 Welcome to the Justice Committee's 18th meeting of 2018. We have apologies from Ben MacPherson. Agenda item 1 is the decision on taking item 3, which is consideration of our work programme, and item 4, which is consideration of a draft report on remand in private. Are we all agreed? We are all agreed. Thank you. Agenda item 2 is around table evidence session and defamation. Earlier this year, the committee received a briefing from the Scottish Law Commission on its report and draft bill on defamation. The purpose of today's round table session is to discuss in more detail the commission's recommendation and other issues relating to the reform of defamation in Scotland. I refer members to paper 1, which is a note by the clerk, and paper 2, which is a private paper. I welcome the witnesses to the round table discussion this morning. It is always quite good just to do introductions right round the table and to explain that the round table, while informal, is still an evidence session, but does that allow a better and freer interchange of views? If you want to indicate that you want to speak, you just attract my attention of the clerks, then we will make sure that you are on the list. There is no need to press any buzzers as if by magic. Our sound technicians will make sure that when you want to speak, your microphone is live to be heard. If we can start with the introductions, I am Margaret Mitchell, the convener of the committee. I am Gail Scott, and I am one of the clerks to the committee. I am Stephen Emory, and I am also one of the clerks to the committee. I am Jenny Glawth, the MSP for Midfifing and Glyn Wathers. I am Cambaldina, I am a partner of Banasai and Kirkwf France and Company Solicitors. I am Roslyn McKinnis, the principal solicitor of BBC Scotland and the author of Scottish Law for Journalists. Good morning, John Finnie, MSP Highlands and Islands. I am John Paul Sheridan from the Law Society of Scotland. I am Liam McArthur, the MSP for Orkney. I am Liam Kerr, MSP for the North East region. I am Maurice Corry, MSP for West Scotland region. I am Gavin Souter. I am an academic at Queen Mary University of London, but originally from Northern Ireland. I have been interested in defamation reform for a long time, so thank you for the opportunity to come along and talk about it. I am Mary Gougeon, MSP for Angus North and Merns. George Adam, MSP for Paisley. I am Nick Williams, the project manager of Scottish Pen. I am Daniel Johnson, MSP for Edinburgh Southern. I am Rona Mackay, MSP for Strathkelvin and Bearsden, and deputy convener of the committee. I thought that we could start with a very general question. The love defamation in Scotland hasn't been updated since 1996. Why is there a need to do so now? If we could hear views round the panel, would anyone want to kick off? Not looking at anyone in particular? How we communicate, how we express ourselves, has drastically changed since then. Obviously, new media and social media, but also the changing realities around newspaper and more conventional media. I think that there are huge issues that were brought up in 2013 in England and Wales, which necessitated that reform. I think that Scotland needs to take the lead, not just for harmonisation, but to ensure that people are protected, whether it is on Twitter or a letter to the editor or anything that is such. Anyone else? I would like to go next. There is a… The law hasn't changed. The law tends to be based… Well, the principles of law tend to be based on cases going back to the mid-1800s and the 1800s. Arguably, they are transferable to modern-day scenarios, but it involves an element of contortion to get there, and it may well be advisable on that basis to look at it afresh. Okay. Anyone else, Northland? Just on the basis of law reform, generally what the Scottish Law Commission is for, absolutely endorse what Nic and Campbell have said, but also there were bits of Scots law on this, which emerging were always a bit of a dog's breakfast, to be honest, like the verbal injury element that is out. So, just from the point of view of law reform with a view to making law more coherent and particularly more comprehensible by leaf people, I think that the bill is a really good idea. It would be the contentious stuff, but I think that it's important. Gavin or John Paul, the leader that hasn't proffered opinion. Very clearly, the two words that spring to mind are, the internet with tremendous revolutions twice, the internet revolutionised communication in terms of availability, cross-border, internationalised, everything. That's a huge issue, and then with web too. The fact that there's so much generated user content now, and the very questions about liability for that, and the ease with which so much of that arises in a context where you've got bloggers and people pumping out stuff that isn't thought through, isn't passed through a duty solicitor the way you would traditional media, and so on. I think, as Rosalind has said, that also over time, historically, there's been stuff that has evolved that maybe isn't the best, and it's a chance to clarify and amend and address other issues that are problematic not necessarily because of the web. John Paul. We're very supportive of the amendments and bringing the law up to date, just for the reasons others have said. In various submissions, and I think those who did put in a submission in advance of today's round table, that's immensely helpful for the committee, just to tease out some of the recommendations and issues around defamation. But one of the things was it wasn't the level playing field, it kind of a chilling effect. We don't quite know the boundaries that you can go in investigative journalism, so would you like to comment on that kind of aspect, this chilling, if you like, effect of the public debate in Scotland? Rosalind? Well, I suppose in the nature of what I do, I see this every day, nobody wants, I hope, the most journalists are reputable professionals who don't want to seal too close to the wind, but certainly there are stories, again, very near home. It is difficult to know, it's always difficult to know, and there are a lot of lawyers around this table who do not necessarily media lawyers, it is always difficult to know whether you're going to win or lose a case, the stakes are always pretty high once it becomes litigious. You are on the back foot as a speaker with the way the law has evolved with defamation, so it is very often easier to kill or to restrict a story than it is to run it. It's important, going on from the last question, that it's not just journalists who are publishing content that could be in the public interest now, so we have independent bloggers, we have social media users and we have publications that do not have in-house legal support or legal guidance. Some of the reforms that have been put forward by the SLC such as the Serious Harm Threshold and the Public Interest defence are vital to ensure that people know how the law protects them or may threaten them, which is why we need a comprehensive up-to-date law, but also they know what protections are available. At the moment, public interest, based on the Reynolds defence, is far too narrow. It's still very much framed around an exclusively journalistic bent, so there is uncertainty for other people as to how that protection may fall. We see the on-going case with Andy Wightman, for us, as a perfect example of the need for a public interest defence. Without that and without a Serious Harm Threshold, the possibility of still vexatious or frivolous cases or cases brought just to silence criticism can still have an undue impact on free expression. We have seen it through talking to editors, journalists, bloggers and some of our own members. That is a case that we need to look at. We have brought up some things here, which we will go back to in more detail with the savel, the definition of the dead, the public interest, which we will have more questions on. I form a different view from that. I am not aware—I have acted for newspapers and publishers for 20-plus years—that I am not aware of the scenarios that are portrayed as being the vexatious cases. The man with money raising proceedings is purely to stop freedom of expression. I do not believe that I exist in Scotland to the same extent that it does down south, partly because of the jurisdictional basis that proceedings are more likely to be raised down south than they are in Scotland. I take on board Nick's point in relation to the fact that bloggers do not have legal advice, which is one of the reasons why there needs to be reform. I absolutely get that, but the argument that there are vexatious and frivolous cases raised in Scotland in defamation is in use to me. No doubt that we will get into that a little bit further. I hear from all the panellists first of their examples, and there are two supplementaries, Liam and John Finnie, who want to come in to chubbering you in a minute. Anyone else wants to talk about the chilling effect and examples? One point that I think often gets forgotten in this debate—and it certainly did in England a few years ago—is that it is very easy to raise the spectre of the bully who wants the press not to publish, but sometimes the press can also be the bully of the little person who can't afford to sue, and it can cut both ways. I think that there may be a question of plurality in that some media organisations are better placed to advance themselves than others in the context of the press where they can editorialise and that can create an imbalance in our wider media picture, which may be an academic concern and a concern of a separate nature possibly, but I think that there is possibly a butterfly effect in that extent happening there that is often not thought of. It is not necessarily all on the case of the pursuer that the defenders to in the media can be fairly powerful to sometimes. I think so, yes. That is interesting. John Paul, you are the only one that we have not heard from this general kind of question. Yes, just very briefly. The law societies are generally a new true view in terms of this, because other than anecdotal evidence, we do not have any substantial body of evidence to see where the power lies in those things. The only thing that I would see in response to what Gavin has said is that, in terms of the little guy being able to do the papers, that this parma has taken steps very recently to try to address that in terms of the Civil Litigation and Expenses Act, which has