ThinkTek Hawaii. Civil engagement lives here. Welcome and aloha. My name is Mark Shklav and I am the host of ThinkTek Hawaii's Law Across the Sea. Today my program is titled The Anti-Social Media. And my guest is Elijah Yip. Elijah is a Hawaii attorney and a partner at the law firm of Cade Shuddy. He regularly counsels his clients on internet and information technology law, a new area of law for us older lawyers. As we all know sometimes the internet however is anti-social. It seems like internet trolling and cyberbullying are in the news daily from the president to celebrities to ordinary citizens. Today my discussion with Elijah will focus on internet trolls, cyberbullying, and what can be done to address these internet issues. Welcome Elijah. It's good to have you here. Thanks Mark. It's a pleasure to be here. Thank you for being with us. Okay what is this new area of law? This internet technology and what's all that about? Tell us old lawyers what's that Sure. Well the internet is not a recent invention but in the last maybe 20 maybe 25 years it has become progressively part of everyday life and with that it's really changed the way we live, the way we work, the way we play. So the issues aren't really new but the way it comes up, the way it manifests and the issues particular to the internet, the technology of the internet, the intersection of that and the law that's where I deal with. That's what I deal with. Okay and of course yeah you're right. I mean we see everybody walking along the streets looking at their hands with whatever device they have there. Yeah the smartphones are basically an appendage. Right okay so we know we hear the term social media. What is that? How do you define social media? Sure well we know what media is. I mean we're very familiar. We all pretty much own a TV or if not that radio so I think the concept of media is pretty self-explanatory but what makes it social is that in this medium in this form of broadcast or publication or expression you're also connected to other people.  Okay yeah that's interesting.  Wow that's very powerful. Very immediate too. So it's not just like publishing a book and passively having someone read it. Someone could read something you publish on the internet today and then respond to you immediately about it. Yeah okay that is a very interesting concept and way to think about it and I guess that is what it is.  It seems like what's called trolling and cyberbullying. I've heard those terms a lot. What are they what do they mean and is it still part of being social? It is unfortunately because the idea of being social is we're talking about relationships, human interactions and there are positive human interactions and negative ones in you don't need the internet. And that's all social. And that's all social. So it's not necessarily just friendly. No not just friendly I mean I wish to Facebook or Twitter were just friendly but that's not the case. And so when you're talking about cyberbullying again we're familiar with the term of bullying that happened in semi-nets that's centuries I mean it's just the beginning of mankind. There's bullying I think. But now it's cyber because it's being done in the context of the internet. It's done online. And what's trolling?   In the context of the internet what happens is people throw up inflammatory comments and see who bites see who reacts to get a rise out of trying to get a reaction exactly from people. Exactly that's trolling. Okay and is it also an attempt to somehow hound people or go after them or is that what trolling term is used for? It can be and it certainly can lead to that. I mean I don't know that they're very technical defined terms really but trolling can lead to cyber stalking or harassment and cyber stalking is just where you would use the online technology to repeatedly harass somebody. So it's a sort of like stalking except you're doing it again through the internet. Okay now you've been advising clients in this area right and how did you get involved or how did you yeah what what brought you into this area of law? That's a great question. Well two things I'm I consider myself a techie you know I had a computer at a young age and I've just always enjoyed tech as a personal hobby but the other the intersection with law is that I have represented media companies. Okay. Our firm is one of the you know one of the people around town one of the firms around town that do media laws we've represented papers and broadcasts etc and after a while of doing that what I realized is that a lot of those clients those types of you know broadcasters they were going digital. Right. So these issues. Times change. Times change right. From newspaper. Exactly. Yeah a lot of newspapers are dying out they have to go digital you know they put up paywalls and whatever there are other just unique issues that come with being not just a publisher but an online publisher. So that's kind of what sparked my interest in that area and it's grown beyond just media law. I mean it's all things internet at this point so I deal with privacy issues as well and you know a whole bunch of other things but that's how it started. Okay. Alright. So that's your interest that's how you got involved in it. Now there were I mean we talked a little bit about trolling what are some examples of trolling and cyberbullying. What are some basic examples of what what what those things are in reality nowadays.  Okay that and you'll find a lot of trolling there I think a lot of good examples of there where people would just make comments that are not really even germane to the article. Okay. They're just they're just inflammatory you know attacks against other people against other people or you know this article is about putting up a new affordable housing center and then the next thing you know there are a bunch of comments about rail for example. Articles nothing to do with the rail right but rail is a hot topic you know whether you're for it or against it it's a hot topic. So just by putting it out there you're seeing who's going to bite and then you start a conversation about that and you go after a person perhaps based on their point of view and you know the trolls get or the people who are trolling just get a rise out of that. Well I mean okay I mean why why would you do that. Yeah you wouldn't know. Yeah I think for some some people just get a high some kind of adrenaline rush if you will from seeing others getting agitated. They like that emotional response I think. I think for some it's attention they like to get attention they even if it's negative attention the fact that they're they're engaging with someone you know honestly I think some some are it's a lack because of lack of attention they're lonely you know they want some kind of human interaction. Okay. You know I maybe I'm speculating too much. Where this is going is you're saying like this is their social interaction. Yeah I think it's right that's right that's right and this social media gives me an outlet for that. Okay and how about the cyber bullies same type of analysis. Yeah same thing I mean think back to the time when we were in school you know and we see bullying in school before the cyber part got added on that's that's always been the case so why do bullies do what they do it's it's a power play you know it's a way to kind of raise themselves up and push somebody down. Internet makes it easier to do that. And it seems like recently we've had a lot more of it out there it seems like there's been more examples you've had some you you told me that you get calls all the time right what I mean without going into anything that's confidential or anything like that but what kind of calls do you get I mean what