March 2021 – Defamation Law Revamped

Author: Mitchells Roberton
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  • The Defamation and Malicious Publication (Scotland) Bill was passed by the Scottish Parliament on 2nd March (by 118 votes in favour with none against and no abstentions).
  • In a nutshell: in the new Bill a statement about a person is said to be defamatory if it causes harm to the person’s reputation i.e.  if it tends to lower the person’s reputation in the eyes of ordinary persons. But, in terms of the new Bill, the right to bring defamation proceedings only arises if the publication of the statement has caused (or is likely to cause) serious harm to the person defamed.
  • More generally, the Community Safety Minister, Ash Denham said:

“Parliament has backed this important legislation to modernise the law covering defamation. The existing laws have been spread across several statutes and areas of common law, some of which were decided more than 100 years ago.

Clearly modern society communicates in vastly different ways, and specifically the speed and accessibility of social media has increased the potential for unfair damage to reputation. Defamation law can also potentially impact many more people than a generation ago.

This Bill brings the law up to date and simplifies it in key areas, while striking an appropriate balance between freedom of expression and the protection from unfair damage to reputation.”

 As to something a bit more specific here are some of the main things the Bill does:

  • It provides that for a defamatory statement to be actionable it must have been published to someone other than the subject of the statement. Under the old “common law” of defamation a defamatory statement was, in principle, actionable even where a defamatory statement was made only to the person who was the subject of it and no-one else . But, in that situation, there could not really be any damage to reputation. So, the new law is to be more realistic and will only apply where a statement is published to otherslaw
  • It provides that in order to be actionable the publication of the statement must have caused (or be likely to cause) serious harm to the reputation of the claimant. The new Bill provides that where a statement has not caused serious harm to reputation there should be no right to sue. Apart from anything else this is aimed at preventing defamation actions being used as a weapon by the rich and powerful to try to silence unwelcome criticism.
  • Under the old law there was a principle known as the Derbyshire principle whereby defamation actions could not competently be brought by public authorities. The Bill puts that principle onto a statutory footing for the first time. It baldly provides: “A public authority may not bring defamation proceedings”. It then goes on to provide an elaborate definition of  the term “public authority” and provides “for the avoidance of doubt” that an individual who is an employee or officer of a “public authority” may sue in a personal capacity.
  • The Bill aims to prevent defamation actions being brought against “secondary publishers” – those other than the authors, editors or commercial publishers of material containing defamatory statements. There are some exceptions to this; for example, where the harm caused by publication is materially increased because it has been republished to a much larger audience.
  • It may be noted  however that the Bill does provide for Scottish Ministers making regulations to specify categories of persons who are to be treated as publishers of a statement for the purpose of defamation proceedings despite not being the author, editor or commercial publisher of the statement.
  • The Bill restates in modern terms the main defences available in defamation actions, replacing common law equivalents; these include the defences of truth and of honest opinion.
  • It introduces a statutory defence of publication on a matter of public interest so that the law explicitly recognises a defence of publication where it is in the public interest. This is clearly of importance in relation to investigative journalism.
  • It removes the presumption that proceedings are to be tried by a jury.
  • It provides for the abolition of “common law” notion of  verbal injury in so far as it relates to injury to feelings, but also creates statutory equivalents of verbal injury affecting business interests. In particular, in relation to business interests and “malicious publication”, a pursuer does not need to show financial loss if the statement complained of is more likely than not to cause such loss.
  • It strengthens the powers of the courts in granting remedies in defamation actions; in particular: (a) the courts may order the operator of a website on which a statement complained of is posted to include on the website a prominent notice that the statement is subject to proceedings, or to remove the statement; and (b) the courts order any person who was not the author, editor or publisher of the statement to stop distributing, selling or exhibiting material containing the statement.
  • It makes provision to reduce the limitation period within which defamation actions can be brought from three years to one. Under the old law a person can allow three years to go by before suing for defamation. This was thought to be too long. Where there has been genuine damage to reputation this should become clear quickly. So the three year time limit is  reduced to one year.

 

Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Paul Neilly: email pdn@mitchells-roberton.co.uk

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