Defamation

• Defamation and Malicious Publication (Scotland) Act 2021


  1(4)(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)
• Sim v Stretch [1936] 2 All ER 1237, HL)

  The test for whether an imputation is defamatory is: 'Would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?'
• What Is a statement?


  statement" means words, pictures, visual images, gestures or any other method of signifying meaning• InnuendoLibel / Slander
• Actionability of Defamatory Statements

  Section 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
• Sobrinho v Impresa Publishing SA [2016] EWHC 66 (QB)


  Give the word "serious" its ordinary meaning for serious harm to reputation
• Lachaux v Independent Print Ltd & Anor [2019] UKSC 27


   A question of fact• Facts can be inferred from the circumstances such as the gravity of the statements
• Cooke & Anor v MGN Ltd & Anor [2014] EWHC 2831 (QB)


  An apology? - defamation can lower someone's reputation, but an apology may help this.
• Turley v Unite the Union & Anor [2019] EWHC 3547 (QB)


  Small circulation publication• Position of claimant importantt• s1(3) For the purposes of subsection (2) (b), where B is a non-natural person which has as its 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.
• Section 3 of the Defamatory Act

  1. Except as may be provided for under section 4

  2. A right to bring defamation proceedings in respect of a defamatory statement does not accrue against a person unless the person is

  3. (a) the author, editor or publisher of the statement

  4. (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
• Author


  The person from whom the statement originated, but does not include a person who did not intend the statement to be published
• Monson v Tussauds Ltd [1894] 1 QB 671

  placed in a wax murderer section when he wasn't a murderergave implications that he was a murderer when he was not
• Harkness v Daily Record Ltd 1924 SLT 759


  Accidentally identified people as murderers in a paper.This is defamatory
• Prophit v BBC 1997 SLT 745


  An allegation of homosexuality was found to be defamatory to the claimant as they were part of a religion which considered homosexuality sinful.'Immorality'
• Russell v Stubbs Ltd [1913] 2 KB 20


  the plaintiff said that the defendants, publishers of a trade magazine providing inter alia credit references, had slandered it.
• Mackellar v Duke of Sutherland (1859) 21 D 222 & McRostie v Ironside (1849) 12 D 74


  Professional, Vocational or Business Competence
• What Might be Defamatory?

  • CriminalityImmorality or immoral behaviourDishonestyFinancial UnsoundnessProfessional, Vocational or Business Competence
• Defences against defamation


  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.
• Public interest section 8

  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.
• Conditions for a defence to defamation proceedings


  1. Statement was a statement of opinion

  2. Statement indicated the evidence on which it was based

  3. An honest person could have held the opinion conveyed by the statement on the basis of any part of that evidence
• The defence fails


  If the pursuer shows that the defender did not genuinely hold the opinion conveyed by the statement
• privilege


  that the statement was made on a 'privileged' occasion and so is not subject to defamation proceedings• Statements made in the House of Commons, House of Lords and the Scottish Parliament• Statements made in judicial proceedings• Reports on judicial proceedings
• Qualified Privilege


  A has a moral, social or legal duty to make a statement and B has an interest in the information in the statement• Interviews• Complaints• Reports about parliamentary business• Peer-reviewed academic work• (Malice)
• Offering to make amends - Sections 13-17


   An offer to correct a statement or apologise for having made it and to publish the correction or apology• If accepted, defamation proceedings barred but can enforce offer• If rejected, a defence provided that A did not know that the statement was about B or that it was false and defamed B
• What are malicious publications?


  Statements causing harm to business interests (s21)• Statements about titles to land (s22)• Statements about assets (s23)
• Strategic Law Suits Against Public Participation - The three part test


   Case relates to a public interest issue;• Has some features of an abuse of process; and• Insufficient evidence of merit to warrant further judicial consideration
• Time scale to bring an action against someone?


  s32 - A case must (usually) be brought within one year of first publication