just come in which would, in the right circumstances, make it more—give greater access to justice to those individuals and funding options, which, last month, were unavailable. The David and Glyde scenario that they were addressing. To Campbell's point, a lot of the challenge has been that, if it does not come to court, where do we see the chilling taking place? One of the cases that we followed was the national collective story in 2014, where they reported on donations during the indie ref, and they sought a lot of their material from publicly accessible documents, previous newspaper articles, and they were issued a legal letter that required them to take the website down for a few days. It was only through pro bono legal support that they were able to establish a sure legal footing. Following that point, they had more conventional press—I believe it was the Herald, potentially—who covered that story and were able to ensure legal due diligence has been taken and they did not have to remove or take down anything. This is going back to the inequality of arms for—without legal representation—people may be more cautious than they potentially need to be, and also the idea that people may target smaller organisations. We've seen similar threats of other bloggers because they know that they are less likely to defend themselves. Now, there's a number of members wanting, and as always, I give priority to panellists in hearing their views, but we'll start with Liam, John Finnie and Daniel Hubb who have all indicated that they want to come in. If someone could walk me through a couple of points that were made to John Paul and Campbell particularly in terms of the cost of that, such that if I believe that I am defamed and I want to run a claim, what cost estimate Campbell would you be giving me at the start of the matter? If I am the defender, what cost estimate would you be giving me to defend that all the way and ultimately who's going to pay that? It will depend on various points. You could do it on a speculative fee basis, but you're only going to do it on a speculative fee basis if you're coming to me and you're giving the facts and circumstances, and I'm saying, yes, there's a reasonable prospect of success here, so only then are you really likely to have a solicitor advised to do it. The cost of a case going to debate in Scotland at the moment at sheriff court level without councillor's involvement at all, where you would have an argument as to whether the article or what has been said about you is capable of bearing a defamatory meaning, and that's the test. So if you succeed in that particular point at debate, it is likely that the defender will throw the towel on because if you're able to show that what has been written or said about you has the capability of defaming you, then at that point the convention has it that the defender is unlikely to go to proof unless they've got a cast iron defender. The cost of that, I would estimate, are getting debates roughly £7,500, maybe slightly more. If you've got councillor involved, you can double that. The cost of proof really depends on how long it's going to run, but I would, in essence, from point A to final determination by a sheriff, you're looking at about £25,000. For the avoidance of doubt, the point that John Paul was making is that because of the reforms last month, I, as pursuer, will get that back? You'll get probably two thirds of that back, and there's always a non-recoverable element. It was a point to Campbell, and it was about you saying, Campbell, that you weren't aware of proceedings being raised in the way that would prevent. Is the issue not, as is the case with the public sector and their fear of litigation from corporations, that it's the threat alone that's sufficient to deter? It can be. I'm not going to deny that, but if, so far as a chilling effect is concerned, there is always the availability of an individual, as Nick said, they've got pro bono advice in relation to that, there's always the ability to pick up the phone to solicitor who specialises in that particular field and say, I've had this threat of legal action against me in relation to our publication of the following, what is your advice? That needn't be expensive, and in many cases it is done pro bono. I will regularly have people on the phone who want a five, ten minutes of look, the following's happened, what do you think we should do, and regularly won't charge for that particular piece of advice, on a pro bono basis? I just want to test the point regarding equalisation just a little bit. I understand that if you raise the threshold at which someone can claim that they've been defamed, that will therefore just potentially take a section of types of stories out of the possibility, out of the scope of the possibility, but at the end of the day wealthy people and organisations will always be able to lawyer up and pursue. So, to some extent, I just wonder at how far a change in defamation and in particular sort of the threshold of serious harm will level up. If you could answer that question because we want to explore, we're looking at, you've mentioned, you've got to prove its defamatory, but the serious harm will be a new way of looking at it, but if you could answer that question just briefly. I'm working with our colleagues in English Pen and the Library of Form campaign. They've already documented a significant downtick in cases being brought in England and which they can equate to the serious harm threshold. Obviously, that is still a legal parameter that's being tested and it's still establishing its footing. You saw it recently, obviously, with the Hopkins Monroe case, but I think, for us, it is significant. We're not for harmonisation for the sake of harmonisation, but a serious harm threshold is significant to dissuade vexatious claims or the claims that they are just there to silence criticism. Without the serious harm threshold, that stifling can take place before it comes to court because the receiving of legal letters and knowing that there's no threshold may be enough to dissuade further publication or to withdraw. At the moment, there is growing evidence that it is establishing a significant roadblock. One of the reasons why the English reforms are brought in in 2000, or the acts passed in 2013, was to stop that particular problem of the vexatious claims. They raised the threshold to try to deal with that. The point that I'm trying to make is that we do not have the vexatious claims that they have in England. We have very little defamation cases in Scotland, so absent the vexatious claims, where is the necessity to harmonise? Is it just a case of harmonising or is it a better test, the serious harm? It's a hurdle, which didn't exist before. You're putting an onus on a pursuer in Scotland or a climate in England to get over a hurdle, which, once it did not previously have to get over, so you're making it harder for a pursuer to raise a case, whereas previously they would not have had to get over that hurdle. Much of that will depend on what the Supreme Court decided on whether it is, in fact, a hurdle or whether it is something in the round. I don't want to go into too much legal detail on that, but ultimately that's the question of serious harm, just an extension of the test and the defamatory allegation or the defamatory sting still remains in play or is it a separate hurdle that needs to be got over in England at the moment that they're looking at it in terms of the Court of Appeal decision that will show as it being a matter that can now be looked at by way of inference, which would be beneficial if that was the case in Scotland. John Paul? I was just going to add that, again, from the Law Society's perspective, we have no evidence that there has been any problem with the exegious litigation of this nature in Scotland. In our response to the Law Commission, we specifically asked, and it did, we're interested to see what evidence there was of the necessity to have brought it in in Scotland and certainly the discussion paper and the report makes no specific mention of any particular problem. It seems to us, like Campbell, that this is an additional hurdle for litigants who otherwise might have a legitimate claim who might be prevented from getting access to justice. Do you have any outcomes that we can look at to kind of back up what you say? How do you prove the negative? We're not aware of any issue in relation to this. I think that the issue is that this will be an additional hurdle for them to get over. If this serious harm test comes in, it will make it more difficult for someone to prove because they will have to prove not only that the comment was defamatory, but also that it led to serious harm to their reputation or financial standing. Russell. This is a more general point than serious harm, and it goes back to what John Finnie said. I think that it's very misleading to look at Scottish defamation law in terms of which cases are raised. It's true that there aren't many cases raised. It's something that I deal with every day. It's the chilling effect side of it. I can't share a lot of what's confidential to the people that I act for, but speaking as the person who legalised you've been trumped when it showed on BBC TV, I would think that the chilling effect is a real and present danger for investigative journalism in Scotland, certainly every week, if not every day. Liam Kerr, on this aspect of the serious harm test. A couple of matters arise. Why are there fewer vexatious claims in Scotland on notwithstanding a lack of a serious harm test at the moment? My guess would be the fact that the Scottish law awards a lot less, a lot lower levels of damages and a lot lower recoverable fees. If you look at some of the awards in the courts in England and Wales and the costs that are able to be recovered, they are eye-watering relative to what the Scottish courts would do. I think that people, if they are in a position to choose which forum to sue in, would elect not to sue here. In Lord Pentland's journal article, I don't know whether anyone has a chance to read that, if it was with the papers or not, he referred to a case called Kennedy Against the National Trust for Scotland. He talked about forum and how, in that particular case, Sir David Eadie had rejected a forum argument by saying that the correct place to raise this action was in Scotland. I had the slight advantage over Lord Pentland that I act for the defendant in that particular case. The case is going