PROPOSED changes to Scotland’s libel laws could have the unintended consequence of killing off the small number of defamation cases that are brought in the country and, by extension, the development of case law too.

The Scottish Law Commission unveiled its draft defamation bill last week, with commission president Lord Pentland - a Court of Session judge renowned for his expertise in libel law - noting the importance of striking a balance between “the principles of freedom of expression and protection of reputation”.

However, Scottish defamation lawyers have warned that the proposals, if adopted by the Scottish Government, would simply align Scots law with that of England and Wales, wiping out the motivation for bringing cases north of the Border in the process.

Campbell Deane of law firm Bannatyne Kirkwood Frame & Co said that while some of the proposals – such as shortening the limitation period from three years to one and giving courts the power to order that defamatory materials are removed from the internet – “make perfect sense”, the introduction of a serious-harm test does not.

In its report on the proposals the commission said the test was being introduced so that “where a statement has not caused serious harm to reputation there should be no right to sue”.

“This is to prevent defamation actions being used as a weapon by the rich and powerful to try to silence unwelcome criticism,” it continued.

For Mr Deane, though, the test would put Scotland at a disadvantage.

“To harmonise the jurisdictions and bring into play that we have exactly the same test as England, which has now had four years of running those arguments, we are now four years behind them,” he said.

“Apart from saying come here because we are cheap as chips, there’s now no argument to come to Scotland.

“England has conditional fee arrangements and higher awards so it would be bordering on professional negligence if a client comes in and says where should I sue and you don’t say go to England.

“It will lead to the death of defamation litigation in Scotland. It will just die.”

According to the commission the driver for the proposed changes was the need to “modernise the law for the age of the internet and social media”.

In particular, the draft bill is seeking to introduce a single-publication rule to avoid the limitation period being artificially extended each time an article is read online. It is also looking to legislate against so-called secondary publishers - those who retweet someone else’s defamatory statements - from also being held liable.

Duncan Hamilton, an advocate at Arnot Manderson Advocates and a former SNP MSP, said that in this respect “there’s a lot in the report that’s capable of support and is good”.

However, he agreed with Mr Deane that following England’s lead on serious harm is likely to damage the development of Scotland’s own defamation law in the longer term.

“I don’t see how having a pretty much off-the-shelf adoption of what is in place south of the Border is necessarily something that’s going to lead to the development of Scots law or greater economic development,” he said.

“The serious-harm test was introduced in England because there were too many frivolous defamation cases - as a means of sifting out the cases they put in the serious-harm test.

“In Scotland we have exactly the opposite problem – we have too few cases.

“It seems almost the reverse of what devolution was designed to achieve: Scottish solutions to Scottish problems.

“There are aspects that the commission and the Government in due course will want to assess in terms of whether it’s right for Scotland.”

Although the bill proposes a jurisdictional threshold that would mean “a case will only be heard here if Scotland is clearly the most appropriate place for hearing it”, Mr Deane said the internet has made it easier for litigants to bypass such specifications.

“If a news story is online and somebody clicks on it in Birmingham they can sue in Birmingham,” he said. “It might be about an Aberdeen footballer in a fight in a bar in Aberdeen, but the [publication] can still be sued in Birmingham.”

This, said Mr Hamilton, is of particular concern because already “there aren’t enough cases to develop the law” in Scotland.

“Most of the case law from Scotland is from 1913,” he said.

For Dr Stephen Bogle, a lecturer in private law at the University of Glasgow, this could ultimately play into fears about the future of Scots law.

“Scots law has been under the shadow of English law for centuries,” he said.

“There’s a much bigger issue about whether Scots law will be able to continue in the next 50 or so years, for various reasons.

“We’ve been in this state of anxiety for hundreds of years because we are a small jurisdiction and are always concerned our law is dying out.”