Changes to the way people communicate mean that it is easier than ever to express an opinion about a person, organisation or state of affairs. An opinion can be shared online at the click of a button, publishing the author’s comments to a potentially worldwide readership. The speed at which information can now be created and shared increases the risk that defamatory statements will be made.
The Defamation Act 2013 (the 2013 Act) was intended to reform the law of defamation to bring it up-to-date with how opinions are being shared and spread in the 21st century. The intention was to provide better protection for publicly expressed opinions, to address libel tourism and to focus litigation away from intermediaries and onto the makers of defamatory statements. The 2013 Act does contain a series of measures that tackle these issues but many of its provisions extend to England and Wales only.
The importance of media lawyers considering the differences between Scots and English law, and the jurisdiction of the Scottish courts, was highlighted in 2011 when The Sunday Herald published a photo of Ryan Giggs on its front cover, revealing that he was the footballer behind a much talked about super injunction. The English court order applied only to publication in England and Wales. As no order had been sought by Giggs in the Scottish courts, Scottish newspapers (such as The Sunday Herald) were free to publish provided that their publication did not extend into England and Wales. To ensure that it did not breach the English court order, The Sunday Herald did not run the Giggs story on its web site and on that day did not distribute any printed copies of the paper in England Wales.
That incident, coupled with the changes brought in by the 2013 Act, means that considering the Scottish perspective when advising on privacy and defamation is more important than ever before.
Similarities between Scotland and England
Before turning to look at the key differences created by the 2013 Act, it is worth noting that the law in Scotland still shares a number of common traits with the law in England. Firstly, what amounts to defamation is the same – a broadcast, statement or publication which lowers a person in the estimation of a right-thinking member of the public.
Whilst the terminology is different, the defences available in Scotland and England are also broadly the same. To pick some examples, the Scottish defence of veritas (truth) has an equivalent in the English defence of truth. Similarly, defences of qualified privilege and absolute privilege apply both north and south of the border.
Requirement for serious harm
There are a number of key provisions of the 2013 Act that do not apply in Scotland, starting with s 1.
Section 1 of the 2013 Act introduces a threshold requirement of ‘serious harm’ before a statement is defamatory; a statement is not defamatory unless its publication has caused, or is likely to cause, serious harm to the reputation of a claimant. Section 1 also provides that ‘serious harm’ to the reputation of a company that trades for profit means causing likely or actual serious financial loss. The intention of s 1 is to establish a threshold of seriousness so that trivial cases do not proceed.
Section 1 of the 2013 Act does not apply to Scotland. This means that it will be easier to get a claim off the ground in Scotland than in England and Wales, raising the prospect that a claimant with an action that is borderline in England and Wales may choose to bring his claim for defamation in Scotland instead.
Public interest defence
In both jurisdictions there was a defence at common law called the Reynolds defence. The defence was taken from the principles in the case of Reynolds v Times Newspapers Limited [2001] 2 AC 127. Reynolds also provided a useful ten-point test which serves as a guide for responsible journalism.
Section 4 of the 2013 Act abolishes the common-law defence in Reynolds and replaces it with a defence where there is publication on a matter of public interest. Section 4 is based on Reynolds but is also intended to reflect the principles in more recent decisions. Section 4 does not apply in Scotland and Reynolds remains good law north of the border. There is therefore the potential for divergence in the law between Scotland and England as the English courts get to grips with interpreting the new statutory test.
Defence for operators of web sites
An important innovation in the 2013 Act is its treatment of intermediaries such as internet service providers, search engines and usenet and web site hosts. Section 5 of the 2013 Act creates a new defence for the operators of web sites in respect of a statement posted on a web site. Where an action is brought against an operator of a web site, it will be a defence if the operator can show that he or she did not post the statement on the web site. The Defamation (Operators of Websites) Regulations 2013 provide the detail of the operation of s 5 and introduce a notice of complaint and take down procedure.
There is no special defence for the operators of web sites in Scotland. However, the provisions of reg 19 of the Electronic Commerce (EC Directive) Regulations 2002 continue to apply, providing a service provider with a defence until such time as it obtains knowledge of defamatory material, provided that it acts expeditiously to remove or disable access to the material.
