Andy Wightman, the Scottish Green MSP, was recently found not liable for alleged defamatory comments made about Wildcat Haven Enterprises CIC ("Wildcat") on Twitter, Facebook and his online blog. The majority of his comments, it was ruled, could not be read as having any defamatory meaning, and those that were defamatory were, in the court's view, expressions of opinion based on facts that were in the public interest, and were therefore covered by the defence of "fair comment".
The judgment is notable for building on the Supreme Court's recent approach in relation to alleged defamatory posts on social media and online blogs, stating that readers of these posts would be less likely to reflect or analyse the content of the posts in depth, but instead take an impression of their meaning and implications at first glance.
Wildcat is a community interest company that sells 'souvenir plots' in the Scottish Highlands, with the purpose of funding wildcat conservation efforts. Customers can purchase one of these small plots (although they cannot become the legal owner of the land), and call themselves a 'Lord' or 'Lady'. This practice was referred to in the judgment as a "bit of fun".
Andy Wightman posted a series of tweets between November 2012 and May 2017, two blog posts in September 2015 and February 2016, and a Facebook post in February 2016 criticising various aspects of Wildcat's business. In particular, he called the practice of selling souvenir plots "controversial" and "dubious", alleged (falsely, as it turned out) that Wildcat was funnelling sale proceeds to tax havens rather than using them to support wildcat conservation, and said that a related enterprise, Highland Titles Limited, was operating a "scam".
Wildcat claimed that it suffered reputational damage and financial loss as a result of Mr Wightman's defamatory statements, which it alleged contained material factual inaccuracies. In particular, it took issue with allegations made regarding the funnelling of proceeds to tax havens, which, it proposed, gave the impression that the company was "carrying out scams and acting illegally".
In response, Mr Wightman argued that the blog posts represented "honest comment on matters of public interest, conveying his opinions, honestly held by him", and were therefore covered by the defence of "fair comment", as set out in the case of Massie v McCaig. Even if the court decided that his comments were not so covered, Mr Wightman denied that his statements were responsible for the loss that Wildcat claimed to have suffered. Wildcat had come to an agreement with a community venture, ACF, to purchase part of a forest near Loch Arkaig, and ACF had pulled out. Wildcat claimed that this was as a result of Mr Wightman's posts; however, Mr Wightman led evidence that ACF had in fact pulled out as a result of delays to the transaction caused by Wildcat.
The judgment discusses the implications of each of Mr Wightman's comments.
To determine whether Mr Wightman's statements were defamatory, the court used the well-established test of assessing what the hypothetical reasonable man, or ordinary reader, would take from reading the material in question. The hypothetical reader is "not naïve but he is not unduly suspicious", and he is taken to be representative of those who would read the publication in question. The court, in putting itself into the shoes of the hypothetical reader, read the publication in its entirety and in context. However, no evidence beyond this can be taken into account in determining the "ordinary and natural meaning" that the hypothetical reader would give to the publications in question.
Ultimately, the court held that while some of his comments were defamatory in meaning, they were protected by the defence of 'fair comment'.
The hypothetical ordinary reader of online publications
It is in this context that the court discussed the hypothetical ordinary reader of online publications, as might read Mr Wightman's tweets and posts. Following guidance given by the UK Supreme Court last year in Stocker v Stocker, the Outer House made a clear distinction between the hypothetical ordinary reader of 'traditional' publications, and the reader of social media or blog posts.
Referring to the Stocker judgment, Lord Clark decided that the "search" for the ordinary and natural meaning of the relevant statements should "reflect the fact that social media is a casual medium that is in the nature of conversation…and is…a medium in which the reader reads and then moves on". The hypothetical reader of internet publications would scroll through posts quickly, and would not "pause and reflect or ponder" the meaning of the statements they have read. Their reaction to the statements would be "impressionistic and fleeting".
Lord Clark also commented on the difficulty in establishing that a series of social media or blog posts can be linked to provide context to alleged defamation, so that a post which might not, by itself, be considered defamatory could be so considered when viewed within a specific context. In particular, the party alleging defamation may struggle to prove that an earlier post is to be read in the context of a later one, unless it can produce evidence showing that readers of the later post would have seen the earlier one and would have had it in mind when reading the later post.
The hypothetical reader of potentially defamatory internet content may not, then, in the court’s mind, dwell on the statements they are reading, or engage in a forensic examination of the statement in order to determine the ordinary and natural meaning of the words.
This difference is important to bear in mind when considering taking action against individuals publishing blog posts or posting on social media. In order to prove that the comments made are defamatory, one will have to demonstrate that the hypothetical reader would take the defamatory meaning from the comment at first glance. This means that courts may not give much weight to arguments based on nuanced reflection or analysis of the comments made on social media.
Additional reporting by Alec Fair and Ruairidh Leishman