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.  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.

 

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 ScotlandAs 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

Jarndyce v Jarndyce

Dave Carpenter, Condé Nast Collection
Dave Carpenter, Condé Nast Collection

Some of my readers will be aware of a civil case for defamation that is proceeding slowly through the Court of Session in Edinburgh.

Pursuer – Wildcat Haven Enterprises (WHE)

Defender Andy Wightman MSP

Neither I nor any organisation linked to me has any legal interest in the case – though because it involves one of the many good causes to which Highland Titles has given money, it is certainly a matter of some personal interest.  In a nutshell, Mr Wightman has been accused by WHE of making stuff up and maliciously publishing it so as to cause massive damage to WHE.  Mr Wightman has said, in so many words, that perhaps he did, but he is a very important person and everyone loves him, so you can hardly blame him for having a bit of fun at the wildcat’s expense.  Besides, everyone was laughing and he just couldn’t help himself. Or,  in the more precise words of his lawyers, he claims that his comments were “fair comment on matters of public interest, and/or covered by qualified privilege”.  Interestingly he is NOT claiming that the nasty things he said were true (veritas), only that for some reason he should have been allowed to say what he said and WHE just has to suck it up and put up with being damaged.  Good luck with that…..  However, I don’t need to take sides because at some stage Mr W will have to stop prevaricating and go into court to face justice.  Then everyone will know the truth.

Para 7 of Mr Wightman's "Form of letter of request" addressed to me.
Para 7 of Mr Wightman’s “Form of letter of request” addressed to me.

So, you might ask, why have I written this blog post?  Well out of the blue, Mr Wightman’s expensive Edinburgh lawyers, Gillespie MacAndrew LLP, have demanded that I answer a series of questions. Whilst I am not involved with the case I have no objection to answering questions. But in the spirit of open justice, I thought that as well as swearing a formal affidavit, I would publish my answers here for all to read – just for anyone else who wanted to know but did not have the cash to pay expensive lawyers to do the asking.

QUESTIONS posed by Gillespie MacAndrew LLP

  1. i) the nature and content of contracts or dispositions entered into or granted by the pursuer with or to “buyers” of such plots of land;

Highland Titles print and ship all the documents on behalf of WHE, so I am able to answer that.  All customers are sent a rather grand disposition on parchment – setting out who they are, who is selling the land (WHE) and which bit of land they have bought.  For £30 Mr Wightman -or you – can get your very own copy posted to you in a sumptuous gift pack ready for Christmas.  Frankly they don’t need to ask me. They need to prise open their wallets, visit www.wildcathaven.com and make a loved one a very special gift this Christmas.

  1. ii) the location(s) of plots of land ’’sold” or being offered for sale by the pursuer;
Map showing land gifted to WHE in August 2015.

Paul and Emily O’Donoghue and Helen McGregor and myself met with Duncan Thompson (a partner in the firm of J & H Mitchell, Solicitors) at his offices in Pitlochry on Wednesday July 8th, 2015 to confirm that we could gift a parcel of land to WHE without any consideration (i.e. free, gratis and for nothing – zilch, zippo, nothing coming back). He confirmed that we could do that and so a few weeks later we selected an area well away from the few plots we had already offered for sale to Highland Titles customers and instructed J & H Mitchell to convey 4Ha from our Mountainview nature reserve in Glen Loyne to WHE as a gift Gift of land
Paitna Green Wildcat Haven_106794
.

iii)           the numbers of plots ’’sold’’ by the pursuer and the prices obtained by the pursuer in respect thereof;

This is actually a question for WHE. Highland Titles print and assemble all packs for WHE, and then ship them, entirely at our own expense. We also provide free customer support. We know that following Mr Wightman’s first blog the numbers of packs we were shipping took a nosedive.  Doubtless WHE have provided precise details to Gillespie MacAndrew LLP.

  1. iv) the use to which moneys obtained by the pursuer in selling or purporting to sell such plots has been put;

Not Known.  Again this is not a sensible question to ask me.  All funds raised by WHE were taken directly by them and clearly applied to the work of Wildcat Haven. Certainly no money has come my way (or to any other organisation or person on my behalf) , nor should it. WHE is charitable in its objects and with Highland Titles covering most of the outgoings, the income derived from the sale of plots was able to fund the excellent work done by Wildcat Haven. We donate many tens of thousands of pounds annually to a wide range of charities and good causes mainly in Scotland (but a few in Alderney), from Rotary to Trees for Life. 

