrespective of who provides them, from the law of defamation? What you think that the Derbyshire rule is trying to achieve will determine how you think section 2 might be amended and improved.

Campbell Deane

I think that it is the former. The principle is to stop people doing that in the political sphere. I suspect that this is not a difficulty now, but the difficulty arises when an individual who is part of an organisation is funded by the organisation to raise defamation proceedings. If the chief executive of a local authority is defamed by a paper or a third party, and the local authority says to the chief executive, “We’ll fund this for you; don’t worry,” that becomes an abuse of process, because the individual is having his funding paid to get round the Derbyshire principle.

The Convener

That is very helpful.

Rona Mackay

I would like to ask about secondary publishing and the wider issue of online behaviour. As a former sub-editor, I was slightly alarmed that Mr Deane suggested in his submission that a sub-editor could be liable for content. I am a bit confused by all of this. Would the publisher, the author or the editor be liable? Could you clear that up?

Campbell Deane

I may be going a little bit too far in my submission. If an editor tinkers with a statement, for example, as sub-editors are known to do occasionally, they have created the statement and become, for all intents and purposes, an author or an editor in that situation, and they therefore—[Inaudible.] I suspect that that is the law as it stands. When I say that what I wrote may be overstated, that is what I mean. There is an argument that, if you wanted to go against an author, an editor or a sub-editor who had changed a piece of copy, you probably could, but I suspect that it is quite unlikely that that would happen. You would have to be a rather vindictive individual to go against those people as opposed to going against the title.

Rona Mackay

Does Professor Blackie have an opinion on that?

Professor Blackie

I agree with Mr Deane that the law is as he says it. There will always be a problem with secondary publishing. If we take the simple example—not the one that we are talking about—of somebody putting something online and somebody else picking it up and putting in online again, that is the background to the question of secondary publishing. Elspeth Reid and I did not make any comments on the issue, because I have not studied that area of law in very great depth. It is not just about the media, so fine tuning might present the kind of difficulty that we are seeing. By the way, it seems most unlikely that a sub-editor would be sued as an individual.

Rona Mackay

Out of interest, Mr Deane, do you target any secondary publishers when you act for pursuers? Have you had to do that?

Campbell Deane

No, not as a general rule. However, particularly in situations in which clients make contact because something has been published online and there has been a ripple effect whereby other people have picked it up and it has gone down the chain, the sad reality is that the first question that one has to ask the client is which of those people has any money. That is the economic reality of litigation.

If the client wants to litigate and fund a defamation action, that is great—let us go ahead and do that—but they will get a Pyrrhic victory if, at the end of the day, there is no money to pay for costs. I can see where it is in their interests to cherry-pick down the line and I can, therefore, see why that particular piece of drafting is helpful. It stops that taking place.

Rona Mackay

That is interesting.

Mr Brookmyre, should bookshops—real or virtual—be protected from liability for defamation for reproducing content?

Christopher Brookmyre

Absolutely. In a world in which the likes of Facebook and Twitter seem to be exempt from responsibility for what is published on their platforms, and with the sheer volume involved—we probably all saw many pieces a couple of weeks ago about how 600 books were published on one day—the idea that bookshops should have responsibility for having even sufficient knowledge of what they are putting out for sale is completely impractical. It is absurd to suggest that there should be a responsibility on bookshops.

Rona Mackay

Thank you. I will widen out into online behaviour and ask all of you, starting with Professor Blackie, whether you think that the bill goes far enough in its emphasis on online content. Should more emphasis have been placed on that aspect?

Professor Blackie

I think that the bill goes far enough. The difficulty in legislating in this field is that the online world is moving all the time. The danger would be that, if you do anything more detailed just now, even in a year’s time—certainly in 10 years—it will be dealing with a world that is different. It is wise to be cautious about specific regulations online because of technological development that will come.

Campbell Deane

I whole-heartedly agree with that. We are looking at something that is evolving, and has evolved, quickly over a very short period of time. Different platforms are arising, including different video platforms—all sorts of types of social media—so it is difficult to do otherwise.

Rona Mackay

That is great. Thank you.

The Convener

James Kelly has been waiting patiently to ask questions about the defences that are provided for in the bill.

James Kelly (Glasgow) (Lab)

Good morning. I have a question for Mr Deane. In recent weeks, different opinions have been offered by different panels on the offer to make amends procedure, which has been changed in the bill. Some witnesses maintained that it still allows an offer to make amends, but others were of the view that it potentially undermines that process. What is your view?

Campbell Deane

My understanding is that the offer to make amends procedure is still in play. However, as the bill is drafted, I do not think that it automatically provides the defender with the opportunity to receive a discount for holding their hands up as early as they can, prior to defences being lodged, so that the level of compensation that they ultimately have to pay is reduced. That is definitely something to be encouraged.

Even at the outset, with the initial drafts and round-table sessions at the commission, it was accepted that being able to end litigation as quickly as possible is for the benefit not only of the defender but of the pursuer, because the pursuer understands there and then that he or she has won, and all they are looking for is the level of compensation that they are likely to be paid.

11:15  

The wording of the relevant section potentially allows for the court to take that into account, but under the Defamation Act 1996 there was specific reference to the question of discount. The fact that we are having a discussion about whether a discount is available points to the fact that the drafting needs some clarity—that it either allows for a discount or does not.

James Kelly

Your position is that the wording is currently vague, that there seems to be broad agreement that a discount should be available as part of the process, and that what is really needed is an amendment to the bill to make the wording clearer and ensure that the discount principle that is currently enshrined in the process is maintained.

Campbell Deane

Section 2 of the 1996 act was utilised by the media. The answer to your question is yes; it is one of the sections of the act that media and organisations use. If it is being successful, why complicate matters by not using that wording to allow for the same discount? I would thoroughly recommend that the wording—or a part of it—that is involved in the discount is reincorporated in the bill.

James Kelly

Thanks a lot; that is very clear.

The Convener

Liam Kerr wants to ask some questions about the part of the bill on malicious publication, which is an important part of the bill that we have not yet touched on.

Liam Kerr (North East Scotland) (Con)

Good morning. I will direct my first question on part 2 of the bill, on malicious publication, to Professor Blackie; Mr Deane might wish to follow up on Professor Blackie’s answer.

Professor Blackie, in your submission, you raised issues around the threshold for malice. Under the provisions on malicious publication, the pursuer must show that a statement is “false and malicious”. However, that is defined further: the statement is categorised as “malicious” if, inter alia, the pursuer shows that the defender was

“indifferent as to the truth of the imputation”.

Does that suggest that a pursuer could win in a case of malicious publication without actually showing what we would understand to be malice? If that is right, does that not represent a significant lowering of the threshold?

Professor Blackie

There is a great deal of difficulty in dealing with and using the word “malice” anywhere in the law of civil liability. You have to decide what it is that you really want to get at here. We must remember that part 2 of the bill is not about defamation, so the question is not answered simply by saying “malice”.

There are many areas in the law of delict in which “malice” is used, and it is used in different senses. An example that has been topical in the media in the past week is the Rangers Football Club case—the malicious prosecution. In that context, the issue was to do with motive, but it was qualified by the term “without probable cause”. Therefore, the question is, what are you trying to hit here with the term “malice”? There is a danger of the threshold being too low and therefore being overinclusive.

Under current law, malice is traditionally related to motivation. Knowledge of falsity or recklessness as to veracity are indicators of that motivation but, typically, they go along with other factors, whereas the bill makes those indicators simply a threshold level to be crossed where only one of those alternatives is present. That seems to us to be problematic because it does not get at what you are really trying to do here.

