Partner - Bannatyne Kirkwood France & Co
Defamation, Privacy and Data Protection
Contributor: Campbell Deane (Partner, Bannatyne Kirkwood France & Co)
The 2021 Act was introduced with the aim of modernising and simplifying the existing law of defamation and placing on a statutory footing the common law rules and statutes. The 2021 Act, to a significant extent, mirrors the Defamation Act 2013 which had very limited applicability to Scotland. (Sections 6, 7(9) and 15).
Prior to the introduction of the 2021 Act, the law of defamation in Scotland was substantially the same as the law in England was, prior to the introduction of the Defamation Act 2013. The issue of “what is defamatory” was frequently decided in Scotland with reference to English authority, usually with Sim v Stretch  2 All ER 1237 as a starting point. However, differences in procedure and practice mean that, for example, an English decision on the particulars of pleading might be less persuasive than one involving the purely legal issue of whether the words complained of were capable of bearing a defamatory meaning. The procedures applicable in the Scottish Courts remain different from England. Whilst defamation is regarded as a personal injury, defamation actions are excluded from the accelerated procedure afforded to reparation cases in the Court of Session.
There is no criminal law of libel in Scotland. Jury Trials (Scotland) Act 1815.
In determining meaning the court must determine whether the words complained of are capable of bearing the defamatory meaning which the pursuer seeks to ascribe to them (Russell v Stubbs Ltd 1913 SC (HL) 14. The court cannot provide a meaning which is not averred. (James v Baird 1916 S.C. (HL) 158). The Scottish courts follow the reasonable reader test referenced in Skuse v. Granada Television Ltd. (Macleod v Newsquest (Sunday Herald) Limited 2007 S.C.L.R 555. A pursuer can only be successful where, as a starting point the meaning identified as the one which the statement did in fact bear, is the meaning pled by the pursuer. If the statement is found to bear a different meaning, then no damages are payable even if the other meaning would be defamatory.
The 2021 Act establishes the actionability of defamatory statements confirming that it applies, where one person makes a defamatory statement about another person. By interpretation, that “person” may be a natural person or an entity, including a corporate body, an unincorporated association, or a partnership. A defamatory statement is defined as one that causes harm to a person’s reputation, and that its effect is to tend to lower the person’s reputation in the estimation of ordinary persons. This follows closely the common law test adopted in Sim v Stretch as regards the nature of a defamatory statement which has been held to represent the law in Scotland (Steele v Scottish Daily Record and Sunday Mail Ltd. 1970 SLT 52).
In a material change from the existing Scots law, under the 2021 Act, the statement complained of must have been published to a person other than the one who is the subject of the statement. Previously, an action lay for injury caused by a defamatory statement even if not published to a third party and only to the aggrieved party. (Mackay v M’Cankie (1883) 10 R 537). Further, the publication of the statement must have caused, or be likely to cause, serious harm to the reputation of the subject of the statement. It is anticipated that the Scottish courts will follow the Supreme Court decision in Lachaux v Independent Print Ltd and another  UKSC 27 that there is a need to show evidence of actual harm caused to reputation, or evidence that there is a likelihood of future harm.
Where the party seeking to bring proceedings is a non-natural person whose primary purpose is to trade for profit, then it is not ‘serious harm’ unless it has caused, or is likely to cause, serious financial loss.
The 2021 Act places on a statutory footing the English common law principle laid down in Derbyshire County Council v Times Newspapers Ltd, that a public authority has no right at common law to bring proceedings for defamation. However, an individual who discharges public functions in the capacity of an office-holder or an employee, is not prevented from bringing defamation proceedings in their personal capacity.
The 2021 Act also limits the circumstances allowing defamation proceedings against someone who is not the primary publisher of a defamatory statement. It establishes that no defamation proceedings may be brought against a person unless that person is the author, editor or publisher of the statement, which is complained about, or is an employee or agent of that person, and is responsible for the content of the statement or the decision to publish it. To some extent the legislation mirrors section 10 of the 2013 Act. The 2021 Act defines the terms ‘author’, ‘editor’ and ‘publisher’ and sets out certain activities that do not amount to those roles and thereafter highlights functions that are not to be taken, to place a person in those categories.
The 2021 Act abolishes the common law defences of innocent dissemination, veritas (justification), Reynolds privilege and fair comment and frames them in statutory format.
In veritas, it is a defence to show that the imputation conveyed by the statement complained of is true or substantially true. Where truth is advanced in defence, then the court will need to consider (i) what imputation (or imputations) are actually conveyed by the statement; and (ii) whether the imputation (or imputations) conveyed are true or substantially true. The defence will apply where the imputation is one of fact. Where veritas is pled, the burden falls on the defender to prove the substantial truth of the allegations.
The 2021 Act introduces a new defence on the basis that the statement in relation to which proceedings were brought, related to a matter of public interest. It is based on the English common law Reynolds Privilege defence and can be viewed as a statutory introduction of Reynolds and subsequent case law, albeit with a change of emphasis. The test centres on the reasonableness of the belief that publication of the statement complained of was in the public interest, rather than the responsible journalism leading to the statement.
