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