Faculty opposes introduction of English-style threshold of ‘serious harm’ in defamation cases



The Faculty of Advocates would welcome more defamation cases being raised in Scotland because, it says, the current low level threatens development of the law in the area and the country’s stature as a litigation forum.

Responding to a Scottish Law Commission discussion paper on defamation, the Faculty said it firmly opposed the introduction of an English-style threshold of “serious harm” for allowing actions north of the Border.

“The Faculty of Advocates shares the view of the Scottish Government that the legal sector in Scotland should be assisted in contributing to the economic growth of the nation,” the response stated.

“It is therefore a shared objective that Scotland be a strong forum for litigation, including in the area of defamation. The current low volume of cases accordingly undermines not only the development of the law but diminishes the prospect of Scotland being taken seriously as a centre of excellence in matters relating to defamation.

“It is accordingly our hope that any reforms will specifically consider how that critical current issue can be addressed. In a sense, the Scottish problem is exactly the reverse of that which recent reform in England addressed; in England there was a concern that there were too many cases whilst in Scotland there is uniform acceptance that there are too few.”

Currently, there is no statutory level of harm which has to be met to allow a case to be initiated in Scotland, and the Faculty said this had not created any particular difficulty or caused trifling claims to be raised.

“In fact, as previously stated, the greatest difficulty facing the development of Scots Law in this area is having too few cases, not too many. The application of section 1(1) (a ‘serious harm’ test) of the Defamation Act 2013 has already raised significant issues in England, and such a test would add a layer of complexity, and consequently cost, to any court action.

“We are firmly of the view that such a provision would be unnecessary and inappropriate for Scottish law,” added the Faculty.

Another issue raised by the Commission is how far a statement must be communicated for it to be actionable. At the moment, defamation can arise if an imputation is seen, read or heard only by its subject. The commission’s preliminary thinking is that there should be communication to a third party. The Faculty said it was not persuaded at this stage by the proposal.

“This proposal would represent a significant change in the long-established principle of Scots Law that the essence of defamation is injury to self-esteem which is actionable in its own right…the principle may have direct applicability in an online age, most notably in the context of emails.

“The ease and frequency of direct, private communication has massively increased in recent years. The law has often struggled to keep pace with that increased electronic communication. In other words, we wonder whether the principle might be something which (after a long period of relative irrelevance) is now more relevant than it has been. If so, abolishing that means of a pursuer seeking remedy would seem odd.”