JUDGMENT SUMMARIES

The Appeal judgment is now available on the Courts website.

It states that Wings Over Scotland blogger Stuart Campbell raised a sheriff court action against Kezia Dugdale in relation to an article she wrote for the Daily Record newspaper.

The article was written in response to a social media tweet issued by Mr Campbell. The tweet had made reference to the Conservative MSP Oliver Mundell. Mr Campbell had “tweeted that the nature of Oliver Mundell’s public speaking was such that it would have been better if his father had declared his homosexuality earlier whereby, it is said, his son would not have been born”. Mr Mundell’s father had previously stated publicly that he was “coming out as gay”.

Ms Dugdale had responded to the tweet in a weekly page she wrote for the Daily Record. This article, Mr Campbell claimed, “was defamatory in that it said that he: had sent ‘homophobic tweets’; had made David Mundell ‘face abuse’ because of his sexuality; had ‘spouted hatred and homophobia towards others’; and is homophobic”. 

Mr Campbell argued that it was “ridiculous and absurd” for him to be described as homophobic. He had written a significant number of articles which were pro-equality and supportive of the gay lifestyle. His tweet was not criticising, or even commenting on, the sexuality of David Mundell. Its sole purpose was to denigrate Oliver Mundell’s public speaking skills by using a joke about him never having been born.

Following evidence, the Sheriff had ruled that, although Ms Dugdale’s article contained an innuendo that Mr Campbell was homophobic, this was a comment rather than an assertion of facts and therefore the legal defence of ‘fair comment’ could be used - and had been established.

In his appeal, Mr Campbell argued that Ms Dugdale’s words had been presented as fact and the defence of fair comment could not be used. He further argued that even if the Court decided the article was comment, it had not been based on accurate facts and so was not ‘fair’.

The Lord President, Lord Carloway, sitting with Lord Menzies and Lord Brodie rejected the appeal.

The Court of Session determined that Ms Dugdale’s article was defamatory because it stated that the pursuer had sent homophobic tweets i.e. that he was homophobic, but that the article was presented as comment rather than fact and was fair comment. The judgment reads: “It is important to look at both the visual and textual context in which the article appears. The defender’s article is at the top of a page which is dedicated to the defender’s views on political and other topics. It is not part of a news reporting section. It is accompanied by pieces on female equality, trades unions in supermarkets, the Conservatives’ austerity programme and the fortunes of Hibernian FC. The context points towards the piece being one of opinion rather than fact. 

“The Court agrees with the Sheriff’s conclusion that this was indeed fair comment. The pursuer’s (Mr Campbell’s) tweet was a derogatory remark containing a gratuitous reference to Oliver Mundell’s father’s homosexuality.” The Court accepted that the Ms Dugdale’s comments may have been expressed in strong, if not inflammatory, words, but ruled that insulting language did not prevent fair comment as a defence.

The Court also considered the assessment of damages that would have been awarded to Mr Campbell if he had won the appeal. The Sheriff had set this at £100, but the appeal judges ruled that it should have been set at £5000.

Read the full Opinion.

Summaries of Opinions provide the main findings, but do not form part of the reasons for the decision. The full judgment published on the Scottish Courts and Tribunals website is the only authoritative document.