Warning of gap in defamation law for online article sharers

Lawyers have warned that plans to modernise defamation law have a 'significant gap' when it comes dealing with those who share articles online.

The Faculty of Advocates said published proposals do not adequately cover “secondary publishers” – those who are not the author, editor or publisher of the statement complained of but who make it available online.

The Scottish Law Commission, which advises the government on law reform, is consulting on a draft bill to modernise defamation laws in Scotland following major reform in England and Wales in 2013.

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Commenting on the draft bill, the faculty said the treatment of secondary publishers was an important issue.

It said: “Given that the bill is intended to create a comprehensive legislative scheme, we consider this is an issue which should be included. Failure to do so risks leaving a significant gap in the proposed legislation.

“Online communication, often on hosted websites, is an increasingly common aspect of defamation litigation. That is a trend that is likely to accelerate. We note that the Commission takes the view that any such review would be more appropriate on a UK wide basis. However, we are unaware that there is any such exercise pending.

“The effect of delay, therefore, might be that a bill designed to provide a comprehensive statement of the law in this area will not do so, based only on a potential future UK review.

“We have a concern over such an approach. The Scottish courts can, and do, require to address these issues on an ongoing basis.”

The faculty said it was also concerned the wording of the bill could exclude MSPs and others from seeking redress if they are defamed.

It noted a principle laid down in an English case – that a governmental body or an organ of government could not sue for defamation – had been widened to cover a person “if the person’s functions include functions of a public nature”.

The submission said: “Take, for example, an MSP who wishes to raise proceedings in defamation. Are they excluded and, if so, to what extent?

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“What about an employee of such an MSP? Is a doctor whose role extends to assisting in the running of a health board precluded from bringing proceedings?

“In our opinion, thought should be given to defining public authorities more tightly.”

The Faculty also said consideration should be given to the introduction of a statutory defence of publication in the public interest.

On the question of whether the law should be changed to allow defamation actions to be raised after a person’s death, the Faculty said: “The potential uncertainty resulting in any such legislation would be unwelcome.

“We are concerned that to introduce the considered change could have a significant effect on the ability to probe allegations against ­individuals or have reputations properly examined; for example the post death revelations relating to Jimmy Savile.”