John McLellan: Kezia Dugdale and the defamation ‘lottery’

Kezia Dugdale resigned as Scottish Labour leader. Picture: John Devlin
Kezia Dugdale resigned as Scottish Labour leader. Picture: John Devlin
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Scottish Labour leader Kezia Dugdale may be quietly satisfied the defamation action launched against her by the Nationalist blogger Stuart Campbell, the man behind the Wings over Scotland website, is opening up divisions amongst independence activists.

At issue is a nasty Twitter comment by Campbell about Conservative MSP Oliver Mundell, saying he wished Mundell’s father, Scotland Secretary David, had embraced his homosexuality earlier and so Mundell Junior would never have been born.

Defamation is often a lottery and the question is who has the most to lose

• READ MORE: Wings Over Scotland begins fundraiser in Labour defamation action

In her Daily Record column, Dugdale accused him of homophobia and now Campbell is suing her for £25,000 damages and has launched a crowdfunding campaign to pay for the case. Whether Campbell’s tweet was homophobic or not has split Nationalists, some saying his comments were just robust political jibes against a hated foe, others that he has brought the movement into disrepute.

But has the Rev Campbell, as he styles himself, been defamed or not? From similar cases he could be on shaky ground.

Ex-Scottish Socialist MSP Frances Curran sued the Sunday Mail in 2010 for a column by her former colleague Tommy Sheridan which described her as a “scab”. Curran argued there could be no worse accusation against a committed Socialist but the judge ruled it was just a description of political disloyalty.

In 2007, the late political journalist Angus McLeod lost an action against the Sunday Herald in which diarist Alan Taylor described him as “justly renowned for his powers of invention”. The ruling was that readers would get the joke and not think it meant McLeod made up his stories.

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Ex-Scottish Media Group director Alistair Moffat unsuccessfully sued the West Highland Free Press in 2000 over an article describing him as the “Laird of Coocaddens’ in-house-bully”, a reference to the now defunct SMG’s HQ in Cowcaddens. The judge said calling someone a bully “does not mean he has been given to bullying”, so even if Campbell’s words were homophobic it does not necessarily follow he is a homophobe.

The caveat is that such jibes are not defamatory as long as they do not attack private character, and while Dugdale condemns the remark her article falls short of directly calling Campbell a homophobe. The court also has to decide if his reputation had been lowered in the minds of “right-thinking members of society”, but although Campbell is known for aggressive and controversial opinion that’s not impossible.

Normally the advice in a case like this would be to settle, but this is politics and if Campbell raises the money it could well go all the way.

Defamation is often a lottery and the question is who has the most to lose. I doubt it’s Campbell.

• John McLellan is director of the Scottish Newspaper Society and a City of Edinburgh Conservative councillor

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