The recent case of Stuart Campbell v Kezia Dugdale [2020] CSIH 27 has clarified the defence of “fair comment” in defamation actions in Scotland.
The facts
Mr Campbell operates the ‘Wings Over Scotland’ blog and a related Twitter account. The Inner House described that his style “can be rude”.
Ms Dugdale was the leader of the Scottish Labour Party and had a weekly series of articles for the Daily Record. Ms Dugdale wrote an article which described a tweet by Mr Campbell as “homophobic” and described Mr Campbell as “someone who spouts hatred and homophobia towards others”.
Mr Campbell raised an action for defamation against Ms Dugdale, arguing that the allegation that he was homophobic was defamatory.
Sheriff court
Sheriff Ross established that Ms Dugdale’s article was defamatory. However, it is a defence to actions of defamation to say that, even though material is defamatory, it is protected by the defence of ‘fair comment’. The Sheriff found that the defence of fair comment applied in this case, and as a result Ms Dugdale was not liable to Mr Campbell in damages.
Mr Campbell appealed to the Inner House of the Court of Session, which agreed with the Sheriff that Ms Dugdale’s comments were protected by the defence of fair comment.
The defence of fair comment
The defence of fair comment provides a level of protection for an individual’s freedom of expression by allowing for ‘fair’ opinions to be stated where there is a factual basis for those opinions. The Lord President set out the test for the defence of fair comment as follows:
- The comment must be made based on facts that are true
The defence of fair comment will not apply to statements where the factual basis is incorrect. Here, it was true that Mr Campbell had published a tweet, which was referred to by Ms Dugdale.
- The matter must be one of public interest
For the defence of fair comment to apply, the subject material must be in the public interest. This was not disputed by either party before the court.
- The defamatory comments must constitute comment rather than fact
The Court considered whether the material is comment or opinion (as opposed to fact) in objective terms, taking the approach of the “ordinary reasonable reader“. While a statement will often be based on fact, it will be considered a comment if it is a deduction, inference, remark or observation. The context of the material will matter; the article was surrounded by opinion pieces on Scottish politics and football, indicating that this too was comment.
- The comment must be fair
The defamatory comments must be fair, taking a “common sense” approach. The Court explained “was it fair to say, on the basis of the single tweet, that the pursuer was homophobic and abusive?“
The Court established that the article about the tweet was fair comment. While it accepted that Mr Campbell is not homophobic, the tweet was a remark about an individual’s sexuality, expressed in inflammatory language. The Court considered that the defence of fair comment applied, taking into account Ms Dugdale’s own genuinely held views and also what an objective reader might take from the material.
Reform
This case is a useful indication of the Court’s current approach to the protections afforded by the fair comment defence. It should be noted that the Defamation and Malicious Publication (Scotland) Bill is currently making its way through the Scottish Parliament, which if passed will recast the defence as “honest opinion” and place a similar (but not identical) test on statutory footing.
Contributors
Partner & Solicitor Advocate
Trainee at Brodies LLP
