Defamation and Malicious Publication (Scotland) Bill

Author: Angus Evans and Abigail Bremner

PDF Published: Wednesday 11 Mar 2020 (SB 20-22)

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Overview
Report

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Overview
Report
- The main issues
- Terminology
- The Bill - important dates and documents
- What are the Bill's main objectives?
- Balancing human rights
- What is the background to the Bill?
  - Reform in England and Wales
  - Most of the English reforms were not followed in Scotland
  - Scottish Law Commission review
  - Justice Committee work and Scottish Government consultation
- What exactly are defamation and verbal injury?
- Defamation - what are the sources of law?
- Online content and free speech
  - The current law limits the liability of internet intermediaries for defamation
  - The "take-down" procedure in England and Wales
  - The SLC recommendations for online content
- Defamation - summary of the main legal principles
  - How is defamation defined in law?
  - The presumptions of falsehood and malice - there is no need for intention to defame
  - No need for communication to third parties
  - No threshold for harm before court action for defamation can be raised
  - Who can bring a defamation action?
  - Which courts can deal with defamation actions?
  - Cut-off periods for actions and the multiple publication rule
  - What costs are involved in bringing and defending defamation actions?
  - What are the defences to a defamation action?
    
    Truth or "veritas"
    
    Fair comment
    
    Public interest
    
    Absolute and qualified privilege
    
    Absolute privilege
    
    Qualified Privilege
    
    Internet intermediaries
  - Defamation - what legal remedies exist?
- Defamation - what would the Bill change?
  - Statutory definition of defamation
  - Need for communication to a third party
  - Introduction of a serious harm threshold
  - Bodies trading for profit and serious harm
  - Single publication rule and one year limitation period
  - Public authorities
  - Secondary publishers and internet intermediaries
  - Defences
  - Privileged publication
  - Remedies
  - Jurisdiction
  - Defamation of deceased people
- Verbal injury - what are the main legal principles?
- Verbal injury - what would the Bill change?
- Brexit
- The main issues
- Terminology
- The Bill - important dates and documents
- What are the Bill's main objectives?
- Balancing human rights
- What is the background to the Bill?
- What exactly are defamation and verbal injury?
- Defamation - what are the sources of law?
- Online content and free speech
- Defamation - summary of the main legal principles
- Defamation - what would the Bill change?
- Verbal injury - what are the main legal principles?
- Verbal injury - what would the Bill change?
- Brexit
Sources

Infographic showing the current law and the main changes proposed by the Bill.

Image: The main issues …

Scottish Parliament. (2020). Defamation and Malicious Publication (Scotland) Bill [as introduced] SP Bill 61. Retrieved from https://www.parliament.scot/S5_Bills/Defamation%20and%20Malicious%20Publication%20(Scotland)%20Bill/SPBill61S052019.pdf [accessed 10 March 2020]

Defamation and Malicious Publication (Scotland) Bill - Policy Memorandum. (2020). SP Bill 61-PM. Retrieved from https://www.parliament.scot/S5_Bills/Defamation%20and%20Malicious%20Publication%20(Scotland)%20Bill/SPBill61PMS052019.pdf [accessed 10 March 2020]

Defamation and Malicious Publication (Scotland) Bill. (n.d.) SP Bill 61-FM. Retrieved from https://www.parliament.scot/S5_Bills/Defamation%20and%20Malicious%20Publication%20(Scotland)%20Bill/SPBill61FMS052019.pdf [accessed 10 March 2020]

Defamation and Malicious Publication (Scotland) Bill. (2020). SP Bill 61-EN. Retrieved from https://www.parliament.scot/S5_Bills/Defamation%20and%20Malicious%20Publication%20(Scotland)%20Bill/SPBill61ENS052019(1).pdf [accessed 10 March 2020]

Scottish Parliament. (2019, December 2). Defamation and Malicious Publication (Scotland) Bill Policy Memorandum. Retrieved from https://www.parliament.scot/S5_Bills/Defamation%20and%20Malicious%20Publication%20(Scotland)%20Bill/SPBill61PMS052019.pdf [accessed 22 January 2020]

Pfeifer v Austria. (2007). Application no. 12556/03. Retrieved from https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-83294%22]} [accessed 9 March 2020]

Scottish Law Commission. (2017, December). Report on Defamation. Retrieved from https://www.scotlawcom.gov.uk/files/7315/1316/5353/Report_on_Defamation_Report_No_248.pdf [accessed 21 January 2020]

