Curran v Scottish Daily Record & Sunday Mail Ltd [2011] ScotCS CSIH_86 (20 December 2011)

judgment of the Full Court, 24 November 2004, pages 116-118, 174, 181; McLeod v Jones [1977] 1 NZLR 441, page 444; Paul v Cheng [1998] HKCFI 1033; Irene Adams v Guardian Newspapers Limited 7 May 2003 ( Lord Reed ) . There was thus a uniform approach in the Commonwealth, in Australia , in New Zealand , in Hong Kong - all adopting Egger, and concluding that there could be no "cross-infection" of malice. [38] Cassel & Co Ltd v Broome [1972] AC 1027 was a House of Lords case involving seven judges. There it was held that where there were two defenders, one malicious, the other not, the latter was not to be saddled with the consequences of the malice of the former. [39] Section 4 of the draft Defamation Bill relevant to England and Wales was consistent with defenders' position: in particular the proposed section 4(6) brought in a "knew or ought to have known" test for the defence. [40] Scots law was to the same effect as Commonwealth law: Keay v Wilson (1843) 5 D 407, at page 409; Aiken v The Caledonian Railway Company 1913 SC 66 at page 71; Gordon and Maria Thomson v Sheriff Kenneth Ross 18 July 2000, Lord Eassie, paragraphs [60] to [62]. [41] Senior counsel finally submitted that an examination of the authorities, starting with Egger cit sup, traversing the Commonwealth, and returning to Scotland , spoke with one voice. Malice was a personal attribute, and did not transfer.

Whether or not Mr Sheridan was malicious was therefore nothing to the point when considering a case against The Scottish Daily Record or The Sunday Mail. [42] In conclusion (i) what was said was not defamatory; (ii) in any event, privilege attached and the parameters had not been overstepped; (iii) even if the parameters of privilege had been overstepped, that only went to demonstrate possible malice on the part of Mr Sheridan, and was irrelevant in a question with the defenders. The Lord Ordinary had not erred (other than to have been over-generous to the pursuer when suggesting that the position might have been different if Mr Sheridan had accused the pursuer of being a liar: Mr Sheridan was quite entitled to riposte in such a way, but he had not done so). The reclaiming motion should be refused. Discussion Defamatory meaning [43] Mr Sheridan characterised his dispute with NGNL as a political struggle, in which he represented the ideals and goals of socialism which NGNL sought to oppose and undermine. The articles about his private life were, according to Mr Sheridan, a concoction of lies being used by those politically opposed to him in order to undermine his political leadership and standing in the community, and to bring his political career to an end. He made it clear to everyone that he was looking for loyalty, commitment, and support against the forces of

anti-socialism. He in effect asked everyone, in particular his fellow members of the SSP, for total political loyalty, support and solidarity, a necessary part of which comprised a wholesale denial of all the prejudicial allegations concerning his private life, a united front when reporting what had happened at the SSP meeting in November 2004, and a wholehearted support of his account of events (as opposed to NGNL's). [44] On one view, the jury's verdict demonstrated such solidarity and support. By contrast, the pursuer's contemporaneous public press statements did not, for in those statements she accused Mr Sheridan of lying in the course of the civil jury trial, and in effect, by referring to "the minutes of our party which record the truth about Tommy Sheridan's standing down as National Convener in November 2004" , of having admitted, at the SSP meeting, that he had done what was described in the relevant parts of the press articles. Mr Sheridan's response was to accuse the pursuer publicly of political disloyalty and of being a "scab". In that context, the name "scab" would in our view be understood by the public as someone who had failed to support a cause (often involving striking workers or trade unions) - on this occasion, the cause being Mr Sheridan and socialism. In the article in question, in the context of Mr Sheridan's dispute with NGNL, the pursuer's actings

were characterised as a failure to be politically loyal to Mr Sheridan and a failure to support the cause of socialism. [45] There is a clear line of authority in Scottish law to the effect that a wide latitude is allowed to comment and criticism in the political and public sphere. In the late 19 th century, Lord Shand observed at page 1113 of Godfrey v W & D C Thomson (1890) 17 R 1108: "... I think that in these times persons must be allowed to speak pretty freely of public political conduct and principles ..." In the same case, Lord McLaren stated at page 1114: "In considering cases such as the present - actions of damages against newspapers of public speakers for defamation - it is to be remembered that it is the privilege of every citizen to express his opinions freely regarding the public acts and utterances of his fellow-citizens. It is sometimes said that everyone who occupies a public position invites such criticism, and it will not, I think, make the criticism actionable that it is uncourteous, or even offensive or vituperative, provided it amounts to nothing more than an expression of opinion on a matter of public concern ..." [46] In McLaughlan v Orr Pollock & Co (1894) 22R 38 at page 42, Lord McLaren noted that the issue in slander was: "... the imputation of something which is criminal, dishonest, or immoral in the character or actions of the person aggrieved ...

