Legalize / United Kingdom / Scotland / Act of the Scottish Parliament

Defamation and Malicious Publication (Scotland) Act 2021

Type Act of the Scottish Parliament

Publication 2021-04-21

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

PART 1 — Defamation

Actionability and restrictions on bringing proceedings

Actionability of defamatory statements

1

(1) This section applies to a defamatory statement made or published by a person (A) about another person (B).

(2) A right to bring defamation proceedings in respect of the statement accrues only if—

(a) A has published the statement to a person other than B, and

(b) the publication of the statement has caused (or is likely to cause) serious harm to the reputation of B.

(3) For the purposes of subsection (2) (b), where B is a non-natural person which has as its primary purpose trading for profit, harm to B's reputation is not “serious harm” unless it has caused (or is likely to cause) B serious financial loss.

(4) For the purposes of this Act, unless the context otherwise requires—

(a) a statement about a person is defamatory if it causes harm to the person's reputation (that is, if it tends to lower the person's reputation in the estimation of ordinary persons),

(b) a reference to publishing a statement is a reference to communicating the statement by any means to a person in a manner that the person can access and understand, and

(5) Nothing in this section affects a right to bring proceedings which accrued before the commencement of this section.

Prohibition on public authorities bringing proceedings

2

(1) A public authority may not bring defamation proceedings.

(2) For the purpose of subsection (1), a public authority is—

(a) any institution of central government, including in particular the Scottish Ministers and any non-natural person owned or controlled by them,

(b) any institution of local government, including in particular each local authority and any non-natural person that such an authority owns or controls,

(d) any person or office not falling within paragraphs (a) to (c) whose functions include functions of a public nature (unless excluded by regulations made under subsection (6)).

(3) But, where the person—

(a) is a non-natural person which—

(i) has as its primary purpose trading for profit, or

(ii) is a charity or has purposes consisting only of one or more charitable purposes, and

(b) is not owned or controlled by a public authority,

it is not a public authority by reason only of its carrying out functions of a public nature from time to time.

(4) For the purposes of this section, a non-natural person is owned or controlled by a public authority if the authority—

(a) holds (directly or indirectly) the majority of shares or voting rights in it,

(b) has the right (directly or indirectly) to appoint or remove a majority of the board of directors of it, or

(5) For the avoidance of doubt, nothing in this section prevents an individual from bringing defamation proceedings in a personal capacity (as distinct from the individual acting in the capacity of an office-holder or employee).

(6) The Scottish Ministers may by regulations make provision specifying persons or descriptions of persons who are or are not to be treated as a public authority for the purpose of subsection (1).

(7) Regulations under subsection (6) are subject to the affirmative procedure.

(8) Before laying a draft of a Scottish statutory instrument containing regulations under subsection (6) before the Scottish Parliament, the Scottish Ministers must consult such persons as they consider appropriate.

(9) In this section—

(a) a reference to a charity is a reference to a non-natural person—

(i) registered in the Scottish Charity Register, or

(ii) managed or controlled wholly or mainly outwith Scotland and which is registered in a register equivalent to the Scottish Charity Register for the purposes of the country in which it operates,

(b) “charitable purposes” is to be construed in accordance with section 7(2) of the Charities and Trustee Investment (Scotland) Act 2005.

Restriction on proceedings against secondary publishers

3

(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) The Scottish Ministers may by regulations modify subsection (3) or (4) to add, amend or remove activities or methods of disseminating or processing material.

(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.

Power to specify persons to be treated as publishers

4

(1) The Scottish Ministers may by regulations specify categories of persons who are to be treated as publishers of a statement for the purpose of defamation proceedings despite not being—

(a) the author, editor or publisher of the statement as defined in section 3, or

(b) an employee or agent of such a person.

(2) Regulations under subsection (1) may also provide for a defence to defamation proceedings for a person who—

(a) is treated as a publisher under such regulations,

(b) did not know and could not reasonably be expected to have known that the material which the person disseminated contained a defamatory statement, and

(3) Regulations under subsection (1) are subject to the affirmative procedure.

(4) Before laying a draft of a Scottish statutory instrument containing regulations under subsection (1), the Scottish Ministers must consult such persons as they consider appropriate.

Defences

Defence of truth

5

(1) It is a defence to defamation proceedings for the defender to show that the imputation conveyed by the statement complained of is true or is substantially true.

