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Fair comment defence saved erroneous "homophobic" Dugdale libel

18 April 2019

Statements in a newspaper article that an individual posted "homophobic tweets" and "spouts hatred and homophobia towards others" were defamatory, but although the author's opinion that that individual was homophobic was incorrect, her statements were fair comment on a matter of public interest and no liability in damages resulted, a sheriff has ruled.

Sheriff Nigel Ross gave the decision at Edinburgh Sheriff Court when he assoilzied the author of the statements, former Scottish Labour leader Kezia Dugdale, in an action brought by Stuart Campbell, author of the independence-supporting "Wings over Scotland" blog.

Ms Dugdale's comments were made in response to Mr Campbell tweeting of another politician: "Oliver Mundell is the sort of public speaker that makes you wish his dad had embraced his homosexuality sooner." After proof the sheriff found that this was intended to be insulting about Oliver Mundell's speaking abilities, rather than being motivated by homophobia or containing homophobic comments. He also found that Ms Dugdale's opinion of Mr Campbell was based on the tweet; that her opinion was genuinely and honestly held but was not in fact correct; but that the parts of her article complained of were comment or opinion and not statements of fact. 

From that the sheriff concluded that the comments were fair, even though incorrect, because the content of the tweet "formed a basis of fact for a rational belief that it was derogatory about homosexual people". Mr Campbell's motivation was not relevant in assessing whether Ms Dugdale’s comments were fair. Accordingly, despite Ms Dugdale incorrectly implying that Mr Campbell was homophobic, her article was protected under the principle of fair comment. 

Sheriff Ross accepted that despite Ms Dugdale's denial that she intended to go beyond criticising the tweet itself, the test for a defamatory innuendo was what a reasonable reader would take from the article, and "In my view the reasonable reader would inevitably conclude that the meaning of the article, as a reasonable, natural or necessary interpretation of its terms, was that Mr Campbell, and not just his tweet, was homophobic."

However he did not accept an argument for Mr Campbell that the article made an allegation of fact that Mr Campbell was a homophobe, because whether someone was homophobic could only be assessed by what they said or did: witnesses had disagreed over whether the tweet was homophobic and this was a matter of opinion, not fact.

If that were wrong, on the evidence the defence of veritas had not been established.

As the statements were held to amount to comment, the question of fair comment arose. This required four elements: (i) comment, not allegations of fact; (ii) comment based on true statements of fact; (iii) matters of public interest; (iv) comments which were fair. The comment element had been found established; and it was not disputed that the case involved matters of public interest. The statements were based on true statements of fact, despite a minor inaccuracy in referring to tweets in the plural rather than singular.

Regarding fairness, a comment could be fair even though it was wrong, as long as it was a comment which could be rationally justified from the correct facts. The sheriff observed: "Mr Campbell’s view is a literal, and semantically-correct, understanding of the meaning of the words which he used. From that starting point, he discounts the validity of any other view. In my view his approach is, at best, incomplete. It does not take into account that other readers will have quite different thoughts...

"It is common sense that the analysis applied by a heterosexual (a dispassionate application of logic based on the dictionary meaning of words) may be entirely different from the analysis applied by a homosexual person (a dismayed search for justification for an unnecessary joke at the apparent expense of a homosexual man). It is not possible to dismiss the latter as less worthy, or less rational, or less fair, than the former."

Even if that was wrong, "the comment was fair because the reasonable reader was able to work out for themselves what Ms Dugdale’s reasoning was, and therefore whether it was fair".

Had damages fallen to be assessed, these would have been limited to £100. There was little evidence that Mr Campbell had suffered any loss, and no proven loss of reputation of any type. There was therefore "no basis for an award for anything other than wounded feelings".

Sheriff Ross observed: "When it comes to valuation of Mr Campbell’s distress, I do not accept that he can hold others to a higher standard of respect than he is willing himself to adopt. He has chosen insult and condemnation as his style. He has received these in return. To use Mr Dunlop’s analogy, having entered the political arena with a quiver of poisoned arrows, to receive an arrow in return might be seen as no more than collateral damage, not an unjust wound. I do not accept that he can dismiss the feelings or reputations of his opponents cheaply, but receive a high valuation of his own."

Click here to view the opinion.



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