Interim orders granted against Stornoway blogger in ongoing defamation action by British Gas

The Outer House of the Court of Session has granted interim orders in an action for defamation brought by an energy company against a blogger from Stornoway that require him to remove certain blog posts as well as restricting the content of future posts.

British Gas Trading Ltd and its parent company Centrica Plc brought the action against Derek McPherson in relation to a blog he started on 2 May 2020 entitled “British Gas: A Lawless Private Company?”.

The case was heard by Lady Poole – in her first opinion.

Innuendo of fraud and theft

The first post made by the defender announced that it would be followed by 13 weekly “episodes”, the first of which had already been published. The content of future posts was outlined in brief in the first post. The defender argued that he was entitled to publish the posts by virtue of his right to free expression and the defence of truth.

The blog asserted that British Gas had been engaging in unlawful business practices and “provided blatantly false and dishonest information in clear violation of anti-fraud legislation throughout the UK”. It also alleged that it had hired “corrupt” solicitors to help cover up these practices.

The pursuers submitted that the posts contained clear innuendo that they had been engaging in fraud and theft, and that references to these practices being known to the “highest levels” of the company encompassed the parent company Centrica.

In advance of a final outcome, the pursuers sought interim interdict to prevent the publication of further blog posts in the manner outlined in the pursuer’s initial post.

In her opinion, Lady Poole said: “This language, with which the existing blog is peppered, bears a defamatory meaning when objectively read. I accept the submission of the pursuer that the blog posts bear the innuendo set out in Article 14 of condescendence. The blog posts contain clear innuendo that the first pursuer: has been committing fraud and theft, which are criminal offences; is involved in a criminal conspiracy; and operates unlawful business practices.”

On the defences raised by the defender, she said: ”It is one thing to say, as the pursuers accept: that one of their employees said that a particular tariff was not available in Stornoway, and that the answer was not correct; or that their solicitor wrote to the court to ask for a witness to be excused, describing her as a ‘junior customer services manager’ within the second pursuer, although her formal job title was ‘Senior Customer Manager’; or that the pursuers declined to respond to a request from the defender’s MP about that witness’s position saying “As your letter raises issues which are currently connected to live Court proceedings I am afraid that we are not in a position to respond”.

She continued: “It is quite another to make serious allegations that the pursuers have committed theft or fraud, criminal conspiracy, were blatantly or purposefully dishonest, or that they have unlawful business practices, or that their solicitor is corrupt and a pathological liar, as the defender has done in submissions and correspondence before the court.”

She concluded: “I have had particular regard to the importance of the Convention right to freedom of expression, but I consider that if I grant interdict the pursuer is not prohibited from publishing at all. He is entitled to publish matters which are true, and express fair comment on them. What he is not entitled to do is publish in the unrestrained way he has favoured so far, and which defames the pursuers in the way set out in the interlocutor.”

For these reasons, interim interdict was granted preventing the defender from publishing episodes 2 to 12 in the form indicated in their already given summaries. Lady Poole said of what he was still allowed to do: “It would not be appropriate to prevent the defender from saying anything at all about the events which have passed between him and the pursuers, because of this right. There is nothing to prevent him publishing full copies of correspondence previously sent to him by the pursuers. He is entitled to say things that are true, and make fair comment (as legally defined) on them.”

Further interim orders

Following the grant of interim interdict, the defender published three further blog posts: one entitled “Court Decision” as well as the second and third episodes. The pursuers sought an interim order for removal of these new posts as well as the original posts.

In a further note, Lady Poole said: “I consider the initial blog posts contain matters which are defamatory, and that any defence of veritas or fair comment is likely to fail. In my opinion the pursuers would be likely to succeed after proof in their conclusion for an order of specific implement for the initial blog posts to be removed. “

She continued: “There is prejudice to the reputation and business interests of the pursuers if the initial blog posts are not removed. Damages, while not impossible, would be difficult to quantify. The defender remains able to publish within the constraints set by the law of defamation and the interim interdict already granted. The blog is not a commercial operation, the defender complains of historic events, and if he is vindicated after proof will be able to re-post the initial blog posts then. Having weighed these factors, I find that the balance of convenience favours grant of the interim order for removal of the initial blog posts.”

After noting that there were some passages in the new posts that might be considered defamatory, Lady Poole said: “I have already noted the difference in character between the initial blog posts and new blog posts. There is extensive other text in the new blog posts which, in my opinion, and without prejudice to whatever may be decided by a judge after proof, is unlikely to be found to be unjustifiably defamatory. A significant proportion of the text is original correspondence, followed by comment on this correspondence.”

She refused to grant an order for the removal of these posts, saying: “What tipped the balance the other way in respect of the new blog posts was that I did not find the pursuers’ case to be as strong as for the initial blog posts, for reasons set out above. I also considered that references back to the initial blog posts in the new blog posts would have their potency reduced, because of the interim order for removal of initial blog posts. This lessened the potential prejudice to the pursuers.”

For these reasons, an interim order was granted to remove the original blog posts, in addition to the previous interdict restricting what the defender could say in future posts.

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