Defamation law reform still stuck in parliamentary traffic

Comment John Mclellan

Supporters of long-overdue reform of Scottish defamation law may have longer to wait than they had hoped for the introduction of a raft of changes in the Defamation and Malicious Communications (Scotland) Bill submitted to justice minister Michael Matheson last year.

Libel laws in England and Wales were reformed under the 2013 Defamation Act but its measures were not adopted in Scotland because they were not felt necessary at the time and so Scotland continued to rely on precedents and principles in the 1996 Defamation Act.

But on becoming chair of the Scottish Law Commission in 2014, the media law specialist Paul Cullen QC, Lord Pentland, made overhauling Scots defamation law a priority.

When his bill was tabled in December it was broadly welcomed by freedom of speech campaigners and media companies, particularly the new threshold test of “serious harm” which was designed to prevent frivolous or malicious actions that, rather than rectifying genuine damage to reputation, are aimed at closing down scrutiny.

Having produced the draft legislation, the next hurdle is to get the proposals into the Scottish Government’s legislative programme, so the earliest that it could be included would be for the 2018-19 session.

However, Matheson has handed responsibility to his junior minister Annabelle Ewing, and so it’s not regarded as a Cabinet-level priority at this time. This is not to say it won’t at some point, but it does suggest the earliest it will be put before MSPS as a government bill is for the 2019-20 programme.

Perhaps it’s understandable, with the justice minister focused on the crisis surrounding the leadership and management of police scotland and the parliamentary committee vote to repeal the SNP’S controversial 2012 Offensive Behaviour at Football Act, but with media support for the Defamation Bill it’s an easy political win.

Given that it takes at least a year for bills to go through parliamentary procedure, it’s possible for the bill to be enacted before the 2021 elections, but even with over three years still to go, time is running out. l Facebook’s global advertising revenues leapt by 49 per cent in 2017 to $39 billion, according to results published last week, and it will secure a fifth of the world digital advertising markets this year, say American analysts.

But Mark Zuckerberg’s baby is still some way behind Google which is set to control nearly a third. Meanwhile, total advertising revenues in British news brands fell by just over 9 per cent in the third quarter of last year. Most, if not all, has gone to Facebook and Google. l John Mclellan is director of the Scottish Newspaper Society