what are people calling you about. I get calls where people will say you know my my privacy rights have been violated because this person puts something up on the internet I get a actually I get quite a few calls on negative reviews with like Yelp or you know Amazon or even reviews from a business right and they complain that this person or this customer made very negative comments about their business online can I do anything about it it's false et cetera and and yeah a lot of the calls kind of go that way yeah what can you do yeah what what if you're out there on the internet and you're putting yourself out there I mean do you have any right to object and I'll give you a lawyerly answer it depends of course but but the I think the reality is that a lot of the time no the answer is there's not much you can do at least in terms of the law the law can help only so much there are probably other strategies besides the law to manage those types of situations but the law only goes so far and I'll probably get to this in a moment but because of the limits on government regulation of free speech there's only a limit to what you can do or what you can get the courts to do in reaction to that kind of behavior more often it's goes back to the social part of it it's really more of a PR issue it's really more of a management or customer relations issue rather than a legal issue in other words rather than going to court to get an injunction the better response might be to reach out to the customer and see why are they really so angry and perhaps address it that way think of a different strategy yes that's right and that's kind of what you do that would be your advice depending on the circumstances do you ever I mean what are some of the options when you're when you're attacked but you know there that that one I like is that's like a PR type of right response what other things can you do well if it's extreme I mean if it's if it really rises the level of say defamation and meaning that it's it's a false statement that damages your reputation and you can prove that it's false and if it makes if it's worth it economically because of course it's not cheap to take the legal route but if it if it's high stakes enough then yeah you can go to the courts for relief and try to get them you know to get injunction for example to stop the person from making these comments or remove them but it's the standard is pretty high you've had some cases yes I've had some cases give us some examples of the cases that you've had that they're out there sure one of the early cases and when I tell you what which social network it is you'll you'll get my drift one of the early cases involved a client that went to Vegas to party and met a met a couple of people went back to his place and after the any met a girl and during that trip when he got back he found someone posting on my space my space that was the facebook of about 10 years ago right but someone uh he didn't know this person but they posted on facebook of my space alleging that he raped one of the girls that he he met in the wild and he denied is that I didn't even have any sexual relations with that person um and so they uh just out of the blue just out of the blue yeah just out of the red and I didn't know the person didn't know the person was not even in Hawaii wow was uh I believe it was in Oregon um so we he hired us and we represented him when we went to federal court and got an injunction against the author of the of the myspace account to stop and we settled the case and it was amicably settled but uh but yeah he was really cut out of the blue that's amazing and um have you what other type of cases have you have you had so that you can actually go and do something about right well you I've had a case and and this also settled so I don't think it went to the point where you know the court but if it did um this was an invasion of privacy uh case where someone was um videotaped uh intimately with somebody else without their knowledge all right and and then that you know the the sex tapes if you will um and and that there was a threat that that might get released um how do you deal with that uh well uh there are a couple things generally not yeah generally not without that case but yeah I mean generally what you one of the things you can do of course is to call law enforcement because in some cases that would be a violation of criminal law so you can go that route uh but you could also you know hire attorney and and demand that they not release that and that if they do there will be sort of consequences they'd be liable for damages etc and um if they don't comply then the next step would be to file a lawsuit file lawsuit and sometimes uh those work and sometimes they don't correct right okay we're going to take a short break right now okay and then we're come back and I want to talk to you about some recent events recent cases sure that have been in the news and get your opinions on those okay okay all right thank you hi I'm Ethan Allen your host on think tech's likable science show every Friday at 2 p.m we delve in the magical magical fascinating world of science how science applies to your life why you should care about science what impact science has on you and on those around you why you need to know some science it's a fun interesting painless way to learn some good science that you can use see you there back with Elijah yep and we are talking about the anti social media my name is mark schlaufe my show is law across the sea on think tech Hawaii and uh we've been getting a real education on uh well cyber bullies trolls different cases and I want to go into um a little more recent events uh and kind of work our way up to that uh you know when when you go on the internet um are you just giving people a license to come after you I mean can can people just do anything they want is that or say anything they want no of course not no you don't give up you know your your rights your rights don't uh you don't leave your rights at the login page if you will uh no of course they can't um there are of course there's of course more exposure I think to bad behavior um you know it's the kind of environment you go into of course going to be exposed to but there there that doesn't mean that anybody can do anything they want to you well I mean we're in this new age right we're in this age that you talked about where we're all staring at our hands it is social uh what are your thoughts should we go on it yeah should we go on it or should we just say hey I'll just read a book instead right yeah yeah there's there's only options right I mean one reaction would be to say this is just scary stuff and I'm going to stay off of it and some people do do that and that that's fine that's their decision I think where I come out on it is you have to think of social media as a tool and a tool is not it's not per se bad or good it's a tool it's how you use it it's exactly it's how you use it and also being um and I think a lot of wisdom using applying a lot of wisdom to how you use it and the the risks and benefits of using it and one of the ways you get wisdom is knowledge you know to be to keep up with it to understand what it is that you're getting into and again the risks and benefits okay so I want some advice and knowledge you know I see people all the time using it and young people especially and I've heard many times about them having a negative experience what what what somebody sends you an email or uh goes on your facebook page and posts something nasty sure what do you do how do you address that what what what's your advice I think the best response would be to ignore it and to not take the bait again you know a lot of times when people