By Nik Williams

DEFAMATION law in Scotland has not been substantially reformed since 1996. In 2013, England and Wales overhauled their libel laws, introducing substantial new protections for free expression. Scotland, by contrast, has lagged and continues to lag behind. But in the 22 years since 1996, the internet has revolutionised the ways we communicate, source information, attempt to hold the powerful to account and express ourselves.

Put it another way: we have had 22 years when the laws governing defamation have not adequately protected free expression in Scotland, leaving everyone who chooses to express themselves at risk from legal action aimed at silencing robust criticism in the public interest.

But over the last year, we are closer than ever to reforming our out-of-date law. Last December, after months of consultation and work, the Scottish Law Commission published a final report and draft bill on defamation reform. Since then, the Scottish Government has expressed an interest in changing the law. Last month, the Justice Committee heard evidence from Scottish PEN, BBC Scotland, the Law Society of Scotland and others about what potential reform could and should look like. The Scottish Government is preparing a public consultation.

For the first time in 22 years reform felt close but now we face the possibility of yet another delay. Reports suggest defamation reform will not be included in Nicola Sturgeon’s next Programme for Government, leaving September 2019 representing the next opportunity for this much-needed reform to be introduced.

By any measure, a year is too long to wait, especially when we are so close to bringing Scots law into the 21st century. The consultation process must be respected. The detail will, correctly, be debated. But this debate need not delay a commitment from the Scottish Government to begin the work of defamation reform during Holyrood’s next session.

The reforms suggested by the Scottish Law Commission will go a significant way to protecting the people of Scotland, whether they are journalists, academics, bloggers, activists, scientists or anyone who uses social media. Key reforms include establishment of 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.

But by delaying reform, the Scottish Government risks giving cover to the wealthy and powerful interests that can use defamation law to stifle criticism and control public discourse.

Whether it is a Facebook group moderator in Strathaven, a land reform expert scrutinising the financial and business practices of private companies, journalists uncovering secrets embedded in our society or scientists attempting to scrutinise research and challenge false assertions, defamation law dictates how free these individuals are to challenge power and inform the public.

If defamation offers no significant protections for free expression or continues to prioritise the interests of pursuers, public discourse, journalism and civic engagement will suffer.

Scotland has the opportunity to ensure our defamation law reflects the society we are, not the society we were. There is no reason for the Scottish Government to put the brakes on now.

Nik Williams is Project Manager, Scottish PEN