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Defamation law reform in Scotland takes effect

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Publishers will welcome new defamation laws that have come into force in Scotland, experts have said.

Graham Horsman and Hannah Beaumont of Pinsent Masons said the reforms align with those introduced under the Defamation Act 2013 in England and Wales and would better protect publishers against the costs involved in defending against frivolous claims of defamation.

The Defamation and Malicious Publication (Scotland) Act 2021 was passed by Scottish law makers last year, but its substantive provisions only came into force today. The Act is the product of substantial consultation by both the Scottish government and Scottish Law Commission, which made a series of recommendations for reform in a report published in late 2017.

These changes may have the effect of chilling the number of defamation actions that proceed to trial

Horsman and Beaumont said there are two main changes in the Act that are liable to limit the number of defamation claims raised in Scotland.

First, a statement can only be subject to a defamation claim if it has been published to a person other than the pursuer. Previously, a statement of a defamatory nature in Scotland was actionable even if it was sent only to the subject of the statement – for example, where the defender sent an email to the pursuer. This was fundamentally different to the position in England and Wales.

Second, the Act introduces a ‘serious harm’ threshold for defamation claims in Scotland.

Before the Act, pursuers in Scotland were only required to establish whether a statement would ‘tend to lower a person in the estimation of right-thinking members of society generally’. Now, pursuers need to show that publication of the statement complained of has caused, or is likely to cause, serious harm to their reputation. Companies can bring defamation proceedings in the company name provided that they can establish serious financial loss has been caused, or is likely to be caused, by the statement. The changes mirror the position in England and Wales under the Defamation Act 2013.

Horsman said: “The restrictions on actionability and, in particular, the serious harm test are the main substantive changes, and bring the law in Scotland directly in line with that in England. This will allow the Scottish courts to call on a plethora of English case law when seeking to interpret the Act in individual disputes and therefore enable the Scottish courts to get to grips with what is, in essence, a stricter and higher bar to bringing defamation proceedings.”

“These changes may have the effect of chilling the number of defamation actions that proceed to trial. Before, there was no real gauge to the severity of the impact on the pursuer, which tended to result in more frivolous claims taking up court time. Quick, effective and early determination of court actions is number one on the agenda in Scotland, not just in defamation law,” he said.

The Act also includes other important changes to defamation law in Scotland. This includes provisions impacting social media platforms and other online intermediaries – referred to in the Act as ‘electronic secondary publishers’.

Provided that their involvement does not materially increase the harm caused by the publication of a statement, the Act provides that electronic secondary publishers are not liable for defamation if their involvement is only to republish a statement in a manner that does not alter it or provide a means of access to a statement. Likewise, users of social media will not attract liability if they are only marking their interest, approval or disapproval with a statement, and not altering it.

Hannah Beaumont said: “Dealing with the challenges faced by the social media generation is of particular importance in the context of defamation. In the Scottish Law Commission’s report on defamation, it was agreed that a UK-wide review was required in respect of the responsibility of defamatory statements for internet intermediaries, such as social media platforms and search engines. As such, the changes to the law affecting ‘electronic secondary publishers’ are described as ‘interim measures’. What has been opted for in Scotland is in line with England, that secondary publishers of this nature should be largely excluded from liability.”

The period in which a claim for defamation can be brought in Scotland has also now changed. The limitation period applies for one year from the date of first publication regardless of whether the statement is republished on several other occasions. Common law previously provided for a three-year limitation period. The move to one year limitation brings the position in Scotland into line with that in England.

The Act also now defines the right of Scottish courts to hear defamation claims. Prior to the Act coming into force, there was no specific criteria for determining whether the Scottish courts had jurisdiction to hear defamation proceedings, beyond the statutory and common law rules on jurisdiction generally. The Act now specifies that the defender needs to live in the UK, and Scotland needs to be the most appropriate forum to bring the proceedings.

The Act has codified and altered the defences to defamation too, bringing them largely in line with the defences available in England. Defences of truth, public interest and honest opinion are available.

Means by which claims of defamation can be resolved are also now stipulated in the Act.

The action of malicious publication, which is separate to defamation in that it focuses on the intent behind a statement and its targeting of business, property and assets, has also been reformed.

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