THE Law Society of Scotland has challenged the Scottish Government’s plans for a new defamation law which is currently out for consultation.

In its response to the draft bill, the Law Society says striking the right balance between freedom of expression and protection of reputation is key to modernising Scots defamation law. The society also highlighted in a statement the “perceived lack of clarity around the definition of public authority, some aspects of the drafting relating to the liability of secondary publishers, and concerns regarding the scope of delegated powers under the draft Bill which could lead to insufficient parliamentary scrutiny of key policy decisions”.

Also questioned are proposals to introduce a statutory threshold test of serious harm in relation to financial loss. The society does want to see defamation law on the statute book, saying: “While we do not consider that the lack of a statutory definition has proved problematic to date, this would make the law more accessible as it would all be found in one place. At the same time, this approach would allow us to retain the benefits of existing jurisprudence which gives greater detail to the way in which the test should be interpret.”

John Paul Sheridan of the Law Society of Scotland’s Obligations Law Sub-Committee said: “Evidence of vexatious litigation should be provided if a ‘serious harm’ test is to be introduced as we are not aware that there is currently a problem in Scotland. There is a balance to be found between the right of freedom of expression, as found in Article 10 of the European Convention on Human Rights, and the right of protection of individual reputation. From an access to justice perspective, we are concerned that introducing a statutory threshold could deter legitimate claims.

“There may also be practical challenges around preliminary hearings to assess whether significant harm has occurred.”