The Bill aims to adopt the measures recommended in the Scottish Law Commission's report on defamation. The Bill will see the biggest changes to defamation in Scots law since devolution began, with the last substantial reform to defamation pre-dating the new Scottish Parliament, with the Defamation Act 1996. Since then potentially defamatory opinions have moved from letters amongst high society and the front pages of the tabloids, and found fertile ground in emails, texts, and social media.
In what is a first for Scots law, the Bill seeks to provide a statutory definition of defamation. A statement will be defamatory if it "causes harm to the person's reputation (that is, if it tends to lower the person's reputation in the estimation of ordinary persons)". The Bill's statutory definition is based on the common law test set-out in the English case of Sim v Stretch  2 All ER 1237 (which was subsequently adopted into Scots law) of whether "…the words tend to lower the plaintiff in the estimation of right-thinking members of society generally."
Prohibition of public authorities bringing proceedings for defamation
The principle of public authorities being barred from raising proceedings based on defamation under common law derives from the House of Lords decision of Derbyshire County Council v Times Newspapers Ltd and Others  AC 534. The House of Lords held that democratically elected governmental bodies should be "open to uninhibited public criticism", known as the 'Derbyshire Principle'. This principle extends beyond central government and covers local authorities and other public bodies.
The Derbyshire judgment was a significant contribution towards freedom of speech and behind the judgment was an understanding that in a free and prosperous democracy the ability to debate, criticise and evaluate the role and actions of government should be protected. Although the issue of defamation in regards to a public body has not been substantially addressed in Scotland, the Derbyshire Principle's non-controversial stance is seen to have been adopted into Scots common law. The Scottish Government's intentions to provide a statutory footing for the Derbyshire Principle would confirm this.
What is a public authority?
Section 2 of the Bill defines a person as a public authority if "the person's functions include functions of a public nature." The Bill does not allow for Scottish Ministers to set out who should be treated as a public body - instead it allows them to set out in future legislation who should not be treated as a public authority - and so the broad definition in Section 2 may be at the mercy of the courts to interpret.
Private bodies providing a public service
The Bill excludes bodies which provide a public service, but are not owned or controlled by a public authority. The last twenty years has of course seen the rise of Public-Private Partnership (PPP) agreements. Where a private entity provides a public service it will not face the prohibition set out in the Bill.
This could be an important distinction which can perhaps best be highlighted by the situation in Scotland's prison sector. Prisons are either run by the Scottish Prison Service (SPS) or by private entities who have been awarded a contract to provide services on behalf of the SPS. Under the Bill, the SPS would not be able to raise an action on the grounds of defamation but a private entity running a prison could. This may provide some peace of mind to those currently resident at SPS managed prisons but a caution to residents of prisons run by private entities - defamatory comments can lead to court action!
Efforts are under way to lobby the Government to amend the Bill and have private entities providing a contractual public service to be covered by the prohibition. It remains to be seen whether these calls will be adopted. Certainly, at the time of Derbyshire judgment, the majority of public services were run by public bodies and consideration of the increasing involvement of the private sector in providing public services was not foreseen.
Under the proposal, charities which provide a public service but are not owned or controlled by a public authority are also exempt from the prohibition in Section 2 of the Bill. The exemption has been welcomed by the Scottish Council for Voluntary Organisations who view the exemption as critical to charities being able to defend their reputation and whose income is reliant on public donations which is linked to their public image. The exemption for charities appears to be uncontroversial and has been welcomed by the Scottish Parliament's Justice Committee.
The Scottish Government should be commended for taking action to modernise the law of defamation. The adoption of the Derbyshire Principle into statute reaffirms the rights of individuals to speak freely, and often, critically of government and the public bodies. The Bill has received unanimous support from all quarters and the Scottish Law Commission's original proposal in relation to the Derbyshire Principle has survived the civil service/ministerial process relatively unscathed.
The Bill is currently at Stage 2 and with that Members of the Scottish Parliament now have the opportunity to propose amendments to it. If left unchanged, it will be interesting to see if the statutory adoption of the Derbyshire Principle brings clarity to prohibition of public authorities from raising defamation actions or just challenges for the parties, litigators, and the judiciary in attempting to interpret the broad statutory definition