The defender must show that the statement complained of was, or formed part of, a statement on a matter of public interest. The defender must also have reasonably believed that it was in the public interest for the statement to be published. This reflects both the subjective and objective elements of the Reynolds Privilege defence. The court must take into account all the circumstances of the case in determining whether the defender has shown that the statement was in the public interest and the defender so believed. The public interest defence also provides for one consideration that is not to be taken into account, namely any failure by the defender to verify the truth of an imputation conveyed by a statement which forms part of an accurate and neutral report of a dispute to which the pursuer was a party. This likely places on a statutory footing, the common law defence of ‘reportage’.
The 2021 Act replaces the common law defence of fair comment with a statutory equivalent, known as honest opinion. It applies only if the defender shows that each of the following conditions are met, namely (i) that the statement complained of was one of opinion, as opposed to one of fact (ii) that the statement complained of must have indicated, either in general or specific terms, the evidence on which it was based and (iii) that an honest person could have held the opinion conveyed by the statement complained of, on the basis of any part of that evidence. The defence fails if the pursuer shows that the defender did not genuinely hold the opinion conveyed by the statement.
The 2021 Act re-enacts the provisions in respect of absolute and qualified privilege in sections 14, 15 and schedule 1 of the 1996 Act, along with sections 6 and 7(9) of the 2013 Act, insofar as applicable to Scotland, subject to various very minor adjustments. Although strictly coming within the ambit of qualified privilege, the law of Scotland provides for a separate defence of fair retort, which is intended to cover cases where a party repudiates the making of a defamatory statement by another. Statements contained in pleadings or instructions to counsel, which carry absolute privilege under English law, attract only qualified privilege under the law of Scotland. Consequently, statements made in judicial proceedings by one of the parties can found an action based on verbal injury provided malice is sufficiently averred. Williamson v Umphray and Robertson (1890) 17R 905
The 2021 Act alters, but only to a very small extent, the offer to make amends provisions under sections 2 to 4 of the Defamation Act 1996. A person against whom proceedings for defamation are brought can offer to make amends as an alternative to defending the proceedings. The offer may relate to the statement in general (i.e. an ‘unqualified offer’), or only to a specific defamatory meaning conveyed by the statement (i.e. a ‘qualified offer’). In making an offer of amends, there is a concession that the statement in general or the specific meaning to which the offer relates is defamatory. The offer to make amends must comprise a suitable correction, either of the statement in general or, in the case of a qualified offer, of a specific defamatory meaning conveyed by the statement. There must also be a sufficient apology, with both this and the correction being published in a manner that is reasonable and appropriate in all the circumstances. The offer must include details of the compensation and expenses which are to be paid by the person making the offer. If they have not so agreed, the level of compensation and expenses will be determined by the court.
The opportunity to make an offer of amends is lost where the person making the offer has lodged defences to the defamation proceedings. The offer must also be made in writing, and state expressly that it is an offer. The Act makes provision in relation to withdrawal and deemed rejection of offers. Provision is also made for an offer to be deemed to have been rejected, by force of law, if not accepted within a reasonable period.
There have been no reported Scottish cases in respect of the discount to be granted to the defender for proceedings by way of offer of amends under the 1996 Act, but it is anticipated that the Scottish courts would grant similar discounts to those in England.
The 2021 Act also establishes a jurisdictional threshold limiting the circumstances in which an action for defamation can be brought in a court in Scotland. Where defamation proceedings are brought in a Scottish court against a person who is not domiciled in the UK, a court in Scotland has jurisdiction to hear and determine such proceedings only if satisfied that, of all the places in which the statement complained about has been published, Scotland is clearly the most appropriate one in which to bring proceedings. Accordingly, where a statement has been published in Scotland and in other jurisdictions, the court will have to look at the overall global picture.
Jury trials are available in Scotland in “enumerated causes” and as such a defamation action can proceed before a jury in the Court of Session only, although historically most defamation cases are decided on the merits by a single judge at proof (trial). (Sections 9 and 11 the Court of Session Act 1988). The 2021 Act removes the presumption that proceedings in defamation are to be tried by jury. The effect is that defamation cases are to be tried without a jury unless a court orders otherwise.
The 2021 Act ends the right to bring proceedings in respect of the forms of verbal injury which exist in Scots common law. The result is that all forms of verbal injury relating solely to injury to a natural person’s feelings are extinguished in terms of the Act. The Act makes provision for statutory equivalents of the common law injuries. Whilst these equivalents relating to economic interests are placed on a statutory footing as malicious publications, the categories relating to injury to a natural person’s feelings are abolished outright.
In the business or profession framework, verbal injury focuses on statements which, though not defamatory, would nonetheless be expected to cause harm, predominantly of a financial nature. The 2021 Act provides for three forms of wrong relating to economic interests, namely, statements causing injury to business interests, statements causing doubt as to title to property, and statements criticising assets, all under the new description of ‘malicious publication’.
Under the 2021 Act, and in similar terms to section 12 of the 2013 Act ,where the court has found in favour of the pursuer, the court can order an unsuccessful defender in defamation, or malicious publication proceedings, to publish a summary of the court’s judgment. It is for the parties to agree (a) the wording of the summary and (b) the time, manner, form and place of its publication but if the parties cannot reach agreement, then the court must determine it.
