Advocates oppose defamation threshold test in reform response

Scotland needs to attract more defamation litigation to support the development of the law and the country’s stature as a litigation forum, the Faculty of Advocates said today.

In its response to a Scottish Law Commission discussion paper on defamation, Faculty firmly opposes the introduction of an English-style threshold of “serious harm” for allowing an action to go ahead.

Currently, there is no statutory level of harm which has to be met to allow a case to be brought in Scotland, and Faculty says this has not created any particular difficulty or caused trifling claims to be raised.

“In fact," the response maintains, "the greatest difficulty facing the development of Scots law in this area is having too few cases, not too many. The application of s 1(1) (a ‘serious harm’ test) of the Defamation Act 2013 has already raised significant issues in England, and such a test would add a layer of complexity, and consequently cost, to any court action.

“We are firmly of the view that such a provision would be unnecessary and inappropriate for Scottish law.” 

Faculty shares the Scottish Government's view that the legal sector in Scotland should be assisted in contributing to the economic growth of the nation, and “It is accordingly our hope that any reforms will specifically consider how that critical current issue can be addressed. In a sense, the Scottish problem is exactly the reverse of that which recent reform in England addressed; in England there was a concern that there were too many cases whilst in Scotland there is uniform acceptance that there are too few.”

Another issue raised by the consultation was how far a statement must be communicated for it to be actionable, and whether communication to a third party rather than only to the subject of the alleged defamation should be required. Faculty is not persuaded that the third party requirement should be introduced.

“This proposal would represent a significant change in the long-established principle of Scots law that the essence of defamation is injury to self-esteem which is actionable in its own right… the principle may have direct applicability in an online age, most notably in the context of emails", the response states.

“The ease and frequency of direct, private communication has massively increased in recent years. The law has often struggled to keep pace with that increased electronic communication. In other words, we wonder whether the principle might be something which (after a long period of relative irrelevance) is now more relevant than it has been. If so, abolishing that means of a pursuer seeking remedy would seem odd.”

Among other comments, Faculty warns of possible risks in expressing in legislation current defences such as fair comment, and publication in the public interest; it expresses caution about a new procedure that would allow a statement to be read in open court; and it opposes new provision for actions to be brought on behalf of someone who has died, in respect of statements made after their death.

Click here to view the full response.