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Reform of defamation in Scotland – is it welcomed?

October 20, 2020 Civil Litigation

Defamation is where something is written or said about someone, which is untrue and damages his or her reputation. The list is not closed as to what ranks as defamatory. However, the remark must be false, against a living person and have the effect of lowering their reputation. Whether something is defamatory is judged by the standards of society and how the ordinary person would understand the meaning of the words at the time the statement was made.

Did you know that those who retweet or share defamatory remarks about someone on social media potentially share the same risk as the publisher themselves. The rise of social media creates an open-ended list of people who may be at risk for a defamation claim.

Under the new proposed reforms, some of the laws in regards to would be set out in statute and there have been various recommendations.

For example, the introduction of a “serious harm threshold”, which ensures that an action for defamation can only be brought if the statement that was published caused serious harm to the person making the complaint. This has been the position in England and Wales since the introduction of the Defamation Act 2013. This would be highly welcomed in Scotland as it would mean that defamation cannot be used as a weapon by wealthy businesses to stop unwelcome content. Further, by setting this threshold test the courts have the ability to dismiss a claim at an early stage if it has caused minimal damage.

The defamatory statement would have to be made to a person other than the person who was subject to the defamatory statement, according to the new bill. This would make a change in the law as currently proceedings can be raised even if the statement was only conveyed to the person about whom it was made.

The bill seeks to clarify that a defamatory statement is one that causes harm to a person’s reputation and it has tended to lower the person’s reputation by estimation of an ordinary person. This does closely follow the common law test, however this would be set out and clarified in statue form.

The Government have also consulted on the possibility of introducing a new defence of “honest opinion” which would seek to replace the existing rules of fair comment.

The Scottish Government has also consulted on a time limit to bringing these claims to as little as one year from the date the defamatory remark was published. This will mark a change to the current three year time limit in Scotland.

The new bill will rectify the issue in regards to social media and will mean that only those who are the author, editor or publisher of the statement can be sued. Thus those who share, like or re-post another’s words will not be liable it can be said to materially increase the harm caused.

Defamation is a very complex area of law. However, the new proposed legislative changes would provide a clearer framework and should be welcomed in Scotland. There is a pressing need to acknowledge the existence of social media and the internet, and the law needs to reflect this. Members of the Scottish Parliament’s Justice Committee have asked for changes to be made before the bill moves on to the next stages in the coming months. Thus, the bill is one-step closer to becoming law. Watch this space for further updates!

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