New defamation laws could shift the balance towards greater freedom of speech while protecting reputations from serious damage, MSPs have said.
Holyrood unanimously backed the general principles of the Defamation and Malicious Publication (Scotland) Bill, which the Scottish Government hopes will simplify and modernise the law.
Introducing the Bill at stage one, community safety minister Ash Denham said she does not believe the existing defamation law “appropriately balances protection of reputation and freedom of expression”.
Ms Denham said: “I am clear that if a person says that their reputation has been unfairly damaged by a defamatory statement then they should have to prove, at least to a minimum standard, how it’s been damaged.”
The minister also explained that under the proposed legislation, public bodies would be prohibited from suing for defamation.
“I believe that it is of the highest public importance that a democratically elected governmental body should be open to uninhibited public criticism,” she said.
Justice Committee convener Adam Tomkins welcomed the proposals, saying they “subtly” shift the balance between freedom of expression and reputational protection by introducing a “serious harm” threshold in defamation cases.
But on the public bodies issue, he argued there is a grey area on private firms that are doing work for the public sector.
Scottish Green MSP John Finnie echoed his concerns, giving the example of different implications for islanders who criticise of state-run ferries and those run by private firms such as Serco.
Tory justice spokesman Liam Kerr said the Bill should be redrafted because “malicious publication might become a preferable action to defamation” as a result of the Bill in its current form.
Scottish Labour’s Rhoda Grant stressed the importance of case law to allow legislation to be “refined” over time “in order to follow changes in the way in which we communicate”.
She said: “This evolution is required because of the way in which we communicate changes with time.
“Twenty years ago social media was almost unheard of.
“Now, people use that to follow the news and gain information – and we are all publishers but some of us are not very great editors.”
Under the proposed laws, courts would be able to dismiss claims when little or no serious damage has been done to a person’s reputation, except in cases when the comments have been made with malicious intent.
If passed by Holyrood, the Bill will limit the action that can be taken against “secondary publishers”, those who pass on information already published by another person or entity.
It will apply to the author, editor or publisher of a statement, exempting those who may have shared the potentially defamatory comment from the risk of legal action.
The new law will also seek to improve protection for media outlets that publish stories considered to be defamatory if the information is deemed to be in the interest of the public and the publication is considered “responsible”.
Another inclusion is a one-year time frame for legal action from publication and removal of the presumption of a jury trial.