Wings Over Scotland blogger loses defamation appeal against former Scottish Labour leader

A blogger who sued the former leader of the Scottish Labour Party for defamation for calling him “homophobic” in response to a tweet he had made about a Scottish Conservative Party MSP has had his appeal refused.

Stuart Campbell, who has run the Wings Over Scotland blog since 2011, challenged an interlocutor of the sheriff that assoilzied Kezia Dugdale in his action of defamation.

The appeal was heard in the Inner House of the Court of Session by the Lord President, Lord Carloway, sitting with Lord Menzies and Lord Brodie.

Rational, if incorrect

The alleged defamatory comment was made in response to a tweet from the pursuer made during the 2017 Scottish Conservative & Unionist Party Conference in which he said that Oliver Mundell MSP, the son of the then-Scottish Secretary David Mundell MP, was “the sort of public speaker that makes you wish his dad had embraced his homosexuality sooner”.

In her weekly column in the Daily Record, the defender referred to these comments as “homophobic” and implied that David Mundell was facing abuse for his homosexuality. The article was accompanied by a photograph of the two Mundells with the caption “ABUSED”, and stated that the pursuer had “spouted hatred and homophobia towards others”.

The pursuer raised an action in the Sheriff Court for defamation. He argued that the sole purpose of the tweet was to ridicule Oliver Mundell and denigrate his public speaking skills, and that no reasonable person would find it to be homophobic.

The sheriff found that, while the meaning of the article was that the pursuer was homophobic and he was not, the defender’s article was fair comment. He found that the defender’s interpretation of the tweet was rational, if incorrect, and could be justified from the underlying facts. The reasonable reader would be able to work out what the defender’s reasoning had been and, therefore, whether it was fair.

Further, the sheriff found that the pursuer had suffered no quantifiable loss as a result of the defender’s comments. The pursuer was not entitled to hold others to a higher standard of respect than he was willing to adopt himself. He had chosen insult and condemnation as his style, and had received these in return after “entering the political arena with a quiver of poisoned arrows”.

On appeal, the pursuer argued that the defence of fair comment was only available where there was an opinion based on true facts. This was not made out in this case for three reasons. Firstly, the defender’s article was made up of statements of fact, not comment, as comment had to be clearly identified as such. The article’s primary premise was the assumed fact that the pursuer was an abusive homophobe. The words would not strike the ordinary, reasonable reader as setting forth merely the defender’s opinion of the pursuer’s character.

Secondly, if the defamatory statements were comment, there were no sufficient and accurate facts upon which it was based. The article contained a number of factual errors such as referring to “tweets” in the plural and stating that he had “spouted homophobia”. The statement that there had been more than one homophobic tweet was not, as the sheriff had found, a minor inaccuracy.

Thirdly, the comment was not “fair”. There needed to be an objective assessment of how reasonable the defender’s views were and whether she had any basis upon which she could go beyond the tweet to describe the pursuer as homophobic. Regardless of his writing style, the accusation of homophobia was a serious imputation on character, and a reasonable sum of damages was therefore justifiable.

Context of opinion

The opinion of the court was delivered by Lord Carloway. Having reasserted the sheriff’s view that the article was defamatory he went on to consider whether it was fact or comment, saying: “The defender’s article is at the top of a page which is dedicated to the defender’s views on political and other topics. It is not part of a news reporting section. It is accompanied by pieces on female equality, trades unions in supermarkets, the Conservatives’ austerity programme and the fortunes of Hibernian FC. The context points towards the piece being one of opinion rather than fact.”

On the errors in the article, he said: “There is undoubtedly an error in the defender’s statement of her factual basis in its reference to tweets (plural). Although the prospect of a reader checking Twitter to ascertain whether there was more than one tweet is an unlikely one, in its context, this error is of no materiality. The relevant facts, which were true, were that a tweet had been sent. It had been sent by the pursuer. It contained material which was critical of David and/or Oliver Mundell.”

On whether the comment was fair, he said: “This, once more, is to be approached as a jury question. It is not simply one of whether the defender genuinely held the view that, given the terms of the tweet, the pursuer was homophobic and abusive. There is an objective element of whether a reasonable person could reach that, albeit erroneous, view.”

He continued: “The court agrees with the sheriff’s conclusion that this was indeed fair comment. The pursuer’s tweet was a derogatory remark containing a gratuitous reference to Oliver Mundell’s father’s homosexuality. The defender’s comments may have been expressed in strong, if not inflammatory, language. The fact that they are in ‘vituperative or contumelious language’ does not avoid the defence.”

Regarding the extent of damages if the pursuer had succeeded, he added: “The sheriff was right to regard an accusation of homophobia as a serious one in contemporary society. The article was published in a national newspaper with a substantial circulation. The sheriff appears to have accepted that the pursuer was a man of principle, who was genuinely offended by the article and regarded it as unpleasant to be referred to in this manner.”

He concluded: “Although there are examples of parsimony in judicial awards in such circumstances, the correct approach is to make an award of some substance, even when there has been no serious impact on a person’s reputation. The impact of a defamatory statement on a person’s feelings should not be underestimated. Had the court found in favour of the pursuer, it would not have considered a nominal award to be appropriate. It would instead have awarded £5,000 as solatium to represent the pursuer’s injured or hurt feelings.”

For these reasons, the appeal was refused.