Page 328 - Law and the Media

The Law in Scotland
20.2.4 Onus and standard of proof

The onus (or burden) of proof rests with the defender, the equivalent of the defendant, where
he raises the defence of veritas, the equivalent of the English defence of justification.

The standard of proof is ‘the balance of probabilities’. In Wray v Associated Newspapers
Limited and Another (2000) it was held that where the ‘sting’ of the defamation comprised
an allegation of commission of a crime, the standard of proof would remain the balance of
probabilities but the court would:

. . . require strong evidence in support of their truthfulness. I should emphasize that
by using the phrase ‘strong evidence’ I am accepting at once that the standard is
the balance of probabilities, but the weight necessary to tip that balance in favour
of the Defenders, has to be considerable.

20.2.5 Statute

The Defamation Acts of 1952 and 1996 apply, in large part, in the same way as they do in
England. Sections 5 to 11 of the Defamation Act 1996 do not apply to Scotland. Changes as
a result of devolution were made by Schedule 8 of the Scotland Act 1998.

20.2.6 Differences between Scottish and English law

There are some striking differences between the law of defamation in Scotland and in
England.

No criminal defamation
In Scotland, defamation is exclusively a civil wrong or ‘delict’, the equivalent of tort. There
is no such thing as criminal libel.

Publication not required
A defamatory statement is actionable in Scottish law even if no third party hears it.

Libel and slander indistinguishable
There is no practical distinction in Scottish law between oral and written defamation. ‘Libel’
and ‘slander’ are sometimes used interchangeably.

Defence of in rixa
Words spoken in the heat of the moment in a quarrel may lend themselves to the defence of
in rixa (Carroll v BBC (1997)).
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