Andrew Scott


Andrew ScottAndrew Scott

please note:
On leave Michaelmas 2013 - Summer 2014

Email: a.d.scott@lse.ac.uk
Administrative support: Bradley Barlow
Room: New Academic Building 6.25
Tel.020-7955-7259
Twitter: @LSEMediaPaL

Andrew Scott is a graduate of Queen’s University, Belfast (LLB Hons, MPhil) and the University of Wales (PhD). He held a senior lectureship at Norwich Law School, UEA before taking up a post at the London School of Economics in 2006. He is Assistant Director of the Executive LLM.

see also Andrew Scott's LSE Experts page

see also MediaPaL@LSE
 

Research interests

Andrew’s main research interests lie in the fields of media law and regulation, and constitutional law. His current research agenda includes projects on the law of defamation, the interplay between defamation and religious faith, corporations and the public sphere, and the regulation of journalistic newsgathering practices. He is the co-author - with Gavin Millar QC - of a forthcoming book on Newsgathering: Law, Regulation and the Public Interest (to be published by Oxford University Press).

 
External activities
  • Editorial board member Communication Law and Policy (US)

  • Competition law editor, Journal of Business Law

  • General editor, Sweet & Maxwell Encyclopedia of Competition Law

  • International contributing editor, Media & Arts Law Review (Aus)

  • Member of the Managing Editorial Team of the European Journal of Law and Technology (formerly the Journal of Law, Information and Technology)

  • Visiting lecturer at Westfälische Wilhelms-Universität Muenster, and formerly at Universität Trier, Germany

  • Senior Fellow, University of Melbourne

  • Academic Fellow of the Honourable Society of the Inner Temple

 
Books  

Gatley on Libel and Slander (12th edn, London: Sweet & Maxwell,  2013), with HHJ Richard Parkes QC, Alastair Mullis, Adam Speker and Godwin Busuttil

Gatley on Libel and Slander is the leading expert volume on the English law of defamation. It provides expert commentary on the common law, on practice and procedure, on related causes of action, and on the impact of the Defamation Act 2013 on law and practice. Andrew authored five chapters in the new edition: the general introduction, three chapters on the defences of truth (justification), honest opinion (honest comment), and publication on a matter of public interest (Reynolds privilege), and the chapter on the claim for misuse of private information.

Broadcasting (Halsbury’s Laws of England, LexisNexis, 2011) (consultant editor)

Carter-Ruck on Libel and Privacy (6th edn, London: LexisNexis, 2010), with Cameron Doley, Alastair Mullis, Harvey Starte, Ian Helme, Caroline Addy, and Jonathan Griffiths.

Carter-Ruck on Libel and Privacy is the fully revised and renamed edition of this leading volume on the law governing publication and private interests. It offers comprehensive coverage of the substantive laws of defamation and privacy in England and Wales, details the legal practice and procedure in those areas, and gives an account of the comparable laws in over 60 other jurisdictions. Andrew authored six of seven chapters in the entirely new part on privacy law (chs 18-23). These chapters focus on the themes of privacy and publication; misuse of private information: the reasonable expectation of privacy; misuse of private information: the ultimate balancing test; remedies for misuse of private information; harassment, and data protection.

Merger Control in the United Kingdom (OUP, 2006); with M Hviid and B Lyons

Merger Control in the UK - cover

Merger control in the United Kingdom has recently entered a new phase in its development. The advent of the relevant aspects of the Enterprise Act 2002 has been welcomed as a 'depoliticisation' of the regime. The role of the Secretary of State has been all but excised, and the substantive criteria against which mergers are assessed have been revised to offer formally a competition-based standard. Together with guidance published subsequently, the reforms also prescribe a range of new procedural guarantees for those parties affected under the regime. In addition, the EC merger control regime and in particular the nature of its relationship with the competent authorities of the Member States has been significantly revised.

It is against this backdrop that the authors - leading experts with first rate regulatory, practical and academic experience - offer a comprehensive statement of the law, architecture, and procedure of merger control in the United Kingdom; explain the factors pertinent to the economic appraisal of mergers in a manner accessible to a legal audience; and give invaluable practical guidance on managing the transactional process and regulatory risk.

