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As practitioners will be well aware, the Defamation Act 2013 came into force on 1 January 2014. The bulk of the provisions extended only to England and Wales Changes to Scots law were limited to the protection (by way of privilege) of peer reviewed statements in scientific or academic journals (section 6).
This Act therefore represents a dividing point in the development of the law of libel and defamation in England and Scotland, respectively, as until this point, their mutual points of reference were the common law and the Defamation Act 1996.
It is now expected that, unless the Scottish Parliament enacts similar legislation, cases determined south of the Border may create a difference in interpretation of the law. That is not unusual, given the separate and distinct legal systems, but defamation has always been seen as broadly concurrent. The 2013 potentially changed that.
Lord Pentland announced a discussion paper in relation to defamation law in Scotland on 17 March 2016. Among the issues raised was the balance of public interest against protection of reputation, the responsibility of online publishers (which is of increasing relevance in the age of social media) and the possible adoption of a single publication rule. With that in mind, this piece will focus on a potential break from the old, and a move towards the new.
Moving on from Reynolds
Not all changes made by the 2013 Act are obviously drastic. One of the main changes which was brought in by the 2013 Act was the codificcation of the Reynolds defence, as established in Reynolds v Times Newspapers and thereafter refined in the subsequent cases of Loutchansky and Jameel.
In its place, section 4 enacted a defence of ‘publication on a matter of public interest”. The defender who seeks to rely on such a defence must show that the statements complained of were published in the public interest, but also that he reasonably believed that they were in the public interest. This, in effect, may be said to remove the potential for malice, which historically defeated the Reynolds defence. Subsection 2 then provides that “Subject to subsections (3) and (4), in determining whether the defendant has shown the matters mentioned in subsection (1), the court must have regard to all the circumstances of the case.”
Little or no guidance is given on what the said circumstances may be, however, as subsection 3 is essentially a restatement of the “reportage” defence from Roberts v Gable
and subsection 4 requires the courts to allow for a margin of editorial judgement in the public interest test. What would appear to be important from subsection 3, or at least, sufficiently important that express allowance must be made to disregard its omission, are the efforts of the defender to verify the truth of the nature of the statement. It stands to reason, therefore, that partisan reporting outwith reportage should take verification steps.
This is not far removed from the common law position in Reynolds and one might also expect therefore that Lord Nicholls’ ten factors – although no longer constituting the defence in itself – might still have application as the ‘circumstances’ of the case. From a practitioner’s perspective advising on pre-publication news articles, Reynolds remains a very good ‘check list’ as a starting point to test public interest and responsible journalism.
Indeed, within the explanatory notes for the 2013 Act, section 29 states “This section creates a new defence to an action for defamation of publication on a matter of public interest. It is based on the existing common law defence established in Reynolds v Times Newspapers and is intended to reflect the principles established in that case and in subsequent case law”
But what is section 4 really? Mr Low Kee Yang’s assessment in “Reynolds privilege transformed” that section 4 albeit while imitating the Reynolds defence, yet not quite replicating the principles it claims to – has some force. Though it may have reflected Reynolds at the bill stage, where it listed 8 non-exhaustive matters in what was section2(2)), those matters were removed in the revisals and the Notes do not seemed to have changed in line with the substance of the Act.
Reynolds was never a bare public interest test. It was a test of responsible journalism, and that is clear from the refinement of the test in Jameel. It is not denied that public interest was an important part – Reynolds rises from the basis that there must be public interest in what is being published - but what mattered most was the conduct of the journalist in verifying the subject matter of the publication.
Whilst some of the journalist’s conduct may be encapsulated into the considerations made under subsection 2, there is now a much greater focus on the public interest aspects, which now require the publisher to be making a statement of public interest and believe it to be so.
Although the intention, as set out in the explanatory note, is to reflect the existing law set out in Flood v Times Newspapers Ltd
Flood does not appear to give public interest the same level of significance.
At paragraph 68, Lord Phillips said “At the end of the day, however, each case will turn on its own facts and the overriding test is that of responsible journalism”. It is at paragraph 79 of Flood that it is said “Thus verification involves both a subjective and an objective element. The responsible journalist must satisfy himself that the allegation that he publishes is true. And his belief in its truth must be the result of a reasonable investigation and must be a reasonable belief to hold”.
What is clear from that is that the subjective and objective elements are traceable to the verification requirement which is an important feature of the responsible journalism test. Those elements are subsumed within the responsible journalism test.
Public interest in the publication exists in part because of the nature of the content, but primarily because there has been due diligence in ascertaining the veracity of the statement. The effect of the separation under subsections 1 and 2 is that responsible conduct(formerly responsible journalism) is considered separately from public interest, and it is quite hollow to suggest that the reasonable belief requirement is an embodiment of responsible conduct when the Act initially intended other factors (section 2(2) of the Bill) to be so embodying.
In the commercial context, one might question whether it even makes sense to require a publisher to believe that the statement he or she may be being paid to make is in the public interest? The point has been well-made over the years that what is interesting to the public is different from what is in the public interest. In the context of the celebrity world, there are matters which are of interest to a section of society, which do not form part of a larger public interest, and therefore have debateable ‘public interest’ merits.
