At a recent Edinburgh NUJ meeting on freedom of expression, media lawyer Rosalind McInnes, who is employed by the BBC, was on the panel. She was speaking in a private capacity about the current state of freedom of expression laws in Scotland.
She told the meeting that there is an increasing divergence between Scotland and the rest of the UK in terms of freedom of expression and that the picture is complex and challenging.
England and Wales’ defamation law was altered in 2013 and there was some recognition of freedom of expression concerns. Scotland adopted almost none of this legislation.
In England and Wales now, in order to sue for defamation you have to prove that there was serious harm. This matters less in Scotland where judges have been quite robust in terms of dealing with trivial cases. But we do not have the test of serious harm.”
Nor have we adopted the time bar that was introduced in England and Wales. Instead we have a single publication rule.
In England, the first time you go to print is when the clock starts ticking. In England, since 1996 the time limit for suing has been one year. In Scotland, it is three years, but, also, every download of something is regarded as a fresh publication.
In the age of digital and online journalism this creates a possibility that cases might be lodged years after the item was created.
Some of the updating of the law in England and Wales was a response to libel tourism - even if you don’t have a strong connection with London you might choose to sue there. The US has a very strong protection for freedom of expression. You will see American celebrities suing in London.
If you are a public figure in the States, to prove defamation you have to prove that the publisher acted with malice. That’s why American celebrities sue in London. Also, Russian oligarchs sue in London - for various reasons they don’t want to use the Russian courts.
Celebrities have flocked to London and the English courts have historically not been robust in asking why they are coming here to sue. The 2013 Act will change that.
It is concerning that people who are locked out in England and Wales by the new law could come here to Scotland.
RM gave an example of someone who was accused of an offence and subsequently cleared by a professional body after five years: they could potentially sue journalists for defamation at the time the allegations were made. [RM mentioned a specific case involving Rangers - maybe want to leave this more general].
If you are sued for defamation, you generally know about it fairly quickly, but not always. The current law in Scotland pushes the horizon away into the distance. This has implications for journalists - keeping your notebooks, keeping in touch with your sources. RM mentioned a case where a key source has left the country. There are lots of difficulties for journalists if you keep the time running.
One protection against defamation which Scotland did adopt was for peer-reviewed scientific journalists and academic articles. That’s good as far as they are concerned.
In answer to a question, RM said this would not cover arts journalism or reviewing and said that the best protection for that was the defence of fair comment. She said that the scientific journal protection was prompted in part by a case from 2010 involving a journalist who was sued by the British Chiropractic Association.
RM said that, in her view, Scotland’s single publication rule was a problem. The Scottish Law Commission is going to look at Scottish defamation law. She has been asked to sit on the working party.
2) Privacy law: Google and the right to be forgotten.
RM mentioned the EU decision which means Google has to remove certain information on application. She said that was not aimed at the archives of media organisations. However it’s Google that takes people to the archives so there could be implications.”
In the US, the First Amendment regards the right to be forgotten as disgustingly unprincipled. Freedom of expression has primacy. But European courts regard freedom of expression as only one right among many that have to be balanced.
She said it was a complicated picture and that there was likely to be growing pressure for this right to be extended. A lot of people love the idea of a right to be forgotten.
There were issues too around children who do stupid things online. Even in the US, California has the “Eraser” law that allows people who posted things online under the age of 18 to take them down.
3) Reporting Restrictions
England has a larger bar with barristers who specialise in media law and challenging reporting restrictions. But Scotland is politically different. Reporting restrictions are imposed very widely in Scotland. Sometimes they are for reasons such as child protection but they appear to be increasingly being granted for cases and parts of cases for unclear reasons. Anonymisations on the court lists now appear to be granted in many cases involving debt. RM said she was not clear why this was.
However RM commented that Scottish courts are very ready to grant reporting restrictions. There was very little opposition to this. The Scottish press no longer employ full time media lawyers dealing with such issues. Only the BBC has one. There are very few lawyers in Scotland who have expertise in media law.”
RM gave the example of an application to restrict the reporting of the examination of the facts in the Cranhill killing. http://www.bbc.co.uk/news/uk-scotland-glasgow-west-31657659
Although the media organisations were invited to oppose this in concert, only RM was able to do so.
In answer to a question, RM said she did not think that the Scottish courts give sufficient weight to freedom of expression.
4) Restriction of access
RM said she had serious concerns about the proposals of the Scottish Court Service to require journalists to register to gain advance access to documents and complaints and other material produced by the court. She said it was not appropriate that the Lord President should decide who is a journalist and who is not. “The last person who should do that is a judge”.
She said if access was given as privilege it could be removed. Also in some recent trials, blogs produced by non-professional journalists had been a good source of coverage. She urged journalists to oppose this development. Otherwise it would be a case of: "They came for the bloggers, and I was not a blogger so I did nothing.”
She cited a case in England where an organisation called Global Witness’s access to information under the Data Protection Act protection, which would be allowed to journalists, was contested on the grounds they were not professional journalists. The decision was that, although not professional journalists, they were using the information for “journalistic purposes” and therefore were covered by the protection.
Jeremy Bentham said it was important to have open access to the courts “to keep the judge, while himself judging, under trial“. The Judge is being asked to show professional judgement. The public should be able to scrutinise every decision.
5) Freedom of Information Act.
RM said that while there was less protection for freedom of expression in Scotland than in England and Wales in respect of contempt of court and defamation, it was “not all doom and gloom” as the Freedom of Information Act is better in Scotland.
6) Criminal Justice and Licensing (Scotland) Act 2010, s.38(1)
RM was asked about a case from 2012 where a protester was sentenced under this Act to 100 hours community payback order for shouting “No Ifs, No Buts, No Public Sector Cuts” at David Cameron in Glasgow.
She said that this legislation, which makes it a criminal offence to cause alarm, had been enacted to criminalise domestic abuse that was verbal and private rather than physical and public. It replaced the previous catch-all that was breach of the peace.
It was possible that it could be used against journalists. Harassment law in England had been used against journalists.
7) Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012
RM explained that there doesn’t have to be an intended audience for the offensive behaviours to be criminalised.
She cited the case of a woman who was speaking to her husband unaware that someone was listening on the mobile phone which was still on and used a racist term. She was prosecuted for causing “alarm and distress” to the person she did not know was listening (King v Webster, 27th October 2011, Appeal Court, High Court of Justiciary).
She said that an implication for journalists could be filming people leaving or arriving at a match singing songs which were judged to be sectarian.
She concluded that while in 1729 Jonathan Swift could publish his satirical work “A Modest Proposal” on the Irish famine - http://en.wikipedia.org/wiki/A_Modest_Proposal - it was now the case that singing the “Famine song” could result in a criminal conviction.
It was hard not to conclude that rights to freedom of expression were getting worse not better in Scotland.