Scotland, slander & calumny...

Terence Ewing is a vexatious litigant.  In 2008, believing himself to have been defamed by the Times newspaper, and his case before the English courts having failed, he took himself away on a little jurisprudential tour, up to Belfast and to Edinburgh.

Having arrived in the capital, Mr Ewing hied himself to a public library, where “he downloaded the internet version of the article and read a hard copy of it”.  He promptly raised further legal actions in the Scottish and Northern Irish courts, claiming again that the Times had defamed him.  

In the Court of Session, his case was dismissed in an acid opinion from Lord Gill – the incoming Lord President as is – who described Ewing as a “serial litigator with a long and well-documented record of mischievous and irresponsible ligitations”.  In Gill’s judgment, Ewing had “no connection with Scotland and has no apparent reputation here to defend”, and his appeal was comprehensively refused.

It takes a particularly committed warden of a reputation, actively to travel across jurisdictions to read an article in which you are dishonoured, and I dare say few folk are as committed as Mr Ewing to the business of protecting their names. Yet for calculating so-and-sos, libel litigation on their mind, there may be clear advantages in selecting the legally most congenial forum for the airing your disputes.  For my part, I’m no expert on the law of defamation in any of the UK’s jurisdictions, but I’ve been wondering recently if we’re failing to spot the potential implications of the Westminster government’s upcoming reform of the English and Welsh law of libel and slander. Scotland isn’t exactly inundated with defamation actions at the moment, but might that all be about to change?

Save for Tommy Sheridan’s disastrous foray into our civil courts, we don’t hear a great deal from the Court of Session about alleged calumnies, slanders and libels, reputations ruined and restored.  The Times Scottish correspondent Angus MacLeod unsuccessfully sued the publishers of the Sunday Herald for defamation in 2006, over slighting observations made about his analytic nous in Alan Taylor’s diary.  More recently, former SSP MSP, Frances Curran, sued the Daily Record, over an article which appeared in its pages, in which she was branded a “scab” by the Satsuma Socialist after his successful defamation action of 2006.  Curiously, the Court of Session held that “scab” was not defamatory, as it was “criticism of public conduct in the context of a political struggle” which fell “well within the latitude permitted by the law where comments are made about persons acting in their public capacity”.

By contrast, down south, libel law has been a point of more directed political agitation for some time, and formed part of the Labour, Liberal Democrat and Tory manifestos in the 2010 Westminster General Election. Calls for reform were encouraged by controversial cases, including the British Chiropractic Association’s extended libel litigation against Simon Singh, who criticised their activities in a Guardian column.  The litigation took two years.  

For would-be libel reformers, a major spur to their endeavours have been concerns about free speech and the way in which libel law has been manipulated by powerful interests. While theoretically universal, there to protect the reputations of all persons against malicious falsehood, the expense associated with resorting to the law of libel primarily protects those with wealth enough to retain lawyers.  Yet much of this zealous, reforming advocacy talks about chimerical concepts - “British courts”, “UK law”, “our law” - which gives the impression that we currently have a uniform law of defamation in this country. Which of course, we don’t. 

So what might we be overlooking? While in Scotland we’ve got almost no libel reform pressure to speak of, in Westminster, the coalition have finally introduced a draft Defamation Bill to curb the vigorous jurisdiction of England’s libel courts.  In Scots law, defamation is defined as anything which “tends to lower the pursuer in the estimation of right thinking members of society generally”. The question a court must ask itself is: “Would a reasonable man [sic], reading the publication complained of, discover in it matter defamatory to the pursuer?” In England and Wales, by contrast, the Westminster government wishes to qualify this test.  Assuming that the critical section of the draft Bill passes through parliament unaltered, in future, a statement will not be “defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”.

It should be obvious that this will be a theoretically much more stringent test for the English litigant to overcome than a Scottish pursuer pursuing a defamation action will have to satisfy. The draft Bill also proposes to amend the defences available to English defendants, including specific protections for “operators of websites” which host defamatory comments, and attaching privilege to peer-reviewed statements in scientific or academic journals.  

No reforms are currently envisaged for the Scots law of defamation, and the coalition government’s Bill currently extends to England and Wales only.  I’m conscious that we get into very tricky terrain here, with thorny legal questions raised about where websites are hosted, which courts have or should have jurisdiction, or whether damages are calculated in Scots law will encourage or deter litigious jaunts north of the border, if this Bill passes. 

I’m no practitioner in this field, and currently ill-qualified to take an informed view on the likelihood one way or the other.  It may well be that Scottish courts will be able, by deploying a range of techniques, to protect themselves from an influx of opportunistic litigants, keen to avail themselves of our soon-to-be less stringent rules on what is or is not defamation of a person’s reputation.  However, as the Sunday Herald’s legally canny publication of a certain “unidentified” footballer’s phizog on its front page ought to remind us, it is generally very unwise to forget that the UK doesn’t have one legal system, but several.  Neglect the impact they may have on one another at your peril.