Defamation overhaul proposed in Scottish Law Commission report

"The most substantial proposed reform of defamation law in Scottish legal history" is proposed by the Scottish Law Commission in its Report on Defamation, published today.

Including draft legislation designed to modernise the law for the age of the internet and social media, the report is the culmination of three years of intensive study by the Commission and reflects extensive public consultation. The recommendations are based on close engagement with members of the public, media organisations, authors, publishers, campaign groups and the legal profession.

Among the 49 proposals are that:

• where a statement has not caused serious harm to reputation there should be no right to sue – to prevent defamation actions being used as a weapon by the rich and powerful to try to silence unwelcome criticism;
• Scots law should explicitly recognise a defence of publication on a matter of public interest – important for investigative journalism;
• the three year time limit for suing for defamation should be reduced to one year, in line with best international practice – the Commission believes that where there has been genuine damage to reputation this should become clear quickly;
• there should be a new "single publication" rule: 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;
• a non-natural person whose primary purpose is to trade for profit should be permitted to bring defamation proceedings only where it can demonstrate that the statement complained of has caused or is likely to cause serious financial loss;
• public authorities should not be permitted to bring proceedings for defamation;
• the defence of fair comment should be replaced by a defence of "honest opinion", which need not relate to a matter of public interest but must be evidence based; 
• some old legal rules around defamation should be swept away; for example, 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, as in that case there cannot realistically be any damage to reputation;
• the law should not be extended to permit a defamation action to be brought on behalf of someone who has died;
• any review of responsibility and defences for publication by internet intermediaries should be carried out on a UK-wide basis.

Lord Pentland, chairman of the Scottish Law Commission and the commissioner with lead responsibility for the project, commented:

“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.”

Click here to access the report.