Call for views opens on Defamation Bill

Proposed changes to the law on defamation are open to representations from the public as Holyrood's Justice Committee issues its call for evidence on the Defamation and Malicious Publication (Scotland) Bill.

MSPs on the committee are seeking views from the public, media organisations and publishers, internet firms and other experts on the bill, which aims to balance individuals’ freedom of expression alongside defending reputations against damaging, false or malicious views.

The bill follows recommendations of the Scottish Law Commission and would bring the statute and common law together in one place, with changes designed to cope with the advent of the internet.

It would recognise a defence of publication on a matter of public interest, and provide that action can only be brought if the published statement caused (or would be likely to cause) serious harm to the reputation of the person making a complaint. Common law defences such as truth, or fair comment, would be replaced in statutory form.

A scheme is set out for offers to make amends, which if accepted would bar separate court proceedings.

Malicious statements causing harm to business interests, or casting doubt as to title to property, or criticising the quality of another's assets to their financial loss, would become actionable; but the common law of verbal injury would be abolished. There is provision for a statement to be read in open court as part of a settlement of proceedings.

The bill also seeks to prevent defamation actions being brought against “secondary publishers” – those other than the authors, editors or commercial publishers of material containing defamatory statements – with certain exceptions, for example where the harm caused by publication is materially increased because it has been republished to a much larger audience.

It would also reduce the timescale for raising a defamation court action from three years to one year.

Speaking as the call for views was launched, committee convener Margaret Mitchell MSP said: “Having previously advocated for changes to update the law on defamation, committee members will welcome the introduction of this bill to pull together the law in this area into one place, and hopefully bring it into the 21st century.

“The tension that can arise between freedom of expression and protecting reputation has been a key concern of the law for many decades. New technologies, such as the internet and social media, provide new dimensions and challenges. Consequently, the law on defamation in Scotland is found across both legislation and case law.

“We want to ensure that the right balance between competing tensions has been struck and that in this era of mass digital publishing the proposals are workable.”

She added: “As ever, the detail matters, and the committee intends to scrutinise the proposals closely.” 

Click here to access the bill, and the call for views. Submissions are due by Friday 13 March 2020.