Scots lawyers say more defamation cases needed to grow law

Glasgow High Court. Scots lawyers say more defamation cases in Scotland are necessary. Picture: John Devlin

The Faculty of Advocates says more defamation cases are needed as the current low level threatens the ongoing development of the law in the area.

The body also yesterday announced it was “firmly opposed” to the introduction of an English-style threshold of “serious harm” for allowing actions north of the Border.

It was responding to a Scottish Law Commission discussion paper on defamation, which is looking into whether there should be a new threshold test so a claim can be brought only where a publication has caused a certain level of harm to a claimant’s reputation.

In a statement the faculty said: “Scotland should be a strong forum for litigation, including in the area of defamation.

“The current low volume of cases undermines not only the development of the law but diminishes the prospect of Scotland being taken seriously as a centre of excellence in matters relating to defamation. “It is our hope any reforms will specifically consider how that critical current issue can be addressed. In a sense, the Scottish problem is exactly the reverse of that which recent reform in England addressed; in England there was a concern there were too many cases whilst in Scotland there is uniform acceptance there are too few.”

Currently, there is no statutory level of harm which has to be met to allow a defamation case to be initiated in Scotland, and the body believes this should remain unchanged, saying it would be “unnecessary and inappropriate for Scottish law”.

Another issue raised by the Commission is how far a statement must be communicated for it to be actionable.

At the moment, defamation can arise if anaccusation is seen, read or heard only by its subject. The commission’s preliminary thinking is there should be communication to a third party.

But the faculty said it was not persuaded by the proposal.