(2) Where defamation proceedings are brought in respect of a statement conveying two or more distinct imputations, the defence under subsection (1) does not fail if—

(a) not all of the imputations have been shown to be true or substantially true, and

(b) having regard to the imputations that have been shown to be true or substantially true, publication of the remaining imputations has not caused serious harm to the reputation of the pursuer.

Defence of publication on a matter of public interest

6

(1) It is a defence to defamation proceedings for the defender to show that—

(a) the statement complained of was, or formed part of, a statement on a matter of public interest, and

(b) the defender reasonably believed that publishing the statement complained of was in the public interest.

(2) Subject to subsections (3) and (4), in determining whether the defender has shown the matters mentioned in subsection (1), the court must have regard to all the circumstances of the case.

(3) If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the pursuer was a party, the court must, in determining whether it was reasonable for the defender to believe that publishing the statement was in the public interest, disregard any omission of the defender to take steps to verify the truth of the imputation conveyed by it.

(4) In determining whether it was reasonable for the defender to believe that publishing the statement was in the public interest, the court must make such allowance for editorial judgement as it considers appropriate.

(5) For the avoidance of doubt, the defence under this section may be relied upon irrespective of whether the statement complained of is a statement of fact or a statement of opinion.

Defence of honest opinion

7

(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

(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

Abolition of common law defences and transitional provision

8

(1) Any rules of law providing for—

(a) the defence of innocent dissemination,

(b) the defence of veritas,

(d) the defence of fair comment,

cease to have effect.

(2) Nothing in sections 5 to 7 or subsection (1) of this section has effect in relation to defamation proceedings if the right to bring the proceedings accrued before the commencement of the section or subsection in question.

Absolute privilege

Contemporaneous reports of court proceedings

9

(1) The contemporaneous publication of a statement which is a fair and accurate report of proceedings in public before a court to which this section applies is absolutely privileged.

(2) Where the publication of a report of proceedings is required to be postponed—

(a) by an order of the court, or

(b) as a consequence of a statutory provision,

it is to be treated as being contemporaneously published if it is published as soon as practicable after that is permitted.

(3) This section applies to—

(a) any court in the United Kingdom,

(b) any court established under the law of a country or territory outside the United Kingdom, and

(c) any international court or tribunal established by the Security Council of the United Nations or by an international agreement.

(4) For the purposes of subsection (3) (a) and (b), “court” includes any tribunal or body exercising the judicial power of the State.

Qualified privilege

Peer-reviewed statement in scientific or academic journal etc.

10

(1) The publication of a statement in a scientific or academic journal is privileged if the conditions in subsections (2) and (3) are met.

(2) The first condition is that the statement relates to a scientific or academic matter.

(3) The second condition is that before the statement was published an independent review of the statement's scientific or academic merit was carried out by—

(a) the editor of the journal, and

(b) one or more persons with expertise in the scientific or academic matter concerned.

(4) Where the publication of a statement in a scientific or academic journal is privileged by virtue of subsection (1), the publication in the same journal of any assessment of the statement's scientific or academic merit is also privileged if—

(a) the assessment was written by one or more of the persons who carried out the independent review of the statement, and

(b) the assessment was written in the course of that review.

(5) Where the publication of a statement or assessment is privileged by virtue of this section, the publication of a fair and accurate copy of, extract from or summary of the statement or assessment is also privileged.

(6) The publication of a statement is not privileged by virtue of this section if it is shown to have been made with malice.

(7) Nothing in this section is to be construed as—

(a) protecting the publication of matter the publication of which is prohibited by law, or

(b) limiting any privilege subsisting apart from this section.

(8) The reference in subsection (3) (a) to “the editor of the journal” 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.

Other statements protected by qualified privilege

11

(1) Other than as provided in this section, the publication of any statement mentioned in the schedule (however described) is privileged.

(2) The publication of a statement is not privileged by virtue of this section if it is shown to have been made with malice.

(3) Subsection (4) applies to defamation proceedings brought in respect of the publication of a statement mentioned in Part 2 of the schedule.

(4) If the pursuer shows that the defender—

(a) was requested by the pursuer to publish, in a suitable manner, a reasonable statement by way of explanation or contradiction, and

(b) refused or neglected to do so,

the publication of the statement complained of is not privileged by virtue of this section.

Reading this document does not replace reading the official text published on legislation.gov.uk. Contains public sector information licensed under the Open Government Licence v3.0. We assume no responsibility for any inaccuracies arising from the conversion of the original CLML XML to this format.