It is hardly necessary to point out that the constitution of this country tolerates the utmost freedom in the discussion of the conduct and motives of those who take part in its public business, whether in the higher plane of statesmanship or in the conduct of local affairs ... It is only when private character is attacked, or when the criticism of public conduct is combined with the suggestion of base or indirect motives that redress can be claimed on the ground of injury to reputation ..." [47] Lord McLaren further emphasised the distinction between the public and private capacity of an individual in Waddell v Roxburgh (1894) 21 R 883 at page 885: "... [it] is well recognised in practice that a different and stricter standard of construction is to be applied to calumnious expressions affecting a person in his business relations from that applied to expressions used of the same person in his public capacity. We have discouraged actions of damages directed against public men for language used by them whether in the more important field of general politics or in regard to the administration of municipal affairs, or even of charitable societies. No doubt language used of a public man may be libellous, as, for instance, if one were to accuse a member of Parliament of having obtained his seat by bribery, but such accusations are rarely made, and, as has been often observed, there

is practically no limit to the language that may be used in public controversy except that which is imposed by good taste and good feeling towards an opponent." [48] Similarly Lord Justice Clerk Aitchison in Cuthbert v Linklater 1935 SLT 94 at page 97 confirmed that: "... a statement may amount to a libel if it accuses a person of what is universally considered to be an immoral act, or if it imputes conduct which is contrary to the generally accepted standard of honour or propriety amongst gentlemen - amongst the class of persons to which the individual aggrieved belongs." [49] As was observed by Lord Kissen in Mutch v Robertson (1981) SLT 217, at page 222: "[When considering] the question whether [an article is] capable of having a defamatory meaning, [the] test is what the words complained of would mean to the ordinary man, and what the ordinary man without special knowledge would infer from them ... In applying that test to words used about a person in respect of his holding a public office, some latitude has been allowed to those who make criticisms of such a person ... [In this case,] the remarks about the pursuer ... related to his conduct in his public capacity only, and not to his conduct in his private life." At page 223, Lord Kissen went on to say: "I think that the defenders' submission is correct and the test to be applied to [the statements] is that they are

capable of bearing a defamatory meaning if an ordinary man could reasonably infer from them that the pursuer was dishonest or was guilty of dishonourable behaviour or if his public conduct was combined with the suggestion of base or indirect motives." See too Viscount Haldane in Langlands v John Leng & Co 1916 SC (HL) 102, at page 106 et seq; Gatley, Libel and Slander (11 th ed) paragraph 2.33. [50] The question whether the statement is capable of bearing a defamatory meaning is not affected by inaccuracies in the statement. As Lord Reed said at paragraph [5] of Irene Adams v Guardian Newspapers Limited, May 2003 : "... The issue is whether the imputation contained in the words complained of would tend to affect the pursuer adversely in the estimation of others. The truth or otherwise of the imputation is not germane to that question; and the falseness of a defamatory imputation does not deprive it of its defamatory character." [51] Strasbourg jurisprudence also emphasises the latitude given to statements about public figures and political matters. In Lingens v Austria (1986) 8 EHRR 407 , at paragraph 41, the European Court of Human Rights observed: "In this connection, the court has to recall that freedom of expression, as secured in paragraph 1 of Article 10, constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress

and for each individual's self-fulfilment. Subject to paragraph 2, it is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no 'democratic society'. These principles are of particular importance as far as the press is concerned. Whilst the press must not overstep the bounds set, inter alia, for the 'protection of the reputation of others', it is nevertheless incumbent on it to impart information and ideas on political issues just as on those in other areas of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them ..." [52] In Dlugolecki v Poland , 24 May 2009 , Application no 23806/03, the European Court further stated: "35. The limits of critical comment are wider if a public figure is involved, as he inevitably and knowingly exposes himself to public scrutiny and therefore must display a particularly high degree of tolerance (see Lingens v Austria ... ) ... 37. ... In the context of a public debate the role of the press as a public watchdog allows journalists to have recourse to a certain degree of exaggeration, provocation or harshness ..." [53] Against that

