Monitoring of Legal Services – Other areas of law – Defamation
The Scottish Legal Aid Board (SLAB) was given a role in monitoring the availability and
accessibility of legal services in the Legal Services (Scotland) Act 2010. Our role is to
ascertain whether people or organisations are experiencing systemic problems getting the
help they need from solicitors, whether paid for by legal aid or on a private basis.
This paper sets out data collected in relation to the availability of legal services relating to
defamation, and SLAB’s initial assessment for the purposes of its monitoring duty.
Feedback will help us to develop our overall understanding of possible problems with access
to solicitors for the area of defamation.
Overall context for legal services and defamation
Defamation can be defined as ‘the making of a statement or communication of an idea
concerning the pursuer that is both false and defamatory and is made maliciously, to the
pursuer’s loss, injury or damage.’1 According to a 2014 Guardian article, ‘there has been a
23% rise in the number of reported defamation cases in the UK over the past year, up from 70
to 86, according to research by Thomson Reuters.’2 We have been unable to find a breakdown
showing the Scottish caseload specifically. In addition, the figure quoted above appears to
relate to those cases which reached the stage of a court hearing: we are not sighted as to the
number of defamation cases/issues which never reach court but which may nonetheless
involve legal services (i.e those which are settled prior to formal legal action being taken).
In terms of the parties involved in defamation cases, research has shown that defamation
cases are now increasingly likely to involve private individuals as defendants, facing action in
relation to comments made online, particularly in social media. 3 More traditionally, demand
for legal services in this area will also originate from businesses keen to manage their
reputations, as well as newspapers and various other media outlets. Thus, legal services in
the area of defamation will include both those for individuals and other entities who feel
they have been defamed; defence for those accused of defamation; and for publishers,
broadcasters and similar bodies, advice on whether a publication is likely to be defamatory.
We do not expect any other advice providers to have anything more than a very minor role in
this area: we assume that where a natural or legal person wishes to respond to allegedly
defamatory statements, this will usually be through legal action rather than another form of
dispute resolution.
1
Levy and MacRae Solicitors, 2006, Defamation: what price a man’s reputation? P1
http://www.theguardian.com/media/greenslade/2014/oct/20/medialaw-social-media - The figures
provided appear to refer only to cases which actually reached the stage of a court hearing. There are
various alternative figures available concerning the number of defamation cases: for example, an
article on Slater and Gordon’s website states that ‘in 2014, there were more defamation cases than at
any time since 2009. There were a total of 227 cases of alleged libel or slander, up from 142 in 2013.’
(see http://www.slatergordon.co.uk/media-centre/blog/2015/07/what-is-online-defamation/)
3
See http://thomsonreuters.com/en/press-releases/2013/defamation-cases-against-media-groupshalve-in-five-years.html
2
The Scottish Legal Aid Board
1
The Scottish Law Commission is currently undertaking a review of the law of defamation in
Scotland. Disparities between the law on defamation in Scotland, England and Wales, and
Ireland have lead to concerns about a possible ‘chilling effect’ on freedom of speech,4 whilst
updating the law to ensure it keeps pace with technological developments is a further
motivation behind the Law Commission review.5 However, it appears that the availability of
legal services in the area of defamation law has not been emphasised as an issue of possible
concern for the review.
Role of Solicitor Services
The Law Society of Scotland’s Journal notes that the first grant (as opposed to application) of
legal aid for a defamation case was not made until 2012, and that defamation cases are ‘a
type of claim from which legal aid was effectively barred until 2010.’ 6 Whilst there have been
applications under SLAB’s Defamation category from 2008 onwards, the volumes have
consistently been low, as shown by Figure 1, below.
A 2014 SPICe briefing on legal aid and defamation notes that ‘the availability of Civil Legal
Aid in defamation cases is restricted, so that applicants must meet criteria beyond the
tests outlined above if they are to qualify. The restrictions are intended to operate to
prevent Civil Legal Aid being available in most defamation cases.’7
Figure 1 - Defamation Civil Legal Aid Applications, 2008-2014
Defamation Applications
16
14
12
10
8
6
4
Defamation
Applications
2
0
The volumes shown in the figure above are too low to make any comment on trends in legal
aid: this includes on the extent to which defamation cases are concentrated by firm or by
location.