It is important to understand that most malicious falsehood cases are really business-to-business cases, so they fall into an area where civil law polices business behaviour. There are other things, such as inducing breach of contract—if somebody is in a business relationship with another in a contract and you try to get them to breach that contract—and conspiracy to do down a business. In practice, we are mostly in that world here. Of course, intention can never be the liability for business-to-business delict, because we have market competition, so the question is, what are we trying to do here?

We do not want to penalise negligence, so if you have something that says that you knew that the statement was false or you were indifferent to the truth, or that it was motivated by a malicious intention to cause financial loss—[Inaudible.] There is a danger of saying that the person was negligent about whether they were going to cause business loss, and it is difficult to make it a minimum threshold in deference to police that boundary with falling into negligence.

In our paper, we have suggested that it would be better to follow the American formulation in the US Restatement (Second) of Torts. I should explain the background to that. In the United States, where there are 50-odd jurisdictions as well as federal jurisdiction, it is an on-going programme, always, to seek to restate, from that enormous volume of differing material, a reasonable rule. Section 623A in the Restatement (Second) of Torts gives the elements for proof of liability for publication of injurious falsehood. That is what we are talking about here under a different heading.

Section 623A says:

“One who publishes a false statement harmful to the interests of another is subject to liability for pecuniary loss resulting to the other if”

and then it gives two conditions. The first starts with “he intends”—sorry about the “he”, but that covers he, she or it:

“he intends for publication of the statement to result in harm to interests of the other having a pecuniary value ... or should recognize that it is likely to do so, and ... he knows that the statement is false or acts in reckless disregard of its truth or falsity.”

There is no reference there to indifference, and indifference is certainly not the threshold. If we followed that formulation, the bill that we are considering would be properly aligned with the other bits of delict that arise in business-to-business cases, as well as in competition law.

The bill says that only one of those will do—the word that it uses is “either”. It says that either the person knew that the statement was false or was indifferent to whether it was true, or that the publication was motivated by a malicious intention. That is the difficulty—it is too low a threshold.

Liam Kerr

I am very grateful for that extremely comprehensive and clear answer. Instead of asking Mr Deane to respond, I will move on to the next question, although if there is a point that he wants to pick up, perhaps he can do so in response to the next question.

My next question is directed at Mr Deane, although, obviously, the two other gentlemen can come in if they wish.

Based on what you have just heard, Mr Deane, there is no serious harm test in the area of malicious publication. It might be argued that that is because business has a greater burden in that it must show that words cause loss, are false or are made maliciously. If I am right on that, does it comfort you that serious harm as a test is not necessary here—perhaps because, as you said earlier, financial loss is difficult to show—or is that higher burden that I just suggested exists actually a chimera, in so far as the threshold for showing malice, as described by Professor Blackie, is particularly low?

Campbell Deane

It will probably come as no surprise to you that, from my perspective, I think that the solution to the absence of a reference to serious harm in relation to business dealings is to lose the reference to serious harm in the earlier part of the legislation. In a nutshell, that is how I would look at it.

There is a different position. I am sure that Professor Blackie will be much better aligned than I am to consider this possibility in relation to the particular issue at hand, but it could be that people would sue almost certainly on the basis of the lower threshold in the part of the bill on malicious publication, instead of going to the part on defamation, to get round the serious harm issue.

As long as you fit into the correct category, and as long as the circumstances relating to whether you could raise litigation in that type of case fit in with the malicious statements provision in part 2 of the bill, under which you do not have to show serious harm, why would you go for the difficulty of raising proceedings that would require you to show serious harm? It just would not work.

Liam Kerr

That is a very important point, and I will put something similar to Mr Brookmyre shortly.

Professor Blackie, Mr Deane has made an interesting point about serious harm. Do you take a different view or do you concur with Mr Deane?

Professor Blackie

I think that there is a danger of exactly what Mr Deane has said occurring. There was a case in England this year where that appears to have happened.

However, I think that that danger would be much less if the definition of malice, as I outlined, was different. The danger is much higher with the term “was indifferent as to”, which is in the bill as a minimum threshold. In other words, the minimum threshold is too low for this.

Liam Kerr

That was very useful—I am grateful.

I think that Mr Brookmyre, to whom I wish to direct my final question, might be away temporarily. Is that correct, convener?

The Convener

Indeed, Liam. We must move on to other members’ questions. If Mr Brookmyre reappears, we will come back to you if we have time.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I want to focus on section 30 of the bill, which would allow a court to order a third party—such as a website—to remove contentious material. That could happen before a court reached a final decision on whether the material was defamatory. Mr Deane, do you think that that will benefit pursuers?

11:30  

Campbell Deane

We are in the terrain of defamation proceedings, so by its very nature—as I read section 30—it would not be a question of writing to the court and putting in an application. The case would probably need to be in litigation, with costs being incurred because of that.

I apologise—I am just having a quick look at section 30.

The court having the power to remove material will, of course, assist any individual whose main or sole intent in raising proceedings is to have that article removed so that it is no longer online and who is therefore not looking for some form of financial recompense as a result of the defamatory statement.

However, they will have had to go to the extent of raising proceedings to get to that place. You cannot raise proceedings on the basis of a request to remove something; they would have to be raised on the basis that the material is defamatory and is worth X, and that it should therefore be removed. I suppose that, ultimately, it is a negotiating tactic.

Fulton MacGregor

Professor Blackie, do you think that it is proportionate for a court to make such an order before a case has been decided?

Professor Blackie

I have not addressed that particular issue in my thinking before today. I think that it is reasonable to have an opportunity for an interim order during the course of litigation. That can be seen in ordinary personal injury cases, in which there can be an interim order for damages.

What is proposed does not strike me as being particularly onerous on defenders. The case would have to be in court; someone could not get such an order before getting to court. Most cases do not go to court. I think that the provision is sufficiently proportionate, because judges would not make such an order lightly.

Fulton MacGregor

I see that Mr Brookmyre is back. I wonder how he feels about section 30 of the bill; he might have been away when it was discussed. Section 30 allows a court to order a third party to remove contentious material. How do you feel about that? How do you think that it would work in the publishing industry and in your line of work?

Christopher Brookmyre

It would certainly cause a great deal of conflict if a writer was told that an editor was removing a section of their book for that reason; there would be a great deal of tension between writers and editors.

However, I am not qualified to offer an opinion on how it would affect the wider publishing industry.

Shona Robison (Dundee City East) (SNP)

Good morning. My first question is about time limits. The bill would reduce the timescale for raising court action for defamation from three years to one. Do Mr Brookmyre and Professor Blackie agree with that change?

Christopher Brookmyre

On time limits, I am inclined to think that, if someone says that something that was published had a demonstrable negative impact on them but it has taken them three years to notice it, it would be hard to demonstrate that there was any particular harm to them. Therefore, I can understand that there should be a window that closes. However, once again, that is not my area of expertise.

Shona Robison

What is your view, Professor Blackie?

The Convener

I think that we might have lost Professor Blackie, so can we turn to Campbell Deane?

Shona Robison

Yes. In addition to saying whether you agree with the change to the time limit, can you tell us whether you have dealt with pursuers who would not have been able to raise proceedings if they had faced a one-year time limit?

Campbell Deane

In relation to whether I am in favour of or against the change in the time limit, I am relatively ambivalent, unfortunately.

Christopher Brookmyre made a point about the length of time that it takes someone to raise proceedings. In those circumstances, the question that is posed in the court is, “Why has it taken you three years to do this, particularly if you want to preserve your reputation?” That must play against a pursuer every time.

