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  5. Reform sets out to defuse legal minefield of Scots defamation law
Scottish Law Commission chair Lord Pentland

The introduction of the 2013 Defamation Act a year ago was heralded as a welcome attempt to bring sense into what had become a legal minefield.

Driven largely by random rulings and informed guess work by legal advisers, this hideously difficult area of law could not keep pace with the rate of change in the confusion of the fast-evolving digital age.

For newspapers and the minefield of online comment, the Act finally made it clear publishers were not liable for defamatory comments they did not post themselves even if comment streams were pre-moderated.

It also established the crucial principle that re-publication from an electronic archive of a defamatory story, for which a settlement had previously been reached, did not constitute a repeat of the libel and did not therefore trigger new proceedings.

And with the growth of conditional fee arrangements alongside viral re-publication on digital networks and social media, defamation actions didn’t have to go to court to be hugely expensive for publishers on the receiving end of claims. So the introduction of a “serious harm” test promised welcome relief from spurious claims.

Except the 2013 Act was never adopted in Scotland and so these protections do not technically exist here.

For example, if a libellous story in a long-since forgotten back issue of a Scottish title was re-published from a digital archive, it is possible the original publisher could be successfully sued if the story was read by someone else.

It also means a publisher in Scotland still has direct responsibility for anonymous online comments made by members of the public, as argued in Lord Robertson’s 2006 case against the Sunday Herald.

But the 2013 Act was not a one-way street. It also introduced the requirement for the online publishers of user generated content to enable complainants to be able to settle directly with the writer, meaning publishers need to be able to identify those posting damaging comment.

The new legislation was a victory for pressure group English PEN and their Campaign for Libel Reform, and so last Autumn the Scottish PEN was launched to bring about similar change here.

It hasn’t taken long for the message to get through, because last Friday the Scottish Law Commission announced its ninth programme of reform would focus on defamation, and in particular address the complexities of the digital age.

Commission chairman Lord Pentland said a key aim was “to ensure that the law of defamation in Scotland is fit for the internet age.”

He continued: “Freedom of speech and the right to privacy are fundamental values in our society; the law of defamation has a central part to play in safeguarding both these rights.”

In the year since the passing of the Defamation Act, there have been few tests of the new legislation and therefore no way of knowing just how wide the difference between the Scots Law approach to defamation and the rest of the UK has become.

The Act attempted to codify the public interest test and to replace the so-called “Reynolds defence” of responsible journalism as defined by Lord Nicholls in 2001, something never fully tested in Scotland.   It also provides the defence of honest opinion and, reflecting the solid Scots Law principle of “Veritas”, that of absolute truth.

After an initial period of consultation, the Scottish Law Commissioners laid out their position in last week’s launch document:

“We consider it to be essential that our law takes full account of the rapid pace of technological change, which has transformed communications in the internet age,” they said, not without understatement.

While conclusions cannot be drawn as yet, their intentions are already plain: “The general view was that Scots law on defamation was out of date,” they added.

A further period of investigation will now follow and as a member of the Scottish Libel Reform campaign’s advisory board the Scottish Newspaper Society will play a full part.

It is hoped changes can in place within the next three years, but if Scots law in this area is already out of date now, who knows what the digital landscape will be like by 2018.