# Scotland Defamation Law: The 2021 Act Explained

Scotland defamation law under the 2021 Act: the serious harm test, defences, the one-year limit and court orders against websites, with England compared.

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Scotland defamation law is set by the Defamation and Malicious Publication (Scotland) Act 2021. A person can sue only if a statement that lowers their reputation was published to someone else and caused, or is likely to cause, serious harm to that reputation, and the action must normally be raised within one year of publication.

This article covers Scotland only, and we compare England and Wales only where we read both texts. For online material the Act does four things: it limits who can be sued, it sets three statutory defences, it lets a court order a website to remove a statement or show a notice, and it applies a repeat-publication rule to the clock. In the sections we read, it has no notice-and-takedown procedure for website operators of the kind found in England and Wales.

This is information, not legal advice. A Scottish solicitor or advocate decides what applies to a specific statement, and the one-year clock makes that urgent.

<div class="box"><b>The short version</b>
<ul><li>The test is serious harm to reputation, and for a business that trades for profit it means serious financial loss.</li><li>The three main defences are truth, publication on a matter of public interest and honest opinion.</li><li>The limitation period is one year from publication, with a rule that treats a repeat of the same statement as dated from the first.</li><li>A court can order a website operator to remove a statement or display a prominent notice that proceedings exist.</li><li>Mediation and some complaint processes pause the clock, but only on the Act's terms.</li></ul></div>

## What the Scottish test requires before you can sue

You have a right to sue only if the statement was published to someone other than you and the publication caused, or is likely to cause, serious harm to your reputation. That is the rule in section 1 of the [Defamation and Malicious Publication (Scotland) Act 2021](https://www.legislation.gov.uk/asp/2021/10/contents), and the sections we read are recorded as in force from 8 August 2022.

A statement is defamatory if it tends to lower a person's reputation in the estimation of ordinary people. It counts as published once the recipient has seen or heard it in a form they can access and understand.

<figure class="keyfacts">
<div class="keyfacts-grid">
<div><b>One year</b><span>the limitation period for defamation actions, replacing three years</span></div>
<div><b>Serious harm</b><span>the section 1 threshold for a defamation claim, tied to financial loss for businesses</span></div>
<div><b>8 August 2022</b><span>the in-force date recorded for the sections read</span></div>
</div>
<p class="fig-src">Source: Defamation and Malicious Publication (Scotland) Act 2021, sections 1 and 32, as shown on legislation.gov.uk.</p>
</figure>

### Businesses and the financial loss rule

If the person suing is not an individual and its main purpose is trading for profit, reputational harm counts as serious only if it caused, or is likely to cause, serious financial loss.

### Who cannot sue

Section 2 states that a public authority may not bring defamation proceedings. The definition covers central and local government institutions, courts and tribunals, and persons or offices with functions of a public nature, including bodies they own or control. A trading company or charity not owned or controlled by a public authority is not one merely because it occasionally performs a public function.

## Who can be sued: authors, editors and publishers, and where platforms stand

A right to sue arises only against the author, editor or publisher of the statement, or an employee or agent of one of them who was responsible for its content or the decision to publish it. This is section 3(1), and it is the provision that matters most for online material.

A publisher is a commercial publisher that issues material to the public or a section of it. The section lists activities that do not make a person an author, editor or publisher, including:

- operating or providing equipment, a system or a service by which a statement is retrieved, copied, distributed or made available in electronic form
- operating or providing access to a communications system through which another person, over whom they have no effective control, transmits the statement
- moderating content without changing its substance

For electronic statements, republishing or linking to a statement without altering it, or marking approval or disapproval of it (a like or a symbol), does not make a person an editor, provided it does not materially increase the harm.

### Why this shapes your options online

A host or social network whose involvement is only providing the service (section 3(4)) is, on the face of section 3, not a person against whom the right to sue arises, though section 3(5) lets a court apply the list by analogy. The realistic defender is the author, or an editor or publisher who chose to publish. Identifying an anonymous poster is a separate step from the claim.

### The power to name other publishers

Section 4 lets the Scottish Ministers make regulations specifying categories of persons who are to be treated as publishers even though section 3 would not catch them. The regulations may give such a person a defence if they did not know, and could not reasonably be expected to have known, that the material contained a defamatory statement. That is the one place the Act contemplates an intermediary defence, and it depends on regulations. We did not establish whether any have been made under section 4, so ask your adviser.

