Defamation: What Is "fair Comment" In Scots Law?

• Published date: 17 June 2020
• Author: Mr Ruairidh Leishman and John MacKenzie
• Subject Matter: Litigation, Mediation & Arbitration, Libel & Defamation
• Law Firm: Shepherd and Wedderburn LLP

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 [2020] 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...