Say what? The Scottish Government consults on reform to the Scots law of defamation

United Kingdom

The Scottish Government is currently consulting on reforms to the Scots law of defamation, the area of law which aims to protect individual and business reputations from false statements. In an era of online reviews and viral sharing of opinion, protecting reputations is of critical importance to many individuals and businesses operating in Scotland.

Why is the Scottish Government consulting?

The Scottish Government’s stated aim is to create a law of defamation “fit for 21st century Scotland, with a clear and accessible framework that balances freedom of expression and protection of individual reputation”. The consultation follows on from the December 2017 report published by the Scottish Law Commission on its recommended reforms in this area.

The Scots law of defamation is largely rooted in the common law, with some statutory footing, which was established in 1996. However, Scots law has arguably not kept pace with developments in England. The Defamation Act 2013 (which is largely inapplicable in Scotland) brought wide-ranging changes to the law of defamation in England & Wales. The current consultation seeks to bring Scotland arguably more into line with the developments seen down south since the Defamation Act 2013 came into force.

Just as one could not have predicted back in 1996 the impact that online technology would have on society in 2019, so too the law did not foresee the immense impact the social media age would have on defamation. It is now easier than ever to make false statements, some of which may turn viral in the blink of an eye. The changes seek to strike a balance between making it easier to take action when this happens and preventing the Courts being flooded with trivial claims.

What might change?

This consultation seeks views on enacting some of the recommendations made by the Scottish Law Commission in 2017.

Among the most important of the changes being consulted upon are the following:

1. Serious harm: the Scottish Government seeks views on the introduction of threshold test for defamation, which is to be known as “serious harm”. This test would serve as a barrier to minor or frivolous claims, meaning that judicial resources in the Scottish Courts were focused on only the most serious cases, where “serious harm” is suffered. A similar test was introduced in England & Wales under the Defamation Act 2013 and to that extent, if enacted, would bring Scotland into line with them.

2. Secondary publishers: under the current law, if someone other than the original author, a “secondary publisher”, publishes a defamatory statement, it is actionable against them just as it would be against the original author. The law presumes that the secondary publication was intentional. The proposed changes would provide that no defamation proceedings can be brought unless they are against the author, editor or publisher of the statement, who must be responsible for its content and/or the decision to publish it. This would replace the current defence of innocent dissemination and mean that liability is removed for secondary publication in the Scots law of defamation, again, bringing Scotland into line with developments in England.

3. Honest opinion: the current law recognises that some statements are statements of fact and some merely comments or opinions, which may be disagreed with. Currently, if a statement is properly “fair comment”, it will not constitute defamation. The burden on proving fair comment however is onerous and technical. Under the current consultation, the Scottish Government wants views on whether to recast the defence as “honest opinion”.

4. Limitation: under the current law, actions for defamation must be brought within three years following the publication first coming to the attention of the person bringing the action. The proposed reforms might see that period shortened to one year following first publication of the false statement. While it is likely the Scottish courts would retain equitable powers to override any delay in bringing actions in appropriate circumstances, the Scottish Government seeks views on whether such a short period is too draconian or unworkable.

The Scottish Government's consultation is open until 5pm on 5 April 2019. It heralds important potential changes in the Scots law of defamation and for that reason, will be of keen interest to all businesses and individuals who are particularly exposed to online comment, review and critique.

If you would like to discuss protecting and managing your reputation in Scotland, please contact our CMS team, Dan Tench, Graeme MacLeod and Emma Boffey.