to the Court of Appeal in July in England this year. The cost to both parties for a hearing to establish whether or not Scotland or England is the correct place to hear a case, the cost to each party will be certainly six figures. In Scotland that would be a debate, one, maybe a day, and the Court of Appeal a day, or the inner house a day rather, you're looking at costs of £20,000. It's night and day. So, do we actually need a serious harm test in Scotland, in the panel's view? Nick, I think that your evidence suggests definitely yes, so perhaps you'd like to lead off on the answer to that. I think that this is one of the key things looking at the sort of harmonisation, but also more broadly sort of free expression, the sort of tenants of it. I think that going back to what Rosalind says, I mean court cases are an imperfect measure of how effective the law is. So, you are having, without a threshold, the sending of a legal letter which for some pursuers can be done relatively with ease, and seeing the impact on that on smaller individuals. I mean there's a case of a Facebook group moderating in Straven, who's had a case brought against him by a building developer. Serious harm, it does require the extra demonstration of harm, and so it's not just, because without that, they can be vexatious, or they can be these attempts to stifle criticism. And I think without it, defamation just becomes this very sort of devalued tool to control the narrative, not necessarily to protect your reputation. And so I think without that, at the moment, it's still very much prioritised as the pursuer over any defender. And also the way that this does put the owners on the pursuer to outline the facts of the case in a far more robust manner than there is without the threshold, I think, is the significant benefit to the law in Scotland. Just following up your question to John Paul, I totally understand that you raised the threshold and therefore there are going to be some cases which cannot be brought forward. But could you just bring to life hypothetically what sorts of cases you think may no longer be able to proceed that would have merit if changes were to be made? Could you just bring that to life for the committee, please? I'm not sure that I can give you a hypothetical example. All I would say is that in our experience, there's no particular problem with vexatious claims, and as a general principle, legal principle, that if someone suffers a loss or an element of damage, or is a lot of someone's defamatory statement, then they should be entitled to a remedy. That brings a higher threshold that it says that suffering a loss is not sufficient, and it has to be serious damage. I'm not aware particularly of any other area of law where that's the case. Ultimately, that's a political determination for you to make an assessment to see whether or not the chilling effect or otherwise is sufficient to raise that threshold. For my part, I'm not aware of any of vexatious claims in the past, and there's no particular problem. It may be that others are far more experienced than that, but ultimately that's a political question for you to make an assessment on. The question aside from the idea of whether it's necessary, whether it's vexatious cases in Scotland or not, is whether the hurdle, so-called it would present, is a threat. The one thing that through all the English cases that have been approved at every level, and I would be fairly confident to put money on that the Supreme Court won't disturb in Lechau, is the approval of what Mr Justice Bean said in Cook and Midland Heart, where he said that some cases will be so self-evident, there will be no need for evidence if you get accused of being a terrorist or pedophile. When we look at Warby's decision in which, although the mechanism is what's in dispute in Lechau, his basic decisions about what reaches that level of serious harm in the Hopkins and Monroe case about the defacing of a war memorial, I'm far from convinced that the serious harm is a standard that presents any detriment to anybody with a genuine case based on what we've seen thus far. I think that's more the issue in question and the risk of using a somewhat debased phrase in politics, I agree with Nick, on the usefulness of this as a basic test as to what defamation ultimately is about. Good when harmony breaks out. Liam McArthur, yes? To that, if only to defend my former colleague. In that sense, is the definition of serious harm in the way that it's being interpreted, more about avoiding a situation where almost incidental damage or fairly negligible damage could give rise to a claimer an action. I think that to the lay person, the prospect of serious harm gives connotations of something far more serious, far more dramatic, but what you've described there suggests that it's about distinguishing it from fairly incidental low-level impacts that a blogger, a news article or something that is said could have on an individual. My feeling is that it's simply about saying, does somebody have a genuine complaint rather than can they contort something into saying, this damaged my reputation? I suppose, in a sense, it might. I think that some of the same thinking in it, as was in the old Bernardine case, which was on a different point but was the one about the golf club members thinking less of a guy because they thought he'd reported the illegal one-armed bandit in their clubhouse that was unlicensed. The issue was about who are the general audience and so on, but in terms of the meaning idea, the idea of having a genuine impact on you and your legitimate reputation in society at large, or can you just contort it into something that's some small group or some perceived slight? Where I think it can also go back is to the old idea of the difference between something that is genuinely defamatory and something that is merely vulgar abuse. I think that that's an important line to draw. I concur with Gavin the idea that this would not establish any more of an onerous process for something like Incord of Terrorist or a pedophile. It is for the more not to devalue trivial cases but enables a more robust process for those marginal cases. We're talking about it as a threshold, as a test that needs to be met, but for us we've always seen it as just something requiring a stronger evidential basis to prove as opposed to the working definition of defamation which is still pretty not flabby but it can be, as Gavin says, contorted in a way where this just requires the pursuer to actually state in clearer terms whether it's a person so serious harm or a non-natural person so serious financial loss is I think just that extra step just to ensure and it may dissuade people bringing cases if they can't make the necessary case why it is serious harm which I think is a better standpoint for the law in terms of a free speech or free expression point of view. Gavin? Back on that again. What I think it might also help do is prevent the kind of case which theoretically could get all the way and then result in damages of a pound or something like that because the court ultimately decides whether you were defamed but it's not that big a deal and that would feel to me like a colossal waste of the court's time when that happens whereas if we have this in here then you've got that built in hurdle which can be a discourager to somebody pushing a case like that rather than having to use the sort of nominal damages as a sort of warning or deterrent to other such cases. Russell? I might give you some examples of cases from Scott's law in the past which might be significant here and they're both cases where Scott's law did deal with the issue and they dealt with it fairly promptly but at the same time a lot of legal expenses would have been paid out on both sides. One was when the journalist Angus MacLeod sued a newspaper for a diary, a Scotsman diary piece, which called him the greatest inventor since John, Scotty inventor since John Logeybeard. For most of his reading, I think it's fair to say, it was a comic light-hearted diary piece which was about a political prediction he'd made which didn't come off and he took it very personally. As many of us will take things that are said about ourselves personally, that's the sort of case where I think if he'd gone to one of the media lawyers around this table and said beforehand, I have to show serious harm, he probably would have said, well you know, most people are going to think that this is a bit of a joke, it's a diary piece. It was another case very different on its fax but the late George Robertson sued a newspaper over what was essentially the newspaper's apologiae for why it had settled a defamation claim but it included the photograph of a cover of the newspaper referring to George Robertson's sews over Dunblane lies. Now the central allegation which he had originally sued over was very serious, it was a suggestion, a quite false suggestion that he had been involved in the Dunblane shootings but what he sued over was a repetition in a photographic format on a newspaper where the newspaper was explaining why it had settled, the legal basis on which it had settled a defamation action. Again, that's the sort of thing that if a serious harm test had been in place, I think a lot of media lawyers probably spent quite a lot of time talking down clients who want to sue, who want to raise defamation actions because they've taken something maybe a bit harder than a judge would or a juror would and I think those are cases where the law serious harm test would make a difference. It's not something I feel passionately about because when I'm concerned about chilling effect it's less people raising silly season claims than people putting pressure on serious investigative journalism but I still think it might make a practical difference for that sort of case and it would have been better all round if those cases had never been brought, I really would. Liam, did you want to present it through where you were going with a serious hammer of you exhausted that? No, I've not exhausted. Right, carry on then. No, it just, if we accept that the serious harm test could make it more difficult or less attractive to run a defamation case in Scotland and if we then accept that Scottish defamation law is significantly less developed than that south of the border. Could bringing in this test hold back the development of Scottish law in this area and make it more difficult for defamation law to develop as we would want it to do? Who wants