The Faculty of Advocates have recently highlighted that in a rapidly digitalising world, marked by the rise of social media and the internet, the law of defamation in Scotland may be unable to keep pace.
New laws introduced in England and Wales, under the Defamation Act 2013 are designed protect freedom of speech on platforms such as social media sites. However these are currently not being replicated north of the border, meaning that the Scots law of defamation may be being left behind in the era of digitalisation.
The Faculty is concerned that it may now be far easier to sue for defamation in Scotland than in England and Wales. In fact they claim it is too easy in our digital age, potentially limiting freedom of speech, and promoting “libel tourism”.
The law introduced in England and Wales requires “substantial harm” to have been done to someone’s reputation before a civil action for damages for defamation – this includes defamation on social media. The standard of substantial harm was introduced to limit the exposure of those publishing online to libel actions. However, the Scottish Government has chosen not to replicate these limitations.
Scots Law of Defamation
Scots law in this area differs greatly. In Scots Law, a statement that seeks to offend or cause harm will not always be defamatory. In order for a statement to be deemed defamatory the statement must be false and lower the estimation of the defamed in the minds of right thinking members of society.
Furthermore, the defamatory statement must be communicated – this is where technological advances become important in the determination of the extent of the defamation.
Communications through mediums such as blog posts, Twitter, Facebook and even Trip Advisor are circulated quickly and to a mass audience. This means it will be easier to cause the opinion of the defamed to be lowered in the minds of more people, more quickly. The greater the circulation by the defamer, the greater the damages that will be awarded to the injured party by the court will be.
The Scottish Government have stated that they have no immediate plans to bring the legislation up to date and introduce the rules implemented in England and Wales to protect writers and publishers from libel actions. As a result, the Faculty of Advocates warned of libel tourism and that Scottish courts could be used to pursue claims that truly originated elsewhere – including England and Wales.
The digital age, in particular social media platforms and the internet generally, means that defamatory statements published for example in England or Wales, could potentially be deemed to have been published in Scotland as they are on the internet and will be circulated to Scottish readers.
Therefore, if someone believes they have been defamed in the internet, in an electronic newspaper or magazine, they will be able to choose where to sue so long as that publication is in circulation there.
Furthermore, the campaign group believes that libel tourism in Scotland may lead to self-censorship in the rest of the UK as a result of the risk of litigation in Scotland.
The Faculty of Advocates has recommended the issue to the Scottish law Commission for review.
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