The two events were unrelated, but it was an apt coincidence that on the day it was announced the United Kingdom had climbed seven places in the 2019 World Press Freedom Index, Wings over Scotland pro-independence blogger Stuart Campbell deservedly and predictably lost his defamation action against former Scottish Labour leader Kezia Dugdale.
Before anyone gets carried away, 33rd out of 180 and still near the bottom of the Western European standings is not what we’d call in this business a splash. We’re even behind France, where the Press is constrained by tough privacy laws which have shielded politicians from scandal for decades, with only Greece (65th), Italy (43rd) and tiny Andorra (37th) ranked lower.
Paris-based pressure group Reporters Sans Frontieres, which runs the index, pointed out Britain’s rise was more to do with deterioration elsewhere, like Slovenia, where the murder of reporter Jan Kuciak is being linked to his investigations into tax fraud, and the Czech Republic where police are said to be intimidating journalists examining the affairs of Prime Minister Andrej Babis, an oligarch and media owner under suspicion of abusing EU funds.
In the UK’s credit column is Foreign Secretary Jeremy Hunt’s new international media freedom campaign, for which he has recruited Amal Clooney, and also the refusal to implement Section 40 of the Crime & Courts Act in England and Wales.
On the debit side is the arrest of Northern Irish journalists Trevor Birney and Barry McCaffrey in connection with the alleged theft of confidential material for their 2017 documentary No Stone Unturned about alleged police collusion in a 1994 UVF massacre of six Republic of Ireland football fans.
But there is also the failure to repeal Section 40, lost in the Brexit morass, but still sitting there waiting for a Culture Secretary who likes the idea of punishing publishers who refuse to join a government-approved regulatory system with a punitive costs regime in civil court cases even if they win.
For example, had Kezia Dugdale been pursued in an English court under these conditions, it would have been possible for costs to be awarded to Mr Campbell even though he lost, because the column in which she called him a homophobe appeared in the Daily Record which is not signed up to an approved regulator.
It’s hard to fathom a regime in which a case like Mr Campbell’s could be so comprehensively demolished by the judge and the winner still have to pick up all the costs, and even though Section 40 wouldn’t apply in Scotland it would certainly wallop the Record’s parent Reach plc and every other UK-wide publisher.
Campbell vs Dugdale itself is a key victory for freedom of expression, once again emphasising that people have right to voice honestly held opinions even if they are wrong, but also that those who put themselves up as commentators and critics – including politicians – should expect a bit of it back.
Sheriff Nigel Ross gave some succour to Mr Campbell by agreeing he was not a homophobe, but in measured legalese he ripped the case to shreds. Describing Mr Campbell as rude and abrasive, Sheriff Ross concluded: “I do not accept that he can hold others to a higher standard of respect than he is willing himself to adopt. He has chosen insult and condemnation as his style.”
The Defamation and Malicious Publications Bill currently at the consultation stage in the Scottish Parliament promises much-needed reform, and under the Serious Harm Test it proposes Mr Campbell’s case wouldn’t have got beyond his solicitor’s reception area, never mind into a court.
Sheriff Ross’s conclusion couldn’t have been clearer: Mr Campbell “suffered no quantifiable financial or other loss as a result of the article... There is no evidential basis to conclude that, in the two years since the article, he has lost any influence, reputation or credibility... There was no evidence of loss of followers, loss of opportunity, diminished influence or of outrage amongst the public”. In other words, Mr Campbell was seriously cheesed off but not seriously harmed.
Without a Scottish Section 40, Ms Dugdale’s team are in no mood to go halfers on costs and will seek full recovery. Mr Campbell will no doubt refuse, so it will be back to Sheriff Ross to decide.
If Mr Campbell came off second best, what about Ms Dugdale’s successor Richard Leonard who, having allowed the Labour party to abandon her by withdrawing funding guarantees, could only tweet: “This is an important win for Kezia and for free speech. She stood up to bullying and won.” The question is, to which bully is he referring? And with support like that, who needs enemies like the “rude and abrasive” Mr Campbell?
’First they came for the homophobes’
The mixture of homophobia and freedom of expression has taken another twist in the case of now ex-Australian rugby star Israel Folau and the support he received from England’s Billy Vunipola.
Unless you follow his Biblical interpretations, it’s impossible to have any sympathy for Folau’s view that homosexuals are going to Hell along with “drunks, adulterers, liars, fornicators, thieves, atheists, idolators”. Knowing rugby players as I do, Folau and Vunipola might find themselves without many team-mates in their version of Heaven.
But in a truly free society are they entitled to voice their opinions without fear of punishment? Any employee who repeatedly acts against their employer’s values and interests cannot continue to be part of that organisation, but Vunipola’s crime was simply to like Folau’s original social media post.
The views of the incomparable Matthew Parris, the former Conservative MP who is also gay, are instructive. “Many of the world’s major religions believe homosexuality is a mortal sin. Most of Africa does. So do many, many Christian churches and sects,” he wrote in The Times this week. “If an only moderately well-known sportsman may not signify his assent to somebody else’s expression of that opinion, then I begin to worry about our overall commitment to free speech. First they came for the homophobes.
“I prefer to live in a Britain where Mr Vunipola can say Hell awaits me, and I can say Mr Vunipola is a bloody fool to believe that.”
Thankfully Sheriff Ross agreed, and, homophobe or not, nobody is coming for Stuart Campbell.