(DISCUSSION PAPER No 161) Discussion Paper on Defamation discussion paper Discussion Paper on Defamation March 2016 DISCUSSION PAPER No 161 This Discussion Paper is published for comment and criticism and does not represent the final views of the Scottish Law Commission NOTES 1. Please note that information about this Discussion Paper, including copies of responses, may be made available in terms of the Freedom of Information (Scotland) Act 2002. Any confidential response will be dealt with in accordance with the 2002 Act. We may also (i) publish responses on our website (either in full or in some other way such as re-formatted or summarised); and (ii) attribute comments and publish a list of respondents’ names. 2. Where possible, we would prefer electronic submission of comments. A downloadable electronic response form for this paper as well as a general comments form are available on our website. Alternatively, our general email address is [email protected]. 3. 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Any enquiries regarding this publication should be sent to us at [email protected]. ISBN: 978-0-9935529-2-2 Produced for the Scottish Law Commission by APS Group Scotland, 21 Tennant Street, Edinburgh EH6 5NA. ii The Scottish Law Commission was set up by section 2 of the Law Commissions Act 1965 (as amended) for the purpose of promoting the reform of the law of Scotland. The Commissioners are: The Honourable Lord Pentland, Chairman Caroline Drummond David Johnston QC Professor Hector L MacQueen Dr Andrew J M Steven. The Chief Executive of the Commission is Malcolm McMillan. Its offices are at 140 Causewayside, Edinburgh EH9 1PR. The Commission would be grateful if comments on this Discussion Paper were submitted by 17 June 2016. Please ensure that, prior to submitting your comments, you read notes 1-2 on the facing page. Respondents who wish to address only some of the questions and proposals in the Discussion Paper may do so. All non-electronic correspondence should be addressed to: Dr Heike Gading Scottish Law Commission 140 Causewayside Edinburgh EH9 1PR Tel: 0131 668 2131 iii Contents Paragraph Page Chapter 1 Introduction Background to the project 1.1 1 The piecemeal nature of Scots defamation law 1.11 3 The Defamation Act 2013 and its implications for reform of Scots law 1.14 3 Our approach 1.17 4 Legislative competence 1.22 6 Impact assessment 1.25 6 Chapter 2 Requisites and key principles of defamation law Background 2.1 8 Origins of the Scots law of defamation 2.2 8 Interests protected by the law of defamation 2.4 9 What amounts to defamation? 2.5 9 Other requisites 2.10 10 The determination of meaning attributable to the statement – as a matter of law and of fact 2.12 11 Innuendo 2.15 12 Single meaning rule 2.16 12 Defences 2.17 13 Defamation v libel and slander – the position in Scots and English law 2.18 13 Chapter 3 Publication and threshold test How far must a statement be communicated in order to be actionable? 3.1 14 Threshold test 3.5 15 Introduction 3.5 15 A new threshold test in Scots law? 3.8 16 Operation of the threshold test in section 1(1) 3.14 18 Discussion 3.24 21 Application of a threshold test to parties other than private individuals 3.25 21 The position under the 2013 Act 3.29 23 Discussion 3.34 25 Chapter 4 The defence of truth The defence as it currently applies in Scots law 4.2 27 The statutory defence under section 2 of the 2013 Act 4.8 29 Some issues arising from section 2 of the 2013 Act 4.10 29 Burden of proof 4.10 29 Codification 4.14 31 Discussion 4.15 31 iv Contents (cont’d) Paragraph Page Chapter 5 The defence of fair comment Introduction 5.1 32 Fair comment in Scots law 5.3 32 How effective is the common law defence of fair comment in practice? 5.6 33 The changes made by section 3 of the 2013 Act to the defence in England and Wales 5.7 33 Discussion 5.10 34 Abolition of the public interest criterion 5.11 35 Honest belief? 