Ministry of Justice. (2010, March). Report of the Libel Working Group. Retrieved from https://webarchive.nationalarchives.gov.uk/20110201153832/http://www.justice.gov.uk/publications/docs/libel-working-group-report.pdf [accessed 22 January 2020]

Scottish Parliament. (2012, September 18). Official Report Justice Committee 18 September 2012. Retrieved from http://www.parliament.scot/parliamentarybusiness/report.aspx?r=7520 [accessed 21 January 2020]

Scottish Parliament. (2012, September 25). Justice Committee 10th Report, 2012 (Session 4) Legislative Consent Memorandum on the Defamation Bill. Retrieved from https://www.parliament.scot/parliamentarybusiness/CurrentCommittees/55001.aspx [accessed 2020 January 22]

Scottish Law Commission. (2016, March). Discussion Paper on Defamation (para. 1.1.5). Retrieved from https://www.scotlawcom.gov.uk/files/5114/5820/6101/Discussion_Paper_on_Defamation_DP_No_161.pdf [accessed 2020 February 4]

Scottish Law Commission. (2016, March). Discussion Paper on Defamation. Retrieved from http://www.scotlawcom.gov.uk/files/5114/5820/6101/Discussion_Paper_on_Defamation_DP_No_161.pdf [accessed 15 January 2020]

Scottish Law Commission. (2016, March). Discussion Paper on Defamation (para. 2.11). Retrieved from http://www.scotlawcom.gov.uk/files/5114/5820/6101/Discussion_Paper_on_Defamation_DP_No_161.pdf [accessed 27 January 2020]

Discussion Paper on Defamation (para 3.2). (2016, March). Retrieved from http://www.scotlawcom.gov.uk/files/5114/5820/6101/Discussion_Paper_on_Defamation_DP_No_161.pdf [accessed 25 February 2020]

Scottish Law Commission. (2016, March). Discussion Paper on Defamation (para 3.12). Retrieved from http://www.scotlawcom.gov.uk/files/5114/5820/6101/Discussion_Paper_on_Defamation_DP_No_161.pdf [accessed 27 January 2020]

Scottish Parliament. (2020, December 2). Defamation and Malicious Publication (Scotland) Bill Policy Memorandum (para. 32). Retrieved from https://www.parliament.scot/S5_Bills/Defamation%20and%20Malicious%20Publication%20(Scotland)%20Bill/SPBill61PMS052019.pdf

Scottish Law Commission. (2016, March). Discussion Paper on Defamation (para 3.26 at footnote 49). Retrieved from http://www.scotlawcom.gov.uk/files/5114/5820/6101/Discussion_Paper_on_Defamation_DP_No_161.pdf [accessed 25 February 2020]

Aamodt, A. (2015, August 26). Protecting the reputation of the council. Retrieved from https://www.localgovernmentlawyer.co.uk/governance/314-governance-a-risk-articles/26702-protecting-the-reputation-of-the-council [accessed 29 January 2020]

Wales Audit Office. (2014, January 30). Indemnity for Libel Counterclaim - Carmarthenshire County Council - Report in the Public Interest. Retrieved from https://www.audit.wales/publication/indemnity-libel-counterclaim-carmarthenshire-county-council-report-public-interest [accessed 29 January 2020]

Scottish Courts and Tribunals Service. (2020). Email to Abigail Bremner (SPICe researcher) 21 January 2020. (n.p.): Unpublished.

MacDonald, K. (2019, April 18). Fair and square?. Retrieved from https://www.burnesspaull.com/blog/2019/04/fair-and-square [accessed 29 January 2020]

Scottish Parliament. (2019, December 2). Defamation and Malicious Publication (Scotland) Bill Policy Memorandum (para. 108). Retrieved from https://www.parliament.scot/S5_Bills/Defamation%20and%20Malicious%20Publication%20(Scotland)%20Bill/SPBill61PMS052019.pdf [accessed 29 January 2020]

Scottish Parliament. (2019, December 2). Defamation and Malicious Publication (Scotland) Bill Policy Memorandum (para. 109). Retrieved from https://www.parliament.scot/S5_Bills/Defamation%20and%20Malicious%20Publication%20(Scotland)%20Bill/SPBill61PMS052019.pdf [accessed 29 January 2020]

Scottish Law Commission. (2016, March). Discussion Paper on Defamation (para 8.15). Retrieved from http://www.scotlawcom.gov.uk/files/5114/5820/6101/Discussion_Paper_on_Defamation_DP_No_161.pdf [accessed 30 January 2020]

