Developments in defamation: Scotland and England

The law of defamation in Scotland is due to be reformed. Although there are similarities in defamation law in Scotland and England, in-house lawyers should be aware of upcoming developments, particularly where there are cross-border considerations.

Changes to the law of defamation in Scotland have been introduced by the Defamation and Malicious Publication (Scotland) Act 2021 (the 2021 Act), which has been passed but is not yet in force. While the 2021 Act aligns the law of defamation more closely across Scotland and England, there do remain some differences, so it is important to check whether the provisions of the 2021 Act apply. Below are some of the key changes to be aware of.

Key changes to defamation law

The requirement for ‘serious harm’

There is currently no ‘serious harm’ threshold in Scotland. Currently, the test as to whether a statement is defamatory is whether it would ‘tend to lower a person in the estimation of right-thinking members of society generally’. In simple terms that means something that is reputationally damaging, for example, an allegation of criminality that is untrue.

However, for a statement to be actionable under the 2021 Act, it must also cause ‘serious harm’ to reputation. Of particular relevance to in-house lawyers is how the serious harm test applies to organisations that are primarily trading for profit. That type of organisation will only have suffered ‘serious harm’ where the statement has caused (or is likely to cause) serious financial loss. The introduction of this threshold aligns the position in Scotland and England.

The ‘honest opinion’ defence

The ‘fair comment’ defence can currently be relied on in defamation actions in Scotland, providing protection to expressions of opinion as long as certain conditions are met.

The fair comment defence is recast by the 2021 Act as the ‘honest opinion’ defence. In order for a statement to qualify as ‘honest opinion’, it must be an opinion as opposed to a statement of fact and must indicate the evidence on which it is based. The opinion conveyed by the statement must be capable of being held by an ‘honest person’ on the basis of that evidence. The 2021 Act brings the defence of ‘honest opinion’ closely in line with England, and the legal tests for the defence are broadly similar.

Publishing in the public interest

The Reynolds defence in Scotland protects the publication of statements published in the ‘public interest’, in light of the criteria for responsible journalism as established by Reynolds v Times Newspapers Ltd [2001].

The 2021 Act establishes the defence of ‘publication on a matter of public interest’, replacing the Reynolds defence. This means it will be a defence to show that a defamatory statement complained of was on a matter of public interest, and that the maker of the statement reasonably believed that their publication was in the public interest.

The Reynolds defence has also been abolished in England meaning the public interest test is now almost identical in both jurisdictions.

Website operators

There is currently no particular defence for operators of websites in Scotland about defamatory statements published by individuals on that website. However, the 2021 Act contains a restriction on bringing actions against ‘secondary publishers’ and provides that there is no right to bring defamation proceedings against a person about a statement in Scotland unless they are the author, editor or publisher of the statement.

In England, website operators have a specific defence relating to the publication of material on their website, where they do not produce or edit the defamatory statement. Subsequent legislation in England has also set out the procedure relating to complaints and the ‘take down’ procedure for material published online. The 2021 Act does not contain a corresponding defence specifically for website operators in Scotland, though they might be protected by other defences available in the 2021 Act. The statutory tests across Scotland and England are therefore not identical, but they will likely overlap in how they operate.

Jurisdiction and time bar

There are currently no specific requirements for either the person bringing or defending a defamation action to have specific ties to Scotland in order for Scottish courts to have jurisdiction. This will change though. The 2021 Act provides that Scottish courts will not have jurisdiction to hear a defamation claim if the defender to the action does not live in the UK, unless Scotland is clearly the most appropriate place to bring proceedings of all the places the defamatory statement has been published. This reflects the corresponding position in England.

To avoid any jurisdictional issues when raising an action against a party not living in the UK, parties will have to consider whether it is most appropriate for the action to be brought in Scotland or England, once the 2021 Act has come into force.

Actions of defamation currently need to be raised within three years of the date of publication of the statement. There is no ‘single publication’ rule – each time a defamatory statement is published, the time period during which an action can be raised resets. The position will be aligned in Scotland and England by the 2021 Act, where that period is reduced to one year from the first publication of the statement.

Looking ahead

It will be interesting to see the extent to which the Scottish courts align with English decisions when applying the 2021 Act. However, it is expected that case law from both sides of the border will continue to influence judicial decisions interpreting the 2021 Act.

In an age of viral social media posts, protecting reputations has never been more important. Organisations frequently have to respond quickly to statements that have the potential to do lasting damage to their reputation. When a defamation law issue arises, it is therefore vital to think carefully about whether the law in Scotland or England applies before taking any action.