Commentary on Sections Absolute and qualified privilege
64.Sections 9 to 12, along with the schedule of the Act, make provision in relation to absolute and qualified privilege. The overall effect is to provide for a consolidation of the existing provisions relating to privilege in Scots defamation law. The relevant existing provisions of the Defamation Act 1996 (“the 1996 Act”) relating to privilege are repealed and re-enacted, as are the relevant provisions of the Defamation Act 2013 (“the 2013 Act”), in so far as they apply to Scotland (see also section 35 in relation to repeals).
65.The effect of privilege is to exclude or at least restrict the bringing of proceedings in relation to defamation. Where a statement is subject to absolute privilege, no proceedings in defamation can be brought in relation to it, even if there is evidence of malice. Examples of statements falling under this category include those made in the course of proceedings in the Parliament and by certain persons involved in court proceedings, including judges, lawyers and witnesses. Where a statement is subject to qualified privilege, no proceedings can be brought unless the pursuer can prove that it was made with malice. This applies, for example, to reports of certain types of meetings, including meetings of local authority committees and general meetings of companies. It applies, also, when a journalist or blogger produces a summary of material which has been published by or on the authority of the Parliament. In effect, qualified privilege is privilege which is only removed by proof of malice.
66.Sections 9 to 11 and the schedule of the Act re-enact sections 14, 15 and schedule 1 of the 1996 Act, along with sections 6 and 7(9) of the 2013 Act, insofar as they apply to Scotland.
67.The provisions of the 1996 Act are subject to certain adjustments in their re-enactment in the Act. As an example, the phrase “public concern” is substituted for “public interest”. This is intended to prevent any confusion arising from the use of two different terms with equivalent meaning in the Act and in the 1996 Act. This reflects equivalent adjustments made to those provisions, insofar as they apply to England and Wales, by section 7 of the 2013 Act. A common theme among the adjustments is in the expansion of the geographical reach of the provisions. Several of the provisions now confer privilege on material produced by particular types of bodies located anywhere in the world, rather than in a more restricted locus as was previously the case. By way of example, section 9 of the Act, in re-enacting section 14 of the 1996 Act, expands its application such that the provision now covers the contemporaneous publication of reports by courts anywhere in the world. Section 14 of the 1996 Act applied only to publication by certain courts, in the United Kingdom or Europe.