Defamation: Differences between Scotland and England

05.11.14

The law of defamation in Scotland and England has traditionally had greater similarities than differences. The Defamation Act 2013 (the 2013 Act) reformed the law of defamation, but many of its provisions extend to England and Wales only. This has the potential to widen the gap between the law in Scotland and England. In this briefing we assess the impact of the Defamation Act 2013 and look at the key differences between the law in Scotland and the law in England.

Similarities between Scotland and England

Defamation law in Scotland shares a number of common traits with defamation law in England. Firstly, what amounts to defamation is the same - a broadcast, statement or publication which lowers a person in the estimation of a right-thinking member of the public.

Albeit the terminology is different, the defences available in Scotland and England are also broadly the same. To pick one example, the Scottish defence of veritas (truth) has an equivalent in the English defence of truth. Similarly, defences of qualified privilege and absolute privilege apply both north and south of the border.

Finally, the statutory provisions in the Defamation Act 1952 and the Defamation Act 1996 have, for the most part, covered the UK as a whole.

Differences between Scotland and England

In the table below we summarise the key differences between Scotland and England in light of the changes made by the 2013 Act. 

Legal principle

Scotland

England

Requirement of serious harm – section 1 of the 2013 Act.

 

 

Section 1 of the 2013 Act does not apply to Scotland.

 

 

Section 1 of the 2013 Act applies in England.

 

Establishes a threshold of seriousness so that trivial cases do not proceed.

Honest opinion – section 3 of the 2013 Act.

Section 3 of the 2013 Act does not apply to Scotland.

The defence of “fair comment” in Scotland protects honestly held comments or opinions based on fact.

Section 3 of the 2013 Act applies in England.

 

Section 3 replaces the common law defence of “fair comment” with a new defence of honest opinion. The requirement for the opinion to be on a matter of public interest has been removed.

Public interest defence

Common law defence in Scotland with the principles taken from the case of Reynolds v Times Newspapers Limited [2001] 2 AC 127.

A ten point test which can be considered as criteria for responsible journalism.

Section 4 of the 2013 Act abolishes the common law defence in Reynolds and replaces it with a defence where there is publication on a matter of public interest.

Defence for operators of websites

No special defence for the operators of websites in Scotland.

Section 5 of the 2013 Act creates a new defence for the operators of websites in respect of a statement posted on a website.

 

The Defamation (Operators of Websites) Regulations 2013 provide the detail of the operation of section 5 and introduces a notice of complaint and take down procedure.

Reports of court proceedings

A fair and accurate report of court proceedings is absolutely privileged (section 14 of the Defamation Act 1996).

The protection extends to any court in the UK, the European Court of Justice, the European Court of Human Rights and any international criminal tribunal.

 

A fair and accurate report of court proceedings is absolutely privileged (section 14 of the Defamation Act 1996).

Section 7 of the 2013 Act extends the protection in England to reports of international court proceedings more widely.

 

Qualified privilege is also extended to copies of a notice issued for public information by governmental bodies and to fair and accurate reports of press conferences held anywhere in the world regarding matters of public interest.

Jurisdiction

Established by publication of the defamatory statement in Scotland.

Section 9 of the 2013 Act restricts jurisdiction in cases where an action is brought against a person who is not domiciled in the UK, another member state or one which is a party to the Lugano Convention.

 

In those cases the court must be satisfied that of all the places where the statement has been published England and Wales is clearly the most appropriate place to bring an action. This is designed to prevent “libel tourism”.

Time bar

3 years from date of publication.

Each time the defamatory statement is published a fresh basis for an action is created.

1 year from date of publication.

 

Section 8 of the 2013 Act introduces a single publication rule. This means that the time bar will run from the date of the first publication of the defamatory statement.

 

The future

Despite the differences noted above, it is likely that in many Scottish cases English authority will continue to be relied upon, as there are relatively few home grown Scottish decisions reported. However, the introduction in England of the 'serious harm” requirement, the restriction on jurisdiction, the extension of the defences of qualified and absolute privilege internationally and a shorter time bar period may all combine to encourage forum shopping in favour of Scotland.

The Scottish Government was consulted on the 2013 Act during its passage through the UK Parliament. However, the Scottish Government felt that the existing Scottish law was adequate and did not require the same legislative change as the rest of the UK. There are therefore no immediate plans to review the law in Scotland. It will be interesting to see the practical effect of the 2013 Act and whether it leads to the Scottish Government reconsidering its view.

Key contacts

Christine O’Neill

Niall McLean