The Scottish Law Commission is Scotland’s independent law reform body. Our task is to consider areas of Scots law that need to be brought up to date. One of our current projects is to examine the law of defamation. We chose the project because stakeholders told us that this is an area that is in need of reform.

The calls for reform arose because of important changes made to the law of England and Wales in 2013. These were intended to tackle so-called “libel tourism”; that involves claims being brought in the English courts on the back of minimal publication there.

This was said to be producing a chilling effect on freedom of speech. Another factor was that many of the issues that arise in this branch of the law have a cross-border dimension. Publishers and media organisations often operate on a UK wide basis; it can create practical difficulties when there are different rules in different parts of the United Kingdom.

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The reforms in the Defamation Act 2013 restated in modern form many of the most important principles. For example, the key defences of truth, fair comment and publication on a matter of public interest have been clarified.

Previously the law on these matters was to be found in a large number of cases decided by the courts over a period of many years. In Scotland the law on these topics is still mainly based on case law, not all of which is consistent.

 

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Background: Why the Herald is campaigning for defamation reform.

It is important that the law is easily accessible and written in a modern way that can be easily understood. Except for a small number of technical provisions, the 2013 Act does not extend to Scotland. We are now taking the opportunity to consider Scots law in the light of the changes made by the 2013. With that in mind we have also examined the law in a number of other countries.

The law of defamation is not only of interest and importance to newspapers, broadcasters and commercial publishers.

Background: National Union of Journalists and newspaper industry lobby both back reform.

With the phenomenal growth in the use of social media and the internet many people now communicate more openly and rapidly on a whole range of issues to a much greater extent than was previously possible.

Background: The defamation threat to Scotland's new media

The key purpose of defamation law is to strike the right balance between freedom of speech and protection of the reputation of the individual.

These are fundamental values in our society and there is inevitably a tension between them. The law of defamation has a central part to play in safeguarding both these rights. So this is an area of the law that potentially affects everyone.

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We have published a discussion paper on the subject of defamation law. It is available on our website http://www.scotlawcom.gov.uk/. You can also access it via our twitter account. The paper explains the Scots law position in key areas and examines possible improvements.

It discusses, for example, whether there should be a new threshold test so that a claim can be brought only where a publication has caused a certain level of harm to a claimant’s reputation. This might help to filter out claims where very little is at stake.

The paper also considers the difficult question of where responsibility for publication of defamatory material online should lie. We have looked too at whether the courts should be given power to order that a summary of the court’s judgement should be printed by a newspaper or broadcaster which has been found to have defamed someone.

We have considered if the courts should be given power to order removal of a defamatory statement from a website.

We have examined whether it should be possible for defamation claims to be brought where the reputation of a deceased person has been unfairly attacked after his or her death. At present this is not possible. There are arguments that can be made in favour of and against permitting this. The paper sets these out.

The paper is intended to provide a framework for discussion and debate. We would like to hear the views of as many people as possible on any or all of the questions asked. We will consider carefully every response. We will then prepare a report for the Scottish Ministers containing recommendations for reform and a draft of any legislation we think necessary.

Lord Pentland, Paul Cullen, pictured below, is chairman of the Scottish Law Commission, one of Scotland's most senior judges and a former solicitor general of Scotland

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