Scottish defamation reform will strike a ‘fairer balance’, Society says

Posted on: March 12, 2020 by Claire Meadows

Overdue proposals to reform Scottish defamation law will strike a better balance between freedom of expression and the protection of an individual’s reputation, the Society of Editors has said.

Responding to a consultation on the Scottish government’s Defamation and Malicious Publications (Scotland) Bill, the Society said that the proposals would bring Scotland more in line with long sought-after defamation law in England and Wales and would, finally, end the anomaly in Scots Law where a statement need not be communicated to a third party to be defamatory. Further amendments are, however, urgently required to ensure that the law reflects the modern day and is not used by companies to attempt to stifle legitimate discussion and criticism of its services the Society warned.

It said: “The 2013 reforms in England and Wales have gone someway to reversing the chilling effect that previous libel laws had on freedom of expression and legitimate debate and the Society hopes that the updating of laws in Scotland will have the same effect.

“The proposed Scotland Bill is a significant improvement on existing Scots Law which has not been updated since the 1996 Defamation Act. Previously the law has been skewered in favour of pursuers who are bringing an action and has provided outdated and inadequate protections for journalists and other defenders of such actions.”

The Society has long campaigned for defamation reform and welcomed the long fought-for Defamation Act 2013 in England and Wales which came into effect on 1 January 2014. The reform of laws in England and Wales went someway to reversing the chilling effect previous libel laws had on freedom of expression by the introduction of a serious harm test. This test does not currently apply in Scots Law.

The introduction of important measures such as a new public interest defence, the introduction of a “serious harm” threshold, a single publication rule, new defences of fair comment and honest opinion, a stronger “offer of amends” system and the shortening of the period in which someone can bring an action after publication will all result in meaningful reform in Scotland, the Society said.

“If enacted, the reforms will result in a more appropriate balance being struck between protecting people’s reputations and safeguarding press freedom and freedom of expression more widely. Such reforms will not only ensure greater protections for journalists but will greatly benefit academics, scientists, authors, campaigners and social media users and the public more widely” the Society said. 

Concern remains however, that under current proposals, private companies could attempt to use the legislation to silence legitimate discussion or criticism of its services or products, the Society warned. 

It is a long-established principle of common law in England and Wales that a public authority cannot sue for defamation. Knows as the Derbyshire principle, it is widely recognised that allowing public authorities the ability to sue for defamation could have a chilling effect on legitimate scrutiny and criticism of those performing public functions. Although public authorities are barred from suing for libel in England, Wales and Scotland, private companies that are increasingly being used to perform public duties are not.

The Society said: “Following a similar omission in the 2013 Act in England and Wales, the anomaly whereby private companies performing public functions are still able to use defamation legislation to silence criticism and stifle debate is an ongoing threat to freedom of expression. It is essential that there is a level playing field between public bodies and private companies that fulfil the same public functions. In recent years we have seen an explosion in public services being outsourced to private companies for profit and a situation continues to exist where public bodies cannot sue for defamation but private companies that fulfil the same public functions can.

“It is vital that the law is updated to reflect the modern day and that, if private companies are allowed to sue for libel, those that fulfil a public service are not. It is essential that journalists and the public are able to speak freely, without fear of persecution, on all matters relating to public service provision.”

Read the Society’s response in full here