The Inner House of the Court of Session has recently handed down a judgment that clarifies the defence of fair comment in an action of defamation. In the case of Campbell v Dugdale  CSIH 27, the court held that the Sheriff had been correct to hold that although Kezia Dugdale, the former leader of the Scottish Labour Party, had defamed Stuart Campbell, the Wings Over Scotland blogger, the defence of fair comment applied.
What were the facts of the case?
It has been well publicised that Mr Campbell, a prominent political blogger, had brought a defamation action against Ms Dugdale. Indeed, the court recognised that neither Mr Campbell nor Ms Dugdale were disputing that the nature of Mr Campbell’s tweet had become widely known, if not public knowledge.
However, for those unfamiliar with the facts, in 2017 Mr Campbell had tweeted, that “Oliver Mundell is the sort of public speaker that makes you wish his dad had embraced his homosexuality sooner.” In 2016, Oliver Mundell’s father, the Conservative MP David Mundell, had declared that he was “coming out publicly as gay”. Following the tweet, Ms Dugdale wrote in her Daily Record newspaper column that Mr Campbell had sent “homophobic tweets” [sic], had made David Mundell face “abuse” because of his sexual orientation and that Mr Campbell had spouted “hatred and homophobia” towards others. Mr Campbell subsequently raised an action for defamation.
What was the outcome of the substantive court hearing?
Following the evidential hearing, the Sheriff held that Ms Dugdale’s article was defamatory of Mr Campbell, but went on to conclude that Ms Dugdale had established the defence of fair comment. Mr Campbell appealed this decision and, because the Sheriff Appeal Court was satisfied that the case dealt with “a complex or novel point of law”, it remitted the appeal straight to the Court of Session.
What did the Inner House decide?
The Inner House of the Court of Session refused Mr Campbell’s appeal and upheld the Sheriff’s decision that the defence of fair comment applied. The court also gave guidance on the assessment of damages in a defamation action but that is beyond the scope of this article.
The court said there were three issues that needed to be considered when deciding whether the defence of fair comment applied:
(1) whether the statement or article was a comment or an assertion of fact – only if it was a comment might the defence apply;
(2) if it was a comment, whether there was sufficient reference to facts which were true and upon which the comment could be based; and
(3) whether the comment was fair.
Was it a statement of fact or a comment?
In order to reach a decision on this first issue, the court clarified that the starting point is to determine what the facts that prompted the comment were. In this case, there was no longer any dispute that the article written by Ms Dugdale was defamatory, and, therefore, the court required to consider whether the defamatory parts of the article were comment not fact.
The test for this is to ask, how would they strike the “ordinary reasonable reader”? The court accepted that a comment will often contain an allegation of fact but the court approved of an explanation given in an Australian case that it will still be classified as a comment if it is “something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation etc.”
The court also said that both the visual and textual context are important when determining this question. In this case, Ms Dugdale’s article featured on a page dedicated to her column. It was not part of the news reporting section of the newspaper and the rest of the page gave her views on various other issues, all of which pointed towards it being opinion rather than fact.
Did Ms Dugdale make sufficient reference to facts that were true and upon which the comment could be based?
Yes, although she did not set out exactly what was said in the tweet, the court was satisfied that the ordinary reader would have been aware of the general nature of the tweet from other sources. Therefore, the terms of the article, along with the material that was in the public domain, were sufficient to draw the reasonable reader’s attention to the tweet that was the basis for Ms Dugdale’s comment.
Was the comment fair?
Yes, in Ms Dugdale’s case, the court agreed with the Sheriff that the comment was fair. The court said, “on whether the comment was fair, the question of whether homophobia and abuse was a fair inference from the true facts is to be decided as a matter of ‘common sense’.” Fortunately, the court recognised that the guidance to apply ‘common sense’ might not be altogether helpful because “common sense has a remarkable propensity to vary when introduced to legal disputes.” Therefore, the court provided additional guidance on what this means, saying that another way to consider it was to ask, was the comment warranted by the facts?
In answering this question, it is not enough to only consider whether the maker of the statement genuinely held that view. There is also an objective element of whether a reasonable person could reach that view, even if they did so erroneously.
The court has provided authoritative guidance on the approach to be taken in defamation cases where the defender seeks to rely on the defence of fair comment. For the defence to apply: (1) the statement must be a comment and not an assertion of fact; (2) it must make sufficient reference to facts which were true and on which the comment could be based; and (3) it must be fair. In considering whether the statement is comment or fact and whether it is fair, the issue is to be approached objectively on the basis of what an ordinary reasonable reader would think.
Although this case is a welcome clarification on the defence of fair comment, one issue that remains open is whether the defence of fair comment is available in a case involving innuendo. In a defamation action, an innuendo is asserted where a party claims that, due to the context or surrounding circumstances, a defamatory meaning is the appropriate meaning to be ascribed to the words, even if that meaning is not immediately apparent. In the present case, the court did not rule definitively on this point but suggested that, “had the homophobia been a matter of innuendo, it is not easy to see how fair comment would enter the equation.”
Ruairidh Leishman is a solicitor in Shepherd and Wedderburn’s commercial disputes and regulation team. For more information, contact Ruairidh on 0131 473 5180 or at firstname.lastname@example.org.