Defamation – The anti-social media

Paul Blackledge v Persons Unknown was recently heard in the English High Court. Mr Blackledge was a university professor who was falsely accused of several serious sexual assaults, bullying and intimidation in a series of articles posted online. The anonymous author of ‘MeTooUCU’, a blog hosted by BlogSpot, posted these articles and further disseminated them by email and on social media to Mr Blackledge’s friends and colleagues. This led to him being excluded from both professional and social engagements. He said the ordeal ‘all but destroyed’ his career and livelihood.

Despite considerable efforts, it was not possible for the anonymous author of the articles to be identified. Mr Blackledge therefore sued ‘Persons Unknown’. He sought an injunction to prevent further harassment and publication; an order under Section 13 of the Defamation Act 2013; and damages. He was successfully awarded all three, but it was acknowledged that the Section 13 order may be the most useful.

A Section 13 order requires the operator of a website on which a defamatory statement is posted (in this case Google as the operator of BlogSpot) to remove that statement, even though the operator is not party to the action. Due to the anonymity and lack of engagement of ‘Persons Unknown’, it was accepted that the injunction and award of damages were essentially useless. Mr Justice Saini said the Section 13 order was “likely to be the only remedy that is capable of providing an effective and meaningful protection to [Mr Blackledge’s] civil rights”.

What is the law in Scotland?

A Section 13 order is not a feature of Scots law. Unlike in England, where the law on defamation is largely codified in the 2013 Act, the law in Scotland emanates from older case law and statutes, meaning that at present, there is a somewhat fragmented approach. The Scottish Government recently passed the Defamation and Malicious Publication (Scotland) Act 2021 (the “2021 Act”) which seeks to consolidate the approach in Scotland, and makes better provision for the use of social media. The Act received Royal Assent on 21 April 2021 but its substantive provisions have not yet come into force.

Therefore, as it stands, the Scottish courts have no powers that are directly equivalent to those conferred by Section 13. The closest equivalent is Section 46 of the Court of Session Act 1988 which allows the court to grant specific relief against an illegal act which might have been prohibited by interdict. However, doubt has been expressed as to whether this would be applicable to this scenario, and in any case, it can only be used against parties to the proceedings. This suggests that, if Mr Blackledge brought this action in Scotland, he would not have an effective remedy.

In their 2017 Report on Defamation, the Scottish Government noted that there was widespread support for the introduction of provisions similar to Section 13 in Scotland. As a result, in Section 30 of the 2021 Act, the court is empowered to order that the operator of a website removes a defamatory statement which was published maliciously. This is certainly a progressive step for the law relating to defamation in Scotland, especially considering the prevalence and reach of social media. Mr Blackledge’s case highlights the potential for serious damage to an individual’s life and reputation if there is a lack of effective remedy to what may become a common scenario. No date for enforcement has been confirmed yet, but it is likely this provision will be a welcome change to the law when the Act is brought fully into force.