New law is not always the answer to old problems

It’s been almost five years since the Scottish Law Commission announced that defamation reform was under the spotlight.

The argument was that it was time to bring this area of law into the 21st-century. Last week’s unsuccessful defamation action bywings over Scotland (Stuart Campbell) against former Scottish Labour leader Kezia Dugdale has prompted much commentary that reform is overdue.

Given that the case ultimately turned on the issue of fair comment – and indeed the interpretation of the word “fair” by reference to case law from the 1800s – then on first blush you would have thought that those advocating modernisation had a point. However, the reality remains that old law can still be good law and that had the proposed bill to reform the law been enacted, it would not have helped Campbell one jot. Arguably he would never even have had the chance to have had his full grievance heard in court.

And even if he had been successful, he would only have been awarded £100 in damages. But it would not only be the issue of serious harm on which he would have failed.

The Commission report recommends the abolition of fair comment with a new defence of honest opinion mirroring that in place in England. All Dugdale would have required to do was argue that the statement complained of was her honest opinion and have given, in general terms, some of the factors on which that opinion was based. If enacted as is proposed, the statutory defence would make it easier for someone in the same circumstances as Ms Dugdale to successfully defend an action. It was abundantly clear that she honestly believed the tweet was homophobic.

That would have proved enough. She would not have had to argue that common sense dictated that the comment she had made was fair.