STUART CAMPBELL AGAINST KEZIA DUGDALE [2020] ScotCS CSIH

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> STUART CAMPBELL AGAINST KEZIA DUGDALE [2020] ScotCS CSIH_27 (27 May 2020) URL: http://www.bailii.org/scot/cases/ScotCS/2020/2020_CSIH_27.html Cite as: 2020 SC 481, [2020] ScotCS CSIH_27, 2020 SLT 587, [2020] CSIH 27, 2020 GWD 18-256

Defender and Respondent: Dunlop QC; Bannatyne Kirkwood France & Co

[1] The pursuer challenges the sheriff’s interlocutor of 16 April 2019, which assoilzies the

defender in the pursuer’s action of defamation. The sheriff held that the defender’s article in

the Daily Record newspaper was defamatory in that it contained an innuendo that the

pursuer was homophobic. However, he went on to determine that the defender had

[2] The issues are, first, whether the statement in the article was a comment or an

assertion of fact. Only if it were comment might the defence of fair comment apply.

Secondly, if it was a comment, was there sufficient reference to facts which were true and

upon which the comment could be based? Thirdly, was the comment fair? The pursuer also

[3] The pursuer has operated a blog called Wings Over Scotland since 2011. He had a

related Twitter account. The blog had around 200,000 to 300,000 views per month. The

Twitter feed had 60,000 followers. The pursuer’s style can be rude, especially about unionist

politicians, including the defender. The pursuer had previously described the defender as a

[4] At the material time, the defender was a Member of the Scottish Parliament. She was

the leader of the Scottish Labour Party. She wrote a weekly column, or rather page, for the

Daily Record newspaper. This would refer to a variety of topical subjects.

[5] On 3 March 2017, during a conference of the Scottish Conservative and Unionist

“Oliver Mundell is the sort of public speaker that makes you wish his dad had

Oliver Mundell was, and remains, a Conservative MSP. His father, David Mundell, is a

Conservative MP. He was the Secretary of State for Scotland at the material time. On

13 January 2016, around 14 months prior to the pursuer’s tweet, David Mundell had stated

that he was “coming out publicly as gay”. His sexuality was public knowledge. He was

reported in the press as commenting that the pursuer’s tweet was homophobic.

[6] The defender’s page in the Daily Record of 7 March 2017, a copy of which is

appended hereto, referred to a number of matters. There was a central piece on what the

defender described as the Conservative Government’s austerity agenda. This was inset with

the defender’s view of the Scottish Cup draw. A side column dealt with gender balance in

the Scottish Parliament. Below that was a short item on the lack of trade union involvement

in certain supermarkets. At the top of the page there was a headline which stated: “Twitter

tirade highlights divisions”. The article to which it related read as follows:

“I was shocked and appalled to see a pro-independence blogger’s homophobic

But the Twitter tirade against David Mundell and his son Oliver is sadly

People are welcome to disagree and challenge – indeed, it is healthy that we

But it is utterly unacceptable for someone to face abuse because of their

Such comments are, of course, not unique to the man who tweets as Wings

But it is depressing and disheartening that there are SNP politicians who

As politicians, we have a responsibility to lead from the front and call out

abuse for what it is – unacceptable. No elected member of any party should be

endorsing someone who spouts hatred and homophobia towards others.

It runs entirely counter to the sort of progressive, welcoming country we all

I hope Wings Over Scotland – and the SNP politicians who share his work –

[7] The pursuer’s claim was that the article was defamatory in that it said that he: had

sent “homophobic tweets”; had made David Mundell “face abuse” because of his sexuality”

(the article was accompanied by a photograph of the two Mundells with the caption

“ABUSED”); had “spouted hatred and homophobia towards others”; and is homophobic.

[8] The evidence, as summarised by the sheriff, was broadly as follows. The pursuer

said that he had been offended by the article. It was ridiculous and absurd for him to be

described as homophobic. He had been horrified and considered that he had been defamed.

