Posted on

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

Posted on

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.