As was discussed in my colleague, Eoghann Green's recent blog post, Katie Price AKA Jordan was made bankrupt in November this year. She had multiple creditors and a number of factors contributing to her bankruptcy. However, the libel damages which she had to pay to both her former manager and her ex-husband, Peter Andre, were contributing factors to her overall debt level. But, how would Katie Price have fared under the new Defamation and Malicious Publication (Scotland) Bill currently working its way through the Scottish Parliament?
The Defamation and Malicious Publication (Scotland) Bill was introduced on 2 December 2019 and is currently being scrutinised at Stage 1 by the Scottish Parliament. Currently, defamation in Scotland is mainly based on common law whereas the Defamation Act 2013 governs defamation in England and Wales. Some sections of the 2013 Act do extend to Scotland, but in the main the common law presently applies in Scotland.
The new Bill if ultimately passed would put the law of defamation in Scotland into statutory form as well as modernising the law, bringing it in line with a society in which the reach of social media means that defamatory comments can have a far wider reach than ever before.
This new Bill seeks to abolish common law verbal injuries and provides the first definition of what constitutes a defamatory statement under Scots law. It attempts to straddle the fine line between freedom of expression and the need to protect persons' reputation.
In order for a statement to be considered defamatory under the new Bill it must have been published to a person other than the person who is the subject of the statements and it would have to cause, or be likely to cause, serious harm to the reputation of the person raising the claim. In relation to businesses the harm would only be considered 'serious' if it has caused, or be likely to cause, serious financial loss.
The current common law defences to a claim of defamation, such as truth (veritas) or fair comment, would remain, albeit in statutory form, simply known as the defence of truth and the defence of honest opinion under the new Bill. The publication on a matter of public interest continues to be recognised as a defence.
The new Bill would also protect "secondary publishers", being those who share defamatory statements but are not the author, except in situations where republishing to a much larger audience has materially increased the harm.
It is highly unlikely that Katie Price would have fared any better in Scotland under the new Defamation and Malicious Publication (Scotland) Bill. However, the new Bill, should it be enacted will provide a much simpler and more modern framework for the law of defamation in Scotland which is better suited to the 21st century.