TripAdvisor broadly welcomes the bill, which, as others have observed, tips the balance of Scottish defamation laws towards freedom of speech. From our point of view, that helps to reduce a potential barrier to consumer speech online, which in turn benefits any traveller who is based in, or coming to, Scotland, as well as travellers and business owners in the global travel industry and ecosystem as a whole.
TripAdvisor is the world’s largest travel website: it features more than 860 million reviews and opinions on 8.7 million places to stay, places to eat and things to do. TripAdvisor’s belief and experience is that the more travellers can share their experiences—good and bad—with the rest of the travelling public, the greater the benefits to all involved.
The vast majority of businesses that are listed on TripAdvisor understand that point well and see user review websites as forums where word-of-mouth reviews can provide some of the best advertising that they could ever get, while mixed or negative criticism equally provides them with swift insight on the things that they could improve.
In exceptional cases, however, some businesses respond differently to criticism: they can be unwilling to accept it and can react in a more adverse manner, the result of which can sometimes be that they attempt to have recourse to the defamation laws in one jurisdiction or another. Although they will sometimes go to solicitors or lawyers in the jurisdiction, they will sometimes go to online reputation experts to get them to clean up—supposedly—their online reputations. Defamation laws can be deployed as one of the weapons that we might see in action.
Against that background, we welcome some of the bill’s reforms, which redress some of the weaknesses that might otherwise be present under the existing Scottish legal position, not only for the consumers who write the reviews but for the online platforms that host that speech. We think that those reforms reduce the likelihood of travellers being cowed into self-censorship of what would otherwise be useful statements and public records of their own experiences of businesses that trade with the general public. Equally, they reduce the potential need for those who host such material online at great scale to make excessively cautious decisions to remove material that appears to be—as far as they can tell—perfectly lawful.
Specifically, we welcome the shortening of the limitation period from three years to one, in line with the English and Welsh position; the raising of the seriousness threshold; and the introduction of the serious financial loss requirement, which again mirrors what happened in England and Wales with corporates that trade for profit.
We very much welcome the introduction of the single publication rule, which would remove the otherwise somewhat unreal position that internet publications are infinitely actionable for ever.
Finally—although this might address a problem that was not huge in practice—we welcome the rule limiting the potential phenomenon of libel tourism in Scotland and tightening the rules on when the Scottish courts would and would not have jurisdiction. London has been shaking off its former reputation as the libel capital of the world by virtue of its own reforms some years ago. There has been some discussion of other places that might take on that role, such as the Republic of Ireland or Sydney. We welcome this attempt by the Scottish legislature to guard against that happening here.
Another strong positive is that we welcome the innovative and thoughtful attempt that is being made to pin down who is and who is not a publisher. In particular, section 3(4)(g) clarifies, in a way that I have not seen done quite so explicitly in other jurisdictions, that a website operator can moderate content in its attempt to be a responsible host of third-party speech and to not get put on the proverbial hook in defamation cases just by virtue, for instance, of cleaning up swear words or carrying out some other moderation process.
As to matters that might merit further discussion—