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Defamation and Malicious Publication (Scotland) Act 2021

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7Defence of honest opinion

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(1)Subject to subsections (5) and (6), it is a defence to defamation proceedings for the defender to show that the conditions in subsections (2) to (4) are met.

(2)The first condition is that the statement complained of was a statement of opinion.

(3)The second condition is that the statement indicated, either in general or specific terms, the evidence on which it was based.

(4)The third condition is that an honest person could have held the opinion conveyed by the statement on the basis of any part of that evidence.

(5)The defence fails if the pursuer shows that the defender did not genuinely hold the opinion conveyed by the statement.

(6)Where the statement complained of was published by the defender but made by another person (“the author”)—

(a)subsection (5) does not apply, but

(b)the defence fails if the pursuer shows that the defender knew, or ought to have known, that the author did not genuinely hold the opinion conveyed by the statement.

(7)For the purpose of subsection (2), a “statement of opinion” includes a statement which draws an inference of fact.

(8)For the purpose of subsections (3) and (4), “evidence” means—

(a)any fact which existed at the time the statement was published,

(b)anything asserted to be a fact in a privileged statement made available before, or on the same occasion as, the statement complained of, or

(c)anything that the defender reasonably believed to be a fact at the time the statement was published.

(9)For the purpose of subsection (8) (b), a statement is a “privileged statement” if the person responsible for its publication would have one or more of the following defences if defamation proceedings were to be brought in respect of it—

(a)the defence of publication on a matter of public interest under section 6,

(b)the defence of absolute privilege under section 9, or

(c)the defence of qualified privilege under section 10 or 11.

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