Actionability and restrictions on bringing proceedings
Section 1: Actionability of defamatory statements
6.Section 1 restricts the circumstances in which proceedings can competently be brought in respect of a statement that is alleged by the person bringing the proceedings to be defamatory.
7.The use of the word “proceedings” is intended to cover court actions relating to an alleged defamation raised by summons or initial writ (which will cover the vast majority of cases) and cases where a petition is presented to the Court of Session, for example, where all that is sought is an interdict against publication and not damages.
8.Subsection (1) confirms that section 1 applies where one person makes a defamatory statement about another person. Applying the definition of “person” in the Interpretation and Legislative Reform (Scotland) Act 2010 to the Act, that subject may be a natural person or an entity, including a corporate body, an unincorporated association, or a partnership.
9.Subsection (2) identifies the circumstances in which proceedings in relation to defamation can competently be brought.
10.First, the statement complained about must have been published to a person other than the one who is the subject of the statement. This marks a change in the position under current Scots law; as things stand, proceedings for defamation can be brought even if the statement complained of is conveyed only to the person about whom it is made.
11.Second, the publication of the statement must have caused, or be likely to cause, serious harm to the reputation of the subject of the statement; only then will the court allow the proceedings to go ahead. The provision extends to situations where publication is likely to cause serious harm, in order to cover situations where the harm has not yet occurred at the time the action for defamation is commenced. The UK Supreme Court has recently ruled on the meaning of the equivalent provision in English law (section 1 of the Defamation Act 2013), holding in Lachaux v Independent Print Ltd and another [2019 UKSC 27] that there is a need to show evidence of actual harm caused to reputation, or evidence that there is a likelihood of future harm. It is anticipated that the Scottish courts will treat Lachaux as persuasive authority and follow a similar approach.
12.Subsection (3) further limits the circumstances in which proceedings for defamation may competently be brought where the party seeking to do so is a non-natural person whose primary purpose is to trade for profit. In this scenario, for the purpose of subsection (2)(b), the harm to the entity is not “serious harm” unless it has caused, or is likely to cause, serious financial loss. This reflects the fact that bodies trading for profit are already prevented from claiming damages for certain types of harm such as injury to feelings, and are in practice likely to have to show actual or likely financial loss. The requirement that this be serious is consistent with the new serious harm test in subsection (2)(b).
13.Subsection (4) sets out what is meant by a defamatory statement and its effect, and what is meant by “publishing” and related terms for the purposes of the Act. Reading this in conjunction with section 36, these definitions apply throughout the whole of the Act, unless the context in which the words are used dictates otherwise.
14.Subsection (4)(a) clarifies that a defamatory statement is one that causes harm to a person’s reputation and that its effect is to tend to lower the person’s reputation in the estimation of ordinary persons. This follows closely the common law test adopted in Sim v Stretch(1) as regards the nature of a defamatory statement, thus leaving the additional elements (e.g. the onus of proof and presumptions as to falsity/malice) to be dealt with by the common law. This is a similar approach to that adopted at section 2 of the Irish Defamation Act 2009. A court, when interpreting the new statutory definition at subsection (4)(a), may refer to case law on the common law definition found in Sim v Stretch, and indeed any other relevant case, where it considers it appropriate to do so.
15.Subsection (5) is a transitional provision which makes clear that the changes brought about by section 1 do not affect a right to bring proceedings which accrued before the section comes into force.
Section 2: Prohibition on public authorities bringing proceedings
16.Section 2 places on a statutory footing the principle laid down by the case of Derbyshire County Council v Times Newspapers Ltd(2) that a public authority has no right at common law to bring proceedings for defamation. Although a principle of English common law, it is thought to represent Scots common law also.
17.Subsection (1) sets out the basic principle laid down in Derbyshire that a public authority may not bring proceedings for defamation.
18.Subsection (2) sets out what is meant by a public authority in this context. The first two limbs relate to central and local government (and any non-natural persons that are owned or controlled by them). This therefore, will include:
the Scottish Ministers and other offices in the Scottish Administration, the agencies and other bodies (however described) that are part of central government,
each local authority, both in its capacity as a local authority and as education authority, roads authority, etc.
companies and charitable bodies that are owned or controlled by the Scottish Ministers or a local authority to discharge particular functions of a public nature e.g. the Scottish National Investment Bank as well as government agencies and other public bodies.
19.The third limb confirms that courts and tribunals are public authorities for the purposes of this provision. This includes judges in their capacity as holders of judicial office (but not as individuals, by virtue of subsection (5)).
20.Subsection (2)(d) provides that other persons or offices whose functions include functions of a public nature are also public authorities for these purposes. This general provision covers a range of bodies and offices.
21.A list of Scottish public bodies can be found at the following website: National public bodies: directory.(3) It is important to note that this list is not exhaustive and that some of the bodies on this list may not constitute a public authority for the purposes of this section. What constitutes a public authority for the purposes of this section may develop over time.
22.The power to make regulations in subsection (6) may supplement subsection (2) in order to address any bodies or types of body which should or should not be considered a public body for the purposes of this provision. This may arise where, for example, there is a question over whether a type of body should be a public authority.
