Scottish new media websites under threat from outdated libel laws

Some have already faced potentially devastating threats from defamation actions, The Sunday Herald can reveal.

During last year's referendum campaign one website, the now closed National Collective, had to shut for days as it fought a legal challenge from a prominent unionist donor.

Scottish Pen is campaigning along with The Sunday Herald's sister paper, The Herald, for libel reform. Its president, Drew Campbell, believes that without an internet-age defamation law the diversity of Scottish media is at risk.

He said: "The referendum stimulated interest in Scottish media that has fostered the creation of new independent and diverse online outlets, which are reshaping the media landscape across Scotland.

"However, Scotland's out-of-date defamation legislation disproportionately impacts these smaller organisations due to the size of the legal fees involved in contesting defamation cases in the courts.

"This is a dire threat to both media plurality and the diverse media landscape in Scotland that continues to grow amid continued challenges across both the industry and the country."

Newsprint and broadcast journalists privately cite a chill from Scottish law, which has not followed the reforms seen in England and Wales that meant claimants had to prove "serious harm" before taking action.

But their digital colleagues - often working on a financial shoestring without the kind of legal expertise available to more established outlets - admit they struggle to tell stories they believe should be told and which they know to be true.

Angela Haggarty, editor of CommonSpace, pictured above, said: "The growth of online media in Scotland has come primarily from the grassroots.

"Its origins are in citizen journalism and it has been led by normal, every day people. It's something to celebrate, and there is a real hunger among the consumers of this new media to hold power to account.

"Current defamation law is not on our side in Scotland if we want to do this effectively. Small online outlets just don't have the coffers of big businesses and corporations to deal with threats of legal action as soon as we begin rocking the boat.

"Going after these stories puts us all at real risk. It limits our ability to report and it ultimately threatens the ability of new media to carry on the job it has risen to prominence for."

Haggarty - like Scottish Pen - stresses libel reform isn't just for journalists. The kind of strict liability being imposed in Scotland means that people posting on social media or the online comment sections of newspapers are at risk. Mainstream media in Scotland frequently have to close comments for legal reasons and are rarely able to explain why.

Haggarty said: "It's not just an issue for outlets like CommonSpace - this applies to anyone who is publishing online, whether it be on Twitter, Facebook or on a personal blog.

"There's a lack of understanding among people about how the growing gulf between digital technology and old laws can be a real danger for them."

Peter Geoghegan, co-founder of the Scottish online investigative site The Ferret, echoed Haggarty's concerns.

He said: "There is a lack of legal expertise and resources to pay for media lawyers.

"We've already had to shelve a number of promising stories for fear of being sued even though there was a public interest in their publication.

"Introducing a public interest test into Scottish defamation laws would go a long way towards modernising the media debate in Scotland.

"As more and powers are devolved to Holyrood the opportunity for the many - and not just the well resourced few - to offer public scrutiny and debate can only become more important."

Industry insiders stress that some of the more politically shrill online campaign sites have avoided defamation actions because they pick soft targets: politicians.

Such individuals are reluctant to turn to the law to protect their reputation because they fear being accused of trying to gag their critics.

Big business and other powerful interests have no such PR qualms.

More than 100 of Scotland's most prominent writers - of all and no shades of political opinion - have backed Scottish Pen, English Pen and The Herald's campaign.

Robert Sharp of English Pen, however, stressed that online sources and bloggers were now replacing newspapers in much of rural Scotland - putting themselves at risk.

He said: "The Highlands and Islands cannot depend on the established media to hold decision-makers to account.

"It is bloggers who plug the democratic gap, and they need a simple, clear law. 

"If our rights are written in statute and not confusing case law, they would know where they stand and will be better equipped to scrutinise the people with money and power."

Freedom of speech groups in England are also worried about Scottish laws. English Pen believes even UK-wide sites could fall foul of Scottish legislation - because their content is published, or at least consumed, north of the border.

The Scottish Law Commission is currently reviewing defamation legislation to see if it can be brought in to the digital age. The Scottish Government has said it is "looking forward" to hearing its suggestions.

The law in England and Wales was overhauled in 2013.