Defamation and Malicious Publication (Scotland) Bill Stage Two Briefing

About SCVO 

The Scottish Council for Voluntary Organisations (SCVO) is the national membership organisation for the voluntary sector. We champion the sector, provide services, and debate big issues. Along with our community of 2,000+ members, we believe that charities, social enterprises, and voluntary groups make Scotland a better place. 

Scotland’s voluntary sector 

The Scottish voluntary sector encompasses an estimated 40,000+ organisations, from grassroots community groups and village hall committees to more than 6,000 social enterprises, nearly 25,000 registered national charities, and over 100 credit unions. Scotland’s voluntary organisations are focused on delivering vital services and empowering some of Scotland’s most marginalised communities.  

They also have a big role to play in protecting Scotland’s environment as well as campaigning and advocating for change. Together, they employ over 100,000 paid staff, work with over 1.4 million volunteers, and have a combined annual turnover that reached £6.06b in 2018. This includes a range of mixed-income sources such as contracts, grants, and fundraising.  

Summary 

SCVO supports the Defamation and Malicious Publication (Scotland) Bill. We welcome efforts to afford adequate protections that allow sectors such as the media to perform their roles in holding others to account. Our Stage Two briefing highlights why charities must also be afforded adequate protections from defamation, and why removing these protections from the Bill as introduced would not have due regard for the reputation of Scotland’s voluntary sector.   

SCVO are supportive of amendment 1 but oppose amendments 33, 34, and 35. Taken together, amendments 33, 34, and 35 remove adequate protections for a charity delivering services of a public nature when they should rightfully be able to bring proceedings in the case of defamation.  

Charities must operate transparently and be accountable for their activity, and the media plays a vital scrutiny role in uncovering stories of public interest. This, however, does not negate a charity's right to protection from harm. 

The potential harm to charities of not being able to bring defamation proceedings is greater than for public bodies, as reputational damage can have a direct impact on income generation, and charities’ ability to absorb this loss of income is far less than public bodies.  

The public’s trust in charities links to reputation, which is formed in part by the judgement of others and what they say – this includes statements made or published by the media. The prominence of media as an arena where reputations are lost and won, which can seriously affect charitable giving, means charities must have a right to protection of reputation in circumstances where they deem themselves subject to defamation. It is impossible to separate the effect of a defamatory statement made solely about a charity’s delivery of a public function from a charity’s other activities and overall reputation. 

SCVO’s position on amendments 1, 33, 34, and 35   

At Stage One, SCVO supported calls for Section 2 of the Bill to be clearer and we recognise that amendment 1 seeks to do this. While we are supportive of amendment 1, paragraph (d) within the amendment makes clear that any person or office not falling within paragraphs (a) to (c) whose functions include functions of a public nature would be prohibited in bringing proceedings, unless excluded by regulations made under subsection (6). The knock-on effect of this would mean that charities delivering public services from time to time would be prohibited in bringing proceedings if amendments 33, 34, and 35 were adopted.   

It is essential that subsections (3) and (4) in section 2, page 2, line 13, remain in the Bill, as these make clear that a charity carrying out functions of a public nature from time to time would not be prohibited from bringing proceedings. SCVO oppose amendment 33, which seeks to remove these sections. Furthermore, given that paragraph (d) under amendment 1 increases the importance of exclusions made by regulations, SCVO oppose amendment 34 and amendment 35, which appear to prevent Scottish Ministers from specifying descriptions of charities that are not to be treated as a public authority for the purpose of subsection (1).  

SCVO would be happy to meet with MSPs ahead of Stage 3 to strike the right balance in further amendments.  

Background 

SCVO supports the exemption for charities under part two of the Defamation and Malicious Publication (Scotland) Bill. This exemption for charities from the ‘prohibition on public authorities bringing proceedings’ (also referred to as the Derbyshire Principle), would mean that a charity providing a public function would still be able to bring defamation proceedings. SCVO has recognised that the exemption for charities from the Derbyshire Principle, as introduced at Stage One, received attention during the Justice Committee’s examination of the Bill. While we support the committee’s recommendation that the Scottish Government should redraft the section to be more precise over which bodies are covered or exempt by the legislation and is why we support amendment 1, the exemption for charities must remain. 

Trust in charities is inherently linked to reputation, in that the general public’s trust of charity is not only formed on personal interactions but also relies on the judgement of others and what they say – this includes statements made or published by the media. As reputation allows or stops a charity from securing and maintaining trust, charities must have the right to protection of reputation. This includes where someone, including the media, unjustifiably damages a charity’s reputation in written or spoken form.  

The media plays a vital role in setting the public mood and can impact people’s trust in charity. SCVO research in 2018 highlighted that negative media stories are significant, with 38% of respondents to our survey revealing media stories reduced their trust in charities. Given the prominence of media as an arena where reputations can be lost and won, and reputations damaged by the media are hard – if not impossible – to correct outside the media, charities must have a right to protection of reputation where they have been subject to defamation. 

We welcome the valuable contribution the media makes in helping charities to increase awareness and engagement from supporters, better enabling them to fundraise and share stories, campaigns and achieve their charitable aims. On the flip side, charities must be accountable for their activity, and the media plays a vital scrutiny role in uncovering stories of public interest. The media should have adequate protection to perform its role in holding others to account. 

However, the view that the defamation rule should follow the public pound is too simplistic as it fails to recognise the disproportionate risk this would place on charitable organisations compared to public bodies. The consequences of a malicious publication are far greater for charities, who rely on supporters – both individuals and organisations – to generate income to achieve their charitable purpose. A charity’s ability to absorb reputational damage and the potential immediate and direct impact of the loss of income is far less than public bodies. It is impossible to separate the effect of a defamatory statement made solely about a charity’s delivery of a public function from a charity’s other activities and overall reputation.  

Bringing legal action through the courts is not a simple decision for a charity to make. The decision to bring defamation proceedings would need to be agreed by trustees, who have a duty of care when managing the affairs of a charity. Public legal proceedings bring a degree of risk and damage to any organisation taking this action, both reputationally and financially. It is an extreme case, where trustees have considered that not bringing defamation proceedings would cause greater risk and damage to the charity.    

SCVO would be seriously concerned by any changes to the Bill to remove the exemption for charities. Such an undertaking without an appropriate awareness of the risk to charities gathered through proper consultation and analysis would not have due regard for the reputation of Scotland’s voluntary sector. 

Contact 

Paul Bradley, Policy Team – paul.bradley@scvo.scot