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Jarndyce vs Jarndyce – an update

Since my last post on the subject of my peremptory summons to help Mr Wightman with his legal troubles, I have received a copy of the court’s transcript of the event which I now share with everyone.

Wightman Wildcat Haven hearing transcript 2018_03_30_10_31_27

I have to admit that I had rather forgotten about the whole defamation thing. Highland Titles is in a particularly good place just now – 2017 was our tenth year of growth with our highest turnover and profit ever. This provides us with an income that we can use to do much much more than we ever imagined when we hung out our shingle in 2006. The lucky 100 who are booked to attend the 2018 gathering will hear about our plans first. Those on our mailing list will hear next. It does keep me busy, but that is certainly a very good thing.

But Mr Wightman was brought to my attention again last week when I received an email from a friend alerting me to a tweet (below). It appears that Mr Wightman will be dusting off his begging bowl again.

What a difference a year makes! Eleven months ago the news of his crowdfunder appeal for a modest £10,000 electrified Twitter.  318 hearts and  592 retweets.  Wow. This year the request for an additional extraordinary £120,000 created a massive social media yawn.  One heart and a comment from Cathy. Hopefully she will be donating the full £120,000 because nobody else appears to be interested.

One possibility is that people realise that trying to defend the indefensible is an expensive and futile ambition.  Surely it would be better to apologise and try to set the matter straight?

To spend so much money on lawyers which could be better spent on a million diverse good causes is arguably the behaviour of a man who knows with unwavering confidence even beyond conceit that he’s benefitting everyone around him.  He must be saved at all costs no matter what damage he may have caused to the little people. He cannot be seen to have erred.

His statement on his website that the court date “may well be a year or more away”, taken in context with his previous delaying tactics, suggest that his strategy might be to try and make the other side (a small wildlife non-profit) run out of money as their legal fees steadily increase.  He states “The estimated duration of the hearing is 8 days”.  Quite frankly this is ridiculous. The case is a simple open and shut case which I am advised could be concluded in two or three days.  His desire for an 8 day hearing would result in increased costs and massive delay.

If he had wanted to get his day in court, I cannot but wonder why he turned down the offer(s) of free legal help that he received.  Rather than represent himself, accept free help or turn to any number of well-intentioned “legal” friends who would surely have been pleased to represent him for a modest fee, Mr Wightman, possibly sensing the truly impossible job of making black look white, turned to one of the more expensive advocates at the Edinburgh bar, Roderick W. Dunlop Q.C.

https://twitter.com/AJacksonScot/status/863725455492476930

As I have made very clear under oath to the court (see transcript above), my only connection to Wildcat Haven (and Wildcat Haven Enterprises), is that a company that I represent as a director, Highland Titles Limited, has been funding it since WH was formed in 2015.  Before that we funded the  Scottish Wildcat Association charity.  Highland Titles have poured well over £100,000 into wildcat conservation and I do not begrudge a penny of it.  We plan to donate considerably more as do other organisations.

But nobody gives away money without making checks that hard earned cash will not be misused. We met with the principals of both organisations before funding them and undertook due diligence. We are well aware therefore that Mr Wightman has got many of his facts wrong as indeed he has done for Highland Titles.  The court will eventually determine whether these factual inaccuracies amount to defamation and if so what damages are due to Wildcat Haven Enterprises.

This leads me to observe that Mr Wightman, in his latest blog update on his website, has been just a teensy bit mendacious – it is called lying by omission – in his description of the case against him – perhaps unintentionally done. He states:

Wildcat Haven Enterprises CIC claims that statements that I made in the two blogs are defamatory. I do not accept that they are. 

Yet my personal opinion is that his tweets have been far more defamatory than his blogs and he fails to mention that they are also part of the case against him. Mr Wightman has elsewhere drawn attention to his difficulty in responding to the six pages of his tweets (as well he might).

I note that AW has deleted his blogs. He does not appear to have deleted his tweets. Time will tell whether that was a schoolboy error. Hopefully not a very, very, very long time.

