Defamation in the Digital Age
by Ken Caldwell
In the often dull world of civil litigation nothing captures the interest of the public more than a high profile defamation action such as Tommy Sheridan’s epic battle with the News of the World. But in Scotland, our law on Defamation has evolved through case law dating back to the 19th century and is badly in need of reform to keep pace with the demands of the digital age and the advent of the “keyboard warrior”.
In December 2017 the Scottish Law Commission, chaired by Lord Pentland, published its Report on Defamation. The Report, in full, can be found here. It recognises the need to strike the right balance between freedom of expression and protection of reputation. The Report runs to 161 pages and contains a total of 49 recommendations. Here are some of the highlights:-
- The Court should have stronger and clearer powers to order removal of defamatory material from the internet with the introduction of “take-down” orders.
- To succeed in a claim it will be necessary to establish serious harm to reputation. The serious harm threshold is intended to allow Courts to strike out trivial or vexatious claims at an early stage.
- It should only be possible to bring proceedings against the original author of the defamatory statement and therefore a claim will no longer be automatically available against anyone who repeats the statement.
- It should no longer be possible to sue if the defamatory statement is made only to the person that the statement relates to.
- The law should explicitly recognise a defence of publication on a matter of public interest. This is important for investigative journalism
- The period for making a claim should be reduced from 3 years to 1 year.
The Scottish Government will now decide whether to implement the recommendations of the Commission and therefore watch this space.
In the meantime, our advice to would be keyboard warriors remains-post in haste, repent at leisure!