Striking the right balance between freedom of expression and protection of reputation is key to modernising Scots law on defamation, according to the Law Society of Scotland.
In its response to a Scottish Government consultation, the Law Society has questioned proposals to introduce a statutory threshold test of serious harm in relation to financial loss. The Scottish Government is exploring aspects of the Scottish Law Commission’s recommendations in their report on defamation and accompanying draft Bill, to ensure that any reform to defamation law is fully tested.
John Paul Sheridan, Convener of the Law Society of Scotland’s Obligations Law Sub-Committee, said: “Evidence of vexatious litigation should be provided if a ‘serious harm’ test is to be introduced as we are not aware that there is currently a problem in Scotland. There is a balance to be found between the right of freedom of expression, as found in Article 10 of the European Convention on Human Rights, and the right of protection of individual reputation.
“From an access to justice perspective, we are concerned that introducing a statutory threshold could deter legitimate claims. There may also be practical challenges around preliminary hearings to assess whether significant harm has occurred.”
The Law Society has also urged caution on imitating developments in other countries such as Australia, which has limited the rights of profit-making bodies in defamation actions.
John Paul Sheridan added: “We know that many profit-making businesses are small to medium sized enterprises and that defamatory statements could generate significant economic harm and reputational damage. However, in the case of non-financial loss we recognise that introducing a serious harm threshold could help protect freedom of expression and mitigate against the potential chilling effect which might result from a well-resourced legal person threatening legal action.”
The Law Society also highlighted the perceived lack of clarity around the definition of public authority, some aspects of the drafting relating to the liability of secondary publishers, and concerns regarding the scope of delegated powers under the draft Bill which could lead to insufficient parliamentary scrutiny of key policy decisions.