 

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Land Registration

Highland Titles sells souvenir plots of land, so we take a keen interest in the subject of land registration. In a previous post, I discuss the law concerning land sales in Scotland so I will try not to repeat myself.  Persistent followers of Highland Titles, lawyers Malcolm Combe and Jill Robbie have argued that the “sterilisation of land should not be encouraged”, but I believe this to be very much a minority view.

Most people believe that land ownership should be spread more widely.  The Scotsman reports that analysis by land reform campaigner and now Green MSP Andy Wightman has estimated that half of the privately-owned land is in the hands of 432 people. An hour with Google will prove that the general opinion is that ownership of land should be spread around more people rather than less and that protection of tracts of countryside by placing it into multiple ownership would be a good thing.

As I have clarified earlier, Scottish law was forced to restrict registration of souvenir plots by the Registers of Scotland, who lacked the capacity or will to register small low-value pieces of land.  This is explained in “Registration of Title Practice Book The Policy and Practice of Land Registration in Scotland“As is so often the case, the wants of the rich and powerful rode roughshod over the equally valid wants of those who only wished to purchase a token size piece of land for sentimental or commemorative purposes.

Our souvenir plots are purchased by people all over the world for a wide variety of reasons.  We know who they are and they can choose whether to make their details public on our Scottish Land Register. Should they wish to transfer ownership to a new owner then the register can be updated to show the new ownership.

Our Plot Register is available now available for all to view  (even Green MSPs) at www.highlandtitles.com/find_plots/  There is no charge to register land or to search the register.

Since we launched the land register, uptake has been significant.  A few plot owners still prefer to keep their plot ownership a secret, sometimes to the chagrin of those who hope to discover the extent of their land holdings.  However I believe that the Highland Titles Land Register goes a considerable way to fulfill Mr Wightman’s campaign to “End the Secrecy”.

Green MSP Andy Wightman makes use of the Highland Titles Land Register
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Glencoe – the Trademark

When Highland Titles purchased Keil Hill in 2007, with the intention of creating a nature reserve that would become a popular tourist attraction, we sought to create a valuable brand which would require our protection. We settled on the name “Glencoe Wood” as the name of the woodland north of the Salachan burn. Our supporters were encouraged to adopt the style of Laird of Glencoe Wood, or Laird of Glencoe for short and we trademarked this name to protect it from being used by our business rivals.

In investing time and money in registering our trademarks, we have acted more cautiously than most other businesses in the Glencoe area, such as Glencoe Mountain, Glencoe Activities and Discover Glencoe, who have failed to register their trademarks.  But we are no different to several other business owners who have chosen to protect their “Glencoe” based branding. An example would be the Nevis Distillery, who own the Glencoe trademark in respect of their Glencoe malt whisky and the English clothing firm, Glenmuir Limited in respect of clothing sold under the “Glencoe” brand.

Over the last ten years we have invested heavily in the Glencoe area and created a popular tourist attraction which brings 10,000 visitors to the area every year and rising. Our visitors stay in local hotels and B&Bs, they drink in local pubs, shop in local shops, eat in local cafe’s and use other local facilities whilst here. Ultimately, like other local attractions, we bring money into the local economy which creates local jobs and supports other local businesses. We have investment plans but this of course depends upon us being able to protect our brand. Every business needs brand security which is the reason that the trademark office exists.

Which leads us to the 2015 registration of the name “Glencoe” by the National Trust for Scotland, Scotland’s largest conservation charity.  With this “dog in the manger”  trademark registration they intend to decide who does or does not get to use that word in their business branding. This appears to us to be disproportionate and unhelpful, particularly to the local region. Should Glencoe Mountain become “Rannoch Moor Mountain”, Glencoe Activities become “Ballachulish Activities” and Glencoe Wood have to be renamed “Salachan Burn Wood”? And what will our local marketing group, “Discover Glencoe” become?

