Will the Defamation and Malicious Publication (Scotland) Bill bring the law up to date?

One could argue that it is slightly ironic that Scotland’s first virtual court hearing in response to the recent lockdown, which took place on 21 April 2020, was one surrounding the law of defamation in Scotland; an area of law which is deemed by some to be unfit for the digital age.

However, that is set to change with the welcomed introduction to the Scottish Parliament of the Defamation and Malicious Publication (Scotland) Bill (the Bill), which it is hoped will make the law on defamation reflect the modern world.

Background

As matters stand presently, defamation in Scotland is mainly based on common law, although certain pieces of legislation apply which has resulted in fragmented rules that are not easy to follow and the rules were last changed in 1996. This is in stark contrast to the position in England and Wales, governed by the Defamation Act 2013.

The Bill, however, seeks to shift defamation law in Scotland onto an entirely statutory footing, as well as upgrading the law to reflect a digital world, where anyone with a smart phone can become a publisher and where a defamatory statement can have a global reach or go ‘viral’ in a matter of seconds.

The Bill, which was introduced by the Cabinet Secretary for Justice, Humza Yousaf MSP on 2 December 2019, aims to simplify and modernise the law, and to find a fair balance between freedom of expression and the protection from unfair damage to reputation. The Bill was examined by the committee on 17 March 2020, which was an opportunity for the public to follow the review and analysis of the Bill.

Changes

If enacted, the Bill will provide a definition of what defamation is, which will be the first time this has occurred under Scots Law.

Under the proposed legislation, for a statement to be deemed to be defamatory, it has to be published to an individual other than the individual who the statement is about i.e. a third party. Currently, it is possible to raise proceedings without the harmful words being communicated to anyone other than the person that they are about.

The Bill’s proposed changes would mean that the defamation would have to cause, or be likely to cause, serious harm to the reputation of the person making the claim. In relation to businesses the harm would only be considered serious if it has caused, or be likely to cause, serious financial loss.

The Bill also seeks to prevent defamation actions being brought against ‘secondary publishers’, which refers to anyone other than the authors, editors, or commercial publishers of material containing defamatory statements. This does come with certain exceptions, including when the harm caused is materially increased because it has been republished to a much larger audience. In practice, for example an individual may ‘retweet’ or ‘repost’ a defamatory statement with no consequences. However, an individual with a large following, i.e. a celebrity, may do the same but the results could be that the defamatory statement reaches an extended audience causing a material increase in harm to the subject of the defamation and as such would allow an action to be raised against a secondary publisher. Whilst this is clearly concerning, the bigger issue of internet publishing regulation ought to be tackled first, with the aforementioned ancillary issues being tackled thereafter.

In addition, the Bill seeks to change the three-year limitation period to a one-year period, and in doing so will bring Scottish law in line with England and Wales. Whilst in theory the change may result in a decrease of litigation this is unlikely as there is potentially a new right of action every time the defamation is accessed. This change should be sufficient to establish damage and raise a claim whilst avoiding belated claims.

Comment

Based on the current proposals, the Bill attempts to reflect our modern world and factor in the bloggers, YouTubers and social media influencers of today’s world. In theory the law will be much more accessible, irrespective of legal understanding, and it will no longer be necessary to have regard to complex case law, allowing parties to understand what constitutes defamation and what defences are available. The single publication rule also attempts to safeguard the secondary publisher as liability for a statement cannot continue indefinitely for simply re-sharing a social media post.

The Bill seeks to simplify and modernise defamation in Scotland. The reforms attempt to find the balance of freedom of speech and the right of individuals to protect their reputations from being unjustly damaged. It will also force online publishers to think twice before posting that quick tweet or Facebook post.

The current Bill is of course subject to change and amendment. Further consideration of the Bill is expected to commence in the coming months, subject to the current COVID-19 restrictions. The Bill will undergo review by the Scottish Parliament before being put to a vote to become an Act of Parliament.

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