Scotland's new libel laws are on the side of free speech

With the new changes, lawyers can only launch defamation actions if 'serious harm' to reputation is established. Additionally, if the plaintiff is a company, this must equate to 'serious financial loss.' 

Scotland's new libel laws are on the side of free speech
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A newly-passed libel law in Scotland represents the most radical changes to defamation law in over three decades. 

The Defamation and Malicious Publication (Scotland) Act 2021 is set to address defamation cases in Scotland, which have been misused to a great extent by individuals and companies that threatened lawsuits against their critics. 

As detailed by the Times, Scotland has seen a greater than usual number of high-profile defamation cases “but the real mischief of our unreformed defamation law often went unseen.” 

“Lawyered-up people did not need to push their threats to a full hearing to exert pressure on publishers and social media critics: a lawyer’s letter often did the trick,” the Times reported. “Even if they are sure their story is substantially true, the media are often less confident that they can bear the cost of proving it in court. This way truth is repressed, stories spiked and reporting agendas altered, not because of the public interest but due to private muscle.” 

The newly-passed law is designed to address the chilling effect on free speech through threats of defamation. With the new changes, lawyers can only launch defamation actions if “serious harm” to reputation is established. Additionally, if the plaintiff is a company, this must equate to “serious financial loss.” 

The new threshold is designed to provide courts with the ability to dismiss frivolous cases, but also allow any individual who receives vexatious threats to confidence to fight them. 

Effectively, the law provides secondary publishers with the benefit of being able to avoid legal action. Should a platform, such as a newspaper or social media website share the defamatory story, it will not be culpable for a defamation action. 

Under previous law, anyone who retweets a defamatory story on Twitter or Facebook would also be fair game in court, with each share a new cause of action. Under the new law, the proceedings can only be brought against the original author, editor, or publisher. 

Furthermore, litigants were given three years to start formal court processes under the previous law. Now, they only have 12 months to file a lawsuit, which will allow publishers to report on potentially defamatory stories freely without fear of litigation down the line. 

The Times reported: “The act also strengthens the defences available to outlets accused of defamation. Veritas becomes truth, protecting publishers who can prove that their reports are substantially true. ‘Fair comment’ has been reframed as ‘honest opinion’ — better securing the free exchange of ideas and polemic in newspaper comment pages and online.” 

Crucially, the law sees the introduction of a new “public interest” defense, which provides publishers the ability to answer slander suits if they publish information they “reasonably believed was in the public interest.” 

Effectively, journalists will be allowed to do their jobs without a lawyer determining the veracity of their reporting.

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  • By Ezra Levant

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