Scotland must follow EU and UK to stop the rich gagging their critics

I suppose we do like the image of ourselves as the tellers of truth to power, as tenacious investigators who do not let go of a lead once we get the bit between the teeth.

And, as always, there is some truth to be found in this myth. But – as unpleasant as it is to say out loud – serious, investigative journalism in Scotland can sometimes be stopped. Even by the very people it targets. Legally.

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Next week an anti-corruption campaigner and former MP will ask the petitions committee of the Scottish parliament to fix this.

Roger Mullin wants Holyrood to legislate against something called Strategic Lawsuits Against Public Participation, or, more evocatively, SLAPPs for short.

Forget the jargon. What Mr Mullin is targeting are bad faith court actions taken to silence journalists, writers, publishers, campaigners, politicians or, well, anybody really.

The people suing do not need to have truth on their side. They just need money.

Their intention is not necessarily to win their case; it is to wage a war of attrition, to mentally, physically and financially exhaust their critics until they give up.

Now, faced with this kind of action, lots of publishers and writers fight on. But some will not be in a position to do so. Even big publishers are going to have to make hellishly difficult decisions on whether to defend SLAPPs which might tie up their legal and editorial teams for months.

Roger Mullin (Image: free)

Independent journalists or campaigners will rarely have anything like the resources to contest an action, even one of absolutely no merit.

SLAPPs – even just their potential – have a chilling effect on all investigative journalism. They also erode the financial and human capacity of publishers to carry out such work. They make the cost of journalism too high.

The European Union is proposing laws that would let judges dismiss “manifestly unfounded” legal actions.

The UK is also looking at new legislation to allow for the early dismissal of SLAPPs. Scotland? Tumbleweed.

The Scottish Government does not believe new rules are needed.

This, it says, is because it has only recently revamped defamation law. This reform, for which The Herald campaigned, means you should only win an action for what would be called libel in some other jurisdictions if you show “serious harm”. It is huge progress.

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But the new law does not go far enough, not nearly. Why? Well, first because those pursuing SLAPPs do not just use defamation laws. They might, for example, claim information was obtained illegally, or seek redress for alleged financial damages.

Moreover, the newly reformed defamation act does not have anti-SLAPPs protections. It just does not empower judges to dismiss bogus actions quickly, as proposed in the EU.

This was spelled out by academics at the University of Aberdeen’s Anti-SLAPP Research Hub. In a formal submission to the petitions committee, they said SLAPPs were “characterised by an abuse of judicial process, including exaggerated or unfounded claims for damages, amending or withdrawing claims or pleadings, misuse of jurisdictional rules, and exploitation of appeals procedures.”

The sound you can hear as you read these expert words is the shiver going down my spine.

Now I am painfully aware that I have not talked about any individual cases. How come? Because I do not want to be sued.

And this is a problem too, I admit. It is dangerous to talk in such vague terms about the stories that are not told: conspiracy theorists like to fill this space with toxic fantasy.

In fact, this might be one of the scariest aspects of SLAPPs: they create suspicions of cover-ups, of plots, especially involving political personalities.

For the avoidance of doubt, there is currently no legal challenge preventing Scottish journalists from reporting harem-scarem nonsense made up on the internet about our various leaders.

If you keep seeing something incredible on social media that is not in the papers or on the telly, then that is it because it is not true, not because somebody has gagged the media.

My primary concern – which may reflect my personal interests – would be about SLAPPs from international business people.

Which raises another issue with Scotland’s reluctance to act. The Aberdeen experts and Mr Mullin both point out that “forum shopping” bad actors may take their dirty business to Scotland if England and the rest of the EU clamps down on SLAPPs.

There are tricky ethical issues here for the UK’s world of lawyers, company services providers, PR people and sundry other fixers for the very rich. We already have white collars who have acted as enablers for the global corrupt, including people connected to authoritarian regimes. Would some of them lobby for extra work in Scotland? Maybe.

I have a lot of respect for advocates and solicitors who represent those who turn out to be the very worst of us, say rapists and murderers. We do not know somebody is guilty until they are found to be so in court.

But those who chose to act on behalf of, say, Putin’s oligarchs to create offshore financial instruments or intimidate journalists? Well, I do not think they should be regarded as respectable people. Especially in the polite circles of our regulated professions.

Every trade has its fools and its knaves. Mine included. That is why I am not arguing that the victims of substandard journalism – including the very wealthy – should never have the right to go to court. They should. All Mr Mullin wants to do is empower our judges to sieve out vexatious, malicious claims designed to stop you finding out what is going on in the world.

You DO want to know, right?