LATE last year we had a glimpse of what Scots law could look like if it adequately protected free expression in all of its modern and complex forms. In December, the Scottish Law Commission (SLC) published its final report and draft bill for the reform of defamation law, which has been largely untouched since the mid-1990s.

Key reforms include the establishment of a serious harm threshold to dissuade trivial cases, or those brought solely to silence criticism; a statutory defence of publication on a matter of public interest; a single publication rule to ensure the time period within which an action can be brought does not restart every time a link or post is shared or viewed online; as well as establishing in statute the principle that public authorities cannot bring actions against individuals. These are all crucial steps to ensure that Scots law can protect all forms of expression in Scotland.

In 2013, defamation laws in England and Wales were changed to reflect modern modes of communication such as social media. When this passed, the Scottish Government only incorporated a small number of amendments. The reasoning as outlined by the then-Minister of Justice, Kenny MacAskill, was that Scots law was “relatively robust”. This façade of robustness emerged from a lack of court cases brought in Scotland, giving the appearance of a well functioning judicial process, but this is not the full picture.

Cases do not need to get all the way to court to stifle free expression – this happens far earlier in the process. Being on the receiving end of letters threatening legal action from law firms is oftentimes enough to encourage an editor to spike a piece, a blogger to remove a post or an activist to step back from challenging an injustice. Using this measure, this silencing, or encouragement towards self-censorship that occurs at the whim and will of the pursuer, remains invisible, leaving the idea of robustness intact if you do not dig below the surface.

As it stands we have a system that prioritises powerful and wealthy pursuers who see, in the current law, a powerful tool for them to control the narrative and stifle anything that casts them in a negative light or reveals information they would prefer hidden. In this way, outdated defamation laws are a perfect distillation of a stark power disparity; if you can afford to instruct law firms to issue legal letters to editors, scientists, publishers, bloggers or activists, you can shape what is known about you and what remains confidential.

In recent years we have had an independent blog, National Collective, having to close their site down during the independence referendum after receiving a legal letter following their coverage of a campaign donor with alleged ties to paramilitary groups; a volunteer Facebook group moderator in the town of Strathaven is being pursued by a wealthy building developer over comments made by others on Facebook around the future of the town’s museum; and a Scottish Green Party MSP is facing down a £750,000 claim brought by a conservation charity following a series of blogs he wrote examining the charity’s practices and business model.

But you do not need to be a journalist, community activist or campaigning political representative to fall foul of the current defamation law. Without a threshold that has to be met by the pursuer showing that the harm caused by the defamatory comment is serious, the courts are open to those who can afford to bring cases on the most flimsy of pretence. Without reform we are all at risk from upsetting someone with a thin skin and a fat wallet.

While the existing law prioritises pursuers, it has very little to say when we look at online expression and this is because it is over 20 years since any significant changes were made. 1996 was the year the latest Defamation Act came into force in Scotland, and that year’s most popular website was AOL.com. 1996 also marked the birth of Hotmail and popular instant messaging through ICQ; and to top it off, Facebook founder Mark Zuckerberg was only 12 years old. So needless to say, defamation law in Scotland has nearly nothing in the way of protections for the millions of people across Scotland who use social media, blog, post reviews or chat with others online. We need to do better to ensure our laws accurately reflect the society they are suppose to shape and govern.

But things can change, and now, early in 2018, we are closer than we have been for a long time. Following the SLC report and draft bill, which was published and shared with the Scottish Government, we have nearly all of the components we need to make the case for reform in the Scottish Parliament and move towards a law that is fit for purpose in modern Scotland.

The one thing we are missing is political will. Law reform bills can be delayed for years before being brought to Parliament and this cannot happen with this bill; free expression that is not controlled by the wealthy and powerful is too important to delay and we need MSPs from every region, constituency and party to back reform and call on the Scottish Government to bring forward a draft bill to parliament.

This is why the Libel Reform Campaign (of which Scottish PEN is a partner) has created a tool to enable people from across Scotland to send a letter to their regional and constituency MSPs asking them to call on the Scottish Government to bring forward reform. It can be found at www.libelreform.org/scotland2018.

Reform may be long overdue but with people across Scotland reaching out to their MSPs, making their support known, we may be closer than we think.

Nik Williams is Scottish PEN's acting project manager