Prior to the Defamation and Malicious Publication (Scotland) Act 2021, the law of defamation was largely based on the common law. Defamation was defined as the making of a statement by a person (A) of an idea concerning a person (B) that is both false and defamatory and made maliciously, to B’s loss, injury or damage.

New legal test for defamation

Under the 2021 Act, the right to bring defamation proceedings arises only if (i) A has published a statement about B to a person other than B and (ii) the publication of the statement has caused (or is likely to cause) serious harm to the reputation of B. Key points to consider:

• A statement will be defamatory if it tends to lower the person’s reputation in the estimation of ordinary people.
• Publication of a statement can be communicating the statement “by any means to a person in a manner that the person can access and understand it” and is completed when “the recipient has seen or heard it”.
• Where a defamatory statement is published about an entity whose primary purpose is to trade for profit, serious harm means financial loss.
• Public bodies, including any institution of local or central government, a court or tribunal or any person or office not falling within the above “whose functions include functions of a public nature”, may not bring an action for defamation.
• The time limit for bringing a claim has been reduced from three years to one year.

Potential defences

The new law also sets out statutory defences to defamation, replacing the old common law defences. The defences to defamation are:

• That the allegation is true or substantially true.
• The statement was published on a matter of public interest and it was reasonably believed that publishing the statement was of public interest.
• The statement is an expression of honest opinion, based on evidence.
• The statement was published in the context of a fair and accurate report of court proceedings
• Qualified privilege is available in certain limited circumstances, for example, in peer reviewed academic writing.

Potential remedies

The remedies for defamation include damages, publication of a court’s judgment, having a settlement statement read out in open court, and ordering a website operator to remove the defamatory statement or to issue a notice that the statement is subject to court proceedings.

Why the change? It’s … . social media accounts

The change in the law followed a review by the Scottish Law Commission, which recommended modernising the law for the age of the internet and social media. So what does the 2021 Act mean for users of Twitter, Facebook, Instagram and the rest?

There have been several high-profile cases where defamation claims have been brought or threatened against individuals who have retweeted or shared a defamatory statement. Under the new law there are restrictions on proceedings being brought against secondary publishers - ie those who are not the authors, editors or publishers of the defamatory statement - meaning that a person cannot be sued for defamation for simply liking, retweeting or sharing an existing post.

However, if the statement is altered, say by quote-tweeting or otherwise editing the post, that may still attract liability. If a person’s involvement is considered to have materially increased the harm caused by the publication of the statement – for example, where it has been published to a much larger audience or following, that may also attract liability under the new law.

Watch this (social media) space

The 2021 Act updates the law in an area which has been in long-need of reform. It provides clarity both to legal practitioners and the public who, in the social media age, may tweet in haste and find themselves defending a defamation claim.

Case law in England and Wales, where the serious harm threshold and statutory defences were introduced by the Defamation Act 2013, provides some guidance as to how the legislation may be interpreted by the courts. We await the decisions of the courts in Scotland on the application of the new tests with interest.

Mike Kemp is a legal director and Baktosch Gillan is a trainee at Thorntons LLP