Pro-independence blogger granted full hearing in £25,000 defamation claim against Labour MSP

Sheriff Court
Sheriff Court
A pro-independence blogger who alleged that the former leader of the Scottish Labour Party defamed him in a newspaper article by labelling a social media comment he published online as “homophobic” has been granted a full hearing of his claim.
Stuart Campbell, publisher of the Wings Over Scotland blog, sued Kezia Dugdale for £25,000 damages for defamation after she wrote a column expressing her shock and anger at a comment he posted via his Twitter account, in which he criticised another politician’s public speaking by referencing the politician’s father’s homosexuality.
The defender lodged a defence of “fair and honest comment” in seeking to have the action dismissed, but a sheriff ruled that the words used in the article “may carry the defamatory meaning complained of” by the pursuer, meaning he was entitled to a full evidential hearing.
‘Homophobic tweet’
Sheriff Kenneth McGowan heard that during the Conservative Party conference on 3 March 2017, the pursuer posted the following tweet: “Oliver Mundell is the sort of public speaker that makes you wish his dad had embraced his homosexuality sooner”. 
In her weekly opinion column in the Daily Record, which was published on 7 March 2017, the defender wrote an article headed “Twitter tirade highlights divisions”, in which she said she was “shocked and appalled to see a pro-independence blogger’s homophobic tweets during the Tory conference”, and that such comments were “not unique” to the man behind Wings Over Scotland.
The article went on to state that the defender found it “depressing and disheartening” that some SNP politicians promoted the pursuer’s work, adding that “No elected member of any party should be endorsing someone who spouts hatred and homophobia towards others”.
The defender lodged a motion for dismissal of the action, arguing that the article complained of constituted “fair/honest comment on a matter of public interest”, which was published in direct response to the comment in the pursuer’s tweet.
The article contained no statement or imputation that the pursuer was a “homophobe”, but criticised the pursuer for giving voice to “homophobic sentiments”.
‘Fair and honest comment’
The description of the tweet as “homophobic” represented the “fair and honest comment” and the “honest belief” of the defender, which she was entitled to hold and express in the context of a “political debate” on a question of public interest.
The defender relied upon her right to freedom of expression under article 10 of the European Convention on Human Rights (ECHR), which included the right to hold opinions and to receive and impart information and ideas without interference by public authority, in arguing that the present claim “interfered” with her rights.
It was submitted that the Scots law of defamation had to be understood against the background of, and applied by the courts consistently with, the relevant Convention rights and ECHR principle, and that the court would be “acting unlawfully” in allowing the matter to proceed unless it was satisfied that the damages action was in fact aimed at a legitimate end of the protection of the pursuer’s reputation or other rights.   
In order to succeed in a motion for dismissal at this stage, the defender needed to show that the pursuer’s case was “bound to fail”. 
However, on behalf of the pursuer it was argued that the defender’s submissions “missed the point”.
‘Defamatory innuendo’
The defender’s argument was predicated on the supposition that what the pursuer complained of is the description to him of homophobic sentiments, but the pursuer’s case was that the defender’s article suggested that he was a “homophobe”.
The action could only be dismissed if the court was convinced that the defender’s article as a whole was not capable of bearing defamatory meaning.
The crucial issue for present purposes was the single question as to whether the article contained “defamatory innuendo”.
The pursuer’s case was that the words used gave rise to an innuendo that he was homophobic, hence, that was “an assertion of a matter of fact, not opinion”.
Allowing a proof before answer, the sheriff concluded that the “tone, content and vocabulary used” in the defender’s article was “capable of carrying the innuendo complained of by the pursuer”.  
Article ‘may’ carry defamatory meaning
In a written judgment, Sheriff McGowan said: “The first paragraph references ‘homophobic tweets’. But further on in the article the word ‘discrimination’ is used; and it is said that it is ‘… unacceptable for someone to face abuse because of their sexuality, or indeed race or religion.’
“Further on in the article it is said that ‘No elected member of any party should be endorsing someone who spouts hatred and homophobia towards others’. 
“Taking all of that together and making allowances for the context of publication (including the pursuer’s tweet) I think that as a matter of law, the innuendo is one which the words used may reasonably bear.  
“So to emphasise what I am deciding here, I am not saying that the defender defamed the pursuer. I am simply saying that as a matter of law, the words used may carry the defamatory meaning complained of by the pursuer. 
“Accordingly, on this issue the pursuer is entitled to an evidential hearing to establish the facts. It will be a matter for whoever hears the evidence to determine whether the words used did as a matter of fact bear that defamatory meaning, taking account of the circumstances and the other lines of defence taken.”

© Scottish Legal News Ltd 2020

Other judgments by Sheriff Kenneth McGowan