As far as journalism and the media are concerned, keeping notebooks, for example, for three years as opposed to one year is neither here nor there. They have to keep notebooks for actions of privacy for a period of up to five years, so the proposed change will not make any difference to the newspaper industry.

As a defender, it is incredibly hard when you reach the three-year threshold to put together all the paperwork that you would have done if the individual concerned had raised proceedings in six or eight weeks or six months. Witnesses may be dead. The journalist may well no longer be in that organisation—they may have moved on. They may no longer have their notebooks or they may be dead. You must make a defence to the action. That is hard, and I can see why, on that basis, there is an incentive to move the time limit from three years to one year.

You asked about raising proceedings on behalf of an individual before the end of the three-year period. I am sometimes contacted by people who are on the cusp of the triennium who pose the question, “Can I do this?” Those are not easy cases to take on, because you have to try to comply with the triennium. However, the difficulty is that a person will always face the question of why it has taken them so long to bring a case.

I have been in the situation of acting for a client in Scotland who was time barred in England—they had missed the one-year period in England. There is a reported decision called Kennedy v Aldington and others. Mr Kennedy raised proceedings in Scotland only for his Scottish losses. Mr Kennedy was in a unique position, because he had a substantial connection with Scotland. He was not forum shopping—he was able to explain to the court why he should raise the proceedings in Scotland. I have not had that situation in reverse.

Shona Robison

You might have heard that one of the arguments against the reduction in the time limit that has been raised in evidence to us concerns the cumulative effect if the matter has been going on over a period and it is only at a certain stage that someone has had enough—when the straw broke the camel’s back, as it were. If the time limit is reduced to only one year, that might remove a lot of the evidence. Do you have any response to that?

Campbell Deane

I can see some merits in that position. I can see the drip-drip effect finally making someone crack and say, “That’s it—I want to raise proceedings based on what has taken place.”

If someone does that, and the material about them appears online, the time limit does not really matter, because you can rely on the continual online publication to show to the court that it has been continuously published for that period. It is a different matter if a national newspaper publishes a story and three years later—or two years and 364 days later—someone says, “I want to sue on that,” and the story has never been followed up.

However, if it is a relentless campaign against someone who has finally had enough, even if the first attack is outwith the three-year period, you can still rely on the other material to form the basis for your proscription.

Shona Robison

Scottish PEN’s proposals for a new court action to provide protection against unjustified threats of defamation have gained a lot of interest. Would that be useful for defenders in practice?

Campbell Deane

Is the idea that, if you write a pre-action letter, you can follow that up?

Shona Robison

The proposal is a new court action to provide protection from unjustified threats of defamation. Basically, you could make a counterclaim against someone that an action is an unjustified threat of defamation. Do you have any views on how that would work in practice?

Campbell Deane

I have a smile on my face. Quite frankly, that is bonkers. I do not see how that would be possible to facilitate. You would have to say that the person who instructed you to write that letter specifically lied to you in respect of the allegation that you sent out in your letter. If someone says, “I am accusing you of X, Y and Z,” the other person comes to you and you write a letter that says, “My client has not done X, Y and Z,” you would have to prove that they had entered into a campaign to deceive purely to stop you publishing.

By its very nature, responsible journalism involves you as the publisher in that situation looking at it and saying, “That’s just nonsense. We’ve got more than enough proof to prove that. They are at it. Publish.” By all means, when you publish, reference the fact that they tried to stop you publishing and cause them more damage as a result of that. I cannot see how a scheme could work that would restrict an individual’s right to engage in pre-action correspondence on the basis that they could be countersued for so doing.

Shona Robison

Thank you.

The Convener

Liam Kerr wants to come back in—it will have to be a very quick supplementary. I am sorry, but after that we will have to move on to our next item of business.

Liam Kerr

I want to take Mr Deane back to the limitation period issue. The Law Society of Scotland considers that one year is too short a period, because it can take time to discover a defamatory statement. Am I right in thinking that, at the moment, the limitation period has a date of knowledge, so, akin to a personal injury claim, the limitation period starts to run—at least in theory—from the date on which a person finds out about the defamatory statement. If I am right about that, the practical impact of section 32(6) of the bill is that the limitation period starts to run on the date of publication—there is no date of knowledge that can impact that. Is that correct?

Campbell Deane

Did you say section 32(6)?

Liam Kerr

It is section 32(6)(b)(iv), as it amends the Prescription and Limitation (Scotland) Act 1973.

Campbell Deane

I am sorry—you have caught me on the hop.

Liam Kerr

I am sorry. Perhaps I will pose the question later, as I am conscious of the time.

Campbell Deane

[Inaudible.]—to the committee.

The Convener

I say to all the witnesses that, if additional issues arise from this morning’s oral questions that you would like to help the committee with, please feel free to write to us with follow-up information.

You have all been extremely generous with your time. I am sorry that we have had one or two technical difficulties along the way. All three of you have raised with the committee points that we will certainly want to consider as we continue to give the bill attention.

At this point, I am afraid that we will have to end this section of the proceedings and move on.

We need to make a big changeover of witnesses, and we are still waiting for the Cabinet Secretary for Justice, whose company we need for our next item of business, so we will have a relatively long suspension of about 10 minutes and will reconvene at 11:54.

11:45 Meeting suspended.  



11:54 On resuming—  

The Convener (Adam Tomkins)

Good morning, everyone, and welcome to the Justice Committee’s 22nd meeting in 2020. This is a hybrid meeting—members are attending in person and online. We have no apologies.

Agenda item 1 is the committee’s final evidence session for its stage 1 scrutiny of the Defamation and Malicious Publication (Scotland) Bill. I welcome Ash Denham, the Minister for Community Safety, and the Scottish Government officials who are supporting her. I invite the minister to make short opening remarks before we ask questions.

The Minister for Community Safety (Ash Denham)

Good morning and thank you for inviting me to give evidence on the bill. The normal legislative process has been interrupted by the public health emergency, so we approach the end of stage 1 almost 10 months after the bill was introduced. I am grateful to the committee and its clerks for their persistence.

In some ways, the bill is not of the normal type that the committee considers, because it is, by and large, a product of the Scottish Law Commission. As far back as March 2016, the commission published a discussion paper on the subject and, more than four years later, we are discussing the outcome of that work. I thank the commission for its careful and diligent work on the reform.

The bill implements all the substantive recommendations that the commission made when it looked at defamation law as a whole. The bill lays out a substantial part of defamation law in modern language.

Defamation law must strike the right balance between two values that sometimes pull in different directions—the principle of freedom of expression and the protection of reputation. They are both fundamental human rights that are vital in a modern democracy. I will look at some changes that the bill proposes; I am sure that none will be news to the committee.

The bill defines a defamatory statement, which is a positive step to define defamation. Provisions also set out what is not defamation. The bill expresses in more modern language the standard common-law definition, which was set out in 1936.

We are introducing a threshold test of serious harm, which must be met before an action for defamation can proceed. The test is needed to ensure that only claims with evidence of harm are allowed to proceed. If we allowed claims to proceed on the legal presumption that damage had been done in all cases, we would not achieve an appropriate balance.

The bill makes important provisions to cover in defamation law the role of secondary publishers. The current definition of publication is wide and means that the law can be abused to silence legitimate free expression. Secondary publishers can be induced to act as censors that remove content irrespective of its accuracy or importance. Ultimately, it should be for the court, rather than those who might be motivated by economics, to determine and balance fundamental rights. The bill will enable that approach.

Malicious publication is closely aligned with defamation, but it is distinct and the provisions on it protect different interests, so the balance should differ. The commission gave the subject detailed and thorough consideration and recognised that, without such provisions, Scots law would have a gap. The bill does not weaken the current definitions; it merely replicates them.

