MSPs on the Scottish Parliament’s Justice Committee have supported the general principles of the Defamation and Malicious Publication (Scotland) Bill.
Their stage 1 report on the bill endorses much of the detail proposed in the Scottish Government’s Bill, which would reform the law following an in-depth report on the subject by the Scottish Law Commission.
A central issue in evidence before the committee was whether the bill gives the right level of protection to the individual's right to privacy and protection of their reputation, or whether the law would still contain what media organisations and some writers claim is a "chilling effect" on freedom of expression through the risk of legal proceedings. The committee agrees with the Government’s view that the bill represents a "package" of measures creating an overall balance, and does not propose that this balance should be fundamentally altered.
The committee is asking for further detail and clarification from the Government on a number of points before the amending stages of the bill take place over the coming months.
Specifically, it calls for:
- a clear statement from the Government as to why the "serious harm" test is still required, in light of the evidence heard by the committee;
- the section designed to prevent public bodies from suing for defamation to be redrafted, including to make clearer whether private or charitable organisations delivering public services may sue if that part of their work is criticised;
- the bill to be amended explicitly to allow the courts to continue to refer to previous case law in considering the new statutory definition of defamation, and defences to an action, and to continue to develop the law in other respects;
- clarification of whether the courts can take an offer to make amends into account when assessing damages;
- amendment of the definition of "malice", to require both falseness and malice;
- amendment to reinforce the right of individuals to bring actions more than one year after a statement is made, particularly in cases when it takes time for them to become fully aware of it or its impact;
- the Government to look more widely at issues of access to civil justice, including legal aid, albeit it is noted that this bill is not the vehicle to enact solutions to this problem.
Committee convener Adam Tomkins MSP commented: "The Justice Committee has a longstanding 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."