We have not sought to disadvantage or threaten any business in the area and the same cannot unfortunately be said for the NTS, who appear not to like competition from a privately funded organisation. They have threatened our volunteers and threatened us. Now it appears that they do not like any organisation who dares to use “Glencoe” in their branding simply because the NTS are a major local landowner and they are not afraid to squander their members’ membership fees on Edinburgh lawyers. As Lord Lyon knows only too well, a legal letter scares most organisations into submission, and they only have out of date medieval laws to back up their threats. We eventually adopted the Arkell vs Pressdram response to successfully get Lord Lyon off our backs (it certainly cheered me up). We encourage Hillcrest to take a similar firm line with NTS. 

Which brings us to the threat of legal action made to Hilltrek Outdoor Clothing, a small Scottish business which has been employing Scots on Scottish Deeside for nearly 40 years. They have been selling their Glencoe Jacket for most of that time as can be proved by archived website copy on the “Internet Archive”. Their right to use the Glencoe brand for clothing predates the National Trust’s trademark application, showing it to be a legal sham.                                                                                                       . 
The lawyers’  letter states “Only goods and services with geographical links to Glencoe can use the name to protect the local community’s trade interests.”  However Highland Titles condemns the Trust’s bullying attempt to own the Glencoe brand and we feel that businesses with geographical links to the Glencoe region, should be left to protect their intellectual property themselves. The local Glencoe community does not need corporate bully boys offering protection with threats and menaces should we fail to kowtow to them.
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A Square Foot of Old Scotland: Ownership of Souvenir Plots

Highland Titles has from the first day of trading made sure that we comply with the law in all regards. My wife is a barrister and latterly in her career at the bar, a senior Crown Prosecutor. Before we commenced selling our square feet, we consulted our family solicitor in Aberfeldy. When he retired, our new solicitor in Pitlochry confirmed that we fully complied with Scots law and provided us with a general letter to confirm that this was the case because some agents and vendors required written confirmation.

In 2012 a new Land Registration act was passed, prompting the Registers of Scotland to confirm that with the passing of the Register of Sasines, no legal avenue remained for recording the sale of souvenir plots. We revised our advice accordingly, to make clearer that a souvenir plot purchased from Highland Titles could not be registered unless the law changed.

In 2015, we received considerable free advice from lawyers and academics, active on Twitter. Some helpful and some mischievous (but all good publicity). Our Guernsey solicitors, advised us to seek counsel’s opinion on the scant Registrar’s advice – which took the form of a definitive written advice from an eminent Scots QC.  The advice confirmed what our Scottish solicitors had previously advised, but with a considerably larger price tag!

We also took advantage of the Advertising Standards Authority’s Copy Advice Team‘s review service. They reviewed our non-broadcast advertising (our web site) and confirmed that we complied fully with their CAP code.

Then, onto the playing field came Jill Robbie and Malcolm Combe, academics from the University of Glasgow and Aberdeen respectively. They had kindly taken time out to study our business model and clearly saw the inherent problems caused by the Registers of Scotland’s lack of capacity to deal with the sale of souvenir plots.  In their paper, published in the Edinburgh Law Review, they begin:

After setting out the problems caused by the lack of capacity in the Registers of Scotland (which I see more as an opportunity – our customers generally have no wish to pay the Scottish Government to register their plots when they are registered by Highland Titles for free)  they go on to put the case for reform, commencing with the question “The online debate encourages reflection on whether there is continuing justification for the prohibition on registration of souvenir plots.“

They point out the problem caused by the ongoing lack of resources at the Registers of Scotland, a position which they suggest will not change at least in the next ten years. They write that an argument against registering small plots is that once land has been broken up into small units in multiple ownership, resale becomes difficult. They argue that the “sterilisation of land should not be encouraged”. However I believe that putting parcels of land beyond development has great value when it comes to conservation land.

Finally they argue that the lack of a real right to an asset of low economic value such as a £30 souvenir plot might not be of significant concern, and this really is the nub of the issue. The Scottish government, either deliberately or accidentally, has enabled Highland Titles to sell souvenir plots of land without any requirement – indeed without the option – of paying to locate these plots on the Scottish cadastral map, with all the associated costs that would obtain.

Thank you Jill Robbie and Malcolm Combe for your kind review of the law surrounding Highland Titles and souvenir plot sales in general. Should you like to have a free square foot for your troubles, please let me know.