Finally, I would like to touch on the Derbyshire principle. I favour including in the bill a statement of the principle that although public authorities have a reputation that might need to be protected, that must be done though the ballot box, not through the court.

Overall, the bill seeks to ensure that our law of defamation is fit for the 21st century. It provides a clear and accessible framework that more appropriately balances freedom of expression and protection of individual reputation. I believe that the bill gets the balance right, and I am happy to take questions from the committee about how we have struck that balance.

The Convener

Thank you, minister. That was very helpful. You touched on a number of issues that have been raised with us in our evidence sessions and which members will want to explore with you.

I will start on one of them. The bill emanates from the work of the Scottish Law Commission, but it does not mirror that work in its entirety. There are some differences, one of which is that, as I understand it, although the Scottish Law Commission did not recommend that defamation be defined in the legislation, the bill does that. Moreover, it does so using language that is different from the language that has been used in Scots law for 80 or 90 years now. Why did the Government decide to depart from the Scottish Law Commission’s recommendation and provide a statutory definition of defamation? Why did the Government decide not to just copy and paste the language that we have used in Scots law for 90-odd years?

Ash Denham

You are quite right. Substantively, this is the bill that the Scottish Law Commission developed, but it varies from that in a small number of areas, one of which is definition. We have done that because reputation is of vital importance to individuals. The law of defamation is obviously about protecting reputation, so it needs to be as clear and as accessible as possible. Having a statutory definition of defamation in the bill will help to provide that clarity.

The committee heard from the Law Society of Scotland on the phrasing. It said that the definition “reflects the common-law test”. The definition is meant to be a simple restatement, in modern language, of the common-law test that was set out by Lord Atkin in the case of Sim v Stretch. As you rightly pointed out, that is now 84 years old, and it sometimes needs to be explained to juries. When that happens, it is explained to them in the terms that we have put in the bill. I think that it is important and useful to have the definition in there.

The Convener

Some of our witnesses have suggested that the bill could usefully state that, although the definition is set in statute, it is not intended to be set in stone. From time to time, as defamation law continues to develop—it tends to develop slowly in Scotland, because we have very few defamation cases—the courts will want to revise aspects of it, including, perhaps, its very definition. They will also want to ensure that there is a degree of continuity between the law before and the law after the bill is enacted, especially if, as you have just said, the purpose of the definition in the bill is to give effect to what the common law already provides. Have you reflected on whether the bill could usefully be amended in that respect? Would it be an unhelpful amendment if the bill was to say expressly that the courts should continue to refer to common law as they develop defamation law through the trickle of cases that come before them in Scotland?

Ash Denham

That is a good point. Obviously, the definition reflects common law. There are explanatory notes that go with the bill, and anybody looking at them will understand that the definition reflects that.

There are additional elements. You could be looking at the onus on proof or presumption, or falsity or malice, which are left to be dealt with by common law. When they are looking at the definition, the courts will have that in mind, and they will see the continued relevance of case law that has built up over time.

I take the point. I know that the Law Society raised the issue with the committee, as did Professor Reid and Professor Blackie, and I can commit to looking at it further. Obviously, I will consider the committee’s report, and if you make recommendations on this area I will certainly look at them.

The Convener

One of the things that strikes me about the law of defamation is that the single biggest change to it in recent years has been the creation of the Reynolds defence. Everyone has welcomed the addition of that defence in the law of defamation: we have not received any evidence that countermands that view. That is judge-made law; it is a defence that was created not by statute, but through case law, in the ordinary way of common-law development.

A number of our witnesses have suggested that we would not want to see the bill being interpreted by the courts as if it were, or was intended to be, the last word in the on-going development in the law of defamation in Scotland. Do you and the Scottish Government share that view?

Ash Denham

Yes.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

I will follow up with a specific question for you, minister. The committee has heard some concern about the use of the term “ordinary” people, rather than a reasonable person-type test, as the term “ordinary” people might reinforce social prejudices. Would you look at that if enough concern was expressed? Why is it okay to use the term “ordinary” people?

Ash Denham

As I have said, it is meant to be a simple restatement in modern language of the common-law test. One of the things that is good about the process that we are going through is that, if we are going to define defamation, everyone in this legislature should be able to agree on that as far as possible, and to vote for it, so that we are all clear about the definition.

The use of the term “ordinary persons” in the bill is not meant to refer to any specific part or section of society, but to suggest a general, objective legal construct. As I have said, in modern practice, a defamatory statement is sometimes explained to juries as being one that uses words that

“would tend to make ordinary readers think the worse of the pursuer.”

I am not aware of that having created any difficulties so far in the courts, but I ask Michael Paparakis to add a little more on that.

Michael Paparakis (Scottish Government)

As the minister said, in the bill, we have not tried to revolutionise what we mean by defamation. The term “ordinary persons” is a standard description that is used by sheriffs in addressing the jury in a defamation case. They refer to a defamatory statement as being words that

“would tend to make ordinary readers think the worse of the pursuer.”

In the bill, we have carried over the idea of “right-thinking members of society” into more modern words. A court that is looking at the provision along with the explanatory notes would understand that and interpret it accordingly.

The Convener

Annabelle Ewing wants to ask about the serious harm test.

Annabelle Ewing (Cowdenbeath) (SNP)

I note that, in her opening remarks, the minister suggested that the Government is trying to ensure that cases can proceed only where there is evidence of harm, rather than evidence that might be viewed as frivolous. However, actual evidence of harm and serious harm are not exactly the same thing.

In evidence to the committee, the view has been expressed that setting the bar at serious harm risks introducing a barrier to ordinary pursuers. [Inaudible.]—is likely to make the process much more complex and costly. Could the minister comment on those concerns?

Ash Denham

The threshold test is a sensible reform of defamation law. If someone is going to say to a court that their reputation has been damaged, they should be able to prove to the court that it has been damaged. That is a sensible starting point.

Also, when people are notified that a statement that they have published is defamatory, the existence of the threshold will give them confidence that the damage will have to be proved in court.

10:15  

I do not think that the threshold will make things more complicated or expensive. An individual who has been defamed currently has recourse to a simple procedure for raising an action for damages—I do not know whether the committee has discussed that. The court procedure is designed for lay people to use; that avenue is open to people. I understand that a procedure can be raised for as little as £19, so I do not think that access to justice is an issue.

Annabelle Ewing

Some witnesses from whom the committee heard pointed to what has happened south of the border by dint of, inter alia, the setting of a threshold at not just harm but serious harm. Before stage 2, it might be worth having your officials investigate the issue further, because we are seeing very complex processes down south, just to deal with the serious harm element.

I heard what you said. However, some witnesses think that the bill’s approach in this regard is very much a sledgehammer to crack a nut, in that, south of the border, the Defamation Act 2013 sought to resolve problems with defamation that had arisen in England, whereas in Scotland we have very few cases. Indeed, our witness from the Faculty of Advocates said that the bill provides

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

Will you comment on the wider issue to do with the bill not getting the balance quite right when it comes to the serious harm test?

Ash Denham

The bill is getting the balance right. Across the piece, it attempts to strike the balance that we discussed and to reduce costs for all parties by introducing more effective remedies for protecting reputation and stronger protections for freedom of expression.

I do not agree with the characterisation that the bill is about English solutions to English problems. The Scottish Law Commission developed a set of proposals. It took a wide-ranging look at the Scots law of defamation and made a large number of recommendations, as the committee knows. It certainly did not confine itself to considering whether English defamation law should be replicated here; that was not the commission’s approach at all.

