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

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, 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.

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?