Defamation in Scotland - sticks and stones will break my bones, but words will never hurt me

This article's sub-title may be true when confronting a play-ground bully but the idiom provides little assistance for the company, partnership or individual, which finds itself in the position where it believes a defamatory statement has been made about it and disseminated into the public domain. Reputation management is a key consideration for businesses in today's world; and businesses are rightly protective of their reputations. The civil wrong of defamation has developed over hundreds of years through Scot's common law, periodically being supplemented by statute such as the Defamation Acts of 1952, 1996 and 2013. What then constitutes defamation in Scotland?

In Scots Law, an offending statement may not necessarily be defamatory as it may fall into another category of hurtful words, such as being a malicious falsehood or a slander of title. To be defamatory a statement must be false and must lower the defamed in the estimation of right thinking members of society. A court will ask itself what that standard is today as it is within this context that the court will look at the allegedly offending statement. Further, it is important to remember that to accuse someone of making defamatory comments may, of itself, be defamatory.

The defamatory statement must be communicated. The traditional forms of communication are publication in print or oral dissemination. However, with society showing no signs of slowing down in its embracement of technological advances in communication - blogs, Twitter, LinkedIn, Facebook, Trip Advisor and the like - the modes of communication have increased. Further, social media-savvy clients are operating in these spaces and reputation management is a key part of their business.

Scots Law will compensate the wronged party when injury has been suffered to its feelings and its reputation and/or honour has been damaged. The greater the circulation by the original defamer the greater the sum of damages is likely to be. It may not only be the originator of the statement who is possibly liable, but also those who repeat the statement. We are all aware of the speed with which an e-mail can be disseminated. If the circulating email contains an alleged defamatory statement then each time it is forwarded its audience increases as does the number of potential defamers.

The most familiar defence to an allegation of defamation is that the statement is true, known in Scots law as veritas. The defence of fair comment provides for freedom of speech and so protects the inherent public interest in expressing opinions on public figures, political and legal decision makers and the like. An alleged defamer may offer to make an apology in a reasonable manner as well as offer to pay compensation and this will provide a defence to an action of defamation as long as the defamer did not know, or have reason to believe, that the statement complained of was false and defamatory. If the offer is accepted, the wronged party accepting the offer may not bring, or continue with, defamation proceedings in respect of the defamatory statement.

Defamation actions are often complicated and can be expensive if the relevant issues are not identified at an early stage. While sticks and stones may break your bones, to not say sorry may, at times, be very costly.

For more information please contact Euan McSherry, Associate Partner at DWF, Edinburgh.

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

Euan McSherry

Partner - Head of Real Estate Litigation (Scotland)

I provide litigation advice to clients in the retail, food and banking sectors. I am the first Scottish lawyer to be listed on the Register of RICS Accredited Mediators.