Encyclopedia of Competition Law (London: Sweet & Maxwell, 1987/2002); general editor

The Encyclopedia of Competition Law collates and consolidates all the diverse sources of both primary and secondary competition law in the UK and the EU. * Narrative commentary explains current law and practice in the UK and EU * Full texts of relevant UK and EU legislation with annotations * Case summaries are included for clearer understanding

 

Selected articles
and chapters in books
 

'Tales of the Unexpected: Reflections on the Application of the Bribery Act to Chequebook Journalism' (2013) Journal of Media Law, 5 (2) pp.276-296

A key focus of the Leveson Inquiry and the associated police investigations into media malpractice has been the payment of sources by journalists. For the future, aspects - if not the generality - of such ‘cheque-book journalism’ will be governed by the prohibitions in the Bribery Act 2010. Yet, during the protracted development of the new legislation, media organisations appeared not to appreciate the pending legal risk that it presented. Any putative ignorance on this front has since been assuaged, and concern has been raised at the absence of any explicit ‘public interest’ defence for journalists. This article contends that - contrary to the prevailing view – the Bribery Act may in fact offer a basis to defend some public interest journalism that involves payment of sources. It also suggests that, notwithstanding the attention afforded to the Bribery Act in the Leveson Inquiry and Report, the likelihood of prosecutions against journalists thereunder may be small given the continuing availability of the alternative common law offence of misconduct in a public office. Hence, the main practical impact of the legislation in the media context may be the authoring of Codes of Practice and the training of journalists undertaken by media organisations in order to avoid the risk of vicarious liability.

'Tilting at Windmills: the Defamation Act 2013'  (with Alastair Mullis) (2014) Modern Law Review, 77 (1) pp.87-109

In April 2013, the Defamation Act was passed as the culmination of a four-year political campaign. The legislation is intended to ameliorate the "chilling effect" of libel law on scientists, online commentators, NGOs, and others. This paper considers the main changes wrought: reform of the main common law defences, changes relevant to scientific discourse and online speech, and revisions that will impact on process. It identifies areas where there will be problems of interpretation for courts, and suggests that the Act will fail to provide clarity for publishers keen to assess the legality of their actions. The paper also contends that more attention should have been paid to remedies (in particular, the desirability of discursive remedies such as the right of reply). The question is posed whether the Act addresses the core problem with libel law: the juridification and over-complication of public sphere disputes, and the attendant cost of embroilment in legal proceedings.

‘How to Know the Truth: Accommodating Religious Belief in the Law of Libel’, Chapter 8 in Richardson and Bellanger (eds) Legal Cases. New Religious Movements and Minority Faiths (Farnham: Ashgate) (with Alastair Mullis) [FORTHCOMING]

While religious pluralism, liberty and equality are now general cultural and legal expectations in the UK, the history of interplay between religious identities is one of intellectually - and sometimes physically - violent discord. Today, religious frictions persist as an inevitable facet of a plural society. Both low-level antipathies and serious religious disputes are driven by such factors as long-standing and incipient factionalism within religious groupings, more or less aggressive secularist critique, and resentment among some faiths of the proselytising zeal of others. From time to time, the law of libel is invoked to resolve disputes engendered by religious difference, notwithstanding that it is inherently difficult for any purportedly neutral, secular law properly to adjudicate between competing conceptions of the righteous and the good. This chapter proceeds in four parts. First, we outline the basic features of English libel law to underpin the subsequent discussion. Secondly, we suggest a typology of criticism of religious faiths and their adherents, and indicate how each type of allegation would be countenanced by the law. Thirdly, we criticise the approach adopted by the English courts to one type of allegation: those that involve specific allegations of fact but which rest on questions of religious doctrine. We find that by abjuring any role on grounds of non-justiciability and deference to religious modes of dispute resolution, the courts may systematise the disadvantage of already marginalised groups. Finally, we suggest a conceptually and jurisprudentially preferable manner for the resolution of such cases that would properly ensure the neutrality of libel law as between disparate views on questions of religious faith.

'Media Markets: A Crucible for Assessing the Intrinsic and Extrinsic Challenges for Competition Law and Policy' (2013) Competition Law Review, 9(1), 1-5

Saskia King and Andrew Scott, ‘Effect on interstate trade: An overview of EU and national case law’ (October 2012) e-Competitions, special issue

'The Swing of the Pendulum: Reputation, Expression and the Recentering of English Libel Law' (2012) Northern Ireland Legal Quarterly, 63(1), 27-58 (with Alastair Mullis)

The design of any libel regime must involve an appropriate accommodation between individual rights and social interests in both freedom of expression and reputation. For 20 years, British legislation and jurisprudence on libel has been driven almost exclusively by the perceived need for existing rules of law to comply with Article 10. Freedom of expression has been regarded as the 'trump card'. In the light of developments in European and English jurisprudence, this approach is no longer tenable. Reputation has been confirmed as part of the Article 8 right to respect for private life and must be balanced against Article 10 when legislation is passed and when courts determine disputes. Yet, it is not clear that a coherent intellectual underpinning has been articulated by the courts to explain this jurisprudential innovation. After reviewing the development of the law and the rights context, this paper considers the four main justifications offered by judges and others to explain the articulation between reputation and privacy. It contends that only one of these justifications is coherent, and sets out a dualistic understanding of reputation that values both public perceptions of the character of an individual and that individual’s sense of self-esteem engendered by the perceived quality of this public regard. It suggests that only insofar as the latter aspect is impugned should reputation fall within the ambit of Article 8. The paper reflects on the possible ramifications of the rights-based resurgence of reputation for a number of areas of the extant law.