Chief among the commission’s recommendations was that there should be a threshold test of serious harm. I understand what the stakeholders have said about the threshold, and it is for the committee to decide whether we have taken the right approach, but I think that if someone thinks that they have been damaged by a statement they should show how they have been damaged. That seems to me to be the right approach. Currently, the law presumes that damage has been done, which I do not think strikes the right balance—the bill will create a better balance. Michael Paparakis might want to say something about that.

Michael Paparakis

There is not much that I can add. As the minister emphasised, the Scottish Law Commission looked at the law of defamation and malicious publication in the Scottish context—it did not just copy the provisions of the 2013 act for no reason. It felt that reform of Scots law was required and it made recommendations. That is what we put forward in the bill.

The Convener

Do you have more questions on that, Annabelle?

Annabelle Ewing

We have probably exhausted the subject for the moment.

Rona Mackay

I have a follow-up question. Witnesses from the media talked about vexatious litigation and warning letters, which they perceive to be quite a problem. Legal stakeholders said that that is part and parcel of what they do and just represents how the system works. Will the serious harm test affect such activity?

Ash Denham

I hope so. It is difficult to quantify the effect that the test will have and how much effect such activity has. My officials can give examples of how measures are working in England and Wales.

Exactly as the member suggested, we have the chilling effect, which the committee has heard quite a bit of evidence on. If someone creates content and a letter is served, the secondary publisher may decide to pull the content immediately, whether it is right or wrong. That affects freedom of expression.

One of the bill’s key aims is to give people confidence about their rights and obligations under defamation law. Having everything in one place in a clear and accessible way will provide such confidence. The threshold test is an important part of that.

Liam McArthur (Orkney Islands) (LD)

I will follow up Annabelle Ewing’s questions. She quoted Duncan Hamilton from the Faculty of Advocates referring to what the faculty perceives to be

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

He drew on supporting evidence that shows not that there is too much defamation litigation, but that there is if anything too little. Since the Defamation Act 2013 was passed south of the border, we have had the opportunity to see whether more litigation would move north of the border, where a lower test has applied, but there does not seem to be evidence of that.

I take on board the point about the Scottish Law Commission’s recommendations, but the faculty says that, although there would be benefit in the law being tested, we are not seeing examples of that. The risk is that setting a higher threshold of serious harm will choke off litigation, which will not necessarily benefit the public, including the people Annabelle Ewing referred to.

Ash Denham

The test is part of the overall balance of the bill. Do you accept that, if someone said that their reputation had been damaged, we would expect them to show how it had been damaged?

Liam McArthur

That was accepted, but the seriousness of the harm is for a court to decide and will be reflected in any damages that are awarded. Setting a high threshold could tip the balance too far in favour of one side when there is no evidence that too many cases are coming forward. As I said, the faculty pointed out that the number of cases is limited.

Ash Denham

It is right that the level of cases is low. Michael Paparakis will speak about the effect of the harm test in England and Wales.

Michael Paparakis

Since 2013, the number of defamation cases in England and Wales has increased almost year on year. The threshold test has not overly prevented cases from arising. Courts have determined that the test has not been met in some cases and have thrown them out. I have examples of a couple of cases if the committee wants them.

On the level for the threshold test, the Scottish Law Commission considered all the issues and recommended that serious harm was the appropriate level for cases in Scotland. That is what the bill implements.

The Convener

Defamation addresses the relationship between freedom of expression on the one hand and protection of reputation on the other. Moving the threshold from harm to serious harm tilts that balance in favour of freedom of expression. That is the policy aim behind the bill that the Government seeks to pursue—is that right?

Ash Denham

The aim is to rebalance the bill, yes.

The Convener

Do you mean to rebalance it in favour of freedom of expression?

Ash Denham

Yes.

The Convener

Is that an intended policy outcome of the bill?

Ash Denham

Yes; it was an intended policy outcome of the Scottish Law Commission.

The Convener

Is it the Government’s intended policy outcome? It is the Government’s bill.

Ash Denham

It is. We took the recommendations from the Scottish Law Commission and I also agree with them.

The Convener

Thank you. John Finnie has questions on the Derbyshire principle.

John Finnie (Highlands and Islands) (Green)

There has been a lot of discussion about the principle of a ban on public authorities suing for defamation and a number of questions have been posed; I am sure that you have followed that discussion. If I noted this correctly, you referred earlier to “the ballot box and not the court” being used for issues.

We know that the definition includes exemptions for businesses and charities that deliver public services “from time to time”. One of the challenges is that the contracts for the many different bodies that provide a wide range of public services do not necessarily align with the local or central Government electoral processes.

Stakeholders have concluded that section 2—the statutory version of the principle—both expands on the common-law position so that a wider selection of organisations are prevented from protecting their reputation and fails to protect all those who criticise public service delivery from defamation litigation. Arguably, that satisfies no one. Can you explain the Scottish Government’s rationale for legislating in that way?

Ash Denham

The aim of the provision is simply to place on a statutory footing the common-law principle that public authorities cannot raise defamation litigation. As the member has noted, public authorities have a reputation but they need to protect it through political means and not defamation law. Allowing comment on the actions of democratically elected bodies obviously serves public interest and that is the fundamental rationale behind the Derbyshire principle. I listened to the evidence that was given to the committee on the matter and, although opinions differ a little bit around how that principle should be drafted, it is universally accepted that the principle is important.

I want to be clear that, as far as I am concerned, the bill will protect those who criticise public service delivery even when a private body delivers that service. It is also my opinion that the provisions in the bill will sufficiently protect those who criticise the public services that are provided by private companies.

I will let Michael Paparakis explain the list of factors, as well as the drafting of “from time to time”, which the member raised.

Michael Paparakis

That drafting appears in the Human Rights Act 1998 and has been used in a number of bills since then. The courts are aware of that form of words and have interpreted it for more than 20 years. We think that the approach that is taken in the bill should mirror that form of words.

When the court considers the public authority of private bodies, it takes into account certain factors about what a private company does, whether it is on contract and so on. You will be aware that the Lord Justice Clerk, Lady Dorrian, in the Ali v Serco case last year decided on a number of factors that related to the court’s approach to interpreting that form of words. The drafting in the bill provides a sensible and flexible approach to how the courts will interpret what a public authority is for defamation law.

John Finnie

Notwithstanding what I have heard from both the minister and the officials, concerns remain about the drafting and the suggestion that it would increase uncertainty for organisations outside the public service that deliver public services, such as electronic monitoring for prisons; universities have also been mentioned in the past. Do you plan to lodge any amendments in that particular area? That would have to be reflected in the committee’s stage 1 report.

10:30  

Ash Denham

We do not currently have any plans to lodge any amendments on that. We need to ensure that we take a flexible approach so that courts can deal with complex and nuanced cases as things develop. We need to bear in mind that public service delivery is not what it was 20 years ago, and we need to allow a flexible approach. I would certainly be happy to carefully consider the committee’s recommendations on that point, and I will take another look at the evidence on it.

John Finnie

Thank you—that is reassuring.

The Convener

I want to ask a follow-up question about that. As Mr Finnie indicated in his questions, some of our witnesses have said that they think that section 2 is too broadly drawn and some have said that they think that it is too narrowly drawn. It seems to me that that difference of view depends on what people think the purpose of the rule in Derbyshire is. I think that there are two options, and I wonder which option the Scottish Government prefers.

The first interpretation of the rule in Derbyshire is that it is designed to capture only people who are elected. If a person is elected through the ballot box—this goes back to the minister’s original remarks, which Mr Finnie picked up on—and they are criticised by members of the public about the way in which they are performing their functions, they do not have recourse to the law of defamation.

