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by Jenni Davidson
25 March 2021
In context: Defamation and Malicious Publication (Scotland) Bill

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In context: Defamation and Malicious Publication (Scotland) Bill

The Defamation and Malicious Publication (Scotland) Bill was passed by MSPs on 2 March. The purpose of the bill was to simplify and modernise defamation law to ensure it is “fit for the 21st century” and one of the key aims was to provide greater protection for freedom of expression while still allowing people to defend their reputation

What is defamation?

Defamation involves making public claims about a person or an organisation that could harm their reputation. The bill sets out clearly for the first time a definition of defamation in Scots law. In the case of an individual, to have a legal case they have to show “serious harm” has been caused or is likely to be caused to their reputation as a result of what was said. In the case of companies, they must show that they have or are likely to suffer harm in the form of serious financial losses. It also confirms that public bodies cannot sue for defamation. This is because of the importance of the public being able to scrutinise and criticise them.

It is important to reiterate why the law of defamation is significant. The law deals with two competing fundamental human rights: freedom of expression and protection of reputation. As lawmakers, we have to find an appropriate balance between the two, and I believe that the bill gets the balance right. Overall, the aim has been to make sure that our law of defamation is fit for the 21st century, with a clear and accessible framework that balances those two rights – Ash Denham, Minister for Community Safety

What does the bill cover?

As well as defining defamation and setting out the thresholds for legal action, the bill also sets out the defences that can be used in a defamation case: truth (which must be proved), public interest and honest opinion (which must be based on facts), as well as the protection of absolute or qualified privilege, which covers statements made in certain contexts such as court or an academic journal. There are also some additional remedies, as well as a new civil wrong called malicious publication.

What’s new in this bill?

One of the key updates was to take account of digital publishing, which was not covered by previous defamation legislation. The bill makes clear that someone who is not the author, editor, primary publisher or decision-maker should not be liable for defamatory content, so, for example, simply hosting the content as a service provider or linking to it, liking it or retweeting it would not make you responsible for it.

The bill also states that for a successful defamation action to be raised, the statement must be published to someone other than the person who is the subject of it and it changes the time limit for bringing defamation and malicious publication cases so that court action must usually be raised within one year of the first publication of the material.

Other changes include the replacement of the common law of verbal injury with a new category of civil wrong called malicious publication, covering material that is not defamatory but could harm business interests, such as allegations that goods are of poor quality. To be successful a pursuer would have to prove that a statement is both known to be false or “recklessly indifferent to the truth” and was made maliciously.

There are new options for resolving cases too. The person accused of defamation can offer to make amends rather than continue the case. Remedies can include the court judgment being published, an agreed statement being made in open court or the court can require the defamatory material be removed or distribution cease, which would help in cases where the defender is not in control of its publication or distribution, or a notice be displayed online saying that the statement is subject to defamation proceedings. The latter can happen while the case is ongoing.

Was there anything contentious in the bill?

There was a lot of discussion about the serious harm threshold, with some feeling it would give people confidence to reject tenuous threats of legal action and prevent a chilling effect on free speech, while others, particularly from the legal profession, felt this added an unnecessary layer of complexity and that the courts were able to deal with trivial claims. The serious harm threshold was backed by MSPs in the final version of the legislation.

Some concerns were also raised about whether malicious publication had a lower threshold than defamation, so it was tightened to require the statement to be both false and malicious. There were also concerns raised in the application of the exemption for public bodies with regards to bodies that carried out public functions but were not themselves public bodies, such as universities or third sector organisations delivering services of behalf of councils.

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