Company’s £750,000 defamation action against MSP dismissed  

Wildcat Haven Enterprises claimed that Andy Wightman damaged its reputation in statements published on his internet blog and social media, but a judge in the Court of Session ruled that the comments were not defamatory.

‘Souvenir plots’

Lord Clark heard that the pursuer, which was represented in court by its director Paul O’Donoghue, alleged that it suffered “loss and damage” as a result of the defender publishing “defamatory” material in two blogs on his website ‘Land Matters…the blog and website of Andy Wightman’ and on Twitter and Facebook.

The pursuer, a fundraising vehicle for a community interest company which aims to establish a “haven” for the conservation of Scottish wildcats, raises funds by selling one-square foot plots in “Wildernesse Wood”, an area of land above Loch Loyne on the A87 between Invergarry and Glen Cluanie.

The 75-hectare area of land was owned by a Channel Islands-registered company called Highland Titles Limited, which also sold souvenir plots and “gifted” part of the land to Wildcat Haven.

In his first blog published on 28 September 2015, the Green MSP and land reform campaigner mentioned the relationship between the companies and claimed that Wildcat Haven had adopted Highland Titles’ “dubious methods” of selling small souvenir plots of land and claiming that the purchaser became the owner.

The blog also quoted a letter to the Daily Record by law professor Malcolm Combe explaining the legal position in relation to ownership of such small parcels of land, which made clear that the buyer does not become owner as souvenir plots cannot be registered in the Land Register of Scotland.

An update to the blog published two days later included a response from the pursuer which stated that the sale of souvenir plots was “a bit of fun” and that the “FAQs” on the Wildcat Haven website outlined that registration of souvenir plots was “legally impossible”.

In a second blog published on 24 February 2016 the defender referred to the sale of souvenir plots and the controversy generated by the issue, and named an individual who was said to be a director of both Wildcat Haven and Highland Titles.

The blog described the latter’s financial affairs as being “opaque” and it being registered in “a secrecy jurisdiction” and suggesting that the Highland Titles Charitable Trust was the designated body to become the potential recipient of assets from the pursuer.

The purser also claimed that after the publication of the first blog, the defender posted a number of tweets on his Twitter account in which the MSP was he was “falsely accusing” the pursuer of “funnelling” the proceeds of sale of souvenir plots into “tax havens”. 

Further tweets posted by the defender between 16 November 2012 and 3 May 2017 refer to “Highland Titles” operating, a “scam”, which were also alleged to be defamatory of the pursuer.

The pursuer further claimed that a Facebook post by the defender dated 25 February 2016, which contained a link to the second blog, contained a defamatory statement that Wildcat Haven, and by “innuendo” the pursuer, had been “dumped” by its bankers and corporate service providers.

‘Defamatory material’

The pursuer raised an action for £750,000 damages, claiming position was that the offer for sale of souvenir plots of land made on its website did not represent that persons who bought these plots would obtain a real right to the land. 

The sales were a “marketing device” which enables supporters of Wildcat Haven to donate funds in a “novel, imaginative and light-hearted way”, which commonplace for charitable causes. 

The pursuer’s website stated that members of the public were being asked to help the pursuer by actually buying part of the land that Wildcat Haven planned to conserve, adding that “It’s a bit of fun, being Laird of an estate, even if the estate is only a square foot of land”.

It was submitted that the that the defamatory material centred on the activities of the pursuer and not simply on the practice of selling souvenir plots. 

The material inaccuracies in the defender’s defamatory statements were said to be that the proceeds of sale of souvenir plots sold by the pursuer were not being used to fund wildlife conservation but were being paid to HTL and were being “diverted into an offshore tax haven away from public scrutiny”.

However, the defender’s position was that the words used in the various material that was published were not capable of bearing, and in any event did not in fact bear, the defamatory meanings complained of by the pursuer. 

The defender maintained that the facts upon which the comments were based were both “accurately stated and sufficiently referenced”.

The trade in souvenir plots was said to be a matter of public interest and concern and the defender’s blogs represented his “honest comment on matters of public interest”, conveying opinions honestly held by him.

In any event, it was argued that the blogs were published on an occasion of “privilege” and fell within the “Reynolds defence” of privilege, derived from Reynolds v Times Newspapers Ltd and Ors [2001] AC 127.  

The defender also denied causing any loss relating to the volume of sales of souvenir plots.  

‘Fair comment’ 

The judge held that while the defender had made untrue statements in his blog posts, the defamation claims made by the pursuer failed because the meanings alleged were not made out, or available defences applied.

In a written opinion, Lord Clark said: “Words are defamatory when they cause harm to reputation… The court should focus on how the ordinary reasonable reader would construe the words, being particularly conscious of the context in which the statement was made.

“The court should keep in mind the way in which such postings and tweets are made and read. It would be wrong to engage in elaborate analysis of a statement made on social media, or to parse it for its theoretically or logically deducible meaning: rather, the search for the single meaning should reflect the fact that social media is a casual medium that is in the nature of conversation rather than carefully chosen expression and is pre-eminently a medium in which the reader reads and then moves on.

“In light of the points made in the case law, where the pursuer submits that more than one publication is to be taken into account to found the defamatory imputation, I conclude that the test to be applied is whether, having regard to all of the circumstances, it is to be inferred that hypothetical ordinary reasonable reader of the material complained of will also have read, or have in mind, the other material which is relied upon as context.

“Applying the relevant principles and viewing the words in the context of the relevant publications as a whole, the pursuer is correct as to the meaning which the words would have conveyed to the ordinary reasonable reader… I accordingly conclude that the relevant publications had that defamatory meaning, which is sufficiently close to the pursuer’s averred meaning.”

However, he concluded: “The result of this reasoning is that a number of the defamatory imputations founded upon by the pursuer are not the meanings which the ordinary reasonable reader would have taken from the relevant material and so those claims cannot succeed.  Some of the defamatory imputations alleged by the pursuer are made out as meeting that test, but in relation to those imputations defences raised by the defender are established and so these claims must also fail. 

“In the various publications founded upon, the defender made four untrue statements… However, the fact that the defender has made certain statements which are untrue does not itself mean that the defamatory allegations complained of by the pursuer were made. For the defence of fair comment to be available, it is not necessary that every fact founded upon is true. 

“Moreover, to the extent it may apply as noted above, the defence of veritas is founded upon statements being substantially true.  The fact that there are these untrue statements made within the material complained of does not alter my views as to defamatory meanings and the available defences.”

The judge also held that the pursuer failed to prove any loss, but held that, if his earlier conclusions were incorrect, the defence of Reynolds privilege would not have been made out.