Defamation law in Scotland: shifting the balance

The Times, 8th August 2022.

Today, the Defamation and Malicious Publication (Scotland) Act 2021 comes into force. These reforms represent the most radical changes to defamation law in three decades.

There have been a greater number of high-profile defamation cases in Scotland in recent years but the real mischief of our unreformed defamation law often went unseen. Lawyered-up people did not need to push their threats to a full hearing to exert pressure on publishers and social media critics: a lawyer’s letter often did the trick.

Even if they are sure their story is substantially true, the media are often less confident that they can bear the cost of proving it in court. This way truth is repressed, stories spiked and reporting agendas altered, not because of the public interest but due to private muscle.

The act aims to address this.

Defamation actions can now only be launched if “serious harm” to reputation is established. If the pursuer is a company, this means “serious financial loss”. This new threshold is intended to provide greater scope for courts to kick out frivolous cases but it should also give anyone receiving vexatious threats more confidence to reject them.

Secondary publishers also benefit from new protections. Until today if a newspaper carried a defamatory story, anyone sharing the tale on Twitter was fair game in court. Every retweet created a new cause of action. Now, proceedings must be brought against the original author, editor or publisher.

Under the old law, litigants had three years to start formal court processes. Now they have 12 months to make good on their threats. Time enough to get their briefs together but not so long as to have a chilling effect on further reporting.

The act also strengthens the defences available to outlets accused of defamation. Veritas becomes truth, protecting publishers who can prove that their reports are substantially true. “Fair comment” has been reframed as “honest opinion” – better securing the free exchange of ideas and polemic in newspaper comment pages and online.

Most important is the new “public interest” defence. This gives publishers an answer to slander suits if they publish information they “reasonably believed was in the public interest”, rather than having to rely on unpredictable legal ideas about what constitutes responsible journalism.

The law of defamation should be about the legitimate protection of reputation against falsehood, not a tool to stop the truth coming out. This new act shifts the balance in favour of free expression.