Scottish defamation reform stuck in the thistles – Nick Bonyhady

18 10 2018

Lukewarm response to Scottish Law Reform Commission’s report on defamation reform … Little movement … Not enough libelling going on … Defamation case against former leader splits the Scottish Labour Party … Homophobia collides with independence for Scotland … Nick Bonyhady reports.

While Australia’s uniform defamation law has been stuck in an ice age Scotland also is experiencing a glacial period with media law reform proposals, with a contentious defamation case causing a rift within the Scottish Labour Party.

In December last year, Scotland’s Law Commission submitted a report to the Scottish parliament which recommended 49 changes to the defamation regime.

They include a recommendation that there be no remedy where a damaging imputation is communicated only to the person who is the subject of it. That defamation can lie where only the subject of the publication has seen, heard or read it, is one of the archaic peculiarities of Scottish defamation law.

The report also recommended that public interest should not be a required element of the defence of fair comment.

Further suggestions broadly were in line with the defamation law that prevails in the rest of the United Kingdom after the passage of the Defamation Act 2013.

The Scottish Law Commission’s report received a tepid response.

On June 6, 2018, almost a full six months after the report had been submitted, the then Scottish Minister for Community Safety and Legal Affairs Annabelle Ewing wrote to the commission thanking it for the report.

While Ewing promised to review the document and consult the community about its recommendations, she also raised concerns:

“I note that on some issues there was not always consensus among the stakeholders you consulted with, for example: the serious harm test; and the reduction in the limitation period to name but two.”

England has a one-year limitation period and requires an element of serious harm for a defamation action to succeed, while Scotland currently has a three-year limitation period and no serious harm threshold.

The consternation among “stakeholders” seems to refer largely to defamation lawyers concerned their livelihood will suffer.

Partner Campbell Deane of Bannatyne Kirkwood Frame & Co told the Scottish Herald:

“Apart from saying come here because we are cheap as chips, there’s now no argument to come to Scotland [if the serious harm test is adopted] … It will lead to the death of defamation litigation in Scotland. It will just die.”

In the same story, Duncan Hamilton of Arnot Manderson Advocates was even blunter.

“In Scotland, we have exactly the opposite problem [of England] – we have too few cases.”

He characterised the changes as “almost the reverse of what devolution was designed to achieve: Scottish solutions to Scottish problems”.

Yet it is unclear that Scottish defamation law deals wholly with Scottish problems. While England’s defamation act restricts proceedings to those domiciled in the UK unless the court is satisfied that the jurisdiction is the most appropriate place for the proceedings, Scotland has no such test.

For a person in England aggrieved over a trivial or dated communication that has been published online, Scotland’s current laws are clearly appealing.

In 2015, 100 Scottish authors signed a petition organised by the literary freedom group PEN warning that Scotland risked becoming a destination for libel tourists.

In spite of the campaign by PEN and others, defamation law reform has been given a low priority in Scotland. The National Union of Journalists only included a passing reference to “reforming defamation law in Scotland” in a submission to the UK Cairncross review into press sustainability.

While law reform itself receives little attention, its consequences are front page news, with an ongoing defamation case causing divisions within the Scottish Labour Party.

On March 3, 2017, caustic pro-independence blogger Stuart Campbell tweeted that Oliver Mundell, a unionist Conservative politician, “is the sort of public speaker that makes you wish his dad had embraced his homosexuality sooner”.

Mundell’s father, another Conservative politician, came out in 2016 after ending his previous heterosexual relationship.

Days later, then-Scottish Labour leader Kezia Dugdale, who strongly supported Scotland staying in the UK, sharply criticised Campbell in an op-ed in the Daily Record, a national tabloid.

The article is now offline, but the text is available in court documents.

“I was shocked and appalled to see a pro-independence blogger’s homophobic tweets during the Tory conference. Abuse and discrimination should have no part in our politics,” Dugdale wrote.

Campbell commenced proceedings, alleging Dugdale’s article imputed that he was a “homophobe”.

The Labour Party initially supported Dugdale, a moderate, paying her legal costs up to a reported £90,000.

In November 2017, Dugdale abruptly resigned as leader. Shortly thereafter, while still an MP, she appeared on the UK version of the TV show I’m a Celebrity… Get Me Out of Here, which was filmed in Australia.

Before being voted out of the show in the third week, she was covered in spiders; drank a milkshake made of ostrich and pig anuses; and crawled through a tank full of fish guts.

On her return to Scotland, Dugdale received a written warning from the Labour Party, as it had not approved her decision to appear on the show. She justified her appearance by saying it would help bring Labour’s message to those not usually engaged with politics.

The party, now led by the Corbynite member for Central Scotland, Richard Leonard, stopped paying Dugdale’s legal fees in September 2018.

In early October, the Scottish Herald reported “angry divisions” within the party on the same issue after viewing leaked WhatsApp conversations between senior Labour Party members.

Two MPs who supported Dugdale were demoted from the front bench on October 5, 2018 in a move that The Guardian reported appeared “to coincide with an ongoing row over the payment of former leader Kezia Dugdale’s legal fees”.

The Daily Record, in which Dugdale’s allegedly defamatory piece was originally published, has now agreed to cover her fees, but matters don’t look likely to settle anytime soon. In an interlocutory judgment released in late August, a Scottish sheriff ruled that Dugdale has a case to answer, so proceedings will continue.

Though Dugdale’s case will be unaffected by any of the mooted changes to the Defamation Act, it underscores the need for procedural and substantive reform.

Despite the defendant Dugdale incurring £90,000 in costs, and the plaintiff something similar, Campbell has only asked for £25,000 in damages. The stand-off suggests that quite apart from reputational vindication the case is also about a political spat over Scottish independence.

The reforms proposed by the Law Reform Commission will ensure that more cases of this kind remain in the proper court of public opinion and stay out of the judicial system.

This post was originally published in the Gazette of Law and Journalism, Australia’s leading online media law publication.


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