Page 330 - Law and the Media

The Law in Scotland
Caveats are documents that may be cheaply and easily lodged, last for a year, and are
renewable. Their effect is that the caveat holder is warned in advance of an order sought
against him and has the chance to oppose it.

20.2.7 Privilege

Privilege exists at common law and by statute in Scotland. Of most importance to journalists
is the absolute statutory privilege in respect of fair and accurate contemporaneous reporting
of a public court of justice. Unlike the position in England, litigants in Scotland only have
qualified privilege.

Absolute privilege
Absolute privilege covers:

Statements made in the Westminster and Holyrood Parliaments
Reports authorized by Parliament
Statements made in court by a judge, advocate (the equivalent of a barrister),
solicitor or witness concerning the particular proceedings.

Qualified privilege
Qualified privilege at common law in Scotland is similar to that in England, and includes
giving employee references and the reporting of suspected crime or cruelty to the appropriate
authorities. If the statement can only be made in the media, in theory the publication and the
individual journalist are protected (Waddell v BBC (1973)).

A much diluted form of the United States public figure defence along the lines of Sullivan
v New York Times (1964) has been seen in a number of Scottish cases (Langlands v Leng
(1916); Waddell v BBC (1973); Mutch v Robertson (1981)). In Wray v Associated
Newspapers Limited and Another (2000) the court made it clear that if the allegations had
related to the MP’s political actions rather than to his domestic life, a different approach
would have been in order.

20.2.8 Damages

Juries in Scotland are generous to defamation pursuers. In Winter v News Scotland (1991),
a prison wardress at Glenochil Prison sued the Sun for alleging she had sexual intercourse
with an inmate while on duty. She was awarded the then historic sum of £50 000 by a jury
for injury to feelings by publication in the court of session. In 1999, the Sun was again sued
for defamation by Father Noel Barry, a Catholic priest, and Annie Clinton, a primary school
headmistress, for allegations of sexual impropriety. The jury awarded Annie Clinton
£125 000 and Noel Barry £45 000. The disparity between the two figures presumably arose
because the Sun led with evidence of Noel Barry’s inappropriate relationship with a former
nun (Barry v News Group Newspapers Ltd (1999)).
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