Scotland Defamation Laws: The 2021 Act Explained

Scotland runs its own defamation regime under the Defamation and Malicious Publication (Scotland) Act 2021, which came fully into force on 8 August 2022 and does not apply the English Defamation Act 2013. A claim, raised by a pursuer against a defender, now succeeds only where a statement has been published to a third party and has caused or is likely to cause serious harm to reputation (section 1).

For the wider picture across jurisdictions, see our world defamation laws hub.

Scotland has its own Act, not the Defamation Act 2013

Defamation is a devolved matter, so Scotland is governed by the Defamation and Malicious Publication (Scotland) Act 2021 (asp 10), which received Royal Assent in 2021 and came into force on 8 August 2022. The English and Welsh Defamation Act 2013 does not apply in Scotland. The 2021 Act codifies what was previously common law and abolishes the old common law defences and the historic verbal injury delicts (sections 8 and 27). Scots procedure uses its own terminology: the person suing is the pursuer and the person being sued is the defender, claims are usually raised in the Court of Session or the sheriff court, and a finding in the defender's favour is an absolvitor. While the 2021 Act deliberately mirrors several features of the 2013 Act, such as serious harm and a one-year limit, it is a separate statute with its own section numbers, so practitioners should cite the Scottish Act, not the English one.

The serious harm test and publication to a third party (section 1)

Section 1 of the 2021 Act sets the threshold for any defamation action. A right to bring proceedings accrues only where two conditions are met: the statement has been published to a person other than the pursuer, and the publication has caused, or is likely to cause, serious harm to the pursuer's reputation. The third-party requirement ends the older Scots position that allowed actions based on a statement communicated only to the pursuer, bringing Scotland into line with the English common law. Where the pursuer is a non-natural person that trades for profit, such as a company, the harm is not serious harm unless it has caused or is likely to cause serious financial loss. A statement is treated as defamatory where it tends to lower the person in the estimation of ordinary, reasonable people. The first reported case under the Act, Gillespie and Macmillan v Wardrop [2025] CSOH 46, confirmed that serious harm can be established even where a pursuer's overall reputation remains strong.

Watch out: Strong existing standing does not defeat a claim by itself. In Gillespie and Macmillan v Wardrop the court found serious harm despite the pursuers' robust reputations, then absolved the defender on the defences.

Public authorities cannot sue, and secondary publishers are protected (sections 2 and 3)

Section 2 places the Derbyshire principle on a statutory footing: a public authority may not bring defamation proceedings. This covers central and local government, courts and tribunals, and other bodies exercising functions of a public nature, so criticism of public institutions cannot be met with a defamation claim by the body itself. Section 3 restricts who can be sued by limiting proceedings, in the main, to the author, editor or publisher of the statement, or an employee or agent of that person who is responsible for its content. This shields secondary publishers and intermediaries who merely distribute, host or provide the technical means of access. The explanatory notes indicate that simply sharing a link, retweeting, or marking a reaction does not make a person an editor, provided the statement is not altered and the interaction does not materially increase the harm. The effect is to focus liability on those genuinely responsible for originating or controlling the content rather than on platforms and conduits.

The three statutory defences: truth, honest opinion, public interest (sections 5 to 7)

The 2021 Act replaces the old common law defences with three statutory ones. Section 5 provides the truth defence: it is a defence to show that the imputation conveyed is true or substantially true, with falsity otherwise presumed in the pursuer's favour. Section 7 provides the honest opinion defence, replacing fair comment. It requires that the statement was opinion rather than fact, that it indicated, in general or specific terms, the evidence on which it was based, and that an honest person could have held that opinion on the basis of any part of that evidence; the defence fails if the defender did not genuinely hold the opinion. Section 6 provides the publication on a matter of public interest defence, which replaces the common law Reynolds defence. It applies where the statement was, or formed part of, a statement on a matter of public interest and the defender reasonably believed that publishing it was in the public interest, and it includes a reportage element for accurate and neutral reports of a dispute. In Gillespie and Macmillan v Wardrop the section 6 and section 7 defences both succeeded.

The one-year limit and the single publication rule (section 18A, 1973 Act as amended)

Section 32 of the 2021 Act amends section 18A of the Prescription and Limitation (Scotland) Act 1973. The limitation period for defamation, and for the malicious publication delicts, is now one year from the date the right of action accrued, reduced from the previous three years and bringing Scotland into line with England and Wales. The amended section also introduces a single publication rule. Where a person publishes a statement to the public, or a section of the public, and later publishes the same or a substantially similar statement, any right of action for the later publication is treated as accruing on the date of the first publication. The single publication rule does not apply where the court is satisfied that the manner of the subsequent publication is materially different from the first, for example a far more prominent or wider re-publication. The court retains a discretion to allow a late action to proceed where it is equitable to do so.

Watch out: The single publication rule means the clock generally starts at first publication, so an old online article that stays accessible does not reset the one-year limit each day it remains live, unless a later re-publication is materially different.

Jurisdiction and remedies (sections 19 and 28 to 30)

Section 19 addresses jurisdiction where proceedings are brought against a person not domiciled in the United Kingdom. A Scottish court has jurisdiction only if satisfied that, of all the places where the statement has been published, Scotland is clearly the most appropriate place to bring the action, a measure aimed at discouraging libel tourism. References to the statement complained of include any statement conveying the same or substantially the same imputation, and the section does not displace the plea of forum non conveniens. On remedies, the Act preserves damages and adds tailored options. A court may order the defender to publish a summary of its judgment (section 28), allow a statement to be read in open court where an action settles (section 29), and order the operator of a website to remove a statement or order a person to stop distributing it (section 30). Interdict, the Scots equivalent of an injunction, remains available to restrain publication in appropriate cases.

Malicious publication: a separate set of delicts (sections 21 to 23)

Alongside defamation, the Act creates statutory malicious publication delicts that replace the old verbal injury actions for economic harm. Section 21 covers false and malicious statements about a person's business or activities, section 22 covers statements about title to property, and section 23 covers statements criticising assets. Unlike defamation, these are not concerned with reputation in the ordinary sense and falsity is not presumed. The pursuer must prove that the imputation was false, that it was presented as a statement of fact credible enough to mislead a reasonable person, that the defender knew it was false or was recklessly indifferent to its truth, and that publication was motivated by a malicious intention to cause harm. Each delict also requires that the statement caused, or was likely to cause, financial loss. The explanatory notes describe malicious intention as being motivated predominantly by the aim of causing detriment to the pursuer rather than by furthering the defender's own economic interests.