However, there is another view, which relates to what the minister has just said. That view is that the way in which public services are delivered has changed beyond recognition over the past decade or two, so the purpose of the rule in Derbyshire really should be to protect those who criticise the way in which public services are delivered, irrespective of who they are delivered by—whether that is by people such as us, who are elected, arm’s-length organisations or corporations.

We will therefore have a clearer view of what the drafting of section 2 should look like only if we have a really clear view to start with of what the purpose of the rule in Derbyshire is. In the Government’s view, what is it?

Ash Denham

The first.

The Convener

Right. I respectfully suggest that that might lead you into difficulty with the drafting of section 2, because you might find it difficult in a single section to protect two interests that are not always compatible with each other.

Ash Denham

I take your point on that, but it does not expand on the common-law definition. We are replicating that, and we are just trying to codify it in a sensible and flexible way. However, I have said to the committee that, if it has a strong interest in the matter and does not think that the balance is right, I will endeavour to look at that again with the drafters and see whether there is maybe a way in which that could be changed or whether we could put something into the explanatory notes that might be helpful.

The Convener

When Lord Keith, who was, of course, a Scottish law lord, delivered his judgment in the Derbyshire case—even though it was a case from England and Wales—he did not think that the rule in Derbyshire protected the delivery of public services. He thought that it protected those who wanted to criticise councillors and members of Parliament, who are directly elected. The principle that underpins the Derbyshire rule is an issue that we will want to draw out as the bill progresses.

I have said enough about that. Rona Mackay has questions about online behaviour.

Rona Mackay

The bill would exempt secondary publishers from any liability in defamation. We know that a similar approach is taken in the USA and that online service providers there take no action to remove even clearly defamatory content. Does the minister accept that that is a risk? Should the bill have gone a bit further with regard to online content?

Ash Denham

Are you talking about the take-down approach?

Rona Mackay

I was going to ask about that, yes. Obviously, the bill does not have the take-down approach that we see in the 2013 act, and it repeals section 1 of the Defamation Act 1996, which requires secondary publishers to take reasonable care.

What should someone do if they have been defamed? Most people would just want that material taken down. Do you think that more could be done in that respect to protect people?

Ash Denham

I am aware that a number of stakeholders have put forward arguments around that area. The aim of the provision is not to give internet companies free rein—that is not we are going for. However, we have to balance that with the principle that secondary publishers are not actively responsible for the content, even though, at present, they are held liable for that.

The committee has heard from Scottish PEN on this issue. The proposal will ensure that the focus is more firmly on where the defamatory statements come from, and on the authors, editors and publishers of those statements.

The issue of take-down is interesting. I think that it is a lot more complicated than what you suggest. Superficially, it seems like the take-down procedure might be a silver bullet that would fix the issues. However, in practice, that approach does not seem to be working as effectively down south as it was hoped that it might. Michael Paparakis can say more about that.

Michael Paparakis

The take-down procedure will usually involve a person who thinks that they have been defamed by a statement contacting the internet company with a notice of complaint. The website operator would send that notice to the person who has posted the statement. If that person wants to stand behind their statement, the statement stays up. They do not have to pass on their details to anyone else. The statement will come down only if the person who has posted the statement does not respond to the notice of complaint. We think that that goes against the idea of freedom of expression—it goes too far. We believe that the approach that we are taking in the bill to secondary publishers is appropriate. It allows the court to determine whether a statement is defamatory and whether it should come down, rather than leaving it up to the vagaries of the take-down procedure.

Rona Mackay

I appreciate what you are saying. I think that the only problem with that approach is that, with the take-down procedure, the statement disappears, which is better for the complainant, because court action takes a long time, which means that the defamatory material will be around for longer.

Ash Denham

But if the statement is not defamatory, and is eventually proven not to be defamatory, the take-down procedure is not good for the author. That brings us back to the balancing act, does it not?

In answer to your question about what someone should do if there is a defamatory statement about them online, they can go to court and use the simplified court procedure to ask the court for damages or for the statement to be removed from the website. That procedure need not involve a solicitor, and the costs start at £19.

The Convener

James Kelly wants to ask about the defences in the bill.

James Kelly (Glasgow) (Lab)

The defences that the bill codifies around truth, honest opinion and publication in the public interest were broadly welcomed by the witnesses we heard from. However, with regard to the truth defence, some concern was expressed about the fact that only the sting of the allegation needs to be proven. Further, with regard to honest opinion, there was some concern about the fact that there was not enough protection for satire or hyperbole. Having listened to the witnesses’ concerns, what is the minister’s view? Are there any areas in which she would consider making amendments in the light of that feedback?

Ash Denham

Thank you for the question. The matter has been very carefully considered in order to strike the right balance in the bill, and I think that it has been struck with regard to issues such as satire and hyperbole. I will ask Michael Paparakis to go into a bit more detail on the defences.

Michael Paparakis

With regard to satire and such, the Scottish Law Commission considered the point and was of the view that the glue of the honest opinion defence is that the opinion is genuinely held by the person who makes the statement. The Faculty of Advocates also pointed to a case—Macleod v Newsquest—in which the court considered the matter of satire or parody. In that case, the action that was raised was about the context of a sketch piece. The action was dismissed on the basis that

“the ordinary reader would have understood that the article had been written for his or her entertainment in a cheerful, irreverent and playful spirit, and had contained elements of fantasy.”

As things stand, there is enough protection for satire and parody, and we think that the drafting achieves that aim.

James Kelly

It is interesting that, in your answer, you refer to previous case law. One of the issues that has come up is that, understandably, people feel that strong case law will be important in relation to defences. As was mentioned earlier in the session, there was a lot of support for the Reynolds defence and the principles around it. Has the Government given any consideration to setting out the principles in the bill, to make them clearer and stronger?

Ash Denham

The bill places the current Reynolds defence on to a statutory footing. The explanatory notes to the bill make that explicit—in paragraph 41, if the committee wants to check it. I would expect that previous case law in relation to defence would continue to apply. The courts will continue to take it into consideration, but I am interested in the committee’s view as well. I am able to commit to reflecting on whether any further clarification is needed in that regard, but I await with interest the committee’s report and any recommendation that might be forthcoming on the issue.

James Kelly

I am sure that the committee will—[Inaudible.] I am sorry for the interruption there, convener. I am sure that the committee will reflect on the point. I note that you say that there is reference to the principles in the explanatory notes. If they were in the bill, that would make the position stronger and clearer.

The Convener

We will move on to malicious publication, on which Liam Kerr has questions.

Liam Kerr (North East Scotland) (Con)

Thank you. Good morning, minister.

Part 2 of the bill relates to malicious publication. You are clearly in favour of the serious harm test for defamation; however, the serious harm test does not appear in the malicious publication part of the bill. Will you explain your thinking behind that?

Ash Denham

No, the test does not appear in part 2. We have defamation and we have malicious publication, and I am sure that Liam Kerr is aware that they are distinct causes of action. Malicious publication covers statements that are likely to be highly damaging but that are not necessarily defamatory. We would all recognise that the difference between the two things results in a different balance having to be found. The bill does not lower the threshold for malicious publication compared with defamation; it recognises that they are different actions and that a different balance needs to be sought. Other tests will need to come into play for malicious publication.

Liam Kerr

Do you not accept that the bill does lower the threshold? The bill requires that

“the statement has caused (or is likely to cause) financial loss”.

I think that I am right in saying that there is no definition of “financial loss”, and therefore there is no de minimis. If the statement is only likely to cause financial loss, that is not a serious harm test, is it? Therefore, should it not be concluded that, if there is a serious harm test in part 1, there ought to be a serious harm test in part 2?

