International Media Law

Scotland has its own law of defamation, and since 2021 it has had its own statute. The Defamation and Malicious Publication (Scotland) Act 2021 replaced much of the common law and did not follow the English legislation clause for clause. The Defamation Act 2013 does not extend to Scotland, and advice drawn from it is advice about a different country.

Three features of the Scottish Act matter more than the rest.

A claim is actionable only where the statement has been published to somebody other than the person complaining, and only where publication has caused, or is likely to cause, serious harm to their reputation. Where the person complaining is a business trading for profit, harm is not serious unless it has caused or is likely to cause serious financial loss.

The period for bringing an action is one year, not three, and there is a single publication rule, so that time runs from first publication rather than restarting on each repetition.

Public authorities cannot bring defamation proceedings at all.

Before publication

The least expensive advice in this area is given before anything is published. We read copy, scripts and programme treatments against the risks of defamation, malicious publication, privacy, confidence and contempt, and we say what would have to change for a piece to be defensible. Where a story is worth running with a residual risk, we say that too.

After publication

We act both for publishers and broadcasters defending claims, and for individuals and businesses who have been written about. On the pursuing side the early questions are whether serious harm can be evidenced, whether the one-year period has begun to run, and what outcome would actually repair the damage, which is frequently a correction rather than a payment. On the defending side they are the strength of the available defences and the cost of establishing them.

Urgent applications to restrain publication are made by interdict, and the Scottish courts approach them on their own basis.

Publication that crosses borders

Material published online is published everywhere, and the same article can be actionable in one country and not in another. Where a client is publishing into several jurisdictions, or has been written about from outside Scotland, the first questions are where an action could competently be raised, which country's law a court would apply, and whether a judgment obtained abroad could be enforced here. We advise on the Scottish position and instruct lawyers qualified elsewhere for the rest.

Members of the firm are qualified in Scotland and in England and Wales, so English media law advice is given in-house rather than referred out.

The contracts

We prepare and negotiate the agreements the industry runs on: commissioning and production agreements, contributor and release forms, publishing and distribution contracts, syndication and licensing, and the rights and clearance provisions that determine who may use what.