to take that on? Yes. My view throughout has been that I suspect that if there is harmonisation between England and Scotland in relation to that test that litigation will flow down south because there is a juridical advantage in going down south, they have much more experience media bar, they have media courts, they have the conditional fee arrangements which are in play, no, notwithstanding the fact that we will have a variant of that under the new Civil Litigation Expenses and Group Procedures Act, my view has been that we will potentially lose the cases that we would have had in Scotland and that the law will therefore not develop in Scotland. We will become the clerk to the English Queens bench division for all intents and purposes as the cases go down south because they have the knowledge of doing it. In the case that I referred to the Kennedy Against National Trust, the discussion paper on the working reforms of defamation was held up by the claimants agent as being prime example of why Scots law should not be capable of hearing the case in Scotland and that England was the more appropriate forum for the case because Scotland didn't know what it was doing on defamation. That is what you are up against in relation to the English Bar. The English courts, as a general rule, hold on to litigation, particularly liable litigation, they like it. Having been involved in litigation on both sides of the borders because of the nature of the BBC's broadcasting is much more expensive to litigate and defamation down south. Campbell's got much more experience of it from the pursuers perspective than I do, but I would have thought that that was a serious to turn. Isn't it about the quality of the litigations that you have? If you have a situation in which you have no comparative jurisprudence on what you use harm means, if you have a difference, that can be a way of preventing the law from developing because you have less case law coming from anywhere. Forum non-convenience is a pretty flexible tool legally. If the English Queen's Bench wants to hang on to defamation cases, I am not sure that we can stop them doing that. One of the things that you cannot argue in forum is the juridical advantage. You cannot argue conditional fee arrangements. They are not interested in that. The only thing that you can look at are the facts and circumstances of every single case. The difficulty in a situation of cost is that it is almost insulting to argue that you are selling your services in Scotland on the basis that your cheap is chipped, and that is really what it is coming down to. Go to England, it is an awful lot more expensive, stay in Scotland because we are cheap. Speaking of someone who is defending with public money, the question of cost is very important to me. Nick. A Whiteman case is a perfect example that is a £750,000 claim, which is nearly three times, no more than three times, the Scottish law record at the moment. The legal costs associated with that are already significant. At the moment, if we look at cases like the Andy Whiteman case, even in England where they have a serious harm threshold, it could be argued that that could be met by the allegations against him. For us, there is not enough evidence personally that we have seen that this would happen if a serious harm threshold was brought in. Our position is that that is not a strong enough conviction for us to weaken what we feel is a vital free speech protection in Scotland's law. It is something that I think we need to look at. Laws are not always just there to benefit from law, if it is strengthened legal process, but also is economically viable in the country. We need to look at this as what it is, which is a law that does impact free expression, public accountability and transparency issues. I do not believe that leaving our law unreformed to hold on to that. It is a significant enough justification for pushing back on this reform. I agree with that philosophically with what Nick said, but if I could just bring it back to the grubby voice of commerce a bit. Channel 4 is deciding at the moment where it wants to set up outside of London. If you are an organisation like that and you have a choice of places to set up, is it attractive to be somewhere where you could still be sued 10 years from when you first put the broadcast out, where you cannot count on certain defences that you think you have got in place, where there is not much case law? Again, this is preeminently something for Parliament. This is not something where a lawyer can add an awful lot of value, but I would have thought that commercial issues in play are quite complex. Liam, have you finished now? I just really want to follow up some of the points that have just been made there. If the argument is that we do not want to alter the law because there is a fear that, essentially, we might see a loss of market share for want for a better expression in terms of litigation coming through the Scottish courts with regard to defamation, I am just wondering how good an argument that is and what we lose by losing cases. Is the converse of that—and it is a little bit what Roslyn was just saying—if all we are doing, by having slightly different laws, is making it easier for lesser-order cases to be brought forward here, is that almost a sense of arbitrage that is no better than the sense that we are losing market share? I am slightly playing devil's advocate, but I would be interested to hear your responses to that. I do not deny that there is an element of self-interest. I cannot hold my hand up and say that. If you allow the litigation to flow down south, the Scottish bar in relation to that particular field is gone. There will be no or next to no Scottish cases raised on defamation in Scotland. You will end up if it is being done at sheriff court level, which is fine, but it is not going to be the same binding cases that you get down south. If you take it back to the opening premise, which is that the purpose of bringing the substantial test into play is to stop vexatious and frivolous actions, and those do not exist, then why bring it in? Is it not just a better test? I think that Roslyn referred to the £1. It does go through. It is not necessarily a bit facist, but it was so insignificant that the award of damages was a token £1 and the cost that the governor referred to of bringing that case, all of that. In principle, yes, but point me to the case where one pound of damages has ever taken place in Scotland. In relation to the Andrew Whiteman case, I have an interest because I am acting for Andy Whiteman in that case, but a large part of the claim is not the salatium element of it. It is economic loss, so it is to do with the fact that the pursuer claims to have lost through his company substantial amounts of money. It is not really the same as saying the highest award in Scotland at three times the level of that. It would be in theory, but on an incompletely different footing. As I did to the members pre-this meeting issue a slight warning that, of course, we can refer to the blog and the case, the ongoing current case with Andy Whiteman, but not in any detail, as it would be subject to say. Why were we just sorting things out? Roslyn, could I clarify? Was it George Robertson MP that you were referring to? That's right, sorry, yes. I think you said the late George Robertson. I hope that that is not the case. Having stood against George in the 1992 general election in Hampton without the unduly pessimistic, with absolutely no chance of winning, I have a great affection for him, so I am delighted to hear that he is not the late George Robertson. I thought that we better just clarify that. Can we move to Nick? I would dispute that there is Campbell's case, that there is no evidence. I think the problem is where we count the chilling and, for us, it's been way before the court case. A lot of this is hovering around this idea of Scotland becoming almost like a liable haven, the same way that people build in low tax policies to encourage people to come there. I don't think this law, which is vital for people who are expressing themselves and not just journalists, this is bloggers, social media users. I don't think Scotland's law should remain unreformed in this aspect, just to try to secure that. It may be a crude analogy, but looking at it, I think that there is some relevance. If we move on to Liam McArthur, two liams on the same committee of 129 ASPs, just my luck. I'm asking questions one after the other. Just following on from the discussion there around serious harm, when will we come on to the proposals in relation to reducing the time limit in terms of secondary and subsequent publications? Campbell was referring to the fact that there was not necessarily an awful lot in there for pursuers. I'm just wondering whether the purpose of the reform that we discussed in response to the convener's question is about providing an appropriate balance, or whether it is driven more by what has been discussed there in relation to advances in technology, the use of the web for publication of articles and the like. On the face of it, it looks like there is a recalibrating more in the interests of defenders than pursuers. I welcome comments on that. I think that recalibration is necessary. My feeling is that the 2013 act was not a recalibration in favour of the defendants, but more in favour of a more even balance between the two parties. On the time limitation period, which has been one year in England and Wales since 1996, I'm not aware of that, having posed any significant problem. My feeling all along has been that if it really has done serious harm to your reputation, you'll move faster than within a year in order to do something about it. Certainly, there is a great role in any difficult cases in that for the Limitations Act. I would refer to Stephen Morris against the NME case, where he was allowed how they then settled the case out of court. However, the High Court found in his favour that three years after, so long outside the limitation period, they should exercise their discretion to hear the case on the basis that he said, I was aware of it, but he satisfied them. He couldn't afford to do it any earlier, largely because he had been too busy being successfully sued by other members of the Smiths over on paid royalties. However, that case shows how a shorter time period certainly doesn't present the difficulty to justice in my mind. I'm sure there are any number of other cases that we could