The Scottish Law Commission has published a lengthy report on defamation. I raised a couple of points in my blog last year, when I thought I wasn’t going to make a submission; but then I started to feel guilty about my indolence, changed my mind, and dashed off an e-mail to the consultation (complete with typos). As it turns out, I’m cited at length in a paragraph in the report: only 15 submissions picked up the point about academic freedom, on both sides, and that is hardly enough to derail an argument.
5.37 Paul Spicker pointed out that, in terms of material subject to peer review, the net is much wider than journals – books and academic bids for funding tend also to be peer-reviewed. He observed that it is, in any event, questionable to what extent a focus on peer-reviewed material offers protection against defamation. The primary focus of peer review tends to be recognised as being to make judgements about the rigour and validity of a submission. This does not generally include any sort of duty to notify the editor as to whether or not academic comment or criticism might operate to the detriment of a person’s commercial interests. He further commented that it was not clear why safeguards should only be applicable at the point of formal publication of material or submission to other bodies. Academic papers may, for example, be presented at seminars and conferences during the course of their development, before formal publication. It seemed that what was called for
was a general exemption for all bona fide academic discourse. The nature of the discourse should be determined on a case by case basis rather than being treated as occurring only in specified locations or outlets. …
5.41 On the other hand, the Law Society of Scotland took a different angle, namely that the coverage of peer-reviewed statements in scientific or academic journals was practical enough to meet the aim of promoting freedom of expression within the academic and scientific community. On that basis, they did not support any expansion of section 6.
The Commission concludes:
5.42 Having weighed up these competing arguments, we recommend that the scope of section 6 should be left as it stands. It appears that more would be needed to make it fully effective than a simple extension of its application in terms of the types of publication that it covers. Fundamental questions have been asked about whether the focus on peer-reviewed material is sufficient in offering protection against defamation. There may be a need for a wider protection covering academic discourse in general. It seems preferable that any such changes be made at UK level, rather than the same provision applying in a different manner as between Scotland and England and Wales.
I’m not sure whether this amounts to a rejection of the case I made, because it seems to accept the main argument, but regardless the law is not going to protect routine academic discourse in the foreseeable future. Mark it up as another failure.