Defamation in Scots law: consultation

Part One: Introduction

1. In May 2014 the Scottish Law Commission (“the Commission”) launched a public consultation exercise seeking ideas and suggestions for law reform projects thought to be suitable for inclusion in their Ninth Programme of Law Reform.^[1] A substantial number of responses proposed a review of the law of defamation in Scotland. Attention was drawn to major reform of this area of law in England and Wales, the result of which is the Defamation Act 2013 (“the 2013 Act”).^[2]

2. The Commission published their Discussion Paper in March 2016, and then consulted on a draft Defamation and Malicious Publications (Scotland) Bill.^[3] In formulating their recommendations the Commission took full account of the views expressed by stakeholders during the course of their reform project. The full list of recommendations can be found in the Commission’s Report on Defamation published in December 2017.^[4]

3. Before bringing forward changes to the law of defamation it is vital to explore and understand the different perspectives on the range of issues raised in order to inform our policy decisions. In taking forward consideration of the Commission’s recommendations the Scottish Government’s aim is to ensure that any changes to the law of defamation achieve the right balance between the fundamental values of freedom of expression on the one hand and the protection of reputation on the other, while ensuring access to justice.

Defamation law in Scotland against the background of the 2013 Act

4. The law of defamation in Scotland as it currently stands is mainly based on the common law, with some statutory provisions.^[5] While the common law sets out the main principles, a shortage of modern Scottish case law has resulted in some areas where the law has not developed in line with other systems.^[6] Since the end of the Second World War there have been few reported cases each year in the Court of Session and even fewer in the Sheriff Court. This has given rise to a tendency of Scottish courts and practitioners to follow decisions of the English courts. The decisions of the European Court of Human Rights (ECtHR) on the Article 10 right to freedom of expression and the Article 8 right to private life are other sources of authority for Scottish courts and practitioners.

5. In England and Wales, the 2013 Act restated in statutory form many of the most important common law principles of defamation law, while also making a number of significant substantive changes to the law: the defences of justification, fair comment and Reynolds privilege are now restated in statute; there is a new statutory provision on the requirement to show serious harm; an extended defence for website operators; and a new ‘single publication’ rule.

6. The impetus for the 2013 Act is often traced back to the enactment by various US legislatures of statutes preventing enforcement of foreign, particularly English, libel judgments within their jurisdictions, for example the Securing the Protection of our Enduring and Established Constitutional Heritage Act 2010 (the SPEECH Act).^[7] The principal concern of the US legislatures was ‘libel tourism’, which involves foreign defenders being sued in the courts in England and Wales in circumstances where there is only modest publication of the defamatory statement within that jurisdiction. This is seen as having a chilling effect on freedom of expression partly because of the high costs associated with English libel actions that makes defending an action prohibitively expensive for most, and partly because other jurisdictions may provide more extensive defences. Consequently, to prevent publication, an action may be threatened to be initiated in England.

7. The reaction of American legislatures added to the perception that the law of defamation was being exploited by well-placed individuals to constrain criticism in addition to more general concerns about the impact of defamation law on investigative journalism. This helped to energize a campaign to reform English libel laws, prompting two charities - English PEN and Index on Censorship - to assess the impact of English libel law on freedom of expression, both in the UK and internationally. These bodies were joined by other organisations, including Sense About Science, in forming the ‘Libel Reform Campaign’.

8. The civil society campaign and the consequent public interest in reform of defamation law led to three UK political parties committing to reform of libel law in their manifestos for the General Election held in May 2010. There was substantial pre-legislative scrutiny of the proposed reform of defamation law in England and Wales, and the Bill received Royal Assent on 25 April 2013. With the exception of a small number of provisions the Scottish Government elected not to extend the 2013 Act to Scotland.^[8]

9. At the time the Scottish Government’s view was that the law here had not attracted the same criticism as the law south of the border and there were therefore no plans for wholesale reform. This was borne out by the fact that when the Commission called for suggestions for areas of reform to be included in their Eighth Programme of Law Reform, defamation law was not seen as a priority. It was considered that Scots law in this area was robust enough for present purposes and had generally attracted little criticism, calls for review and reform being few and far between. Clearly this view had changed by the time of the Commission’s consultation on its ninth programme.

10. While the 2013 Act forms the background to the Commission’s reform project, the Commission considered the comments and criticisms made of sections of the 2013 Act in making their recommendations on appropriate reform of the Scots law of defamation.^[9]

11. At the end of this chapter is a list of the Commission’s recommendations with which the Scottish Government are minded to proceed without further testing.

12. This consultation paper therefore focuses on areas of defamation law where respondents to the Commission’s reform project have raised a variety of issues. These are:

• The statutory threshold test of serious harm;
• Proceedings against secondary publishers;
• The defence of honest opinion;
• Offers to make amends;
• Malicious publications; and,
• Limitation and the multiple publication rule.

