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  7. Protection against defamation lawyers: make sure you can prove the allegations you publish

As MP Natalie McGarry found out last week, with an unblemished reputation, the best lawyers in the business and the deepest pockets anyone could wish for, JK Rowling is not a good person to take on in a defamation dispute. It wouldn’t be wise to rehash the details, only to say that if there was one person in the world you wouldn’t accuse of sucking up to a misogynist troll it would be the Harry Potter author.

And so too Sinn Fein MLA Phil Flanagan has this week found out the hard way it’s not smart to accuse political opponents of shooting people without a shred of evidence. Following a hearing at Belfast High Court, he had to apologise to Fermanagh MP Tom Elliot for suggesting he had harassed and shot people while a member of the UDR and now faces a substantial bill for costs and damages.

The lesson for McGarry and Flanagan, and anybody else who likes making cheap points on social media, is Twitter equals publication and as more than your mates will be reading your inflammatory tweets you better have the evidence to back them up.

Yet from the furore over an article written by sports writer Graham Spiers in The Herald, it seems that some calls for reform of defamation law in Scotland include abandoning the principle of proof being necessary to substantiate allegations.

As it happens, defamation reform is a top priority for the current chair of the Scottish Law Commission, Lord Pentland, who as Paul Cullen QC was one of Scotland’s leading media law specialists before becoming a judge.

The Herald has also been campaigning for change, working with the Scottish branch of the English PEN, the freedom of expression pressure group which played a key role in the introduction of the 2013 Defamation Act in England and Wales.

Lord Cullen’s Commission is studying the 2013 legislation to see what lessons can be learnt and which measures are needed here. Some just brought English defamation law into line with Scottish practice, such as strengthened defence of truth and the presumption against a jury trial, but there is a growing feeling amongst experts that some others would be very welcome.

For example, there is the protection afforded to publishers who run comment streams; the 2013 act makes it clear the publisher is not automatically responsible for actionable comments as long as the poster can be traced and the post is taken down once the damaging remarks have been flagged up.

Then there is the acceptance that finding something in an online search is not the same as deliberate republication. The old law was designed to prevent a publisher repeating a damaging statement, but technically every time someone found a defamatory story on an internet search it could be regarded as a new publication which could trigger another law suit. And as all editors know, removing an article from the website doesn’t mean the story disappears.

There was also the clarity brought about by the requirement of a claimant to prove serious harm, designed to weed out claims for simple differences of recollection or trivial inaccuracies.

But without pre-judging Lord Cullen’s recommendations, the basic principles underpinning this area of law are unlikely to change. The most straightforward of all is that anyone making an accusation effectively puts themselves in the same position as an official prosecutor, so unless the accused’s reputation has already been irretrievably damaged the onus will always be on the accuser to prove the allegations are true. The accused party must be considered innocent and their reputation intact until it is proved otherwise.

However, as hundreds of prosecution lawyers and police officers well know, believing something to be true is not the same as proving it. That’s why so many rumours circulating around politics, showbiz and sport are never made public, and accounts for the amazement when Lord Ashcroft and his writing partner Isabel Oakeshott published a lurid claim about David Cameron and a pig’s head based entirely on hearsay from one person who had witnessed nothing.

Oakeshott’s argument, that it was up to readers to make up their own minds, would have been laughed at by most journalism students never mind libel lawyers, and she was only safe because the chance of the Prime Minister suing was remote.

No reform of the defamation laws will allow allegations to be levelled at blameless individuals without proof and in seeking to balance freedom of expression with the rights of individuals to protect their reputations it would be impossible for writers to be given carte blanche to make allegations solely on the basis of belief or an unrecorded and unwitnessed conversation.

Yet that seems to be behind much of the reaction to the Herald-Spiers row. The expectation seems to be that the writer’s honestly held belief should be enough justification for publishing damaging claims. But it’s not as simple as that.

Never mind the problem of corroborating the central claim about an un-named Rangers FC director, it had the added complication of pointing the finger at everyone fitting the description, in other words all of the club’s directors. The paper had no choice but to apologise.

One commentator in The National asked: “How can journalists strengthen their security from legal threats?” It’s not just journalists, but MPs and MLAs too, and the answer is simple. Make sure your evidence is irrefutable before you publish.