George Islay Mcneill Robertson, Lord Robertson Of Port Ellen V. Newquest (sunday Herald) Ltd And Others
| Jurisdiction | Scotland |
| Judge | Lord Reed |
| Neutral Citation | [2006] CSOH 97 |
| Date | 28 June 2006 |
| Docket Number | A733/04 |
| Court | Court of Session |
| Published date | 28 June 2006 |
| OUTER HOUSE, COURT OF SESSION [2006] CSOH 97 | |
| A733/04 | OPINION OF LORD REED in the cause GEORGE ISLAY McNEILL ROBERTSON, LORD ROBERTSON OF PORT ELLEN Pursuer; against NEWSQUEST (SUNDAY HERALD) LTD AND OTHERS Defenders: ________________ |
Pursuer: Keen, Q.C., Henderson; Haig-Scott & Co
Defenders: Jones, Q.C., Dunlop; Balfour & Manson
28 June 2006
Introduction
[1] This action, in which the pursuer seeks damages for defamation, came before me for debate in respect of the defenders' plea to the relevancy and specification of the pursuer's averments. The debate was concerned exclusively with the question whether the words complained of were capable of bearing the defamatory meaning averred by the pursuer. It was accepted that, if that question were answered in the affirmative, issues of privilege arose which could only be resolved after proof.
The background
[2] The pursuer was a Member of Parliament between 1978 and 1999, Secretary of State for Defence from 1997 to 1999, and Secretary General of NATO from 1999 until December 2003. Since then he has been a director of various companies. The first defenders are the owner and publishers of the Sunday Herald newspaper. The second defender was at the material time the editor of the Sunday Herald. The third defender was at the material time a journalist employed on the Sunday Herald.
[3] As well as being a newspaper, the Sunday Herald also has an online edition. The website had at the material time a section in which members of the public could air their views.
[4] On 9 February 2003 a notice was posted on the website by a member of the public. On 9 July 2003 the pursuer commenced proceedings against the first defenders in which he sought damages on the basis that the notice was defamatory of him. In July 2004 the first defenders intimated a tender, in terms of which they offered to pay £25,000 plus the expenses of the action. The pursuer accepted the tender, and final decree was pronounced on 14 September 2004.
The publication
[5] In its edition of 12 September 2004, the Sunday Herald carried on one of the pages of its principal section a brief notice:
"Lord Robertson - Sunday Herald
Last week, Lord Robertson settled his defamation claim against the Sunday Herald for a post by an anonymous contributor to our online reader forum in February 2003. (Full story: Business, page seven)".
[6] A longer article (which is incorporated into the pursuer's pleadings) was printed on page 7 (the "Media" page) of the Business section of the newspaper. The article was headed by a photograph of the pursuer. Superimposed on the photograph, to the left of the pursuer, was a photograph of the masthead of the Scotsman newspaper, with a small reproduction of an article from that newspaper, bearing the headline:
"Robertson sues over Dunblane killer allegations".
The remainder of the Scotsman article, as reproduced, is illegible. To the right of the pursuer was a photograph of the masthead of the Scottish Daily Mail newspaper, with a small reproduction of an article from that newspaper, bearing the headline:
"Lord Robertson launches £200,000 action
NATO CHIEF SUES OVER DUNBLANE GUN LIES".
The remainder of the Scottish Daily Mail article is in tiny print, but the pursuer avers that the first sentence is legible and states:
"The head of Nato is suing for £200,000 damages over claims he was responsible for the Dunblane massacre."
Below the photograph of the pursuer, and the reproductions of the articles from the Scotsman and the Scottish Daily Mail, the article in the Sunday Herald was headed:
"Lessons from Robertson's victory
The £25,000 settlement of a case against the Sunday Herald by a Labour peer will inform future internet debate".
As the pursuer complains of the impression conveyed by the article as a whole, it is necessary to quote it at length:
"When Lord George Robertson accepted a £25,000 settlement over his 18‑month defamation battle with the Sunday Herald last week, it attracted predictably gleeful full-page reports in the Scottish Daily Mail and The Scotsman. The Scottish Daily Mail was particularly vitriolic. Its headline ran: 'Former Nato chief wins damages over paper's Dunblane massacre lies'.
Nothing new there, you might think. One paper settles a defamation case out of court in the most competitive newspaper market in the world, and certain sections of the media waste no time in shouting about it.
