Defamation And 'the Public Interest Defence': A Different Approach North And South Of The Border

• Published date: 24 August 2020
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Libel & Defamation
• Law Firm: Shepherd and Wedderburn LLP
• Author: Mr Ruairidh Leishman and John MacKenzie

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...