Defamation in Scotland – Radical reform proposed

The Defamation and Malicious Publication (Bill) (Scotland) Bill – which, if enacted, would represent the most significant change in the law of…

Introduction

The overhaul of the law of defamation in Scotland is long overdue, with changes last made in 1996 when the internet was still in its infancy and social media was an entirely unknown concept. The Report issued by the Scottish Law Commission (“The Commission”) this week seeks to address the shortcomings of the current law and make it fit for purpose in the digital age.

The proposed legislation – Defamation and Malicious Publication (Scotland) Bill

The Commission has prepared a draft Bill – the Defamation and Malicious Publication (Bill) (Scotland) Bill – which, if enacted, would represent the most significant change in the law of defamation in Scottish legal history. According to the Chairman of The Commission, Lord Pentland, the aim of the Bill is “to strike the right balance between two values that sometimes pull in different directions – the principles of freedom of expression and protection of reputation. Both are fundamental human rights and are of vital importance in a modern democracy.”

Among the various recommendations made, we would highlight the following:

  • It will no longer be possible to sue for defamation where the statement complained of is only made to the person who is the subject of it – the statement needs to have been communicated to some other person.
  • A new “serious harm” threshold will be introduced whereby it will be necessary for the aggrieved party to demonstrate that the statement has caused, or is likely to cause, serious harm to the reputation of that party – this seeks to avoid the situation where the rich and powerful use defamation laws to shut down unwelcome comment.
  • A “single publication” rule will also be introduced. Currently in Scotland, there is a multiple publication rule meaning that every time a statement is published, read or re-published, a new right of action arises. The proposed change would limit the right of action to the original publication of the statement.
  • In tandem with that change, the limitation period for bringing a claim for defamation will be reduced from 3 years to 1 year from the date of publication.
  • Recognising the influence of social media outlets such as Twitter, it is proposed that only the originator of the statement will be capable of being sued for defamation. As such, those who retweet such statements would no longer be at risk of court action.
  • Common law defences such as truth (veritas) and honest opinion will be given statutory recognition while the defence of publication in the public interest (as derived from the case of Reynolds v Times Newspapers Ltd) will also be included, thereby providing investigative journalism in particular appropriate protection.

Can we help?  

Defamation proceedings remain relatively uncommon in Scotland and we expect numbers to remain low should the draft Bill become law. However, one area of concern relates to how the Scottish courts will interpret the concept of “serious harm” and, as suggested by the English Court of Appeal decision in Lachaux v Independent Print Ltd earlier this year, this new threshold might not provide publishers with the enhanced level of protection anticipated by The Commission.

The Report is now with the Scottish Government to consider their response. It is hoped that the draft Bill will be included in the legislative programme at Holyrood sooner rather than later, thereby allowing Scottish law to be effectively catch up with the position in England and Wales following the introduction of the Defamation Act in 2013.

We will be keeping a watching brief and will report back as soon as there are any further developments. In the meantime, should you wish to discuss this in more detail, or would like assistance with any other matter, please do not hesitate to get in touch.

In the meantime, should you wish to discuss this in more detail, or would like assistance with any other matter, please do not hesitate to get in touch with any of our team:

  • David Johnson (Partner, Political Affairs, 0207 822 7146);
  • Bavita Rai (Partner, Innovation & Client Affairs, 0121 200 3499);
  • Doug Keir (Partner, Scottish Affairs, 0141 375 0869);
  • Kurt Rowe (Associate, Market Affairs, 0207 822 7132);
  • Or email our Market Affairs Group at marketaffairs@weightmans.com.

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