### Website operators: Scotland and England are built differently

In England and Wales, [section 5 of the Defamation Act 2013](https://www.legislation.gov.uk/ukpga/2013/26/section/5) gives a website operator a defence if it did not post the statement. The claimant can defeat it by showing the poster could not be identified, that a notice of complaint was given and that the operator failed to respond as the regulations require. The Scottish Act has no section headed as a website operator defence: none of its 40 section headings names one, and intermediary protection sits in section 3 and in the regulation-making power in section 4. We did not read every section in full, so this speaks only to the headings and the sections we read. In those sections the only statutory route to removal is a court order under section 30. That is our inference, not a claim that no other route exists.

## The three defences a defender can rely on

The Act sets out three main defences in sections 5 to 7. The defender carries the burden of showing each.

<div class="tablewrap"><table><thead><tr><th>Defence</th><th>What the defender must show</th><th>What defeats it</th><th>Applies to</th></tr></thead><tbody>
<tr><td><strong>Truth (section 5)</strong></td><td>The imputation is true or substantially true</td><td>Failure to show the imputation is true or substantially true</td><td>The imputation a statement conveys</td></tr>
<tr><td><strong>Public interest (section 6)</strong></td><td>The statement was on a matter of public interest and the defender reasonably believed publishing it was in the public interest</td><td>An unreasonable belief, judged on all the circumstances</td><td>Fact or opinion</td></tr>
<tr><td><strong>Honest opinion (section 7)</strong></td><td>It was an opinion, it indicated the evidence it was based on and an honest person could have held it</td><td>Proof the defender did not genuinely hold the opinion</td><td>Opinion, including an inference of fact</td></tr>
</tbody></table></div>

### Truth, including mixed statements

Section 5 provides a defence where the defender shows the imputation is true or substantially true. Where a statement carries two or more distinct imputations, the defence does not fail merely because not every one is proven, if the unproven ones, given those proven, have not caused serious harm to the pursuer's reputation.

### Public interest

Section 6 requires both that the statement concerned a matter of public interest and that the defender reasonably believed publishing it was in the public interest. The court weighs all the circumstances. Where the statement was an accurate and impartial account of a dispute the pursuer was involved in, the court must disregard any failure to verify the truth of the imputation when judging reasonableness. The court must also allow for editorial judgment as it considers appropriate. The section says the defence applies whether the statement is one of fact or opinion.

### Honest opinion

Section 7 asks whether the statement was an opinion, whether it indicated generally or specifically the evidence it rested on, and whether an honest person could have held that opinion on any part of that evidence. The pursuer defeats it by showing the defender did not genuinely hold the opinion. For a republished statement, it fails if the defender knew or ought to have known the author did not genuinely hold it.

## The one-year clock and the repeat-publication rule

A defamation action in Scotland must normally be brought within one year of publication. Section 32 amends section 18A of the Prescription and Limitation (Scotland) Act 1973 so that the period becomes one year instead of three. As amended, section 18A(4) reads the date a right of action accrued as the date the statement was published, subject to the repeat-publication rule below. On that wording, finding a post months after it went up does not move the start of the year.

### Repeat publication

New subsection (1A) applies where a person publishes a statement to the public or a section of it and later publishes the same statement or one that is substantially the same. The right of action for the later publication is treated as accruing on the date of the first publication, and the later publication need not be to the public. Under subsections (1B) and (1C), the rule does not apply if the court finds the later publication materially different in manner, and the court may weigh its prominence, its extent and any other relevant matter.

For an online post, a repost of the same text is dated from the first unless the court finds it materially different in manner.

### The court's discretion and other limits

[Section 19A of the 1973 Act](https://www.legislation.gov.uk/ukpga/1973/52/section/19A) lets a court allow an action where it "seems to it equitable to do so" despite the time bars in sections 17, 18, 18A and 18B, and section 18A(1) is expressed to be subject to it. Section 19A refers to a limit in section 19AA, which we did not read. Time when the person defamed was under legal disability, meaning nonage or unsoundness of mind, is disregarded under section 18A(2). Do not plan around a late rescue: the discretion is the court's.

### Comparison with England and Wales

England and Wales also has a one-year period. Section 4A of the Limitation Act 1980 bars defamation and malicious falsehood actions one year after the cause of action accrued, and [section 8 of the Defamation Act 2013](https://www.legislation.gov.uk/ukpga/2013/26/section/8) dates a later publication of the same or substantially the same statement from the first public publication, unless its manner is materially different. The Scottish rule has the same shape. We did not read what fixes the accrual date in England and Wales, so we do not compare starting points.

### Pausing the clock

Two sections interrupt the year. Under section 33, time spent in mediation is disregarded. The period starts on the day the parties appoint a mediator and ends on an agreed date or, failing that, on the earliest of a party's notice of withdrawal, 14 days after an unanswered request for confirmation, or 14 days after the mediator can no longer act with no replacement. Section 34 applies similar rules to a complaints process, meaning a referral to an independent person who handles complaints about publication in the medium concerned, or to expert determination, from the day the parties agree in writing to use it.