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Defamation update – Scottish PEN

Regular readers will be aware of my interest in the subject of defamation, fueled in part because I have been subjected to it from time to time in recent years.  A group called Scottish PEN, who include members of Scotland’s literary community, are currently lobbying to “Ensure reputations can be protected in a manner available to everyone, not solely the rich and powerful” and that is certainly something I could get behind. Unfortunately some of their other objectives are positively unhelpful, but it seemed interesting that they are looking at the issue as part of a campaign to reform defamation law.

From the ScottishPEN website:

The overall aim of the campaign is to update and reform defamation law so that it:
1) Accurately reflects the modern media landscape, offering effective protection for freedom of expression
2) Ensures reputations can be protected in a manner available to everyone, not solely the rich and powerful
3) Provides safeguards for individuals from companies or those with powerful interests seeking to silence reasonable criticism and comment

They go on to state:

Specific points we see as essential to the reformed law include:

  • The inclusion of a serious harm test that discourages trivial claims that can chill free expression and inundate Scottish courts with ‘vanity’ cases;
  • The creation of a statutory public interest defence that protects the publication of information that benefits public debate and informs civil society across Scotland;
  • Restricting corporate and public bodies suing for defamation. Corporate bodies do not have a private life, personal identity or psychological integrity. In the spirit of a law to protect citizens and the rights of citizen critics, corporate bodies and associations should be restricted in their ability to sue for defamation;
  • A single publication rule to replace the multiple publication rule, which currently counts every hit on a website as a new publication of the material on it and therefore a potential fresh cause of defamation action. A single publication rule best reflects communication in the digital age;
  • Defamation law to be brought up to date for the digital age. The law as it stands makes internet service providers (ISPs), forum hosts and similar entities liable for material published by them/on them. The law should ask claimants to approach authors of material before ISPs become liable for it, to prevent ISPs being forced to take material down in the face of defamation threats.

It seems unclear to me how any of the specific points act to enable Aim 2. My thoughts on this are that a “small claims court” should be available for the use of those simply wishing to set the record straight when defamed and where only modest costs and damages would obtain.  If somebody on Facebook makes a malicious and false assertion, then they should be called into this hypothetical small claims court and asked to prove it. Failure would require that they retract the assertion and perhaps cover the costs and modest damage award.

More worrying is the suggestion that corporate bodies should be denied the right to act. Whilst it is true that “Corporate bodies do not have a private life, personal identity or psychological integrity” they can certainly suffer damage.  For example, if a well known MSP recklessly blogged that one of the big supermarkets added pork to its range of halal beefburgers, they could suffer massive financial damage. The MSP may well have had the best of intentions sharing this information “in the public interest”.  But if he failed to check his facts, should he not be held to account? Why should the innocent supermarket be left holding the bill for damage?

Of course there should be a serious harm test. “Vanity” cases, if they occur, are mischievous and a waste of the court time.  But a public interest defence is simply muddle-headed. It cannot help public debate to add fake news to the mix. If the facts are wrong, if the publication contains malicious falsehoods, they help nobody. If true, then the publication cannot be defamatory.

The single publication rule does NOT reflect the modern age. This suggestion is wrong. A newspaper, published today, is a chip wrapper tomorrow.  A blog or a facebook post is published afresh every time it is hit. It is there in Google for ever, being republished every time somebody runs a search.

How sad, that a campaign which might have been able to influence the long overdue reform of Scottish defamation law, which is too expensive to be used by anyone unless they have deep pockets or pro-bono lawyers has failed to suggest anything genuinely useful and indeed to make some suggestions which would help to permit the powerful and nasty to carry on defaming the weak and poor.

The ability to speak truth to, and about, power must be defended as one of our most precious freedoms.

The Scottish Law Commission’s project on reform of defamation law is approaching its final stages.