No intelligent person would have considered his tweet to be homophobic. He had written a

significant number of articles which were pro-equality and supportive of the gay lifestyle. A

2009 tweet about a video game level being too easy and therefore suitable only for “girls and

homosexuals” had been a satire. A tweet in December 2016 about the recently deceased pop

star, George Michael, and two other politicians, all three of whom were homosexual, was in

the same category. The tweet of 3 March 2017 was not criticising, or even commenting on,

the sexuality of David Mundell. Its sole purpose was to denigrate Oliver Mundell’s public

speaking skills by using a joke about him never having been born.

[9] Paul Kavanagh is the author of the pro-independence “Wee Ginger Dug” blog. He

testified to the hardship and abuse which he had suffered as a result of his homosexuality.

Homophobia, in its various forms and contexts, had blighted his life. Being described as

homophobic was a particularly serious slur. It was the equivalent of being called a racist or a

holocaust denier. It was particularly serious for a blogger, whose website or Twitter feed

could be blocked and whose credibility would be destroyed. The pursuer’s tweet was

“crass”, “tasteless” and “insulting”, but it was not homophobic. The pursuer’s past writings

[10] Colin Macfarlane is the director of Stonewall Scotland. This is a charity which is part

of a European network. It is protective of lesbian, gay, bisexual and transgender rights.

“the fear or dislike of someone, based on prejudice or negative attitudes, beliefs or

Mr Macfarlane thought that the pursuer’s tweet was homophobic because it was

“unnecessary” to reference David Mundell’s sexuality and homosexuality had been the

[11] The defender described the pursuer’s output as containing insulting personal

remarks. The pursuer’s comments about her had involved personal abuse. His tweet from

2009, which had referred to “girls and homosexuals”, was homophobic. A tweet could not

be a joke if it depended on a reference to sexuality at the expense of gay people. The

defender had written her article in response to the pursuer’s tweet. She had not made the

first public comment on the tweet. There had been quite a negative reaction to it in other

newspapers. Several commentators had thought that the tweet was homophobic and

offensive. The defender had referred to “someone who spouts hatred” because MSPs were

leaders who set the tone for others. They had a responsibility not to share the pursuer’s

material. The tweet was homophobic in that it considered gay people to be lesser beings

because they could not, or did not, have children. It was not a joke. Homophobia was not

funny in any form. The Mundell family were being abused on account of David Mundell’s

sexuality. The purpose of the article was to discuss the damage done by such material. It

was poisonous to political debate. The Scottish National Party should not encourage it.

[12] On 16 April 2019, the sheriff found that, while the article bore the meaning that the

pursuer was homophobic, it was fair comment. The sheriff considered both parties and

their witnesses to be both credible and reliable. The pursuer and the defender had

presented their positions in an honest manner. The pursuer was a man of principle, who

was unwavering in his rejection of all forms of homophobia, even if the tone and terms of

[13] There were various definitions of homophobia. Most had a central theme of a fear,

hatred or dislike of homosexuals. Neither the defender nor Mr Macfarlane could explain

why the tweet was homophobic, in the sense that it demonstrated fear, hatred or dislike of

homosexuality, rather than simply being offensive to gay people. Being described as

homophobic was significantly damaging to a person’s character and reputation; it would

tend to lower that person in the estimation of right-thinking members of society generally.

The pursuer had a history of supporting and promoting equal rights, including gay rights.

A few historic tweets, which had referred to homosexuality, could be understood as

derogatory, but they had been intended as ironic. They had no homophobic intent or

motivation. The tweet had not been motivated by homophobic views. On a strict

construction of the words used, it did not express homophobic views.

[14] The defender’s interpretation of the tweet was rational, if incorrect. Her comments

were not motivated by malice, but by a genuine perception that the tweet was insulting to

homosexual people and was homophobic. The article referred to the tweet as homophobic.

