LSE research has analysed defamation laws in jurisdictions across the UK, promoting efforts to simplify procedures for remedy and protect freedom of speech.
What was the problem?
Defamation law is intended to protect reputations from false and harmful claims, while also recognising the requirements of free speech, and the freedom of the press to publish. However, in the UK, defamation law has developed into an unwieldy body of technical rules, which has created opportunities for game-playing by those who have the resources to seek legal remedies for any perceived damage to reputation.
It has been widely recognised that the prospect of complicated and costly legal proceedings can have a chilling effect on free speech, with publishers adopting an overly cautious approach to publishing to avoid the threat of litigation.
This is further complicated by technological changes, which has shifted public debate online to new platforms, including social media, drawing platform companies such as Facebook into this arena. This can lead to new forms of gatekeeping, and companies such as these taking down material regardless of its merits.
What did we do?
Dr Andrew Scott’s research on defamation law has analysed the tensions between individual and social interests in reputation and freedom of speech. He has sought to find ways to accommodate these different principles across several aspects of the law.
The Defamation Act 2013 (which applies largely in England and Wales) resulted from a long campaign highlighting the effects of defamation law on freedom of speech. In his research, Scott examined the changes wrought by this Act, and the nature and structure of the main defamation defences, especially those of fair comment and honest opinion. His work has identified deficiencies in both the structure of the statutory defence introduced in the Act, where it had failed to provide clarity, and in the approach to distinguishing “statements of fact” from “comment” adopted by some English judges.
His work has also looked at the rules concerning the liability of intermediaries such as social media platforms, which host the published work of other outlets. In this, he addressed the concern that liability for persons other than the primary author, editor, or publisher of defamatory material encourages unthinking censorship irrespective of the accuracy or importance of what has been published. An expansionist reading of the concept of “publication” is, he argued, a profound misstep in the law that should be avoided, and one that had necessitated the introduction of a complex array of mitigating defences.
The “single meaning rule” in defamation law requires the court to select one interpretation only from the range of possible meanings of a publication. Scott has argued this rule has multiplied rather than ameliorated the complexity of dispute resolution – since texts can be interpreted in multiple ways by reasonable readers – and hence increases the opportunity for rent-seeking by litigants and lawyers. Scott’s work here has focused on the failure of the 2013 Act to consider and recommend “discursive remedies” – such as corrections, retractions, and rights of reply – which would allow unintended interpretations to be clarified without damages sought, and so would reduce costs in such disputes.
Dr Scott has consulted on proposed reforms to defamation law across the UK’s jurisdictions. His work has also had a direct influence on judicial decisions and discussions of reforming the law in the UK and in similar debates in Ireland, Ontario, Canada, and New South Wales, Australia.
The Northern Ireland (NI) Law Commission commissioned Scott to conduct its review of defamation law, resulting in a discussion paper they put out for consultation. Following this, Scott also drafted a report for Northern Ireland’s Department of Finance setting out two recommended draft bills for consideration by the Northern Ireland Assembly. The first Bill was based on the Defamation Act 2013 as applied to England and Wales, but with strengthened protections for internet publishers and a wider honest opinion defence. The second Bill also includes provision for repeal of the single meaning rule and the prescription of a jurisdictional bar on claims when a publisher has issued a timely discursive remedy (correction or retraction), which reflect Scott’s work in this area.
Scott has also served on advisory boards for an equivalent reform project by the Scottish Law Commission, which proposed a defamation draft bill in 2017. In December 2019, the Scottish government laid the Defamation and Malicious Publication (Scotland) Bill before the Scottish Parliament. Scott submitted evidence to the Parliament’s Justice Committee to assist in its consideration, which was liberally quoted in the Committee’s report. The Scottish Bill reflects Scott’s research in a number of respects, affirming that the basis of comment can be “reasonable belief in the underpinning facts”.
While recommending that a review of defences for internet intermediaries be undertaken on a UK-wide basis, the Scottish Law Commission Report did consider “an exclusion … of the bringing of proceedings against anyone who is not the author, editor or publisher of a given statement”, and the Scottish Bill does aim to reduce the direct liability of intermediaries in favour of alternative approaches.
Scott’s research on defamation has been cited regularly by the High Court in both England and Wales and in Northern Ireland; by the Court of Appeal in England and Wales and in Northern Ireland; and by the Scottish Sheriff’s Court. Most notably, this has included a debate with Mr Justice Eady on which types of inference can benefit from the honest opinion defence.
Overall, Scott’s research has informed legislative and judicial developments which serve to rebalance the individual and social interests in reputation and freedom of speech reflected in defamation laws. They move largely in the direction of better valorising freedom of speech to ensure that powerful interests are less able to curtail critical speech through the threat of legal action, ultimately to secure a more open public sphere.