ASSESSMENT 2 PREPARATION

J12534 Scots Law 1

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ASSESSMEMT 2PREPARATION

The aims of the Contempt of Court Act 1981 are:

• To prevent potential jurors from being prejudiced for or against the accused because of what has been published in media before or during a trial.
• To bring UK law into compliance with EU laws and the principles of the European Court of Human Rights.
• To facilitate uniform application of the law across the juristiction of the whole UK.
• To strike a balance between freedom of speech and a right to a fair trial.

CONTEMPT OF COURT

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How did the act come into existence?

• It was brought into existence partly as a result of the Sunday Times vs UK (1979) case.
• This was an appeal to the European Court of Justice over a finding of Contempt arising from an article about the drug thalidomide.
• Read more here:

CONTEMPT OF COURT

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What are the defences to a breach?

• Innocent Publication

A publisher of information will not be guilty of contempt if, having taken reasonable care, they do not know and have no reason to suspect that proceedings are active.

• Contemporaneous reporting on proceedings

A fair, accurate and contemporaneous report on a case will not result in conviction when it has been published in good faith.

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What are the defences to a breach?

• Public Interest

This defence is available when an article has been published in good faith, has an element of public interest and is incidental to the case.The Act states:A publication made as or as part of a discussion in good faith of public affairs or other matters of general public interest is not to be treated as a contempt of court under the strict liability rule if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion.

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What is meant by an 'active' case?

Active cases are triggered by one of the following:

• An arrest warrant or a summons is issued
• A person is arrested
• A person is charged

A case is ‘Active’ until the accused is acquitted, found guilty or the case is ended (deserted simpliciter).

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DEFAMATION

• Defamation law in Scotland is governed by the Defamation and Malicious Publication (Scotland) Act 2021 (the Act). The Act defines “defamation” as publishing a statement that has caused, or is likely to cause, serious harm to the reputation of another.
• This is typically the case if the published statement lowers the person’s reputation in the estimation of ordinary people.
• For businesses, such harm would only be considered serious if it caused, or is likely to cause, serious financial loss.
• While individuals and businesses can bring a claim for defamation, public bodies in Scotland cannot.

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• The defamatory statement must be published to someone other than the defamed individual.
• Innuendo and images can also be defamatory.
• In Scotland, unlike in England and Wales, there is no distinction between libel (ie the publication of a defamatory statement in written or permanent form) and slander (ie non-permanent forms of expression of a defamatory statement).
• A statement is considered ‘published’ when the recipient has seen or heard it.
• Under the Act, an action can also be brought for malicious publications. Malicious publication covers material that is not defamatory but could harm business interests.

DEFAMATION

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Truth - the statement is true or substantially true Public interest - regardless if the statement is a fact or opinion Honest opinion - the defamation was an honest opinion that is based on evidence and the court must determine that an honest person could hold the opinion from the statement based on any part of the evidence. If the defender did not genuinely hold the opinion from the statement then the defence fails Qualified privilege - certain situations in which an otherwise defamatory statement is made, will preclude claims from being brought (eg in peer-reviewed academic writing)

DEFAMATION DEFENCES

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• A claim for defamation and malicious publication must be brought within one year of the defamatory statement being made.
• The time limit is generally deemed to run from the date of first publication, regardless of whether the statement is re-published later. However, the courts may reset the time limit if they determine that the manner in which the statement was re-published is materially different from the manner of the first publication.

DEFAMATION TIME LIMITS

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In deciding this, the courts may take into account:

• The prominence the statement is given
• The extent of the re-publishing
• Any other matters the courts consider relevant

TIME LIMITS CONTINUED

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