Polish lawyer Anna Palus has instructed solicitors to bring defamation proceedings against Nick Kyrgios, after his complaints led to her temporary ejection from Centre Court during this year’s Wimbledon final. The maverick Australian, who lost the final to Novak Djokovic in July, protested to the umpire during the match that he had been distracted by Palus, claiming her to be “drunk out of her mind” and looking like “she has had about 700 drinks”. Ms Palus accuses Kyrgios of a “reckless and entirely baseless allegation” and will now look to obtain vindication in the High Court. The proceedings come as a timeous reminder of the recent introduction of new defamation legislation in Scotland.
Substantive provisions of the Defamation and Malicious Publication (Scotland) Act 2021 came into force on 8 August 2022.
As trailed in our previous insight on the Bill, the Act seeks to simplify and modernise the law of defamation in Scotland – which has previously existed as a patchwork of several statutes and case law – and to provide transparent, guiding legal principles in an evolving sphere of rife public contention.
What is defamation?
The Act defines defamation as the publishing of a statement which has caused, or is likely to cause, serious harm to the reputation of another; that is, if it tends to lower the person’s reputation in the estimation of ordinary persons. The defamatory statement must be published to someone other than the individual being defamed.
In Scotland, unlike in England and Wales, there is no distinction between libel (the publication of a defamatory statement in written or permanent form) and slander (non-permanent forms of expression of a defamatory statement) – a statement is said to be “published” when the recipient has seen or heard it.
Crucially for businesses, harm would only be considered “serious” if it caused, or is likely to cause, serious financial loss.
The Act also reduces the limitation period in which an action for defamation can be raised from three years to one year. This brings the Scots law of defamation in line with the English approach. The limitation period is deemed to run from the date of first publication of the defamatory statement.
The emergent ubiquity of social media has in recent years yielded the difficult question of when defamation proceedings may be brought against individuals who retweet, share or hyperlink a defamatory statement (i.e., secondary publishers). The new Act seeks to provide a clear-cut answer: defamation proceedings may only be brought against the author, editor or publisher of the defamatory statement, or against the employee of such a person who is responsible for the statement’s content and/or the decision to publish it.
The new provision clarifies that someone may not be sued for defamation for simply retweeting or sharing a post, or generally providing a means of access to the statement; only alteration of the statement or post will attract liability.
The above is however subject to the caveat that, where the statement is in electronic form, the person’s involvement must not materially increase the harm caused by the publication of the statement, or else they may be classed as an “editor” under the Act. This creates potential for disparity in how the Act treats individuals with a large audience (and thus a greater scope for causing material harm) and ordinary members of the public with limited viral reach – it remains to be seen how this will be interpreted by the courts.
Who can be defamed?
The Act provides that public authorities, as well as anybody “whose functions include functions of a public nature”, are excluded from bringing actions for defamation.
Individuals, charities and companies who trade for profit can continue to bring actions for defamation as before.
The Act also codifies the defences to a defamation claim in Scotland. The defences are:
- Truth – it is a defence if the defender can show that the statement is true, or substantially true.
- Public interest – it is a defence if the statement complained of was published on a matter of public interest, and that the defender reasonably believed that publishing the statement was of public interest.
- Honest opinion – it is a defence if the defamatory statement conveyed an honest opinion, and that opinion was based on evidence. In order for this defence to succeed, the court must determine that an honest person could have held the opinion conveyed by the statement on the basis of any part of the evidence referenced. The defender must genuinely have held the opinion conveyed by the statement.
- Qualified privilege – certain situations in which an otherwise defamatory statement is made will preclude claims from being brought, if there is a legal, moral or social duty to speak and it is free from malice.
Overhauling the old common law of verbal injuries, the Act makes provision allowing actions to be brought for malicious publications. “Malicious publication” covers material that is not defamatory but could harm business interests. A malicious publication claim can be brought on the grounds that:
- A statement caused harm to business interests.
- A statement caused doubt to title to property.
- A statement criticised assets.
The pursuer in an action for malicious publication must prove that the statement is known to be false, or that the defender was “recklessly indifferent to the truth”. The statement must also have been made maliciously. There is no need to show financial loss if the statement complained of is more likely than not to cause such loss.
The Act outlines new remedies for defamation, in addition to damages. A successful defender may publish the court’s judgment, allow a settlement statement to be read out in open court, and order the operator of a website to remove the defamatory statement in its entirety.
Anxiety and distress can also be taken into account by the court in determining the appropriate amount of damages.
The legislative framework contained in the Defamation and Malicious Publication (Scotland) Act 2021 should provide some much-needed clarity and accessibility in an evolving area of the law. While it remains to be seen how certain provisions will be subsequently interpreted, the new focus on the relationship between defamation and social media offers clearer principles on responsibility and accountability for online users.
The transparency that comes with codification may have some impact on the volume of defamation cases coming before the courts, and while practitioners should be alert to the reduction of the limitation period to one year, it represents a welcome harmonisation in the law between Scotland and England in an age of proliferate cross-border publication.
This article was co-written by Jonathan Walker, Trainee Solicitor.