Draft Defamation Bill leaves an online gap, Faculty warns

Proposals to modernise the law of defamation have “a significant gap” in dealing with online character attacks, and could also leave certain people such as MSPs unable to sue, the Faculty of Advocates warned today.

Faculty was commenting on the draft Defamation and Malicious Publications (Scotland) Bill, put out for comment by the Scottish Law Commission before it finalises its report on reforming defamation law, later this year.

Its principal concern is the scarcity of provisions relating to “secondary publishers”, those who make material available online but from whom the material does not originate.

“Given that the bill is intended to create a comprehensive legislative scheme, we consider this is an issue which should be included. Failure to do so risks leaving a significant gap in the proposed legislation”, Faculty responds, noting that in any event the bill makes a "partial intervention" in this area.

“The treatment of secondary publishers is an important issue. Online communication, often on hosted websites, is an increasingly common aspect of defamation litigation. That is a trend that is likely to accelerate.”

In the Commission's view, any review of secondary publishers would best be carried out on a UK-wide basis, but Faculty points out that no such review is pending.

“The effect of delay, therefore, might be that a bill designed to provide a comprehensive statement of the law in this area will not do so, based only on a potential future UK review. We have a concern over such an approach. The Scottish courts can, and do, require to address these issues on an ongoing basis”, it comments.

On the second issue, the Faculty agrees that the principle laid down in an English case – that a governmental body or an organ of government could not sue for defamation – should be encapsulated in the bill. However, the bill appears to create a much wider exclusion, covering “a person… if the person’s functions include functions of a public nature”.

Faculty observes: “That, it seems to us, arguably leads to a complete exclusion for natural persons, if they perform ‘functions of a public nature’. We foresee difficulty in that regard. Take, for example, an MSP who wishes to raise proceedings in defamation. Are they excluded and, if so, to what extent? What about an employee of such an MSP? Is a doctor whose role extends to assisting in the running of a health board precluded from bringing proceedings?

“In our opinion, thought should be given to defining public authorities more tightly.”

It also opposes adopting the English threshold of “serious harm” for allowing actions in Scotland, arguing that the English test was designed to deal with the specific issue, in England & Wales, of excessive litigation. "Scotland has the opposite problem…The effect of following the English reforms so closely is that we do not think that Scotland will be a stronger forum for litigation. In fact, we think an opportunity to achieve that result is, at least potentially, being missed.”

In a general comment Faculty adds: "In general, we would consider it helpful to have much greater explanation of the policy considerations underpinning the specific proposals made. The original consultation document set out a range of competing considerations in each area and it would be of assistance in understanding the approach being taken to have as full an understanding as possible of the rationale for the final proposals now made."

And it questions the wide discretion given to ministers throughout the bill, notably in s 4, under which they can "make substantive changes to the law by regulation". Again the policy justification for this should be made clear, Faculty states.

Click here to view the full response.