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  5. Advocates call for more defamation business
Lord Pentland: Chair of the Scottish Law Commission
Lord Pentland: Chair of the Scottish Law Commission who is examining defamation reform

Most of us regard the law as the way a civilised society remains just that; laying down standards of conduct, to ensure agreements are honoured, to settle arguments in a calm and rational manner and, ultimately, to punish those who refuse to behave according to the rules.

In covering every area of human activity and conflict, the law can be a complex business and it’s fair that lawyers should be as properly rewarded for their services as any other profession. However, the building of a legal business should be on the basis of excellent service and reputation, and it would be an extraordinary situation if lawyers were to lobby government to either maintain or change laws just so they could make more money.

But that is effectively what the Faculty of Advocates has just done in its response to the Scottish Law Commission’s discussion paper on defamation reform, in which it opposes the introduction of a “serious harm” test for claimants before action can be taken, similar to that introduced in England under the 2013 Defamation Act.

The Faculty argues that by making it easier to sue for defamation in Scotland it would create expertise and encourage the growth of business in this area.

It stated: “The Faculty of Advocates shares the view of the Scottish Government that the legal sector in Scotland should be assisted in contributing to the economic growth of the nation.

“The current low volume of cases accordingly undermines not only the development of the law but diminishes the prospect of Scotland being taken seriously as a centre of excellence in matters relating to defamation.”

And it concludes: “In England there was a concern that there were too many cases whilst in Scotland there is uniform acceptance that there are too few.”

There may be uniform acceptance in the Faculty  there are too few, but this is a small country with a small legal jurisdiction and the Faculty presents no evidence to suggest that real harm is being caused to people by defamatory statements which go either unreported or unpunished.

By extension, the Faculty’s position seems to be that if people are not breaking the law and reducing the opportunity for lawyers to attract clients, then the law should be changed. More cases should be created, it would appear, for the sole purpose of providing lawyers with work.

The Scottish PEN, which is campaigning for defamation reform, pointed out that encouraging defamation actions to boost growth “threatens to create a financial imperative towards limiting freedom of expression.

“Seeing this as an economic driver alone, ignores the impact of defamation laws on civil society, media outlets, bloggers, scientific research, social media users and everyone across the country who everyday contribute to the national debate on key issues of public interest.”

They added: “Laws that protect freedom of expression protect everyone and we believe this approach should sit at the heart of any reforms that are taken forward. Encouraging more defamation actions, and limiting reform to ensure this takes place, only benefits vested interests that do not speak for the diverse range of opinions and backgrounds across Scotland.”

The Faculty also opposes any move to change the rule which means that a damaging statement does not have to be communicated to a third party to be defamatory, as has been the case in England for some time, because of the growth of electronic messaging.

It says: “The ease and frequency of direct, private communication has massively increased in recent years. The law has often struggled to keep pace with that increased electronic communication. In other words, we wonder whether the principle might be something which (after a long period of relative irrelevance) is now more relevant than it has been.”

This might be true if defamation  always to be regarded as a potential criminal offence requiring punishment in the way that it confuses causing damage with causing anger. If it became known that there was money to be had from every Facebook or Instagram message which upset someone, then that certainly would be good for Faculty members’ businesses.

Regarding a lack of cases as evidence of failure is an odd way of looking at an area of law where we know many things go unpublished because of the fear of action. And not unusually  for people who spend their lives in courts, they underestimate how traumatic even just the prospect of legal action can be for those on the end of it.

The Faculty has certainly ensured that SLC chair Lord Pentland has a wide breadth of views to consider as he decides how to take his reform process forward. I wouldn’t like to second guess the views of someone as expert in this field as Lord Pentland, but I’d wager he’d regard a law in which a key principle was making money for the wigs as somewhat flawed.

  • SNS director John McLellan was asked to give the industry’s views on defamation reform as part of the SLC’s defamation reform working party.