Defamation Flashcards
what is defamation?
Defamation occurs when something is said or written about someone which is untrue and damages their reputation.
what constitutes a defamatory statement
Defamation law in Scotland is governed by the Defamation and Malicious
Publication (Scotland) Act 2021 (the Act). The Act defines “defamation” as
publishing a statement that has caused, or is likely to cause, serious
harm to the reputation of another.
who in scotland is able to claim for defamation?
individuals and businesses can bring a claim for defamation.
public bodies in Scotland cannot
what is the distinction between libel and slander?
In Scotland, unlike in England and Wales, there is no distinction between libel (ie the publication of a defamatory statement in written or permanent form) and slander (ie non- permanent forms of expression of a defamatory statement).
what is malicious publication?
Malicious publication covers material that is not defamatory but could harm business interests.
examples of malicious publication
A statement caused harm to business interests
A statement caused doubt to title to property
A statement criticised assets
what needs to happen for a malicious publication claim to be succsessful?
to be successful, the pursuer (ie the person making the claim for defamation) generally
needs to prove that a statement:
Is known to be false or that it is recklessly indifferent to the truth, and Was made maliciously
For malicious publications, there typically isn’t a need to show a financial loss if the
statement complained of is more likely than not to cause loss.
what are the defenses to a defamation claim?
Truth - the statement is true or substantially true
Public interest - regardless if the statement is a fact or opinion
Honest opinion - the defamation was an honest opinion that is based on
evidence and the court must determine that an honest person could hold the
opinion from the statement based on any part of the evidence. If the defender did
not genuinely hold the opinion from the statement then the defence fails
Qualified privilege - certain situations in which an otherwise defamatory
statement is made, will preclude claims from being brought (eg in peer-reviewed
academic writing)
who can be held responsible for a defamatory statement?
Author
Editor
Publisher of the statement
Employee of such a person responsible for the statement’s content and/or the decision to publish it
A person is not an editor, employee or agent responsible for the publication of the decision of the content if they
were merely providing a means to access a statement without altering the statement.
what is the time limit on bringing a claim ?
A claim for defamation and malicious publication must be brought within one
year of the defamatory statement being made.
the time limit typically runs from when the defamatory statement is first published.
