Page 329 - Law and the Media

Law and the Media
Time limits
The one-year limitation period for issuing a libel action introduced by the Defamation Act
1996 does not apply to Scotland. A person has three years in Scotland in which to raise such an
action (Prescription and Limitation (Scotland) Act 1973 as amended 1985).

Experience in England after the introduction of the Defamation Act 1996 may suggest that
actions out of time are rarely an issue. However, it may be an option for an English claimant
who is out of time in England to sue in Scotland.

No exemplary or punitive damages
Scottish law does not countenance exemplary or punitive damages (Stein v Beaverbrook
Newspapers Ltd (1968)), although persisting in proclaiming the truth of an allegation by
pleading veritas may give rise to aggravated damages (Baigent v BBC (2000)).

Procedure
Defamation actions may be raised in the sheriff courts throughout Scotland or in the Court of
Session in Edinburgh.

If a defamation action is raised and the pursuer dies, a trustee can carry on the action under
Section 3 of the Damages (Scotland) Act 1993. Otherwise, as in England, it is not possible to
‘defame the dead’.

A Scottish civil jury of 12 jurors hears a defamation case, as opposed to the 15 jurors who hear
a criminal trial, unless the court regards this as inappropriate. For example, in Shanks v BBC
(1993) it was held that an issue involving company frauds would be best heard before a judge.
A motion for jury trial was rejected. Despite the relative generosity of Scottish juries to
successful defamation pursuers, jury trial remains uncommon in Scotland.

No bar on prior restraint
Unlike the position in England, in Scotland it is currently still possible to stop publication of a
defamatory statement even if the pursuer is offering to prove its truth. As recently as 1990, the
Court of Session granted an ‘interdict’, the equivalent of an injunction, in favour of Sheriff
Ewan Stewart against the broadcast of a Focal Point documentary which claimed that he was
unfit for judicial office. However, the interdict was successfully recalled within days.

As a result of Section 12 of the Human Rights Act 1998, it is now unlikely that an interdict
would be granted in a defamation action except in extraordinary circumstances. However, even
a doomed application for an interdict made at the eleventh hour has the potential to cause a
media organization inconvenience. Because defamation actions are comparatively rare in
Scotland, some sheriffs may still grant interdicts ex parte, in other words without the presence
of the defendant, if they are not adequately addressed on the human rights arguments.

For this reason, those who may be the subject of such an application in Scotland should lodge
a ‘caveat’ in the Court of Session and in any sheriff court where an application may be made.
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