Private law researchers are engaged in a long-term project to evaluate the impact of the Defamation and Malicious Publication (Scotland) Act 2021 (the ‘2021 Act’) on the Scots law of delict. The project seeks to provide some guidance on the possible application of the 2021 Act and to examine the operation of the ‘serious harm’ test in English law. The long-term goal is to bring out lessons for Scottish courts in employing that test in the future, and to reflect on the reform process itself, in order to evaluate the compatibility of the reforms with the underlying fabric of Scots law.
The research will evaluate the drafting of the 2021 Act and the case law on cognate provisions in the Defamation Act 2013. It will monitor the Scottish courts’ responses to the 2021 Act. The researchers hope that broader lessons about borrowing from English reforms may be learned from studying the interaction between Scots and English law in the area of defamation. With regards to the drafting of the Act, this research will also explore the increasing trend of defining key concepts of an Act in the explanatory notes rather than in the Act itself, and the implications of this practice.