The reasonable reader would have understood it to describe the tweet as homophobic and,

by innuendo, that the pursuer held homophobic views. The article had a defamatory

meaning. The test was what a reasonable person would take from reading it. The defender

had said that she did not intend to go beyond criticising the tweet itself, but her intentions

[15] The next question was whether the defamatory meaning was a statement of fact or

comment. If it was the former, the defence of veritas (which the sheriff held was not made

out) could be pled. If the latter, the defence of fair comment would be available. The matter

was one of common sense. The question was whether there was an “expression of an

opinion as to a state of facts truly set forth” (Archer v Ritchie and Co (1891) 18 R 719 at 727).

The comment on the facts had to be fair. The comment had been based on supporting facts

[16] A minor inaccuracy, which was all the reference to “tweets” (plural) amounted to,

would not prevent the defence from succeeding. Whether there had been more than one

tweet was easily checked by the modern reader via a Twitter search. It did not undermine

the fairness of the article. Other, true, supporting facts were stated. The reference to “facing

abuse” was not a fact, but a value judgment. Whether or not the tweet amounted to abuse,

and which of the Mundells was facing the abuse, were matters of opinion. Although David

Mundell had not strictly been abused, his sexuality was the focus of the jibe. It was not

unreasonable to conclude that he had been abused. The reference to “spouts hatred” could

not be taken literally, but was a pejorative description of the pursuer’s manner of writing.

“[H]atred” was a matter of opinion and was justified by the pursuer’s history of tweeting

and blogging. “[H]omophobia” was a value judgment; not a wrong assertion of fact. It was

[17] The comment was fair because it could be rationally justified from the underlying

facts. What was fair involved an objective test. Applying common sense, not everybody

would take the pursuer’s tweet to be a joke about homosexuality. The article was the kind

of subjective, rational and honest public comment, which was protected as fair comment.

The reasonable reader would be able to work out what the defender’s reasoning had been

and, therefore, whether it was fair. If a commentator showed rationally supportable

working for a comment, it would be likely to be regarded as fair. A reasonable reader

would be able to understand this from the article and come to his or her own judgment on

[18] The pursuer had suffered no quantifiable financial or other loss. There was no

evidential basis upon which to conclude that, in the two years since the article, the pursuer

had lost any influence, reputation or credibility as a social media commentator or a

campaigner for equal rights. There was no evidence of any loss of followers, loss of

opportunity, diminished influence or of outrage amongst the public, beyond the customary

exchange of robust views on his Twitter feed. There was no basis for an award beyond

wounded feelings. The value of any loss would have been quantified at £100. The pursuer

was not entitled to hold others to a higher standard of respect than he was willing to adopt

himself. He had chosen insult and condemnation as his style. He had received these in

return, after entering the political arena with a quiver of poisoned arrows. Receiving an

arrow in return was no more than collateral damage; and not an unjust wound. The pursuer

could not dismiss the feelings or reputations of his opponents cheaply, yet receive a high

[19] The pursuer submitted that the defence of fair comment was available only where

there was an opinion based on true facts (Archer v Ritchie and Co (supra); Massie v McCaig

(No. 1) 2013 SC 343). The defender required to show that: each statement of fact was true;

the matter was one of public interest (which was not in issue); and the comment on the facts

was fair (Fairbairn v Scottish National Party 1979 SC 393; Massie v McCaig (No. 1) (supra)).

Whether the comment was a fair inference was a matter of common sense (Massie v McCaig

(No. 1) (supra)). The defence was not made out, for three reasons.

