Faculty fears gap in plans to deal with online defamation

The Faculty is also concerned that the wording of the Defamation and Malicious Publications (Scotland) Bill could exclude MSPs and others from seeking redress if they are defamed.

The Scottish Law Commission has sought comment on its draft bill and the Faculty noted a 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,” said the Faculty in its response.

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

The commission has said that it believes any review of secondary publishers would best be carried out on a UK-wide basis, but the Faculty was unimpressed, and said no such review was 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,” added the Faculty.

Turning to the second issue, the Faculty said it agreed 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, a much wider exclusion appeared to be created within the bill which covered “…a person…if the person’s functions include functions of a public nature.”

The Faculty said: “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.”

The Faculty reminded the commission of its response to an earlier consultation where it cautioned against following too closely the line of reform in England under the Defamation Act 2013. It firmly opposed an English-style threshold of “serious harm” for allowing actions in Scotland, where defamation was already an under-developed area of the law.

“That test was designed to deal with the specific issue, in England and 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.”