Defamation

10 October 5, 2021

Defamation in Scottish Law

Case Law

Case law is primarily law determined by the courts as cases progressed, sometimes called common law, it is not law that is written but law that builds upon previous determinations within the court system.

Until recently (April 2021) this was pretty much the primary way defamation cases were determined in Scotland – which is why there were very few defamation cases in Scotland, most people sued others in England, where the law was much clearer, and enshrined in statues by parliament.

Statutory Law (Laws of State)

Because of the new legislation, I have covered as much of it as I can, as quickly as I can for you here.

Defamation and Malicious Publication (Scotland) Act 2021

Part 1: Defamation

  • Section 1: Actionability and restrictions on bringing proceedings
  • Section 2: Defences
  • Section 3: Absolute Privilege
  • Section 4: Qualified Privilege
  • Section 5: Offers to make Amends
  • Section 6: Jurisdiction
  • Section 7: Removal of presumption that proceedings are to be tried by jury

Part 2: Malicious Publication

  • Section 1: Actionable types of malicious publication
  • Section 2: General Provision
  • Section 3: Abolition of common law verbal injuries

Part 3: General

  • Section 1: Remedies
  • Section 2: Limitation
  • Section 3: Miscellaneous

Part 1: Defamation

Applies to a defamatory statement made or published by a person about another person.

A right to bring defamation proceedings in respect of the statement accrues only if Person A has published the statement to a person other than B, and the publication of the statement has caused (or is likely to cause) serious harm to the reputation of Person B.

Defamation and Malicious Publication Act (Scotland) 2021, Part 1, Section 1

This also applies to defamation against a ‘non-natural person’ (aka a business or commercial enterprise).

The ‘threshold’ of ‘serious-harm’ to the reputation of a corporate enterprise is higher than for an individual, it must be likely to cause or has caused “serious financial loss” to the ‘non-natural person’.

What is Defamation?

A statement about a person is 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)

What does to ‘publish’ mean?

A reference to publishing a statement is a reference to communicating the statement by any means to a person in a manner that the person can access and understand, and a statement is published when the recipient has seen or heard it.

Who can & Who cannot bring a case of defamation?

Cannot

Public Authorities cannot – this includes government at all levels and organisations working for the government; as well as Scottish Ministers (including the organisations they ‘own’)

Can

Individuals, business, charities and any Non-Governmental Organisation CAN bring cases of defamation – even IF they ‘occasionally’ are subcontracted by the government.

Who can be guilty of defamation?

  • The author of the statement (Author = means the person from whom the statement originated, but does not include a person who did not intend the statement to be published)
  • The editor of the statement (Editor = means a person with editorial or equivalent responsibility for the content of the statement or the decision to publish it)
  • The publisher of the statement (Publisher = means a commercial publisher (that is to say, a person whose business is issuing material to the public or to a section of the public) who issues material containing the statement in the course of that business.)
  • An employee or agent of one of the above AND is responsible for the statement’s content or the decision to publish it.

Digital Publication

You are not a ‘publisher’ or ‘editor’ in a digital context IF you:

  • publishing the same statement or providing a means to access the statement (for example a hyperlink) in a manner which does not alter the statement,
  • or marking the person’s interest in, approval of or disapproval of the statement in a manner which does not alter the statement (typically by means of a symbol)

AND IF YOUR involvement does not materially increase the harm caused by the publication of the statement.

THIS ARTICLE IS INCOMPLETE