19th May 2022

Johnny Depp v Amber Heard: A Scottish Perspective

The Johnny Depp and Amber Heard defamation trial has been all over the news for weeks now with people around the world tuning in for a daily update on what evidence has been heard. However, whilst the US is dominating social media searches for ‘defamation law’, there has been some important developments in Scotland in this field.

In early May, the Defamation and Malicious Publication (Scotland) Act 2021 (Commencement and Transitional Provision) Regulations 2022 were laid before the Scottish Parliament. The Regulations come into force on 8 August 2022, and have the impact of bringing the Defamation and Malicious Publication (Scotland) Act 2021 (“the Act”) into force, in so far as it is not already in force, as of 8 August 2022. The Act overhauls defamation law in Scotland and provides a much needed reform of the law in this field which is relevant to modern society.

What is defamation?

An action for defamation can only be raised if person A publishes a statement about person B, to someone other than B, and the statement has caused or is likely to cause serious harm to the reputation of B. A statement can be defamatory if it tends to lower the person’s reputation in the opinion of an ordinary person.

Where person B is not a human, i.e. is an entity such as a company or a partnership which has trading for profit as their main purpose, serious harm can only be established if it causes or is likely to cause serious financial loss to that entity.

In order for the Act to apply, the statement needs to be published. With regards to communication, it is communicated in a way that the ordinary person can understand. The statement is deemed to be published for the purposes of the Act when the recipient has seen or heard it, not at the time of publishing.

What happens to secondary publishers?

In the modern society, it takes one button to share, re-tweet or re-publish a statement and, in some instances, this can even be done by accident. In most circumstances, the Act makes it clear that proceedings can only be brought against the ‘author, editor or publisher of the statement, ‘an employee or agent of such a person’ or the person ‘responsible for the statement’s content or the decision to publish it’. This means that, for example, retweeting a statement that is defamatory, does not attract liability unless you alter the statement or provide further commentary on it. The Act states that marking approval of disapproval by a symbol does not attract liability, but we do not yet have judicial comment as to what extent of approval or disapproval is likely to be allowed.

What defences are available to a claim of defamation?

There are three main defences available to a claim of defamation. Firstly, it is a defence to a claim to show that the statement is true or substantially true. Substantially true has not yet been defined further, however we would anticipate that it would take the normal dictionary meeting. If the statement is made up of a number of claims, and not all the statements are true, the defence does not automatically fail if the remaining allegations have not caused serious harm to the reputation of the person claiming they have been defamed.

The second defence is that the statement complained of, formed or was a statement of a matter of public interest and that the person publishing the statement reasonably believed that it was in the public interest to publish.

Finally, it is a defence to show that the statement was an honest opinion, based on evidence and it would be held to be a statement of opinion. The defence will not be applicable where the person making the statement did not genuinely believe in the opinion provided.

What happens if you have published a defamatory statement?

The Act sets out the remedies available to the person who has been defamed. In addition to paying a level of damages, the person publishing the statement may also be required to provide an apology and a correction of the statement. The apology and correction will need to be in a manner that is reasonable and practicable in the circumstances.

If you require assistance with defamation, please speak to a member of the Blackadders Dispute Resolution Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.

Susan Currie, Senior Solicitor
Dispute Resolution
Blackadders LLP
@DisputeLawSusan

www.blackadders.co.uk

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