The Defamation and Malicious Publication (Scotland) Act 2021 was recently passed by the Scottish Parliament.

This Act updates the law of defamation in Scotland and sets it out, in one piece of legislation, for the first time in almost 50 years. It will come in to force in the near future.

In these times of smartphones and social media debate, just how easy will it be to fall foul of the law?

The purpose of any defamation law is to allow individuals to protect their reputation while balancing those protections with the right to freedom of expression.

A statement will be treated as defamatory if it would seriously harm a person’s reputation in the opinion of ordinary people.

The statement has to be made to third person; a statement which is made only to the person himself will not be defamatory. The statement is made when communicated by any means and in a manner that can be accessed and understood by the person receiving it.

There have been several high-profile instances of cases being brought or threatened against individuals who simply retweet, share or provide a hyperlink to a defamatory statement.

The new law makes it clear that someone cannot be sued for defamation for simply retweeting or sharing an existing post.

However, if the statement is altered, say by quote-tweeting or otherwise editing the post, that altered post may still attract liability.

It will be a defence to defamation for the accused person to show that the statement made is true, substantially true or a matter of honest opinion.

It is also a defence if the statement made was on a matter of public interest and the accused reasonably believed that publishing the statement was of public interest.

A person who has made or published a defamatory statement about someone else can make amends by correcting the statement, by giving an apology, by compensation, and/or by taking any other steps that the person who has been defamed might propose.

It will be interesting to see how the courts will apply this new legislation – and whether social media users will take note.