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Fair and square?

Fair and square?

The recent decision in Campbell v Dugdale has shown that, in defamation cases, fair comment does not always mean accurate comment.

Kezia Dugdale, former leader of the Scottish Labour Party, succeeded in her defence of a defamation action raised by the prominent “Wings Over Scotland” blogger Stuart Campbell.  The much publicised case concerned an article that appeared in Ms Dugdale’s Daily Record column in March last year in which Ms Dugdale commented on the following tweet by Mr Campbell:

Oliver Mundell is the sort of public speaker that makes you wish his dad had embraced his homosexuality sooner.” 

According to Mr Campbell, the tweet was intended as a jibe about Oliver Mundell’s apparently modest public speaking abilities.  Addressing the tweet in her column, however, Ms Dugdale took a dim view of the motive behind Mr Campbell’s comments – using phrases such as “homophobic tweets” and describing Mr Campbell as “someone who spouts hatred and homophobia towards others”.  Mr Campbell denied that his tweet was homophobic, insisting that it was “satirical criticism of Oliver Mundell’s public speaking skills”.  Although the blogger was happy to be seen as offensive, he denied being homophobic; and proceedings were soon raised against Ms Dugdale for defamation.

What did the court decide?

The first question that faced the court was whether the article contained defamatory statements about Mr Campbell’s character.  The court concluded that it did.  Sheriff N.A. Ross found that the comments were intended as an insulting jibe about Oliver Mundell.  The tweet was not motivated by fear, hatred or dislike of homosexuals, nor did it express such fear, hatred or dislike.  Accordingly the court found that Mr Campbell was not homophobic.

However, despite the defamatory nature of the comments Sheriff Ross found that there was no liability on the part of Ms Dugdale to compensate Mr Campbell as her comments were protected by the defence of fair comment.  Fair comment arises where there is a genuinely held expression of opinion based on a set of facts.  And in Sheriff Ross’ words: 

A comment can sometimes be fair even if it is wrong”.

To some, including Mr Campbell it would seem, the idea that a comment can be fair when it is wrong does not sit well.  However when it comes to defamatory comments, determining what is “fair” poses difficult questions, and the court is less concerned with what might be seen as an objective right or wrong.  When evaluating Ms Dugdale’s reaction to the tweet, the court found that the politician’s comments were informed by her own experiences of the prejudice she faced as a gay woman and that, as a gay woman, she was entitled to say that she recognised what homophobia was.  It was clear to the court that Ms Dugdale could not accept the tweet as a joke if the “joke” was at the expense of gay people.

In finding that the comments made in Ms Dugdale’s article amounted to fair comment, Sheriff Ross clarified that what is “rational” will vary from person to person.  Depending on the circumstances, it might be possible to justify different (and conflicting) views arising from the same facts. 

It was argued on behalf of Mr Campbell that words have defined meanings and that a person would either have to be stupid or dishonest to interpret his tweet as showing homophobia.  However, this “literal and semantically-correct” meaning of the words he used was considered by the court to be at best incomplete.  In particular, Sheriff Ross found that “readers of his tweet will differ not only by intellectual abilities or integrity, but also in life experience, education, empathy, philosophy and attention to detail.” 

Each of these factors could influence how the tweet was read.  It is common sense, the court found, that the analysis applied by a heterosexual may be entirely different from the analysis applied by a homosexual person.

This decision clearly sets out that statements of opinion cannot be analysed in a vacuum.  A subjective, rational and honest reading of that tweet could give rise to a number of subjective, rational and honest public comments.  The fact that two people with different backgrounds and life experiences would perceive that tweet in a different way does not mean that one reading is less valid than the other.

This case once again underlines the important distinction between statements of fact and expressions of opinion and re-affirms the importance attached to freedom of expression when it comes to an honestly held opinion.

By Kirsteen MacDonald

Burness admin