Reforming defamation law

The definition of what constitutes a defamatory statement has been set out in Scots legislation for the first time under reforms passed by the Scottish Parliament.

The Defamation and Malicious Publication (Scotland) Bill simplifies and modernises defamation law, while ensuring that a better balance is struck between freedom of expression and protecting someone’s reputation.

Community Safety Minister Ash Denham said:

“Parliament has backed this important legislation to modernise the law covering defamation. The existing laws have been spread across several statutes and areas of common law, some of which were decided more than 100 years ago.

“Clearly modern society communicates in vastly different ways, and specifically the speed and accessibility of social media has increased the potential for unfair damage to reputation. Defamation law can also potentially impact many more people than a generation ago.

“This Bill brings the law up to date and simplifies it in key areas, while striking an appropriate balance between freedom of expression and the protection from unfair damage to reputation.”

The Bill prevents defamation actions being brought against “secondary publishers” – those other than the authors, editors or commercial publishers of material containing defamatory statements – with certain exceptions, for example, where the harm caused by publication is materially increased because it has been republished to a much larger audience.

Other changes include explicitly recognising a defence of publication on a matter of public interest, and ensuring that a defamation action can only be brought if the published statement caused – or would be likely to cause – serious harm to the reputation of the person making a complaint.

Background

The legislation was developed from the 2017 Scottish Law Commission’s report on reforming defamation law.

Defamation and Malicious Publication (Scotland) Bill