‘Three jurisdictions, one reputation’: reform of defamation laws in Scotland

Robert Sharp

Following calls from over 100 authors last week for reform of Scotland’s antiquated defamation laws which not only endanger free speech but could lead to libel tourism, Scottish Legal News spoke to English PEN about the developments south of the border that culminated in the Defamation Act 2013 and why it is important the law in this area is harmonised across all three of the UK’s legal jurisdictions.

Robert Sharp, communications manager at English PEN, told SLN that the letter was “a statement of intent, an expression of concern that for a generation now the law of defamation hasn’t been looked and a whole medium has come about in the meantime.”

In particular, he pointed to the “multiple publication” rule which was scrapped by s.8 of the act but which still persists in Scotland at common law. It provides that each instance of a defamatory statement is treated as a new publication.

MSPs never got the opportunity to debate the 2013 Act, with a Sewel Motion at the Scottish Parliament incorporating only a small part of the legislation, s.6, into Scots law. This affords peer-reviewed academic literature qualified privilege and was justified by then Justice Secretary Kenny MacAskill on the basis it facilitated “robust and constructive scientific and academic exchange”.

And while this was welcomed by the Scottish Law Commission, it also asked the obvious question of why the other new defences and privileges in the act were not also incorporated according to the same rationale – the project PEN and others would now like to complete.

Mr Sharp has said the defamation laws in Scotland are two communications revolutions behind the times, dating as they do from well before the advent of the internet and before even that of “hot-type” in the late 19th century.

English PEN has been campaigning for the past five years to reform the libel laws in England and Wales, which culminated in the Defamation Act after a “big civil society push”.

However, Mr Sharp added that there is still “a real issue around costs”. PEN would like it to be both cheaper to defend and bring libel actions.

He also drew attention to the coalition government’s refusal to even countenance the idea the Derbyshire principle – that public authorities cannot sue citizens for libel – be extended to private companies delivering public services. He described this as “particularly troubling” given as these companies are often established for the purpose of providing public services.

Following its success with the Defamation Act, English PEN has called for an “appropriate balance rather than a wholesale neutering of the libel law” and would like to see individuals able to more easily vindicate themselves against large organisations.

It has also advocated the use of mediation and alternative dispute resolution (ADR) as a way of taking cases out of the High Court.

Mr Sharp said the act was working well, weeding out trivial claims without affecting claimants’ ability to get redress when they have been smeared.

He said: “The fact the Defamation Act seems to be working as Parliament intended is precisely what we were after so we’re going into this campaign in Scotland with confidence that the Defamation Act is a very strong blueprint for reform in other jurisdictions.”

And while developments in England have been positive – the “serious harm” hurdle in s.1 of the act has already noticeably diminished the number of libel cases – Mr Sharp noted that the UK has ‘three jurisdictions but one reputation’ and Edinburgh and Belfast remain strong options for replacing London as “A Town Named Sue”.

“It is important that the unreformed laws in Scotland and Northern Ireland don’t undermine the English law,” he said.

He cited a university press ready to publish a book on corruption in Russia but which was advised to remain as cautious as before the act because of the prevailing defamation regimes elsewhere in the UK.

In Belfast reform looks more remote, with some lawyers actively welcoming libel tourists. This is compounded by the fact the Northern Ireland Law Commission had its funding drastically cut by the Minister of Justice in April, meaning only “essential law reform” will continue – a real threat to defamation reform.

“The law of Northern Ireland is even more unreformed than in Scotland – a couple of claimant lawyers have actually been touting for business, saying ‘come and sue in Belfast because you can’t in England’,” Mr Sharp said.

In Scotland, at least, prospects for reform look very positive with Lord Pentland, chairman of the Scottish Law Commission welcoming the signatories’ support for reform last week.

He said: “There has been important recent reform in England and Wales with the Defamation Act 2013 and there is a need to consider in detail the extent to which that serves as a suitable model for reform of Scots law.”