Dugdale hails a ‘victory for free speech’ in blogger case
●MSP tells of relief as sheriff rules her remarks were ‘fair comment’
Kezia Dugdale has hailed a victory for “free speech and a healthy democracy” in Scotland after winning a defamation case brought against her by the pro-independence blogger wings Over Scotland.
The Lothians MSP had been taken to court over her claims in a newspaper column that Stuart Campbell, who runs the blog, sent a homophobic tweet.
A sheriff found yesterday that
Ms Dugdale’s remarks had been “fair comment” and based on her rational belief that the content of the blogger’s social media post was derogatory about gay people. But the legal ruling found Mr Campbell’s remarks about Tory MSP Oliver Mundell were not homophobic. The tweet, made during the Conservative Party conference in 2017, stated: “Oliver Mundell is the sort of public speaker that makes you wish his dad had embraced his homosexuality sooner.”
The MSP’S father is Scottish Secretary David Mundell who announced he was gay in January 2016. He welcomed yesterday’s ruling as “good news”. Sheriff Nigel Ross found Ms
Dugdale’s claims in her Daily Record column met the test of a “defence of fair comment”. Ms Dugdale, who was Labour leader at the time, said she was “hugely relived” to have won the case, which had been hanging over her for two years.
“This is an important judgement for the right to free speech and a healthy press,” she said.
“This ruling clearly demonstrates that every citizen is entitled to make comments as long as they are fair and reflect honestly held views.”
She added; “Newspapers are increasingly filled with opinion and commentary pieces and I think to have a free and healthy democracy, people need to be able to say what their views are on those pages as long as they abide by the rules.”
She praised the Daily Record, which agreed to meet her legal costs after the Labour Party withdrew its support last year.
Mr Campbell had been seeking £25,000 in damages. He had denied being a homophobe and insisted such an allegation was both “untrue” and “unfair”.
In his written judgment yesterday, Sheriff Ross said the true question was whether someone was entitled to view the tweet as homophobic.
Ms Dugdale had formed a “rational belief” that the tweet was “derogatory about homosexuals” based on its content, he found.
The tweet itself was not homophobic, as it was not motivated by the “fear, hatred or dislike” of gay people, but intended as an “insulting jibe about Oliver Mundell”.
The law in defamation in Scotland recognises that “a balance must be struck with competing public values such as free speech”, the sheriff added. He concluded: “Despite incorrectly implying that Mr Campbell is homophobic, her article is protected under the principle of fair comment.
“She is not liable to pay damages to Mr Campbell.”
The sheriff found that Mr Campbell had not suffered any damage to his reputation, and even if he had found in the blogger’s favour the payout would only have amounted to £100 for wounded feelings.
”I do not accept that he can hold others to a higher standard of respect than he is willing to himself adopt,” the sheriff said of Mr Campbell’s abrasive approach on social media.
“He has chosen insult and condemnation as his style. He has received this in return.”
Mr Campbell said on his blog that he was still “fully digesting and considering” the judgment with his legal team before deciding on his next course of action, hinting at a potential appeal.
He said: “In almost every sense that the case was brought, we’ve actually won.
“I sought to defend my reputation against a false accusation of homophobia, to establish that I’m not a homophobe and to prevent anyone from being able to make such claims in future. All of those aims have been upheld, in explicit terms, by this judgment.
“Dugdale had claimed that she’d only said a single tweet was homophobic, not that I was a homophobe in general. The sheriff rejected that and noted that any reasonable person reading the article would have concluded I was being called a homophobe.”
An earlier hearing in the case has already racked up costs of £93,000 and the final legal bill is likely to be “astronomical”, Ms Dugdale said yesterday.
The sheriff made no ruling on who is liable for legal costs and urged both parties to work this out themselves. If not, a hearing will be arranged.
After his defamation case against Kezia Dugdale was thrown out, the Wings Over Scotland blogger Stuart Campbell wrote that “in almost every sense that the case was brought, we’ve actually won”.
And, indeed, the sheriff ’s written judgement agreed with Campbell on two key points: that he “does not hold homophobic beliefs or feelings ... [and] has demonstrated by his conduct over many years that he supports equality for homosexual people” and that his tweet which sparked the dispute “was not motivated by homophobia and did not contain homophobic comments”. This will go a long way to healing the reputational damage he suffered as a result of the Labour MSP’S claim that the tweet – “Oliver Mundell is the sort of public speaker that makes you wish his dad had embraced his homosexuality sooner” – was homophobic.
However, the sheriff decided that even though Dugdale’s opinion was wrong, the comments she made were still “fair” and dismissed the blogger’s claim for damages of £25,000. “The law of defamation allows redress for damaging comments about character, but it also recognises that a balance must be struck with competing public values,
such as free speech,” the judgment said. “It recognises that there is significant public interest in allowing people to freely express opinions without fear of legal penalty. Accordingly not every damaging comment about character will result in legal liability for harm or distress.”
This case may have attracted headlines partly because of the fame of the two people involved, but it also had broader implications. If the ruling had gone in Campbell’s favour and he had been awarded substantial damages, then it could have had a discouraging effect on the challenging of other public remarks that did actually cross the line in terms of homophobia or other forms of prejudice.
Despite strict laws of defamation in Scotland and the UK, there has always been considerable latitude in the political sphere. For example, after David Lammy recently compared the ERG Tory MPS to the Nazis, the group’s leader Jacob Rees-mogg responded by saying he “feels sorry” for the Labour MP. Freedom of speech is a key part of any functioning democracy. If politicians and political commentators start suing one another, debates that need to be thrashed out may not be.