Introduction
The Justice Committee will scrutinise the Defamation and Malicious Publication Bill in the coming months. The Committee is therefore asking for views on the Bill.
According to the Scottish Government, the existing law of defamation in Scotland is piecemeal in nature, scattered across aged common law rules and several statutes. The last substantive changes to the law in Scotland were made in 1996 and, in the view of the government, the law is no longer fit for modern day purposes.
The Bill seeks to modernise and simplify the law of defamation (and the related action of malicious publication) in Scotland in order to:
- strike a balance on how the competing interests of freedom of expression and protection of individual reputation are dealt with; and
- clarify the law and improve its accessibility.
Please note that in most cases your written submission will be published on the Scottish Parliament's website and may be quoted in the Committee's report or in Committee meetings (which are in public and broadcasted).
If you wish to request that your submission be published without your name, please contact the clerks by emailing [email protected] or telephoning 0131 348 5047.
Before making a submission, please read our privacy notice about submitting your views to a committee. This tells you about how we process your personal data.
Background to the Bill
The Bill was introduced by the Scottish Government on 2 December 2019. A copy of the Bill and the accompanying documents can be found here. The Scottish Government has also produced the following impact assessments for the Bill:
The Bill is in 3 Parts. Part 1 of the Bill amends the law of defamation and makes provision in relation to:
- actionability of defamatory statements and restrictions on bringing proceedings;
- defences;
- absolute and qualified privilege;
- offers to make amends;
- jurisdiction, and;
- the removal of the presumption that defamation proceedings are to be tried by jury.
Part 1 provides a new definition of defamation and introduces a threshold test of ‘serious harm’. The Bill also places certain key elements of Scots common law on defamation on a statutory basis. The Bill covers defamation actions relating to public authorities and business interests.
Part 2 makes a number of provisions to replace common law verbal injuries with three new statutory delicts relating to malicious publication.
The Bill would (in Part 3) reduce the time period for bringing a defamation action from three years to one year and introduce a rule that the clock starts running from the first occasion a statement is published. It would also set out a number of remedies that a court will have the power to order.
How to submit your views
The Committee welcomes your views on any issue relating to the Bill. This could include views on any of the following areas or questions:
1. Do you think the Bill strikes the right balance between freedom of expression and the protection of individual reputation?
2. Do you think the Bill clarifies the law and improves its accessibility?
3. Do you have any views on the proposed definition of defamation and should this be defined in statute?
4. What are your views on the proposed ‘serious harm test’? Should this follow the meaning applied by the UK Supreme Court to the equivalent provision in English law (section 1 of the Defamation Act 2013)?
5. Do you have views on the Bill in relation to the restrictions on raising defamation actions by public authorities and the Bill’s provisions relating to businesses?
6. Do you have views on the Bills provisions covering a single publication rule and secondary publishers?
7. What are your views on the proposed reduction of the limitation period for actions from three years to one year, and the other provisions covering limitation periods?
8. Do you think the range of remedies suggested in the Bill for defamation and malicious publication are sufficient or should they be improved?
9. What are your views on the proposed defences (truth, honest opinion etc.) in relation to actions on defamation and malicious publication?
10. Do you have views on the provision in the Bill relating to absolute and qualified privilege?
11. What is your opinion on the proposal that there will be a presumption against a jury trial in defamation actions?
12. The Bill does not deal specifically with issues created by the ease of internet publication (although a lot of its provisions will be relevant to such cases). Are you content with this approach?
13. Are there other provisions you would have liked to have seen in the Bill or other improvements that should have been made to the law on defamation and malicious publication?
Your response does not need to cover all of these areas and you can focus on those that are relevant to you or your organisation. Also, you are welcome to cover other areas in your submission that you think are relevant to the Committee’s consideration of the Bill.
Please note that the Justice Committee does not involve itself in individual cases or complaints. While you may draw on any of your own personal experiences, your submission should focus on issues relating to the Bill. There are a few situations where we may not choose to publish your evidence or have to edit it before publication for legal reasons, including data protection and defamation.
The call for views closed on Friday 13 March. Due to the time required to process and analyse evidence, late submissions will only be accepted with the agreement of the clerk.
We welcome written views in English, Gaelic, Scots or any other language. If possible, we would be grateful if you could keep your submission to a maximum of 4 to 6 sides of A4. Please send your submission by email to:
[email protected]
You can also send a hard copy of your submission to:
Justice Committee
Scottish Parliament
Edinburgh
EH99 1SP
Next steps
The Committee expects to begin taking oral evidence on the Bill in March 2020.
Contact
If you have any questions relating to this call for views or the Committee’s scrutiny of the Bill, please email [email protected] or contact the clerks to the Committee on 0131 348 5047.