cite, but that's a very sensible reform. In the context of the web, what online publication and the modern media have done is rapidly speed up the cycle. That makes a strong case for a tighter time period. The one other point that I would make would be to refer to defamation law in France, where my understanding is that if it's published in a newspaper, you have a limitation period of four months to bring your case, whereas if it's in a book, you've got the 12 months, and I'm not suggesting that we go down that road of complicating things with multiple limitation periods. However, I think that the 12-month period is fast becoming a fairly universal standard, and I think that it's not a problem in that regard. The discretion is an important point to me. That would have answered the issue in the Machanski case, where the action was launched 15 months after original publication. That very easily could have been allowed on a discretionary basis, rather than the multiple publication rule as was then the case. We're supportive of it being reduced to one year, and it's also important to know that it is one year from the pursuing aware of publications and not necessarily from publications. That does give a little bit of flexibility for the defender. I also agree with Gavin that it's the anecdotal idea that if something's causing you significant harm, it's something that you would want to deal with sooner rather than later. I want to add on one point less specifically about the different aspects of it, but the impression overall that what's needed as part of this reform is a tilt in the scales somewhat more in favour of defendants. I would again agree with Gavin that it's not necessarily in favour of defendants, it's just more of an equal between the parties. I would say so far that it's incredibly skewed towards pursuer at this stage, so any movement in that. That sounds to me very much the same thing, that at the moment it seems to be imbalanced and that it tips too far in favour of the pursuer, either through the mere threat of litigation or litigation itself, whereas what you're talking about is providing more of an equity and more of a balance. If you're thinking on a spectrum, it is closer towards that, but I would say it's actually more towards the more equal distribution between the pursuer and the defender. I think that this is all skirting around the single publication rule, which I would say is one of the most important reforms suggested by the SLC, because multiple publication does not function accurately and effectively in terms of online coverage. You've got a case where, because if someone is just retweeting or sharing a link, that could create another window of liability that could, in principle, continue adding for an item, and that I think is one of the most antiquated aspects of Scott's law. That or the not requiring third person publication, which is still somewhat baffling that it still exists. It's also interesting that the SLC has gone in a different direction from England and Wales in terms of online responsibility and liability around how content is deemed to be parameter in what their obligations of the website operator are. That's a very interesting development, especially from our experience talking to people down south. Is that section five operated more of a takedown notice culture as opposed to something that actually is more in the sense of that issue between defender and pursuer? Campbell, I was quoting you earlier in terms of the view that it was shifting in that direction. There doesn't seem to be any dispute of that, but that it seemed to be a necessary reform. With my pursuer hat on, I think that I've said in the past that there is nothing in it for the pursuer. There's literally the recalibration of the law, which gives nothing to the pursuer and puts extra hurdles on the pursuer. In relation to the trianium being abolished towards one year, I personally have no particular issue with that. The only case in which I've been involved where a litigant from down south who's been time-barred has come up north of the border to sue is a case called Kennedy against Aldington, but he was only entitled to sue for the Scottish losses that he had sustained in Scotland. That loophole will now be gone, and I suspect that it was a loophole. However, the argument is not so much that if the individual believes that he's had serious harm occasion to whom he'll raise within a year, I've formed the view that if he believes that he's had harm raised against him, he'll raise within a year. It doesn't have to be serious. You're not going to hang on and not litigate in that 12-month period to see whether the harm becomes more serious. If you've been harmed, you will raise there and then, or as quickly as possible, thereafter. Just on the issue of rebalancing, Lord Pentland—obviously, it's not Nick's draft, it's not Campbell's draft—they would both look very differently from the Scottish Law Commission's draft, and Lord Pentland, who, while at the Bower, was probably the most experienced media law silk we had in Scotland, did act for both sides of it. He has said that he doesn't see it as a rebalancing. As you say, it's a question of how you look at it. It's been already been said this morning and truthfully said that in most cases causes of action you don't have to show that you've suffered serious harm. But also in most causes of action is not the defender who has the onus of proof, and for so often in defamation cases that's the way it is. If we run an investigative piece saying that somebody is a fraudster and our position is that that investigative piece is true, it's the defender who's got the onus of proof. There's a presumption of falsity, there's a presumption of malice and there's a presumption of damage at the moment. The only way that it seems to me that you could actually rebalance defamation law in favour of the pursuer in Scotland would be to introduce criminal libel, which has never been part of our law. It couldn't get an awful lot worse for the defender, as I see it, but she's obviously partisan in its own way. We touched on the internet, which is a really interesting area, Jenny. I'd just like to pick up on some of your written evidence. You note that the approach taken in the draft bill in terms of online content is unnecessarily complicated. No one wishes to make life extremely difficult for online hosts or to cause a chill and freedom of expression via an environment in which distributors, especially online, become overly cautious. Are there gaps in the draft bill in terms of online content? For example, the notice and take-down procedure of which exists in England and not in Scotland? My issue with the draft bill is essentially in sections 3 and 4, where it takes this approach of saying that you're not allowed to take proceedings against these guys unless they get put in a list by somebody and the executive. I don't see the need for that approach. I actually think that the approach in the bill is very sensible. Unlike some of those in the broader reform camp on libel, I don't agree with completely immunising the service providers in the way that the US did, because all that was done by accident in the US anyway, and I can give you the full history on that another time. However, what it has achieved in the US to completely immunise them for third party content is that ultimately the content stays there and they sit back and go, nothing to do with us, and it gets messy. What the bill, or what the act rather did in 2013, which I think Scotland should adopt, was to say, firstly, you can't go after the service provider unless you can go after the rail source, so section 10 and the act says fight the rail enemy. You can only go after the service provider if you can't really realistically go after the source, so that makes life easier for them. The section 5 defence and the associated regulations provide a clear notice and takedown procedure, which effectively means that if you comply you don't end up in trouble and you're not, as a service provider, put in the position that was always the difficulty from 1996 onwards of having to say, well, do I take this down and squash somebody's legitimate expression or am I more afraid of the big corporate interest, which has threatened me that they'll sue me over this blog, and now that I'm aware it's there, if I don't take it down I've called it wrong, and we all saw what happened to Damon back in the 90s and so on. As I say, I don't see any need to take an alternative approach to that with this idea of saying, well, that's the position for some people we nominate, but other people will be immunised because that raises its own problems, or how does that address? Be interested in the rest of the panel's views as well. A lot of our work down south has been done with English Pen in the library reform campaign, and what they've seen in section 5 is that while it does establish a process that the web host or the website operator can undertake to basically insulate them from liability, in practice it's seen more as a takedown, it's still seen as a takedown process, if they're unwilling to go through the process it is something they will do, and obviously by taking down their positioning themselves as a legal lawyer, as a censor, without knowing what defence that commenter may actually have in their back pocket, so that's why we're a bit worried about section 5. Also section 5 does discourage the use of anonymity, which a principle for us is anonymity is vitally important for a lot of internet users, and it shouldn't be seen as something to be fought against, so the web operator can still protect itself, were they to receive a complaint on content on their website. We are largely in favour of the SLC's position to define roles and responsibilities and how that manifests both online and off. There are aspects in it that we think are problematic, the sections, is it 2, 3 and 4, which outlines membership of certain criteria, such as public bodies but also author, publisher and editor, we believe that that should be made. I mean it's in the affirmative procedure which is good, but our gut is always to encourage changes to primary legislation to ensure that the bill continues to represent defamation ScotSlaw in its entirety, so people know what their responsibilities are and under which category they do fall. There are certain more technical issues that we're concerned about, the definition of editor is not, we're not wild on the definition of editor, whereas