'The Evolution of Competition Law and Policy in the United Kingdom', in Mehta (ed), The Evolution of Competition Laws and their Enforcement: A Political Economy Perspective (London: Routledge), 189-213

'Reframing Libel: taking (all) rights seriously and where it leads' (2012) Northern Ireland Legal Quarterly, 63(1), 5-25 (with Alastair Mullis)

In preparing this paper, we have returned to first principles and re-evaluated fundamental aspects of libel law, its purposes, its substance, and its processes. Our thinking has been informed by, first, philosophical understandings of democracy and the public sphere and in particular the role of freedom of speech and of the media therein, and secondly, the social psychology of reputation and privacy. Ultimately, we recommend a coherent set of significant substantive and procedural reforms that if enacted would enhance access to justice, simplify processes and reduce costs for the vast majority of libel actions. In essence, our proposal involves the recommendation of a two-track libel regime. The first track in this new regime would comprise a much-simplified process, and could be administered by an appropriately designed self- or statutory media regulator. The overwhelming majority of cases would be addressed by this route. The primary remedies available would be discursive in character, normally either a correction or retraction. Recoverable costs would be limited. The second track would be limited to aspects of the most serious and/or most damaging libels. Those aspects of cases referred out to track two would continue to be heard in the High Court.

‘A Moving Target for Reform: Developments in the English Common Law of Libel’ (2011) Media & Arts Law Review, 16(2) pp. 204-217 (with Alastair Mullis)

‘Worth the Candle?: the Government’s Draft Defamation Bill’ (2011) Journal of Media Law, 3(1)  pp.1-17 (with Alastair Mullis)

The Government has published a draft Defamation Bill and Consultation Paper which invites comment on the Bill itself and a number of other matters. This paper offers a critique of the Bill which in our view fails to take what is an historic opportunity to create a modern law that properly triangulates the rights and interests of claimants, defendants and the wider public. Several provisions of the Bill purport simply to restate the existing law, others are more radical but the radicalism is all in favour of increased freedom of expression. Insufficient account is taken of the article 8 right to reputation. The result is a Bill with a few sensible provisions, but overall the impression given is that there has been no serious contemplation of the breadth of interests at stake where one person publishes an untrue statement about another. If reform is to be effective and the rights of claimants, defendants, and the wider public are to be properly protected, such a fundamental re-examination is essential. It is to be hoped that during the consultation period that has now begun, this task can be properly recognised and undertaken.

‘Media Mergers’, in Scott (ed) Broadcasting (Halsbury’s Laws of England, LexisNexis, 2011), 794-804

‘Lord Lester’s Defamation Bill 2010 – a distorted view of the public interest?’ (2011) Communications Law 16(1) pp.6-19 (with Alastair Mullis) 

Evaluates the provisions of the Defamation Bill 2010, highlighting the beneficial reforms and those which appear misguided. Responds to the justifications for reform in the explanatory notes, including the alleged inadequacy of Reynolds privilege, the lack of clarity over internet publications and the need to make the law more favourable to the media. Comments on every clause, including the approach to responsible publication, honest opinion, statutory privilege, multiple publications and the need for substantial harm, and assesses whether the Bill's view of public interest is distorted.

'L’Icelandic Modern Media Initiative: une évaluation juridique', in Mbongo (ed) Philosophie Juridique du Journalisme: la liberté journalistique en Europe et en Amérique du Nord (Paris: Mare et Martin, 2011) (transl. P. Mbongo)

'Prior Notification in Privacy Cases: a reply to Professor Phillipson' (2010) Journal of Media Law 2(1), 49-65

In a recent edition of this journal, Professor Gavin Phillipson considered whether the UK must impose a prior notification obligation on the media in respect of stories that concern the private conduct of individuals. Such a notification requirement would allow time for the subjects of such stories to seek interim relief to prevent publication. Max Mosley has asked the European Court of Human Rights to oblige the UK to introduce such a rule. Professor Phillipson concluded that Mosley should win his case. This paper proceeds, first, by questioning the fundamental premise of the Phillipson / Mosley argument: that damages are inadequate to compensate harms done through publication of private information. Secondly, it considers the practical ramifications of the imposition of a prior notification requirement, both in terms of the 'workability' of a legal obligation and the impact it would have on media freedom. Thirdly, it airs the question of whether - in light of the margin of appreciation afforded to contracting states - it would be legitimate for the Strasbourg court to compel the introduction of a specific measure to assist the protection of privacy. The paper concludes that the European Court should not find the UK in breach of its obligations. Nevertheless, it closes with reflections on the desirability of prior notification, and the availability of other available means to encourage the practice. 