are doing that they're trying to bait you into a response that gives them some kind of high and I'm not going to give them that um that pleasure I'm not going to respond and and I think a lot of times that they'll just fade away because a lot of these trolls they kind of do a shotgun they think they do a lot of these post-seal reacts and then they go after those who react if it escalates you know then it gets a little concerning and then I might need to take some more protective measures but like like like what yeah I mean but like blocking a person's account from accessing my own I think privacy settings are really important as well understanding how to manage your privacy settings online every account has ways that you can manage who gets a c and who gets your posts you know your what you share online and and also who gets to interact with you so understanding those mechanisms and taking advantage of them I think are an important step well if I if I'm a parent and my young child oh young I mean 10 12 13 around that age where they're all on the internet they're all talking with their friends gets something from some person yeah that's that's negative do you just ignore it you report it I mean yeah what do you do because of the content I mean if it's if it's very very disturbing and graphic then I might want to take the step of right away of reporting it if it's more in the flavor of bullying around the playground except now it's online you know I might advise my kid ignore this guy or nor this this girl and hopefully they go away you know that's that's how I dealt with bullies when I was younger so it kind of depends you know on what the form of bullying is and what the content of it is okay so it's a case-by-case it is case-by-case but I think as parents I think it's important to understand what your kids are getting into and to understand what they're using I mean even the particular channels because you know in whether it's Facebook or whatever there are different ways you can use it and the kids pretty sophisticated they know the technology better than you better than you do so I think it kind of it's our job as parents see if you're a parent to all to learn to be involved be involved not ignore it absolutely yeah so I that's that's your advice to parents is find out what's going on absolutely I mean it's just like TV the advice before with TV is watch with your kids and then you know talk through what you've watched and I don't think there's any exception for social media right okay recently in the news lots of cases I mean president of the United States blocked certain people from trying to respond to his tweets because they were saying things he didn't like right okay and apparently the court said you can't do that right but didn't force them not to do it right that's right so what was that case yeah that yeah and I just got to say that this this administration and I mean the times of the times were in give us just fascinating situations but what happened there was that the the court in that case said that the Twitter account you know we know the president loves to tweet that that that was actually a limited public forum that was a public forum and so in First Amendment law there are certain places sort of spaces that are meant as a place for everybody to comment to express themselves and the First Amendment protects that so by virtue of him being in the office of the president the judge reason that that account was basically a public forum sort of like a sidewalk so by limiting people from responding to his tweets you're closing you're like closing off the sidewalk and that is a no-no under the First Amendment against the Constitution against the Constitution okay so another case right here in Hawaii yes representative uh Andrea Topolo was able to get a TRO temporary restraining order against somebody correct for kind of sounded to me like kind of doing the same thing yeah what was that about right right um well in that case and to my understanding of and I you know I I know what I know based on the news reports no personal knowledge but there were allegations that she was the target of a lot of online posts advertisements etc that according to her petition wasn't just offensive but got to the point of threatening including according to her petition threats against her family and also certain of harm of type of physical right and also apparently again according to the petition that she received death threats um probably anonymous but um I'm not sure if they were or not but probably anonymous and I think that's what pushed the court over the threshold to say you know no that's that's not protected we we can stop that so on the one hand it was like a political speech for the president and he couldn't forbid those because they weren't threats on this other hand and we have a law in Hawaii right about that we do the court said well this goes too far yes okay yeah but but it's kind of a balancing act oh absolutely it's and that's why the the Topola case was another fascinating study in kind of the intersection of a number of streams of law first amendment law political speech but also true threats the the idea of true threats and she's running for office she's running for office and and it's it's just uh you know it's it's a very uh it's a I would say it's a mess necessarily but it's it's not easy to parse out it sounds like case by case is the way really we're dealing with it right now it really is and you know honestly even the the United States Supreme Court has not come out with very clear rules okay our replies let's talk about Roseanne okay I mean she put something on that was held by her employer to be a racist comment right sounded to me like it was to and but another case that I that I read about where somebody put some very nasty stuff about his employer yeah didn't get fired she got fired right how do you again you know yeah yeah so two two things I want to point out there there's kind of there's kind of a common misconception that the first amendment protects all speech and you can't because of the first amendment everybody has a right to say anything and no one at all can limit that and that's not true because the first amendment or if it's the government from regulating speech not private actors right not private people so when we're talking about the employment context unless you're the government as the employer if you're a private employer the first amendment actually doesn't quite apply to you doesn't really apply to you there can be some exceptions but generally doesn't so in the employment context you get you run into another set of rules and it normally it typically has to do with a law called the National Labor Relations Act and you might think oh that has to do with unionized workforce and that's actually not true most companies are subject to the NLRA and what the NLRA does one of the things it does is it protects workers ability to engage in what they call concerted protected activity which means they get together to talk about their work the conditions of the work their compensation and such and and you can't as an employer clamp down on that so in the social media context you've got a can of worms why because you've got a lot of your co-workers on social media they're connected you say something about I had a bad day of work because my boss mistreated me blah blah blah you're complaining about your work conditions and so that's the activity is concerted because it's social right it's connected so yeah so if you cross the line and crack down on that kind of activity that's a no no can't do that but but if that's not at issue then you can discipline or terminate your employees okay so Roseanne was not protected by any