One final push to modernise defamation law in Scotland

Today, the Defamation and Malicious Publications (Scotland) Bill will be debated and voted into law by the Scottish Parliament. It represents a broad modernisation of the law in Scotland, which had not received an update since 1996. Before this reform, the rules on defamation were more suited to print publications, were difficult to adapt to online publications, and were easily abused as a means of chilling free speech.

The Bill reflects some of the reforms seen in the Defamation Act 2013 in England and Wales, but also goes further for online publications in other areas. Significant changes include a complete protection for secondary publishers, including internet intermediaries, a single publication rule, preventing repeat rights of action for every publication on the internet, and a 1-year cut-off period for bringing an action from that first publication. Those gains for freedom of expression online have already been secured as part of the reform.

However, there is one final amendment that Open Rights Group have been working on which is vitally important to secure, and we are calling on our supporters to help get it over the line.

What’s the problem?

We have long called for reforms to the Bill’s section 30. The power in section 30 allows a court to order “the operator of a website on which the statement complained of is posted to remove the statement”. This is a reasonable power for a court to have, and to exercise, at the end of defamation proceedings.

However, the Explanatory Notes of the Bill make clear that this power is considered available to a court before the end of proceedings. It explains that the exercise of this power:

“is not confined to circumstances in which the final outcome of the proceedings has already been determined by the court. Accordingly the court would be entitled in an appropriate case to grant an order for removal or cessation or distribution on an interim basis, before the final outcome of the proceedings is known.”

This could allow a court to force an operator to remove content from their website before a legal judgment on the defamatory nature of the content. Considering that the aim of this reform, according to the Scottish Government, is to strike an appropriate balance between freedom of expression and protection of reputation, this guilty-until-innocent muzzle risks continuing that imbalance towards removal and avoid protecting freedom of expression.

This concern was raised by Open Rights Group in our briefings, and by other groups such as the Society of Authors, Scottish PEN, the BBC and the Ferret during evidence sessions. the concern was furthermore included in the Justice Committee’s recommendations for the Government to reconsider making this power available during proceedings. Importantly, it was also picked up by Fulton MacGregor MSP, a member of the Justice Committee.

What can you do?

Open Rights Group and Fulton MacGregor worked together to create a different power for the courts: a prominent notice regime. This would give the court a power to order the website operator to state, in a prominent location on the website, that the statement is subject to defamation proceedings.

This does not prevent an operator from removing the content complained of if they choose to do so. It also keeps intact the power of the court to order removal after proceedings have been completed.

A prominent notice regime will better help to achieve the policy objectives of this reform: to establish an appropriate balance between the protection of reputation and freedom of expression.

Fulton proposed this amendment at Stage 2. It is now on the list of amendments to be heard today, during the stage 3 debate.

Now is the time to secure the amendment and protect online freedom of expression.

When the debate closes today, years of work across organisations will all have been worth it. If we can secure this final amendment, we will have achieved the aim of modernising defamation law and making it fit for the digital age.

That is no small feat, and it is why we are asking supporters to write to their MSP and encourage them to vote in favour of the section 30 amendments from Fulton MacGregor.