[20] First, the defender’s statements were of fact. They were not comment. Before they

could be comment, the content needed to be clearly identified as such (Branson v Bower

(No. 1) [2001] EMLR 32 (p 800) at 806, citing Hunt v Star Newspapers [1908] 2 KB 309 at 319,

adopted in Wheatley v Anderson and Miller 1927 SC 133 at 147; see also London Artists v Littler

[1969] 2 QB 375 at 395-6). The issue was whether the content was “recognisable” as

comment (Joseph v Spiller [2011] 1 AC 852, adopting Tse Wai Chun v Cheng [2001] EMLR 777

at para 17; Wildcat Haven Enterprises v Wightman [2020] CSOH 30 at para [29]) or

“discernibly” comment (Butt v Secretary of State for the Home Department [2019] EMLR 23 at

para 39). The allegation was that the pursuer was homophobic. Whether that was stated

explicitly or through innuendo, the only defence available to a defamatory statement of fact

was veritas (Norrie, Defamation and Related Actions in Scots Law at 140).

[21] The article’s primary premise was the assumed fact that the pursuer was an abusive

homophobe. The words would not strike the ordinary, reasonable reader (London Artists v

Littler (supra)) as setting forth merely the defender’s opinion of the pursuer’s character. The

sheriff erred in categorising the allegation as comment. He had concentrated on the

[22] It was accepted that some words were redolent of opinion whilst others were not.

The majority were in the middle ground and their categorisation would depend upon their

context. A description of someone as a homophobe could be a matter of opinion or a

statement of fact. However, homophobes existed as did racists and holocaust deniers. It

was accepted also that the article was on a page which contained the defender’s comments

on topical matters, and what was written was not being put forward as reportage. However,

comment has to be about something. The ordinary reasonable reader would take it that the

defender was commenting on the fact that the pursuer was an abusive homophobe. The

article contained no explanation of why the defender thought that the tweet was

homophobic (cf Greenstein v Campaign Against Antisemitism [2019] EWHC 281 (QB)). The

defence failed at the first hurdle as it was not discernibly or clearly comment.

[23] Secondly, if the defamatory statements were comment, there were no sufficient and

accurate facts upon which it was based. For a comment to be fair, it was necessary to state

the reason for it clearly (Archer v Ritchie & Co (supra) at 727). The facts had to be

substantially true (Wheatley v Anderson and Miller (supra) at 145). The basic facts were those

which went to the “pith and substance of the matter” (London Artists v Littler (supra) at 391).

Section 6 of the Defamation Act 1952 did not make any material change to the law in this

respect (ibid). The rationale for the defence was to ensure that those reading the comments

had the material upon which they could make up their own minds (Tse Wai Chun v Cheng

(supra) at 788; Wheatley v Anderson and Miller (supra) at 147). Fairness required more than

mere honesty. It was not fair, however honestly held, to describe someone as homophobic

and to give no reason (Fairbairn v Scottish National Party (supra); Massie v McCaig (No. 1)

[24] The article contained a number of factual errors, notably: the reference to the

plurality of “tweets”; that people had “faced abuse”; and that the pursuer had “spouted

homophobia”. The statement that there had been more than one homophobic tweet was not

a minor inaccuracy. It was significant, when assessing the validity of an allegation, to know

whether there had been a single solecism or a series of them. It was not an answer to say

that the position could be checked by the modern reader by a Twitter search. There was no

factual basis upon which to make the comment that the pursuer was homophobic. The

article did not need to refer to the terms of the tweet but it had to contain sufficient reference

[25] Thirdly, the comment was not fair. It was not enough for a comment to be fair, that

its maker honestly believed it (Wheatley v Anderson and Miller (supra) at 145, 147). There has

always been an objective element (London Artists v Littler (supra) at 392-3). Whether the

comment was fair was a matter of common sense. The question was not whether it was fair

to consider and describe the tweet as homophobic, but whether it was fair to consider and

describe the pursuer as homophobic. The assessment of fairness required to take account

not only of the subjective element of how the defender viewed the tweet, but also the

objective questions of how reasonable or otherwise her views were, and whether she had

any basis upon which she could go beyond the tweet to describe the pursuer as

homophobic. She had made no effort to check the pursuer’s prior publications to see if he

was a homophobe. There was no rational basis for the defender’s position that she honestly

