How Scotland should respond to the 2013 changes in defamation law in England & Wales is the subject of a new discussion paper published today by the Scottish Law Commission.

The 2013 changes aimed to tackle “libel tourism”, where claims were brought in the English courts on the back of minimal publication there. This was said to have a chilling effect on freedom of speech. Many of the issues also have a cross-border dimension, with publishers and media organisations operating on a UK-wide basis, which can create practical difficulties when there are different rules in different parts of the UK.

The paper explains Scots law in key areas and examines possible improvements. It seeks views on whether there should be a new threshold test, so that a claim can be brought only where a publication has caused a certain level of harm to a claimant’s reputation. This could filter out claims where very little is at stake. It also considers whether the defences of truth, fair comment and publication on a matter of public interest should be clarified and expressed in modern form.

Another possible remedy is for the courts to be given power to order that a summary of the court’s judgment should be printed by a newspaper or broadcaster which has been found to have defamed someone. 

A further issue considered is responsibility for online publication, following the phenomenal growth in social media and the internet. The paper asks whether the courts should be given power to order removal of a defamatory statement from a website. It also examines whether it should be possible for defamation claims to be brought where the reputation of a deceased person has been unfairly attacked after his or her death, something excluded by the present law.

The paper further examines the relationship of the law on verbal injury and defamation law. 

Among general questions posed are whether communication to a third party should become a requirement for defamation in Scots law; whether commercial bodies should continue to be allowed to bring actions; whether the defence of fair comment should still have to be on a matter of public interest; and whether there should be a statutory defence of publication in the public interest.

Lord Pentland, chairman of the Commission, who is leading the project, commented: “Defamation law potentially affects everyone. It is at the cutting edge of freedom of expression and protection of reputation; two important human rights. The law in this area must be in tune with the values of modern society. We hope that as many people as possible will read our discussion paper and give us their views on the questions we ask."

Click here to access the discussion paper.