Review of Scottish defamation law launched by Scottish Government

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A consultation on potential reforms of defamation law in Scotland has been launched by the Scottish Government.

The changes being considered are intended to take account of the rapid way information is now shared as a result of social media, while striking a balance between the right to free speech and the right to a private life – which covers reputation.

Among the changes being considered are introducing a threshold of showing actual or likely ‘serious harm’ to reputation for a defamation case to go ahead and lowering the time limit on defamation cases from three years to one.

A person or company can sue for defamation if someone has made false allegations about them that could harm their reputation.

However, there are fears that the threat of legal action can be sometimes be used to silence legitimate criticism and free speech.

Following concerns raised by writers’ organisation Scottish PEN that even the threat of legal action can have a “chilling effect” on freedom of expression, the consultation considers whether there should be legal action available against “unjustified threats” of a defamation case.

The consultation also asks whether large private companies should still be allowed to pursue defamation cases, with options of limiting it to individuals and micro businesses employing fewer than 10 people.

The consultation follows a report by the Scottish Law Commission in December 2017 which made 49 recommendations to modernise and simplify the defamation law in Scotland.

In England and Wales new defamation legislation was passed in 2013, but in Scotland it has not been updated for over 20 years.

Launching the consultation, minister for community safety Ash Denham said: “Defamation law potentially affects everyone and it is crucial that we ensure the law is fit for modern Scotland.

“The enormous growth in the use of social media presents new challenges and means that defamatory communication is becoming increasingly instant and common.

“It is crucial that we strike the right balance between the two values that often pull in opposing directions – freedom of expression and the protection of an individual’s reputation.

“Consultation is an essential part of the process and members of the public have an important part to play in reforming the law on defamation and ensuring it is fit for the future.”

The Scottish Parliament’s Justice Committee, which held evidence session on defamation law early last year, welcomed the consultation.

Justice Committee convener Margaret Mitchell MSP said: “The Justice Committee has pressed both the First Minister and her government to review defamation laws.

“Therefore, the committee very much welcomes this consultation, particularly as it will take into account how social media has developed.

“In the hearings our committee has held, there was a strong consensus that Scotland needs to update its statute books for the era of online publishing and comment.

“We look forward to working with the Government as its consultation on defamation progresses.

“The Justice Committee will support efforts to strike the right balance between free, healthy public debate and protecting individuals.”