Remarks may be made of celebrated individuals which fall within that category which could constitute defamation. What would be the position regarding commissioned works if an author who reports a story does not necessarily believe that the work falls within the greater public interest? Whilst there is room left for editorial judgement under section 4(4), we can clearly see that such a question is quite removed from the traditional Reynolds test and serves to highlight that section 4 is, perhaps, a different “jurisprudential creature ” to the Reynolds defence.
The advantage of the new statutory formulation is that it would appear to open up the scope of the defence to non-journalistic writers, but equally, one might question whether there is such a demand for it. The nature of publications which seek to apply the Reynolds defence are journalistic in nature because they are of an exposé nature.
Those seeking to rely upon the defence are most often well aware of the requirements to properly investigate the story, and whilst amateurs are not prevented from their own investigations and subsequent reporting, it is more often utilised by commentators of a more “high-brow” nature. It is a legitimate question to ask how many non-journalists sought to expose truths but were excluded from the defence in a manner which warranted opening it up in such a way.
Time will tell if the enactment of section 4 will liberate the media in its new and varied forms, or whether comment (both factual and judgemental) will be stifled for fear of the ambiguity of the test. It therefore remains far too soon to suggest whether Scots law should adopt this approach.
Coping with the internet: a single publication rule?
Lord Pentland’s review into Scots defamation law is also seeking on responses as to whether Scotland should follow suit and adopt a Single Publication rule which would have the effect of limiting the actionability, regarding a defamatory statement, to the first publication. This is not too far removed from prescription and limitation issues which already differ in England and Scotland in terms of defamation. Whereas Scotland treats defamation as a analogous to a form of personal injury and applies a triennium to issues of timebar, England has been – and remains as of the 2013 Act – far more restrictive, implementing a one year prescription period.
The desired effect of the 2013 was to tackle and reduce libel tourism and such a restriction on time, and subsequent limit to the first publication, is very likely to succeed in that aim. What may be a natural consequence of that, however, is that actions which were considered “UK-wide” will remain actionable in Scotland where they have expired in England. The libel tourism which was so complained of may therefore switch destination, to Scotland.
From a fairness point of view, rather than a purely administrative one, many believe that a Single Publication rule should be rejected. The effect of the English rule is to restrict the a victim of a publication from taking action. Aside from the issue of section 8(3) beginning the prescriptive clock on the date of first publication, there is also a practical concern with initiating action.
Once an article is published, if there is little prominence or there are competing stories, the damage by an individual publication could be minute to the extent that it is not worth pursuing. This may be considered even more so if the said publication is one of a minority amongst dissenting views. However, as time passes, public perception - fickle as it is – may change, and greater credence may be placed upon the publication’s content which, although defamatory, was once not worth action.
Once the one year passes, the publisher would be free to re-publish the statements with impunity, safe in the knowledge that any action would be time-barred, and unrestricted in terms of the damage which may be done in the new climate the article will be read within. This is not the case in Scotland as the work is said to be re-published, and giving rise to a separate action. Temporal shifts in attitude can therefore be accounted for, and the pursuer may defend those battles which pose actual risk of harming him, rather than be forced to defend them all prospectively.
The understandable ‘difficulty’ posed by modern technology is that each ‘hit’ online represents a separate download, and thus a new publication. In the age of twitter, retweets in particular pose a concern, but should they really? Each ‘hit’ represents a single viewer, not dissimilar to the purchaser of a newspaper and, in terms of the value of a claim, a very small reputational loss. Whilst technically speaking there could be thousands of actions arising from a single online statement which is re-downloaded or re-tweeted, it would be in practical terms more realistic to use the separate hits not as the basis for separate actions, but as a loose modifier of the applicable damages, rising with the number of ‘hits’.
Defamation in both jurisdictions north and south of Gretna has effectively run in parallel over many hundreds of years, despite differences in the legal systems and in interpretation and emphasis in certain cases. The 2013 Act created a clear divide and it will be interesting to see whether the Pentland review will close or widen that gap.
The internet has changed not only the newspaper industry but our approach to defamation, to ‘forum shopping’ and to contemporaneous publication. We have not yet seen a flood of cases coming north to eploit the three year time limit or the differences in legal interpretation and whether that ever happens remains to be seen. What we can say with some certainty is that in a relatively short period of time (20 years) Media law has seen some remarkable changes.
With ongoing constitutional debates, the development of online publications and ever changing and shifting articles via blogs, user generated content and online editing, we can anticipate further dramatic developments over the next 20 years.
UK - SCOTLAND
Levy & McRae Solicitors
This article is prompted by two related developments in the last few years: the introduction of the Defamation Act 2013 and
the subsequent review of Scots defamation law
by the Scottish Law Commission, chaired by
David McKie is a solicitor and Notary Public and is senior partner in Levy and McRae in Glasgow. He has advised many national broadsheet and tabloid newspapers, TV stations and radio broadcasters both pre and post publication for 20 years. He has legalled a number of books, magazines and a wide variety of statements and has pursued and defended a number of defamation cases in that time. He has been involved in many of the challenges and changes in Contempt of Court in Scotland which have opened up the reporting of cases which were otherwise subject to ‘gagging orders’ in Scotland and was legal adviser in both the Cox Petitioner and Scottish Media Newspapers cases which liberalised the law of contempt in Scotland. He is a co-author of ‘Scots Law for Journalists (McInnes) and contributed to Smartt’s Media and Entertainment Law thrid edition. He was a lecturer in Media Law at the University of Glasgow from 2006-16.