'Something rotten in the state of English libel law? A rejoinder to the clamour for reform of defamation' (2009) Communications Law 14(6), 173-183 (with Alastair Mullis)

Comments on the debate concerning English libel law and the calls for reform particularly by those seeking greater freedom of expression. Suggests that the debate has been dominated by the one-sided perspective of the print media. Observes the existing state of the law and highlights those criticisms of existing law that in the authors' view are: (1) based on errors or misunderstandings; (2) based on misjudgements; and (3) have some substance and are worthy of further consideration. Identifies those areas of libel law which do not warrant reform and those areas which should undergo constructive revision including the costs of proceedings.

'Interference With Witnesses', in Cram (ed) Borrie & Lowe: the Law of Contempt. 4th edn (London: LexisNexis, 2010)

'Flash flood or slow burn? Celebrities, photographers and the Protection from Harassment Act' (2009) 14(4) Media & Arts Law Review 397-424

'The Same River Twice?: Jameel v Wall Street Journal Europe' (2007) Communications Law, 12(2), 52-59

‘Tweedledum and Tweedledee?: Regime Dynamics in US and EC Merger Control’. Marsden (ed), Handbook of Research in Trans-Atlantic Antitrust (London: Edward Elgar, 2007)

‘Last Rites for the Two-Thirds Rule in EC Merger Control?’ [2006] Journal of Business Law, 619-630

‘Cain and Abel?: Trade and Competition Laws in the Global Economy’ (2005) Modern Law Review, 68(1), 134-154

‘The Cutting of Teeth: IBA Health v Office of Fair Trading’ [2004] Journal of Business Law, 672-683

Examines the Court of Appeal's judgment in IBA Health Ltd v Office of Fair Trading on whether the Office of Fair Trading (OFT) had erred by failing to refer a proposed merger between two leading providers of healthcare software to the Competition Commissioner for an investigation of its likely effect on competition. Looks at the legal and factual background to the case, focusing on: (1) the interpretation of the Enterprise Act 2002 s.33 and the respective responsibilities of the OFT, the Competition Commission and the Competition Appeal Tribunal; and (2) the OFT's duty to give reasons to support its decisions.

'"A Monstrous and Unjustifiable Infringement”: Political Expression and the Broadcasting Ban on Advocacy Advertising’ (2003) Modern Law Review, 66(2), 224-244

This paper considers the legality of the broadcasting prohibition on 'advocacy advertising'– the use of advertising space to communicate social, political and moral arguments to a wider public – in the light of the growing jurisprudence on the freedom of political expression. The prohibition is currently found in the Broadcasting Act 1990, and the Government has proposed its reiteration in the forthcoming Communications Bill to fall within the regulatory ambit of OFCOM. The paper begins by introducing and illustrating advocacy advertising and the restrictions upon it. It proceeds to review the relevant jurisprudence on political expression, to analyse the familiar arguments in favour of retention of the prohibition, and to weigh the counter-arguments. The paper concludes that the purported justifications sit ill against existing legal rulings, and evidence a poor understanding of the critical sophistication of the public as a broadcasting audience. It suggests that a continuation of the prohibition would be unlawful.

‘Winter Talk by the Fireside?: Tacit Collusion and the Airtours Case’ [2003] Journal of Business Law, 298-314

Analyses the Court of First Instance's ruling in favour of Airtours Plc, challenging a Commission decision to block its merger with First Choice, and its anticipated repercussions for Commission procedures and the judicial review process because of the time taken for the case to be heard following the blocking of the merger in 1999.

 

Reports / discussion papers

'Lord Lester's Defamation Bill: a distorted view of the public interest?' (2010) Inform, with Alastair Mullis, 7 July 2010  link to blog

'Prior notification in privacy cases: contesting a false premise' (2010) Inform, 25 June 2010  link to blog

'Four Papers on Contempt of Court and Media Publicity: UK Law and Enforcement, Comparable Jurisdictions, the Empirical Evidence, and Future Options'. LSE / BBC Forum on Contempt of Court and Media Publicity, October 2008 (90pp);

Audit Continuity Plan: Assessing the Competition Law Implications (2007) Report prepared for the Financial Reporting Council (25pp)
 

Media Mergers: A Framework for Analysis (2006) Report prepared for the Irish Competition Authority (120pp - with Hargreaves Heap, Gaudeul, and Akman)