Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
Closed Expands Expression
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The Sheriff Court in Edinburgh, Scotland held that a newspaper article which had erroneously labelled a Scottish political commentator homophobic was fair comment. A Scottish politician had written the article in which she had discussed a tweet written by the commentator that an individual was “the sort of public speaker that makes you wish his dad had embraced his homosexuality sooner”. The article had described the political commentator as homophobic and as “someone who sprouts hatred and homophobia towards others”. Although the Court accepted that neither the tweet nor the political commentator were, in fact, homophobic, it held that as the politician had written her article based on a “rational and honest reading” of the tweet, the article constituted fair comment and she was not liable for defamation.
On March 3, 2017, the Twitter account “Wings over Scotland” tweeted, “Oliver Mundell is the sort of public speaker that makes you wish his dad had embraced his homosexuality sooner”. This account, with approximately 60 000 followers, was known to be run by Stuart Campbell, a pro-independence Scottish political commentator [para. 1]. Oliver Mundell is the son of David Mundell, the openly gay Secretary of State for Scotland, and David Mundell was one of many social media users who criticised the tweet as being homophobic.
At the time, Kezia Dugdale, the then-leader of the Scottish Labour Party wrote a regular column for the Scottish newspaper, The Daily Record, and on March 7, 2017 used this column to address Campbell’s tweets. She described the “Wings over Scotland” tweets as “homophobic” and the author of the tweets as “someone who sprouts hatred and homophobia towards others” [para. F]. The article received wide circulation, and although it did not directly name Campbell, because it was widely known that “Wings over Scotland” was run by Campbell the readers of the article would have understood that the article was directed at Campbell. Dugdale is openly gay and had been the target of previous abuse from Campbell’s website and twitter feed – although not in reference to her sexuality.
Campbell sued Dugdale for defamation in the Sheriff Court in Edinburgh.
Sheriff N. A. Ross delivered the judgment of the Court. The central issue for determination was whether Dugdale’s article was defamatory, or whether it constituted fair comment.
Campbell stressed that he was not homophobic and that, in his view, “no intelligent person could identify his tweet as homophobic” as it was satirical [para. 7, p. 9]. He said that he was hurt that he had been described as homophobic and that he was concerned that the allegation would stick [para. 9, p. 10]. His central argument was that he was insulting Oliver Mundell – not his (homosexual) father – and that “[t]o treat perceived discrimination as equivalent to actual discrimination leads … to a dangerous situation where people are at risk of being accused of hate crime” which he believed would be “very disturbing for civil liberties or justice” [para. 10, p. 10]. He maintained that if he had avoided making the joke in the tweet “simply because it involved homosexual reference” that would be in itself discriminatory [para. 12, p. 11].
Dugdale raised the defence of fair comment. She argued that she perceived the tweet to be homophobic because it considered “gay people to be lesser as they can’t or don’t have children” [para. 25, p. 14]. She believed that, as a gay woman, she was entitled to interpret the tweet as homophobic and that to do so was her honest view of the content of the tweet [para. 25, p. 15].
The Court examined the Scots law on defamation and noted that the determination of whether there was a defamatory meaning or innuendo is based on the “reasonable reader” test – as discussed in Curran v. Scottish Daily Record 2010 SLT 377 and Macleod v. Newsquest (Sunday Herald) Ltd 2007 SCLR 555 – that a court must apply its judgment to determine what a reasonable person would take from a reading of the material. This test requires that the article be interpreted as a whole and not be “strained or based in mistrust” [para. 42, pg. 19]. The Court defined the reasonable reader as “not naïve, nor unduly suspicious, and is not to be treated as selecting a defamatory meaning when non-defamatory meanings are available” [para. 42, p. 19]. The Court also referred to the English cases of Sim v. Stretch 1936 2 All ER 1237 which set out the test for defamation as being “Would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?” [para. 39, p. 18], and Russell v. Stubbs Ltd 1913 SC(HL) 14 which asked “Is the meaning sought to be attributed to the language alleged to be libellous one which is a reasonable, natural, or necessary interpretation of its terms?” [para. 40, p. 19]. In determining the defamatory nature of the material, the Court stressed that the author’s – in this case, Dugdale – intention is not relevant and that all it must determine is what a reasonable reader would conclude having read the material in question [para. 45, p. 20].
The Court defined the central theme of homophobia as “the fear, hatred or dislike of homosexuals, whether or not it involves discriminatory treatment as a result” [para. A], and acknowledged that in Scotland it was a “serious imputation on character and would lower a person in the estimation of society” to be labelled homophobic, that Campbell has a public reputation and that the article was widely circulated to people who would know it was Campbell being discussed [para. 43, pg. 19]. The Court held that as Dugdale had referred to tweets in plural, and that she used phrases such as “someone who spouts hatred and homophobia towards others”, a reasonable reader would conclude that the meaning of the article was that Campbell (and not just his tweet) was homophobic, and that the article was therefore defamatory [para. 45, p. 20].