It is likely that in Scotland, as in England, victims will continue to take a pragmatic approach to material posted on web sites. The terms and conditions of the web site operator will normally contain provisions on take down. In most cases that will be the most effective way of getting the content removed without the need for litigation. Indeed, initial anecdotal evidence also suggests that some of the larger internet businesses consider that the administrative burden imposed upon them by s 5 means that it is easier to simply take down the allegedly defamatory material. It will be interesting to see how the use of this defence develops.
Jurisdiction and time limits
Section 9 of the 2013 Act restricts jurisdiction in cases where an action is brought against a person who is not domiciled in the UK or another EU member state. In those cases the court must be satisfied that, of all the places where the statement has been published, England and Wales is clearly the most appropriate place to bring an action. This is designed to prevent ‘libel tourism’.
In Scotland there is no such restriction and jurisdiction will continue to be established by the publication of the defamatory statement in Scotland.
Section 8 of the 2013 Act introduces a single publication rule. This means that the time limit for bringing a claim will run from the date of the first publication of the defamatory statement. Claimants in England will also only have one year from the date of publication to raise a claim.
In contrast, in Scotland each time the defamatory statement is published a fresh basis for an action is created. Scottish pursuers will have three years from date of publication to raise proceedings.
These differences open up the possibility of the Scottish courts, whilst traditionally less generous with awards of damages, becoming the preferred forum for bringing defamation claims that are unlikely to succeed in the English courts.
The future
Despite the differences noted above, it is likely that the courts in Scotland will continue to be influenced by English case-law on defamation. There remain relatively few home-grown Scottish decisions that are reported. However, the introduction in England of the ‘serious harm’ requirement, the special defence for web site operators, the restriction on jurisdiction and a shorter time bar period may all combine to encourage forum shopping in favour of Scotland and the potential for a claim to succeed in the Scottish courts where it might not be successful south of the border.
The Scottish Government was consulted on the 2013 Act during its passage through the UK Parliament. At that time the Scottish Government felt that the existing Scottish law was adequate and did not require the same legislative change as the rest of the UK. There are therefore no immediate plans to review the law in Scotland. There is clearly scope for the law to diverge as the 2013 Act becomes established. It will be interesting to see the practical effect of the 2013 Act from the Scottish perspective and whether it leads to the Scottish Government reconsidering its view.
In the meantime, those acting for individuals will wish to think about whether a defamation claim may be more successful in Scotland and, when seeking injunctions against publication, ensuring that the jurisdiction of the Scottish courts is considered as part of the overall strategy.
In contrast, media organisations and internet businesses should be alert to the increased risks of defamation actions being brought against them north of the border by ensuring that they are aware of differences in the law north of the border and that they have caveats (see below) lodged with the Scottish courts to prevent interim court orders being made against them in their absence.
Christine O’Neill is a partner and chairman of Brodies LLP and Niall McLean is an associate, both specialising in media and defamation law. Blog: http://techblog.brodies.com Twitter: @BrodiesTechblog
Caveats?
In Scotland, it is possible to obtain an interim order from the court without the other party having a chance to oppose the application. Once granted, it is often much harder to persuade a court to overturn an order than it would have been had that opposition been made prior to the order being granted. The granting of an interim order may also impact upon the relative bargaining position of the parties when attempting to resolve a dispute.
A caveat is a written intimation that can be lodged by an organisation’s Scottish solicitors with the courts in Scotland. Having a caveat means that no hearing may take place at which an interim interdict or other interim order may be granted without the solicitor who lodged the caveat being given advance notice of the court hearing and the opportunity to oppose the grant of such an order.
Caveats are applicant blind (that is, you do not need to name the party that may seek to obtain an order against you), and renewed on an annual basis.
Given the potential commercial consequences of an interim order being granted by the court, any business that is contracting under Scots law, or is otherwise potentially subject to the jurisdiction of the Scottish courts, should have caveats in place to ensure that it is given an opportunity to oppose any attempt to obtain an interim order against it.
