Stuart Campbell, publisher of the Wings Over Scotland blog, sued Kezia Dugdale for £25,000 after she wrote a column expressing her shock and anger at a comment he posted via his Twitter account, in which he criticised an MP’s public speaking by referencing the politician’s father’s homosexuality.

But a sheriff ruled that while Ms Dugdale was “incorrect” in implying that Mr Campbell was homophobic, her article was protected by the “fair comment” principle.

‘Homophobic tweet’

Sheriff Nigel Ross heard that during the Conservative Party conference on 3 March 2017, the pursuer Mr Campbell posted the following tweet: “Oliver Mundell is the sort of public speaker that makes you wish his dad had embraced his homosexuality sooner”. 

In her weekly opinion column in the Daily Record, which was published on 7 March 2017, the defender Ms Dugdale wrote an article headed “Twitter tirade highlights divisions”, in which she said she was “shocked and appalled to see a pro-independence blogger’s homophobic tweets during the Tory conference”, and that such comments were “not unique” to the man behind Wings Over Scotland.

The article went on to state that Ms Dugdale found it “depressing and disheartening” that some SNP politicians promoted the pursuer’s work, adding that “No elected member of any party should be endorsing someone who spouts hatred and homophobia towards others”.

Mr Campbell raised an action for damages claiming that he had been defamed and offended at the “absurd” suggestion that he was a homophobe. 

During a three-day hearing at Edinburgh Sheriff Court, he denied that his tweet was a homophobic reference to Scottish Secretary David Mundell’s sexuality, insisting it was a “satirical” joke about preventing birth.

Ms Dugdale’s position was that the article complained of constituted “fair and honest comment” on a matter of “public interest”, and that the description of the tweet as “homophobic” represented her “genuine and honestly held belief”.

The opinion piece contained no statement or imputation that the pursuer was a “homophobe”, but criticised him for giving voice to “homophobic sentiments”.

‘Innuendo’

The sheriff observed that the column contained a “clear innuendo” that the pursuer was homophobic, but ruled that the defender was not liable to pay damages because the article had the required elements for a “fair comment defence”.

In a written judgment, Sheriff Ross said: “Mr Campbell intended the tweet to be insulting about Oliver Mundell’s speaking basis for a jibe directed at the son. The jibe was to the effect that a homosexual man would not father children and therefore his son would never have been born and have become a public speaker.

“By those definitions, the tweet was not motivated by homophobia and did not contain homophobic comments. The tweet was not motivated by fear, hatred or dislike of homosexuals. It did not express such fear, hatred or dislike.”

The sheriff considered that Mr Campbell does not hold homophobic beliefs or feelings, having demonstrated a history of supporting equality for homosexual people.

The court explained that the law of defamation allowed redress for damaging comments about character, but it also recognised that “a balance must be struck” with competing public values, such as free speech. 

“It recognises that there is significant public interest in allowing people to freely express opinions without fear of legal penalty. Accordingly not every damaging comment about character will result in legal liability for harm or distress,” the sheriff said. 

He continued: “There are several recognised types of defence. For example, if a statement is an allegation of fact, it is a defence to show that the fact is true. If the statement is an expression of opinion, there is a defence to show that it is fair comment. These defences are only available if certain legal requirements are satisfied. A comment can sometimes be fair even if it is wrong.

“Although the article did not directly call the pursuer homophobic, it contained a clear innuendo that he held homophobic beliefs. Ms Dugdale accordingly publicly expressed the opinion that the pursuer was homophobic. 

“Her opinion was based on the fact that Mr Campbell had written the tweet. Her opinion was genuine and honestly held but is, in fact, not correct. The parts of the article complained about were comment or opinion, not statements of fact.”

‘Fair comment’

The sheriff considered that the comments made by the defender in the article were “not motivated by malice, but by a genuine perception that the tweet represented an insult to homosexual people, and was homophobic”.

“In writing the tweet the pursuer was not motivated by homophobic views. It does not, on a strict construction of the words used, express homophobic views. The article contains an innuendo that the pursuer is homophobic. The article is accordingly defamatory of the pursuer,” Sheriff Ross said.

However, he concluded: “Ms Dugdale’s article contained the necessary elements for a defence of fair comment. It was based on true facts; the statements complained about were comments, not facts; it concerned a matter of public interest, and the comments were fair.

“Her comments were fair, even though incorrect. Mr Campbell’s tweet contained a derogatory joke which was depended on a reference to homosexuality. The comments were fair because the content of the tweet formed a basis of fact for a rational belief that it was derogatory about homosexual people.

“Accordingly, despite Ms Dugdale incorrectly implying that Mr Campbell is homophobic, her article is protected under the principle of fair comment. She is not liable to pay damages to Mr Campbell.”

The sheriff added that had he decided the case in favour of Mr Campbell, he would have awarded damages of £100.