Defamation in Scots law: consultation

Part Three: Proceedings against secondary publishers

95. The focus of this chapter is the Commission’s proposed definitions of author, editor and publisher in section 3 of their draft Bill, and on the parliamentary process by which such definitions can be updated.^[51]

96. Communication of a defamatory statement by a second or subsequent party is actionable against that person as it is against the person who first made the defamatory statement. There is a presumption that a defamatory statement is intentional and there is no defence that it was unintentional. This means that, for example, both the person who places an allegedly defamatory advertisement in a newspaper and the publishers of that same newspaper could both potentially be held liable.^[52]

97. At common law, England and Wales developed a defence of innocent dissemination for newsagents and booksellers and a similar defence exists under Scots law. The common law has been overtaken in Scotland, England and Wales by section 1 of the Defamation Act 1996 (‘the 1996 Act’)^[53] and regulations 17 to 19 of the Electronic Commerce (EC Directive) Regulations 2002 (‘the 2002 Regulations’).^[54]

98. Section 1 of the 1996 Act provides a defence to defamation if a person can demonstrate:

i. that they are not the author, editor or publisher of the statement complained of;
ii. that they took reasonable care in relation to its publication; and
iii. that they did not know, and had no reason to believe, that they caused or contributed to the publication of a defamatory statement.

99. The expressions “author”, “editor” and “publisher” are defined in section 1(2) of the 1996 Act.

100. The 2002 Regulations provide three defences for material transmitted by an internet intermediary but not created by them. The defences depend on the level of involvement of the intermediary in the transmission, storage and modification of the information. Liability attaches depending on how the internet intermediary is categorised.

101. In England and Wales, section 5 of the 2013 Act created a defence for the operator of a website if they can show that they did not post the statement on the website, i.e., it was a third party.^[55] If the claimant, however, can show that it was not possible to identify the person who posted the alleged defamatory material, that they informed the operator of the website of the posted material (by sending them a ‘notice of complaint’), and that the website operator failed to respond to the notice, the defence is defeated. During their reform project, the Commission received responses to the effect that this defence is seldom used in practice and is regarded as unworkable by most website operators.

102. Further, section 10 of the 2013 Act provides that a court cannot hear an action for defamation brought against a person who was not the author, editor or publisher of the statement complained of unless the court is satisfied that is not reasonably practicable for an action to be brought against the author, editor or publisher.

103. The Commission make no final recommendations on internet intermediary liability, instead recommending an interim solution pending a UK-wide review. The UK Government has announced their intention to publish a White Paper on internet safety before the end of 2018, although it does not specifically deal with internet intermediary liability in defamation law.^[56]

104. The interim solution recommended by the Commission is to replace the defence in section 1 of the 1996 Act with a combination of section 1 of that Act and section 10 of the 2013 Act. Section 3 of the draft Bill provides that no defamation proceedings can be brought against a person unless the person is the author, editor or publisher of the alleged defamatory statement that is complained of, or else is an employee or agent of that person and is responsible for the content of the statement or the decision to publish it. This applies to all secondary publishers and not only internet intermediaries, covering both online and offline activity. This would have the effect of replacing the defence of innocent dissemination, and so there would no longer be a need for the defender to show that they took reasonable care nor that what was a reasonable lack of knowledge caused or contributed to the publication of the statement.

105. The approach of the Commission is to use definitions of author, editor and publisher that are familiar to the courts and practitioners; they are similar to those contained in section 1 of the 1996 Act.^[57] It includes a list of functions that are not to be taken to place a person in the category of author, editor or publisher. However, there is flexibility to amend this list by way of regulations made by Scottish Ministers.

106. Concerns were raised during the Commission’s reform project about the way that the role of editor is defined.^[58] It was said that the current definition is too expansive, and as a consequence would be unlikely to achieve the Commission’s stated aim of removing a secondary publisher’s liability. A number of other respondents suggested that the definitions of all three roles lacked sufficient clarity as to the extent of their scope. Against that the Commission observed that the definitions were well-established and well-understood in practice.

107. Against this discussion we ask the following question:

14. Do you agree that the definitions of author, editor and publisher in section 3 of the draft Bill contained in the Commission’s Report will remove liability for secondary publishers?

108. The draft Bill gives Scottish Ministers the power to make changes, following consultation, to the Derbyshire principle (section 2(7)), secondary publisher liability (section 3(5)), and powers to specify persons to be treated as a publisher (section 4(1)). Some of the consultees to the Commission’s reform project considered that any changes should be taken through Parliament in the form of a further Bill. They argue that any change to these provisions are of such importance that it should be done only after being subjected to an open and vigorous process that involves the scrutiny of a wide section of civil society.

109. The Commission took account of these views and altered the way that such regulations are to be made. Those being laid by Scottish Ministers in respect of these sections will be subject to both a consultation process and parliamentary approval by affirmative procedure, achieving a balance between scrutiny and the use of legislative resources, particularly the Parliament’s time.

110. Against this discussion we ask the following question:

15. Do you agree that the regulations made by Scottish Ministers under these sections and which will be subject to consultation and parliamentary approval achieve the correct balance between scrutiny and the use of legislative resources?

Summary of recommendations

111. The following is a list of the Commission’s recommendations relevant to Part Three of this consultation paper:

18. Any review of responsibility and defences for publication by internet intermediaries should be carried out on a UK-wide basis.

19. As part of any UK-wide review of liability and defences of internet intermediaries, consideration should be given to (a) whether there is scope to clarify the operation of existing provisions, rather than creating new provisions and (b) if so, whether this would be most appropriately achieved by means other than legislation.

20. Generally, defamation proceedings should not be capable of being brought against a person, unless the person is the author, editor or publisher of the statement in respect of which the proceedings are to be brought or is an employee or agent of such a person and is responsible for the content of the statement or the decision to publish it.

21. A regulation-making power should be created to allow for exceptions to the general rule so that specified categories of person may be treated as publishers of a statement for the purpose of defamation proceedings despite not being the author, editor or publisher of the statement or an employee or agent of such a person. A draft of such regulations should be the subject of consultation before they are made. The regulations should be subject to the affirmative resolution procedure.

22. Any such regulations may also provide for a defence that the person treated as a publisher did not know and could not reasonably be expected to have known that the material disseminated contained a defamatory statement.