law she just said something that came off top of her head and it was bad and her employer said we're done right she wasn't complaining about her workplace or compensation or anything she was just making a comment off her own views okay yeah now now Elijah I know that you were clerking for Judge Samuel King yes happily yeah and great guy great judge great person I knew him very well what words of advice did Judge King give you that you you could pass on well I think the thing I learned the most from Judge King is to not take yourself too seriously he was you know Judge King he's he's a man of great wit and wisdom just a very funny guy in addition to being a great judge and just in the two years of working under him I learned to yeah to always to look at things with you know with levity I think that's important especially the stressful jobs that we have as lawyers and in life in general you know to take everything with a grain of salt and to not take yourself too seriously and you know that sounds like good advice for the social media or the anti-social media whichever we're dealing with I think if they took that advice we'd have less trolls yes yes yes yes well Elijah I want to thank you for being my guest today Elijah yep partner at Cade Shetty you've enlightened us and told us a little bit about the media that we didn't know before and I appreciate you being my guest today thank you it's been a pleasure


The next item of business is a statement by Fergus Ewing on common agricultural policy, a plan to stabilise future payments. The cabinet secretary will take questions at the end of his statement so there should be no interventions or interruptions. I call on Fergus Ewing for up to 15 minutes, please. Thank you, Presiding Officer. The Scottish Government is committed to ensuring eligible rural businesses who apply to the Scottish Government for support under the common agricultural policy receive their entitlements promptly and in full. That must also be done in full compliance with the prevailing regulatory regime. I am clear, however, that although improvements have been made, we have not fully achieved that aim during the current common agricultural policy cycle. Continued action is needed not just on the substance of how we deliver payments but on the way we conduct our business to ensure that our customers are at the centre of our approach. How we arrived at this point is important in understanding how we move forward. Good progress has been made in delivering the rural payments and services system compared with 2015 and 2016 but challenges remain. The policy and the legal environment is extremely complex. Decisions taken to design our systems were done in full collaboration with our partners. A customer-focused approach but one that undoubtedly added more complexity. The future policy and legal landscape is far from clear when it comes to the UK's approach to Brexit negotiations. However, the risks to Scottish agriculture and farming are very real without clarity and soon. Even more concerning is that agricultural policy hitherto devolved to the Scottish Parliament, Presiding Officer, is at risk of being re-assimilated by the UK Government through the EU withdrawal bill. Despite all this, my role as Cabinet Secretary remains clear. I will continue to work to ensure that our eligible rural businesses who apply for funding can get paid in full and on time. My firm commitment is to offer our customers a CAP service as well as the right tools that are fit for purpose, not just today but tomorrow as well. With the closure of the CAP 2016 pillar one payment window in June, the Scottish Government has captured lessons from a rapid review of delivery. Those complement findings from Audit Scotland's reports in 2016 and this year. I am therefore today publishing a common agricultural policy plan for stabilisation. Copies will be available to members immediately and online. The plan aims to target specific and sustainable improvements in our strategic approach, business and IT processes to deliver value for money and compliance with EU regulations. The plan also prepares for the business for an uncertain future and throughout looks to improve the quality and timeliness of engagement with customers. I would like now to cover briefly the key areas within the plan. In order to deliver payments in full and on time, we will continue to tackle the major causes of poor customer service error and payment delay by investing further in our business and IT systems. This plan is based around five key aims. First, payment to customers will be made on time in full and compliantly with relevant law. Second, customers will have a more consistent and responsive service when interacting with our staff. Third, customers will be empowered to take more direct control over their applications and land information. Fourth, the tools that we use and share with customers, including our IT, will reflect the needs of customers and business now and in the future. Fifth, we will support the development of our people and drive efficiency in our business processes. Those aims are supported by six focused areas of improvement, and I will take those in order, starting with what our customers experience. I have visited most of the ARPID offices and I have spoken to the excellent staff who work in them. They have a huge commitment to their work. They are trusted and they are appreciated by our farmers and crofters, but I and they want to do more and do better, so we will improve the customer experience through the publication of service standards so that customers know what to expect and what their obligations are when applying for funding. I am also providing much-needed clarity and certainty for farming businesses by publishing a schedule of key dates. That schedule includes all pillar 1 and 2 schemes, application windows, inspection windows and those for our loan schemes. In addition, we will be improving the timeliness and accuracy of customer letters and streamlining our guidance. We will improve our relationship with our customers through the use of modern communication channels so that we can better understand their needs. I can confirm today that, in that spirit, we have already made efforts to contact the few remaining ELFAS 2015 customers who have neither received their payment nor applied for a loan to discuss their circumstances. To stabilise payments for those recently applying, I have agreed with the Cabinet Secretary for Finance and Constitution the financial backing to announce today a new loans scheme for eligible basic payment scheme customers who applied this year. The scheme will provide equivalent funding, not at 80 per cent, as was the case last year, but at 90 per cent of their estimated entitlement. In terms of timing, I understand that the period from November to the year end is often an important time for farmers and crofters to make major spending decisions. That is why I am announcing the loan scheme now, so that, compared to years past, when CAP payments will be paid in December or January, the overwhelming majority of farmers will be able to access almost all of their funding from November. No doubt, that will be a real practical help from a business point of view, and that does not detract from my commitment to accelerate CAP payments through the work that is set out in the plan itself. Customers will begin receiving letters by the end of September, and I would very much encourage the swift return of the necessary paperwork by farmers and crofters to be sure of a November payment. I wish to turn to ELFAS. By publishing a schedule of key dates today, I am making known what I hope to achieve for ELFAS customers. For those who applied in 2016, our payment