Scottish Law Commission. (2016, March). Discussion Paper on Defamation (para 7.3). Retrieved from http://www.scotlawcom.gov.uk/files/5114/5820/6101/Discussion_Paper_on_Defamation_DP_No_161.pdf [accessed 25 February 2020]

Scottish Government. (2019, January). Defamation in Scots law - a consultation (para. 46). Retrieved from https://www.gov.scot/binaries/content/documents/govscot/publications/consultation-paper/2019/01/defamation-scots-law-consultation/documents/defamation-scots-law-consultation/defamation-scots-law-consultation/govscot%3Adocument/00545014.pdf [accessed 25 February 2020]

Faculty of Advocates. (2019, April 16). No title Retrieved from http://www.advocates.org.uk/media/3070/final-faculty-response-16-april-2019-3.pdf [accessed 25 February 2020]

Rogerson, J., & Daley, K. (2019, June 24). The meaning of "serious harm": the Supreme Court in Lachaux v Independent Print. Retrieved from https://www.whitecase.com/publications/alert/meaning-serious-harm-supreme-court-lachaux-v-independent-print [accessed 4 February 2020]

Lachaux (Respondent) v Independent Print Ltd and another (Appellants) [2019] UKSC 27, para. 21. (2019, June 12). Retrieved from https://www.supremecourt.uk/cases/docs/uksc-2017-0175-judgment.pdf [accessed 5 February 2020]

Scottish Law Commission. (n.d.) Report on Defamation (para. 2.18). Retrieved from https://www.scotlawcom.gov.uk/files/7315/1316/5353/Report_on_Defamation_Report_No_248.pdf [accessed December 2017]

Scottish Law Commission. (2016, March). Discussion Paper on Defamation (para. 10.5). Retrieved from http://www.scotlawcom.gov.uk/files/5114/5820/6101/Discussion_Paper_on_Defamation_DP_No_161.pdf [accessed 25 February 2020]

Brodies. (2013, January 1). THE RIGHT TO SUE: PUBLIC AUTHORITIES AND DEFAMATION. Retrieved from https://brodies.com/binformed/legal-updates/the-right-to-sue-public-authorities-and-defamation [accessed 20 February 2020]

Scottish Housing News. (2019, November 15). Serco lock-change evictions case: Court of Session ruling in detail. Retrieved from https://www.scottishhousingnews.com/article/serco-lock-change-evictions-case-court-of-session-ruling-in-detail [accessed 20 February 2020]

Scottish Parliament. (2019, December 2). Defamation and Malicious Publication (Scotland) Bill (para. 69). Retrieved from https://www.parliament.scot/S5_Bills/Defamation%20and%20Malicious%20Publication%20(Scotland)%20Bill/SPBill61PMS052019.pdf [accessed 18 February 2020]

Explanatory Notes - Defamation and Malicious Publication (Scotland) Bill - para. 21. (2019, December 2). Retrieved from https://www.parliament.scot/S5_Bills/Defamation%20and%20Malicious%20Publication%20(Scotland)%20Bill/SPBill61ENS052019(1).pdf [accessed 20 February 2020]

Scottish Parliament. (2019, December 2). Defamation and Malicious Publication (Scotland) Bill - Policy Memorandum (para. 70). Retrieved from https://www.parliament.scot/S5_Bills/Defamation%20and%20Malicious%20Publication%20(Scotland)%20Bill/SPBill61PMS052019.pdf [accessed 20 February 2020]

Scottish Law Commission. (2017, December). Report on Defamation (paragraphs 6.43 and 6.49). Retrieved from https://www.scotlawcom.gov.uk/files/7315/1316/5353/Report_on_Defamation_Report_No_248.pdf [accessed 25 February 2020]

Jones Day. (2015, March). Recast Brussels I Regulation: The Abolition of Exequatur and the Amendment to Rules Relating to the Enforceability of Jurisdiction Clause. Retrieved from https://www.jonesday.com/en/insights/2015/03/recast-brussels-i-regulation-the-abolition-of-iexequaturi-and-the-amendment-to-rules-relating-to-the-enforceability-of-jurisdiction-clause [accessed 25 February 2020]

Scottish Law Commission. (2017, December). Report on Defamation (para. 10.7). Retrieved from https://www.scotlawcom.gov.uk/files/7315/1316/5353/Report_on_Defamation_Report_No_248.pdf

Last Updated: 18/6 5:06pm

Image: The main issues …

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