Background
The Defamation and Malicious Publication (Scotland) Act 2021 (the Act) became law on 21 April 2021. The substantive provisions of the Act have now come into force (as at 8 August 2022). The purpose of the new legislation is to simplify and modernise the law of defamation in Scotland.
Before the new Act, the law of defamation in Scotland was based in the common law, spread across various judgments in a ‘patchwork quilt’ of case law. When the new Act comes into force, the law of defamation in Scotland will finally be codified. Consequently, the legal principles underpinning the law of defamation will never have been more transparent and readily accessible to practitioners and laymen alike
The law has also been updated to reflect the digital age, in which individuals can broadcast their views to the world in a matter of seconds via social media.
Actionability of defamatory statements
Defamation is defined under the new Act as the publishing of a statement which has caused, or is likely to cause, serious harm to the reputation of another, that is, if it tends to lower the person’s reputation in the estimation of ordinary persons. The defamatory statement must be published to someone other than the individual being defamed. Notably, a statement is said to be ‘published’ when the recipient has seen or heard it.
Where private companies or other legal entities seek to raise an action for defamation, they must prove that they have suffered serious harm in the form of financial loss. The Act also provides that public bodies cannot sue for defamation.
Under the new Act, defamation proceedings cannot be brought against anyone other than the author, editor or publisher of the statement or the employee of such a person who is responsible for the statement’s content and/ or the decision to publish it.
Importantly, a person is not deemed to be an editor, employee or agent responsible for the content or decision to publish if their involvement was merely providing a means to access the statement, marking the person’s interest in, approval of or disapproval of the statement in a manner which does not alter the statement.
Notably, their involvement must not materially increase the harm caused by the publication of the statement. For example, ‘liking’ a potentially defamatory statement on social media would not ordinarily attract liability (except where doing so materially increases the harm caused by the statement), however, ‘sharing’ a potentially defamatory statement authored by a third party may attract liability, particularly, where doing so materially increases the harm caused by the statement.
This distinction could arguably create a double standard where individuals with a large audience may be liable for sharing potentially defamatory statements in circumstances where ordinarily members of the public may not be. It remains to be seen how these provisions will be interpreted by the courts and where the line will be drawn in defining serious harm.
Malicious publication
The Act also lists instances where an action for malicious publication, replacing the law on verbal injuries, can be brought. These are:
- Where a statement caused harm to business interests
- Where a statement caused doubt to title to property
- Where a statement criticised assets.
To be successful in an action for malicious publication the pursuer needs to prove that a statement is known to be false or that the defender was “recklessly indifferent to the truth” and that it was made maliciously. In the specific instances noted above, a pursuer does not need to show financial loss if the statement complained of is more likely than not to cause loss.
Defences
The Act also sets out defences to defamation. They are:
- That the statement made is true, or substantially true.
- That the defamation was in the public interest, regardless of whether the statement was a fact or an opinion.
- That the defamation was an honest opinion based on evidence. In order for this defence to succeed, the court must determine that an honest person could have held the opinion conveyed by the statement on the basis of any part of the evidence referenced. The defence fails if it is determined that the defender did not genuinely hold the opinion conveyed by the statement.
- The defence of qualified privilege also exists in a limited set of circumstances, for example, in peer reviewed academic writing.
It should be noted that the old defences under the common law, namely, innocent dissemination, veritas, Reynold’s defence and fair comment now cease to have effect under the new Act.
Remedies
The remedies for defamation outlined in the Act include, in addition to damages, allowing the defender to publish the court’s judgment, allowing a settlement statement to be read out in open court and ordering the operator of a website to remove the defamatory statement in its entirety or to issue a notice that the statement is subject to court proceedings.
It should be noted that anxiety and distress can be taken into account by the court in determining the appropriate amount of general damages.
Limitation
The new Act provides that an action for defamation can only be raised up until the one-year period from which the defamatory statement was made. This brings the Scots law of defamation in line with the English approach. Theoretically this will limit the volume of claims being advanced by pursuers in comparison to the old law which allowed claims to be brought within a period of 3 years.
Notably, the limitation period is deemed to run from the date of first publication regardless of whether the statement is republished on subsequent occasions. However, this is subject to the exception that the limitation period may reset where the court determines that the manner of the subsequent publication is materially different from the manner of the first publication. In determining this, the court may have regard to (a) the level of prominence that the statement is given; (b) the extent of the subsequent publication; and (c) any other matter that the court considers relevant.
Comment
The new Act appears to seek to address the ever-increasing presence of ‘social media influencers’ in our society. The focus on effect (i.e. the ‘serious harm’ test) over cause arguably creates a double standard, but in doing so, arguably apportions a commensurate level of responsibility and accountability to those who command the attention of a large audience.
The codification of the common law within the new Act ought to make the law more easily accessible both to practitioners and the general public alike. It remains to be seen whether this will have an impact on the volume of claims coming before the courts. However, the reduction of the limitation period to 1 year and other provisions of the Act, such as the restriction on proceedings against secondary publishers, may serve as a counterbalance to any potential increase in claims due to the improved transparency of the law.
The Act should also be commended for its contemporary approach to remedies, giving the courts a wider range of options to redress the impact of defamatory statements, beyond mere damages. This appears to recognise that the cost of damage to one’s reputation cannot always be measured financially.
Finally, the ‘Offers to make amends’ provisions of the Act appear to seek to provide another means of resolving disputes, allowing parties an alternative to taking costly court actions to their ultimate conclusion. This is to be welcomed in light of the reality that the cost of litigation remains a barrier to defamation claims.
If you would like to discuss any issues raised above, our Dispute Resolution and Litigation experts would be happy to help.
This article was jointly written by Brian Pollock and Sophie Richardson.