Structure of the Consultation Paper

13. As far as possible each chapter of this consultation is focused on a single area of defamation law. At the beginning of each chapter the corresponding section of the Commission’s Discussion Paper and Report that deals with that same area is identified as readers of this consultation paper may find this useful in understanding the wider context of the debate. An outline of the position in Scots law is given, along with a description of the issue raised by respondents to the Commission’s reform project. At the end of each chapter there is a list of the Commission’s recommendations made in that specific area.

Responding to this consultation

14. We are inviting responses to this consultation by 5pm on 05 April 2019.

Replying on-line using Citizen Space

15. Please respond to this consultation using the Scottish Government’s consultation hub, Citizen Space (http://consult.gov.scot). Access and respond to this consultation online at https://consult.gov.scot/justice/defamation-in-scots-law. You can save and return to your responses while the consultation is still open. Please ensure that consultation responses are submitted before the closing date of 5pm on 05 April 2019.

Replying by post

16. If you are unable to respond using our consultation hub, please complete the Respondent Information Form and send to:

Not accepting responses by email

17. We will not accept responses submitted by email.

Handling your response

18. If you respond using the consultation hub, you will be directed to the About You page before submitting your response. Please indicate how you wish your response to be handled and, in particular, whether you are content for your response to be published. If you ask for your response not to be published, we will regard it as confidential, and we will treat it accordingly.

19. All respondents should be aware that the Scottish Government is subject to the provisions of the Freedom of Information (Scotland) Act 2002 and would therefore have to consider any request made to it under the Act for information relating to responses made to this consultation exercise.

20. If you are unable to respond via Citizen Space, please complete and return the Respondent Information Form included in this document.

21. To find out how we handle your personal data, please see our privacy policy: /privacy/

Next steps in the process

22. Where respondents have given permission for their response to be made public, and after we have checked that they contain no potentially defamatory material, responses will be made available to the public at http://consult.gov.scot. If you use the consultation hub to respond, you will receive a copy of your response via email.

23. Following the closing date, all responses will be analysed and considered along with any other available evidence to help us. Responses will be published where we have been given permission to do so. An analysis report will also be made available.

24. After the consultation, the Scottish Government will publish their response to the consultation.

Comments and complaints

25. If you have any comments about how this consultation exercise has been conducted, please send them by post to the contact address above or by email to Defamation.consultation@gov.scot

Scottish Government consultation process

26. Consultation is an essential part of the policymaking process. It gives us the opportunity to consider your opinion and expertise on a proposed area of work.

27. You can find all our consultations online: http://consult.gov.scot. Each consultation details the issues under consideration, as well as a way for you to give us your views, either online or by post.

28. Responses will be analysed and used as part of the decision making process, along with a range of other available information and evidence. We will publish a report of this analysis for every consultation. Depending on the nature of the consultation exercise the responses received may:

• indicate the need for policy development or review
• inform the development of a particular policy
• help decisions to be made between alternative policy proposals
• be used to finalise legislation before it is implemented

29. While details of particular circumstances described in a response to a consultation exercise may usefully inform the policy process, consultation exercises cannot address individual concerns and comments, which should be directed to the relevant public body.

Impact Assessment

30. It is important to ensure that any resulting legislation, which has the potential to impact on us all, is robust and durable, with no unintended consequences and that it takes account of all relevant perspectives, including equalities considerations and any potential financial and regulatory implications.

31. As part of the consultation process, we hope to be able to gather information to enable us to assess the impact and costs of implementing any of the proposals, or indeed of not doing so, from the perspective of a range of interests. Previous experience in this area has revealed that such information can be difficult to access.

32. It is therefore important that we produce as robust financial and other impact assessments as possible if, following consultation, we are to take forward legislation which will be subject to close scrutiny by the Scottish Parliament.

33. As part of their reform project, the Commission have published a Business and Regulatory Impact Assessment (BRIA).^[10] This contains a detailed analysis of the practical impacts of the proposed reforms. It would be extremely helpful if you would consider this document in the context of any specific evidence and/ or wider knowledge, experience and expertise you may have.

1. Do you agree with the analysis contained in the Commission’s Business and Regulatory Impact Assessment (BRIA)? If not, please explain your reasons for disagreement.

Recommendations the Scottish Government are minded to proceed with

34. The Commission gave consideration to the possibility of enabling defamation actions to be brought on behalf of people who have died, in respect of statements made about them after their death.^[11] On this issue, they did not make any recommendation.^[12]

35. The Scottish Government have previously given consideration to some of the key issues relating to protections available in Scotland for a deceased person’s reputation.^[13] This included the principle of whether the law should be extended to allow relatives to bring a defamation action on behalf of a deceased person in circumstances where defamatory comments are made posthumously about the deceased. The Scottish Government, after consultation, took the view that extending the law to protect the reputation of a recently deceased person may not be the most appropriate means of achieving the aim.^[14]

36. Given the extensive consultation on this matter and having given consideration to the responses received during both consultations,^[15] the Scottish Government is minded to follow the approach of the Commission and thereby make no provision that would enable defamation actions to be brought on behalf of people who have died, in respect of statements made about them after their death.

