Campbell v Dugdale
| Jurisdiction | Scotland |
| Judgment Date | 27 May 2020 |
| Neutral Citation | [2020] CSIH 27 |
| Docket Number | No 29 |
| Date | 27 May 2020 |
| Court | Court of Session (Inner House) |
[2020] CSIH 27
First Division
Sheriff Court
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Defamation — Fair comment — Whether newspaper article containing comment or assertion of fact — Whether containing sufficient reference to facts which were true and upon which comment could be based — Whether comment fair
Defamation — Damages — Impact of defamatory statement on pursuer's feelings — Whether award of nominal damages sufficient
Stuart Campbell brought an action at the sheriff court in Edinburgh against Kezia Dugdale, seeking damages for defamation. The cause called before the sheriff (KJ McGowan) for a debate. By interlocutor, dated 17 August 2018, the sheriff allowed parties a proof before answer of their averments ([2018] SC EDIN 49; 2019 SLT (Sh Ct) 89). On 16 April 2019, after proof, the sheriff (NA Ross) assoilzied the defender ([2019] SC EDIN 32; 2019 SLT (Sh Ct) 141). The pursuer appealed. The appeal was remitted to the Court of Session.
The pursuer operated a political blog and related social media account. On 3 March 2017, during the Scottish Conservative and Unionist Party conference, he messaged that “Oliver Mundell is the sort of public speaker that makes you wish his dad had embraced his homosexuality sooner”. Oliver Mundell's father was homosexual. The defender was the leader of the Scottish Labour Party and wrote a weekly page in a newspaper. On 7 March, the defender, in her page in the newspaper, wrote an article which made reference to the pursuer's “homophobic tweets” and stated that the pursuer had “spouted hatred and homophobia towards others”.
The pursuer brought an action against the defender for defamation. Following a proof, the sheriff found that the defender's article was defamatory as bearing the meaning that the pursuer was homophobic. The sheriff, however, found that the article was fair comment and assoilzied the defender. Had the sheriff found in favour of the pursuer, he would have quantified the pursuer's loss at £100, as the pursuer had suffered no quantifiable financial or other loss and there was no evidence of lost influence, reputation or credibility. The pursuer appealed.
The pursuer contended that: (i) the defender's statements were of fact, and were not comment; (ii) if the defender's statements were comment, there were no sufficient and accurate facts upon which they were based, with the reasons for them not clearly stated; (iii) the comment was not fair; and (iv) damages ought not to have been restricted to £100.
Held that: (1) the distinction between fact and comment was that of how it would reasonably strike the ordinary, reasonable reader, having regard to whether what was said to be comment was readily identifiable as such, and the visual and textual context in which the statement appeared. By that standard, the statement had been correctly identified as comment (paras 36–39); (2) the facts from which the comment had been drawn were adequately set out, with the terms of the defender's article coupled with the material available in the public domain being sufficient to draw the reader's attention to the existence of the social media messages (para 40); (3) the question of whether a comment was a fair inference from true facts was a matter of common sense which was to be approached as a jury question, with the objective element of whether a reasonable person could have reached that view. By that standard, the defender's comment had been fair (paras 43, 44); and appeal refused.
Observed that, had the defender failed to establish that the defamatory comments had been fair, a significant award of damages would have been reasonable having regard to previous judicial awards, the seriousness of the allegation, the circulation of the newspaper in which the statement was published and the impact on the pursuer's feelings, with an award of £5,000 appropriate in the circumstances (paras 46, 47).
The cause called before the First Division, comprising the Lord President (Carloway), Lord Menzies and Lord Brodie, for a hearing on the summar roll, on 21 April 2020.
At advising, on 27 May 2020, the opinion of the Court was delivered by the Lord President (Carloway)—
Opinion of the Court—
[1] The pursuer challenges the sheriff's interlocutor of 16 April 2019, which assoilzies the defender in the pursuer's action of defamation. The sheriff held that the defender's article in the Daily Record newspaper was defamatory in that it contained an innuendo that the pursuer was homophobic. However, he went on to determine that the defender had established the defence of fair comment.
[2] The issues are, first, whether the statement in the article was a comment or an assertion of fact. Only if it were comment might the defence of fair comment apply. Secondly, if it was a comment, was there sufficient reference to facts which were true and upon which the comment could be based? Thirdly, was the comment fair? The pursuer also takes issue with the sheriff's assessment of damages at £100.
[3] The pursuer has operated a blog called Wings Over Scotland since 2011. He had a related social media (Twitter) account. The blog had around 200,000 to 300,000 views per month. The Twitter feed had 60,000 followers. The pursuer's style can be rude, especially about unionist politicians, including the defender. The pursuer had previously described the defender as a serial liar.
[4] At the material time, the defender was a Member of the Scottish Parliament. She was the leader of the Scottish Labour Party. She wrote a weekly column, or rather page, for the Daily Record newspaper. This would refer to a variety of topical subjects.
[5] On 3 March 2017, during a conference of the Scottish Conservative and Unionist Party, which he attended, the pursuer ‘tweeted’ as follows:
‘Oliver Mundell is the sort of public speaker that makes you wish his dad had embraced his homosexuality sooner’.
Oliver Mundell was, and remains, a Conservative MSP. His father, David Mundell, is a Conservative MP. He was the Secretary of State for Scotland at the material time. On 13 January 2016, around 14 months prior to the pursuer's ‘tweet’, David Mundell had stated that he was ‘coming out publicly as gay’. His sexuality was public knowledge. He was reported in the press as commenting that the pursuer's tweet was homophobic.
[6] The defender's page in the Daily Record of 7 March 2017 referred to a number of matters. There was a central piece on what the defender described as the Conservative Government's austerity agenda. This was inset with the defender's view of the Scottish Football Association Challenge Cup draw. A side column dealt with gender balance in the Scottish Parliament. Below that was a short item on the lack of trade union involvement in certain supermarkets. At the top of the page there was a headline which stated: ‘Twitter tirade highlights divisions’. The article to which it related read as follows:
‘I was shocked and appalled to see a pro-independence blogger's homophobic tweets during the Tory conference.
Abuse and discrimination should have no part in our politics.
But the Twitter tirade against David Mundell and his son Oliver is sadly symptomatic of our divided politics.
People are welcome to disagree and challenge – indeed, it is healthy that we do so.
But it is utterly unacceptable for someone to face...
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