Sep 02 2010
South Lanarkshire Council has long had a certain reputation for Brezhnevism. Recently it seems to have excelled itself by
bringing threatening proceedings for defamation1 in Lanark Sheriff Court against the membership of a local community council for an article on its website which linked to another article on a different organisation’s website entitled “South Lanarkshire Council and Scottish Coal Hand-in-Hand at Community LIE-aison Meeting”. I have never before heard of a Scottish local authority attempting to bring a defamation action at all, let alone one like this which is done purely to shut up ordinary political criticism. No authority with any appreciation of the right of free speech, and its relationship with the rule of law, could abuse the legal system like this. This sort of legal action happens in Russia, which is one reason why Russia keeps the European Court of Human Rights so busy: but until now, it didn’t happen in Scotland.
In bringing this action, the Council shows itself not merely to be, as others have commented, in the business of bullying those who criticise it; but also to have no legal knowledge of its position. A local authority has no power to bring such proceedings. In Derbyshire CC v Times Newspapers Ltd  AC 534,  UKHL 6 the House of Lords held, in a decision which has never been doubted or challenged, that a local authority had no power to sue for defamation. Lord Keith said:
It is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism. The threat of a civil action for defamation must inevitably have an inhibiting effect on freedom of speech. In City of Chicago v. Tribune Co. (1923) 139 N.E. 86 the Supreme Court of Illinois held that the City could not maintain an action of damages for libel. Thompson C.J. said… : “The fundamental right of freedom of speech is involved in this litigation, … every citizen has a right to criticise an inefficient or corrupt government without fear of civil as well as criminal prosecution. This absolute privilege is founded on the principle that it is advantageous for the public interest that the citizen should not be in any way fettered in his statements, and where the public service or due administration of justice is involved he shall have the right to speak his mind freely.” These propositions were endorsed by the Supreme Court of the United States in New York Times Co. v. Sullivan (1964) 376 U.S. 254, 277. While these decisions were related most directly to the provisions of the American Constitution concerned with securing freedom of speech, the public interest considerations which underlaid them are no less valid in this country. What has been described as “the chilling effect” induced by the threat of civil actions for libel is very important… In Hector v. Attorney-General of Antigua and Barbuda  2 A.C. 312 … Lord Bridge of Harwich said at p. 318: “In a free democratic society it is almost too obvious to need stating that those who hold office in government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind.” …I regard it as right for this House to lay down that not only is there no public interest favouring the right of organs of government, whether central or local, to sue for libel, but that it is contrary to the public interest that they should have it. It is contrary to the public interest because to admit such actions would place an undesirable fetter on freedom of speech. In Die Spoorbond v. South African Railways (1946) S.A.L.R. 999 … Schreiner J.A. said at pp. 1012-1013: ”… any subject is free to express his opinion upon the management of the country’s affairs without fear of legal consequences. I have no doubt that it would involve a serious interference with the free expression of opinion hitherto enjoyed in this country if the wealth of the State, derived from the State’s subjects, could be used to launch against those subjects actions for defamation because they have, falsely and unfairly it may be, criticised or condemned the management of the country.” …The conclusion must be, in my opinion, that under the common law … a local authority does not have the right to maintain an action of damages for defamation.
Yet that, it seems, is what South Lanarkshire Council thinks it has the right to do. The local public is forced to pay for a disgraceful and misconceived litigation. Yet, on the other hand, those members of the public who are faced with such improper threats cannot seek public funds to defend themselves. Legal aid is only available to defend a defamation action in extraordinary circumstances which have never yet been found by the Scottish Legal Aid Board to exist: for the background to these, see this article by Frances McCartney.
Hat-tip to Iain Nisbet of Absolvitor for this story.
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