The 2021 Act brings forward the date on which a right of action accrues in relation to defamation and malicious publications. It also reduces the period, starting from the accrual of the right of action, within which an action must be brought; and it restricts the limitation period applying to subsequent publications of the same or substantially the same material by the same publisher, so that any right of action based on such publications attracts the same limitation period as the first publication. Accordingly, instead of multiple different limitation periods, there is, in cases involving subsequent publication, a single limitation period, running from the date on which the statement complained of was first published to the public or a section of the public. It is only within the one-year period that any action based on subsequent publication of the same or substantially the same material can be brought.
The effect of the single publication rule is that, once a defamatory statement has been published, there will in general be only one limitation period which applies both to any action based on the original publication of the statement and to any subsequent republication. The cause of action will in general accrue on the date on which the statement is first published to the public.
Actions for defamation tend to be much less frequent in Scotland than in England and damages tend on the whole to be lower. The rules appertaining to the award of damages are substantially the same as under English law, except;
(a) the pursuer must in the summons or initial writ state the sum of damages which he claims and this is the maximum figure which can be awarded to him;
(b) Unlike in England the Scottish courts have observed that they do not find comparison with awards made in cases of personal injury particularly helpful or useful in cases of defamation. They have held that every case of defamation is unique in respect of both the content of the slander and its effects upon the victims and it therefore follows that even comparison with other decided cases in defamation is of very limited value.
The Scottish courts tend to disregard English decisions regarding the proper approach to damages altogether. This is, in part, because the Scottish courts are reluctant to have regard to a system where punitive damages are available. Punitive or exemplary damages are not available in Scotland.
The highest award by judge only in Scotland in recent history was of £302,000 following an imputation in a newspaper of impropriety in business methods. Capital Life Insurance v Sunday Mail (1978)
The highest recent award by a jury in Scotland was £200,000 following publication of a story alleging that a prominent political figure was a serial adulterer, swinger and user of prostitutes. Sheridan v News Group Newspapers (unreported, 4 August 2006)
Unlike in England, the Inner House of the Court of Session (Appeal Court) cannot, other than with the consent of the parties, substitute an award which it considers more reasonable for that granted by the court below. The appeal court in Scotland does, however, have the power to grant a new trial limited to the question of damages.
While it may be granted in exceptional cases, civil legal aid is generally not available for defamation and verbal injury proceedings. A 2007 Direction (Civil Legal Aid for Defamation or Verbal Injury Proceedings (Scotland) Direction 2009) issued by the Scottish Executive set out additional criteria, as to which the Legal Aid Board is required to satisfy itself when considering an application for civil legal aid for defamation and verbal injury actions. These criteria are in addition to the normal statutory tests of probably cause, reasonableness and financial eligibility and are that: (a) the case must have a wider public interest or (b) there must be convincing evidence that there are other exceptional circumstances meaning that, without public funding for representation, it would be practically impossible for the applicant to bring or defend the proceedings leading to obvious unfairness. In considering the exceptional circumstances the board is also required to be satisfied that the degree of exceptionality is the same or approximately the same as was defined by the European Court of Human Rights in the case of Steel and Morris v United Kingdom  EMLR 314
Conditional fee arrangements are not available in Scotland. There is, however, a long-standing tradition of speculative actions, involving the principle of “no win, no fee”. Under these legal advisors are permitted to seek higher expenses but the enhancement (“uplift”) is to be taken solely from the damages recovered.
There has historically been no Scottish domestic law of invasion of privacy so far as publication by the media is concerned. However, the Scottish courts, like their English counterparts, are now required to consider the conflicting rights that arise under arts 8 and 10 of the European Convention on Human Rights, following the introduction of the Human Rights Act 1998.
This was the approach of Lord Bannatyne in BC and Others V Chief Constable Police Service of Scotland and Others ( CSOH 48). Lord Bannatyne addressed the question of whether a common law right of privacy existed in Scots law. He considered the development of the common law right to privacy in England and found this of assistance in determining the Scottish position. He accepted the English position would be correct in Scotland and identified a qualified common law right of privacy as part of Scots Law. On appeal  CSIH 61 the Lord Justice Clerk questioned the extent of a general right of privacy under Scots law arguing that the foundation of that reasoning was the decision in Campbell v MGN Ltd  2 AC 457, which essentially rested on the use of confidential information. There was an overlap between confidential information and privacy, since the former was clearly an aspect of the latter, but the case was very focused on the former issue rather than on developing some generally applicable right of privacy. The existence in Scotland of an obligation of confidence had long been recognised, and the need for a confidential relationship had given way to a focus on the knowledge of those possessing the information that it had been imparted in confidence. There was no reason to think that the effect of articles 8 and 10 in respect of this area of the law in Scotland was any different to that in England, but it did not mean that there had thereby been created a widely applicable general right of privacy.
Contributor: Campbell Deane (Partner)
Bannatyne Kirkwood France & Co
16 Royal Exchange Square
The material in this Guide is for general information only and does not constitute legal advice.
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