Defamation in Scots law

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Closes 5 Apr 2019

Questions

1. Do you agree with the analysis contained in the Commission’s Business and Regulatory Impact Assessment (BRIA)? If not, please explain your reasons for disagreement.

2. Do you consider defamation should be defined in statute?

3. Should a statutory threshold test of serious harm like section 1(1) of the Defamation Act 2013 be introduced?

4. If a statutory test is adopted, should we define what constitutes ‘serious harm’?

5. Do you have any suggestions about would should constitute ‘serious harm’?

6. Legal persons which have as its primary purpose trading for profit may have a reputation that they wish to protect. Do you agree that such bodies should be able to raise actions in defamation?

7. Damage to the reputation of such legal persons may not take the form of financial loss. If the Scottish Government were to take forward (and the Scottish Parliament agreed to) the Commission’s recommendation that such bodies are allowed to continue to raise proceedings in defamation, do you agree that these types of legal persons should face a threshold test of showing that serious harm to their reputation has caused (or is likely to cause) financial loss?

8. If legal persons were allowed to continue to raise proceedings in defamation subject to a threshold test, should this be further limited to allow only micro enterprises to continue to raise proceedings?

9. While the intention to state the Derbyshire principle in statute was widely welcomed, a number of responses questioned the definition of ‘public authority’ used in the Commission’s draft Bill, with some uncertainty about whether a charity or even a doctor could be caught by the definition. Is there anything captured by the definition that is not by the Derbyshire principle?

10. Conversely, is there anything not captured by the definition that is caught by the Derbyshire principle?

11. Should the Derbyshire principle be recast so that private companies delivering public functions are not able to raise an action in defamation?

12. Public authorities are barred from raising proceedings in defamation under the Derbyshire principle, but are able to fund proceedings brought by an individual in their employment. Do you agree that public authorities should continue to be able to meet the expense of defamation proceedings in this situation?

13. Do you agree that a new action of unjustified threats is necessary over and above the recommendations made by the Commission in their Report?

14. Do you agree that the definitions of author, editor and publisher in section 3 of the draft Bill contained in the Commission’s Report will remove liability for secondary publishers?

15. Do you agree that the regulations made by Scottish Ministers under these sections and which will be subject to consultation and parliamentary approval achieve the correct balance between scrutiny and the use of legislative resources?

16. Should the defence of honest opinion make allowance for instances where rhetorical devices are used to express an opinion conveyed by the statement that the defender does not genuinely hold? If so, can you provide instances where such a device may have been considered defamatory?

17. Do you agree that the second condition of the recast defence of honest opinion should be capable of taking into account situations where the relevant facts are likely to be known to readers?

18. Should it be made clear that an offer of amends is made without admitting that a threshold test has been met?

19. Should the test of whether a statement complained of is a malicious publication be strengthened, and if so, how?

20. Do you agree that the single publication rule is tied to the date of accrual as the date of first publication?

21. Given the previous recommendation of the Law Commission of England and Wales that 1 year is insufficient time in which to prepare litigation, and given the impact that a shorter period may have on parties’ ability to utilise alternative means of resolution, should the current limitation period be retained?

22. If the limitation period is shortened to 1 year, do you agree that the period of limitation should be capable of being extended to reflect the period of time parties engage in alternative methods of dispute resolution?