Tuesday, December 3, 2019
The Scottish Parliament is set to consider a draft Defamation bill, the Defamation and Malicious Publication (Scotland) Bill. The drafters intend to codify the treatment of defamation, which is now "spread across several statutes and areas of common law," according to Community safety minister Ash Denham.
Professor Gavin Sutter of Queen Mary University, London, has written an analysis of the bill. He writes in part that while the the legislation is "fairly comprehensive" and "provides useful clarification of the law," including a good definition of what defamation actually is, he is not a fan of what constitutes immunization of online service providers from liabiity. " This is an area of law which has long been difficult and a bone of contention. No-one, of course, wishes to make life extremely difficult for online hosts or to cause a chill on freedom
of expression via an environment in which distributors, especially online, become over-cautious. The approach taken in the draft bill is, however, unnecessarily complicated. England and Wales dealt with this by providing that persons who are not an author, editor or publisher may only be subject to legal proceedings where the source of the defamatory comment cannot be identified, such that the claimant would otherwise be denied justice (see Section 10 of the Defamation Act 2013)."
He also is in favor of the incorporation of the Reynolds Privilege (see Reynolds v. Times Newspapers).
Professor Sutter notes that he wrote his essay as a response to an informal consultation on the Bill's Working Draft. See also here for more on the informal consultation and here for more on the introduction of the draft bill.