4
See
http://www.heraldscotland.com/news/13182324.Fear_of_a__legal_chill__over_Scots_defamation_law
/
5
http://www.scotlawcom.gov.uk/law-reform/law-reform-projects/defamation/
6
http://www.journalonline.co.uk/News/1011776.aspx
7
SPICe Briefing, 2014, Briefing for the Public Petitions Committee on Petition Number: PE 1525, pp2-3
The Scottish Legal Aid Board
2
We expect there to be legal services available on a privately-funded basis in this area of law,
with provision targeted at both corporate persons (e.g defence for publishers, newspapers)
and individuals (both accused of, or alleging defamation). Whilst we are not sighted as to the
extent of privately funded legal provision in this area, we expect that the volume of cases
will be higher than those funded through legal aid.
The firms which have expertise in this area are likely to be either specialised significantly in
media and defamation law (for instance Bannatyne, Kirkwood, Frances and Co), or large
enough to have teams with specialist expertise in this area (for example Brodies or Slater &
Gordon). We expect that it is unlikely a great number of firms have the specific expertise to
provide advice or representation on this issue.
Geographic Coverage
As suggested above, due to the very small volume of defamation-related legal aid
applications, we are unable to draw any firm conclusions about possible trends, including any
in relation to the geographical distribution of cases and availability of legal services along
these lines.
Reports of problems with access to solicitors or advocates
We have no data available to us, nor reports made to us which suggest that there are any
problems with the availability and accessibility of legal services in this area, in general terms.
We have not been made aware of any specific instances of problems in this area.
Overall summary of the availability and accessibility of legal services
As noted above, there appears to be a lack of robust data available in relation to the total
volume (and location) of defamation claims in Scotland. The very small volumes of legal aid
applications do not allow us to draw firm conclusions on the availability and accessibility of
legal services in this area.
We assume that there will be private legal provision in this area for legal persons (for
instance newspapers and publishers), businesses and for individuals. Notwithstanding the lack
of relevant information on legal services in this area of law, on the limited evidence we have
available, we expect that defamation is a low risk area of law in relation to the availability of
legal services, and that it is unlikely a systemic access problem is occurring.
Probability that a
systemic access
problem is
occurring
1 (low) –
5 (high)
Defamation
1
Reports of actual
instances
of
problems
with
access
1 (no reports) –
5 (consistently
reported systemic
access problems)
1
Exposure
[Probability
Reports]
x
1–4 Green
5-14 Amber
15-25 Red
1
The Scottish Legal Aid Board
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Questions
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Do you have any comments or information on the extent of demand for legal services
in this area of law? Do you have any further statistics on the number of defamation
cases in Scotland, per year?
What do you expect the extent of the private market for legal services is in this area
of law? Would you agree that it may be considerably larger than legally-aided
provision?
In terms of the firms operating in this area of law, do you expect that cases are
concentrated in a few specialist firms, or spread more widely? In a more general
sense, do you have any comments on the numbers and availability of solicitors with
specific expertise in defamation law?
Do you have any comments on the notion that individuals are increasingly the subject
of defamation claims (particularly in relation to online activity and social media)? If
you agree that this is the case, do you have any comments on the availability of legal
services for individuals, as opposed to corporate or legal persons?
Do you have any comments on the availability and accessibility of relevant legal
services on a geographic basis? In particular, are appropriate legal services available in
rural areas?
Consultees
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Bannantyne, Kirkwood, France and Co
Scottish PEN
Libel Reform Campaign
Scottish Newspaper Society
Publishing Scotland
International Media Lawyers Association
National Union of Journalists (Scotland)
Law Society of Scotland – Civil Justice Committee
The Scottish Legal Aid Board
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