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Defamation and Malicious Publication (Scotland) Bill — what next for freedom of expression?

If, like me, a furry friend has joined your family during lockdown, you’ll quickly find out just how many products there are out there to help them settle in and support their training.

My pup’s a sociable soul who wants to meet and greet every dog she comes across; however, the feeling’s not always mutual. Recalling her away from others has been one of the hardest aspects of her training so far.

Then, I came across a company that, amongst other things, specialises in dog whistles. Lo and behold, it had one that worked really well for collies. Since then, my dog’s recall has improved dramatically and, as a result, I’ve emailed the company to thank them for their help and left positive reviews about them online.

And I’m not alone.

Trustpilot, for example, says people leave more than four million reviews every month to, help others “find great companies and make better buying decisions”.

What’s more, the business review site says 89% of global consumers usually check online reviews as part of their “online buying journey”, and 49% consider positive reviews one of their top three purchase influences.

In short, we’re all publishers now and what we say online, including reviews, makes a difference to people and their businesses.

Turn that on its head though, and what about people less happy, rightly or wrongly, with service or product they’ve received?

Well one thing’s for sure, these days we're all far less able to rely on that old adage — today’s news is tomorrow’s chip paper.

What is defamation?

A defamatory statement can be something as simple as saying “you’re a bully’, and can be actionable if it’s untrue and damages someone’s reputation.

In Scotland at the moment, the defamation law is piecemeal with a mix of common law and legislation.

There have been efforts to improve the defences for defamatory statements, but there have long-been concerns about the impact on freedom of expression. And, with the likes of social media, this area of law is even more prominent.

Defamation and Malicious Publication (Scotland) Bill

Enter the Defamation and Malicious Publication (Scotland) Bill — introduced to the Scottish Parliament in December 2019 to address the impact of internet communication on defamation.

The bill has now been passed and will become law following royal assent.

Once law, it will bring in a serious harm threshold. In practice, it’ll be harder for people to raise a claim in Scotland.

They will have to show whatever has been published causes, or is likely to cause, serious harm to their reputation and it must also be published to someone else other than whom the statement is aimed at.

By setting this threshold test, courts will now be more able to dismiss claims at an early stage, if the test is not met.

The balance

It’s clear this test tips the balance in favour of freedom of expression; however, including the ‘serious harm’ test has divided opinion.

A similar test currently exists in England, but people have argued it was introduced there from a sense that unmeritorious and frivolous claims were being put forward, which hasn’t been the case here in Scotland.

Others say it puts hurdles in the way of a litigant who has a justified action, and some say it won’t prevent claims being raised in any event. Regardless, it’s remained in the bill.

Defence

Some of the common law defences, which apply equally to comments online as they do in print, such as veritas (that what’s being said is true), and fair comment are retained.

The first two are now effectively ‘rebranded’ as defences of truth and honest opinion. There is a defence if it can be shown the statement was a matter of public interest. Absolute and qualified privilege (including reporting accurately what is said in court, for example) are also retained.

Remedies

The bill does offer a wide range of remedies, including

  • Allowing an order for the defender to publish a statement of its judgement
  • Allowing a settlement statement to be read out in open court
  • Ordering the operator of a website to remove a defamatory statement or include a notice that the statement is subject to proceedings and any person who was not the author, editor or publisher to stop distributing, selling or exhibiting material containing the statement in question

Other changes include restricting who can be sued for defamation, reducing the time to raise a claim to one year and rules prohibiting public authorities from bringing defamation cases.

The serious harm test is likely to be another hurdle to overcome when pursuing a defamation case, but perhaps this bill will prove itself an effective filter for the courts to identify those cases with the most merit.

Laura Edmunds

Senior solicitor Laura is based in Aberdeen. She works within the commercial litigation team advising companies and individuals on a wide variety of contentious matters.

Posted, 11 April 2021 by Laura Edmunds
Categories: Insights | Litigation