The word is out: The Defamation and Malicious Publication (Scotland) Act 2021 is now in force

The Defamation and Malicious Publication (Scotland) Act 2021 (“the Act”) was passed unanimously by the Scottish Parliament on 2 March 2021 and received Royal Assent on 21 April 2021. After a long delay, the Act came into force on Monday. The legislation aims to make the law of defamation fit for modern times and to strike the right balance between the protection of reputation on the one hand and freedom of expression on the other. This is particularly important considering the transformation of the media landscape in recent years. Many of the changes mirror the position under English law[1], and the Act will therefore do much to align the law in this area north and south of the border.

Under the Act, a defamatory statement is a statement that would tend to lower a person’s reputation in the estimation of ordinary persons. To be actionable, the statement must be made to a third party (i.e., to someone other than the defamed person) and must cause “serious harm”. Importantly, and in order to protect “uninhibited criticism” of public authorities, public authorities are prohibited from bringing defamation proceedings.

The key changes to the law of defamation are as follows:

1. Serious harm. A threshold test for defamation, known as the “serious harm” test has been introduced. This is a high bar which will serve as a barrier to frivolous claims. The legislation also states that a non-natural person, for example a company, cannot suffer “serious harm” unless serious financial loss is incurred. This brings the law of Scotland in line with that in England and Wales.
2. Secondary publishers. Under the old law, if someone other than the original author, a “secondary publisher”, published a defamatory statement, it would be actionable against them just as it would be against the original author. The law presumed that the secondary publication was intentional. The position is different under the new legislation (probably in part to account for the advent of the social media “endorsements”, e.g. the Facebook “like” or the Twitter “retweet”). The Act provides that no defamation proceedings can be brought unless they are against the author, editor or publisher of the statement, who must be responsible for its content and/or the decision to publish. The Act also specifically provides for statements made in electronic form, providing that a person will not be considered the editor of a statement if they simply publish someone else’s statement or provide a means of access to it in a manner that does not edit the statement, and this does not materially increase the harm suffered by the claimant. So, for example, “liking” a comment on Facebook or “retweeting” a post on Twitter, would not be actionable, so long as that act does not “materially increase” the harm caused. This is a sensible approach to electronic statements which can easily be shared to a wide audience on the internet.
3. Defences.

• The common law defence of “veritas” is abolished and a statutory defence known simply as the “defence of truth” (essentially on the same terms) is included.
• The common law defence of publication of matters of public interest, commonly known as the Reynolds defence after the English case of Reynolds v Times Newspaper Limited [2001] 2 A.C. 127 is also abolished. A replacement statutory defence is included in the new legislation. This requires that the statement is on a matter of public interest and that the publisher believed that publishing it was in the public interest. This defence may be relied upon irrespective of whether the statement complained of is a statement of fact or of opinion.
• The common law defence of “fair comment”, relating to comments or opinions, is abolished. A new section codifies a similarly framed statutory defence of “honest opinion”, again reflecting the position in England and Wales. This defence requires that the statement is an opinion, that the publisher makes clear the evidence on which the statement is based, and the statement constitutes an opinion which any reasonable third party could have established, based on any part of the evidence presented. The defence fails if the publisher cannot prove that the opinion conveyed is genuinely held.
• The Act also makes clear that certain statements will be protected by absolute or qualified privilege. The contemporaneous publication of a statement which is a fair and accurate report of public court proceedings is absolutely privileged. The effect is to exclude (or in the case of qualified privilege, restrict) the bringing of defamation proceedings even where there is evidence that the statement was made with malice. The sorts of statement caught by this privilege include statements made in Parliament and by certain people in court proceedings including judges, lawyers and witnesses. In the case of qualified privilege scenarios (e.g. statements made at local authority meetings) defamation proceedings can only be brought where it can be shown that the statement was made with malice.

• Presumption of jury trial. There has been a longstanding presumption in Scots law that defamation proceedings would be tried by jury. Section 20 of the Act repeals Section 11(b) of the Court of Session Act 1988, which establishes this presumption. This will help to remove some of the uncertainty of litigating in this area.
• Limitation. Under the old law, actions for defamation had to be brought within three years following the publication of the relevant statement first coming to the attention of the person bringing the action. The Act shortens this period to one year and thus brings Scots law into line with that of England and Wales.
• Remedies - offer to make amends. In addition to damages, the Act introduces an alternative remedy known as an “offer to make amends”. Such an offer is made by (a) making a suitable correction of the statement generally or a specific defamatory meaning conveyed by the statement (b) making an apology, (c) publishing the correction and apology in a manner that is reasonable and practicable in the circumstances and (d) paying compensation and reasonable expenses. An offer to make amends must be made in writing and before defences are lodged.
• Malicious Publication. The Act also replaces the old law of “verbal injury” with the wrong of malicious publication. A person may bring proceedings against another where a person has made a false and malicious statement about another’s business or business activities, the person’s title to land or other property, or criticising or denigrating the quality, use or treatment of assets owned by the person. Actionability depends on the communication of the statement to a third party and proof of financial loss (though the second limb can be satisfied if the statement can be shown to be more than likely to cause loss). In terms of the Act the statement is only malicious if it can be shown that the imputation conveyed by the statement was presented as being a statement of fact (as opposed to opinion) and was sufficiently credible to be capable of misleading a reasonable person.

Comment

At first glance, it may be thought that many of the measures introduced by the Act, such as the shortened limitation period, and the introduction of the “serious harm” test, will result in an overall reduction of defamation claims. In fact, the Act is likely to have the opposite effect. It provides much needed clarification of the law in several areas, making good use of English law concepts on which there is already a wealth of English case law. This will do much to increase legal certainty, providing more fertile conditions for litigation.

One aspect of the new legislation that is likely to raise interesting questions is the “secondary publisher” provisions. The Act provides that no defamation proceedings can be brought unless they are against the original author, editor or publisher of the statement, who must be responsible for its content and/or the decision to publish. “Secondary publishers”, such as a person who “retweets” a defamatory statement, cannot be prosecuted unless their actions can be found to have “materially increased” the harm done. It will be interesting to see whether high profile individuals with large online followings are held to a different standard than the average person, which would seem to be the likely consequence of the material increase in harm test.

We will be watching this space with interest to see how the first cases under this legislation proceed.

[1] In particular as set out under the Defamation Act 2013 and the Defamation Act 1996