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Defamation and Malicious Publication (Scotland) Bill: Stage 1 Report Published in Scotland by the Scottish Parliamentary Corporate Body

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Defamation and Malicious Publication (Scotland) Bill: Stage 1 Report Published in Scotland by the Scottish Parliamentary Corporate Body Published 14 October 2020 SP Paper 822 17th Report, 2020 (Session 5) Justice Committee Comataidh a’ Cheartais Defamation and Malicious Publication (Scotland) Bill: Stage 1 Report Published in Scotland by the Scottish Parliamentary Corporate Body. All documents are available on the Scottish For information on the Scottish Parliament contact Parliament website at: Public Information on: http://www.parliament.scot/abouttheparliament/ Telephone: 0131 348 5000 91279.aspx Textphone: 0800 092 7100 Email: [email protected] © Parliamentary copyright. Scottish Parliament Corporate Body The Scottish Parliament's copyright policy can be found on the website — www.parliament.scot Justice Committee Defamation and Malicious Publication (Scotland) Bill: Stage 1 Report, 17th Report, 2020 (Session 5) Contents Introduction ____________________________________________________________1 Glossary of terms ______________________________________________________1 General policy objectives ________________________________________________3 Structure of the Bill____________________________________________________3 Justice Committee's consideration _________________________________________4 Consideration by other committees _________________________________________5 Membership changes____________________________________________________5 Background ____________________________________________________________6 Current defamation law in Scotland _________________________________________6 Scottish Law Commission's review _________________________________________7 Scottish Government's consultation_________________________________________7 The Bill ________________________________________________________________9 Part 1: Defamation _____________________________________________________9 Sections 1 to 4: Actionability and restrictions on bringing proceedings ____________9 Striking the balance between freedom of expression and the protection of reputation, and the chilling effect _______________________________________9 Definitions________________________________________________________13 Serious harm threshold______________________________________________15 Derbyshire principle ________________________________________________18 Secondary publishers ______________________________________________22 Sections 5 to 8: Defences _____________________________________________24 Views expressed to the Committee ____________________________________24 Conclusions ______________________________________________________26 Section 9: Absolute privilege, Sections 10 to 12: Qualified Privilege ____________26 Sections 13 to 18: Offer to make amends _________________________________27 Conclusions ______________________________________________________28 Section 19: Jurisdiction _______________________________________________28 Section 20: Removal of presumption that proceedings are to be trial by jury ______28 Part 2: Malicious Publication _____________________________________________29 Sections 21 to 23: Actionable types of malicious publication __________________29 Malicious publication _______________________________________________30 Conclusions ______________________________________________________31 Sections 24 to 26: General provisions and Section 27: Abolition of common law verbal injuries _______________________________________________________32 Part 3: General _______________________________________________________32 Justice Committee Defamation and Malicious Publication (Scotland) Bill: Stage 1 Report, 17th Report, 2020 (Session 5) Sections 28 - 31: Remedies ___________________________________________32 Remedies/new remedies ____________________________________________32 Conclusions ______________________________________________________33 Sections 32: Limitation _______________________________________________34 Views expressed to the Committee ____________________________________35 Conclusions ______________________________________________________36 Section 33: Mediation ________________________________________________36 Section 34: Information society services __________________________________37 Sections 35-40: Miscellaneous _________________________________________37 Wider issues __________________________________________________________38 Access to justice ______________________________________________________38 Court action to protect against unjustified threats _____________________________38 Conclusions __________________________________________________________39 Financial and Policy Memoranda__________________________________________41 Delegated Powers Memorandum __________________________________________42 Summary of conclusions and recommendations ____________________________43 Recommendation on the general principles of the Bill ________________________49 Annex A ______________________________________________________________50 Written and Oral evidence links __________________________________________50 Annex B ______________________________________________________________52 Note of informal discussion ______________________________________________52 Justice Committee Defamation and Malicious Publication (Scotland) Bill: Stage 1 Report, 17th Report, 2020 (Session 5) Justice Committee To consider and report on matters falling within the responsibility of the Cabinet Secretary for Justice, and functions of the Lord Advocate other than as head of the systems of criminal prosecution and investigation of deaths in Scotland. http://www.parliament.scot/parliamentarybusiness/CurrentCommittees/justice- committee.aspx [email protected] 0131 348 5047 Justice Committee Defamation and Malicious Publication (Scotland) Bill: Stage 1 Report, 17th Report, 2020 (Session 5) Committee Membership Convener Deputy Convener Adam Tomkins Rona Mackay Scottish Conservative Scottish National Party and Unionist Party Annabelle Ewing John Finnie Scottish National Party Scottish Green Party James Kelly Liam Kerr Scottish Labour Scottish Conservative and Unionist Party Fulton MacGregor Liam McArthur Scottish National Party Scottish Liberal Democrats Shona Robison Scottish National Party Justice Committee Defamation and Malicious Publication (Scotland) Bill: Stage 1 Report, 17th Report, 2020 (Session 5) Introduction 1. The Defamation and Malicious Publication (Scotland) Bill (“the Bill”) was introduced in the Parliament, by the Cabinet Secretary for Justice, Humza Yousaf MSP, ("the Cabinet Secretary') on 2 December 2019. The Parliament designated the Justice Committee as the lead committee for Stage 1 consideration of the Bill. 2. Under the Parliament’s Standing Orders Rule 9.6.3(a), it is for the lead committee to report to the Parliament on the general principles of the Bill. In doing so, it must take account of views submitted to it by any other committee. The lead committee is also required to report on the Financial Memorandum and Policy Memorandum, which accompany the Bill. 3. The Presiding Officer has decided under Rule 9.12 of Standing Orders that a financial resolution is not required for the Bill. Glossary of terms 4. The following terms appear in the report as they form part of the vocabulary associated with the legal processes around defamation and malicious publications in Scots law: • 1952 Act: the Defamation Act 1952 • 1973 Act: the Prescription and Limitation (Scotland) Act 1973 (c. 52) • 1996 Act: the Defamation Act 1996 (c. 31) • 2002 Regulations: The Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013) • 2013 Regulations: the Defamation (Operators of Websites) Regulations 2013 (SI 2013/3028) • Absolute privilege and qualified privilege: Absolute privilege covers certain occasions that are deemed so important that those making statements upon them are not liable in defamation, despite that the fact that those statements are not true, or even malicious. Qualified privilege provides a defence to the publisher of a statement in circumstances where s/he had a legal, social or moral duty or interest to make the publication and where the publisher has a corresponding interest in receiving it. • Chilling effect: The inhibition or discouragement of the legitimate exercise of natural and legal rights - in this case to freedom of expression - by the threat of legal sanction. • Common law: the traditional law as developed by judges’ decisions in individual cases. • Date of accrual: The date on which the publication first comes to the notice of the person bringing the action. At present, this is the date at which the period of limitation (see below) begins to run. 1 Justice Committee Defamation and Malicious Publication (Scotland) Bill: Stage 1 Report, 17th Report, 2020 (Session 5) • Defamation: Defamation in Scotland is a civil wrong committed when a person makes a false and damaging charge or claim against the character or reputation of another person. This can give rise to an action for compensatory damages, not a criminal prosecution. • Defences: the Bill would set out four main defences available to a defendant in a defamation action: Truth, Honest Opinion, Publication on a matter of Public Interest and Privilege (Qualified or Absolute). • Delict: a legal term in Scots civil law for the responsibility to make reparation caused by an intentional or negligent breach of a duty of care which inflicts loss or harm and which triggers legal liability for the wrongdoer. Delict can also mean a duty to refrain from committing such breaches. • Derbyshire Principle: A rule in English and Welsh defamation law which prohibits public bodies from bringing
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