5.12 35 Some issues and questions arising from section 3 of the 2013 Act 5.13 36 A statutory defence of fair comment in Scots law? 5.20 37 Chapter 6 Publication on a matter of public interest The current position in Scots law 6.2 39 Advantages and disadvantages of the Reynolds approach 6.5 40 The statutory defence under section 4 of the 2013 Act 6.7 41 Other jurisdictions 6.9 42 Discussion 6.10 42 Reasonableness of belief that publication is in the public interest 6.10 42 Fact v opinion 6.12 43 Section 4 and reportage 6.13 43 Chapter 7 Responsibility and defences for publication by internet intermediaries Introduction 7.1 46 Responsibility and defences for publication by internet intermediaries under Scots law 7.3 47 Responsibility for online material under common law in Scotland 7.3 47 The defence of innocent dissemination in Scots law 7.4 47 The defence under section 1 of the Defamation Act 1996 7.6 48 Protection under the Electronic Commerce (EC Directive) Regulations 2002 7.13 50 Summary for responsibility and defences under Scots law 7.20 52 Responsibility and defences for internet intermediaries in England and Wales 7.21 52 Responsibility of internet intermediaries for publication – the common law 7.22 52 v Contents (cont’d) Paragraph Page The defence for website operators under section 5 of the Defamation Act 2013 7.26 53 Jurisdiction for cases against a secondary publisher 7.27 53 The need for reform 7.29 54 Options for reform 7.34 55 Defence for website operators along the lines of section 5 of the 2013 Act 7.34 55 Responsibility and defences for hyperlinks, search engines and content aggregations 7.40 57 Chapter 8 Absolute and qualified privilege Introduction 8.1 61 Absolute privilege 8.3 61 Judicial proceedings 8.4 61 Proceedings in Parliament and publication of parliamentary papers 8.5 62 Reports of court proceedings 8.10 63 Qualified privilege 8.13 63 Qualified privilege: common law and statutory 8.13 63 Statutory privilege in the Defamation Act 1996 8.16 64 Extract from or abstract of a parliamentary report etc. 8.20 66 Qualified privilege in academic discourse 8.24 67 Chapter 9 Remedies Introduction 9.1 69 The Scots law position 9.2 69 Discussion 9.6 70 Offer to make amends 9.9 71 Summary disposal 9.13 73 Statement in open court 9.19 75 Chapter 10 Limitation of defamation claims and application of long-stop prescription Limitation, prescription and defamation actions: brief background as to the current position in Scotland 10.2 77 Limitation and its particular significance for archiving 10.4 78 The position under the 2013 Act: the single publication rule 10.6 79 Preliminary thoughts on the possible application of the 2013 Act model in Scotland 10.9 80 The single publication rule as a possible mixed blessing 10.9 80 vi Contents (cont’d) Paragraph Page The single publication rule and ECHR considerations 10.10 80 Relevant differences in Scots and English law 10.12 81 The position in other jurisdictions 10.15 83 Other possible options for reform 10.16 83 Defence of non-culpable republication 10.16 83 Reliance on a threshold test 10.18 84 Discussion 10.19 84 Chapter 11 Jurisdiction and jury trials Jurisdiction 11.1 86 Jury trials 11.5 88 Chapter 12 Defamation of the deceased Background 12.1 91 Scotland: brief summary of activity in the area so far 12.2 91 The progression of case law 12.2 91 Petition to the Public Petitions Committee of the Scottish Parliament 12.3 91 “Death of a Good Name” – The Scottish Government consultation 12.4 92 The Defamation Bill (now the Defamation Act 2013) – Legislative Consent Motion 12.7 93 Royal Charter on Self-Regulation of the Press 12.9 93 The position in other jurisdiction 12.12 94 Germany 12.12 94 United States - Georgia 12.14 94 Australia 12.15 95 Discussion of the general principle 12.16 95 The main arguments against allowing defamation actions on behalf of deceased people 12.17 95 The main arguments in favour of allowing defamation actions on behalf of deceased people 12.23 97 Decision to consider the issue as part of the current project 12.26 98 Some more specific points 12.27 98 Who should be able to bring an action? 12.28 99 Lapse of time after death 12.31 99 Circumstances giving rise to death 12.33 100 vii Contents (cont’d) Paragraph Page Chapter 13 Verbal injury and defamation Introduction 13.1 101 Some general points on verbal injury 13.4 101 Absence of presumptions in favour of the pursuer 13.5 101 The requirement to prove malice 13.6 102 Section 3 of the Defamation Act 1952 13.7 102 Defences in actions relating to verbal injury 13.9 102 Outline of the main categories of verbal injury 13.10 102 Slander of property 13.11 103 Slander of title 13.14 104 Falsehood about the pursuer causing business loss 13.17 104 Verbal injury to feelings caused by exposure to public hatred, contempt or ridicule 13.18 105 Slander on a third party 13.24 107 Discussion 13.26 108 A possible way forward 13.35 111 Chapter 14 List of questions 114 Appendix Defamation Act 2013 120 viii Chapter 1 Introduction 1.