Death of a Good Name - Defamation and the Deceased: A Consultation Paper

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Chapter 2 The Current Civil Law on Defamation

1. Defamation is essentially the legal term in Scotland for what is known elsewhere as libel and slander. Scots civil law on defamation has developed through the common law over hundreds of years, periodically being supplemented by statute, for example by the Defamation Acts of 1952 and 1996. Full accounts of the law, in terms of underlying principles, evolution and current substance, can be found in a range of learned academic texts. The purpose of this chapter is to provide a basic background outline of its scope.

2. Broadly, the delict ( i.e. wrongdoing) of defamation occurs when a person makes a communication which contains a damaging and untrue imputation against the reputation of another person. Taking account of its salient features, this delict is described by Professor Norrie as " peculiar":

  • " it is an intentional delict in which the intent to injure is usually irrebuttably presumed";
  • " it is a delict only if the statement or communication upon which it is based is false, but with which falsity is rebuttably presumed…";
  • "the pursuer does…always have the onus of proving that the statement or communication complained about is "defamatory" and that it has been "communicated"…"13

3. A defamatory statement or communication is one that is harmful to the character, honour or reputation of the affected person, because it is " derogatory or disparaging or demeaning or calumnious in the eyes of the reasonable person". In the influential English case of Sim v. Stretch (1936), Lord Atkin summarised that material may be classed as defamatory if it would " tend to lower the plaintiff in the estimation of right-thinking members of society generally".

4. Material can be defamatory regardless of the form in which it is communicated, i.e. whether in words or any other form, and whether in a permanent or transient form - in publications (whether sold, or distributed freely), on the internet, in TV or radio broadcasts, in recordings, as part of a theatrical performance, or written / spoken in other arenas. Moreover, in contrast to other jurisdictions, in Scotland a communication need not be to a third party in order to be actionable: communication solely to the victim of a defamatory statement may result in that person suffering relevant insult or affront.

5. Whether material is defamatory ( i.e. harmful to reputation) is a matter for the courts to determine, based on established principles of law. The burden of proof in this regard rests, as mentioned above, with the pursuer. However, the pursuer is not required to show that the material is false; there is a rebuttable presumption that defamatory material is also false material, and it is for the defender to prove otherwise.

6. A defender will be liable if the material meets the criteria above, and the defender is:

a) the primary publisher of the material and does not succeed in establishing any of the defences in the Defamation Act 1952:

  • justification i.e. that the material is true;
  • fair comment, which protects statements of opinions or comment on matters of public interest;
  • absolute privilege, which guarantees immunity from liability in certain situations e.g. in parliamentary and court proceedings;
  • qualified privilege, which grants limited protection on public policy grounds to statements in the media provided that certain requirements are met; or

b) a secondary publisher and cannot avail themselves of the defence contained in section 1 of the Defamation Act 1996 ("the 1996 Act"). This provides that an individual defender will not be liable where:

  • he or she is not the author, editor or publisher of the statement complained of;
  • he or she took reasonable care in relation to its publication; and
  • he or she did not know, and had no reason to believe, that what he or she did caused or contributed to the publication of a defamatory statement.

7. In addition, section 2 of the 1996 Act provides a procedure by which a defender can make an offer of amends to enable valid claims to be settled without the need for court proceedings. Section 2(4) provides that an offer to make amends is an offer to:

a) make a suitable correction of the statement complained of and a sufficient apology to the aggrieved party;

b) publish the correction and apology in a manner that is reasonable and practicable in the circumstances; and

c) pay to the aggrieved party such compensation (if any), and such costs, as may be agreed or determined to be payable.

8. An offer of amends is not regarded as an admission of liability, and the offer may be withdrawn before it is accepted. However if an offer is accepted, under section 3 of the 1996 Act, the party accepting the offer may not bring or continue with defamation proceedings in respect of the publication concerned against the person making the offer. If a case does go to court and the pursuer succeeds, the court may award a range of remedies including damages and interdicts.

9. Against this general background, this paper focuses on one issue, discussing possible legislative and non-legislative approaches to the provision of a remedy for the families of the deceased, where defamatory comments are made posthumously about the deceased.