Reputation

Question 1

What is defamation?

Answer 1

The communication of false info that is detrimental to an individual’s honour, character or reputation.

Question 2

What act covers defamation?

Answer 2

Defamation and Malicious Publications (Scotland) Act 2021

Question 3

What is the criteria for defamation?

Answer 3

Section 1:
i) what meaning would a reasonable audience ascribe to the statement?

ii) is the meaning defamatory of the pursuer? (consensus test)

iii) has the statement caused serious harm to the pursuer’s reputation? (serious harm test)

iv) is the statement identifiably about the pursuer?

iv) has the statement been communicated to a third party?

iv) does the defender have a valid defence?

Question 4

What are the two tests of a defamatory statement?

Answer 4

• the ‘consensus’ test (objectively, would the statement lower the subject’s standing in the opinion of a reasonable audience?)
• the ‘serious harm’ test (subjectively, has the statement caused, or is likely to cause, serious harm to the subject’s reparation?)

Question 5

When is a statement identifiably about the pursuer?

Answer 5

If a reasonable person, acquainted with P, would believe that they were the person referred to

Question 6

When is a statement communicated to a third party?

Answer 6

A statement is published when the recipient has seen or heard it.

If A makes a defamatory statement about B, it must be communicated to C. Obviously could also be communicated to persons D E F..

Question 7

Dyson v Channel 4 Ltd 2023

Answer 7

Statement made was not explicitly in reference to the pursuer, but the court said given the context, it was obvious it was aimed at them.

Question 8

Sim v Stretch

Answer 8

Consensus Test

Question 9

All tests are objective

Answer 9

True

Question 10

Who can sue for defamation?

Answer 10

• An individual can sue for patrimonial loss and solatium
• A group of persons technically can, but the smaller the better
• Commercial entities can
• Local and public authorities cannot but individual councillors can

Question 11

What are the defences to defamation?

Answer 11

1. Truth
2. Privilege
3. Public Interest
4. Honest Opinion
5. Fair Retort
6. Offer of Amends
7. The party’s situation

Question 12

What is the defence of truth (or veritas)?

Answer 12

Section 5:
“It is a defence to show that the imputation conveyed by the statement complained of is true or is substantially true.”

Naturally involves an evidential issue of proving that it was true.

Question 13

What is the defence of privilege?

Answer 13

Absolute privilege - when the statement is made in a forum beyond legal challenge. (Scotland Act 1998 s41 - “any statement made in Parliament shall be absolutely priveliged”)

Qualified Privilege - Circumstances make the statement beyond challenge, unless shown to be malicious. (For example, whistleblowers)

Question 14

What is the defence of public interest?

Answer 14

Section 6:
“it is a defence to show that … the defender reasonably believed that publishing the statement complained of was in the public interest”

Question 15

What is the defence of honest opinion?

Answer 15

Section 7:
An opinion is protected if it is grounded in reasonably believed facts, objectively capable of being honestly held, and actually was honestly held by the speaker, failing if the speaker is shown to have been subjectively dishonest.

Question 16

What is the defence of fair retort?

Answer 16

Where D makes comments about P, and P respond’s with comments about D’s character, those comments in retort are protected.

However, if the pursuer gets carried away and makes a distinct defamatory statement, the defence is no longer viable.

Question 17

What is the defence of an offer of amends?

Answer 17

s. 13 says if D defames P, they may make amends (e.g making a suitable correction, sufficient apology, paying compensation etc.)

s.14 says if P accepts D’s proposal, they cannot bring or continue defamation proceedings against them.

Question 18

What about considering the parties?

Answer 18

The dead cannot be defamed, so could be a defence.