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by Jenni Davidson
14 October 2020
Justice Committee backs defamation bill in principle

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Justice Committee backs defamation bill in principle

MSPs have backed the general principles of the Scottish Government’s Defamation and Malicious Publication Bill, which reforms defamation law in Scotland.

The proposed new legislation includes a definition of what defamation is and introduces a new threshold of causing ‘serious harm’.

Members of the Scottish Parliament’s Justice Committee endorsed the bill at stage one but have asked for changes to be made in certain areas before the next stages of the bill take place over the coming months.

The committee called for the bill to be amended to reinforce the right of individuals to bring actions more than one year after a defamatory statement is made, particularly in cases when it takes time for them to become fully aware of it or its impact.

And committee members say the bill should state explicitly that courts retain the power to develop defamation law through case law.

It also wants a section of the bill redrafted to make clearer whether private or charitable organisations delivering public services may sue for defamation if that part of their work is criticised.

The bill excludes public bodies from being able to pursue a defamation case, but with many services delivered by other organisations, the committee heard evidence that there could be inconsistency allowing for free criticism of a public service in one area where it was run directly by a council but not in another area where it had been outsourced to an arms-length body or charity that could sue for defamation.

The committee also recommended more clarity on which public bodies would be covered by the law.

In addition, the committee wants the Scottish Government to look more widely at issues of access to civil justice, although it notes that the bill will not be the way to provide solutions to that problem.

This follows evidence about the effects that threats of defamation cases can have on journalism, particularly with many journalists now working freelance, and on the other side, that it is difficult for individuals to pursue a defamation case without access to substantial funds.

It also suggested that the Scottish Government considers how the process of requesting online material be taken down can be improved.

Committee convener Adam Tomkins said: “The Justice Committee has a long-standing interest in defamation law.

“It has previously supported calls to update it for the internet era and to bring the law together into one piece of legislation.

“This bill broadly meets those aims, and we support its general principles.

“However, in order to ensure that, taken as a whole, the bill strikes the right balance between protecting freedom of expression and protecting reputation, we are asking the Government to reconsider some sections, and to provide MSPs with further information.

“The next parliamentary stages could see amendments to the bill, and it is crucial MSPs are satisfied we have robustly tested all the arguments before the bill is passed into law.”

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