Commentary on Sections Actionability and restrictions on bringing proceedings Section 1: Actionability of defamatory statements
6.Section 1 restricts the circumstances in which proceedings can competently be brought in respect of a statement that is alleged by the person bringing the proceedings to be defamatory.
7.The use of the word “proceedings” is intended to cover court actions relating to an alleged defamation raised by summons or initial writ (which will cover the vast majority of cases) and cases where a petition is presented to the Court of Session, for example, where all that is sought is an interdict against publication and not damages.
8.Subsection (1) confirms that section 1 applies where one person makes a defamatory statement about another person. Applying the definition of “person” in the Interpretation and Legislative Reform (Scotland) Act 2010 to the Act, that subject may be a natural person or an entity, including a corporate body, an unincorporated association, or a partnership.
9.Subsection (2) identifies the circumstances in which proceedings in relation to defamation can competently be brought.
10.First, the statement complained about must have been published to a person other than the one who is the subject of the statement. This marks a change in the position under current Scots law; as things stand, proceedings for defamation can be brought even if the statement complained of is conveyed only to the person about whom it is made.
11.Second, the publication of the statement must have caused, or be likely to cause, serious harm to the reputation of the subject of the statement; only then will the court allow the proceedings to go ahead. The provision extends to situations where publication is likely to cause serious harm, in order to cover situations where the harm has not yet occurred at the time the action for defamation is commenced. The UK Supreme Court has recently ruled on the meaning of the equivalent provision in English law (section 1 of the Defamation Act 2013), holding in Lachaux v Independent Print Ltd and another [2019 UKSC 27] that there is a need to show evidence of actual harm caused to reputation, or evidence that there is a likelihood of future harm. It is anticipated that the Scottish courts will treat Lachaux as persuasive authority and follow a similar approach.
12.Subsection (3) further limits the circumstances in which proceedings for defamation may competently be brought where the party seeking to do so is a non-natural person whose primary purpose is to trade for profit. In this scenario, for the purpose of subsection (2)(b), the harm to the entity is not “serious harm” unless it has caused, or is likely to cause, serious financial loss. This reflects the fact that bodies trading for profit are already prevented from claiming damages for certain types of harm such as injury to feelings, and are in practice likely to have to show actual or likely financial loss. The requirement that this be serious is consistent with the new serious harm test in subsection (2)(b).
13.Subsection (4) sets out what is meant by a defamatory statement and its effect, and what is meant by “publishing” and related terms for the purposes of the Act. Reading this in conjunction with section 36, these definitions apply throughout the whole of the Act, unless the context in which the words are used dictates otherwise.
14.Subsection (4)(a) clarifies that a defamatory statement is one that causes harm to a person’s reputation and that its effect is to tend to lower the person’s reputation in the estimation of ordinary persons. This follows closely the common law test adopted in Sim v Stretch(1) as regards the nature of a defamatory statement, thus leaving the additional elements (e.g. the onus of proof and presumptions as to falsity/malice) to be dealt with by the common law. This is a similar approach to that adopted at section 2 of the Irish Defamation Act 2009. A court, when interpreting the new statutory definition at subsection (4)(a), may refer to case law on the common law definition found in Sim v Stretch, and indeed any other relevant case, where it considers it appropriate to do so.
15.Subsection (5) is a transitional provision which makes clear that the changes brought about by section 1 do not affect a right to bring proceedings which accrued before the section comes into force.