Defamation and Malicious Publication (Scotland) Act 2021

2 Prohibition 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.