Corruption, class, identity issues “avoided” amid legal action threats

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It is “very likely” that issues such as corruption, class and identity are being avoided in public discourse in Scotland amid legal threats to writers, according to a new study. 

Researchers at the University of Strathclyde and writers’ association Scottish PEN conducted a survey which received responses from more than 100 writers, editors, publishers and activists. 

Participants in the survey reported a total of more than 50 cases of receiving legal threats, in which they were asked to delete, partly or wholly, or change content, or to pay compensation. Some were also asked never to publish any more writing about a subject or an individual. 

Nearly half of the respondents also believed they had a low understanding of defamation law, increasing the likelihood of writers self-censoring as a means of protection from potential legal action. 

The report’s publication follows the introduction in April 2021 of the Defamation and Malicious Publications (Scotland) Act. The Act prevents defamation actions being brought against “secondary publishers” with certain exceptions, such as when republication brings content to a much larger audience. 

It also explicitly recognises a defence of publication on a matter of public interest and makes provision to ensure that a defamation action can be brought only if a published statement causes – or would be likely to cause – serious harm to the reputation of the person making a complaint. 

The report was compiled by Dr Petya Eckler and Dr Sallyanne Duncan, of Strathclyde’s School of Humanities, with Scottish PEN. Scottish PEN aims to hear of the experiences of a wider cross-section of writers and to raise awareness of the information, resources and support available to writers to ensure they can navigate the law and express themselves freely. 

The report states: “As we heard during Scottish Parliament Justice Committee evidence sessions prior to the passing of the new law, many writers, journalists and activists were choosing to delete or edit content in response to threats of legal action sent with very little public scrutiny. Reform was necessary to ensure that Scots Law accurately reflects how we communicate today and ensures freedom of expression is protected. 

“The findings of this study demonstrate that much work needs to be done to support better understanding of defamation law, and to understand the impact threats of legal action have on writers in Scotland. 

“In a climate of low understanding of the law, writers are likely to self-censor in an attempt to protect themselves from legal action. In order for free expression to flourish, accessible information about what the law means must be widely available.” 

The subjects which were believed to be most commonly avoided in Scottish public discourse included: gender and trans rights; race; sexuality; class; government corruption; corporate lobbying and criticism of political figures. 

Twitter, Facebook and blogs were considered the most likely places to find threats of defamation action, publication of defamatory content or conversations about defamation law, while Instagram and WhatsApp were the least likely.