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Features
Defamation: why is the law changing in Scotland?
by Kirsty Hogg, 18/05/21

In early March 2021, all eyes were on the Scottish Parliament as Nicola Sturgeon was scrutinised for the handling of sexual harassment complaints. Amidst the headlines, it was easy to miss the unanimous passing of the Defamation and Malicious Publication (Scotland) Bill. This landmark piece of legislation aims to modernise and simplify the law of defamation in Scotland, leaving many to ask: ‘What is defamation? And why is the law changing?’

Defamation is the civil wrong committed when a person makes a false statement that damages someone’s reputation. The offended party can raise an action in court to claim money from the author, editor or publisher of the statement for the harm it caused. The law of defamation needs to balance the freedom of expression on one hand and the protection of a person’s reputation on the other.

While the law in England and Wales is regulated by the Defamation Act 2013, the law in Scotland is spread across a confusing collection of statutes and judicial decisions, some of which date from over 100 years ago. The new bill puts the law of defamation into a ‘user-friendly’ statute, making some changes to the law as it currently stands. But why was it necessary to do this? 

Opponents of reform highlight that defamation cases rarely end up in Scottish courts. However, defamation law arguably has its greatest impact outside of the courtroom. It is felt most by journalists in newsrooms and, increasingly, everyday social media users in their own homes. 

Imagine a journalist has written an investigative piece that criticises a big company. The company’s lawyers write to the journalist, threatening to sue for defamation. Access to legal aid is limited. If the journalist doesn’t have enough money to defend themselves in an expensive court case, they might be inclined to take their article down or refrain from criticising the same company in the future, even if what they wrote wasn’t defamatory in the first place. 

This is ‘the chilling effect,’ where the law of defamation allows those with money – and something to hide – to control what information is out there. Concerns over the prevalence of the ‘chilling effect’ have grown over recent years, as an increasing number of journalists write for smaller publications or freelance, lacking the financial and legal support of the big media corporations that traditionally dominated mainstream media. 

The new law seeks to reduce this hidden regulation of the press by introducing higher thresholds of harm that must be passed before someone can sue for defamation. The statement must cause ‘serious harm’ to an individual’s reputation, or ‘significant financial loss’ to a company. These new thresholds aim for the law to strike a better balance between the protection of reputation and the freedom of expression. 

The bill introduces other changes to bring the law up to date in the digital age of social media. Let’s go back to the example of the journalist’s article about the big company. Imagine that you read the article online and pressed ‘share’ on Facebook, or ‘retweet’ on Twitter. Maybe you just pressed ‘like’ on Instagram. If the article does in fact include a defamatory statement, the big company could sue not only the journalist, editor and publisher of the article, but they could also sue you as a ‘secondary publisher’ of the defamatory statement. 

Under the new law, secondary publishers can’t be sued for defamation, unless, for example, they are a celebrity with a big audience and their republishing of the article materially increased the harm suffered. 

The bill also introduces a new framework of defences, remedies and time limits for raising an action. These changes, together with the higher threshold for harm and the limited liability of secondary publishers mark a huge reform of defamation law.  

While the old law was designed for a time when all our journalism came from big tabloids and broadcasters, the new law recognises that today, we are all journalists, editors and publishers. We can share our opinions – nasty or nice – with the click of a button, putting everyone at a greater risk of being both the perpetrator and victim of a defamatory statement. Defamation law exists to protect the freedom of expression and prevent unfair damage to reputation. The law is changing in an attempt to strike the balance between these two competing interests more successfully in modern Scotland.

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