Writers call for defamation reform in Scotland to prevent market in libel tourism

Val McDermid

Scottish authors have called for reform of the country’s antiquated defamation laws which they argue threaten freedom of speech and could lead to libel tourism.

Over 100 authors, including Val McDermid, James Kelman, Ian Rankin and Neal Ascherson, signed a joint letter organised by Scottish Pen, a freedom of speech organisation The Herald reports.

The group warned that writers, as well as scientists, journalists and campaigners, are being subjected to the “chilling” effect of libel action threats.

They are concerned Scotland’s defamation regime, which is attractive to pursuers, makes it a soft target for those who want to silence their critics around the UK.

“In England and Wales, citizens now have more freedom to debate the issues that matter to ordinary people,” they said.

“Unfortunately, MSPs have never been given the chance to address this area of law.

“Citizen campaigners and investigative journalists in Scotland can still face defamation threats from wealthy individuals and companies who do not care to be criticised, and there is now a risk that libel tourists will start bringing cases to Edinburgh.”

They argue Scotland’s defamation laws, which predate the advent of the internet, leave social media users vulnerable to lawsuits.

They added: “A modern and open nation like Scotland deserves a defamation law that is fit for purpose in the 21st century: one that acknowledges the existence of the internet, and enables journalists and authors to conduct a robust debate on matters of public interest.”

Unlike English law, Scots law lacks a “serious harm” test for legal actions for defamation.

And while the Scottish government first rejected attempts to reform the law in line with practice south of the border the Scottish Law Commission is now looking at reform.

Any such changes would require the approval of the Parliament.

Currently, those who believe they have been defamed can sue even where the damage to their reputation is minor.

Scottish Pen believes this could lead to libel tourism. It is understood at least one litigant has availed themselves of Scotland’s weaker laws by suing in Edinburgh rather than London.

The number of defamation cases in the capital fell by almost 30 per cent last year, which has been attributed to the Defamation Act 2013.

Scottish Pen said: “The current disparity between Scottish and English law continues to cause confusion on both sides of the Border, forcing publishers, journalists and writers throughout the UK to be more risk averse to avoid being sued in Scotland.

“We currently have a two-tiered system that opens up writers, journalists and publishers throughout the UK to undue threats that severely limit what can be published.

“This is a chance for Scotland to take the lead to call for fair and transparent guidelines that maintain robust public interest protections.”

Speaking to Scottish Legal News, Kirsteen MacDonald, a director at Burness Paull said: “The absence of the Defamation Act 2013 in Scotland leads to a very real possibility that those who believe their reputation has been damaged through false accusations published in the UK will choose to litigate in this jurisdiction.

“The 2013 Act introduced a number of changes to defamation laws in England and Wales.

“Arguably the most significant of these was the introduction of the ‘serious harm’ test.

“Claimants south of the border must now demonstrate that a publication has caused or is likely to cause serious harm to their reputation.”

Ms MacDonald added: “In the case of a corporate entity serious harm will only arise where the harm has caused or is likely to cause serious financial loss.

“There is no such requirement under Scots law and on the face of it there would be scope for pursuers to raise proceedings in Scotland which would not otherwise meet the serious harm test in England and Wales.

“Awards for defamation from the Scottish courts have tended to be modest and it therefore remains to be seen whether the difference in the law north and south of the border will lead to libel tourism.”

The chairman of the Scottish Law Commission, Lord Pentland, welcomed the 115 signatories’ interest and support for the commission’s current project on reform of defamation law.

He said: “We are well-advanced with our work in the important and sensitive area of defamation law reform and are on course to publish a detailed discussion paper in the early part of next year.

“This will provide a framework for what we are confident will be a lively and open public debate about freedom of speech and related issues in modern Scotland and the role of the law in safeguarding these rights.”

Lord Pentland added: “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.

“In the light of the consultation exercise, the Scottish Law Commission will make recommendations to the Scottish government on the need for and content of legislation.”

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