Defamation in Scotland

Although there is no single definition of what a defamatory statement is, a defamatory statement made against someone is one which is untrue and has one or more of the following effects:

• lowers them in the estimation of 'right-thinking' members of society generally;

• disparages them in their business, trade, office or profession;

• exposes them to hatred, ridicule or contempt; or

• causes them to be shunned or avoided.

Whether the words are defamatory depends on the precise words used. The words are judged by the standards of society generally at the time the defamatory statement or publication was made.

Defamation is split into two different branches: libel and slander.

Libel is the publication of a defamatory statement in written or permanent form. This could be an email, blog, tweet, text or WhatsApp message, newspaper article, TV or radio broadcast, video clip uploaded to the internet or simply an old-fashioned hand written letter.

Slander is concerned with non-permanent forms of expression, such as spoken statements or gestures, which include a defamatory accusation. This could be a disparaging remark made in public or a comment made in private which is later reported.

Individuals, businesses and other legal entities can lodge a claim for libel or slander, but only if they believe the defamatory statement is about them. Claims cannot be brought by central or local government, unincorporated associations or on behalf of dead people.

In order to bring a claim for defamation, the individual or business will need to prove:

• that the statement was defamatory

• that it referred to them (ie they are named or they can be identified from the information)

• that the defamatory statement was published (ie communicated to a third party)

In Scotland a claimant will need to bring an action for defamation within three years from the date the defamatory material was published. Each time the defamatory material is published, a new basis for a legal claim is created.

Defamation is a very complex area of law and cases can take a year or more to complete. Before going to court, it is necessary to follow procedures specified under the Defamation Pre-Action Protocol. Ask a lawyer who will be able to discuss the merits of your potential claim and guide you through the legal hurdles.

The main defences to a defamation claim in Scotland are:

• truth/justification - if the statement is true, it will not be considered defamatory, no matter how damaging it is

• fair comment - protects honestly held comments or opinions based on fact

• public interest - this is a ten point test taken from case law in Scotland and depends on: (i) the seriousness of the allegation, (ii) the nature of the information, and the extent to which the subject-matter is a matter of public concern, (iii) the source of the information, (iv) the steps taken to verify the information, (v) the status of the information, (vi) the urgency of the matter, (vii) whether a comment was sought from the claimant, (viii) whether the article contains the gist of the claimant’s side of the story, (ix) the tone of the articles, and (x) the circumstances of the publication, including timing.

• privilege - certain situations in which an otherwise defamatory statement is made, will preclude claims from being brought - eg during parliamentary debates or judicial proceedings

• consent - if the individual consented to the publication of the defamatory statements or accepted an apology, then they would not be allowed to bring an action

Other than the individual or organisation who initially made a defamatory statement (ie the author), the 'primary publishers' of the statement who can be sued include the editor and commercial publisher. In certain cases, secondary publishers such as booksellers, printers and website operators can also potentially face legal action.