These figures, from Statista in June this year, show just how big a part of many of our lives social media is for reading, watching and sharing information.
Fitting then that new legislation — the Defamation and Malicious Publication (Scotland) Act 2021 which largely came into effect last month — updates the law in relation to defamation, including statements made on social media.
The change also clarifies the law on defamation in Scotland: helping people or organisations making or defending a claim, as well as the solicitors advising them and the court.
This explainer looks at the new legislation, what it means, and explains defamation in more depth.
What is defamation?
From Johnny Depp and Amber Heard to Coleen Rooney and Rebekah Vardy’s ‘Wagatha Christie’ showdown, defamation cases have been a hot topic of conversation on and offline over the past few months.
Fitting then that here in Scotland, the law surrounding defamation changed last month with the introduction of the Defamation and Malicious Publication (Scotland) Act 2021, which received royal assent this April.
This new legislation replaces common law and is designed to provide a simple and clear explanation of what constitutes defamation, any defences, and the remedies if someone has made a defamatory statement.
What is a defamatory statement?
For a statement to be defamatory, it must be published.
Under the terms of the new act, subject to a successful defence which I'll explain later, if someone has published a statement about another that has caused, or is likely to cause, serious harm to a person’s reputation (that is, if it tends to lower their reputation in the estimation of ordinary persons) then it’s defamatory.
It’s seen as published if it’s communicated to someone else in a way that they can access and understand, and that person has seen or heard it.
This means it doesn’t need to be available to the general public to be defamatory, but the pursuer (the person or company raising the action) must prove it caused serious harm.
Who can raise an action?
An individual or a company can raise an action.
Private companies, or other legal entities, must prove they have suffered (or are likely to suffer) serious harm in the form of substantial financial loss.
Public bodies can’t raise an action.
This doesn’t stop people involved with these organisations from bringing an action in a personal capacity, but they can’t do so as an office-holder or employee.
Who should the defamation action be brought against?
The action must be brought against either the author, editor or publisher of the defamatory statement, or an employee or agent responsible for the statement’s contents or the decision to publish.
The act goes on to clarify the scenarios where a person will not be considered an author, editor, or publisher.
For example, if the involvement is only printing, producing, or selling the printed material containing the statement, the person will not be liable.
In another example, if a news broadcaster is broadcasting a live news report and a member of the public walks into shot and makes a defamatory statement, the broadcaster here has no effective control over who made this statement, and won’t have any liability.
Can someone be liable for sharing or reacting to a social media post?
The new act involves statements in digital format.
A person is not considered to be editor of the statement where they —
Publish the same statement or provide a means to access it (for example, a hyperlink)
Mark their interest, approval, or disapproval in the statement (typically by means of a ‘like’ or other reaction) in a way that doesn’t alter the statement
In addition, their involvement should not materially increase the harm publishing the statement causes.
This development applies particularly to social media platforms where users can, for example, like and share other posts and suggests merely doing so to a defamatory post will not attract liability.
However, social media influencers should tread carefully.
Their large number of followers means their actions could potentially attract liability if their involvement materially increases the harm publication causes.
What are the defences to a defamation action?
To successfully defend a defamation action, the defender must show —
The statement made is wholly or substantially true
The defamation was in the public interest, regardless of whether the statement was fact or opinion
The defamation was an honest opinion based on evidence
In some specific scenarios, qualified privilege can also be used as a defence. This allows someone in a position of authority or trust to make statements which may be considered defamatory if someone else made them.
An example would be a statement relating to a scientific or academic matter where an independent review of the merit of what’s being said was carried out pre-publication.
What is an offer to make amends?
The defender can make this offer before the defence is lodged.
It should set out what remedy the defender offers to resolve the complaint.
This can include —
Offering damages
Issuing an apology
Correcting the statement
If this offer isn’t accepted within a reasonable period, it is deemed rejected and the defender can, in some circumstances, use this as a defence during the case to mitigate their liability.
What are malicious publications?
The new act also introduces the right to claim for malicious publication, replacing the common law right to claim for verbal injury.
A person may bring an action for malicious publication in a range of scenarios, namely —
Where a published statement caused harm to business interests
Where a published statement caused doubt as to title to property
Where a published statement criticised or belittled the quality, condition, use or treatment of assets
To be successful in an action for malicious publication the pursuer needs to prove the statement —
Was presented as fact as opposed to opinion
Was known by the defender to be false or that the defender was “recklessly indifferent as to the truth”
Was motivated by malicious intention
In an action, the pursuer needs to show the statement has caused or is likely to cause financial loss.
The court can also consider any distress and anxiety the pursuer has experienced as a result.
What remedies are available for a person making a claim?
If an action is successful, the court can make a variety of orders including —
Ordering the defender to pay damages to the pursuer a sum of damages (which can include payment to reflect anxiety and distress as well as financial loss)
Ordering the defender to publish a summary of the court’s judgment in a form agreed between the parties, or decided by the court
Allowing a pre-approved statement to be read out in open court where parties have reached agreement in settlement of court proceedings
Ordering a website operator to issue a notice that the statement is subject to court proceedings, or to remove the defamatory statement completely
Ordering any person to stop distributing, selling, or exhibiting material containing the statement
What is the time limit for raising a court action for defamation?
A person or business can raise a court action for defamation within one year from the date the first time the statement is made, regardless of whether it’s subsequently re-published.
However, the court does have discretion to allow the clock to reset if any later publication is materially different.
Before this legislation, the time limit for bringing a court action was three years from the date of first publication.
This change effectively limits the number of defamation cases likely to make it to court and encourages the person making the claim to act quickly.
What are libel and slander?
These are common terms seen regularly in the media, but they don’t legally apply here in Scotland.
In England, for example, the term libel relates to more permanent forms of communication such as print or online posts. Slander relates more to transient forms such as the spoken word or gestures.
Also in England, defamation is something of an umbrella term covering both libel and slander whereas, north of the border, the term defamation is used to cover any statement made to another person, no matter how it’s communicated.
Conclusion
Time will tell what effect this newly minted defamation legislation will have.
That said, by reducing the time limit for making a claim in court to one year, we would expect to see fewer claims.
The law now also sets out the option for the defender to make an offer to make amends which should help encourage parties to settle disputes without the case needing to go as far as court. Reaching a resolution in this way, in turn, should free up valuable court time as well as save parties money.
Arguably, the introduction of the law relating to electronic statements could increase the liability for social medical influencers if something they’ve shared is found to have materially increased the harm publication causes due to their large number of followers.
As such, it seems that with great social media power comes great responsibility.