Libel tourists are unlikely to take a trip to Scotland

It is perhaps unsurprising, therefore, that many firms and individuals are turning to legal action when it appears they have been defamed, particularly given the number of platforms where defamatory statements can be made.

Facebook and Twitter by their nature also raise new legal issues in relation to defamation cases.

For reputation’s sake, it is often better that the defamed individual simply accepts a published apology and damages, which is becoming a more common middle ground – often using the “making amends” provisions – rather than have the matter drawn out in the public domain.

Another catalyst may be that it is becoming increasingly clear that there is a gap arising between what Scottish courts are awarding in damages compared to elsewhere in the UK and further afield.

The reluctance on the part of Scottish courts to indulge claims for punitive or aggravated damages, unlike in England and Ireland, may also be a reason why many disputes in Scotland fail to reach a judge’s ears – in the past 12 months there was only one defamation judgment north of the Border.

And you only need to look to recent defamation cases to see these geographical differences in action.

In May, a jury at the High Court in Dublin made an award of €80,000 (£69,000) – of which €40,000 was aggravated damages – to Rosanna Davison, daughter of the singer Chris De Burgh. The damages were awarded after an action against Ryanair, in which the budget airline had implied the former Miss World made comments of a racist nature when speaking about its charity calendar.

The decision followed the record €10 million damages awarded by an Irish jury in November in relation to a press release insinuating an individual made inappropriate advances to a colleague. This matter is now on appeal to the Irish Supreme Court.

On occasion, Scottish juries have made substantial awards – perhaps most famously, the 2006 award of £200,000 to Tommy Sheridan against News International, which is still under appeal.

However, an award of this value should be considered as the exception to the rule, as can be seen in the case of Gail Munro, former Scottish Ladies Curling skip.

Last month, in the only reported Scottish defamation action in the past 12 months, Lord Doherty, sitting without a jury, awarded £21,090 to Munro in relation to claims that she had refused to play for her country.

His lordship made clear that damages in Scotland are awarded as compensation, and not as punishment, vindication or as an example. While each case must be considered on its own facts, this award highlights the contrasting approach to damages in Scotland compared to its neighbours.

The discrepancy between awards has also led to the issue of forum shopping – where an aggrieved party may seek to raise proceedings in a country where damages awards tend to be higher. An example of this was when Russian oligarch Boris Berezovksy sued the US based Forbes magazine for libel in the late 1990s in England, despite Forbes having a very limited circulation there. Nonetheless, the High Court was found to have jurisdiction.

The UK government is presently seeking to discourage such “libel tourism” through proposals in its draft Defamation Bill, with a proposal that courts only accept jurisdiction where they are the “most appropriate place” for the action to be heard – with circulation cited as a relevant factor.

For the time being, any party considering action to stop defamatory statements, and/or seeking damages as a consequence of them, might want to consider more strategically the correct “forum” or country in which a claim could be raised.

l James McGachie is an associate in the litigation and regulatory division in the Edinburgh office of international law firm DLA Piper.