The Opinion in the first reported Court of Session case applying the Defamation and Malicious Publication (Scotland) Act 2021 (the Act) has been published. The Opinion by Lord Clark in Gillespie and MacMillan v. Wardrop [2025] CSOH 46 (the Case) addresses the application of the statutory defences to defamation and also the concept of serious harm in terms of the Act.

When the Act came into force on 8 August 2022, it made extensive changes to the law of defamation in Scotland. At a very high level, these included setting thresholds for defamation claims (arguably one of the most significant changes, as it created a requirement of a "serious harm to reputation"); defining defamatory statements (codifying previous case law definitions); and changes to defences, which are now truth (section 5), publication on a matter of public interest (section 6) and honest opinion (section 7).

Background

The pursuers – James Gillespie and Mark MacMillan, directors of St Mirren FC (SMFC) – brought the action against Alan Wardrop (the defender), a former director of SMFC, who made two statements concerning the pursuers' involvement with the football club and charity, Kibble Education and Care Centre (Kibble).

Threshold for proceedings

Under the Act, proceedings can only be brought if they are published¹ and the publication has caused (or is likely to cause) serious harm to the reputation of the individual(s).² Notably, a statement must be published to a person other than the recipient³ and is said to be "published" when the recipient has seen or heard it.⁴ In the Case, two statements were made by the defender:⁵ one published online and a second in the Herald newspaper, both in print and online. Both statements centred on Kibble's plans to develop and build a wellbeing centre in Renfrewshire, and whether the said centre was to be constructed on land acquired from SMFC.

Serious harm

The "serious harm" test under section 1(2)(b) of the Act was met by the pursuers. As Lord Clark noted, ⁶ the test is in similar terms to the English legislation⁷ which was considered by the Supreme Court in Lachaux v. Independent Print Ltd [2019] UKSC 27 which indicates that relevant considerations, beyond the meaning of the words and the situations of the parties, will include the scale of the publications; the fact that others became aware of them; the likelihood of others becoming aware of them; and the gravity of the statements. Interestingly, whilst the pursuers' reputations remained strong, that did not exclude them from having suffered serious harm.

Application of statutory defences

Whilst the defender's statements were held to be defamatory, Lord Clark granted a decree of absolvitor as two of the statutory defences under the Act were applicable.

The first is the section 6 defence, that the publication was on a matter of public interest. Lord Clark held this applied to both statements as they concerned applications for a significant amount of public funding. The defender believed the publication of the statements to have been in the public interest when they were made and his belief in that regard was reasonable. In assessing the reasonableness of the defender's belief, Lord Clark had regard to the nature or gravity of the things said, the reliability and credibility of the defender's sources, the steps taken by the defender to verify the truth of the allegations and whether the defender included the pursuers' side of the story.⁸

The second is the section 7 defence of honest opinion. Lord Clark held it applied because the opinion expressed by the defender was genuinely held by him and was a conclusion that could fairly have been reached by an honest person on the basis of the evidence available to them.⁹

Comment

The Case highlights the balance of the Act between protecting those who have suffered serious harm as a result of defamatory statements with those making the statements, provided they were made honestly and, in this case, in the public interest. The Case also highlights that lack of reputational damage will not necessarily equate to failure to meet the "serious harm" test. 

1. Section 1(2)(a).↩
2. Section 1(2)(b). Includes non-natural persons, albeit for the serious harm threshold to be met it must cause (or is likely to cause) serious financial loss.↩
3. Section 1(2)(a).↩
4. Section 1(4)(c).↩
5. The statements are at paragraphs 3 and 4 of the Opinion.↩
6. Paragraph 101 of the Opinion.↩
7. Defamation Act 2013.↩
8. Paragraph 106 of the Opinion.↩
9. Paragraph 129 of the Opinion.↩