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.