processing is beginning this week, and I expect the majority of payments by the end of October. For those customers who applied this year, that means ELFAS 2017 scheme payments beginning in May 2018. ELFAS payments are complex and from a technical standpoint dependant on the full processing and validation of BPS entitlements. That complexity has always meant that they are subject to possible delay. However, I am today committing the Scottish Government to starting payments to ELFAS customers in May next year. I will assess progress in early 2018, and if it is clear that we cannot start those payments in May, I will bring forward a further ELFAS loan scheme payable from April. That would be at 90 per cent of eligible claim value and ensures that eligible customers will receive virtually all of their claim as expected. To support that work, we will simplify our business, and in doing so, we will free up capacity to help us to deliver customer service and excellence. We will limit the scheme changes that we make that cause complexity, and we will pilot new ways of undertaking land inspections to improve efficiency, turning to land information management. We propose to implement a new system of land information management from early next year, giving farmers the ability to verify the data that we hold already and be able to update it directly and online. That change represents a major improvement in business efficiency and will in turn reduce errors and move significant activity away from a challenging part of the payment cycle. To complement that change, we will encourage and support all remaining paper customers to apply online from SAF 2018 to build on the 78 per cent online SAFs that were received last year. That will reduce data errors and improve our ability to process applications on time. As the Cabinet Secretary for Rural Economy and Connectivity, I am doubly aware that some farmers and troffsters are still not comfortable with using the internet for this purpose. I have weighed on the benefits of a compulsory approach to applications and decided not to make online SAF mandatory. Instead, we will provide our customers all necessary support through our area offices, including one-to-one assistance. The plan also looks to tackle our historic IT challenges. We have taken on board the many criticisms and comments that are levelled at our IT system, so we will continue to build a reliable IT platform that meets customers' expectations and is marriage to best industry standards and in line with a new digital strategy. We have agreed with CGI, our IT delivery partner, to deliver the functionality that is needed to make the payments accurately and on time. We will continue to implement major changes to our planning and governance systems and to use them to deliver enhanced benefits and value for money. We will continue to improve knowledge transfer and disaster recovery plans across all our business areas. I recognise that farmers, foresters, crofters and businesses need to forward plan, often years ahead. I am doing everything that I can to provide stability to help them. The UK Government claims to be doing the same. It talks about EU funding for, I quote, farm support being matched until 2022, but businesses can take no comfort from that so-called guarantee because there is no clarity about what it actually means. The only scheme-specific commitments that we have so far from the UK Government are for pillar 1 and ELFAS payments for those who apply in 2019. Meanwhile, farmers need certainty to plan their crops, foresters need certainty to plan new woodlands and rural businesses need certainty to plan for growth. The minister for UK negotiations on Scotland's place in Europe, the cabinet secretary for finance and constitution and I are seeking clarity about that as a matter of urgency. In summary, I have listened carefully to what farming businesses, crofters and national bodies have said. What I have been told is that people want a system that provides certainty. Certainty is the bedrock of confidence and confidence is vital if businesses are to invest. That is why I took action to implement the loan scheme last year. It is why I am implementing a BPS loan scheme this year and it is why I am pre-announcing a possible loan scheme for ELFAS next year. Although I am taking the tough decisions to ensure that the underlying cap payment systems are stabilising and improving so that one day we will not need loans at all, above all, the plan puts the customer first and prepares us for the uncertain world ahead. I am happy to take questions. The cabinet secretary will now take questions on the issues raised in his statement. I have got up to 30 minutes for questions and after that we will move on to the next item of business. I wish to ask a question and press the request-to-speak buttons now. I call on Peter Chapman to be followed by Rhoda Grant. I wish to refer members to my register of interests. I thank the cabinet secretary for prior sight of his statement and I welcome the promises that are set out in the minister's statement. It is about time that we had a coherent plan on the next steps regarding cap payments. I welcomed the loan scheme, which I called for in my speech last week, and I also welcomed the simplification of the systems and the processes. To farmers and crofters, what Fergus Ewing has outlined today is, I am afraid, still too little, too late. Nonetheless, it shows an appreciation of a problem that needs solving. Presiding Officer, let's never forget that we have seen farm debt rising by another £113 million this year to an all-time high of £2.32 billion. We have seen farm incomes fall by 75 per cent over five years and by 48 per cent in the last year alone to a completely unsustainable level of only £12,600 per busnes, and we have seen three years of chaos on farm payments and farmers in despair and unable to pay their bills. The cabinet secretary has made promises here today that the IT problem created under his watch is now partially fixed. With that in mind, will he now get on with the job of turning around the fortunes of Scottish farming, something that he should have been concentrating on all those years that the cap fiasco was unfolding? How is he going to resolve the basic unprofitability of Scottish farming, which has continued to worsen under his Government? Fergus Ewing. Presiding Officer, first of all, I am pleased that the Conservative spokesman welcomes the loan scheme, and I believe that it will be welcomed across the farming community. I think that it is a pragmatic and practical response to the difficulties that we have had, and from the many, many farmers that I have met as I have travelled thousands of miles around the country over the past year, one thing that I have learned is that farmers are pragmatic and practical people, and they have to be. Therefore, to pay 90 per cent in November, I think that it will be welcomed as a practical step. I hope that the statement about the undertaking that an ELFAS loan will be available should one be required will also provide that certainty that farmers look for. I am aware, of course, of the publication of the information about levels of farm debt. I understand that, in the United Kingdom, from the information that has been made available to me, Presiding Officer, there are two sectors of the economy where debt has risen, where banks have been lending, one is farming and the other is utilities. Actually, the situation is broadly similar across the whole of the UK. That does tend to suggest that the reasons for rising debt may be substantially that farmers have sought and I welcome it to invest and improve their holdings in a new combine, to invest in a shed, and that