Out-Law News | 15 Jan 2019 | 3:38 pm | 3 min. read
While some aspects of how the new laws will be framed have been opened out to consultation, the Scottish government has broadly endorsed recommendations made by the Scottish Law Commission in a report published in late 2017.
Jim Cormack QC, an Edinburgh-based expert in resolving disputes in the media sector at Pinsent Masons, the law firm behind Out-Law.com, said: "Given the need for the law of defamation in Scotland to be updated and the excellent work already done by the Scottish Law Commission in this area, it is good to see the Scottish government consulting in this area with a view to legislation being brought forward."
"It is important that individuals and organisations do respond to the further consultation, as Scotland has an ideal opportunity to learn from the way that some similar changes in England and Wales have applied there and the proposals could effect potentially far reaching change with important implications in practice, especially so far as the liability of internet intermediaries is concerned," he said.
Currently, most of Scotland's defamation laws are not set out in statute but have instead been formed in common law. Under the proposed new regime, more of the detail would be stipulated in legislation. The reforms outlined would see the requirements for bringing defamation claims modernised and the defences against defamation updated too.
Under the proposed new regime, it would no longer be possible to bring defamation claims in Scotland where the comments complained of are only communicated to the person making the claims. Only if a statement has been "communicated to a person other than its subject, with that person having seen or heard it and understood its gist" could defamation proceedings be lodged, according to the plans.
The Scottish government is also consulting on whether to introduce a 'serious harm' test into Scots defamation law, similar to that already in force in England and Wales. Under the Defamation Act 2013, people must demonstrate that the publication of a statement has caused or is likely to cause serious harm to their reputation to bring a claim for defamation against the publisher.
Like in England and Wales, a new right for businesses to bring defamation claims in Scotland could also be introduced into statute.
The Scottish government also confirmed it is "minded" to introduce a new statutory defence of truth into law in place of the existing defences of veritas and justification which would be abolished.
A new statutory defence of publication in the public interest would also be introduced and would apply to both statements of fact and to statements of opinion. Built in to this new defence would be provisions to protect journalists who pursue publication in the public interest, with the current 'Reynolds' defence which protects responsible journalism to be abolished.
The Scottish government has also opened consultation on the potential introduction of a new defence of honest opinion to replace the existing defences of fair comment that exist in both existing legislation and common law.
The Scottish government has also consulted on introducing a new 'single publication rule' which would prevent multiple defamation claims being lodged in respect of repeat publications of the same defamatory statements. Tied to this would be a time limit on bringing claims of potentially as little as one year after the original statement is published, although courts could consider other factors in relation to republications before determining whether late claims should be allowed to proceed. If republications are "materially different" then they would be considered to be new publications and a new limitation period would be triggered from the date of their publication.
In general, under the proposed new laws, defamation proceedings could only be brought against the author, editor or publisher of a statement, or an employee or agent of such a person where they are "responsible for the content of the statement or the decision to publish it".
The Scottish government said that change would help ensure internet intermediaries and all other secondary publishers are not held liable for defamatory statements. It said the change would remove the need for those intermediaries to "show that they took reasonable care [or] that what was a reasonable lack of knowledge caused or contributed to the publication of the statement" to defend against defamation claims.
The measures would, though, be a temporary solution pending the outcome of "any UK-wide review of liability and defences of internet intermediaries", according to the Scottish government's consultation paper.
Among the other main changes being consulted on are plans which would see greater account given to the anxiety and distress caused by defamation in consideration of any award for damages.
The Scottish government's consultation is open until 5pm on 5 April.
Ash Denham, minister for community safety in Scotland, said: "I would like to use this opportunity to ensure that any reform to defamation law is fully tested. We want our law of defamation to be fit for 21st century Scotland, with a clear and accessible framework that balances freedom of expression and protection of reputation."