In my last essay, I wrote about the Scottish Court system and how it works for journalists. One of the more important things journalists should be aware of is defamation. Without this, you could get into a lot of trouble.

Definition

Defamation is a civil wrong in Scots Law. It is a statement or insinuation concerning any person which exposes his/her to hatred, ridicule or contempt which causes him/her to be shunned or avoided or which has a tendency to injure him/her in his/her office, profession or trade. In order for the pursuer to be successful in suing an individual for defamation, they must be able to prove that a) the words or action itself was defamatory, b) that it is referring to the pursuer, c) that the words or action has been communicated in some way, and d) that it is untrue. It is important that the statement can be seen to refer to the pursuer, even if it was not the authors intent, such as in the Artemus Jones case where a London newspaper published a story of a fictional character by the name, but a real person with that name sued for defamation. Another definition came from the House of Lords decision in Sim v Stretch (1936): “would the words tend to lower the plaintiff in the estimation of right-thinking members of society”. This means that the statement would reasonably lower the reputation of an individual. However, an insult alone is not enough to qualify as defamation. It is also important to note that defamation can be actionable by a pursuer if the statement relates specifically to their work or living, and not if it does not. For example, accusing someone of speeding would normally not be regarded by the law but if the accused was a driver by trade or relied on his reputation as a good driver, it just might. Breaking the law, however, usually is regarded as defamation regardless of the circumstance.

In the case Leon v Edinburgh Evening News (1909), the Evening News reported on “The Edinburgh Licensing Prosecution: Prisoners Acquitted” where one of the “Prisoners” referred had in fact not spent time in prison and merely appeared in the court as part of his citation. He then sued for defamation. The judge, Lord Kinnear, held that it was not defamation, saying: “To an ordinary reader, the paragraph with its heading, would not in my opinion convey any more injurious meaning that that the pursuer had been accused and had been acquitted.” This precedent is that headlines must be read with the article to be taken within the correct context, and therefore defamation cannot occur from a headline in isolation.

The use of defamatory innuendo is also a legal concern. These are statements that plainly say one thing but in fact mean something else. In extreme cases, words might mean the exact opposite. In Scotland, the double positive “aye, right” famously actually means a negative. This can also be difficult to report on in writing or through a specific medium, when innuendos are implied through facial expressions or tone of voice. In McCue v Scottish Daily Record and Sunday Mail Ltd (2000), McCue was described in an article as having “strong connections with reformed killer Jimmy Boyle” while also reporting on a raid on McCue’s house. The judge ruled that “A reference to Mr McCue as one of those detained by the police when read in the context of other statements in the article, might well change the meaning of the article to bear the innuendo that he was in fact involved in some way with the currency. In this article as it stands there is no basis for making that link”.

Corporate bodies, such as business or firms, can also sue for defamation if they can prove that they have lost business as a result. The case, whether the pursuer is an individual or corporate body, must be made within three years as stated in the Prescription and Limitation (Scotland) Act 1973, in contrast to England & Wales where it is only one year. This has resulted in pursuers stating their cases in Scots courts rather than in England, such as in Kennedy (2005) despite its lacking relation to the jurisdiction. This is likely to occur more often with the proliferation of internet publications.

As corporate bodies can sue for defamation, governmental organisations and political parties cannot. Local authorities cannot pursue defamation as a result of the Derbyshire Country Council v Times Newspaper Ltd (1993). This has become known as ‘the Derbyshire rule’. This, however, does not preclude the actionability of pursuing a case of defamation to an individual working in the organisation. For example, saying that a city council is corrupt is not an actionable case, however if they referred to a specific department and that department has a small enough amount if individuals, they could individually sue for defamation.

Publication

While in English law it is required evidence that a third party be in receipt of a defamatory statement, in Scots Law there is not distinction. It is enough that the only person to hear the defamatory statement is the one being defamed. This change in English law was made in the Defamation Act 2013 to make this distinction, however this does not apply to Scotland and therefore still applies pre-2013 rules. On a side note, Scots Law, as a result, draws many of its sources from the Defamation Act 1992 and Defamation Act 1996. It is because of this that defamation law in Scotland is said to be falling behind, and major reforms are being called for.

It is also interesting to note that the defamatory statement when made via a publication can also make the publication itself liable as well as the original author. This is sometimes called ‘the repetition rule’. This includes other non-associated publications that repeat the defamatory statement; as Lord Kyllachy’s remark in Wright v Greig (1890): “a person circulating a slander (slander, in this case, referring to defamation, as defamation is the appropriate term in Scots courts, not in English courts) is answerable equally with the author of the slander.” This precedent, while old, is still considered true today.

Defences

There are multiple defences to defamation, most of which concern the previously mentioned four points. These can include that the words were not defamatory, that they reasonably cannot be said to refer to the pursuer, that the words were merely opinion (“fair comment”), or are in fact true (“veritas”). Another defence, mostly used by journalistic publications, is if the statement is a matter of public interest. While this was suggested in the House of Lord’s decision in the Albert Reynolds v Times Newspapers (1999), it was more solidified by the Human Rights Act 1998. This defence leans heavily on the European Convention on Human Rights, specifically Art. 10 relating to the freedom of speech. While this points to a more sympathetic precedent in favour of journalists, in practice Scots courts have relied on two things to determine defamation: what the publication is held to mean, and whether that meaning is likely true.

While defamation remains primarily a civil case, there are theoretically cases where defamation could lead to criminal prosecution. Such incidences might include when such a statement suggests a breach of the peace, or if it is in breach of the Representation of the People Act 1983, which suggests that defamation cannot be made about a person running for an election when such defamation was made to affect the return of any candidate, unless the publication can reasonably prove that the statement is true. Regarding the breach of the peace scenario, this would be considered unlikely by the European Convection in UK law. All these examples, however, are not defamation, but are rather alternative routes pursuers may take. In Scots Law, defamation is always a civil wrong.

Sources

Defamation in Scots law: consultation 2019-last update [Homepage of Gov.scot], [Online]. Available: https://www.gov.scot/publications/defamation-scots-law-consultation/pages/4/.

Defamation Act 1992 [Homepage of Legislation.gov.uk], [Online]. Available: http://www.legislation.govt.nz/act/public/1992/0105/latest/DLM280687.html.

Defamation Act 1996 [Homepage of Legislation.gov.uk], [Online]. Available: https://www.legislation.gov.uk/ukpga/1996/31/contents.

Defamation Act 2013 [Homepage of Wikipedia], [Online]. Available: https://en.wikipedia.org/wiki/Defamation_Act_2013.

Paparazzo loses Nicole Kidman court case 27/2/2008, [Homepage of The Telegraph], [Online]. Available: https://www.telegraph.co.uk/news/worldnews/1580044/Paparazzo-loses-Nicole-Kidman-court-case.html.

MCINNES, R., 2010. Defamation. Scots Law for Journalists. Eighth edn. Thomson Reuters, pp. 268-335.

QUINN, F., 2018. Law For Journalists: A Guide to Media Law. Sixth edn. United Kingdom: Pearson.

QUINN, F., 2011. Law for Journalists. Third edn. United Kingdom: MyLawChamber.