37. The Scottish Government are minded to proceed with the other following recommendations:

1. It should be competent to bring defamation proceedings in respect of a statement only where the statement has been communicated to a person other than its subject, with that person having seen or heard it and understood its gist.

9. A statutory defence of truth should be introduced. The defences of veritas at common law and justification under the Defamation Act 1952 should be abolished.

15. A statutory defence of publication in the public interest should be introduced. The Reynolds defence should be abolished.

16. The statutory defence of publication in the public interest should extend to statements of fact and to statements of opinion.

17. The statutory defence of publication in the public interest should make specific provision for reportage. In particular, it should be provided that in determining whether it was reasonable for a defender to believe that publication was in the public interest,

(a) allowance must be made for editorial judgment, where appropriate; and,

(b) no account should be taken of any failure by a defender to take steps to verify the truth of the imputation conveyed by a statement if the statement was or formed part of an accurate and impartial account of a dispute to which the pursuer was a party.

18. Any review of responsibility and defences for publication by internet intermediaries should be carried out on a UK-wide basis.

19. As part of any UK-wide review of liability and defences of internet intermediaries, consideration should be given to (a) whether there is scope to clarify the operation of existing provisions, rather than creating new provisions and (b) if so, whether this would be most appropriately achieved by means other than legislation.

20. Generally, defamation proceedings should not be capable of being brought against a person, unless the person is the author, editor or publisher of the statement in respect of which the proceedings are to be brought or is an employee or agent of such a person and is responsible for the content of the statement or the decision to publish it.

23. There should be no change to Scots law in relation to absolute privilege for statements made in the course of parliamentary proceedings.

24. Section 14 of the Defamation Act 1996 should be repealed and re-enacted in a new Defamation Act so as to reflect in Scots law the change effected by section 7(1) of the 2013 Act for England and Wales in relation to absolute privilege for contemporaneous reports of court proceedings anywhere in the world and of any international court or tribunal established by the Security Council or by an international agreement.

25. The law on privileges should be extended by allowing qualified privilege to cover communications issued by a legislature or public authority outside the EU or statements made at a press conference or general meeting of a listed company anywhere in the world.

26. The privileges of the Defamation Act 1996 should be restated for Scotland in a new statute.

27. There should be no reform of Scots law in relation to qualified privilege for publication (through broadcasting or otherwise) of Parliamentary papers or extracts thereof, for the time being.

28. Consideration of any future reform relating to this area should be carried out on a UK-wide basis.

29. The scope of section 6 of the 2013 Act should not be expanded but its current terms should be restated in a new Act for Scotland.

30. There should be no change to the law governing the granting of interdict and interim interdict in defamation actions or in proceedings under Part 2 of the Bill.

31. The offer of amends procedure should be incorporated in a new Defamation Act.

32. There should be a statutory provision to the effect that an offer of amends is deemed to have been rejected if not accepted within a reasonable period.

33. In defamation proceedings and in Part 2 proceedings the court should have power to order that the defender must publish a summary of its judgment.

34. In defamation proceedings and in Part 2 proceedings the court should have statutory power to allow a settlement statement to be read out in open court.

35. In defamation proceedings and in Part 2 proceedings the court should have statutory power, at any stage in the proceedings, (a) to order the operator of a website to remove a defamatory statement or (b) to order the author, editor or publisher of such a statement to stop distributing, selling or exhibiting material containing it.

40. A court in Scotland should not have jurisdiction to hear and determine defamation proceedings against a person who is not domiciled in the UK, another Member State or a state which is a contracting party to the Lugano Convention, unless satisfied that Scotland is clearly the most appropriate place to bring the proceedings. This should not affect the availability of the defence of forum non conveniens, where appropriate.

41. The presumption in favour of jury trials in defamation actions should be replaced by a discretionary power to allow the court to appoint the form of inquiry, including jury trial, best suited to the circumstances of the case.

42. The principles underlying the three categories of verbal injury which relate to economic interests (i.e., falsehood about the pursuer causing business loss, slander of title and slander of property) should be retained.

43. The common law rules relating to these categories of verbal injury should be abolished and instead expressed in statutory form.

44. Verbal injury should be renamed by a term which reflects more accurately the type of conduct it seeks to address (i.e., malicious publication).

45. The three categories of verbal injury relating to economic interests should be renamed, to reflect more clearly the types of conduct they seek to address (i.e., statements causing harm to business interests, statements causing doubt as to title to property and statements criticising assets).

46. The common-law rules providing for verbal injury relating to individuals should be abolished.

47. There should be no requirement on the pursuer in proceedings under Part 2 of the draft Bill to show financial loss if the statement complained of is more likely than not to cause such loss.

48. The “single meaning rule” should not apply in relation to proceedings brought under Part 2 of the draft Bill.

49. Anxiety and distress should be capable of being taken into account by the court in determining the appropriate amount of general damages, in so far as such anxiety and distress flows from economic damage to business interests caused by the relevant statement.