Green MSP Andy Wightman has successfully defended a £750,000 defamation action brought by Wildcat Haven Enterprises, a company which sold small souvenir plots of land as fundraising for another company dedicated to the conservation of Scottish wildcats.
Lord Clark in the Court of Session held after proof that although certain statements made in blogs by the defender, and by others on his website, carried defamatory imputations, the defences of fair comment, and of truth in relation to any assertions of fact, were made out.
Among other comments, the blogs referred to the Wildcat Haven project being sponsored by another company, HTL, which appeared to have "a very close relationship" with the pursuer, and which had "dubious methods of selling small souvenir plots of land and claiming that the purchaser became the owner"; its financial affairs were "opaque" and it was registered in "a secrecy jurisdiction".
The pursuer averred that the offer for sale of souvenir plots of land made on its website did not represent that persons who bought these plots would obtain a real right to the land, though its website stated: "It’s a bit of fun, being Laird of an estate, even if the estate is only a square foot of land. You may [style] yourself as Lord or Lady of Wildernesse…"
The material inaccuracies at the centre of the defender’s defamatory statements are said to be that the proceeds of sale of souvenir plots sold by the pursuer were not being used to fund wildlife conservation but were being paid to HTL and diverted into an offshore tax haven away from public scrutiny.
It was further averred that as a result of the defamatory imputations contained in the published material, the pursuer had suffered reputational damage and financial loss: a grant-attracting forestry project had fallen through and the volume of sales of souvenir plots diminished straight after publication of the blogs.
Lord Clark ruled that to assert that the pursuer was doing something that was "possibly illegal" amounted to a defamatory imputation, as although it did not directly assert criminality or immorality, it did suggest there might be grounds to at least investigate such a possibility. In addition, the clear theme of the blogs was that the sale of souvenir plots was a practice known to be dubious and in that sense was immoral.
Turning to the defences, however, the factual basis for the defamatory meaning, and for the comment that the acts "may well be illegal", was the discussion in the blog about the controversy over whether the sale of a souvenir plot resulted in the purchaser being, in law, the owner of the plot. That was plainly a matter of public interest, and it was clear that the defender reasonably believed that publishing the statement complained of was in the public interest. If for any reason the meaning stated was taken as an assertion of fact, it was in any event substantially true, and the defence of veritas was made out.
Allegations of a defamatory imputation that the pursuer was tricking members of the public and was not using the proceeds of sale of souvenir plots to fund conservation of wildcats, and that the pursuer was selling plots which had already been sold as part of a Bumblebee Haven, were not made out. Nor did the relevant publications support the alleged imputation that the pursuer was and making payments to a company in Alderney in the Channel Islands, where the destination of those sums was beyond public scrutiny and the money might well be used for purposes unconnected with the conservation of wildcats.
Further, while the ordinary reasonable reader would take from the blogs that there was a close link between HTL and the pursuer, HTL being according to the defender a company engaged in dubious or controversial business methods, this link as explained in the blogs did not go as far as meaning, or allowing the inference to be drawn, that HTL actually controlled the pursuer. Nor would the reader take, whether directly or by innuendo, that HTL was disreputable or engaged in tax evasion by diverting money offshore.
Further detailed allegations were similarly covered by veritas or fair comment, and the pursuer’s articulation of the central sting, that the proceeds of sale of souvenir plots sold by the pursuer were not being used to fund wildlife conservation but were being paid to HTL and were being diverted into offshore tax havens away from public scrutiny, was incorrect. The true sting was simply that the pursuer was closely associated with HTL and HTCTS, and these were entities which carried out dubious selling of souvenir plots and were based in a tax haven. This meaning was not defamatory, and even if it was, the defences of fair comment or, failing which, veritas applied.
As regards comments posted by others on the defender’s website, while the defender accepted that as a matter of law these were to be taken as published by him, the elements of the defence of fair comment were met, as were the requirements of reg 19 of the Electronic Commerce (EC Directive) Regulations 2002 (no liability for comments by others where the defender did not have actual knowledge of unlawful activity or information "and, where a claim for damages is made, is not aware of facts or circumstances from which it would have been apparent... that the activity or information was unlawful").
Although the defender had made certain statements which were untrue, that did not itself mean that the defamatory allegations complained of by the pursuer were made. For the defence of fair comment to be available, it was not necessary that every fact founded on was true. Allegations of malice were without foundation.
In any event, had it been necessary, the defence of Reynolds privilege would have been made out, apart from tweets and a Facebook post which did not amount to journalism. Despite an important factual inaccuracy the blogs met the standard of responsible journalism.
Lord Clark further concluded that the pursuer had failed to prove any loss. "If one or more of the significant defamatory imputations had been established, with no defence, there may arguably have been some ground for awarding general damages within appropriately modest bounds", he said. "However, if only less significant defamatory imputations had been established, I would have found it impossible, on the evidence led, to conclude that any damage to trading reputation was thereby caused; it could equally have resulted from the statements by the defender which are legitimate because of the defences of fair comment or veritas."