Raising the Bar: Reforming Defamation Law in Scotland

The Defamation and Malicious Publication (Scotland) Act 2021 passed by the Scottish Parliament last year has finally come into force. Despite the advances in technology and the frequent use of social media to broadcast thoughts and opinions at the click of a button, until now, there had not been substantive changes to the law of defamation in Scotland since 1996.

The Scottish Law Commission recognised the need to address this in their report from 2017. Fundamentally, their recommendations aimed to simplify and modernise the law of defamation This has been implemented through a number of changes as outlined below:-

  1. Defining Defamation

Under the new Act, a statement will only now be treated as defamatory if it has been published to a person other than to the individual being defamed. A statement is ‘published’ when the recipient has seen or heard it. Previously, a statement would be considered defamatory even if sent only to the person who was the subject matter of the statement. The changes do not stop here. The Act introduces a ‘serious harm’ threshold, which must be met in order to be actionable. A claimant now need to show that publication of the statement has caused (or is likely to cause) serious harm to their reputation. That is, if it tends to lower the person’s reputation in the estimation of the ordinary person.

Companies can also bring defamation proceedings but they must prove that they have suffered (or are likely to suffer) serious financial loss by the statement. The Act also provides that public bodies cannot sue for defamation. The new serious harm test certainly seems to align Scotland with the law of libel in England and Wales, and which is governed by the Defamation Act 2013.

  1. Liability

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 or the decision to publish it.

In a digital age, there are also provisions to protect those using social media platforms as a method by which to signify their interest or otherwise in relation to a published statement – they are referred to in the Act as “electronic secondary publishers”. Provided their interaction does not extend beyond publishing the statement in its original form, or providing a means to access the statement (for example a hyperlink) in a manner which does not alter the statement, then the Act provides that electronic secondary publishers cannot be held liable. That is provided that their involvement does not materially increase the harm caused by the publication of the statement.

  1. Time Limits for Claims

Prior to the new Act coming into force, common law in Scotland provided for a three-year limitation period in which a to raise a claim for defamation. The new provisions significantly reduce this to a period of one year from the date of first publication (regardless of whether the statement is re-published). The one-year limitation further brings the position in Scotland into line with that in England. However, the limitation period may reset where the court determines that the manner of a 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.

  1. Defences

The Act has codified and altered the defences to defamation. Those available include truth, public interest, honest opinion, and both absolute and qualified privilege.

The means by which claims of defamation can be resolved are also now set out in the Act. A person can “make amends” for publication of a defamatory statement by making a suitable correction of the statement, giving a sufficient apology, publishing the correction and apology in a manner that is reasonable and practicable, paying such compensation as may be agreed or determined, and taking any such other steps that the person who has been defamed may propose.

Conclusion

The changes introduced under the Act will likely see a reduced number of claims coming before the court but it is too early yet to know how the courts will interpret these new provisions or where the line will be drawn in defining ‘serious harm’. Nevertheless, the codification of the common law within the new Act should finally make this area of law more accessible and transparent to practitioners and lay persons alike.

If you would like to discuss any issues relating to defamation, a member from our Litigation team would be happy to help and can be contacted on 0131 526 3280 or 01955 604188.