A crucial factor in the success of any businesses is its reputation. Changes to the way people communicate, in particular using social media platforms, have made it easier than ever to express publicly an opinion about a person, organisation or state of affairs. This opinion can then potentially be shared to a worldwide readership at the click of a button. The speed at which information is created and shared and the volume of opinions expressed on the internet, has inevitably led to an increase in the risk that defamatory statements will be made.
The Defamation Act 2013 (the 2013 Act) was introduced to reform the law of defamation and bring it up to date in the internet age. The intention behind the 2013 Act was to provide better protection for publicly expressed opinions, to address libel tourism (the practice of forum shopping to bring an action for defamation in jurisdictions with the strictest libel laws) and to focus litigation away from intermediaries and towards those making defamatory statements. The 2013 Act does contain a series of measures that tackle these issues but many of its provisions extend to England and Wales only.
The differences between Scots and English law mean a statement that is defamatory in England may not be so in Scotland, and vice versa. Where a business’s reputation is threatened by a defamatory statement, and that statement has also been published in Scotland, it is more important than ever to consider the Scottish perspective when advising on reputation management.
SIMILARITIES BETWEEN SCOTLAND AND ENGLAND
Before turning to look at the key differences created by the 2013 Act, it is worth noting that the law in Scotland still shares a number of common traits with the law in England. Firstly, what amounts to defamation is the same – a broadcast, statement or publication which lowers a person in the estimation of a right-thinking member of the public.
While the terminology is different, the defences available in Scotland and England are also broadly the same. To pick some examples, the Scottish defence of veritas (truth) has an equivalent in the English defence of truth. Similarly, defences of qualified privilege and absolute privilege apply both north and south of the border.
REQUIREMENT FOR SERIOUS HARM
There are a number of key provisions of the 2013 Act that do not apply in Scotland, starting with s1.
Section 1 of the 2013 Act introduces a threshold requirement of ‘serious harm’ before a statement is defamatory. A statement is not defamatory unless its publication has caused, or is likely to cause, serious harm to the reputation of a claimant. Section 1 also provides that ‘serious harm’ to the reputation of a company that trades for profit means causing likely or actual serious financial loss. The intention of s1 is to establish a threshold of seriousness so that trivial cases do not proceed.
Section 1 of the 2013 Act does not apply to Scotland. This means that it will be easier to get a claim off the ground in Scotland than in England and Wales, raising the prospect that a claimant with an action with a borderline prospect of success in England and Wales may choose to bring their claim for defamation in Scotland instead.
PUBLIC INTEREST DEFENCE
In both jurisdictions there was a defence at common law called the Reynolds defence. The defence was taken from the principles in the case of Reynolds v Times Newspapers Ltd .Reynolds allowed journalists to publish statements in the public interest, even if those statements ultimately turned out to be wrong. Reynolds sets out a ten-point test which is often gone through by journalists before a decision is made on publication.
Section 4 of the 2013 Act abolishes the common law defence in Reynolds and replaces it with a defence where there is publication on a matter of public interest. Section 4 is based on Reynoldsbut is also intended to reflect the principles in more recent decisions. The s4 defence does not require a publisher to prove that it has met a standard of responsible journalism, has satisfied the ten-point test in Reynolds or acted fairly and responsibly in gathering and publishing the information. Instead, it comes down to whether, in the defendant’s reasonable belief, the statement was a matter of public interest. However, s4 does not apply in Scotland and Reynolds remains good law north of the border. There is therefore the potential for divergence in the law between Scotland and England as the English courts get to grips with interpreting the new statutory test.
DEFENCE FOR OPERATORS OF WEBSITES
An important innovation in the 2013 Act is its treatment of intermediaries such as internet service providers, search engines, usenet and website hosts. Section 5 of the 2013 Act creates a new defence for the operators of websites in respect of a statement posted on a website. Where an action is brought against an operator of a website it will be a defence if the operator can show that they did not post the statement on the website. The Defamation (Operators of Websites) Regulations 2013 provide the detail of the operation of s5 and introduces a notice of complaint and take-down procedure.
There is no special defence for the operators of websites in Scotland. However, the provisions of Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002 continue to apply, providing a service provider with a defence until such time as it obtains knowledge of defamatory material, provided that it acts expeditiously to remove or disable access to the material as soon as it does.
It is likely that in Scotland, as in England, victims will continue to take a pragmatic approach to material posted on websites. The terms and conditions of the website operator will normally contain provisions on take down. In most cases that will be the most effective way of getting the content removed without the need for litigation. Indeed, initial anecdotal evidence also suggests that some of the larger internet businesses consider that the administrative burden imposed upon them by s5 means that it is easier to simply take down the allegedly defamatory material. It will be interesting to see how the use of this defence develops.
JURISDICTION AND TIME LIMITS
Section 9 of the 2013 Act restricts jurisdiction in cases where an action is brought against a person who is not domiciled in the UK or another EU member state. In those cases, the court must be satisfied that of all the places where the statement has been published, England and Wales is clearly the most appropriate place to bring an action. This is designed to prevent ‘libel tourism’.
In Scotland there is no such restriction and jurisdiction will continue to be established by the publication of the defamatory statement in Scotland.
Section 8 of the 2013 Act introduces a single publication rule. This means that the time limit for bringing a claim will run from the date of the first publication of the defamatory statement and claimants south of the border will only have one year from the date of publication to raise a claim.
In contrast, under Scottish law, each time the defamatory statement is published, a fresh basis for an action is created and Scottish pursuers will then have three years from the date of publication to raise proceedings.
These differences open up the possibility of the Scottish courts, while traditionally less generous with awards of damages, becoming a preferred forum for bringing defamation claims that are unlikely to succeed in the English courts.
On 6 February 2015 the Scottish Law Commission published its Ninth Programme of Law Reform. The programme will form the basis for most of the Commission’s work over the next three years and includes the review of the law of defamation in Scotland. The Commission’s aim is to ensure that the law of defamation in Scotland is ‘fit for the internet age’. Scotland may yet see some of the reforms that have been introduced in England and Wales.
In the meantime, and despite the differences noted above, it is likely that the courts in Scotland will continue to be influenced by English case law on defamation. There remain relatively few home-grown Scottish decisions that are reported. However, the introduction in England of the ‘serious harm’ requirement, the special defence for website operators, the restriction on jurisdiction and a shorter time bar period may all combine to encourage forum shopping in favour of Scotland. While these differences exist there remains the potential for a claim to succeed in the Scottish courts where it might not be successful south of the border.