Defamation – Kezia Dugdale case shows evidence must be heard where ‘fair comment’ defence is used

  • Insight

13 September 2018

A sheriff has ruled that a political blogger is entitled to a hearing of evidence in his defamation case brought against Kezia Dugdale MSP. Ms Dugdale, sought to have the defamation case brought by blogger Stuart Campbell dismissed without a hearing of evidence on the basis that her comments at the centre of the case were ‘fair comment’.  

The background  

During the March 2017 Conservative Party Conference, Mr Campbell Tweeted: “Oliver Mundell is the sort of public speaker that makes you wish his dad had embraced his homosexuality sooner.” Ms Dugdale later published an article in the Daily Record, in which she described the Tweet as “homophobic”, resulting in Mr Campbell raising an action for damages for defamation against her.

In his action for defamation, Mr Campbell argued that while Ms Dugdale did not explicitly accuse him of being a homophobe, she had implied as much, because in the overall context of the article she published, the words she had used carried a “defamatory meaning”.

Ms Dugdale put forward a defence of “fair comment”, arguing that her comments were not an imputation of fact and were her opinion, and that the ordinary reasonable reader would be able to infer that from reading them. She argued that the action should be dismissed at this stage, before an evidential hearing.

The court’s decision

Sheriff Kenneth McGowan sitting at Edinburgh Sheriff Court had to consider the parties’ written arguments in order to determine whether or not to allow the case to continue to an evidential hearing. The sheriff considered both the position in law and the correct procedural approach to a ‘fair comment’ defence.

The sheriff decided that, taking account of the entire article and the context in which it was published, as a matter of law the words used by Ms Dugdale may carry the defamatory meaning Mr Campbell alleged. He determined  that an evidential hearing would be required to determine whether or not the words actually were defamatory. The question of whether or not the words used were an imputation of fact or of opinion was, the sheriff decided, a factual question and the onus of proving it is on the defender – in this case, Ms Dugdale.

Significance

This case highlights that where a fair comment defence is advanced, it will not be possible for the court to give a final judgment without making a full inquiry into the facts. Any party considering advancing such a defence should be aware of this and the costs associated with this further procedural step. More generally, this case highlights that the individual facts and context will often have a bearing on whether a statement can be said to be defamatory, and that factual questions must be determined by the fact-finder, after the hearing of evidence.

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