Commentary on Provisions Miscellaneous provisions Section 18: Protection from actions of defamation
48.Certain statements made to or by the Commissioner or a member of the Commissioner’s staff are to have absolute privilege (meaning they cannot form the basis of an action of defamation for any person referred to in those statements) (subsection (1)(a) and (b)). The statements which will benefit from absolute privilege are any made to the Commissioner and any which appear in the Commissioner’s report on an investigation.
49.Any other statement made by the Commissioner or any of its staff (in connection with the Commissioner’s functions) have qualified privilege. Under qualified privilege individuals can make statements and can assist in investigations without fear of an action for defamation provided statements are not motivated by malice or intent to injure. What is meant by a statement is “words, pictures, visual images, gestures or any other method of signifying meaning”. This definition is set out in section 36(b) of the Defamation and Malicious Publication (Scotland) Act 2021.