No ‘serious harm’ test in defamation, says Faculty

 

DEFAMATION actions in Scotland should not have to pass a “serious harm” test to be allowed to proceed, the Faculty believes.

The test has operated in England for a number of years, and more should be learned of the apparent problems it has created there before Scotland follows suit, the Faculty has suggested.

The “serious harm” issue is one of a number of points raised by the Scottish Government in a consultation about defamation law in the wake of a report and draft Defamation and Malicious Publications (Scotland) Bill by the Scottish Law Commission.

In its response, the Faculty said it supported the introduction of the Bill, and welcomed many aspects within the Bill.

However, it answered No to whether a statutory test of serious harm, similar to that in the Defamation Act 2013, should be introduced.

“In England, as we understand it, the desire was to reduce an unmanageable volume of cases and filter those of no merit. That may be an appropriate response to the English legal system, albeit our experience from attending conferences and speaking to practitioners in London is that the introduction of the serious harm test is seen by many as both problematic and regrettable,” stated the Faculty.

“It could not be suggested that the Scottish courts are currently struggling to deal with either an unwelcome volume of defamation cases or cases of dubious merit. Accordingly, the rationale for the English threshold simply does not exist in Scotland. The introduction of an unnecessary statutory threshold is, in our view, difficult to justify.

“It may be that further evidence ought to be sought from English practitioners in respect of the operation of this provision in practice, and this may inform and assist the proper consideration of this issue.”

Another issue raised in the consultation is the liability of secondary publishers, those not making but distributing a defamatory statement, such as newsagents, booksellers or internet intermediaries.

The Faculty noted that the wording of the relevant section of the draft Bill was “significant and wide reaching” and merited further consideration. Currently, the general position on “innocent publication” was that liability for secondary publishers could still attach, but defences were available.

“It is considered the present draft s.3 of the Bill would significantly expand the existing law, and would mean that there could never be an action against secondary publishers. The draft moves away from ‘innocent’ dissemination, and it is not clear why such a significant development is proposed or merited,” the Faculty said.

“In particular, in relation to the definition of ‘editor’ it is considered that the operation of s.(3)(d) would mean that a defamation action could not lie against any person who transmitted or distributed electronic material, even if they did not take reasonable care in relation to the publication, they knew or had reason to believe it contained a defamatory statement or if it was not possible to identify the actual author, editor or publisher.”