Commission offers draft Defamation Bill for comments
A draft bill to reform the Scottish law of defamation has been published by the Scottish Law Commission as it prepares to finalise its proposals to modernise the law.
The bill would restate the law in 36 sections and a schedule. Part 1 (Defamation) covers amendments to the law of defamation and makes provision in relation to actionability of defamatory statements and restrictions on bringing proceedings, defences, absolute and qualified privilege, offers to make amends, jurisdiction and the removal of the presumption that defamation proceedings are to be tried by jury.
Part 2 (Verbal Injury etc) makes provision to replace common law verbal injuries with three new statutory actions relating to malicious publications causing harm.
Part 3 (General) makes provision as to remedies and limitation of defamation actions and actions under part 2, as well as miscellaneous provisions dealing with matters such as interpretation and commencement.
Comments are welcome on what is a working draft, which comes with explanatory notes and a covering note. The Commission is seeking views on the detail and workability of the provisions before the draft is finalised and published with a report around the end of the year.
The covering note highlights certain points:
- The Commission is taking a different line to that suggested by consultees as respects the treatment of secondary publishers of online content, proposing that no proceedings should in general be able to be taken pending a full review of the law at UK level.
- It proposes to state in statutory form the principle that a public authority should not be entitled to bring proceedings for defamation, a matter not covered in its earlier discussion paper.
- It is not takng forward a suggestion for making provision for suing on behalf of a deceased person for statements made after their death, having regard among other things to the Jimmy Savile affair.
- The "re-branding" of verbal injury will reflect more clearly the wrong the law seeks to address in this area.
The Commission would particularly welcome views on the aspects of the bill highlighted in the covering note, by 31 August 2017.