Left with no defence?

The need for defamation law in Scotland to be modernised is obvious to anyone involved in publishing. The existing legislation is built around traditional forms of publication, but the growth in online activity, and in particular the promotion or dissemination of another person’s opinion or information, means that a reassessment is required of what constitutes defamation today. But educating a population armed with loaded smartphones about how to stay on the right side of the law is a daunting prospect. It can be hard enough getting journalists to understand what’ can and can’t be said.

The Faculty of Advocates is right to raise concerns over this area, as the Scottish Law Commission consults on a draft bill to bring us up to date on defamation. It is also correct to highlight the prospect that anyone whose job includes “functions of a public nature” e.g. an MSP, could be denied the ability to sue for defamation under the present wording of the draft bill. This scenario has its roots in a case in England, where it was decreed that a governmental body or an organ of government could not sue for libel.

Extending this exemption from a governmental body to an individual in a “public” role does not work. It would be unfair to leave a person with no means of redress if defamed, and a target for unwarranted and damaging attacks – such as a politician accused of corruption – which could not be stopped.

It is to be hoped that this potential consequence is an oversight, to be identified when the bill is assessed. Public officials should be exposed to thorough scrutiny, but cannot be left with no defence.