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Elon Musk, the self-styled tech visionary who designed a mini sub to help with the rescue of the 12 Thai boys stuck in a cave, wrote an ill-advised tweet in response to a British member of the Thai diving team’s comment to a journalist that he could “stick his submarine where it hurts”. Elon’s bizarre tweet referred to the diver as that “pedo guy”, apparently because he is a Brit living in Thailand, and a follow up insisted “bet ya a signed dollar it’s true”. Mr Unsworth is currently considering suing for defamation.

British NewspapersCloser to home, or at least no further away than Bath where Wings Over Scotland blogger Stuart Campbell resides, another defamation claim is making the news. Wings is suing Kezia Dugdale MSP after she accused him of homophobia for tweeting the following about the son of Tory Scotland Secretary David Mundell: “Oliver Mundell is the sort of public speaker that makes you wish his dad had embraced his homosexuality sooner.” Kezia’s lawyer has argued that the charge of homophobia is a “fair and honest comment”. The Sheriff’s judgment is forthcoming.

Meanwhile Ian Paisley Jr, DUP MP and son of the DUP founder and controversial firebrand of the same name, threatened the Daily Telegraph newspaper with defamation after they revealed last year that he had accepted £100,000 worth of hospitality from the Sri Lankan Government. Not only did he not declare his interest he even lobbied the British Government on the human rights abusing Sri Lankan Government’s behalf. He is currently suspended from Parliament with widespread calls for him to resign. It is unclear whether his threatened defamation case against the Telegraph will be continuing.

These three examples are indicative of the main challenges facing the area of defamation law: social media, the enhanced ability of rich people to use the law to their own advantage, and the maintenance of a free press and free speech. At the heart of a defamation policy is the question of where the law should draw the line between protecting people’s reputations and freedom of expression?

The Scottish Law Commission (SLC) has published radical proposals this year after finding that the current Scots Law on defamation is badly in need of reform to meet the challenges of new media. One of the proposed reforms is to bring Scots Law in line with England and Wales by introducing a ‘serious harm’ test before someone can bring a claim of defamation. Given the examples of Elon Musk and Wings above, while it is axiomatic that being called a paedophile or a homophobe would impact upon someone’s reputation and, if untrue, be almost certainly defamatory the court would have to first determine whether serious harm had been caused.

The SLC has further recommended that an explicit defence of publication on a matter of public interest be incorporated into Scots Law in order to ensure that investigative journalists can go about their work without fear of being gagged by corrupt politicians threatening defamation claims. Although with the example of Ian Paisley Jr above it is likely that the classic defamation defence of “truth” and “fair comment” may have protected the journalists exposing his Sri Lanka connection.

Modernising defamation law means ensuring that the rich and powerful cannot shut down legitimate criticism about them online or in the news. In the age of Twitter and Facebook more people than ever are able to publicly post information and perhaps unwittingly put themselves at risk of litigation. In Scots Law each time a defamatory statement is published there is a fresh basis for action ie every retweet or “share” of a defamatory statement can put that user at risk of being sued. Once again Scots Law might wish to follow the English example here by introducing a single publication rule so that the basis for legal action is, for the most part, against the first publisher.

Defamation law in the social media age should primarily act as a deterrent to those who use their influence to malign a person’s reputation online and should also provide a remedy for persons whose reputation suffers (whether this causes them financial loss or not).  But for these remedies to be meaningful ordinary people must be able to access the courts and not just the rich and powerful.

Blog by Deirdre Flanigan, Employment Solicitor

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