News: Scottish Law Commission published Defamation Law Consultation

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Internet Trolls

In Internet slang, a troll (/ˈtroʊl/, /ˈtrɒl/) is a person who sows discord on the Internet by starting arguments or upsetting people, by posting inflammatory,extraneous, or off-topic messages in an online community (such as a newsgroup, forum, chat room, or blog) with the intent of provoking readers into an emotional response or of otherwise disrupting normal, on-topic discussion, often for the troll’s amusement. (Wikipedia)

Over the years, Highland Titles has grown from humble beginnings to become the solid conservation movement that it is today, some 11 years after the first plot was sold. Whilst thousands of people have joined our cause and our way of raising funds, a handful of people have been attracted to me and Highland Titles simply in order to troll us. Most large and successful organisations and people attract a few trolls, so it is hard to be too upset. We do our best to wear it as a badge of honour because it marks us out as having become the market leader in private conservation. But it is interesting to understand the people who do it.

Psychologists categorise trolls as narcissistic, psychopathic sadists. Trolls will lie, exaggerate, and offend in the hope of getting a response and in the hope of inflicting pain. The damage that they cause is all part of their gratification. Research in communication and psychology has investigated people’s perceptions, rationale, and behavior and identified several factors that determine the likelihood that a given individual may post offensive content.

These are some of the most common:

1. Anonymity: Some people relish the anonymous nature of the internet. Sites such as Twitter, the comment sections of media sites, and even Facebook, permit people to use a screen name that bears no relation to their actual identity. This anonymity emboldens people and may encourage more deviant behavior, because their anonymity enables them to avoid any consequences.

Even when people use an account tied to their real identity and know they are not anonymous, they may still be emboldened by feelings of obscurity. They may believe that their actions are still fairly private. If Robin is commenting in a small Facebook group, for example, even though the comments are tied to his real name, he thinks that the people who matter in his life won’t read the post and the people who do read his comments are probably mainly people in other countries and will never encounter him in the real world.

2. In the majority: When people think they are in the majority, they will more freely express their opinion than when they see themselves as in the minority.  Thus, although individuals may not make untrue or offensive comments offline, they may feel able to do so in an online setting because they think their opinion is the prevalent one there.

3. Amongst “friends”: On sites like Facebook and Twitter, people may perceive their online environment to be full of people like them, because they are part of the same social network. Thus, individuals feel confident self-expressing because they anticipate support or agreement from their network. Amanda might post an angry, vitriolic message because she assumes that her network members feel the same way.  She might even do so to earn “likes” or other expressions of agreement from her friends. But social media networks are often more heterogeneous than we think. Even private posts may reach “friends of friends”— people we may not even know. And comments can easily be shared outside of our immediate network. Thus, although we feel we are surrounded by people who agree with us, there actually may be many who disagree or find our comments hurtful and in some cases may leave a troll open to legal consequences, either for defamation or under the criminal law. Harassment is taken very seriously by law enforcement.

4. Desensitisation: Over time, we may get desensitised to the internet. Whereas once we would have thought about the legal consequences of what we wrote or said, when we are online we just post without thinking about it. We may see so many nasty comments that we think making one ourselves is risk free. If we get used to using a certain social media site like Facebook or Twitter to express our daily experiences and frustrations, we start to lose our filter. It is also easier to type something defamatory into a screen than to say it to someone’s face.

5. Personality: Some individuals, such as politicians, are outspoken by nature. They may tend to think that they are morally superior to others. Or they may just enjoy making other people uncomfortable or angry. Any of these traits may drive individuals to express themselves online without a filter. Personality traits such as self-righteousness and social dominance orientation (in which you think some social or ethnic groups, typically yours, are inherently better than others) are related to expressing intolerance. Others are “hard core” believers who will express their opinions no matter what, because they believe their opinion is infallible.

6. No consequences: Social exchange theory suggests that we analyse the costs and benefits in our communication and relationships. Generally we believe that the benefits of expressing oneself outweigh the costs. If we can remain anonymous, we believe we won’t be held personally responsible. Perceived majority status, social identity salience, or being surrounded by friends means you believe that even if some people are upset or angry, you have more (or more important) people on your side, so you win more friends than you lose. Personality traits and desensitisation may make offending or losing friends not seem like a real consequence, because those friends aren’t really “worth it” if they can’t handle the “truth,” or they aren’t really friends if they don’t agree with or tolerate you.

