Defamation to be enshrined in Scots law

A new Scottish Government bill proposes to “simplify and modernise” defamation law and set out what constitutes a defamatory statement in Scots law for the first time.

The Defamation and Malicious Publication (Scotland) Bill was introduced to Scottish Parliament by Justice Secretary Humza Yousaf on Monday and proposes to ensure “better balance is struck between protecting someone’s reputation and freedom of expression”.

The last changes to the law were made in 1996 and “it is clear that the law is no longer fit for modern day purposes”, the bill’s memorandum stated.

“For example, societal changes, such as the increased use of internet communication, means that there is more scope than ever for rapid and potentially unfair damage to reputation.”

The bill replaces key elements of Scots common law on a statutory basis and restates elements of the existing statutory provisions, with the term “verbal injury” to be replaced with “malicious publication”.

The legislation recognises the defence of publication on a matter of public interest and ensures action can only be brought if the statement “caused (or would be likely to cause) serious harm to the reputation of the person making a complaint”.

It also prevents defamation from being brought against secondary publishers, those other than the authors, editors or publishers of the alleged defamatory material, with certain exemptions.

Community Safety Minister Ash Denham said the bill, if passed by parliament, would bring the law up to date.

“The existing laws covering defamation are spread across several statutes and areas of common law, some of which were decided more than 100 years ago,” she said.

“The widespread use of social media today means there is the increased potential for unfair damage to reputation. Defamation law can also potentially impact a far greater number of people than a generation ago.

“This bill brings the law up to date and simplifies it in key areas, while striking an appropriate balance between freedom of expression and the protection from unfair damage to reputation.”

However Scottish PEN, which has campaigned for defamation law reform, said it was disappointed the bill did not include protection against unjustified threats of legal action.

“This reform is a long-overdue chance to rein in corporate influence and ensure they are accountable to society,” Scottish PEN project manager Nik Williams said.

“We are disappointed that the bill does not include the provision to protect against unjustified threats of legal action that was including in the Scottish Government public consultation. For too long, this law has been used by powerful and wealthy entities to restrict criticism and public scrutiny.

“This provision would have offered a significant and practical protection for individuals and organisations, including journalists, community groups, activists, scientists, academics and social media users to ensure they can continue to realise their right to free expression and play an active role in society.”

Williams welcomed the bill as a “vast improvement on existing law” and particularly supported “the encouragement towards mediation and increased protections for people using online platforms to share or state their approval or disapproval for specific comments, without editing the original comment”.

He also welcomed: “the inclusion of a serious harm threshold, a statutory public interest defence, increased protections for online speech, the reduction of the limitation period to one year from three and the single publication rule.

by Jenni Davidson

Review of Scottish defamation law launched by Scottish Government

“We look forward to continuing our work reforming defamation law in Scotland, ensuring it is fit for purpose in the modern age. This bill, introduced to parliament this week, is an important and positive step in the right direction.”

The legislation follows a report by the Scottish Law Commission in 2017 which made 49 recommendations to modernise and simplify the defamation law in Scotland. The government said the bill would implement the recommendations specific to reforming defamation law.

A consultation on reforming the defamation law was held earlier this year, asking whether large private companies should still be allowed to pursue defamation cases, with options of limiting it to individuals and micro businesses employing fewer than 10 people.