Defamation law was reformed in England and Wales in 2013. In Scotland, the last time that defamation law was considered was 1996.
Given concerns about the restrictions on investigative journalism and the advances in technology, the internet and social media, the Justice Committee decided in 2017 to include evidence sessions on Scotland’s law on defamation in its work programme, in an effort to ensure that it was fit for the 21st Century.
In January 2018, the committee received a briefing from the Scottish Law Commission. Following that session with Lord Pentland, it was clear to the Justice Committee that defamation law in Scotland was decidedly in need of reform and the committee actively considered using its powers to introduce the necessary legislation. However, the process for committees to introduce legislation is complex; consequently, few bills are committee initiated and I believe that that area would benefit from review in the sixth session of the Scottish Parliament.
The committee therefore continued to press the Scottish Government on the need for defamation reform at the Conveners Group question session with the First Minister, and when it took evidence from the Cabinet Secretary for Justice.
Consequently, on 12 June 2018, when the then committee members held a roundtable discussion with key stakeholders that included representatives from the BBC, the LSS, academia and Scottish PEN, we were able to discuss not just the SLC proposals for a bill but—even more welcome—the Scottish Government’s commitment and confirmation that it would introduce a defamation bill that would be based on those proposals.
The aims of the bill are to strike an appropriate balance between freedom of expression and protection of reputation, to clarify defamation law and to make it more easily accessible and understood. More specifically, the serious harm test states that in order to bring forward defamation proceedings,
“the publication of the statement” must “have caused”, or be
“likely to cause serious harm to ... reputation.”
The test seeks to prevent powerful interests from using defamation law as a tactic or weapon to try to silence unwelcome criticism; to discourage frivolous or vexatious actions; and to allow time for the court to dismiss actions earlier in the process, therefore freeing up valuable court time.