<aside class="callout">
<span class="callout-label">Limit</span>
<h4>A pause needs a formal start</h4>
<p>On the wording of sections 33 and 34, informal exchanges of letters or an unanswered request to a platform do not start the pause.</p>
</aside>

## Court orders, remedies and what a win delivers

### Orders against the statement itself

Section 30 lets a court, in defamation proceedings or Part 2 proceedings, order the operator of a website hosting a statement either to display a prominent notice that it is subject to proceedings, or to remove it. It can also order a person who was not the author, editor or publisher of the statement to stop distributing, selling or exhibiting material containing it. A notice is prominent only if everyone who accesses the statement sees it each time.

### Summary of judgment and statement in open court

Under section 28, when a court finds for the pursuer it may order the defender to publish a summary of the judgment. The parties first try to agree the wording and the manner of publication. If they cannot agree the wording, the court determines it. Under section 29, if the parties settle, the court may allow a statement to be made in open court, with wording agreed by the parties or, failing that, set by the pursuer, and approved by the court first.

### Offer to make amends

Section 13 lets a person who has published a statement someone claims is defamatory offer to make amends. The offer must be in writing, say it is made under that section and come before the defender lodges defences. It can offer a correction, a sufficient apology, publication of both and compensation. An offer not accepted within a reasonable period is treated as rejected.

### Malicious publication and distress

Part 2 creates statutory claims in sections 21 to 23, and section 27 abolishes the common law verbal injuries. Section 21 covers false and malicious statements about a business: the pursuer must show the statement was presented as fact and credible enough to mislead a reasonable person, that the publisher knew it was false or was recklessly indifferent to the truth, and that publication was motivated by a malicious intention to harm the business. Financial loss, actual or likely, is also required, subject to the limit in section 24 that we did not analyze. Section 26 lets the court take account of distress and anxiety in damages. We found no damages figure in the Act and state none.

## Courts, juries and overseas defenders: what the Act settles

Section 20 refers to defamation proceedings and to the Court of Session Act 1988, which indicates that the Court of Session hears them. The Scottish Courts and Tribunals Service describes the [Court of Session](https://www.scotcourts.gov.uk/courts-and-tribunals/the-supreme-courts/the-court-of-session/) as having an Outer House, which mostly hears civil cases at first instance, normally before a single Lord Ordinary, and an Inner House that is primarily the appeal court. It says the court deals with a wide range of cases including high value claims for more than 100,000 pounds. That page does not mention defamation, and we did not establish how claims are allocated between courts, so ask your adviser.

### The jury presumption

Section 20, headed "Removal of presumption that proceedings are to be tried by jury", repeals paragraph (b) of section 11 of the Court of Session Act 1988. The repeal does not have effect for defamation proceedings begun before the section came into force. We did not read the remaining rules on mode of trial, so we do not say how a case will be tried.

### Defenders based outside the UK

Section 19 says a Scottish court has no jurisdiction over defamation proceedings against a person not domiciled in the UK unless satisfied that, of all the places the statement was published, Scotland is clearly the most appropriate place for them. In practice a statement aimed at Scotland is likely to be better placed than one with a few Scottish readers, which is our reading and not a rule the section states.

## Choosing a route: a decision table

Most readers want the statement corrected or removed, not a trial. The table compares the routes.

<div class="tablewrap"><table><thead><tr><th>Route</th><th>What it can change</th><th>Speed</th><th>Main risk</th></tr></thead><tbody>
<tr><td><strong>Platform report</strong></td><td>Removal if the platform's own rules apply</td><td>Days to weeks</td><td>Refusal, with no legal effect</td></tr>
<tr><td><strong>Letter to the author or publisher</strong></td><td>Correction, apology, removal</td><td>Weeks</td><td>Escalation, republication</td></tr>
<tr><td><strong>Offer to make amends (section 13)</strong></td><td>Correction, apology, compensation</td><td>Weeks</td><td>Only works if the other side engages</td></tr>
<tr><td><strong>Mediation (section 33)</strong></td><td>Negotiated outcome, clock paused</td><td>Weeks to months</td><td>Pause starts only on appointing a mediator</td></tr>
<tr><td><strong>Complaints process or expert determination (section 34)</strong></td><td>Decision on a published dispute</td><td>Months</td><td>Needs written agreement of the parties</td></tr>
<tr><td><strong>Court action</strong></td><td>Damages, removal or notice, summary of judgment</td><td>Many months to years</td><td>Cost, publicity, defences</td></tr>
</tbody></table></div>

### Which to pick first

If the author is identifiable and the statement is plainly false, a written complaint usually gets a response fastest. If the author is anonymous, start with the platform's reporting tools and decide quickly whether a court order is realistic, because the year does not wait. If the statement is opinion on a public interest matter, expect sections 6 and 7 to be raised, and weigh the risk of a second article about your removal attempt.

