Factual and Procedural Background
The Appellant, a pro-independence blogger operating a popular blog and Twitter account since 2011, initiated a defamation action against the Respondent, a Member of the Scottish Parliament and leader of a major political party who wrote a weekly newspaper column. The dispute arose from an article published by the Respondent in a national newspaper, which described the Appellant's tweet made during a political conference as homophobic and abusive towards a political family. The Appellant contended that the article defamed him by imputing homophobia, a charge he denied, asserting his history of supporting equal rights. The Sheriff found the article defamatory but held that the Respondent successfully established the defence of fair comment, awarding nominal damages of £100. The Appellant appealed the interlocutor dated 16 April 2019.
Legal Issues Presented
- Whether the statement in the article was an expression of comment or an assertion of fact, as only comment could attract the defence of fair comment.
- If the statement was comment, whether there was sufficient reference to true facts upon which the comment could be based.
- Whether the comment was fair.
- Whether the assessment of damages was appropriate.
Arguments of the Parties
Appellant's Arguments
- The statements in the article were assertions of fact, not comment, and thus the defence of fair comment did not apply.
- The article lacked sufficient factual basis; factual inaccuracies such as reference to multiple tweets and claims of abuse undermined the defence.
- The comment was not fair as it lacked objective justification; the Respondent had not investigated the Appellant’s prior publications and had no rational basis to call the tweet homophobic.
- The damages awarded were unreasonably low given the seriousness of the allegation and the national circulation of the publication; a sum of £25,000 was reasonable.
Respondent's Arguments
- The defamatory statements were comments, not statements of fact, falling within the defence of fair comment.
- The article appeared in a newspaper column devoted to opinion, making it clear to the reasonable reader that the statements were comment.
- The underlying facts, including the existence of the tweet and its content, were substantially true and in the public domain, providing a sufficient factual foundation.
- The comment was fair, representing an honest opinion warranted by the tweet, even if expressed in strong or vituperative language.
- The damages award was appropriate and should not be interfered with as there was no evidence of reputational loss beyond wounded feelings, considering the Appellant’s own conduct and public statements.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Archer v Ritchie and Co (1891) 18 R 719 |
Definition of fair comment as expression of opinion on true facts; comment not actionable even if vituperative. |
Used as foundational authority to distinguish comment from fact and to support the defence of fair comment. |
| Massie v McCaig (No. 1) 2013 SC 343 |
Elements of fair comment: true facts, public interest, and fairness of comment; common sense approach. |
Guided the court’s analysis on whether the comment was fair and based on true facts. |
| Fairbairn v Scottish National Party 1979 SC 393 |
Requirement that each statement of fact be true and comment be fair for defence of fair comment. |
Supported the legal framework for assessing the defence. |
| Branson v Bower (No. 1) [2001] EMLR 32 |
Requirement that comment be clearly identifiable as such. |
Considered in determining whether the article’s statements were comment or fact. |
| Joseph v Spiller [2011] 1 AC 852 |
Comment must indicate facts on which it is based; context relevant; fair comment can be vituperative. |
Applied to assess the nature of the article and the sufficiency of factual foundation. |
| Wheatley v Anderson and Miller 1927 SC 133 |
Necessity of true facts underlying comment; fairness involves objective test. |
Used to evaluate factual basis and fairness of comment. |
| London Artists v Littler [1969] 2 QB 375 |
Perspective of ordinary reasonable reader in determining meaning; comment vs fact distinction. |
Adopted to assess how the article would be understood by a reasonable reader. |
| Butt v Secretary of State for the Home Department [2019] EMLR 23 |
Comment must be discernible; objective test for fairness. |
Informed the court’s approach to the article’s nature and fairness. |
| McAnulty v McCulloch 2019 SLT 449 |
Consideration of damages in defamation cases involving serious imputations. |
Referenced in relation to the assessment of damages. |
| Purdie v William Allan & Sons 1949 SC 477 |
Judicial restraint in interfering with damages awards. |
Supported deference to the sheriff’s damages assessment. |
| Baigent v British Broadcasting Corporation 2001 SC 281 |
Assessment of solatium damages involves impact on feelings and reputation. |
Guided the court’s consideration of damages for injured feelings and reputational harm. |
| Sheridan v News Group Newspapers 2017 SC 63 |
Examples of substantial jury awards in defamation cases. |
Referenced for context on damages in serious defamation cases. |
| Gilbert v Yorston 1997 SLT 879 |
Judicial awards for solatium in defamation with no serious reputational damage. |
Used to illustrate appropriate damages for wounded feelings. |
| McCluskie v Summers 1988 SLT 55 |
Similar to Gilbert, awards for injured feelings in defamation. |
Referenced in damages context. |
Court's Reasoning and Analysis
The court began by confirming the defamatory nature of the article’s statement that the Appellant was homophobic. The critical question was whether these statements were assertions of fact or expressions of comment. Applying established legal principles, the court considered the perspective of the ordinary reasonable reader, the context of publication, and the nature of the language used. The article appeared in a newspaper opinion column alongside other commentary pieces, signaling to readers that its content was opinion-based rather than factual reportage.
The court found that the defamatory elements were comment, being value judgments and opinions about the effect and nature of the Appellant's tweet rather than direct factual assertions. The factual foundation for the comment was the existence of the tweet itself, which was widely known and publicly accessible, and which contained a derogatory reference to a political figure’s homosexuality.
Although there was a minor factual inaccuracy in the article’s reference to multiple tweets, this was not material and did not undermine the defence. The court emphasized that the defence of fair comment requires the comment to be based on facts that are substantially true, and that the comment be fair, judged objectively. The court agreed with the sheriff that the comment was fair, as it was an honest opinion reasonably based on the tweet’s content, even if expressed in strong and vituperative language.
The court also undertook its own independent assessment rather than simply deferring to the sheriff’s findings, concluding that the comment was a fair and honest expression of opinion. On damages, the court acknowledged the seriousness of the accusation of homophobia but found no evidence of reputational damage beyond wounded feelings, particularly given the Appellant’s own public conduct and style. The nominal damages awarded by the sheriff were therefore appropriate, though the court indicated that a higher sum would have been reasonable had the Appellant succeeded.
Holding and Implications
The court REFUSED THE APPEAL and AFFIRMED the sheriff’s interlocutor of 16 April 2019.
The decision confirms that statements made in a political opinion column, even if defamatory, may be protected by the defence of fair comment if they are clearly identifiable as comment, based on true facts, and fair in the objective sense. The ruling underscores the balance between protection of reputation and freedom of expression, particularly in political discourse. The nominal damages awarded reflect the court’s view that the Appellant’s reputation was not materially harmed beyond hurt feelings, and no new precedent was established beyond the application of existing fair comment principles.