Having determined that the article was defamatory, the Court examined the defences to defamation. The Court noted that there must be a balance struck between the competing public values of redress for “damaging comments about character” and free speech which means that “not every damaging comment about character will result in legal liability for harm or distress” [para. E]. The Court held that, despite Campbell’s argument that Dugdale’s statements were of fact, the article’s assertion that Campbell was homophobic must be interpreted as a matter of opinion [para. 48, p. 21]. However, the Court did examine defences that would have been available had the article constituted statements of fact. The Court dismissed the possibility of the defence that the statements were true as the evidence demonstrated that Campbell was not, in fact, homophobic. The Court explained that Campbell’s intention in the tweet was to insult Oliver Mundell’s speaking abilities “and the reference to his father’s homosexuality was intended as a basis for a jibe directed at the son” [para. C]. Accordingly, the Court held that “the tweet was not motivated by homophobia and did not contain homophobic comments” [para. D]. The Court accepted that Campbell was a “man of principle, even if the tone and terms of his expression are difficult to endorse” [note 33, p.17] and that he “has a history of supporting and promoting equal rights, including gay rights” [para. 9]. The Court also touched on the defence of qualified privilege, and referred to the English cases of Reynolds v. Times Newspapers Ltd  2 AC 127 and Flood v. Times Newspapers Ltd  2 AC 273. The Court noted that this defence could not have applied because the article would not have revealed anything that was not already in the public domain, there was no public interest in receiving Dugdale’s views and there was no new disclosure made [para. 90, p. 32].
The Court then discussed the defence raised by Dugdale that her article constituted fair comment. It referred to the Scottish cases of Archer v. John Ritchie & Co (1891) 18 R 719 and Massie v. McCaig 2013 SC 343 which had asserted that this defence is based on the principle that “the expression of an opinion as to a state of facts truly set forth is not actionable” [para. 55, p. 22]. Another Scottish case, Fairbairn v. Scottish National Party 1979 SC 393 set out the criteria for this defence as: “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 fair” [para. 56, p. 22]. The Court accordingly stated that the defence of fair comment is only available for “(i) comment, not allegations of fact; (ii) comment based on true statements of fact; (iii) matters of public interest; (iv) comments which are fair” [para. 57, p. 22-23].
The Court applied the criteria for fair comment to the present case and held that the statements in question were of opinion and not fact, that “the comment was based on supporting facts which were materially true” [para. 64, pg. 24], and that the case was clearly one which involved matters of the public interest because it concerned allegations of homophobia made by and against prominent Scottish public figures. The main area for the Court’s determination was therefore whether the comment was fair.
The Court referred to the Massie v. McCaig case which it described as the “most recent authoritative discussion in Scotland of fair comment” which had noted that “the issue of whether something is a fair inference from the true facts is … left to be decided upon the basis of … ‘common sense’” [para. 66, p. 25]. The Court accepted that Campbell’s tweet did not meet the definition of homophobia, but held that Dugdale’s comments that the tweet was homophobic were fair because, as was stated in the English case of British Chiropractic Association v. Singh  1 WLR, “[a] comment can be fair even though it is wrong.” The Court held that the defence of fair comment will apply as long as the statement in question can be rationally justified, and that “what is rational will differ from person to person” [para. 72, p. 26]. The Court also referred to the English case of Horrocks v. Lowe  AC 135 which had held that the reaching of an “honest” opinion requires only a positive belief that the conclusions [an individual has] reached are true” [para. 75, p. 26], and to the English law of fair comment as set out in Joseph v. Spiller  1 AC which held that a comment will be fair if a reasonable reader could work out for themselves what the author’s reasoning was. Although the Court stressed that this specific element is not a part of Scots law, it did accept that the test of common sense is flexible and that “if a commentator has set out their train of thought, to the point where the reasonable reader is able to assess the justification, it would be nonsensical to exclude that in assessing fairness” [para. 79, p. 28]. Here the Court identified that there is a distinction between the bald statement that “A is a homophobe” and the argument that “A is a homophobe for the following reasons” and stressed that a statement following the argument form is likely to be regarded as fair comment if their reasoning in that argument is rationally supportable [para. 79, p. 28-29]
The Court held that even though Dugdale’s subjective view was that gay people were being considered lesser because they can’t or won’t have children was not true, this did not negate the fairness of Dugdale’s comment. It noted that it is common sense that a heterosexual and homosexual reader would interpret the tweet differently and that it is not possible to dismiss the reading by a homosexual reader “as less worthy, or less rational, or less fair” than that of a heterosexual one [para. 78, p. 28]. It added that Dugdale’s reading “is the kind of subjective, rational and honest reading of the tweet, leading to a subjective, rational and honest public comment, which will be protected by the law as fair comment” [para. 78, p. 28]. Accordingly, the Court held that Dugdale’s article constituted fair comment.
In its concluding comments, the Court noted that the latitude given to criticism of public interest figures should be considered to apply only to criticism of political and not personal characteristics, and that as the comments in the present case were personal this latitude was not a consideration. With reference to Massie v. McCaig and Flood v. Times Newspapers the Court also stressed that even though the term “homophobic” has a “particularly toxic association” [para. 86, p. 31] and can be compared to the terms “racist” and “holocaust denier” this does not mean there should be any greater test and that “the ordinary requirements of the defence of fair comment apply” [para. 86, p. 31]. The Court commented that Dugdale’s article was not motivated by malice – even though it was clear that, given Campbell’s prior abuse of her, she did not like him or what he does [para. 90, p. 33]. The Court also emphasized that “[a] right to insult is part of free speech. It is better described as a freedom, because a right to insult is not specifically awarded by the law” [para. 100, pg. 34]
The Court also touched on the discussion in recent English case law – specifically, Greenstein v. Campaign Against Antisemitism  EWHC 281 and Stocker v. Stocker 2018 EMLR 15 and Stocker v. Stocker  UKSC 17 – on whether dictionary definitions should be the starting point in considering the meaning of an allegedly defamatory statement. The Court said that “understanding the ordinary meaning of a word is one thing. It is quite another to assume that every rational person understands the impression conveyed by that word in exactly the same way, or starts from a semantic dictionary analysis” [para. 86, p. 30].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Sheriff Court in Edinburgh, Scotland confirmed that an erroneous expression of opinion will still be protected by the law as fair comment if that opinion is honestly and rationally formed.
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