[26] Although in England, the law had moved towards subjective honesty (Defamation

Act 2013, s 3), Scots law was clear. Fairness was a matter for substantive judgment applying

common sense; whether the comment may have been said by a fair minded person. There

were three factors to consider. First, the defender had made no effort to check the pursuer’s

earlier publications to see if the comment was justified. Secondly, in her evidence, the

defender was not prepared to say that the pursuer was a homophobe, so she could not have

believed in the truth of what she had written. Thirdly, there was no rational basis for the

view that the tweet was homophobic. For the comment to be fair, the tweet had to have

[27] Damages ought not to have been restricted. The sum of £25,000 was reasonable. For

a person to be called homophobic was a serious imputation on character. The sheriff had

accepted that the pursuer had been hurt by the allegation. There was no evidence that the

pursuer had ever defamed anyone. For a supporter of equal rights, including gay rights, to

be branded homophobic was particularly serious, irrespective of the pursuer’s own general

writing style. The defender’s allegation was made in a national newspaper with a

significant circulation by the leader of one of the country’s largest political parties. The

pursuer’s writing style could not justify only a fraction of the £40,000 awarded in McAnulty

v McCulloch 2019 SLT 449. A judge made award was not entitled to the same degree of

circumspection as a jury award (Purdie v William Allan & Sons 1949 SC 477 at 480).

[28] The defender replied that the sheriff had correctly applied the defence of fair

comment. There was no material difference between fair comment in Scotland and in

England and Wales (Wheatley v Anderson and Miller (supra); Joseph v Spiller (supra); Massie v

McCaig (No. 1) (supra); Massie v McCaig (No 2) [2013] CSIH 37). In any event, whether the

approach to fair comment was to be derived solely from Archer v Ritchie and Co (supra) and

Massie v McCaig (No. 1) or from Joseph v Spiller (supra), the sheriff upheld the defence.

[29] The words were comment and not fact. They were an “expression of an opinion”,

and thus fell within the ambit of fair comment (Archer v Ritchie and Co (supra); Massie v

McCaig (No. 1) (supra)). Whether the words amounted to comment was a question of fact, in

respect of which there was no basis to overturn the sheriff (Stocker v Stocker [2019] 2 WLR 1033

at paras 58-59, applying McGraddie v McGraddie 2014 SC (UKSC) 12). The words were

comment in the sense of being a value judgment (Butt v Secretary of State for the Home

Department (supra) at paras 46-49). The test was how the words would appear to the

ordinary reasonable reader (ibid; Wildcat Haven Enterprises v Wightman (supra) at para [22],

referring to Macleod v Newsquest (Sunday Herald) 2007 SCLR 555 at paras [13]-[14]).

[30] Context was relevant. The words were published in a newspaper column which was

devoted to opinion pieces and not breaking news. They were something that was or could

reasonably be inferred to be a “deduction, inference, conclusion, criticism, judgment, remark

or observation” (Clarke v Norton [1910] VLR 494; Branson v Bower (No. 1) (supra); Curran v

Scottish Daily Record and Sunday Mail 2010 SLT 377; Wildcat Haven Enterprises v Wightman

(supra) at paras [28]-[29]). The pursuer had not engaged with this leading definition of

comment. The ordinary reader would readily understand that the defender was offering her

opinion on the pursuer’s tweet, as with an allegation of anti-Semitism (Greenstein v Campaign

Against Antisemitism (supra) at paras 34-37) or extremism (Butt v Secretary of State for the Home

[31] The law did not require a narrative of the underlying facts (Wheatley v Anderson and

Miller (supra) at 143 and 147). For fair comment to apply, the comment had, explicitly or

implicitly, to indicate, at least in general terms, the facts on which it was based (Joseph v

Spiller (supra) at para 51, citing Kemsley v Foot [1952] AC 345 at 356, at para 72, citing Lowe v

