Yesterday the Scottish Law Commission published a Discussion Paper on Defamation [pdf]. This summarises the current Scots defamation law and poses a number of consultation questions about possible areas of reform.
The background to the project is that the law of England and Wales was change by the Defamation Act 2013. Many of the issues have a cross-border dimension. Publishers and media organisations often operate on a UK wide basis; it can create practical difficulties when there are different rules in different parts of the United Kingdom.
The paper explains Scots law in key areas and examines possible improvements. It poses 53 questions on which it seeks responses by 17 June 2016. These include the following:
- Should a statutory threshold be introduced requiring a certain level of harm to reputation in order that a defamation action may be brought? Q3)
- Should bodies which exist for the primary purpose of making a profit should continue to be permitted to bring actions for defamation? (Q6)
- Should the defences of truth and fair comment be set out in statutory form? (Q8 and Q11).
- Should there be a statutory defence of publication in the public interest? (Q16)
- Should there be a defence for website operators along the lines of section 5 of the Defamation Act 2013? (Q20)
- Should the courts be given a specific power to order the removal of defamatory material from a website or the cessation of its distribution? (Q37)
- Should consideration be given to the possibility of statutory provision to allow an action for defamation to be brought on behalf of someone who has died, in respect of statements made after their death? (Q47)
There is also an html version of the Discussion Paper on the Bailii website.