Help Us Reform Scottish Civil Defamation Law

Dear PEN Colleagues,

Help us reform Scottish defamation law by calling on First Minister Nicola Sturgeon this week to include it in the upcoming Programme for Government.

In April of this year, PEN Gambia presented a petition led by African Centres, and signed by over 150 writers, to the Chairperson of the African Commission calling on African states to abolish criminal defamation and “insult laws”. We call on you now to help us reform civil defamation law in Scotland.

Scottish defamation law is outdated and offers inadequate protections for the free expression of everyone in Scotland. Without reform, the law remains a potent tool of wealthy and powerful interests to stifle criticism and limit robust debate. However, in December 2017, the Scottish Law Commission submitted a draft bill and report that outlines substantial reforms to modernise defamation law and protect free expression, including bringing forward changes to establish a serious harm threshold to dissuade trivial cases or those brought solely to silence criticism; a statutory defence of publication on a matter of public interest and a single publication rule to ensure the time period within which a defamation action can be brought does not restart every time a link or post is shared or viewed online. Every one of these reforms strengthen free expression and ensures that public debate is not controlled or stifled by powerful vested interests.

For the first time in years we are in a position to reform a law that can be used to threaten journalists, writers, academics, scientists, activists and social media users into silence by the threat of legal action. But reports suggest that the First Minister, Nicola Sturgeon may not include defamation reform in the upcoming Programme for Government – outlining the agenda for upcoming legislative session commencing in September 2018. This will push reform back until September 2019, but free expression is too important to delay, especially when we have made so much progress.

Scottish PEN has drafted a letter to send to Nicola Sturgeon, asking her to prioritise reform and include it the Programme for Government. If you believe free expression should be protected now rather than later, please sign your name to the letter here: https://goo.gl/forms/EWiqLN9H6OUftnv03.

You have until Friday 27th July (12 noon UK time) to sign the letter.

We encourage centres to share one or more of the following tweets, or to write tweets of their own:

Defamation law in Scotland does not protect freedom of expression for all. Sign the letter by @ScottishPEN and join the call for parity in expression: https://goo.gl/forms/EWiqLN9H6OUftnv03

.@NicolaSturgeon, delaying defamation reform restricts freedom of expression. Read @ScottishPEN’s letter and protect free expression in Scotland: https://goo.gl/forms/EWiqLN9H6OUftnv03

Queries

If you have any questions please contact Nik Williams, project manager at Scottish PEN on nik@scottishpen.org.

Background

PEN International and our network of PEN Centres around the world has been working for the repeal of criminal defamation laws through research, advocacy and supporting strategic litigation. In most of Asia, and much of Africa, Latin America and the Middle East, defamation is in some circumstances a crime, as it is in Canada and in most of the EU countries. Criminal defamation laws are certainly only part of the problem. The abuse of civil defamation laws can cause an equally harmful chilling effect. This is particularly the case when fines are not capped in law, allowing plaintiffs to request exorbitant sums.
Important developments relating to the decriminalization of defamation, notably the landmark2014 Konaté judgment of the African Court on Human and Peoples’ Rights, have concluded that criminal defamation laws should not include custodial sentences. In the wake of this decision numerous African countries have moved to decriminalise defamation.

However major challenges persist globally both in terms of criminal defamation and broad civil defamation laws which carry crippling fines. One emerging area of concern is the increased use of defamation claims in Strategic Lawsuits Against Public Participation (SLAPPs) which are routinely taken against investigative journalists to prevent them from reporting on corruption and human rights abuses.

Best wishes,

Mike Halmshaw | Digital Manager | PEN International
t. +44 (0)20 7405 0338 |Twitter: @pen_int | Facebook: www.facebook.com/peninternational
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