Scottish Law Commission Reports on Defamation Law Reform
February 7, 2018
BY Emily Amirkhani
In its recent Report on Defamation, published on December 14, 2017, the Scottish Law Commission (SLC) says it aims to modernize and simplify Scots law regarding defamation and verbal injury “so as to ensure that it strikes the correct balance between the fundamental values of freedom of expression on the one hand and protection of reputation on the other.” A news release was issued the same day, highlighting some of the SLC’s key recommendations.
The report says the impetus for this project stemmed largely from the major reform of English and Welsh defamation law reflected in the Defamation Act 2013 (the 2013 Act). The Scottish Government decided not to extend the 2013 Act to Scotland, save for a few provisions related to academic and scientific privilege. However, respondents to a public consultation released by the SLC in May 2014 proposed a review of Scots defamation law to ensure it kept pace with England and Wales, particularly as it relates to technology, the internet, and social media. As a result, the SLC recommended to the Scottish Government that it examine Scots defamation law in light of the 2013 Act, and the government accepted.
The report was finalized with consideration of responses to the SLC’s Discussion Paper on Defamation (Discussion Paper), released in March 2016. It includes a draft Defamation and Malicious Publications (Scotland) Bill to codify some of the existing common law rules on defamation, although the SLC states in its Discussion Paper that it does not believe an entirely statutory regime is practical. The draft Bill was also the subject of public consultation in August 2017.
The report contains a total of 49 recommendations, aimed at reforming Scots defamation law in areas related to:
- third party publication requirements;
- proceedings brought by public authorities;
- the threshold for harm;
- codification of common law defences;
- proceedings against internet intermediaries;
- absolute and qualified privilege;
- remedies;
- limitation periods;
- jurisdiction;
- jury trials;
- defamation of the deceased; and
- verbal injury law.
These recommendations include lowering the limitation period to commence a defamation action from three years to one, increasing remedial powers for the courts, and limiting claims to those involving statements communicated to a third party. The report states the recommendations “would serve to improve and strengthen the law in a modern context” and would make the law “more accessible and easier to understand.”
Defamation law is also currently being reviewed in Canada. The Law Commission of Ontario (LCO) published its Consultation Paper on Defamation Law in the Internet Age in November 2017, calling for public comment on recommendations proposed to modernize Ontario’s laws on defamation. More information about the LCO’s project is available in our blog post, and on their project page. Public consultation is open until March 30, 2018.