perhaps may explain part of the level of debt levels rising. However, from the figures that I have from banks, debt levels have been rising since 1994, namely 23 years. I understand that the statistics also show that the level of debt—this is just an average figure as a total in the sector—is equivalent to 8 per cent of the capital value of the farms. I do not think that it is correct to conflate the issue of borrowings with financial difficulties. However—I want to make this point and I will finish on that if I may make it—where there are farmers who are in serious financial difficulty, I have instructed the RPID offices to treat cases of financial hardship very sympathetically. That is very important, particularly since farmers tend to be very proud people who are perhaps not prone to seeking help as quickly as others might do. That help is available in extreme cases and I am grateful for the opportunity to make that clear today. Rhoda Grant, who will be followed by Emma Harper. Thank you and I would also like to thank the cabinet secretary for a prior site of his statement. The cabinet secretary said that sorting out the shambles was his top priority, and that was 16 months ago. Yet he appears to have made no headway. Today we are told that the fiasco is on-going with the announcement of a further loan scheme. A 90 per cent loan is cold comfort to somebody who has not received any of their 2015 payment to someone who is afraid to take out a loan because it is unclear as to what their entitlement is. Can I ask the cabinet secretary if he can give us an indication of when the system will be fit for purpose and when farmers and crofters will be paid in full and on time? Fergus Ewing. I am sorry that the Labour Party has not welcomed the loan scheme. It does seem a little bit churlish, but there we are. That is really up to them. I do not accept the picture that Rhoda Grant has painted. That is why we have, in respect of the basic payment scheme in 2015, paid 99.9 per cent. We have, in respect of the basic payment scheme for 2016, paid over 99 per cent. In respect of the ELFAS payments for 2015, all but 312 have been paid. Only 26 have not received either an ELFAS loan to provide interim financial support. Some of those businesses may not be eligible for ELFAS, however, 16 appear eligible and were indeed offered an ELFAS loan previously, but declined it. We are in the process of contacting those businesses to discuss their precise circumstances. I mention those figures because it matters greatly to me that we help people who have not received either a loan or payment, but they are now a very, very small minority. Those are the facts. I hope that, at some stage, Opposition politicians and the Labour Party will recognise that those are the facts. The facts are that we are performing, the system is fit for purpose, we have a plan, 99.9 per cent is quite a good exam result by any standards, and therefore my consideration is not political posturing, it is to get on with the day job and that is what we are doing. I am delighted to hear that the majority of farmers in my area should be expecting to access almost all of their funding from November, bringing some stability to what is in the uncertain future. Can the cabinet secretary expand on whether or not the ambiguity around Brexit and the potential threat that it poses to Scotland's farmers and rural communities has helped to prompt that action from the Scottish Government? We have announced the plan today and the potential ELFAS loan scheme, because those are the right things to do. I think that they will provide a degree of certainty that is required, especially in the light of the uncertainty and the lack of clarity that Emma Harper mentioned. After all, we are only 18 months away from the proposed Brexit day. Farmers plan things over a long period and there is no answer or confirmation or clarity about what schemes will be supported by the UK Government post 2019, such as ELFAS or pillar 2 payments. That means forestry, it means leader programmes, it means arpit programmes, it means environmental programmes. All of those, there is no certainty, no information whatsoever about any of those schemes post 19, which is only 18 months away. My advice to Michael Gove is to get on with the day job and start proposing some answers and, above all, clarity and certainty to our farmers and crofters. Edward Mountain, to be followed by Stuart Stevenson. Presiding Officer, I would like to refer members to my register of interests. At last, I can welcome some suggestions from the cabinet secretary, too late, but an acceptance of fault. I do say that it lacks ambition, with 95 per cent of basic payments still to be paid by the EU deadline and no solution to the original problems. As this is the cabinet secretary's own plan, should he be unable to meet these key dates and times, he should be aware that Scotland will not accept the simple solution of him investing more money and taking on extra staff to resolve the issue. Is he therefore prepared to accept now full responsibility for what is now definitely his own plan? Yes or no answer would do, cabinet secretary. Fergus Ewing I have never shirked responsibility in any way whatsoever the buck stops would be. That continues to be the case. I am confident that we will meet the BPS 95 per cent target this year. Last year, we were at 90 per cent, where we fell short, sadly, which was a frustrating experience, but most important, the impact on those farmers who did not receive their full payments in time is something that troubled me greatly. I accept responsibility. It is a yes answer from Mr Mountain, and I am confident that this year we will deliver the main target of 95 per cent. Why? Because we have a strength and management team who have now been in situ and in place, have their feet underneath the desk and have worked with me over the summer months to produce this solid plan. We have strength and governance in place, and we have had collaborative and successful dealings with CGI. I have also seen and made it my business to see as I travel round shows and arped offices and forestry Conservancies offices over the summer that the staff too are appreciated for the work that they have done because they are the ones at the sharp end at the front end, and indeed they are hugely trusted and appreciated by the farming community. The buck stops with me. I entirely accept the responsibility. Failure is not an option this year, Presiding Officer. I am entirely confident of that. Your turn will come, Mr Rumbles. Stewart Stevenson, to be followed by Jackie Baillie. Has the cabinet secretary seen that the UK Tory Government is setting aside £230 million for fines to cover its basic payment failures in 2015-16, which would suggest a prorata cost in Scotland of around £41 million? What is the Scottish figure? I am aware of the reports of the scale of the disallowed experience in England in 2015-16 reported as £230 million. We are not forecasting disallowance on that scale here in Scotland. As previously reported to Parliament, we have estimated late payment penalties for 2015 at around £5 million and for 2016 at around £500,000 to £700,000. However, it will be some time before final totals are available following due diligence carried out at EU and UK levels. All member states carry the risk of wider disallowance and Scotland is no different, but I can inform members that, over the past 10 years, disallowance has amounted to around 1 per cent of total cap expenditure, which is broadly within Torrance levels and compares reasonably with other parts of the UK. My job is to get on with the work in Scotland, and that is what I am focusing on. Jackie Baillie to be followed by Mark