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Scottish Defamation Law Update for the Social Media Age

Brian Baglow

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DoS

After a three year investigation, the Scottish Law Commission has suggested 49 recommendations to update the country’s 21 year old defamation laws.

A new report from the Scottish Law Commission is recommending a ‘radical’ update to the country’s defamation laws to take into account the rise of online communication and social media. The last revision of the laws took place in 1996, where social media and smartphones didn’t exist.

The commission says the changes would bring Scots law up to date, but would still protect freedom of expression. It has published a draft bill for MSPs to consider.

The SLC investigation, which consulted human rights and media groups, reported that the explosive growth in social media makes it easier than ever for people to communicate more widely. The commission chairman, Court of Session judge Lord Pentland, said without legal controls, defamatory statements can spread swiftly.

“Defamation law potentially affects everyone and getting it right is crucial for the type of society we want to live in. 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.”

Fearless Journalism

But the commission recognises new laws must strike a balance between freedom of expression and protecting reputations. The report recommends a defence of ‘public interest’ should be be enshrined, to allow “fearless journalism” to thrive. A new rule, over the term ‘publication’ was also recommended, meaning only the originator of a statement could be sued. Anyone retweeting or sharing an existing statement would not be at risk.

Other recommendations in the report include:

  • removing the possibility of suing for defamation where a statement in made to a single person
  • removing the right to sue where no serious harm to reputation has occurred
  • shortening the timescale for defamation action from three years to one year
  • a new ‘single publication’ rule which means 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

Serious Harm

The commission said the introduction of a ‘serious harm’ test would be aimed at preventing “defamation actions being used as a weapon by the rich and powerful to try to silence unwelcome criticism.”

Under the planned reforms, the one year limitation period would bring defamation claims in Scotland into line with England and Wales for claims brought under the Defamation Act 2013.

“We take the view that to reduce the length of the limitation period would strike a fairer balance between the two interests with which the law of defamation is principally concerned, protection of reputation and freedom of expression,” the Scottish Law Commission said. “To reduce the length of the limitation period would also, we think, be consistent with the thinking underlying introduction of a single publication rule, namely preventing the threat of defamation proceedings from subsisting over a protracted period.”

According to the BBC a Scottish government spokesman said: “The Scottish Government is grateful for the work by the Scottish Law Commission in examining defamation law. We welcome the publication of the report and will now carefully consider the recommendations made.”

 

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Brian Baglow

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