PART 1Defamation
Actionability and restrictions on bringing proceedings
3Restriction on proceedings against secondary publishers
1
Except as may be provided for under section 4, a right to bring defamation proceedings in respect of a defamatory statement does not accrue against a person unless the person is—
a
the author, editor or publisher of the statement, or
b
both—
i
an employee or agent of such a person, and
ii
responsible for the statement’s content or the decision to publish it.
2
In this section, subject to subsections (3) to (5)—
“author” means the person from whom the statement originated, but does not include a person who did not intend the statement to be published,
“editor” means a person with editorial or equivalent responsibility for the content of the statement or the decision to publish it,
“publisher” means a commercial publisher (that is to say, a person whose business is issuing material to the public or to a section of the public) who issues material containing the statement in the course of that business.
3
Where a statement is in electronic form, a person is not to be considered the editor of the statement or, in the case of an employee or agent of such a person, responsible for its content or the decision to publish it, if—
a
the person’s involvement with the statement is only—
i
publishing the same statement or providing a means to access the statement (for example a hyperlink) in a manner which does not alter the statement, or
ii
marking the person’s interest in, approval of or disapproval of the statement in a manner which does not alter the statement (typically by means of a symbol), and
b
that involvement does not materially increase the harm caused by the publication of the statement.
4
A person is not to be considered the author, editor or publisher of a statement or, in the case of an employee or agent of such a person, responsible for its content or the decision to publish it, if the person’s involvement with the statement is only—
a
printing, producing, distributing or selling printed material containing the statement,
b
processing, making copies of, distributing, exhibiting or selling a film or sound recording (as defined in Part 1 of the Copyright, Designs and Patents Act 1988) containing the statement,
c
processing, making copies of, distributing or selling any electronic medium in or on which the statement is recorded,
d
operating or providing any equipment, system or service by means of which the statement is retrieved, copied, distributed or made available in electronic form,
e
broadcasting a live programme containing the statement in circumstances in which the person has no effective control over the maker of the statement,
f
operating or providing access to a communications system by means of which another person over whom the person has no effective control transmits the statement or makes it available,
g
moderating the statement (for example, by removing obscene language or correcting typographical errors without altering the substance of the statement).
5
Where a person does not fall within subsection (3)(a) or (4)(a) to (g), the court may have regard to those paragraphs by way of analogy in determining whether a person is the author, editor or publisher of a statement (or, in the case of an employee or agent of such a person, responsible for its content or the decision to publish it).
6
7
Regulations under subsection (6)—
a
may be made only where the Scottish Ministers consider it appropriate to take account of—
i
technological developments (including obsolescence) relating to the dissemination or processing of material, or
ii
changes in how material is disseminated or processed as a result of such developments, and
b
are subject to the affirmative procedure.
8
Before laying a draft of a Scottish statutory instrument containing regulations under subsection (6), the Scottish Ministers must consult such persons as they consider appropriate.