Most substantial reform of defamation in Scottish legal history proposed

Lord Pentland

Today the Scottish Law Commission (SLC) publishes its report recommending reform of defamation law in Scotland. The report includes draft legislation designed to modernise the law for the age of the internet and social media. The draft bill is the most substantial proposed reform of defamation law in Scottish legal history.

The report is the culmination of the commission’s three years of study of the subject and reflects extensive public consultation. The recommendations are based on close engagement with stakeholders: members of the public, media organisations, authors, publishers, campaign groups and the legal profession.

It recommends that some old legal rules around defamation should be swept away; for example, it recommends that it should no longer be possible to sue where a defamatory statement is made only to the person who is the subject of it and no-one else  – in that case there cannot realistically be any damage to reputation.

The report also proposes that where a statement has not caused serious harm to reputation there should be no right to sue. This is to prevent defamation actions being used as a weapon by the rich and powerful to try to silence unwelcome criticism.

The report recommends that Scots law should explicitly recognise a defence of publication on a matter of public interest. This is important for investigative journalism.

Under the present law, a person can allow three years to go by before suing for defamation. The report concludes this is too long. Where there has been genuine damage to reputation this should become clear quickly. So the report recommends that the three-year time limit should be reduced to one year. This would be in line with best international practice.

The SLC proposes that there should be a new ‘single publication’ rule; this means that the time limit for bringing a claim will not start afresh each time the same statement is downloaded by a new search on the internet.

Lord Pentland, chairman of the Scottish Law Commission and the commissioner with lead responsibility for this project, said: “Defamation law potentially affects everyone and getting it right is crucial for the type of society we want to live in.

“With the phenomenal growth in use of the internet and social media it is possible for everyone to communicate far more easily and more widely than was the case in the past.

“But faster and easier ways of communicating have thrown up new challenges for the law. The absence of editorial controls can sometimes allow reputations to be unfairly tarnished in the eyes of a mass audience.

“Our modern law of defamation, therefore, has 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.

“The law of defamation has a central part to play in safeguarding both these rights. It is important that fearless journalism can thrive so that the rich and powerful are held to account; at the same time the law must allow those whose reputations are unfairly tarnished to restore their reputations swiftly and at reasonable cost, if necessary through the courts.”

The report makes 49 recommendations in total and contains a draft bill which would put into effect those recommendations.

Read Report on Defamation