21 Dec 2018

Beware what you send- Defamation law Scotland

Beware what you send – even when confidential and to a small number of people.

The recent decision in McAnulty -v- McCulloch [2018] CSOH121 sends a stark warning to those who defame others, even when publication is to a very small number of people.

The case concerned two SNP activists. McAnulty claimed that that she was defamed by McCulloch in an email dated 5 February 2016 sent by McCulloch to Ian McCann, the SNP’s compliance manager. The email was copied to various other people within the SNP. It was also copied to the Daily Record which published extracts from it on the front page. The contents of the email, as typed, were marked “Confidential”. The defamatory allegation was that McAnulty had stated to McCulloch that it was “the pakis” that were causing the problems locally and that we needed to get rid of them out of the party. McAnulty denied making the comments attributed to her in that email and sued on the strength of them.  McCulloch averred that the content of the email was substantially true. The case proceeded to proof, with the principal issue being whether McAnulty had made the statement attributed to her by McCulloch. On the basis of the evidence before the court, Lord Uist reached the conclusion that the McAnulty did not make the statement attributed to her and that McCulloch had acted with malice.

Sadly, the decision is absent of any reasoned discussion on qualified privilege on the basis that Lord Uist held that McCulloch’s actions were actuated by malice. Given the email was sent to people who clearly had an interest in receiving it, one would have thought that this would have been addressed, in at least more than one line, in the judgement  One can only presume that his Lordship was following the court’s approach in Fraser v Mirza in reaching that decision, namely that an absence of belief in the truth of a defamatory allegation is tantamount to malice.

Where the judgement raises more eyebrows is in the level of damages awarded by Lord Uist. He followed the case of McManus -v- Beckham, an English Court of Appeal decision, holding in this case that the Defendant should not be responsible for any publication of the libel beyond the email which she sent. However, he then went on to award damages of £40,000 for an email sent to only 13 people and marked confidential. It should not be understated that the allegation was highly defamatory and that the Pursuer was put to Proof, both of which are clearly aggravating factors, however the Scottish Courts have been reluctant to award damages at this level where the scope of publication is so limited.

Goodness knows what award they will consider appropriate in a case involving large scale social media distribution where similarly nasty allegations appear on a daily basis.

The Scottish Law Commission is presently consulting on reviewing the Law of Defamation in Scotland.  Campbell Deane, Head of BKF’s media law department sits on the Scottish Law Commission’s Advisory Group.

BKF are Scotland’s only top ranked Defamation and Reputation Management Law Firm – Chambers and Partners  2015, 2016, 2017 & 2018