the definition of publisher is pretty robust. Editor still leaves a lot of uncertainty when we look at people online and especially social media in terms of retweeting or sharing as opposed to writing original organic content. We appreciate that it is an incredibly complex aspect that this law is running to catch up and I think even section 5 in England and Wales, which is only five years old, is now starting to become out of date, so there's always that catch up. I know the SLC for example did talk about the possibility of a review on internet intermediaries as well but decided that that would need to happen UK wide, not just Scotland based. I respect and appreciate that tension but it is always going to be a hard thing to write into the face of any reform, but anything can be better than what we've got now frankly. If I could just come in that point, I think that you made in your submission the point that affirmative procedure gave a level of accountability but not the level of independence scrutiny that you think is necessary? There's also Roslyn touched on it previously, the idea of being comprehensible to the lay person and while the affirmative procedure is far better than the negative procedure, which I believe was in a previous suggested draft, I think changes to primary are always better because it does allow that extra level of scrutiny and also public awareness that this change is happening or potentially being discussed to happen. Just briefly on Gavin's point, we're generally sportive of that. We're talking in things about investigative journalism and public interest, but the reality is that a lot of those things are much more down to earth than that. The typical complaint that will often come in is an adverse review on trip advice or one of those things for a small B&B or a restaurant where someone says something outrageous. If you're in the situation where you're that restaurant owner or a pub owner or whatever it is, it's very difficult to get a takedown. If it's an anonymous blogger and the website is hosted in Southern California at the moment, it's very difficult to get those things taken down. You can't find out who the person is. In the sense that there's an absolution given to the website host or the internet service provider, that's something that we think would be problematic from a practical point of view, because it's almost impossible to work out who the true person who's posting that is. At that point in time, I think that there should be some sort of liability on the hoster so that at least there can be a takedown procedure, because the problem is that, at the moment, as Gavin said, the website takedripvisor or whoever it is to say, well, it's not our problem. So it's much more straightforward, really. If it's anonymous, then it should just be takedown. No questions for us. I would just reiterate that I do think there is an importance in anonymity that we need to look at. I mean, it is a pain, frankly, on things around things like this, but a lot of people will not take part in their right to free expression online if they cannot post anonymously or under a pseudonym, and I don't think that should be dealt with lightly, or solely as a nuisance for website operators or the law more broadly. A divisor-type scenario where it's nearly malicious, you've gone there, you've had an argument, you just give them a bad review knowing that's going to have huge consequences for that small business, hotelier, whatever. I guess we've got to need to talk about how there's huge. I mean, I don't know how many people put stock into one soul-trip adviser review on the top of a number of other reviews. Obviously, there are other defences potentially available to you in that honest opinion, and also the idea that maybe they can prove the fact. It's never pleasant if you get a, I mean, I've never run a hotel, but I imagine it's not pleasant to receive negative reviews. But any process that doesn't enter into discussion as to the core nature of that review may ignore the fact that they may have a very sound basis for that review, and any process that makes it, it becomes the sort of reputation management process, as opposed to acknowledging there may be some genuine, if robustly argued point, free expression and sort of a modern democracy, they're messy and then they can be unpleasant at times. You know, it's noisy in perfection as opposed to silent perfection, and I think we need to realise that that is part of the, you know, that's part of the sort of expression landscape that we've signed up, signed up to, frankly. Gavin? Yeah, I'm still on a couple of points that have been raised. One is, I think, perhaps the section 5 thing could be firmed up. The DMCA, which I suspect was the model for this, the Digital Millennium Copyright Act in the States, created a model a bit like this, and that was, that's very clear on exactly what your position is as a service provider. In terms of anonymity, I think that's, it's an important point that anonymity is of value, but we need to be very careful to defend against the abuse of anonymity online, because my impression certainly is that in the vast majority of libel cases that I've seen relating to the internet, an awful lot of them started off essentially from somebody who didn't think it through and thought, well it's only in the internet, well nobody knows who I am, well I can say what I like, and I'm wary of balancing out considerations of legitimate free expression against abuse of expression on that front. The other point that's been raised that I think is a significant one is in terms of dealing with links or likes or sharing content where that might be movable. I think there's an argument possibly for having a distinct provision dealing with that, which may go on the basis of awareness and what we are aware of at the time that you shared it, or that's something I think might merit some further exploration as to be dealt with separately. Okay, and Daniel? I mean I think the point you make about the sort of the slightly imprudent, you know, posting things on the internet by somebody who didn't think it through is one element of the way that, and in recent months we've all become aware of kind of the use of anonymity for corporate and state interests. I mean, and while I think the implications are much wider than simply this, I'm just wondering if you've got any sort of thoughts around that and kind of the interactions with this topic of anonymity. Oh, certainly, I mean there are a lot of dangers as well as bonuses with anonymity if we don't know who we're dealing with. You know, what if it's a competitor, a hotel down the road who's actually posting these reviews on TripAdvisor rather than a genuine customer, or you know, I think it cuts across a lot of areas, and one I do agree we need to be careful. I mean there have been important cases on the privacy side of things such as the case around the Nightjacker blog which have addressed this idea of the validity of anonymity in the context of online expression in the defamation context. I do think we need to be very careful that the law guards against those who would use the, or abuse anonymity to further a deliberate defamation in many cases as distinct from somebody using a pseudonym because they don't want the kids they teach to Google and find them in a Rocky Horror costume or whatever, a sort of wild example. Nick, coming back in. Anonymity is not, I mean it's used for, you know, I have friends who are teachers who use pseudonyms online when they're talking about political issues, but also it can be a whole host of immigrants, refugees, asylum seekers, survivors of domestic abuse to ensure that their abusive partner may not be aware of what they're communicating online. I don't want to see anonymity as a trivial issue, that is only a tool for the malicious or the nefarious. And also when you're talking about sort of state interests there are other ways that it's not anonymity itself that is making foreign sort of interference an issue. It's like slack regulation, it's lack of transparency in how these platforms and processes work. It's not solely an issue at the door of anonymity. I mean Facebook has its much maligned real name policy which is pretty flawed but it's policy and it's still being a target for these today unknown actors so I don't believe anonymity in itself is the necessary and sufficient facilitator of evil. I would also say there is a problem I think in the law in the SOC draft about the idea about the power of the court to remove, to require the removal of a statement. For us it I think it should be a lot more narrow if, I mean we appreciate that the court can remove content and should remove content if a case is found, if a statement is to be deemed to be defamatory but we believe it needs to be far more narrow so it's a line paragraph or link that's argued about and there is still editorial control as to whether the overall piece can stand without that piece. We're also really worried and this is in one of the explanatory notes as the power of court to remove a removal of cessation of distribution on an interim basis before the outcome of the proceedings is known. We think this is incredibly problematic largely because there's nothing in the bill or the explanatory note to establish the mechanism by which that order would be reversed if the complained off statement is deemed to be not defamatory and removing something before a judgment's been made on something is problematic in our opinion. Could I maybe tease out something before we leave the internet, before we leave the multiple publication and the single publication rule and just how the skews against a pursuer under the new rule is only the person that initially puts the comment up that will be then liable to a defamation claim but others can then repeat it and repeat it and repeat it and won't so I suppose my question is how do you stop the kind of Mark Twain situation where a lie can be halfway around the world before the truth gets its shoes on and that's very much going against the pursuer so how do we address that because the internet can spread so quickly, so widely and without any redress to these people that are repeating and repeating. I mean a single publication allows for liability to follow on from a republication if it can be proved that it's significantly changed. The original statement's been changed so the single publication does allow for that sort of flexibility yes but the idea you know if it's a hyperlink the