"Wings over Scotland" blogger Stuart Campbell has lost his appeal at the Court of Session against the rejection of his defamation case against former MSP and Scottish Labour Party leader Kezia Dugdale.
Mr Campbell complained about a newspaper article by Ms Dugdale, written in response to a social media tweet of his, in which she said he was homophobic and had "spouted hatred and homophobia towards others".
After proof the sheriff 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 defence of "fair comment" could be used, and had been established.
On appeal Mr Campbell argued that Ms Dugdale’s words had been presented as fact and the defence of fair comment could not be used. In any event the comment had not been based on accurate facts and so was not "fair".
Delivering the opinion of the court, Lord President Carloway, who sat with Lord Menzies and Lord Brodie, said Ms Dugdale’s article was defamatory because it stated that Mr Campbell had sent homophobic tweets, i.e. that he was homophobic, but that it was presented as comment rather than fact and was fair comment. "It is important to look at both the visual and textual context in which the article appears", he stated. "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 tweet was a derogatory remark containing a gratuitous reference to [Conservative MSP] Oliver Mundell’s father’s homosexuality.” While Ms Dugdale’s comments might have been expressed in strong, if not inflammatory, words, insulting language did not prevent fair comment as a defence.
Had Mr Campbell won his appeal, the court would have increased the damages awarded by the sheriff from £100 to £5,000, as "the correct approach is to make an award of some substance, even when there has been no serious impact on a person’s reputation".