Defamation 

Our Specialist Litigation Team has a wealth of experience in assisting clients on both sides of a defamation claim i.e. the subjects of defamatory statements, as well as those accused of making them. We recognise the need to consider the positives and negatives associated with all legal options, and to make a clear, informed decision at the earliest stage. We have helped clients seek interdicts against publication and have made arguments around privacy rights. We regularly work alongside media and PR advisers, as well as other legal firms with a related interest. Importantly, we recognise the need for absolute discretion.

A statement is defamatory if it tends to lower the person’s reputation in the estimation of ordinary persons. Publication includes communicating the statement by any means to others, and where the person about whom the statement has been made has seen or heard it.

Under the Defamation and Malicious Publication (Scotland) Act 2021, defamation proceedings can only be raised as a civil action in the Scottish courts if the published defamatory statement has caused, or is likely to cause, serious harm to the person about whom the statement has been made. In cases where the subject of the defamation is a non-natural person (e.g. a company), for the purposes of the Act, ‘serious harm’ requires there to have been serious financial loss suffered as a result of the defamatory statement.

Where the person who has made the defamatory statement is not domiciled in Scotland, in order to hear the case, the Scottish courts must be satisfied that, of all the places where the statement complained of has been published, Scotland is clearly the most appropriate place to bring proceedings.

Defamatory statements can be hugely damaging to the reputation and standing of the party affected, which in turn can lead to significant financial losses. However, careful consideration needs to be given to the potential implications of bringing defamation proceedings, including the risk that the false claims are given further oxygen.

The Human Rights Act 1988 (which incorporates the European Convention on Human Rights (‘ECHR’) into domestic law in the UK), is also a relevant consideration when dealing with defamation proceedings. Article 10 of the ECHR protects the right of freedom of expression; Article 8, however, protects the right to a private life, including – in certain circumstances – a reasonable expectation of privacy. Often it falls to the courts to decide where the line between the two is to be drawn and how to properly balance these competing rights.

Indeed, whilst the statement might be considered defamatory, there are a number of defences available under the Act. Should any of these defences be successful in court, the person who made the defamatory statement may evade liability to pay damages for the harm caused as a result of publication of the statement.

Crucially, there are tight time limits for defamation proceedings to be brought before the Scottish courts, so seeking early advice is essential.

Contact our Specialist Litigation Team   

If you believe you have been the subject of defamation, or if you face a claim, contact our Specialist Litigation Team on 0141 429 8166 or complete our online enquiry form.