Dear The Hon. Lord Pentland
I am writing as a supporter of the Libel Reform Campaign to support the Scottish Law Commission’s work to reform defamation legislation in Scotland.
The media landscape following the 2014 Independence Referendum has changed significantly, and the growing role of citizen journalists, community bloggers and social media users in informing the wider community makes defamation reform of the utmost importance. Achieving a defamation law that protects free expression and the role of the citizen critic in a free society will require fundamental changes to the law.
Your work to reform our out-dated laws offers an unprecedented chance to strengthen Scotland’s commitment to free expression. As part of your public consultation process I would like to call for:
- 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.
I hope you can take these issues into consideration as you look to identify what reform looks like in Scotland. This is an important step to reassure Scottish citizens that free speech will be given stronger protections and that the vexatious culture that has grown around the law of defamation will finally be reformed.