10:45  

Ash Denham

They are two distinct causes of action. I do not necessarily accept the logic that the same threshold test should be used for two different actions—to my mind, that does not necessarily follow.

I think that we have struck an appropriate balance. As Mr Kerr rightly points out, there are additional tests, such as the one for proving financial loss. Jo-anne Tinto might be able to say more about the tests.

Jo-anne Tinto (Scottish Government)

The Government thinks that, with malicious publication, because the falsity test and the malice test are hurdles that must be overcome, it is not necessarily relevant to include the serious harm test. With defamation, on the other hand, falsity and malice are presumed, so those hurdles do not have to be overcome, with the result that the serious harm threshold is an option.

Liam Kerr

That is a reasonable point. I understand the point about the different hurdles that have to be overcome and the different ways in which the malicious publication provisions and the defamation provisions operate. However, I want to pursue the question of malice with the minister. The way in which malice is defined in sections 21, 22 and 23 suggests that all that needs to be shown is that the maker of the statement was

“indifferent as to the truth of the imputation”.

It has emerged from our evidence sessions that that indifference as to the effect of the statement is a rather low threshold. What do you say to that?

Ash Denham

I do not agree at all that it is a low threshold. The Scottish Law Commission gave a great deal of consideration to the issue of verbal injury and the new statutory cause of action of malicious publication. In my opinion, the definition of malice that the commission has come up with accurately reflects the common-law position.

Jo-anne, do you have anything to add on that?

Jo-anne Tinto

No, I have nothing to add.

Liam Kerr

I am not sure that the definition of malice reflects the common-law position. When you talk about the common law, I think that you are referring to the concept of verbal injury, which is an area in which the law has been described as “obscure and uncertain”. If that is right, does the bill not provide an opportunity to codify that and make sure that it is right? Should we not do that rather than just reflect an obscure and uncertain position? Have you not missed an opportunity to remove those ambiguities?

Ash Denham

I think that the committee has had evidence on the matter from the Faculty of Advocates and Dr Stephen Bogle, who agreed that the definition is a reflection of the present law.

Liam Kerr

James Kelly asked about defences. Part 1 of the bill codifies the defences as they currently exist, but I do not see the same defences applying to part 2. Am I right in saying that the defences do not apply to part 2? If not, why not?

Ash Denham

The situation is not exactly the same. The defence of fair comment would apply, as would the defence of absolute privilege and the defence of truth.

Liam Kerr

Would they apply to part 2?

Ash Denham

They would apply to malicious publication. Does that clear that up?

Liam Kerr

It does. This is a genuine question: where in part 2 does it say that those defences apply? I accept the minister’s assertion, but I would like to know where in part 2 it says that those defences apply.

Ash Denham

I will let Michael Paparakis give you the detail on that.

Michael Paparakis

The bill is structured in such a way that malicious publication is dealt with in part 2, but I am not sure that it is obvious how the defences would apply. The Law Commission makes clear—in its discussion paper, I think—which defences would apply to malicious publication. We did not necessarily want to codify that to the same extent in the bill as we did for defamation law. We do not go into clearing up which defences would apply to malicious publication, but the defences that we put in the bill, such as truth and honest opinion—we also touch on absolute privilege—would apply in a malicious publication action.

Liam Kerr

I muse, then, whether that area is ripe for amendment, to make it absolutely clear that sections X, Y, and Z apply as defences in part 2. Minister, do you think that there would be value in pursuing that?

Ash Denham

I can certainly commit to looking at that carefully if an amendment is lodged on the issue.

Liam Kerr

I listened to the minister not necessarily accepting my premise that the threshold might have been lowered. Some stakeholders have suggested that there could be a lower threshold just with the lack of the serious harm test and the definition of malice, for example. Does the minister accept that there is a risk that the malicious publication part of the bill will become the part of choice for those wishing to assert, in effect, defamation as a way of avoiding the higher thresholds that the minister is introducing in part 1 to prevent defamation actions?

Ash Denham

I do not think so. I can see the point that the member is making, but there will still be a requirement to prove falsity. There is still a requirement to prove financial loss, as we have discussed. I do not expect that that would happen, but the member raises an interesting point.

The Convener

Fulton MacGregor wants to ask about court orders to remove material.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I have been asking about section 30 throughout the evidence gathering. The power in section 30 provides for an intermediary measure before the court has reached a final decision, and we have heard mixed views on that. Some stakeholders are quite in favour of section 30, whereas others, particularly media stakeholders, suggest that it could be disproportionate and could force the removal of material that might not ultimately be found to be defamatory. What is your view on that, minister? Could you speak a wee bit about the justification for, and the Government’s thinking behind, legislating in that area?

Ash Denham

That is an important point. It will be helpful if I make it clear to the committee that the power of the court to order the operator of a website on which a defamatory statement has been posted to remove the statement—even if just as an interim measure—can be exercised only once court proceedings have commenced. The court will therefore have an opportunity to hear from both parties where possible. It is important that the court has the flexibility to be able, in an appropriate case, to take prompt action to protect reputation.

Although I would expect such cases to be really rare, it is important that we have that provision in the bill. The committee has also heard evidence that the approach is reasonable and is likely to be used only when it is absolutely necessary. It is worth pointing out that the courts currently possess that power, and I do not think that we are aware of any evidence that they are abusing it at the moment.

The Convener

Liam McArthur wants to ask about time limits.

Liam McArthur

We talked earlier about the serious harm threshold. There is another area where it has been identified that the thresholds have changed quite markedly: the balance that the convener was talking about has perhaps shifted in relation to time limits, too. It is partly the reduction from three years to one year for bringing an action for defamation, and partly the fact that the clock starts running from the point of publication rather than the point at which an individual becomes aware of material. Concerns have been raised about the impact of that. One is that there might be a delay in an individual becoming aware of a statement having been made. The other is that the initial publication of a statement may not be sufficient to justify or provoke such a case being brought, but the cumulative impact of the repetition of the statement may lead the individual to feel that they have no option but to bring a defamation case. How will the bill address such concerns?

Ash Denham

If someone suffers damage to their reputation, they usually become aware of it quite quickly. We are again back to the balancing act in relation to time and how long things should take. A one-year period strikes the right balance. It is enough time to assess the damage and prepare for litigation, or to engage in alternative dispute resolution, if appropriate in that case.

Courts will have discretion to allow litigation to proceed outwith the one-year limitation period where they consider that there is a good reason to do so. In the examples that you gave of something coming to the attention of the individual close to the end of the time period after publication or of there being a cumulative effect, if an individual can say that defamatory statements have been made that have caused them serious harm, courts could make allowances for that. They will have the discretion to allow litigation to proceed even if it is after the one-year period.

I hope that that strikes the right balance.

Liam McArthur

Would that latitude for the courts also address concerns that were raised, partly in relation to timeliness but also on the question of secondary publication? The case for defamation might perhaps be questionable because of the audience that a statement can reach when it is initially made, but when repeated by someone or on a different platform with a far greater reach, the case for defamation and meeting the serious harm threshold might be more obviously made. Would the court have sufficient discretion to take that into account?

Ash Denham

It would, because if more prominence were given to the statement in subsequent publication, that would be considered to be a material difference, which would result in a restarting of the one-year clock. It is a flexible approach.

The Convener

On flexibility and the court process balancing various interests, Shona Robison has some questions about protection from unjustified threats.

Shona Robison (Dundee City East) (SNP)

My first question is on Scottish PEN’s proposal to introduce a form of court action to protect against unjustified threats, which has received support from some stakeholders, although others are not so supportive. Did the Scottish Government consult on such a provision? Why does it not feature in the bill?

