Defamation and ‘the public interest defence’: a different approach north and south of the border

A recent judgment highlights a different approach to the public interest defence in defamation actions under Scots law compared with those in the jurisdiction of England & Wales.

20 August 2020

A recent judgment highlights a different approach to the public interest defence in defamation actions under Scots law compared with those in the jurisdiction of England & Wales.

What is the public interest defence?

In Reynolds v Times Newspapers Ltd [2001] 2 AC 127, the House of Lords established a specific defence to a claim for defamation brought in relation to publication of a statement on a matter of public interest. Where the defamatory material concerned such a matter, the defendant had to show that it had met the standard of “responsible journalism”, measured by reference to a list of ten “non-exhaustive” factors. This became known as the “Reynolds defence”.

Is the defence also available in Scotland?

Yes. Although defamation in Scots law derives from a different conceptual basis than the Anglo-American law of libel and slander, following its review of the law of defamation in 2016, the Scottish Law Commission concluded that the Reynolds defence was available in Scotland.

This was also recently confirmed by Lord Clark in the case of Wildcat Haven Enterprises CIC v Wightman [2020] CSOH 30 – see our comment on that case here.

What effect has section 4 of the Defamation Act 2013 had?

In England & Wales, the common law defence was replaced by section 4 of the Defamation Act 2013. The statutory defence draws on the principles set out in Reynolds and developed in later cases. Rather than having to show that they had met the standard of “responsible journalism”, the section 4 defence is available where the publication was “on a matter of public interest” and the defendant “reasonably believed that publishing the statement complained of was in the public interest”. Since the introduction of the statutory defence, the question had been whether the Reynolds defence had been materially changed.

In the case of Serafin (Respondent) v Malkiewicz and others (Appellants) [2020] UKSC 23, the United Kingdom Supreme Court (“UKSC”) addressed that question. Although the UKSC decided Serafin on a different basis, so the analysis of section 4 does not form part of the court’s decision, the UKSC intended it to be helpful nevertheless.

In disagreeing with the Court of Appeal’s view that the Reynolds defence and the section 4 defence are not materially different, the UKSC said that the elements of the two cannot be compared. It was also inappropriate, said the UKSC, for the Court of Appeal to regard the Reynolds factors as a “check list” in the context of a section 4 defence. Finally, the UKSC stressed the importance of adhering to the statutory wording – the test is not whether the statement “is published in the public interest”, as the Court of Appeal deliberated on, but whether it is “on a matter of public interest”.

In its conclusion, the UKSC suggested that the new judge, who would be hearing the retrial of the Serafin case that had been ordered by the UKSC, should determine the availability of the public interest defence without reference to the reasoning of the Court of Appeal.

What effect will this judgment have in Scotland?

The UKSC’s judgment confirms that there is currently a difference in the public interest defence in an action of defamation between the jurisdictions of Scotland and England & Wales.

In England & Wales, the UKSC has said that any reference to the Reynolds factors was deliberately omitted from section 4 of the Defamation Act 2013; and that in assessing reasonableness, the court must, among other things, “have regard to all of the circumstances of the case.” Whereas, in Scotland, the courts will likely continue to assess whether the defender has met the standard of “reasonable journalism” by reference to the non-exhaustive list of factors set out in Reynolds and developed in subsequent cases.

This divergence will remain unless the Defamation and Malicious Publication (Scotland) Bill, which was introduced to the Scottish Parliament in December 2019, becomes law before the end of the current parliamentary session. This is because, amongst other things, section 6 of the Bill would put the Reynolds public interest defence on a statutory footing in Scotland. If this happens, Scots law will generally mirror the law of England & Wales in this area.

If you would like further advice on this or another related matter, please contact Ruairidh Leishman, John MacKenzie or your usual Shepherd and Wedderburn contact.