Faculty joins opposition to "serious harm" defamation test

Defamation actions in Scotland should not have to meet a “serious harm” test before they are allowed to proceed, according to the Faculty of Advocates.

In its response to the Scottish Government's consultation on defamation law reform, on particular points arising from the Scottish Law Commission's report on defamation, Faculty welcomes many aspects of the Commission's draft bill, but answers "No" to whether a statutory test of serious harm, similar to that in the Defamation Act 2013, should be introduced.

The test was introduced in England in 2013, in an attempt to reduce the large volume of cases there and filter those of no merit, but Faculty believes that more should be learned of the apparent problems it has created there before Scotland follows suit.

Its response comments: "That may be an appropriate response to the English legal system, albeit our experience from attending conferences and speaking to practitioners in London is that the introduction of the serious harm test is seen by many as both problematic and regrettable.

"It could not be suggested that the Scottish courts are currently struggling to deal with either an unwelcome volume of defamation cases or cases of dubious merit. Accordingly, the rationale for the English threshold simply does not exist in Scotland. The introduction of an unnecessary statutory threshold is, in our view, difficult to justify.

"It may be that further evidence ought to be sought from English practitioners in respect of the operation of this provision in practice, and this may inform and assist the proper consideration of this issue."

The test was also opposed by the Law Society of Scotland in its response publised earlier this week (click here for report).

Another issue raised in the consultation is the liability of secondary publishers – those not making but distributing a defamatory statement, such as newsagents, booksellers or internet intermediaries.

Faculty describes the wording of the draft bill on this point as "significant and wide reaching", and as meriting further consideration. Currently, the general position on "innocent publication" is that liability for secondary publishers can still attach, but defences are available.

"It is considered the present draft s 3 of the bill would significantly expand the existing law, and would mean that there could never be an action against secondary publishers. The draft moves away from ‘innocent’ dissemination, and it is not clear why such a significant development is proposed or merited", Faculty states.

"In particular, in relation to the definition of ‘editor’, it is considered that the operation of s 3(d) would mean that a defamation action could not lie against any person who transmitted or distributed electronic material, even if they did not take reasonable care in relation to the publication, they knew or had reason to believe it contained a defamatory statement or if it was not possible to identify the actual author, editor or publisher."

Faculty supports businesses being able to bring actions to protect their reputations "in the same way as a natural person can", and states that there is no good reason to restrict this right to very small enterprises. It also questions whether the definition of "public authority" in the bill is wider than appropriate to an exclusion from being able to bring defamation proceedings, in that it does not necessarily exclude individuals such as doctors.

Click here to view the full response.