The word is out: The Libel and Malicious Publications (Scotland) Act 2021 is now in force

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The Libel and Malicious Publications (Scotland) Act 2021 (“the Act”) was unanimously passed by the Scottish Parliament on 2 March 2021 and received Royal Assent on 21 April 2021. After a long delay , the law went into effect on Monday. The legislation aims to bring defamation law into modern times and strike the right balance between protecting reputation on the one hand and freedom of expression on the other. This is particularly important given the transformation of the media landscape in recent years. Many changes reflect the situation under English law[1]and the Act will therefore do much to align the law in this area north and south of the border.

Under the law, a defamatory statement is a statement that would tend to tarnish the reputation of a person in the esteem of ordinary mortals. To give rise to a legal action, the statement must be made to a third party (ie someone other than the defamed person) and must cause “serious harm”. Importantly, and in order to protect “unfettered criticism” of public authorities, public authorities are prohibited from bringing libel suits.

The main changes to defamation law are as follows:

1. Serious harm. A threshold test for defamation, known as the “serious prejudice” test, was introduced. This is a high bar that will serve as a barrier to frivolous claims. The legislation also states that a non-natural person, for example a company, cannot suffer “serious harm” unless it suffers a serious financial loss. This aligns Scottish law with that of England and Wales.

2. Secondary editors. Under the old law, if someone other than the original author, a “sub-publisher”, published a defamatory statement, it would be liable to prosecution against him as well as against the author. original. The law presumed that secondary publication was intentional.

The position is different under the new legislation (probably partly to accommodate the advent of social media ‘endorsements’, for example the Facebook ‘like’ or Twitter ‘retweet’). The law provides that no defamation suit can be brought unless it is directed against the author, editor or publisher of the statement, who must be responsible for its content and/or the decision of publication. The law also specifically provides for statements made in electronic form, providing that a person will not be considered the publisher of a statement if they merely publish someone else’s statement or provide a means of accessing it. in a way that does not alter the statement, and that does not materially increase the harm suffered by the plaintiff. Thus, for example, “liking” a comment on Facebook or “retweeting” a post on Twitter would not be actionable, as long as that act does not “materially increase” the harm caused. This is a sensible approach to electronic filings that can easily be shared with a wide audience on the Internet.

3. Defenses.

  • The common law defense of “veritas” is abolished and a statutory defense known simply as “defense of the truth(essentially on the same terms) is included.
  • The common law defense of publication of matters of public interestcommonly referred to as the Reynolds defense after the English case of Reynolds v Times Newspaper Limited [2001] 2 AC 127 is also deleted. A replacement statutory defense is included in the new legislation. This requires that the statement is about a matter of public interest and that the editor believes that publishing it was in the public interest. This defense is available whether the impugned statement is a statement of fact or opinion.
  • The common law defense of “fair comment” relating to comments or opinions is abolished. A new section codifies a similarly worded statutory defense of “Honest opinion”, again reflecting the position in England and Wales. This defense requires that the statement be an opinion, that the publisher clearly state the evidence on which the statement is based, and that the statement constitute an opinion that any reasonable third party could have formed, based on any part of the evidence presented. The defense fails if the publisher cannot prove that the opinion expressed is sincere.
  • The Act also specifies that certain statements will be protected by absolute or qualified privilege. The simultaneous publication of a statement which is a fair and accurate account of the public proceedings of the courts is absolutely preferred. The effect is to exclude (or, in the case of a qualified lien, restrict) the bringing of a libel suit even if there is evidence that the statement was made maliciously. The types of statements covered by this privilege include statements made in Parliament and by certain persons in legal proceedings, including judges, lawyers and witnesses. In the case of qualified immunity scenarios (e.g. statements made at local authority meetings), libel suits can only be brought if it can be shown that the statement was made maliciously.

4. Presumption of trial by jury. There has long been a presumption in Scottish law that libel suits would be tried by a jury. Section 20 of the Act repeals section 11(b) of the Court of Session Act 1988, which establishes this presumption. This will help remove some of the uncertainty associated with litigation in this area.

5. Limitation. Under the old law, defamation actions had to be brought within three years of the publication of the relevant statement first coming to the knowledge of the person making the action. The Act shortens this period to one year and thus brings Scottish legislation into line with that of England and Wales.

6. Remedy – offer to make amends. In addition to damages, the law introduces an alternative remedy known as an “offer of reparation”. Such an offer is made by (a) making an appropriate correction to the statement generally or to a specific defamatory meaning conveyed by the statement (b) issuing an apology, (c) publishing the correction and apology in a manner which is reasonable and practicable in the circumstances and (d) pay reasonable compensation and expenses. An offer of relief must be made in writing and before defenses are filed.

7. Malicious Posting. The law also replaces the old “verbal insult” law with the offense of malicious publication. A person may sue another when a person has made a false and malicious statement about another person’s business or commercial activities, land title or other property of the person, or by criticizing or disparaging the quality, use or treatment of assets belonging to the person. Actionability depends on giving the statement to a third party and proving the financial loss (although the second limb can be satisfied if it can be shown that the statement is more than likely to cause loss). Under the Act, the statement is only malicious if it can be shown that the imputation conveyed by the statement was presented as a statement of fact (as opposed to opinion) and was sufficiently credible to induce a reasonable person in error.

Comment

At first glance, one might think that many of the measures introduced by the Act, such as the shortening of the limitation period and the introduction of the “serious harm” test, will lead to an overall reduction in defamation claims. In fact, the Act is likely to have the opposite effect. It provides much-needed clarification of the law in several areas, making good use of concepts from English law on which there is already extensive English case law. This will greatly contribute to increasing legal certainty, by creating more fertile conditions for litigation.

One aspect of the new legislation that may raise some interesting questions is the ‘secondary publisher’ provisions. The law provides that no defamation suit can be brought unless it is directed against the author, editor or original publisher of the statement, who must be responsible for its content and/or the publication decision. “Secondary publishers”, such as someone who “retweets” a defamatory statement, can only be sued if their actions can be found to have “materially increased” the harm caused. It will be interesting to see if high profile individuals with large online followings are held to a different standard than the average person, which would seem to be the likely consequence of the material increase in the harm test.

We will be watching this space with interest to see how the first cases under this legislation unfold.

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