Defamation in Scots law: consultation

Part Six: Types of verbal injury

130. The focus of this chapter is on reform of the Scots law of verbal injury (which the Commission recommend be renamed as ‘malicious publication’).^[66]

131. Defamation is not the only type of civil action available for an aggrieved party to seek redress for damage to reputation. Similar to defamation, verbal injury is a common law civil wrong that covers statements which are likely to be damaging, but the pursuer does not enjoy the presumption of falsity and must establish malice on the part of the defender. In other words, the onus of proof is now on the person bringing the action to prove what is ordinarily assumed in an action of defamation.

132. There are five recognised categories of verbal injury in Scots law:

i. Slander of title;
ii. Slander of property;
iii. Falsehood about the pursuer causing business loss;
iv. Verbal injury to feelings by exposure to public hatred, contempt or ridicule; and,
v. Slander on a third party.^[67]

133. The scope of each category is poorly defined, and this causes uncertainty for the person bring the action.

134. The Commission have grouped slander of title, slander of property, and falsehood about the pursuer causing business loss together as they each can be said to relate to economic loss. They recommend the retention of the principles underlying these categories of verbal injury, but that they be restated in statutory form. This is on the basis that were these categories of verbal injury removed, then defamation would be the only actionable form of wrong. As a consequence, an aggrieved party who suffered this form of loss may be left with no means to seek redress for any damage caused.

135. The Commission, at the same time, take the opportunity to rename these types of actions as ‘malicious publications’ in order that they reflect more accurately the types of conduct they seek to address.

136. As for the other two types of action in verbal injury – those to feelings by exposure to public hatred, contempt or ridicule, and slander on a third party - the Commission recommend abolishing them, emphasising that they are obscure and have no practical utility.

137. In their draft Bill, the Commission make clear that a person (who may be a legal person) cannot raise court proceedings in a defamation action against someone other than the author, editor, or publisher of the alleged defamatory statement.^[68] No such explicit provision is made with respect to actions raised in malicious publications. The Commission point out in their Report that in an action raised in malicious publication the defender can only be the person who has made the statement complained of.^[69]

138. In order to be successful in an action for malicious publication the pursuer must plead and prove that the statement complained of was malicious. In restating the categories of verbal injury in their draft Bill, the Commission has defined ‘malicious’ as a test with two branches:

• first, the pursuer must show that the statement complained of was presented as fact and was sufficiently credible so as to mislead a reasonable person;
• second, the pursuer must show either that the defender knew the statement was false (or was indifferent as to its truth) or that the statement was made with malicious intention.

139. A respondent to the Commission’s reform project suggested that the draft ‘indifferent as to its truth’ was too low a bar while at the same time recognising that, at common law, ‘malice’ is a higher bar.

140. Against this discussion we ask the following question:

19. Should the test of whether a statement complained of is a malicious publication be strengthened, and if so, how?

Summary of recommendations

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

42. The principles underlying the three categories of verbal injury which relate to economic interests (that is, 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 (that is, 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.