Associated Newspapers [2007] QB 580 at para 57, and at paras 96-98, 105; cf Tse Wai Chun v

Cheng (supra) at para 19). Everyone knew what the article had been about. The subject

matter was firmly in the public domain. There had been several other articles about the

tweet. It had been covered by almost every newspaper and broadcaster in Scotland. It had

become notorious. There had been no need to set out exactly what it said. The only issue of

accuracy was the reference to a plurality of tweets. That was a minor inaccuracy, which did

not alter the basis for the comment (cf 1952 Act, s 6). In fact the original tweet would have

been sent to all of the pursuer’s followers and then re-tweeted by them. It was sufficient for

there to be a true foundation. It was a derogatory joke based on homosexuality. There was

[32] The comment was fair, although “fair” was a misnomer. It was better described as

“honest comment” (Joseph v Spiller (supra)). A critic did not need stick to what was

objectively “fair”. He or she could be prejudiced, exaggerated and obstinate. He or she

could “dip his pen in gall”, for the purpose of legitimate criticism (Joseph v Spiller (supra); Tse

Wai Chun v Cheng (supra)). Fair comment deprived the words of actionability even when

“couched in vituperative or contumelious language” (Archer v Ritchie & Co (supra) at 727;

Walker: Delict (2nd ed) 841; Norrie (supra) at 146-7 citing Caldwell v Bayne (1936) 52 Sh Ct Rep

334). Fairness required honesty and relevancy, in the sense that the facts afforded a

reasonable foundation for the comment (Wheatley v Anderson and Miller (supra); Massie v

McCaig (No. 2) (supra)). The sheriff found the comment to be fair because it represented the

defender’s genuine opinion and was warranted by the pursuer’s tweet. In referring to the

defender’s failure to investigate the pursuer’s other work, the pursuer had conflated two

issues; whether there was a factual basis for the comment and whether it was fair. Whether

enquiries had been made fell into the former category and not the latter (London Artists v

Littler (supra) at 392). When the pursuer made a derogatory joke with a gratuitous reference

[33] The sheriff’s assessment of damages should not be interfered with unless it appeared

to be out of all proportion to the true sum (Purdie v William Allan & Sons (supra)). Solatium

was designed to repair loss to reputation and injured feelings. There was no damage to

reputation. The sheriff had been entitled to take account of the pursuer’s own public

[34] The law in relation to the defence of fair comment in defamation actions is set out in

Massie v McCaig (No. 1) 2013 SC 343. There, it was said (LJC (Carloway), delivering the

“…Consistent with the general right of freedom of expression:

‘[T]he law will not allow a person to recover damages from another for

something the latter has said or published about him, although it may be

disagreeable, if the utterance is nothing more than rational liberty of speaking

would permit or common sense would support’ (Cooper [Defamation and

As it was put in Archer v Ritchie & Co (1891) 18 R 719 (Lord McLaren, p 727):

‘The expression of an opinion as to a state of facts truly set forth is not

In more modern times, Lord Ross was content in Fairbairn v Scottish National Party

[1979 SC 393 at 398] with defining the defence by quoting from Walker, Delict [1st ed]

‘…in fair comment the defender must show that each statement of fact is true,

that the matter is one of public interest, and that the comment on the facts is

The issue of whether something is a fair inference from the true facts is not

elaborated upon and is left to be decided upon the basis of what Cooper describes as

[35] The analysis must start with a determination of what the facts that generated the

comment actually were. The true fact is that the pursuer had tweeted that the nature of

Oliver Mundell’s public speaking was such that it would have been better if his father had

declared his homosexuality earlier whereby, it is said, his son would not have been born.