7. Social identity salience: The social identity model of deindividuation effects, commonly referred to as the SIDE model, suggests that when online our social identity can mean more than our individual identity. Andy might be a nice, civil person offline, but when he goes online to talk about Highland Titles, he may feel free to express outrageous, untrue and defamatory sentiments, oblivious to the damage this may cause and his own exposure to the cost of legal action. This is also often seen in political discussions, in which people start responding like a group member based on political, national, ethnic, religious, or other identity or affiliation. This process of deindividuation is known in more extreme forms as “group mentality”— you stop seeing yourself as an individual and act in line with the group. As a result, the group’s behavior becomes increasingly extreme as individual members of the group shift to conform to the group even if their opinions were not originally as extreme as others in it.

That still leaves the question “Why do trolls do it?”.  Just because somebody has a personality that leaves them open to temptation, it is still a personal decision to try and hurt somebody.

Trolls are bored. Being failures in their own lives, they seek attention online where it’s readily available and easily acquired. A troll’s behavior reflects their insecurity. If someone responds to their words it adds meaning to their lives.  They crave attention: All a troll wants is you to turn the spotlight onto themselves. They want you to repost their comment to your followers. They want you to write a blog post or status about them. They will use anything and everything to get it and if the truth is pedestrian, they will make up more interesting “fake news” to gain attention.

Victims often feel compelled to respond to “set things right.” However, even if you respond in a cheerful or positive way, providing accurate information, you’re still feeding the troll and the whole enterprise escalates.

 

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The Lord Lyon – an Expensive Anachronism

I have mixed feelings about the Lyon Court, in part because of their attitude towards our Coat of Arms which we have used for more than ten years and which we registered at some expense with the UK Government.  The United Kingdom, of which Scotland forms a part, approves and protects our use of the device, whilst Lord Lyon cheekily asked us to pay him more than £3,000, for the privilege of displaying it in Scotland.

We have the right to display it in Scotland, but after a fruitless exchange of opinions between myself and Alexander Green, the legal arm of the Lyon Court, we had to agree to differ. So as not to offend Lord Lyon’s sensibilities further, I agreed not to display our Arms in Scotland and he has kindly agreed not to waste our time further.  The Lord Lyon based his right to interfere in how people display their Arms in Scotland on laws dating back over 500 years. They have not been used for hundreds of years and would undoubtedly fail if tested in court. It was very tempting to force the issue and have my day in court, backed by a human rights organisation, but there are usually more urgent issues to spend money on than making lawyers rich.

A coat of arms is a unique heraldic design on an escutcheon (i.e. shield), surcoat, or tabard. The coat of arms on an escutcheon forms the central element of the full heraldic achievement which consists of shield, supporters, crest, and motto.  lyon-letter

Some of our customers and even some journalists imagine that Lord Lyon is involved in the sale of Souvenir Plots or the adoption of the Laird Title. This is simply not so.  To quote Lord Lyon, in a letter to one of my customers, “I have no official remit or governance over the sale of souvenir plots of land – you instance one square foot – or the adoption of the style of “Laird” by the new owner.”

The principal role of the Lyon Court is to administer the Public Register of All Arms and Bearings in Scotland – in other words he sells coats of arms to people and companies, for thousands of pounds a time. The sale of these Arms goes some way towards covering the costs of his department, but few people now consider that maintaining the pomp of the Lyon Court is a good use of money in a modern Scotland.

We are pleased to have gained the support of SNP MP Corri Wilson for our campaign to clip the wings of Lord Lyon.

She raised the issue at Westminster, asking the Cabinet Office whether it would review the operation of the 1592 Act in respect of the restrictions it placed on the “granting of arms”. Scottish Conservatives’ leader Ruth Davidson has also raised the issue with London.  However, Minister for Constitutional Reform John Penrose said any questions of “judicial functions” were devolved to Holyrood.  It is hard to believe that Nicola Sturgeon cares more about Lord Lyon than spending on public services so we can but hope for progress.