  1. v) the timing, nature and content of any communications, contract or other arrangement with Highland Titles Ltd and/or Highland Titles Charitable Trust regarding the ”sale” of such plots and the use of the proceeds thereof;

There has never been any form of communication, contract or other arrangement between Wildcat Haven or Wildcat Haven Enterprises – or anyone associated with any wildcat related organisation and myself, Highland Titles, the Highland Titles Charitable Trust for Scotland or anyone I know or have ever known or their children or any organisation any of them have ever been involved with – regarding the ”sale” of such plots and the use of the proceeds thereof.  Mr W seems to not understand the nature of charity. You give without wanting any return except that good things, like saving the Scottish Wildcat, can happen. 

As stated above HT prepares and ships all orders entirely at its own expense. This is not a contractual obligation, but we have verbally offered to do it for the forseeable future.  Neither the Trust, HT, myself or anyone else has an arrangement in place to recover any expenses from any source. Packs are prepared and shipped completely Pro Bono.  

  1. vi) the ownership of the land from which the said plots were ”sold’’, and the reason(s) (other than referable to the sale of individual plots) for any change in such ownership; and

The land sold is owned by WHE. It was gifted to them by HT in July 2015.

vii)         the nature of any offices held by Mr Douglas Wilson with the pursuer and/or Highland Titles Ltd and/or Highland Titles Charitable Trust, and the periods during which such offices were held by him.

Early in the life of WHE (09664321 – Incorporated on 30 June 2015), Douglas Wilson served as a director of both WHE and Highland Titles and as a trustee of the Highland Titles Charitable Trust for Scotland. However HT planned not only to give WHE land but money too. Because there was a potential conflict of interest, Douglas decided to resign from these positions, which he did as soon as we were able to find suitable replacements. He stepped down as a Trustee of the HTCTS on July 6, 2015 and as a Director of Highland Titles on August 21, 2015. He is a sad loss to the Highland Titles operation as he is an Scottish entrepreneur and businessman with a passion for Scotland and wildlife coupled with experience and competence that would make him a huge asset to any organisation.  Our loss is the Scottish Wildcat’s gain. 

Twitter Abuse

I have been the victim of twitter abuse, and I have reported this fact both to Fort William police and the Scottish Parliament. Some of the abusers are known and some have wisely sought to stay anonymous. However this may not save them from legal consequences.

Yesterday, Alison Saunders, head of the CPS announced that Hate Crime would be a new priority and I welcome that.

Prosecutors will be ordered to treat online hate crime as seriously as offences carried out face to face in plans announced by the director of public prosecutions. Alison Saunders said the Crown Prosecution Service will seek stiffer penalties for abuse on Twitter, Facebook and other social media platforms.

Alison Saunders, Director of Public Prosecutions on hate crime

Published on Aug 21, 2017

The CPS describe Hate Crime as including “verbal abuse, intimidation, threats, harassment, assault and bullying” motivated by hostility (There is no legal definition of hostility so the CPS use the everyday understanding of the word which includes ill-will, spite, contempt, prejudice, unfriendliness, antagonism, resentment and dislike).  The law in Scotland is different, but harassment is still harassment, even north of the border.

According to the Herald, “Wings Over Scotland” blogger, Stuart Campbell, was recently arrested. The Herald further reports “Police said the arrest was on suspicion of harassment and malicious communications”. Stuart Campbell reports on his website that none of the tweets were in any way threatening, but as I learned when I visited Fort William police, a campaign of harassment need not be threatening, merely unwanted and unwelcome.

I note with interest that Andy Wightman MSP, who has blogged and tweeted about me and Highland Titles for over two years, appears to have taken a break from using his twitter account. Recently one of the more agressive web sites, which has targeted me and Highland Titles since 2011, was deleted. I welcome this progress. The future will be a better place if the internet is no longer used as a vehicle for the dissemination of lies and harassment.

 

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.

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.

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 UK 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

 

Internet Trolls

In Internet slang, a troll (/ˈtrl/, /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.

 

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.”

 

 

 

 

 

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.