hyperlink was published when the hyperlink was published it's not republished every time someone copies and pastes it into a tweet. I mean multiple publication law for us is based on a fundamental misunderstanding of the way the internet operates then you're not always republishing a hyperlink every time you share it it's been published when it's been published on the blog or the websites. I mean obviously if you're writing up then as I said the single publication rule does allow flexibility if you can prove that that it's been changed and you've changed it's too significant effect that it is a new statement. If you haven't changed it and you're just repeating the defymetry comment per se and keeping repeating multiple people, multiple people keep repeating it. This goes to the idea that if say I have a Twitter account with three followers and I tweet something that's been published by someone else and then someone of a very high follower base and I like a celebrity or someone retweets it and then it goes to millions of people but again there is a process within the single publication that you can the pursuer can prove that. It's it's it has changed significantly to to warrant a further potential liability. Isn't changed? Well if it's just repeated I believe that it should stand from the original publication because it's a single publication and multiple publication can in the internet age can actually enable liability to run on almost ad infinitum because you never can be too sure where a where a hyperlink ends up. Rosalyn? Of the draft bill from the Scottish Law Commission in determining whether publication is materially different the court may have regard to the level of prominence that the statement is given, the extent of the subsequent publication and any other matter that the court considers relevant. So it's quite a broad texture discretion that the current bill proposes and that may be the answer to some of those concerns. You're like white fire on the court. Yes. So I suppose my next question is when do you intervene? That was brought up in someone's submission. How soon does the court or definition proceedings under the new bill start? There's various different points at good start. I can't remember who addressed that in one of the submissions. Was it you Nick or Gavin? It was one or other? I mentioned earlier today that it starts from when the pursuer is aware of the issue, but that's only what I've said now. I don't think I submitted it in written evidence prayers. Maybe Gavin did potentially. I can't remember exactly where I saw it. Was it when it was made? Was it after a period of time further down when it was repeated? Was it there were various times or two times? That context, so I was talking about section one and the serious harm issue, which is a significant question. If you want to go back to that, I'm happy to address it. No, we'll move on then. We can move on from that one. Liam Kerr just briefly on that. How confident can we be in the date of the original publication, in the sense that if I'm hearing right, then every time the hyperlink is copied over into a new form, even though substantively it's the same thing? Could there be any ambiguity as to what is the original publication date? Wouldn't it be with a one-year limitation? Wouldn't it be open to—I'm getting towards the end of my one-year limitation—I launch proceedings and then suddenly it turns out there's an original publication two months prior to what was my original one-year limitation, and therefore I'm out of time? Isn't that possible? If—again, is any actionable once you're aware of that publication and the year starts, and the limitation happens to start from that, not original publication. Ah, from awareness. But I'm not a tech guy, but when a post is published you can—it's in the metadata of the website that most things are identified as when it's published, and that's a very hard thing to sort of fictionalise, but I would have to defer to someone of a more tech background than me. I think that may also go back to the serious harm issue in that if there was this complete lack of awareness of it, then maybe we might argue that there's not been serious harm to reputation as a knock-on because I would imagine most people who find their suffering the effects of something like that would start to question and work backwards. On the other point, in your example, that might also be a case where the court could be petitioned to exercise its discretion under the statute of limitations to hear the case anyway in the interests of justice, so I would say that that is a natural fit there to mop up any awkwardness in that sort of situation. I'd like to ask you about the codification of the common law, particularly with regard to the definition of public authority. The draft bill bans public authorities from suing for defamation, but that could cover a wider spectrum because that could bring in universities, housing associations and the like, who may need to protect their reputation from time to time. If you're happy that the bill does a good job of codifying the law in that area. Yes, Campbell? Where I struggle with it is in relation to the sub-paragraph 5, which is for the avoidance of doubt nothing in this section prevents an individual from bringing defamation proceedings in a personal capacity, and I struggle as to what that actually means. If you have a situation, heaven forbid, it's not going to happen, but if you have a situation where an MSP or an MP has a relationship, an adulterous relationship within Parliament, then they are acting in a capacity, they're acting in a personal capacity there. Now, it's not defamatory to accuse someone of, for example, having an adulterous relationship. That's not a defamatory statement, but in theory, if you were litigating it, and it wasn't true, you would argue that the sting of it is the hypocrisy angle that they're having a relationship behind a partner's back. If the political party, or that person is a party of, has a general principle of family values, then you're suing based on the hypocrisy on the party doing that. Now, where is that a personal capacity? That would mean that, in those circumstances, I don't see how you could, or anywhere in that situation, as a member of Parliament, could raise proceedings based on that particular circumstance. Nick? It is one of the more complicated aspects, and it does have that vagueness to it. The way that we've looked at it would be that, say you're a finance minister for a council, or someone who's in control of the finances, and an allegation has been put to the council that is deemed to be incorrect and potentially defamatory, while the council themselves would not be able to bring an action if the action was personally identifiable enough to an individual within that authority, they could then potentially try to make a case for it, which there does raise some concerns. I mean, there was a case in England, I can't remember the case, where someone within a council brought an action, and basically he was bankrolled by the council themselves to bring in the action, which is, you know, could be seen as undermining the Derbyshire principle via the back door, which we think is problematic. I mean, I know the faculty of advocates raised an interesting issue when looking at where does the public and private stop and start with individuals, such as MSPs or MPs or councillors, and where does the grey line between that, and I acknowledge that it is a complexity inherent within it. As an example of that, you know, as an MSP, if we get a constituent coming with complaining about sea of housing association, and they go to the press about it, and they name an individual that works there, and they absolutely, you know, destroy them in the press, that housing association would have no redress under this. I don't know, obviously, other people in the panel may have different reading, would be that the housing association themselves would not be, but if it was, if they had identified an individual within the private individual, from my understanding. John Paul, then Rosalind? From my point of view, I think that the drafting leads a lot to be desired in terms of this, I mean, both in terms of the individual, what recourse they have, but also the wider question you started with in terms of what is a public authority, whether it does it cover universities or cover housing associations. I think that the subsection 5, which was referred to, was added in following initial feedback. The draft, which is in the report, is different from the original draft, and the subsection 5, which was the one for the avoidance of doubt a person can still see in a private capacity, is intended to deal with this, but I don't think that it does deal with it. If you take, for example, a historic one, which everyone will be aware of, Jonathan Aitken was accused of, sorry, Neil Hamilton's cash for questions. You are an MP, you are performing a public function, you are accused of effectively abusing that public function by taking cash and asking questions in Parliament. He is entitled to sue under that rule on a personal capacity, but in what sense has any of that to do with his personal capacity? In my reading of that, there would be no entitlement to sue for defamation at all as an individual in those circumstances, which I don't think can possibly be the intention. Equally, the phraseology used could cover all sorts of people who exercise a public function. It could potentially be senior civil servants who could be people in the NHS who could be other things who are performing a public function. The way that the test is set out is to do with the way that it is funded and the functions that are there. I think that that is potentially very, very wide, and I am not sure that that would be the intention. So what would you do to improve or ultimate any suggestions on how that could be changed? Is that need completely looked at again, that whole area? Our view is that it does need looked at again. The public authority is defined in various pieces of legislation for all sorts of things, and I see the law commissioner referred back to the human rights test, but I think that just the way that because of the specific instance of here and what it is to do with reputation and protecting reputation and harm to that reputation, I think that you need to be very careful about that. I mean that the specific feedback that we as a society had was from the university section, obviously it is a very