PART 1Defamation

Actionability and restrictions on bringing proceedings

2Prohibition on public authorities bringing proceedings

1

A public authority may not bring defamation proceedings.

2

For the purpose of subsection (1), a public authority is—

a

any institution of central government, including in particular the Scottish Ministers and any non-natural person owned or controlled by them,

b

any institution of local government, including in particular each local authority and any non-natural person that such an authority owns or controls,

c

a court or tribunal,

d

any person or office not falling within paragraphs (a) to (c) whose functions include functions of a public nature (unless excluded by regulations made under subsection (6)).

3

But, where the person—

a

is a non-natural person which—

i

has as its primary purpose trading for profit, or

ii

is a charity or has purposes consisting only of one or more charitable purposes, and

b

is not owned or controlled by a public authority,

it is not a public authority by reason only of its carrying out functions of a public nature from time to time.

4

For the purposes of this section, a non-natural person is owned or controlled by a public authority if the authority—

a

holds (directly or indirectly) the majority of shares or voting rights in it,

b

has the right (directly or indirectly) to appoint or remove a majority of the board of directors of it, or

c

has the right to exercise, or actually exercises, significant influence or control over it.

5

For the avoidance of doubt, nothing in this section prevents an individual from bringing defamation proceedings in a personal capacity (as distinct from the individual acting in the capacity of an office-holder or employee).

6

The Scottish Ministers may by regulations make provision specifying persons or descriptions of persons who are or are not to be treated as a public authority for the purpose of subsection (1).

7

Regulations under subsection (6) are subject to the affirmative procedure.

8

Before laying a draft of a Scottish statutory instrument containing regulations under subsection (6) before the Scottish Parliament, the Scottish Ministers must consult such persons as they consider appropriate.

9

In this section—

a

a reference to a charity is a reference to a non-natural person—

i

registered in the Scottish Charity Register, or

ii

managed or controlled wholly or mainly outwith Scotland and which is registered in a register equivalent to the Scottish Charity Register for the purposes of the country in which it operates,

b

“charitable purposes” is to be construed in accordance with section 7(2) of the Charities and Trustee Investment (Scotland) Act 2005.