Back in March 2003, when Robertson issued proceedings against the Sunday Herald, those same two papers were the only ones to run extensive stories the next day. To explain the reasons and the background to the case the Sunday Herald places the following on record.
1. In February 2003, the Sunday Herald ran a story about the decision to apply a 100-year rule to the public release of the Dunblane massacre papers. The Sunday Herald asked readers for their views on the ruling. Readers were directed to the Sunday Herald online forums.
2. An anonymous contributor to the website posted a damaging allegation about Robertson. This was unknown to the Sunday Herald until three weeks later when, on March 4, Robertson, speaking from Nato headquarters in Brussels, contacted the Editor of the Sunday Herald, Andrew Jaspan. Robertson informed Jaspan about the 'website posting' to which another party had alerted him. He said he was furious about what was said against him and that it was very damaging. Jaspan said he would immediately investigate and they agreed that Robertson would call back later. The anonymous contribution was found, deleted and the online forums suspended within 15 minutes.
3. That evening Robertson called Jaspan at his home. Jaspan explained that the on-line editor had found the posting and acted as detailed above. Jaspan told him that he understood why Robertson would have been distressed by the story and apologised. They then went on to discuss amicably the impending war in Iraq.
4. On March 6, Robertson's lawyers, Bannatyne, Kirkwood, France (BKF), issued proceedings against the Sunday Herald and its publishers claiming damages of £200,000. The claim said the article on the 'site has a worldwide audience' and Robertson 'reasonably feared that the effect of the allegations made would diminish his chances of obtaining a suitable position following his standing down from his Nato post at the end of 2003'.
5. Simultaneously, the Scottish Daily Mail and The Scotsman, both legalled by BKF, the same firm that advised Robertson, carried front page and full-page stories on July 12 with full details of the case against the Sunday Herald. The papers said the £200,000 claim for damages by Robertson would be the biggest in Scottish legal history and The Scotsman crowed it might 'even force the Sunday Herald out of business'.
6. The Sunday Herald established that there were only 37 'hits' on that part of the website and along with its legal advisers and then publishers, SMG, a decision was made to contest the landmark case.
7. SMG sold the Sunday Herald to Newsquest in April 2003. Both parties agreed to continue with the defence of the action, given its landmark legal importance, but to put a ceiling on escalating legal costs a decision was taken to make a 'tender' payment into court of £25,000 two months ago.
8. The Sunday Herald's legal advisers were stunned to find that Robertson accepted the sum last Wednesday having initially claimed £200,000 damages.
9. On Thursday, the Scottish Daily Mail and Scotsman ran their gleeful reports that Robertson had won his defamation action against the Sunday Herald. The Daily Mail claimed an article in the newspaper defamed Robertson. Wrong again. It was an anonymous posting on the website.
Had the case continued it would have been the first time a Scottish court had ruled on whether an anonymous contribution to a website was grounds for defamation against the newspaper.
To avoid liability, the Sunday Herald would have argued the defence of innocent dissemination, which means the paper did not know it was circulating a defamatory statement.
The Defamation Act 1996 says the Sunday Herald would have had to establish: that it was not the publisher of the comments, and it must not have known or had reason to know there was a defamatory statement on the website.
To be able to argue you are not the publisher, the law seems to say that you must not take any editorial control over what is being posted. David Flint, a media law specialist at MacRoberts, says: 'With clients, I tell them you are better to not monitor the site than to monitor it, because if you monitor it, you are going to have a liability.'
This is supported, for example, by the English case of Godfrey v Demon Internet in 2001. The provider (Demon Internet) being sued did not regularly police what went on the site, and the judge held that it was not a publisher in terms of the Defamation Act (which equally applies in England).
'I think the ISP [internet service provider] probably has a defence of innocent dissemination until such time as it is told something is wrong,' says Flint.
Other companies seem to follow the same, looser approach as the Sunday Herald. BBC Scotland dropped most pre-monitoring on its message boards and chat rooms as usage grew, and now only responds to warnings from users.
The Guardian does not pre-monitor either. 'We stick rigorously to the policy, and if there are any complaints we act on them immediately,' a spokeswoman says.
Peter Watson, legal adviser to the Sunday Herald, said: 'Reader forums play an important new role in the democratic process. It encourages readers and the general public to take part, and become involved, in important debates.
'Newspapers are in a difficult position as things stand at present as to whether they should or should not monitor the contributions to their forums. The Sunday Herald became the victim of an anonymous contribution which they knew nothing about at the time it was made,...
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