1. FAIR COMMENT in SCOTLAND
Louise Stewart Delict Presentation
FAIR COMMENT in SCOTLAND
“The expression of an opinion as to the state of facts truly set forth is not actionable, even when that opinion is couched in vituperative or contumelious language”.
Archie v Ritchie & Co (1891) 18 RSC 719, per Lord McLaren p 727
Presentation Overview
What is Fair Comment in Scots law?
Comparison to England & Wales. Defamation Act 2013
Spiller v Joseph Principles & case law
Massie v McCaig
The Future: Need for Statutory Footing?/Conclusion

2. WHAT IS FAIR COMMENT? DIFFERENCE BETWEEN COMMENT Common law defence
“Facilitate ‘Freedom of Speech’ by commenting on matters of public interest” paraphrased from Tse wai Chun v Chen [2001] EMLR 777 at 778
DIFFERENCE BETWEEN
COMMENT
STATEMENT OF
FACT
Assertion?
Commentary ?

3. Scottish v English Approach The Defamation Act 2013 applies mostly to England and Wales
England & Wales
Scotland
Section 3 of the 2013 Act does not apply to Scotland.
The defence of “fair comment” in Scotland protects honestly held comments or opinions based on fact.
Reynolds remains good law
Honest opinion – section 3 of the 2013 Act
Section 3 replaces the common law defence of “fair comment” with a new defence of honest opinion. The requirement for the opinion to be on a matter of public interest has been removed.

4. SPILLER V JOSEPH [2010] UKSC 53
Understood as a comment rather than as a statement of fact
Waterson v Lloyd [2013] EWCA Civ 136
“something which is or can reasonably be inferred to be a deduction, inference, conclusion, remark, observation etc.”.
Clarke v Norton [1910] VLR 494, at 499.
The facts comment based on must be stated or indicated to
Kemsley v Foot [1952] AC 345
True facts or protected by privilege
Telnikoff v Matusevitch [1992] 2 AC 343
Defamation Act 1952 s.6
In the Public Interest
A v P [2010] EWHC 2572 (QB)
London Artists Ltd v Littler Grader Organisation Ltd [1969] 2 QB 375 1 2 3 4

5. MASSIE V MCCAIG & Ors [2013] CSIH 14
Allan Massie an Aberdeen businessman initially won an Interim Interdict against SNP and Cllr Callum McCaig from making and publishing defamatory material about him:
"From defaming the pursuer by making, publishing or otherwise disseminating statements alleging or containing an innuendo that the pursuer's donation of £11,500 to the Gordon Constituency Labour Party was made in order to induce Labour councillors in Aberdeen Council to perform their public functions improperly by voting in favour of development proposals of Carlton Rock Ltd".
Reclaiming motion by McCaig & SNP.
Lord Ross was content in Fairbairn v Scottish National Party 1980 SLT 149 (at 152) with defining the defence by quoting from Walker: Delict (2nd ed at 841) that:
"in fair comment the defender must show that each statement of fact is true, that the matter is one of public interest, and that the comment on the facts is fair".
Inner House stated that defence of Fair Comment was correctly stated by Lord McLaren in Archer v Ritchie & Co
Defence Successful

6. THE FUTURE OF DEFAMATION LAW IN SCOTLAND & CONCLUSION
- One of the less frequently used defences
- Difficult to apply due to fact v comment test
Very little modern case law in Scotland
Time to remove public interest necessity?
Time to put onto statutory form?

7. REFERENCES
Crombie KF, Scots Law Defamation on the Internet, A consideration of new issues, problems and solutions for Scots law < accessed 4/11/2016
McManus F, Russell E et al, Delict A Comprehensive Guide to the Law in Scotland (2nd edn, Dundee University Press, 2011)
Scottish Law Commission, Discussion Paper on Defamation, (Discussion Paper No 161)
Thomson J, Delictual Liability, (5th edn, Bloomsbury, 2014)
Faculty of Advocates, Response to Discussion Paper, < accessed 10 November 2016
Law Society of Scotland, Response to Discussion Paper, < accessed 10 November 2016
Libel Reform Campaign, Response to Discussion Paper, < accessed 10 November 2016
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