20 December 2019

On 3 November 2019, the Defamation and Malicious Publication (Scotland) Bill was introduced to the Scottish Parliament. The Bill is set to reform defamation law in Scotland which has remained largely unchanged for many years.

In Scotland, defamation actions (which cover both written and spoken statements) are still largely based on common law without any legislative framework. The Bill is set to change that, but the underlying test for defamation remains the same – the statement made must be false; and it must lower the individual about whom the comment is made in the estimation of the ordinary person.

Of course, what the ordinary person may consider socially acceptable has changed significantly over the years and as much of society becomes more liberal, comments which would have previously been considered to be defamatory are no longer so.

While the Bill does not attempt to define what might lower an individual in the estimation of an ordinary person, it does propose some welcome modernisations to law. In particular, the Bill provides that claims for defamation can no longer be made where the defamatory statement is not communicated to a third party.

The Bill also introduces the “serious harm” test which requires the pursuer to demonstrate that the comments made either have or are likely to cause serious harm to the individual. For limited companies and other non-natural persons, this will entail demonstrating that there either has been or is likely to be serious financial loss. The period in which court proceedings for defamation can be brought has also been reduced from 3 years to 1.

It is interesting to note that the Bill makes no specific provision for online defamation. In recent years, the number of online defamation cases has grown exponentially with claims for online defamation now making up the majority of the claims which we see being raised. Defamatory comments made online also raise interesting questions of jurisdiction as comments made by a party based in one part of the world can now be accessed globally within a matter of seconds of content being posted.

That issue was highlighted earlier this year when Vernon Unsworth was unsuccessful in pursuing a claim against Elon Musk for comments made on social media referring to Mr Unsworth as “Pedo Guy”. The defence advanced by Mr Musk’s legal team included arguments that Mr Musk had not been serious about the allegation made against Mr Unsworth as demonstrated by removal of the offending tweet and that the comments made were designed to insult Mr Unsworth rather than to level any serious accusation against him.

Following trial in California, the jury found that the comments made by Mr Musk were not defamatory. For many, the decision will no doubt sound alarm bells that what, on the face of it, appears to be a very serious allegation is not considered to be defamatory. Contrary to the old adage, some names can hurt...

Season’s greetings!

Contacts Lynn Richmond, Partner lyr@bto.co.uk T: 0131 222 2939