important sector for the country as a whole, and the universities were concerned that their reputation could be damaged and they would be not able to be doing anything about it. I think that that is a legitimate concern. That problem is already here. It is not that it is not a real problem because it is, but the problem from the pursuer's perspective of when you have overlapping public functions and questions of personal integrity or from the defender's perspective a concern that a corporation, a powerful corporation could subvert public discourse by putting an individual victim's face on an action. That is already here under Darbyshire, so it is not a solution, but it is an existing problem. Maybe this is an opportunity to fix it. It is a difficult area. I mean, as Roslyn says, it is very much one where there is an overlap. I would argue that an MP who is unfairly accused has been both personally defamed and their party, if you like, has had its reputation aligned and the party can't sue. I don't have a problem necessarily with the individual being able to sue now. As Nick has said, there have been a number of cases in England and Wales where local councils have been through the back door funding the individual on the basis that, although they can't sue when the individual clears their reputation, the council's reputation is also de facto cleared. I would suggest that maybe one thing that we can look to here is in the area of privacy law. We have some very developed case law on the issue with public figures, the Campbells, the Moseley's and so on, and the distinction between what is genuinely in the public interest about the private and that distinction between the public person and the private person and where the various interests fall. We could learn a lot from that sort of thinking applied in the defamation context. I think that it always is going to be difficult. I mean, the other area I see that presents a similar difficulty here is when you're talking about a body who primarily trade for profit and those sorts of things, private bodies acting in a public capacity, you need to bulletproof that, otherwise what if a local council, for the sake of example, decides to avoid any possibility of being held accountable for decisions by farming them all out to outsourcing them to private interests who may be in a position to then sue that relationship needs clarified in a similar way? Nick had that too. Can I be clear on this? Are we talking about commercial confidentiality, being a catch-all and stops information and any more probing about what is actually being delivered? There's no way of challenging that. It happens all the time just now. I think essentially if you are a catering company or you provide eye tests, whatever it is to the NHS, if you're functioning in effect as part of the NHS, you should be treated in exactly the same way as the NHS in terms of legal accountability in all aspects, including defamation. Nick? I mean, I think that's a really important issue we have here. Obviously, Derbyshire Principle has been around for a while, so this is just codifying it, which I think is good to have all the relevant law in one place, but this does bring an inequality around. Also, it's almost like a lottery depending on how protected you are, depending on who delivers your public service. If I was in, say, Glasgow and all public services are delivered by the public body itself, but then in Argyll, the same thing is being delivered by a private company but delivering a public service. People in Argyll potentially are not protected in the same way that I would be, because the Derbyshire Principle would protect me from response from the council, but that's not the same for the corporate body. I mean, we are one of the few more radical people calling for corporations to be removed from defamation law, but even outside of that, this does demonstrate a very problematic tension. And Rosalyn? Picking up Gavin's point about privacy, there's also, you'll be fed up here about the general data protection regulation, but living indebtifiable individuals will always have their accuracy rights in terms of data, so there's another route in there for personal integrity, is the concern. That's helpful. I'd really like to raise the point of defamation of the dead, and I know that that's something that's been discussed a number of times in Parliament so far. There's also been a petition to the Scottish Parliament on that as well, and it was really just to get each of the panellys of views on whether or not you think that it should remain the position as it is at present where you can't defame the dead, and do you think that that's the correct position that we have in Scotland? I would also be interested to hear if this is something that is in operation in other countries or if there are other examples that you think we should know about. We recognise the distress that can be caused from things that would fall under the sort of remit of defamation of the dead, but for us it fundamentally alters the nature of defamation in the way that it operates across society more broadly. We were supportive of the SLC's omission of it from the bill for a number of reasons. Also the fact that it can really limit investigative journalism after the fact, things like the Jimmy Savile case, which Resilin's already mentioned a lot of that. During his life he had relied on legal threats against people bringing them coming forward, so defamation of the dead could continue that chilling effect on scrutiny. Distress can be remedied through press standards regulations, editorial codes and existing laws that prevent harassment could also establish a mode of recourse for the surviving families or friends. It is one of the more distressing parts of defamation in law, but our position is that we're supportive of it not being in the bill. Completely on board with that. One of the earliest maxims I learned as a law student was that hard cases make bad law, and I'm aware of the Watson case in Scotland, which I have driven a lot of this debate up here. This is actually an area I've been writing about with a colleague and we hope to publish within the next year, but my feeling is that it would extend defamation dangerously, partly in terms of things like the Savile case and so on, but defamation itself is about the impact on a living individual or legal person as it's on going and a negative impact on this. Those cases about defaming the dead are all about, and certainly the Watson case seems to me more about the impact on the parents and the family, and I feel there are other better ways of addressing that, including, for example, from what I've read of the case, a lot of what they're complaining about things like it would be better dealt with under harassment, and that sort of legislation rather than extending defamation. More broadly, I've been involved. Within the last couple of months, I remember one argument that I was involved in online under a pseudonym over the church hill, and historically it was a church hill racist and a drunk and that sort of thing, and I think it's important and healthy we should have those debates, and this could only stifle it, and I don't feel this is an area where we could usefully separate private and public people and so on and say who's fair game on that front. I think this is very much an issue about, as I say, the impact on the living relatives left behind, and there are better ways to address that than expanding defamation. That would be under harassment. Any other ways? Harassment, as Nick said, press behaviour, all the stuff in about public pursuit and rules on news gathering, and is there an invasion of their privacy in terms of what's being published and to what extent is what's being published. There's stuff clearly that's negative and inappropriate, but there's also a lot of stuff that will be published around cases like that, which is difficult and unpleasant for the relatives, but which is a matter of record, in fact, and to an extent a free expression issue. Rosalind? Probably predictably I would endorse what Gavin and Nick's view on this was a matter that has received a lot of careful thought in the recent past, and I don't think it would be a good idea to revisit it, but just in relation to the specific point that Ms Guggin raised, I'm aware that I think that both Malta and Slovenia have got defamation of the dead as part of their code. They're the only two I know about, but I haven't made an exhaustive study of it. I think that even in the civilian law tradition it would be a bit of an outlier to have defamation of the dead, but in answer to your question some states do have it. Mellie? Sorry, Gavin. I think there's something in Romania I know many years, but 20 years ago a relative descendant of Vlad Tipis attempted to sue Francis Ford Coppola, because he had made a connection between Dracula and Vlad the Impaler. There is, I'm told, something in Chinese law as well, but Chinese law is a bit of a closed job to outsiders, unfortunately, but it says, as Rose said, that it's very much an outlier and certainly not the universal standard that we're fast having towards it. I would say that the impact of cases like Saville mitigates very heavily against it. Clearly it's a big issue for the Watson, so I think that the fact that you are suggesting a no-terminal way to address it rather than through defamation may give some comfort there. If there are no other questions, which there aren't and no other opinions to be had, can I thank you all very much for what I think has been productive round table session and defamation? Our position here was we were looking at the possibility of maybe bringing this forward as a committee bill. We very rarely do that, practically never in the Parliament, partly because it's a very complicated process, which is another issue. However, having done that and pressed the issue a little bit, it seems now that the Government is going to take it forward, which is a welcome step forward, and I'm sure that it will have found, as committee members have this morning's session, particularly worthwhile. Thank you all very much for attending. I now suspend to—oh no, in fact, we can take questions when it says—that concludes the public part of the meeting. Our next meeting will be on the morning of 14 June, when we'll take evidence from the Secretary of State for Scotland and Brexit. That's, in fact, later this week. With that, I now suspend to allow witnesses and the public gallery to clear.