Defamation in Scots law: consultation

Part Seven: Limitation and the multiple publication rule

142. The focus of this chapter is on two interlinked features of Scots law in defamation: the limitation period to which defamatory proceedings are subject and the multiple publication rule.^[70]

143. A fundamental feature of most civil law systems is that litigation should, if it is to be initiated at all, be done so promptly as it is conducive to legal certainty.

144. Under Scots law, proceedings in defamation must be commenced within a three year period. This is referred to as a limitation period. The limitation period begins on the date on which the cause of action accrued; the cause of action ‘accrues’ on the date on which the publication first comes to the notice of the person bringing the action. For example, if an article is published online at one date and then comes to the attention of the person bringing the action one year later, the date of accrual is the latter date. The intervening period of one year does not matter when calculating the period of limitation. The period of three years is consistent with the limitation period in actions of damages in Scotland. The court can choose to waive the limitation period in the interests of justice.

145. A cause of action accrues to each individual publication of defamatory material, even if it is the same as that previously published (or substantially so) and each cause of action has its own separate limitation period. This is often referred to as the multiple publication rule. In other words, each time a publication is read, sold or otherwise republished, a new limitation period begins from the date of the republication. Theoretically, the author of an allegedly defamatory statement could have a defamation action raised against them many years after the statement complained of was first published. They could, in other words, be subject to perpetual liability.

146. In England and Wales, the 2013 Act replaced the multiple publication rule with a single publication rule. There is a single limitation period of one year in respect of the same publication of a statement complained of as defamatory, and the date of accrual is the date of first publication. Republication of the same (or similar) material complained of as defamatory does not alter the date of the beginning of the limitation period, thereby eliminating the possibility of perpetual liability.

147. It has been a criticism of the single publication rule that the limitation period is tied to the date of first publication. It is easy to imagine a situation in which a pursuer has little time left in which to raise proceedings because they have only just become aware of a defamatory statement a significant time after its first publication.

148. A more fundamental criticism of the single publication rule is that it does not take into account the effect that republication of a potentially defamatory statement may have. Damage could be inflicted each time a defamatory statement is made (or repeated), not solely in the first instance. For example, where a defamatory statement is first shared with a readership of 15 people, and is then republished 2 years later to a readership of 10,000 (including family, friends, and one’s peers) it could be said that the harm done is greater upon republication. Of importance is not necessarily when the statement was made, but rather the impact of each publication.

149. The Commission recognise this issue and, in proposing a single publication rule with a 1 year limitation period for Scotland, have recommended that the court can take into consideration such facts when deciding whether repeating a defamatory statement should be treated as publication or republication.

150. It was recognised by the Commission that the courts currently have the power to dis-apply the limitation period^[71] Where the courts consider it equitable to do so, it may allow the pursuer to bring the action, thereby over-riding the limitation period.

151. In recommending that the period of limitation is reduced to 1 year, the Commission were of the view that to have different periods of limitation in different jurisdictions of the UK would increase the amount of actions raised in Scotland.^[72] Litigants from other jurisdictions within the UK could seek vindication in Scottish courts in circumstance where their claims are time-barred in others.

152. Some respondents to the Commission’s reform project, however, note that in practical terms there has been no significant increase in defamation actions raised in Scotland since the introduction of the 1-year limitation period in England and Wales, indicating that litigants are not turning to Scottish courts for recovery of damages in an action that would otherwise be statute-barred in their habitual jurisdiction.

153. Against this discussion we ask the following question:

20. Do you agree that the single publication rule is tied to the date of accrual as the date of first publication?

154. The Law Commission for England and Wales recommended, in a 2001 report, that the period of limitation in defamation claims in that jurisdiction be raised from 1 year to 3 years, and with an added provision that judicial discretion to allow time-barred claims be removed.^[73] The primary reason for such a change was that litigants had insufficient time in which to prepare their cases. In particular, it was felt that claimants could not carry out all the factual investigations necessary to serve a fully detailed statement of claim.^[74] These recommendations have not been implemented.^[75]

155. It could be added that a 1-year limitation period would not help to encourage alternative ways to resolve a dispute. Research has suggested that the primary goal for a pursuer bringing defamation proceedings is swift vindication of their reputation,^[76] a result that could be achieved more swiftly and at less cost than raising court proceedings. Yet to limit the time within which such proceedings can be raised could act as a disincentive to pursue these alternative methods, albeit that courts do have discretion to allow actions to proceed outside of this limitation period.

156. As mentioned above, the Courts have discretion to override the limitation period where it seems equitable to do so, and they have exercised this power on numerous occasions over the years,^[77] although commentators have suggested that the approach taken by Scottish courts in the exercise of this discretionary power has developed over recent times.^[78]

157. If the Commission’s proposed recommendation to reduce the limitation period to one year and tie the date of accrual ton the date of first publication was proceeded with a variation on the approach would be to extend the limitation period so that it takes into account parties’ efforts in trying to seek resolution by means other than court action.^[79] For instance, the time parties spend in formal (rather than informal) mediation or arbitration could be taken into account when calculating the period of limitation. The time to be taken into account, however, may not always be clear or easily calculable.

158. The effect of any such provision would be that time does not run while any arbitration or formal mediation is ongoing – in other words, the limitation period would be suspended for the duration of such dispute resolution. This may help encourage parties to explore options other than court action by giving them time to do so.^[80]

159. Against this discussion we ask the following question:

21. Given the previous recommendation of the Law Commission of England and Wales that 1 year is insufficient time in which to prepare litigation, and given the impact that a shorter period may have on parties’ ability to utilise alternative means of resolution, should the current limitation period be retained?

22. If the limitation period is shortened to 1 year, do you agree that the period of limitation should be capable of being extended to reflect the period of time parties engage in alternative methods of dispute resolution?

Summary of recommendations

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

36. Where a person publishes a statement to the public and subsequently publishes the same or substantially the same statement, any right of action in respect of the subsequent publication should be treated as having accrued on the date of the first publication.

37. The previous recommendation should not apply where the manner of the subsequent publication is materially different from that of the first publication, having regard to the level of prominence that the statement is given; the extent of subsequent publication; and any other matter which a court considers relevant.

38. The length of the limitation period in actions for defamation should be one year.

39. The limitation period should commence on the date of first publication of the statement complained of.