Page 326 - Law and the Media

20 The Law in Scotland

Rosalind McInnes

20.1 Introduction

There is much about the law of Scotland that is comfortingly familiar to media organizations
and media lawyers in England. The Defamation Acts of 1952 and 1996, the Copyright
Designs and Patents Act of 1988, the Data Protection Act 1998, the Contempt of Court Act
1981 and the Human Rights Act 1998 are all United Kingdom-wide statutes. It has also been
said that the law of confidence is the same in both countries (Osborne v BBC (1999)).

However, differences in history, procedure and culture have resulted in a need for those in
England to exercise caution when considering the law of Scotland. The Scottish ‘civil law’
legal system is based on Roman law, and is fundamentally different from the ‘common law’
English legal system. Moreover, recent years have seen devolutionary sentiment and the
creation of the Scottish Parliament increase the scope for legislation in Scotland that takes
into account the different traditions of the Scottish legal system. The Regulation of
Investigatory Powers (Scotland) Act 2000 and the draft Freedom of Information (Scotland)
Bill are prime examples.

Media organizations and journalists should always seek advice from a Scottish lawyer when
considering issues relating to the law of Scotland. This chapter sets out the three areas where
the greatest risk is involved: defamation, reporting restrictions, and contempt of court.

20.2 Defamation

20.2.1 Definition of defamation

One of the older and more influential formulations for defamation in Scottish law is:

. . . the imputation of something which is criminal, dishonest, or immoral in the
character or actions of the person aggrieved...
(McLauchlan v Orr, Pollock & Co (1894))