Reform of the Law of Defamation in Scotland

Project Overview

Private law researchers are engaged in a long-term project to evaluate the impact of the Defamation and Malicious Publication (Scotland) Act 2021 (the ‘2021 Act’) on the Scots law of delict. The project seeks to provide some guidance on the possible application of the 2021 Act and to examine the operation of the ‘serious harm’ test in English law. The long-term goal is to bring out lessons for Scottish courts in employing that test in the future, and to reflect on the reform process itself, in order to evaluate the compatibility of the reforms with the underlying fabric of Scots law.

The research will evaluate the drafting of the 2021 Act and the case law on cognate provisions in the Defamation Act 2013. It will monitor the Scottish courts’ responses to the 2021 Act. The researchers hope that broader lessons about borrowing from English reforms may be learned from studying the interaction between Scots and English law in the area of defamation. With regards to the drafting of the Act, this research will also explore the increasing trend of defining key concepts of an Act in the explanatory notes rather than in the Act itself, and the implications of this practice.

Research Aims and Objectives

  • Evaluate the impact of the 2021 Act on Scots law and assess whether it is likely to meet its stated policy goals of reducing trivial claims and entrenching the protection of free speech.
  • Examine the operation of the ‘serious harm’ test in English law to bring out lessons for Scottish courts charged with employing that test in future.
  • Reflect on the mode of reform (borrowing heavily from a recent English reform measure).
  • Assess the importance of ensuring compatibility with the underlying fabric of Scots law.
  • Query the use of explanatory notes in defining central provisions of an Act.

Research Methods

Evaluation of drafting of 2021 Act, case law on cognate provisions in Defamation Act 2013, and Scottish court’s responses to 2021 Act.

Project Co-Investigators

Dr Bobby Lindsay - University of Glasgow

Dr Stephen Bogle - University of Glasgow

Project Outputs

Dr Bogle’s responses to the Scottish Law Commission’s Discussion Paper 161 discussed in Report 248: [2.3]; [3.5]; [3.17]; [3.41]; [3.77]; [4.12]; [6.48]; [9.13].

B Lindsay, ‘The Reform of Defamation Law in Scotland’ (2019) 23(1) Media and Arts Law Review 109.

Dr Bogle and Dr Lindsay’s response to Stage 1 consultation on Defamation and Malicious Publication (Scotland) Bill.

Invited evidence to Justice Committee of the Scottish Parliament, 1st September 2020, discussed in Stage 1 Report at [69]; [78]; [100]; [164].

Discussed in Scottish Government’s response to Stage 1 Evidence.

Dr Bogle’s response to SLC DP 161.

Official Report of Oral Evidence to Justice Committee, 1st September 2020.