Ash Denham

It is not a good fit for the law of defamation, which is why it has not been taken forward. It has raised some human rights concerns, which I will ask my officials to speak to in a moment.

An unjustified threats provision is likely to make things much more difficult. Michael Paparakis will provide a bit more detail on that.

Michael Paparakis

Our concern is that an unjustified threats provision would not have the intended effect that Scottish PEN thinks it would have. It is concerned about the effect of threatening letters being received, and thinks that having the delict of unjustified threats would stop those letters. It might well do, but we think that it might instead result in people cutting out that initial step and simply going straight to court, which I do not think is the solution that anyone wants.

Obviously, the delict of unjustified threats comes from intellectual property law, where things are potentially more absolute than they are in defamation. It is something that we consulted on and considered but, ultimately, we do not think that it should be taken forward.

11:00  

Ash Denham

One of the primary aims of the bill is to simplify things and add clarity. The issue of unjustified threats would add complexity that is not necessarily appropriate in this area. At the moment, defamation proceedings involve a test of serious harm, the new statutory defences and the offer of amends. Taken together, those things should give the defenders the confidence to resist the threat of litigation. I do not think that the inclusion of unjustified threats is warranted, and it would add unnecessary complexity.

Shona Robison

On that subject, witnesses have highlighted what they perceive as the intimidatory nature of pre-litigation correspondence and have talked about having a pre-action protocol, which exists in England for media and communication cases. Would that be a better way of controlling the pre-litigation environment? Would you consider looking at having some sort of similar protocol in Scotland?

Ash Denham

I have seen some of the evidence that the committee has taken on this matter. I understand that there is a feeling that that protocol is helpful in England. However, it is a matter for the Scottish Civil Justice Council. If the committee is particularly interested in the issue, I could write to the council to ask it to consider taking such an initiative.

Shona Robison

The committee can discuss that, but it would be helpful to know the council’s views.

Witnesses have referred to what they call anti-SLAPP—strategic lawsuit against public participation—actions as a more direct way of dealing with litigation that is motivated by a desire to stifle criticism. In some North American jurisdictions, a defendant can argue that litigation threatens their right to free speech and, if the court agrees, the plaintiff must show that their action is more likely than not to succeed before they can continue. What is the Government’s view on incorporating a protection of that nature in the bill? Have you considered that?

Ash Denham

That is not something that I am minded to introduce at the moment. The balance that the bill is striking should give content creators confidence about their ability to publish something that is in the public interest, so I do not think that the facility that you propose would be necessary.

Liam Kerr

I would like you to explain something again, minister—this is a genuine question; I did not catch what you said earlier. Why, if we reduce the limitation to one year, should it not be from the date of knowledge rather than from the date of publication, as the bill envisages?

Secondly, I listened to what you said about the fact that section 19A of the Prescription and Limitation (Scotland) Act 1973 gives the court the ability to extend the time limit if it is “equitable to do so”. As you know, I come from an employment law background and, in employment law, the criteria for extending a limitation are pretty clear.

Might the bill provide you with an opportunity to reconsider whether the idea of something being “equitable” is the best test for a time limit being extended and to consider whether the idea of it being “reasonably practicable” to present a claim within one year might be better?

Ash Denham

The motivation for reducing the time period, as I discussed when I spoke to Mr McArthur, is that the fear of defamation proceedings that content creators feel for years and years after they have published the content has a chilling effect. We are looking to strike an appropriate balance.

Michael Paparakis

We think that the date of knowledge and date of publication are more likely than not to coincide, and the date of publication is a more definite and fixed point. As the minister said, if there is a material difference, there is an allowance for the restarting of the one-year period.

The issue to do with section 19A of the 1973 act comes from the general law of prescription. If we decide to make changes to that, I do not think that we should do so through defamation law. The issue might have wider implications than what we have discussed today.

Liam McArthur

In earlier questions, we have skirted around the issue of accessibility. Media representatives have made points about the changing shape of the media environment, which involves far greater use of freelancers, for example, who will often not have the weight of a legal department behind them. What consideration has been given to what information, advice and support—perhaps funded by or produced by the Scottish Government—can be given to reassure such individuals and ensure that they understand their rights and responsibilities under the law, even if, in due course, they would almost certainly need to seek the support of a solicitor for more detailed advice? Is there a role for the Scottish Government to provide such support for those who might need it?

Ash Denham

I will give that some thought. One of the key strengths of our approach is that we are bringing all of the key issues of defamation into one piece of legislation and are modernising the language, which will, in itself, make it more accessible, because people will know where to go, can read the law for themselves and can understand what their rights and obligations are under the law of defamation. However, as I said, I will give your point some thought.

Liam McArthur

That would be helpful. The point that you make is valid, but it probably suggests that now is an opportune moment to provide some supporting documentation that at least gives people that general level of understanding.

The other point that was made was that even seeking legal advice about whether to instigate or defend a defamation case can result in costs that rise very quickly. Has the Scottish Government given any consideration to changing the rules around access to legal aid in cases of defamation?

Ash Denham

We have not done so. I have no plans to review legal aid or the tests that apply to defamation at this point.

Liam McArthur

Would the Government be willing to consider the extent to which that issue is an inhibitor to people taking a case or deciding whether to defend one?

Ash Denham

The Scottish Government has pursued access to justice and modernising civil litigation to quite a great extent, for instance through the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018. We have a more accessible and affordable civil justice system in Scotland than we had previously. On balance, it is possible to raise an action for damages quite inexpensively, using the simplified procedure that I have already talked about. The fact that those routes are available means that there is not an access to justice issue here, as far as I am concerned. Therefore, I am not minded to review legal aid in that regard.

Liam McArthur

Shona Robison talked about Scottish PEN’s proposal for a pre-action procedure that might speed things up and reduce costs. Dr Andrew Scott—I think—also referred to the introduction of a preliminary process or hearing that could deal with take-down requests and make quite quick decisions on whether words have a defamatory meaning. Might the Government be prepared to look into that issue further?

Ash Denham

My officials will correct me if I am wrong, but I think that I am right in saying that both those issues concern court rules and would come under the remit of the Scottish Civil Justice Council.

Michael Paparakis

That is correct. Mr McArthur is perhaps referring to the idea that sheriffs would get more case management powers. Obviously, they would be able to direct proceedings according to the nature of the defamation, so there would be scope to have a single-meaning hearing to attribute the meaning to the defamatory statement. Certainly, under the simplified procedure, sheriffs have a great deal of scope for case management powers. I know that the Scottish Civil Justice Council was considering a wider review of the ordinary procedure, partly with a view to giving sheriffs more case management powers, too. The direction of travel is certainly towards allowing sheriffs more freedom to direct the proceedings. That would certainly be of value in defamation law.

Liam McArthur

From what you have said, it appears that a certain degree of latitude already exists. However, from the evidence that we have taken, I think that there is a question about whether that latitude is being used as widely as it should be. Therefore, before we invest further powers in this area, it might be helpful to understand why there might be a resistance to using the powers in the way that has been suggested.

Ash Denham

That is a fair point. If the committee has an interest in that and wants to make a recommendation on that point, I would be happy to write to the Scottish Civil Justice Council to express views about the benefits of early determination and so on, under the case management arrangements.

The Convener

No member has indicated that they wish to ask any further questions, minister, so I thank you and your officials for the evidence that you have given us this morning.

That concludes the evidence-taking sessions on the bill at stage 1, and it also concludes the public part of our meeting. Our next meeting is a week today, on Tuesday 29 September, when we will take evidence from Gil Paterson on his proposed post-mortem examinations (defence time-limit) (Scotland) bill.

We will now move into private session.

11:12 Meeting continued in private until 11:53.