Qualified privilege
Section 10: Peer-reviewed statement in scientific or academic journal etc.
72.Section 10 of the Act re-enacts section 6 of the 2013 Act, conferring qualified privilege on the publication of material in a scientific or academic journal (whether published in electronic form or otherwise), provided that certain conditions are met. The term “scientific journal” would include e.g. medical and engineering journals.
73.Subsections (2) and (3) set out the conditions to be met. These are condition 1: that the statement relates to a scientific or academic matter; and condition 2: that before the statement was published in the journal an independent review of the statement’s scientific or academic merit was carried out by the editor of the journal and one or more persons with expertise in the scientific or academic matter concerned. The requirements in condition 2 are intended to reflect the core aspects of a responsible peer-review process.
74.Subsection (8) provides that the reference to “the editor of the journal” in subsection (3)(a) is to be read, in the case of a journal with more than one editor, as a reference to the editor or editors who were responsible for deciding to publish the statement concerned. This may be relevant where a board of editors is responsible for decision-making.
75.Subsection (4) extends the protection offered by the defence to publications in the same journal of any assessment of the scientific or academic merit of a peer-reviewed statement, provided the assessment was written by one or more of the persons who carried out the independent review of the statement, and the assessment was written in the course of that review. This is intended to ensure that the privilege is available not only to the author of the peer-reviewed statement, but also to those who have conducted the independent review who will need to assess, for example, the papers originally submitted by the author, and may need to comment.
76.Subsection (5) provides that the privilege given by the section to peer-reviewed statements and related assessments also extends to the publication of a fair and accurate copy of, extract from or summary of the statement or assessment concerned.
77.Subsection (6) clarifies that the privilege given by the section will not apply if the publication is shown to be made with malice. This reflects the condition attaching to other forms of qualified privilege.
78.Subsection (7) ensures that the new section is not read as preventing a person who publishes a statement in a scientific or academic journal from relying on other forms of privilege, such as the privilege conferred under paragraph 16 of the schedule to fair and accurate reports etc. of proceedings at a scientific or academic conference.
Section 11: Other statements protected by qualified privilege
79.Section 11 and the schedule of the Act re-enact section 15 and schedule 1 of the 1996 Act. They make provision for other types of statements protected by qualified privilege. For example, paragraph 16 of the schedule re-enacts paragraph 14A of schedule 1 of the 1996 Act, as inserted by the 2013 Act, conferring qualified privilege upon a report of a scientific or academic conference held anywhere in the world, or an extract, summary etc. of such a report.
80.Part 2 of the schedule deals with statements which attract qualified privilege unless the defender, having been requested by the pursuer to publish a reasonable letter or statement by way of explanation or contradiction of the statement which is the subject of the proceedings, has not done so or has not done so in a suitable manner. These include copies of or extracts from information for the public published by government or authorities performing governmental functions (such as the police) or by courts; reports of proceedings at a range of public meetings (e.g. of local authorities) general meetings of UK public companies; and reports of findings or decisions by a range of associations formed in the UK or the European Union (such as associations relating to art, science, religion or learning, trade associations, sports associations and charitable associations). By contrast, the statements described in Part 1 enjoy qualified privilege regardless of whether a request is made by a pursuer to provide an opportunity for explanation or contradiction.
Section 12: Privilege: transitional provision
81.Section 12 of the Act is a transitional provision to make clear that nothing in the changes to the application of privilege brought about by sections 9 to 11 (or the schedule) of the Act will have effect in relation to defamation proceedings if the right to bring the proceedings accrued before the relevant provision comes into force.