The terms of the tweet are not stated in the article. It is not now disputed that the article

was, in its reference to the pursuer as homophobic, defamatory. This is not a case of

innuendo. The article was defamatory because it stated inter alia that the pursuer had sent

out homophobic tweets; ie that he was homophobic. That is a straightforward direct

defamatory statement. Had the homophobia been a matter of innuendo, it is not easy to see

how fair comment would enter the equation (although cf Massie v McCaig (No. 1) (supra) at

[36] Since the article was defamatory, the next question is whether the defamatory

elements in it constituted comment, as distinct from fact. The test is how they would

reasonably strike the fictitious “ordinary reasonable reader” (see London Artists v Littler

[1969] 2 QB 375 Edmund Davies LJ at 398; Koutsogiannis v The Random House Group

[2020] 4 WLR 25, Nicklin J at paras [16]-[17] cited by Lord Clark with approval in Wildcat Haven

Enterprises v Wightman [2020] CSOH 30 at para [28]). This is simply an indication that the

issue is to be approached as a jury question or, in this case, one for the sheriff to determine at

[37] A comment may, and often will, contain an allegation of fact. It will nevertheless be

classified as comment, for the purposes of defamation, if, as it was put in the Australian case

“…something which is or can reasonably be inferred to be a deduction, inference,

[38] A significant element in the decision may be whether what is said to be comment is

readily identifiable as such and is not so intermingled with fact that it is not clear which is

which (Hunt v Star Newspapers [1908] 2 KB 309 Fletcher Moulton LJ at 319; Butt v Secretary of

State for the Home Department [2019] EMLR 23, Sharp LJ at para 39)). This will be less

important in a situation in which the adverse comment stems from a matter which, as here,

is already in the public domain (Joseph v Spiller [2011] 1 AC 852, Lord Phillips at para 98).

[39] It is important then to look at both the visual and textual context in which the article

appears. 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

[40] The defender set out the facts from which she drew the inference or conclusion

which has been determined to be defamatory. This is the reference to the pursuer having

sent “tweets” during the Tory conference which made reference to the Mundells. The

defender did not detail the foundation of her remarks, by setting out exactly what had been

said in the tweet. This may have been caused by a fear of compounding the effect of what

she regarded as an abusive tweet. Rather, the article presupposes that the ordinary reader

would have been aware, from other media outlets, of the general nature of the tweet and its

attempt at humour through the reference to David Mundell’s homosexuality. It was not

disputed that the nature of the tweet had become widely known, if not public knowledge.

In that sense, the terms of the article, coupled with the material in the public domain, are

sufficient to draw the reader’s attention to the existence of a tweet, or rather tweets, as the

[41] What the defender said was that the pursuer had: sent “homophobic tweets”;

engaged in “a Twitter tirade” against the Mundells, amounting to abuse; and spouted hatred

and homophobia towards others. The sheriff has held that, in their context, these words are

a commentary on the effect of what was a single tweet. The foundation of the defamatory

elements in the article; notably that the pursuer is a homophobe, was the tweet. These

elements are correctly classified by the sheriff as comment on that tweet. They are an

expression of a view about the pursuer’s attitudes, which are based upon a reading of what

[42] The defender requires to demonstrate the substantial truthfulness of the underlying

facts from which the inference or deduction of homophobia is drawn (Wheatley v Anderson

and Miller 1927 SC 133 Lord Hunter at 145). There is undoubtedly an error in the defender’s

statement of her factual basis in its reference to tweets (plural). Although the prospect of a

reader checking Twitter to ascertain whether there was more than one tweet is an unlikely

one, in its context, this error is of no materiality. The relevant facts, which were true, were

that a tweet had been sent. It had been sent by the pursuer. It contained material which was

[43] On whether the comment was fair, the question of whether homophobia and abuse

was a fair inference from the true facts is to be decided as a matter of “common sense”

(Massie v McCaig (supra) at para [30]). Put in those bare terms, this may not be particularly

helpful guidance, in that common sense has a remarkable propensity to vary when

introduced into legal disputes. The idea is clear enough. The question is: was it fair to say,

on the basis of the single tweet, that the pursuer was homophobic and abusive? Another

“warranted by the facts, in the sense that the latter afford a reasonable foundation for

the former” Wheatley v Anderson and Miller (supra) Lord Hunter at 145).

