Defamation paper looks at threshold test and updating defences

The Scottish Law Commission today published a discussion paper on defamation law. The project emerged from modernisation of the law in England and Wales in 2013, where changes were made to tackle “libel tourism”; claims being brought in the English courts on the back of minimal publication.

Another impetus for the project is the cross-border dimension of many of the issues. Publishers and media organisations often operate on a UK-wide basis; it can create practical difficulties when there are different rules in different parts of the UK.

Defamation law is not only of interest and importance to newspapers, broadcasters and commercial publishers; it can potentially affect everyone. With the phenomenal growth in social media and the internet many people now communicate more openly and rapidly on a whole range of issues to a much greater extent than was previously possible.

The paper explains Scots law in key areas and examines possible improvements. It discusses, for example, whether there should be a new threshold test so that a claim can be brought only where a publication has caused a certain level of harm to a claimant’s reputation.

This might help to filter out claims where very little is at stake. The paper also considers whether the defences of truth, fair comment and publication on a matter of public interest should be clarified and expressed in modern form.

A further issue considered is where responsibility for online publication should lie. The paper asks if the courts should be given power to order removal of a defamatory statement from a website. It also examines whether it should be possible for defamation claims to be brought where the reputation of a deceased person has been unfairly attacked after his or her death. At present this is not possible.

Chairman of the SLC, Lord Pentland, who is leading the project, said: “Defamation law potentially affects everyone. It is at the cutting edge of freedom of expression and protection of reputation; two important human rights.

“The law in this area must be in tune with the values of modern society. We hope that as many people as possible will read our discussion paper and give us their views on the questions we ask.

“That will allow us to recommend changes to ensure that the law is up to date and in line with current thinking and practice.”

In November last year Scottish Legal News spoke to Robert Sharp from English PEN about defamation reform across the UK.