As the Scottish Sunday Herald has said, ” The world has moved on: perhaps Lord Lyon should, too.”

 

 

 

 

 

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Defamation

After J. B. Handelsman, The New Yorker

What has defamation got to do with conservation? I hear you say. Well “not a lot”, of course, but I take an interest in an eclectic range of topics and for the last few days I have been reading Professor Kenneth Norrie’s fascinating book, “Defamation and related actions in Scots law”.

The right to protection of reputation is recognised as being guaranteed by
Article 8 ECHR. In Scotland there are two routes by which one can protect
reputation against false statements that cause damage: defamation and verbal
injury.

The delict (that simply means wrongdoing) of defamation in Scotland is interesting. In general terms, it takes place when a person communicates an untrue and damaging imputation against another person. Prof Norrie sets out the following “peculiar” features:

  • ” it is an intentional delict in which the intent to injure is usually irrebuttably presumed“;
  • ” it is a delict only if the statement or communication upon which it is based is false, but with which falsity is rebuttably presumed…”;
  • “the pursuer does…always have the onus of proving that the statement or communication complained about is “defamatory” and that it has been “communicated”

Essentially, if someone thinks that what you wrote about them is defamatory,  the onus will be entirely on you to prove that your comments are true in court. In other words, if you make the claim, you’ve got to prove it!prove-it

Defamation has long been defined as something that “tends to lower the plaintiff (pursuer in Scotland) in the estimation of right-thinking members of society generally“, and whether something is defamatory is up to the court to decide. True words can be defamatory but in order to found an action in defamation a defamatory statement must also be false. However, interestingly, if found to be defamatory, it is not up to the pursuer to show that the material is false. The defender bears the onus of showing that his statements are true.  In order to found an action in defamation a statement must also be made with malice (it must be intended to cause injury). However it is a presumption that anyone publishing false and defamatory statements, does so with malice.

So, how can the defender who made the defamatory allegations avoid being held liable for defamation? The available defenses fall into several broad categories.

  • justification; i.e. the material as published is true
  • fair comment; this protects statements of opinions or comment on matters of public interest
  • privilege, absolute  or qualified;  this guarantees immunity from liability in certain situations e.g. in parliamentary and court proceedings

Fair Comment

Lord M’Laren has described the Fair Comment defense as follows: “The expression of an opinion as to a state of facts truly set forth is not actionable, even when that opinion is couched in vituperative or contumelious language.”   The defender must prove that the words complained of were comments, not offered as facts and the facts upon which the comments are based should be stated. and that these facts should be true. Finally the comments must be on a matter of public interest.

Anyone who repeats allegations can also be sued. Seeing something written somewhere else doesn’t mean it is true and does not make it safe to repeat. Also, Scots law provides no special protection to website publishers.

The defamatory statement must be communicated. As well as traditional forms of publication, this may now include blogs, Twitter, LinkedIn, Facebook, Trip Advisor and similar.

Scots Law will compensate the injured party for hurt feelings, reputation and/or honour. The greater the circulation by the original defamer the greater the sum of damages is likely to be. It may not only be the originator of the statement who is possibly liable, but also those who repeat the statement. We all know how fast a Facebook thread can spread. If the post contains a defamatory statement then each time it is shared its audience increases as does the number of potential defamers and the size of the liability.

The ease with which actions for defamation can be launched in Scotland has got some people worried. For a discussion of this, see ScotsLawBlog and the Discussion Paper on Defamation published in 2106 by the Scottish Law Commission.

The law as it stands in Scotland appears to have only one feature that stands in the way of Justice and that is the cost of using it. Not only does this mean that many people and businesses cannot afford to defend their reputation, but that anyone who is “without substance”, who for example is unemployed, does not own property, has no savings, etc, is essentially impossible to sue as even when the case is won, the costs cannot be recovered.

I suggest that the Scottish parliament would do well to consider a small claims service dealing with defamation, able to require apologies and the removal of material when this is found to be false. They should have powers to award modest awards. In return, access would be inexpensive. No barristers. Simple court processes and a fast consideration of the facts, perhaps by written submissions.