Ruskell. Can I welcome any improvement in the funding streams so that we can ensure that farmers and crofters get their payments on time? Can I push the cabinet secretary on whether a risk assessment has been carried out in relation to financial penalties from the European Commission? I notice that he mentions late payments in 2015 and 2016, but there was also an estimate done by Audit Scotland for control weaknesses, and that was estimated at as much as £60 million. Can I ask the cabinet secretary what amounts have been set aside and in which budget year will they fall? I thank Jackie Baillie for what appears to be a welcome of the loan scheme. Rhoda Grant did not welcome it, but Jackie Baillie did, or at least that is what seemed to be the case, but maybe there are two views. As far as the general figures are concerned, in 2015 the report opined that the total aggregate penalties and disallowances, if I recall those figures correctly, would be between £40 million and £120 million. As I said, our indicative figure is £5 million. In 2016, the general estimated that the total would be up to £60 million, and our figure in respect of late payment penalties is around £500,000 to £700,000. Now, Jackie Baillie would say what about disallowances, and disallowances are, of course, thoroughly considered. I am considering those matters in great detail with officials. I can assure you that the assessment of those matters is a routine, necessary and standard part of the Government that continues. I work very closely with my colleague and friend Eric Mackay and his colleagues in the finance department to ensure that the taxpayer in Scotland is protected against any disproportionate penalties and disallowances. As soon as those figures have been clarified, which will certainly not be for some considerable time, I will, of course, inform Parliament, as I always do. Mark Ruskell, to be followed by Mike Rumbles. Thank you, and I thank the Cabinet Secretary for Advanced Copy of the Statement, and also the schedule of key payment dates that accompanied it. However, I noticed in reading that schedule that the Environmental Cooperation Action Fund will remain under review, as it has been for the last two years. Given to use the Cabinet Secretary's own words, the fund is a practical and pragmatic way to support farmers who want to co-operate with each other on vital issues such as flood management. When will the fund be reopened so that we can allow farmers to do the important job of protecting our rural towns from flooding? Mr Ruskell makes an important and constructive point, and there are audit issues with the environmental fund. Of course, there are other funds such as AICS, which have been operating to ensure that environmental payments are made. Nonetheless, I will look into the matter and give Mr Ruskell a detailed reply very shortly, indeed, to when we would expect that particular scheme. Mr Ruskell says that it makes a very important contribution to alleviating flooding in various ways and other schemes, too. I will write to him about that as quickly as possible. When will the cabinet secretary take action to call in stakeholder experts from producers, environmentalists and consumer groups to design the bespoke system of agricultural support which Scotland actually needs post Brexit? Fergus Ewing. We have already taken a number of steps by involving experts. Indeed, that followed a parliamentary debate, in which an amendment by Mr Rumbles was accepted. We are already doing what he asks us to do by having a panel of advisers, our national council, which I will be meeting later this month, and they will provide advice as to the opportunities and indeed the challenges in Scotland. I engage all the time with the stakeholders that Mr Rumbles referred to. Of course, we want to be able to design our system in Scotland, but at the moment, Presiding Officer, we have not had clarity from the UK Government that there will not be a power grab of the powers that rest in the EU about agriculture and fisheries. We have no clarity about that, nor do we have, as I have already said, any clarity about what the future of funding will be for pillar 2 and certain other payments post 2019. Nor do we know whether the UK proposes that the in-farm support that it has promised will be for the existing schemes or on some other basis. Nor do we know what the budget will be, despite the fact that the budget will be for rural payments, despite the fact that, during the Brexit campaign, several senior UK Government ministers promised that funding would be at least matched. Once we get some clarity from the UK Government and I am to meet Mr Gove in the 25th of September, then, of course, we will be able to carry on with the task of designing a better system in Scotland, but we are already taking substantial steps, detailed advice and stakeholder engagement to proceed with that work and progress it. Clare Hockie, followed by John Scott. Thank you, Presiding Officer. The added certainty for farmers and crofters is most welcome, and I wholeheartedly agree that we should be getting this money into the pockets of our farmers where it belongs as soon as possible. I note that the cabinet secretary stated that farmers will be receiving letters by the end of September. How do the Government plan on advertising this to farmers across Scotland to make them aware of the welcome news and ensure the swift return of the necessary to be sure of a payment in November? Thank you, Clare Hockie, for that question. The letters of offer are being issued at the end of this month. Clare Hockie is quite right that we need to promote that. I know that the specialist agricultural press will do that very effectively, as always. The purpose is to make sure that all farmers and crofters are fully aware that this money is for them. I want to say something about the loan scheme. Last year, 74 per cent of the basic payment offers were accepted, so why did 26 per cent not accept it? There are a number of points that I want to make to farmers. There is no interest on the loan unless, in the unusual and very rare event that the loan exceeds the entitlement. Even then, there is no interest unless the recoupment of the excess over the entitlement is paid after 30 days. Therefore, farmers should not worry about burdening themselves with loan interests. Secondly, that money is for farmers. Some farmers, perhaps because of altruism or moral integrity, feel that they would be taking money away from the NHS or schools or hospitals. Not so. That money is for farmers that are entitled to it, and we want them to take up the maximum value of the loan. I am grateful to Clare Hockie for giving me an opportunity to make those points clear. I also thank the cabinet secretary for the advance copy of his statement and declare an interest as an LFA hill farmer. While I welcome the cabinet secretary's intention to start the 2016 LFASS payments next month in October, he will be well aware that this is five months late this year, and to for stall all that is happening next year, he is pre-announcing next year's LFASS loan scheme as well today for May 2018. All those loan schemes and IT uncertainty add cost to an already hard-pressed industry now £2.3 billion in debt to our banks. Can the cabinet secretary tell Parliament today when the IT system will finally work and when the LFASS payments will cease and farmers will be paid in full what they are entitled to and on the due date, and will he also apologise in advance to our farming community for next year's anticipated failure to deliver their agreed entitlements in full and on time? I believe that most farmers and troffters welcome the loan scheme as a pragmatic solution to a problem that arises