The Public Interest Defence to Defamation in Scotland

The substantive provisions of the Defamation and Malicious Publication (Scotland) Act 2021 (the "2021 Act") have been in force for over a year but remain largely untested in the Scottish courts. As with much of the 2021 Act, the defence of publication on a matter of public interest mirrors the language used in England under the Defamation Act 2013 (the "2013 Act"). In this post, we look at what an English case involving TV presenter and campaigner Chris Packham can tell us about how the Scottish courts might apply the public interest defence.

Allegations

Chris Packham's claim concerned three accusations made in a series of articles published on the website and social media accounts of a magazine. In two of the accusations, it was alleged that Mr Packham had made fraudulent statements to raise money for an animal sanctuary of which he was a trustee, and in the third it was alleged he had dishonestly criticised a land management practice as environmentally harmful. The defendants unsuccessfully sought to rely on the defence of truth in relation to the first allegation (for discussion of its successful use, see our recent blog on Vardy v Rooney). However, they were also unsuccessful in their use of the public interest defence in relation to all three allegations.

Public Interest Defence

A statement is defamatory if it would tend to lower a person's reputation in the estimation of ordinary persons. Under both the Scottish and English legislation, an action can only be brought if the statement's publication has caused or is likely to cause serious harm to the person's reputation.

Even where a person is found to have made a defamatory statement causing serious harm there are possible defences. Under both the 2013 Act and the 2021 Act, it is a defence to show that (i) the statement complained of was a statement on a matter of public interest and (ii) that the defendant/er reasonably believed that publishing the statement complained of was in the public interest.

Before the current defamation legislation came into force in the UK, an equivalent defence of public interest existed under common law. Whilst a significant body of case law had developed on what factors were relevant to this defence, the Supreme Court ruled in 2020 that these cases did not provide a definitive list for the defence under the 2013 Act. Like its English equivalent, the Scottish 2021 Act states that 'the court must have regard to all the circumstances of the case'.

Relevant Factors

In this case, Mr Packham accepted that all the statements complained of could be a matter of public interest. What was disputed, however, was the second part of the test: whether the defendants had believed that publishing the statement complained of was in the public interest, and whether that belief was reasonable.

On the first allegation, it was found that while the defendants had believed publishing the statement was in the public interest, their belief was not reasonable. Facts which could have legitimately led to questions about the accuracy of the fundraising statements made by Mr Packham had been unreasonably seized upon as supposed proof of fraud and dishonesty.

On the second and third allegations, it was found that the defendants had neither believed publication was in the public interest nor could they have done so reasonably. In relation to both, the defendants had undertaken no investigation of what they had published and had given Mr Packham no chance to comment.

It was also noted that the statements in question were part of a campaign by the defendants to discredit Mr Packham. While having an agenda will not in and of itself undermine a public interest defence, it was found that it had led the defendants in this case to fail to undertake "responsible journalistic behaviour", even when accounting for their status as 'citizen journalists' rather than professionals.

Meaning for Scotland

With limited Scottish case law, this English case provides a useful insight into how the equivalent Scottish legislation might be interpreted by Scottish courts. Those seeking to rely on the public interest defence will need to show the reasonableness of a belief that publication was in the public interest. Reasonable journalistic behaviour continues to be an important touchstone in justifying this.

For more information about defamation, visit our reputation management webpage.