## A realistic timeline for a Scottish online defamation problem

The one-year limit is the only fixed point. The stages below are how files usually run in our experience, not a statutory timetable.

<figure class="fig">
<figcaption><b>A typical sequence against the one-year limit</b></figcaption>
<ol class="fig-steps">
<li><b>Week 1: preserve and date the statement</b>Capture the page, address, author name if shown and first date.</li>
<li><b>Weeks 1 to 3: take advice and report</b>Ask a Scottish solicitor about the serious harm test and likely defences, and report it to the platform in parallel.</li>
<li><b>Weeks 3 to 8: write to the author or publisher</b>A letter usually produces a reply, a refusal or silence. A section 13 offer has to come before the defender lodges defences in any action.</li>
<li><b>Months 2 to 5: mediation or a complaints route</b>If both sides agree, appoint a mediator or sign a written agreement to use a complaints process or expert determination. Those are the events that start the statutory pause.</li>
<li><b>Months 5 to 9: decide whether to raise an action</b>Weigh cost, defences and remedy against what you want.</li>
<li><b>Before month 12: raise the action if you are going to</b>Drafting and service take time. Treat any earlier date your counsel gives as the deadline.</li>
</ol>
</figure>

## What to check before acting on this

Check four things. First, confirm the statement was published on or after 8 August 2022: statements published earlier keep the old limitation rule. Second, confirm the live text of the Act on legislation.gov.uk. Third, ask whether any regulations under section 3 or 4 change who counts as a publisher. Fourth, confirm the claimant: a public authority cannot sue, and a trading company needs evidence of serious financial loss.

Reputation Partners works on the search and AI side of these cases: what appears, what can be corrected and what a lawyer needs documented. We do not give legal advice. Our [removal service](/remove-negative-content) covers the non-court routes.

## What to do in the first week

Capture the statement and every place it appears. Do not reply in public or repost it, since that can widen the audience. Ask a Scottish solicitor to read it against sections 1, 5, 6 and 7 and to diary the one-year date.

<div class="box hot"><b>If this is happening to you now</b>
<p>Note the date the statement first appeared, because the year runs from publication, not discovery. Then send us the address and the date, and we will document how it appears in search engines and AI assistants for your lawyer. Start with a private <a href="/audit">audit</a>.</p></div>

## Questions people ask

### Is there a statute of limitations for defamation in Scotland?

Yes. Section 32 of the 2021 Act amends the Prescription and Limitation (Scotland) Act 1973 so that defamation actions generally have a one-year period, with the right of action treated as accruing on publication. Section 19A of that Act gives a court a discretion to allow a late action where it seems equitable, but do not plan on it.

### Does Scotland have a serious harm test like England?

Yes. Section 1 of the Scottish Act requires serious harm to reputation, and for a body trading for profit, serious financial loss. Section 1 of the Defamation Act 2013, which applies in England and Wales, has the same structure. We did not review case law, which may differ.

### Can I sue a website for something a user posted in Scotland?

Not on the face of section 3. A right to sue arises against authors, editors and publishers, and merely operating or providing an electronic system or service does not make a person one. A court can still order a website operator under section 30, in defamation proceedings, to remove the statement or show a prominent notice.

### Can a Scottish court order a statement to be taken down?

Yes, within proceedings. Section 30 allows a court in defamation proceedings to order the operator of a website either to display a prominent notice that the statement is subject to proceedings, or to remove it. It therefore depends on a claim being raised and on the court being persuaded.

### Do I need to prove I lost money to sue for defamation in Scotland?

Not if you are an individual. The test is serious harm to reputation. If you are a non-natural person whose primary purpose is trading for profit, section 1 requires serious financial loss, actual or likely. A section 21 claim about a business also requires financial loss, actual or likely.

### Is a defamation case in Scotland heard by a jury?

Section 20, headed as removing the presumption that proceedings are to be tried by jury, repeals paragraph (b) of section 11 of the Court of Session Act 1988. The repeal does not apply to defamation proceedings begun before it came into force. We did not read the remaining rules on mode of trial, so ask your solicitor how a case would be tried.

### Can I sue someone who lives outside the UK for a post about me?

Only if the Scottish court is satisfied that, of all the places the statement was published, Scotland is clearly the most appropriate place to bring proceedings. That is the section 19 test for defenders not domiciled in the UK. Expect the defender to challenge it at the outset.