Let me go through the three. Starting with veritas—truth—I think that that is basically fine, although I would point out that nobody is unclear about it at the moment. However, there is no harm in codifying it.
More problematic would be the defence of honest opinion, which I will return to. The defence “on a matter of public interest” is essentially the replacement for the Reynolds defence. Here, I agree with the evidence that was given last week. The Reynolds criteria have been extremely useful in practice, allowing journalists and lawyers to give a range of criteria and to ask questions such as, “Does this constitute responsible journalism?” “Have you looked at the origin of this?” and “Have you given a right to reply?”
We now have something that does not include those criteria, and I suppose that the question that would have to be asked—and would only be answered in court—is on the degree to which the Reynolds criteria will continue to inform the decisions of the court in relation to the new defence that replaces them. That is an unknown. I simply note that moving away from Reynolds might diminish clarity, strangely, which would be the opposite of what is trying to be achieved.
Regarding the defence of honest opinion, replacing that of fair comment, the biggest difficulty is the justification that is given for the removal of the public interest aspect of the existing fair comment defence. It is easily and regularly applied by the courts. I was struck, last night, by something when I looked at the policy memorandum. You might not have it in front of you—hopefully, your lives are more exciting than mine—but I will read from paragraphs 99 and 100 of the policy memorandum.
The justification for the removal of public interest is given as follows:
“The technical complexity of applying the defence means that it is less effective and less frequently invoked than it may otherwise be in protecting freedom of expression.”
I simply do not accept that, given my experience or that of those in the faculty.
It continues:
“The shortage of modern Scottish case law on the defence adds to the difficulties.
At the same time as placing the common law defence in statute, the opportunity has been taken to reform it.”
The policy memorandum notes that the new defence has no requirement for public interest, and says:
“This is for several reasons. First, the concept has not played a significant role in practice for many years, owing to the scope of the notion of ‘public interest’ having been greatly expanded.”
That is simply not correct, in my experience.
The policy memorandum continues:
“Second, a person should be equally free to make a comment on a private matter as on a public one.”
That is interesting. There is a really big argument to be had about that; I would not simply assert it.
The policy memorandum then says:
“Third, abolition of the requirement for comment to be on a matter of public interest would help to simplify the defence and make it more straightforward to apply in practice. Parties would no longer have to contend with the uncertainty arising from the imprecise boundaries of the concept of public interest.”
11:00
I do not detect any difficulty in giving legal advice on the definition of public interest or in the courts applying that. Members will note that public interest itself is part of the previous defence, so the legislation relies on the concept of public interest in a different context. In that case, why does that argument stand any scrutiny? We therefore have a difficulty with the removal of public interest.
On the opinion aspect, it may be of interest to note that section 6(5) of the bill includes the public interest defence applying to comment as much as it does to fact. That leaves the question what exactly is being achieved by the removal of public interest.
I am sorry; maybe that is too much information in one go. The bottom line is that we are not convinced by the justification for the removal of public interest.