Lord Pentland, who sits from time to time in the High Court at Dumbarton, writes on Scottish Law Commission plans to update Scottish defamation law for the age of social media.
The Scottish Law Commission has proposed the most substantial reform of defamation law in Scottish legal history.
Our draft legislation is designed to modernise the law for the age of the internet and social media.
It is the culmination of three years of intensive study of the subject and reflects extensive public consultation.
Our recommendations are based on close engagement with stakeholders: members of the public, media organisations, authors, publishers, campaign groups and the legal profession.
This is not a part of the law that only lawyers should be interested in. Defamation law potentially affects everyone and getting it right is crucial for the type of society we want to be. With the phenomenal growth in use of the internet and social media it is possible for everyone to communicate far more easily and more widely than was the case in the past.
But faster and easier ways of communicating have thrown up new challenges for the law. The absence of editorial controls can sometimes allow reputations to be unfairly tarnished in the eyes of a mass audience.
Our modern law of defamation, therefore, has to strike the right balance between two values that sometimes pull in different directions – freedom of expression and protection of reputation.
We all cherish freedom of speech, but at the same time want to ensure that reputations are protected from being unfairly smeared. The law of defamation has a central part to play in safeguarding both these rights. It is important that fearless journalism can thrive so that the rich and powerful are held to account; at the same time the law must allow those who are falsely accused of wrongdoing to restore their reputations swiftly and at reasonable cost, if necessary through the courts.
We recommend that some old legal rules should be swept away; for example, we think it should no longer be possible to sue where a defamatory statement is made only to the person who is the subject of it – in that case there cannot realistically be any damage to reputation; and the purpose of the law is to protect reputation against false attacks.
We also propose that where a statement has not caused serious harm to reputation there should be no right to sue. We want to prevent defamation actions being used as a weapon to try to silence unwelcome criticism; the new media and small publishers can be especially vulnerable to this. So the courts will have stronger powers to strike out trivial or worthless claims at an early stage.
We consider that Scots law should explicitly recognise a defence of publication on a matter of public interest. This is important for investigative journalism.
Under the present law a person can allow three years to go by before suing for defamation. We think should be reduced to one year, although the courts would retain power to extend this when justified.
We propose that there should be a new ‘single publication’ rule; this means that the time limit for bringing a claim will not start afresh each time the same statement is downloaded by a new search on the internet.
We think the main defences to a defamation claim should be restated, making clear, among other things, that public authorities cannot bring cases.
It is our job to examine areas of Scots Law that need to be brought up to date and to make recommendations. It is now up to the Scottish Government to decide whether to implement those recommendations. By doing so they will put Scots Law on a modern footing and on a par with best international practice.
- scottish law commission January 10, 2018