In addition, I would make it easier to take action against Internet Service Providers (ISP), or blog hosts. Blog sites such as Google and WordPress are currently the Wild West for hosting defamatory sites. They should take far more care about establishing the identity of the content providers and the accuracy of the content. Imagine that I wished to defame or bully someone and offered to pay a national newspaper for the space to advertise. The paper would read the content with care before publishing it. The same cannot be said about WordPress.com, who will publish anything, however outrageous and then cannot be compelled to remove it without a court order. This situation cannot be permitted to continue.

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Souvenir Plots and the Law

Our new website, now available in beta and only days now from a full roll-out, seeks to address a defect in The Land Registration etc (Scotland) Act 2012, which came into force on 8 December 2014. The new site will include a Land Registry that will be a public record of souvenir plots which we have sold.

The 2012 Act created a new scheme of land registration. The act repealed much of the old land registration statute: the Land Registration (Scotland) Act 1979, and the Land Registration (Scotland) Rules 2006 made under that act. It also realigned the law of land registration with property law. It also put on a statutory footing many of the policies and practices the keeper had developed since the introduction of the Land Register in 1981. What it singularly failed to address, despite my drawing the matter to their attention during the public consultation process, was the right to register souvenir plots of land.

Highland Titles owns land which it wishes to sell in small plots. The purchasers wish to register their purchase, as is normal for land purchases. Yet the 1979 act and the recent 2012 act specifically forbid landowners from registering their land. It would be a simply matter for the area of land being sold as souvenir plots to be defined in the register and for all purchasers to be recorded. It could easily become a source of income for the Registers of Scotland. Yet the law prevents them from doing so. I think that may be in direct violation of A1P1 of the ECHR.

The right to property is enshrined in article 1 of Protocol 1 to the ECHR. It is known to be the most frequently violated Convention right, after the right to speedy trial and the right to a fair trial. As of 1 January 2010, 15% of all judgment in which the European Court of Human Rights found a violation of the ECHR concerned the right to property.

The text of the article is straightforward:

Protection of property

(1) Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

(2) The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

Over the years the European Court of Human Rights has boiled this down to the following three rules:

  1. “Every natural or legal person is entitled to the peaceful enjoyment of his possessions”
  2. “No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”
  3. “The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties”

The Court has judged that these three rules should be considered to form one concept of property protection: The enjoyment of possessions is guaranteed, but this guarantee is not without limits. However, when it comes to restricting the right to property it needs to be borne in mind that property is in principle protected under article 1 of protocol 1 and rule 2 and 3 have to be construed in light of this principle (Beyeler v Italy)

The Court has found that any interference with the right to property has to pursue a legitimate aim. According to the second sentence of article 1 of protocol 1 deprivations of property are only allowed if they are in the public interest and the second paragraph provides that the control of use of property has to be in accordance with the general interest. The Court reads these provisions together as establishing one principle that interferences with the right to property have to serve a legitimate aim. It has also inferred the principle of a legitimate aim from article 18 ECHR, which provides that limitations on rights foreseen in the Convention may only be used to the ends for which they are prescribed (Beyeler v Italy, para 111).

Yet what could be more patently in the public interest than that a charity with conservation as its core objective be permitted to purchase land for the purpose of creating a nature reserve which, by being put into community ownership in small plots, becomes impossible to ever develop. The government creates nature reserves, but chooses to legislate to hinder us from achieving a similar objective.

As with the other qualified rights, most of the disputes in Article 1 Protocol 1 claims turn on the test of proportionality since the right to enjoyment of property is subject to many provisos and exceptions “in the public interest”.  The Court has judged that there should be a fair balance between the interests of the individual affected by measure interfering with the right to property and the interests of the general public. The interference must not impose an excessive or disproportionate burden on the individual (Valkov v Bulgaria).

Yet this ban on registering souvenir plots seeks to interfere with our use of our property without any benefit to the public. In fact – quite the opposite.

Of course, I am but a humble zoologist, and have no training in the law. To me, it seems clear-cut that the right to register souvenir plots of land is in the public interest. But what do you think?