23.Subsection (3) sets out a default position which excludes from the category of public authorities both bodies set up to trade for profit and charitable organisations where either exercises public functions from time to time, provided (in both cases) that they are not owned or controlled by a public authority. Typical examples may include companies and charitable organisations contracted by Government or local authorities to discharge functions on their behalf at certain times. Use of the words “from time to time” is intended to reflect the fact that such entities may operate on a contractual basis, discharging public functions sporadically. It seeks to ensure that they will not be deemed to fall into the category of public authorities by reason only of such periodic discharging of public functions. The provision does not preclude the possibility of them being found to be public authorities, but that finding may not be made solely on the basis of their carrying out functions of a public nature occasionally. The reference to their not being under the ownership or control of a public authority is designed to distinguish bodies covered by the exception from corporate vehicles set up or taken over by central or local government.
24.Subsection (4) elaborates what is meant by a non-natural person being under the ownership or control of a public authority. This includes situations where a public authority holds the majority of shares in it or has the right to appoint or remove a majority of the board of directors.
25.Subsection (5) puts beyond doubt that an individual who discharges public functions in the capacity of an office-holder or an employee is not prevented from bringing defamation proceedings in their personal capacity. Such proceedings may, for example, relate to the individual’s professional/occupational position and reputation. This option will be available insofar as the matter concerned relates to the position of the individual, rather than the public functions.
26.Subsections (6) to (8) provide Scottish Ministers with the power to make regulations to specify persons or descriptions of persons who are or are not to be treated as public authorities for the purposes of subsection (1). The regulations are to be the subject of consultation by the Scottish Ministers, and are to be subject to the affirmative procedure of the Scottish Parliament. As noted above, it is expected that this power could be used to provide clarity in relation to any description of body which has aspects of a public authority, but which is not to be prevented from raising proceedings. It is not intended to be used to provide an exhaustive list.
27.Subsection (9) provides definitions of the terms “charity” and “charitable purposes”.
Section 3: Restriction on proceedings against secondary publishers
28.Section 3 limits the circumstances in which an action for defamation can be brought against someone who is not the primary publisher of an allegedly defamatory statement.
29.Subsection (1) lays down the general principle that, except as may be provided for in regulations made under section 4, no defamation proceedings may be brought against a person unless that person is the author, editor or publisher of the statement which is complained about or is an employee or agent of that person and is responsible for the content of the statement or the decision to publish it.
30.Subsection (2) sets out definitions of the terms “author”, “editor” and “publisher”, subject to subsections (3) to (5).
31.Subsection (3) sets out certain activities that are not to be taken to place a person in the category of an editor in the specific context of statements in electronic form. Paragraph (a) would cover, for instance, providing links to content containing an allegedly defamatory statement by way of CD/DVD, removable flash memory card (e.g. USB drive), email, retweeting such a statement or a hyperlink to it, “liking” or “disliking” an article containing such a statement, or posting another similar online “reaction” or “emoji” on republishing the statement. In all circumstances, for a person to avoid being considered the editor of the statement, the statement itself must remain unaltered. Paragraph (b) sets out the further qualification that the person’s publishing or marking interaction must not materially increase the harm caused by the original statement.
32.Subsection (4) sets out a list of functions that are not to be taken to place a person in the category of an author, editor, or publisher. These include moderating and processing the material in relation to which proceedings are brought, making copies, and operating equipment. “Moderating” may involve performing functions offline, such as in relation to letters to the editor in hard copy newspapers and magazines, as well as online functions.
33.Subsection (5) provides for the use of the examples in subsection (3) and (4) by analogy, where appropriate, to determine whether a person is the author, editor, or publisher of a statement.
34.Subsection (6) enables the Scottish Ministers to make regulations modifying subsections (3) or (4) to add, alter or remove activities or methods of disseminating or processing material.
35.Subsection (7) states that any such regulations may be made only where Scottish Ministers consider it appropriate to take account of two different situations. The first situation reflects technological developments (including where certain technologies cease to be used) relating to the dissemination or processing of materials. The second reflects changes in how material is disseminated or processed as a result of such developments. Under subsections (7) to (8) any such regulations are to be the subject of consultation by the Scottish Ministers, and are to be subject to the affirmative procedure.
Section 4: Power to specify persons to be treated as publishers
36.Section 4 effectively qualifies section 3, discussed above.
37.Subsection (1) gives the Scottish Ministers power to make regulations specifying categories of persons who are to be treated as publishers of a statement, for the purposes of the bringing of defamation proceedings, despite not being persons who would be classed as authors, editors or publishers by virtue of section 3. In other words, the provision is concerned with people who neither fall within the definition of author, editor, or publisher under section 3, nor are an employee or agent of such a person. This is designed to cater, in particular, for a scenario in which a new category of publisher emerges and is actively facilitating the causing of harm.
38.Subsection (2) enables the Scottish Ministers to make provision in regulations under subsection (1) for a defence to defamation proceedings for persons who are treated as publishers under those regulations, who did not know, and could not reasonably be expected to have known, that the material which they disseminated contained a defamatory statement and who satisfy any further conditions specified by the regulations.
39.Subsections (3) to (4) provide that regulations under subsection (1) are to be the subject of consultation by the Scottish Ministers, and are to be subject to the affirmative procedure of the Scottish Parliament.
[1936] 2 All ER 1237.
[1993] AC 534. At page 547, Lord Keith of Kinkel said: “There are, however, features of a local authority which may be regarded as distinguishing it from other types of corporation, whether trading or non-trading. The most important of these features is that it is a governmental body. Further, it is a democratically elected body, the electoral process nowadays being conducted almost exclusively on party political lines. It is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism. The threat of a civil action for defamation must inevitably have an inhibiting effect on freedom of speech.”
