With the nation in the grips of election fever, you would perhaps be forgiven for missing the recent clash between the SNP and the Liberal Democrats over election leaflets – the latest in a series of political defamation disputes which have been aired in Scotland recently. On Tuesday this week, Jo Swinson was successful in her application for an interim interdict (the Scottish equivalent of an interim injunction) preventing the SNP from circulating election pamphlets containing allegedly defamatory statements concerning her position on fracking.

Handing down his judgment in the Court of Session, Lord Pentland held that the Royal Mail was not permitted to circulate copies of the leaflet in East Dunbartonshire, the seat that Swinson is currently defending.  According to Ms Swinson, the leaflets made significant accusations that she had accepted a £14,000 donation by a fracking company and that her current position on fracking was therefore hypocritical. Roddy Dunlop QC, acting for Ms Swinson, argued that a director of a renewable energy company that holds licenses for fracking had made the donation in a personal capacity. Lord Pentland agreed, stating that:

The statement of which the petitioner claims of is on the information which has been put before the court this evening false in substance and materially inaccurate. In my view, the petitioner has shown she has a prima facie case that the statement is defamatory.

The leaflets were due to be put into circulation by the end of the week, just a few days shy of the deadline for postal votes.

“Utterly false and highly damaging”

Political defamation is currently a hot topic north of the border and, with every politician armed with a mobile phone and a Twitter account, this trend is perhaps unsurprising. In June of this year, SNP MEP Alyn Smith found himself in hot water when he described the Brexit Party as “shysters” and a “money laundering front” on national television. Brexit Party chairman Richard Tice immediately demanded that Mr Smith retract the comments, which were made during a live interview on Sky News.  Mr Tice also gave the MEP a clear ultimatum: that unless he apologised by 12pm the next day, the Brexit Party would commence proceedings against him.

A letter from Mr Tice’s lawyers soon followed, with Mr Smith’s remarks being described as “utterly false and highly damaging”. The letter continued, “Any viewer who was aware that Mr Tice was the chairman of the Brexit party would conclude that you were alleging that Mr Tice is himself running a money-laundering operation.”

The MEP initially issued a robust response, pointing to a 1998 decision of the High Court in which it was held that political parties could not bring defamation actions.  According to that decision, those holding office must remain open to criticism; although this would not prevent Mr Tice from raising an action in a personal capacity. However, following a further exchange of letters, Mr Smith issued an “unreserved apology” over the allegations.

Fair and square?

Engaging directly with politicians on an online platform has also created new challenges for the law in this area.  Back in April, Kezia Dugdale, former leader of the Scottish Labour Party, was successful in her defence of a defamation action raised by Wings Over Scotland blogger Stuart Campbell.  Ms Dugdale had commented on a particularly scathing Tweet posted by Mr Campbell and had used phrases such as “homophobic tweets”.  She also described Mr Campbell as “someone who spouts hated and homophobia towards others”.  In that case, the court found that Ms Dugdale’s reaction to the Tweet was defamatory but as it was informed by her own experiences of prejudice as a gay woman it amounted to fair comment. You can read more about that decision here.

Politicians can also find themselves on the receiving end of defamatory statements.  Last year, we acted for Ms Julie McAnulty, a former SNP councillor, in a defamation action which proceeded in the Court of Session against Ms Sheena McCulloch, an employee of the SNP.  The action concerned allegations by Ms McCulloch that racist statements were made by Ms McAnulty in the course of an SNP election campaign.  Ms McCulloch’s allegations were leaked to the Daily Record, which published extracts on their website and Twitter feed on the same date on which Ms McAnulty was suspended from the SNP.  Following a five-day proof, with evidence led from 14 witnesses, the court found in Ms McAnulty’s favour, concluding that the allegations made by Ms McCulloch were not only false but activated by malice and ill-will as part of a campaign directed against Ms McAnulty by the opposing faction within the local SNP.  The court’s decision, which can be found here, was upheld on appeal to the Inner House.

What next for Scots defamation law?

These cases come at a time when the law of defamation in Scotland is under review – the first review of its kind in over twenty years.  The move reflects a public campaign to bring Scottish defamation law in line with the digital age and to curb the flow of false information spread via social media.

Following hot on the heels of the Scottish Government’s consultation on defamation law, the Defamation & Malicious Publications (Scotland) Bill was included in the Scottish Government’s new Programme for Government in September 2019.  If enacted, the legislation will bring Scots defamation law far more in line with the position in England and Wales, including the introduction of a threshold test of “serious harm” for defamation claims.

Whether the advent of a serious harm test will reduce the number of defamation actions coming to court in Scotland remains to be seen.  For now, however, the message is clear: Scotland is a fertile ground for claims involving politicians and political parties.