Nik Williams: Why the Faculty of Advocates is getting it wrong on defamation

Scottish PEN's Nik Williams explains why Scotland's defamation laws work in favour of the few instead of the many 

WHO is the law designed to protect? Whether Freedom of Information legislation, public spending, legal aid reforms or defamation laws, answering this seemingly straightforward question should be a priority for lawmakers across the UK when addressing out-of-date, inadequate or badly drafted laws. 

The question of defamation reform has gained significance in the past months with both Scotland and Northern Ireland embarking on ambitious reform processes to amend and update defamation legislation that has remained largely unchanged for decades, ignoring both the digital communication revolution that has shaped the modern world and the Defamation Act that came into force in England and Wales in 2013.

With the growth of independent media and community voices shared online, the importance of defamation reform cannot be overstated. Without reform, free expression will forever be on tenuous and fragile footing, at risk from powerful and wealthy interests who have at their disposal a law that lacks any meaningful public interest defence amid a number of other glaring omissions.

Read more – Law reform chair welcomes campaign to change Scottish defamation rules

Scotland cannot profess to champion free expression when defamation laws remain so out of date or inadequate. Yet opposition to reform exists, and the origin of this criticism is telling. 

In its submission to the Scottish Law Commission, the Faculty of Advocates called for an increase in defamation actions in Scotland to contribute "to the economic growth of the nation". 

As part of its economic model of law reform, it is critical of any reform that seeks to make it harder to bring forward defamation actions. Proposed reforms include a serious harm threshold test that would dissuade trivial 'vanity' cases, and making it necessary for the defamatory statement to be communicated to a third party. 

By lowering the bar from reputational damage to that of the claimant’s self-esteem, the Advocates have seemingly sought inspiration from the adage "if a tree falls in a forest and no one is around to hear it, does it make a sound?", ruling that the act of hearing is insignificant to whether a defamatory statement has been made. 
Clarification as to how this can "lower the plaintiff in the estimation of right-thinking members of society" in Lord Atkin’s words, is still pending.

Promoting reform that is centred on economic growth and guaranteeing work for a country’s courts and legal professionals is a thinly veiled attempt to skew the legal landscape in favour of vested interests. 

In its submission to the Scottish Law Commission, the Faculty of Advocates called for an increase in defamation actions in Scotland to contribute "to the economic growth of the nation". 

But what is best for advocates is not best for the people of Scotland, who at present are more likely to be issued a legal letter for what they have expressed online, in the papers, to their friends and family or even on online review sites such as Trip Advisor and Which? than be able to bring actions against others. 

So returning to the question of who laws are intended to protect, surely we can identify a group bigger than the country’s legal professionals to protect in meaningful reform? 

But it goes beyond this: by trying to encourage defamation actions to stimulate growth, the Faculty of Advocates is seeking to create a financial imperative towards limiting freedom of expression.

This imperative aims to pit civil society against powerful and wealthy interests and the legacy of this David vs Goliath battle has shaped Scots law, both in and out of the courts. 

The CEO and president of Vitol, Ian Taylor, threatened legal action against National Collective in 2013 for its coverage of his donations to the Better Together campaign, requiring the site to go offline. 

Read more – Scottish new media websites under threat from outdated libel laws

CommonSpace was similarly presented with a legal letter from Robert Durward, a trustee for the Hometown Foundation, after its reporting of a letter he himself had sent to The Herald. 

Currently, a Facebook group moderator in the town of Strathaven is facing defamation action sparked by third party Facebook comments about the sale of a council building at the centre of the town. These examples did not (or in the Strathaven case, are yet to) make it to court, but the chill to free expression can happen beyond the view of the courts, causing significant damage to the sharing of public interest news and debate.

Freedom of expression does not prioritise one group over another, it is universal, protecting everyone’s right to express themselves irrespective of background, medium or frontier. 

So while there are no fixed metrics as to how reform should be undertaken, something that protects the many as opposed to the few surely is a good place to start.

Picture courtesy of NICHXAV.

Check out what people are saying about how important CommonSpace is. Pledge your support today.