The law reform body published a proposed new Defamation and Malicious Publication (Scotland) Bill, and explained some of the rationale behind the changes it has recommended, in a new report (161-page / 1/72MB PDF).
According to the draft reforms, it would no longer be possible to bring defamation claims in Scotland where the comments complained of are only communicated to the person making the claims. In addition, defamation claims would need to pass a 'serious harm' test. A new 'single publication rule' has also been proposed, alongside plans to reduce the amount of time that people or businesses bringing defamation claims would have to lodge their claims before the courts after defamatory comments were first published.
Further changes that have been proposed include reforms to statutory defences against defamation claims, while other proposed reforms would see greater account being given to the anxiety and distress caused by defamation in consideration of any award for damages.
The draft legislation is "designed to modernise the law for the age of the internet and social media", the Scottish Law Commission said.
Like under the Defamation Act 2013 that applies in England and Wales, people and businesses claiming to have been defamed before the Scottish courts would have to overcome a 'serious harm' threshold, under the plans.
The Scottish Law Commission said: "It should be competent to bring defamation proceedings in respect of a statement only where the publication of the statement has caused, or is likely to cause, serious harm to the reputation of the person who is the subject of the statement."
The introduction of a 'serious harm' test would be aimed at preventing "defamation actions being used as a weapon by the rich and powerful to try to silence unwelcome criticism", the Scottish Law Commission said.
However, media law expert Alex Keenlyside of Pinsent Masons, the law firm behind Out-Law.com, said that it should not be assumed that the proposed reforms would "bring immediate clarity to an often complex area of the law".
"The issue of serious harm, in particular, has been the subject of intense scrutiny in the English courts since the new Act, most recently by the Court of Appeal in the Lachaux case. It had been widely assumed that the serious harm threshold was intended to mark a significant strengthening of the law in favour of defendants, but the Lachaux judgment suggests that is not the case," he said.
The new single publication rule that has been proposed would serve to change the position that currently applies where defamatory comments are repeated, the Scottish Law Commission said.
Under the new position, "where a person publishes a statement to the public and subsequently publishes the same or substantially the same statement, any right of action in respect of the subsequent publication should be treated as having accrued on the date of the first publication", it said, unless "the manner of the subsequent publication is materially different from that of the first publication".
In assessing whether repetitions of defamatory comments are materially different, a court should have "regard to the level of prominence that the statement is given; the extent of subsequent publication; and any other matter which [it] considers relevant", it said.
"At present in Scots law a 'multiple publication' rule applies," the Scottish Law Commission's report said. "This means that each publication by the same publisher of the same material gives rise to a separate cause of action in defamation. Each time a new reader reads a publication, or each time it is republished by some other means, a new cause of action arises."
"The majority of those who responded to our question about a single publication rule – 19 of 22 – were in favour of a provision to the effect that republication of the same or substantially the same material by the same publisher should not give rise to a new cause of action and should not therefore trigger a new limitation period. The increasing tendency towards online publication was the main reason cited. Under the current law, each download of an article by a new reader constitutes a new cause of action which is subject to its own limitation period," it said.
Currently, Scots law requires an action for defamation to be brought within three years of the right of action accruing.
However, the Scottish Law Commission proposed to reduce the limitation period to one year. Under the planned reforms, the limitation period would commence on the date of first publication of the statement complained of. The move would bring the limitation period for bringing defamation claims in Scotland into line with the one year period that already applies in England and Wales for claims brought under the Defamation Act 2013.
"We take the view that to reduce the length of the limitation period would strike a fairer balance between the two interests with which the law of defamation is principally concerned, protection of reputation and freedom of expression," the Scottish Law Commission said. "To reduce the length of the limitation period would also, we think, be consistent with the thinking underlying introduction of a single publication rule, namely preventing the threat of defamation proceedings from subsisting over a protracted period."
New statutory defences of truth, honest opinion and publication in the public interest should be introduced, the Scottish Law Commission said. It said the new defence of publication in the public interest should extend to statements of fact and to statements of opinion and should replace the existing 'Reynolds' defence which shields those engaged in responsible journalism from liability for defamation.
"The statutory defence of publication in the public interest should make specific provision for reportage," the Scottish Law Commission said. "In particular, it should be provided that in determining whether it was reasonable for a defender to believe that publication was in the public interest, allowance must be made for editorial judgment, where appropriate; and no account should be taken of any failure by a defender to take steps to verify the truth of the imputation conveyed by a statement if the statement was or formed part of an accurate and impartial account of a dispute to which the pursuer was a party."