Defamation Act (Scotland) 2021

• Good names in people are valuable.
• Names are vulnerable to theft from others
• "Defamation and Malicious Publication (Scotland) Act 2021" began August 8th 2022.
• It codifies defamation law and provides explanatory notes.
• A statement is defamatory if it harms a person's reputation, lowering it in the eyes of ordinary people.
• This is illustrated in Sim v Stretch [1936] 2 All ER 1237, HL.
• Defamation can occur through libel or slander.
• A "statement" includes words, pictures, visual images, gestures, or any method of signifying meaning, including innuendo.
• Section 1 of the act applies to defamatory statements made/published by a person (A) about another person (B).
• Defamation proceedings can be initiated if A publishes the statement to someone other than B and the publication has caused or is likely to cause serious harm to B's reputation.
• "Serious harm" is determined using the ordinary meaning described in Sobrinho v Impresa Publishing SA [2016] EWHC 66 (QB).
• In Lachaux v Independent Print Ltd & Anor [2019] UKSC 27, it was deemed to be a question of fact with facts inferred from circumstances like the gravity of the statements.
• Apologies can also influence "serious harm" as seen in Cooke & Anor v MGN Ltd & Anor [2014] EWHC 2831 (QB).
• The concept of "serious harm" can be influenced by a small publication, or a claimant's position as illustrated in Turley v Unite the Union & Anor [2019] EWHC 3547 (QB).
• Serious harm to a business trading for profit only occurs if it causes or is likely to cause serious financial loss.
• Section 3 outlines who is responsible for a defamatory statement and an "author" is the person from whom the defamatory statement originated,.
• In electronic communications, a person isn't considered an editor or responsible if their involvement is limited to publishing the statement without altering it or marking interest in a non-altering way, and if this doesn't increase the harm caused.
• Public Authories may not bring defamation proceedings.
• Public authorities include any institution of central/local government
• This includes non-natural persons owned or controlled by them, a court, a tribunal, any office not falling within the first categories.
• Nothing in the act prevents defamation proceedings in a personal capacity, distinct from their official role.
• Defamatory content may include:
• Criminality such as in Monson v Tussauds Ltd [1894] 1 QB 671 and Harkness v Daily Record Ltd 1924 SLT 759.
• Dishonesty
• Financial unsoundness such as in Russell v Stubbs Ltd [1913] 2 KB 20.
• Professional, vocational, or business competence, illustrated in Mackellar v Duke of Sutherland (1859) 21 D 222 and McRostie v Ironside (1849) 12 D 74.
• Disease.

Defences

• Truth is a valid defense if the defender can show the statement's implied meaning is true or substantially true (replaces Veritas).
• Even if a statement conveys multiple imputations, the defence doesn't fail if some imputations are true/substantially true, and the untrue imputations haven't caused serious harm to the pursuer's reputation.
• Public Interest replaces the Reynolds Defence (Reynolds v Times Newspapers Ltd [2001] 2 AC 127 (HL)).
• A defence is made if there is reasonable belief that the defender published a matter of public interest.
• Honest Opinion replaces fair comment and is a defence to defamation proceedings if specific conditions are met.
  • The statement must be an opinion.
  • The statement should indicates the evidence it's based on.
  • An honest person could have held that opinion.
  • However, it fails where the defender didn't genuinely hold the opinion.
• Rixa is a defence
• Statements made in the House of Commons, House of Lords, and the Scottish Parliament are protected under Privilege.
• Statements made in judicial proceedings and reports of judicial proceedings (s9) are also covered.
• Qualified Privilege exists if A has a moral, social, or legal duty to make a statement, and B has an interest in it.
• This includes references, complaints, reports about parliamentary business, and peer-reviewed academic work.
• This does not apply if there is Malice.
• Sections 13-17 outline the "Offer to make amends" defence.
• The defender can offer to correct a statement, apologize, and publish the correction or apology.
  • If the offer is accepted, defamation proceedings are barred, though the offer can be enforced.
  • If rejected, a defence is provided if A didn't know the statement was about B, or that it was false and defamed B.

Malicious Publications

• Statements causing harm to business interests(s21), about titles to land (s22) and assets (s23) are all malicious publications.

The Case: Ashton Properties (Glasgow) Ltd v Unite The Union [2024] SC GLA 37

• This case concerns the meaning of two tweets about workers' wages that are being reduced to MW.
• The defence in question is whether there was truth in the message's content or that it was an honest opionion.

Strategic Lawsuits Against Public Participation (SLAPPs)

• Economic Crime and Corporate Transparency Act 2023 ss194-195 (England and Wales) are relevant to SLAPPs.
• Solicitors Regulation Authority Warning Notice and Government rules out immediate anti-SLAPP legislation.
• See https://www.sra.org.uk/solicitors/guidance/slapps-warning-notice/ and https://www.lawgazette.co.uk/law/government-rules-out-immediate-slapp-legislation/5121610.article
• S19 governs actions against a person not domiciled in the UK.
• Per S32, a case must usually be brought within one year of the first publication.