[44] This, once more, is to be approached as a jury question. It is not simply one of

whether the defender genuinely held the view that, given the terms of the tweet, the pursuer

was homophobic and abusive. There is an objective element of whether a reasonable person

could reach that, albeit erroneous, view. 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 Oliver Mundell’s father’s homosexuality. The defender’s comments

may have been expressed in strong, if not inflammatory, language. The fact that they are in

“vituperative or contumelious language” (Archer v Ritchie and Co (supra) Lord McLaren at

[45] In determining whether the defamatory material was comment and not fact, and

whether the comment was fair, the court has afforded the sheriff’s opinion due respect.

However, the court has not approached the matter by looking to see if the sheriff was

“plainly wrong” in his determination. Where the primary facts (principally the terms of the

article) are not in dispute, the court does not consider that the sheriff had any advantage

over the court by reason of having seen and heard the witnesses. The court has therefore

reached its own decision on the central matters in dispute, albeit that the conclusion matches

that of the sheriff. On the matter of the fairness of the comment, the court has not

approached the matter solely on the basis of whether the defender genuinely held the views

which she expressed. An additional objective assessment was required.

[46] Had the defender failed to establish that the defamatory comments were fair, a

significant award well in excess of the nominal sum of £100, which was selected by the

sheriff, would have been reasonable. The exercise which the court undertakes when

assessing solatium in a defamation case is “a free standing exercise which requires the court

to address the impact of the slander both to the feelings of the victims but also the damage to

their reputation” (Baigent v British Broadcasting Corporation 2001 SC 281, Lord Johnston,

delivering the opinion of the court, at para [26]). Although it has been said that “comparison

with other decided cases… is of very limited value” (ibid para [22]), the court is entitled to

consider what a jury might have done (ibid para [24]). Jury awards where there has been

substantial damage to reputation caused by newspaper reports are considerable (Sheridan v

News Group Newspapers 2017 SC 63; Winter v News Scotland 1991 SLT 828). Judicial awards

have been in a similar range (eg Wray v Associated Newspapers 2000 SLT 869). However, the

sheriff has found that there was no loss of reputation, having regard to the pursuer’s own

activities, and that damages fell to be assessed on the basis of “wounded feelings”. He was

correct to do so. Cases where there has been a serious impact on a person’s reputation, such

as McAnulty v McCulloch 2019 SLT 449, are therefore of little relevance.

[47] The sheriff was right to regard an accusation of homophobia as a serious one in

contemporary society. The article was published in a national newspaper with a substantial

circulation. The sheriff appears to have accepted that the pursuer was a man of principle,

who was genuinely offended by the article and regarded it as unpleasant to be referred to in

this manner. Although there are examples of parsimony in judicial awards in such

circumstances (eg Anderson v Palombo 1986 SLT 46, £200), the correct approach is to make an

award of some substance, even when there has been no serious impact on a person’s

reputation (Gilbert v Yorston 1997 SLT 879, £1,500; McCluskie v Summers 1988 SLT 55, £7,500).

The impact of a defamatory statement on a person’s feelings should not be underestimated.

Had the court found in favour of the pursuer, it would not have considered a nominal

award to be appropriate. It would instead have awarded £5,000 as solatium to represent the

[48] The court will accordingly refuse the appeal and affirm the sheriff’s interlocutor of

16 April 2019. In terms of section 32(4) of the Court of Session Act 1988, it states that, with

one minor exception, it finds the facts material to the cause to have been those found by the

sheriff to have been established by the proof. The court proceeded on the basis of these

facts; the exception being the final sentence of finding in fact [15] for which should be

substituted “A reasonable award of solatium would have been £5,000”. The court’s

reasoning on matters of law is as described herein.

Scottish Court of Session Decisions