Defamation in Scots law: consultation

Part Four: Defences - Honest opinion

112. The focus of this chapter is the defence of fair comment (re-labelled honest opinion in the Commission’s draft Bill) available to a defender in defamation proceedings under Scots law.^[59]

113. The Scots law of defamation recognises a difference between comment and a statement of fact. Comments (which include opinion) can be recognised by readers as a point of view, and as such they can either be agreed or disagreed with. A statement of fact, however, cannot be treated in a similar manner. If a comment is defamatory it is not actionable where the defence of fair comment applies. As recently affirmed by the Inner House of the Court of Session, the defence of fair comment is, “[t]he expression of an opinion as to a state of facts truly set forth [which] is not actionable, even when that opinion is couched in vituperative or contumelious language.”^[60]

114. For a defence of fair comment to succeed the words complained of must:

• be shown to be comment (and not a statement of fact);
• the facts from which the comment is derived must be stated, or else implicitly specified;
• the facts on which the comment are based must be true, or protected by privilege; and finally,
• the comment must be on a matter of public interest.

115. If these requirements are met then the burden of proof shifts to the pursuer to show that the comment was not fair.^[61]

116. The technical complexity of applying the defence means that it is less effective and less frequently invoked than it may otherwise be in protecting freedom of expression. The shortage of modern Scottish case law on the defence adds to the difficulties. The Commission recommend placing the common law defence on a statutory footing because of these uncertainties, thereby making the defence both clearer and more accessible. They also recommend renaming the defence ‘honest opinion’.

117. While the Commission recommend restating the common law defence, they also seek to recast it. They recommend that a comment need no longer be on a matter of public interest, in part because the scope of “public interest” has been greatly expanded over the years.

118. Given the view expressed by a majority of respondents, the Commission recommend the retention of the requirement that the comment or opinion must be one in which its maker honestly believed. It was pointed out, however, that such a provision would likely have the effect of restricting freedom of expression as authors who use rhetorical devices like parody or satire may not be able to rely on this new defence. It was said that the way the author chooses to express themselves is not necessarily a clear indication of their honestly held opinion.^[62]

119. With respect to another condition of the recast defence – that the facts on which the comment are based must be stated, or else implicitly specified - some respondents have questioned whether such a qualification is needed. The purpose of such a qualification would be to make clear that in circumstances where the relevant facts are known (or likely to be known by those receiving the publication) there is no requirement to establish their evidential basis (and whether such evidence need be from a primary source, or whether from a trusted source such as a national newspaper). An example would be where a user re-tweets a linked article and provides opinion. The Commission take the view that any such qualification would simply lead to unnecessary debate about what facts were known and what facts were not known.

120. Against this discussion we ask the following questions:

16. Should the defence of honest opinion make allowance for instances where rhetorical devices are used to express an opinion conveyed by the statement that the defender does not genuinely hold? If so, can you provide instances where such a device may have been considered defamatory?

17. Do you agree that the second condition of the recast defence of honest opinion should be capable of taking into account situations where the relevant facts are likely to be known to readers?

Summary of recommendations

121. The following is a list of the Commission’s recommendations relevant to Part Four of this consultation paper:

10. A statutory defence of honest opinion should be introduced. The defences of fair comment at common law and under the Defamation Act 1952 should be abolished.

11. It should not be a requirement of the defence of honest opinion that the opinion expressed relates to a matter of public interest.

12. The statutory defence of honest opinion should be available in relation to a statement of opinion including a statement drawing an inference of fact which:

(a) indicates either in general or specific terms the evidence on which it is based; and
(b) is such that an honest person could have held the opinion conveyed by the statement on the basis of any part of that evidence.

13. The statutory defence of honest opinion should fail if it is shown that the person who made the statement did not genuinely hold the opinion conveyed by the statement.

14. Where the statement complained of was published by one person but made by another, the previous recommendation should be inapplicable and the statutory defence of honest opinion should fail if it is shown that the person who published the statement knew or ought to have known that the author of the statement did not genuinely hold the opinion conveyed by the statement.