as problems arise in life. I am sorry that we have not been able to pay all of the payments on time. Of course I am. I have made that absolutely clear. That remains the case. I have never tried to shirk or get away from that in any way whatsoever, but I do think that if someone receives £90 in November as opposed to £100 in January, that is a pragmatic solution. It is not perfect but it is a pragmatic solution. What I have said and I have committed to this and I am confident that it will happen is that the time schedule for the basic payments, the time schedule is that 95.4 per cent have to be made by the 30th of June next year. I am confident that that timescale will be met. We came close to it last year. I am confident that we will meet it next year, but in the interim it is correct and prudent for me to say right at the beginning of this parliamentary term that we want certainty and clarity for farmers, and that is why I have pre-announced a possible el-fast loan scheme if it proves to be necessary. By not making the online single application forum mandatory and offering support, including one-to-one assistance, that will significantly reduce pressure on some of our farmers. Can I ask the cabinet secretary if the Government has any estimate as to how many of our farmers expects to help with this form of support? We did make significant progress last year in the number of applicants of the SAF, and the basic application forum submitting them online. I think that the figure now is 78 per cent for memory. Therefore, the majority are using online, but we want to do more. Therefore, we will be offering digital appointments, in other words, a one-to-one session, probably in an arped office where they have confidential office facilities. We will be offering that to those who require or wish it. We will also be holding various briefing events in respect of other aspects, such as the land measurement and the process of transferring that measurement onto digital format, which is an extremely complicated process. There will be considerable effort as part of an improved customer service on helping more farmers and crofters to get online. I believe that that process will see a greater number using that this year. However, I did not think it right to make that compulsory, and we are not doing that. Therefore, those who choose to make paper applications will continue to be able to use that route. Could someone get a glass of water for the cabinet secretary, please? He is being reduced to stealing other people's. We will have Colin Smyth to be followed by Kate Forbes. Thank you very much, Presiding Officer. It is difficult to follow that. Despite the cabinet secretary stating that the Scottish Government has quote, taken on board the many criticisms and comments that are levelled at the Scottish Government's IT system, it seems that the solution being proposed today is simply to pour more money into an existing IT system that has so far failed. Can the cabinet secretary tell us exactly how much more money will be spent on an IT system that has lost the trust of farmers and crofters who have been so badly let down? Fergus Ewing. In response to Colin Smyth's question, I would say that we have, in terms of the capital budget for the futures programme, completed that budget. Now we are in the process of annual maintenance remediation, which is part of the normal process of any IT system. In other words, there are always costs post completion of the original CAPEX budget for any IT system. We have been over this on the REC committee several times. The budget or the spend in total this year, which will include these matters and the online functions, is £10 million. I believe that that will be a very substantial and positive investment in assisting many more applicants to get their application online. That will have benefits, some benefits, I believe, for them and also for us, and I think that it will prove to be a good investment. Of course, it will be an investment for the period post 2019, whatever that future may hold. It is an asset for Scotland. The digitalised map showing the 55,000 landholdings in 4 million hectares of land is a great asset that can be used. The difficulty at the moment is that we have no idea what the UK Government proposed should be the support schemes following that, if indeed it is proposing such schemes. As the cabinet secretary said, elfast payments are vital to farmers and crofters in remote areas, and he has already touched on the short-term plans. What is the long-term future of targeted support for the most fragile rural areas? Fergus Ewing. As I have made clear, this Government believes very strongly that we must support our farmers to produce high-quality food and to be the custodians of our landscape in Scotland. That requires support. Those high standards of production must be maintained, the regulation must be maintained to access EU markets and it must be maintained for health and safety reasons. That is in short our aim. In particular, we are all concerned about hill farmers and in Cape Forb's constituency in places such as Clacabur, which will be the preponderance. We are particularly concerned that there should continue to be financial support for hill farmers. I have held two summits, one in Lanark and one in Dingwall, where I have met and listened very carefully to what they have to say. They are worried—it is not political, they are worried—because they do not really know what the future will hold. That is why I pressed Michael Gove at the short meeting that I had with him at the Royal Highland Show to provide as soon as possible confirmation that the UK Government will continue to accept that payments such as ELFAS play an essential part of the support system of farming and, indeed, the countryside in Scotland, as we know it. I echo my colleagues in welcoming any assistance that brings stability to the rural sector. However, it is also clear that today's statement is again an early admission of the challenges and the failures that the Scottish Government is facing for the third year in a row with its disastrous cap payment system. The question has been asked before, but could the cabinet secretary please inform Parliament on how much the additional improvements to the IT system will cost and when payments will accurately be paid and on time, removing the need for all this mitigation and loan systems? As I said in response to Colin Smyth's question, the budget for the procurement of the futures IT programme has been completed. As I have mentioned in a previous answer, the commitment is to spend £10 million this year. I will double check that on the record and come back to Mr Carson if I have oversimplified things, because quoting so many statistics sometimes it is possible to err, but I will double check that. That is my understanding, and that is a good investment that needs to be made. We are seeing considerable progress made in the operation of the IT. IT fixes have been made with more rapidity and the number of problems that have arisen in respect of the IT processes has substantially reduced. That is why I have expressed confidence in achieving the aims that we all want to see realised. In his answer to Jackie Baillie, the cabinet secretary referred to the Audit Scotland report on the very high figures that he had suggested for disallowance and penalties. Can he give any explanation as to why Audit Scotland came out with such so much higher figures than we have seen in practice? I think that that is a question that is best addressed to Audit Scotland. That concludes questions on the cabinet secretary's statement. I will give a couple of minutes to change seats and then we will move on to the next item of business.