background, we turn to assess the averments in the present case. In our opinion, Mr Sheridan's response as reported in the article contained neither direct defamatory comments nor any of the defamatory innuendo suggested by Mr McIlvride (such as base, dishonourable, or dishonest motives, or hypocrisy). The response was a criticism of someone - in this case a member of the SSP - who had, in Mr Sheridan's view, failed to give him the political support and loyalty he needed in a political battle. Such criticism of public conduct in the context of a political struggle, even if strongly worded ("scab") and even if not always entirely accurate (as there was an apparent misunderstanding about whether or not the pursuer had actually given evidence at the trial), in our view falls well within the latitude permitted by the law where comments are made about persons acting in their public capacity. In particular, we are not persuaded that the article would lower the pursuer in the esteem of right-thinking members of the public. The public were well aware of the nature of Mr Sheridan's dispute with the NGNL. As was noted by Lord Macphail in Macleod v Newsquest (Sunday Herald) Ltd 2007 SCLR 555 (quoting Neill LJ in Gillick v BBC [1996] EMLR 267 ): "... (2) The hypothetical reasonable reader (or viewer) is not naïve but he is not unduly suspicious. He can read between the lines. He can read

in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking. But he must be treated as a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available ...". In our view, the readers of the article would appreciate that they were witnessing a political skirmish, with warring factions within the SSP and diametrically opposed views about how the party and its members should conduct themselves, including a characteristically forthright public berating by Mr Sheridan of those who, in his view, had failed to give him the unquestioning public and political support he needed in whatever way he demanded and at whatever personal cost to the individual. [54] In the result, we are not persuaded that the article dated August 2006 was defamatory of the pursuer. Whether in any event qualified privilege applied, on the basis of "fair retort" [55] For present purposes, we leave out of account the statement issued on 4 August 2006 by the SSP United Left, as there is a dispute concerning the pursuer's responsibility (if any) for that statement. [56] Mr Sheridan was undoubtedly attacked and criticised by the pursuer in the media in (i) her joint statement issued on 04/08/06 , and in (ii) her interview with a journalist on the evening of that date (and published the next

day, 5 August 2006 ). The pursuer called Mr Sheridan a liar, someone who had lied on oath in court (i.e. committed the crime of perjury), someone who had dragged the SSP through a court case, lying all the way, someone with paranoid imaginings that there was a plot to frame him. These were clearly serious allegations. [57] Mr Sheridan was therefore in law entitled to give a robust response: cf Gray v Scottish Society for the Prevention of Cruelty to Animals (1890) 7R 1185, at page 1198 (Lord Shand quoting Odgers, Libel and Slander, at page 232): "... communications made in fair self-defence are privileged. If I am attacked in a newspaper, I may write to that paper to rebut the charges, and I may at the same time retort upon my assailant, where such retort is a necessary part of my defence, or fairly arises out of the charges he has made against me. A man who has himself commenced a newspaper war cannot subsequently come to the court as plaintiff, to complain that he has had the worst of the fray ... the privilege extends only to such retorts as are fairly an answer to the plaintiff's attacks." [58] Lord McLaren commented at page 1200: "... it is the privilege of every citizen to express his opinion freely in matters which have been brought before the public, and that is specially true when a person is writing to a newspaper to defend himself against charges affecting his own

character and conduct. Great latitude must be allowed to a person so put on his defence and endeavouring to meet the case which has been brought against him..." [59] In the present case, Mr Sheridan did not respond by calling the pursuer a liar. He focused instead upon the main themes underlying his whole campaign, namely socialism against anti-socialist forces epitomised by NGNL; his hope and belief that he would be wholly supported by fellow socialists, and in particular by members of the SSP; the fact that the pursuer had (so far as he was concerned) demonstrated political disloyalty both to him and to his socialist cause - which in his eyes qualified her as a "scab"; and his resulting anger and disappointment, with the caveat that he and the pursuer might find it difficult to work together in the SSP in the future. [60] In our view, that retort, in the circumstances, came within the parameters of "fair retort". Thus the defenders were entitled to qualified privilege on the occasion that they reported that retort. Whether any malice alleged on the part of Mr Sheridan has any relevance [61] For the purposes of this question, we assume that the pursuer would be successful in proving malice on the part of Mr Sheridan (although clearly, malice is denied). [62] We are not persuaded that there is either principle or precedent to support the pursuer's contention that the

defenders' qualified privilege was derived from and was dependent upon Mr Sheridan's privilege, and that if Mr Sheridan's privilege were lost (because he acted maliciously, knowing that the accusations made against him were true) so too did the defenders lose their qualified privilege. [63] In the context of precedent, we accept that Mr Dunlop's full citation of authority, noted in paragraphs [37] to [40] above, discloses no support for the pursuer's proposition in any case report, text-book, or article. Neither, in our view, did the authorities cited by counsel for the pursuer. Brims v Peter Reid & Sons and McKercher v Cameron, cit sup, concerned the publication of an anonymous letter in a newspaper, and the court's view that "it is impossible to allow the defence of privilege in a case where the libel is an anonymous letter in a newspaper, and the writer is undisclosed". Cooper, The Law of Defamation (2 nd ed) pages 163 and 165, simply provided a commentary on those two cases. As for Adam v Ward, cit sup , there it was decided that an agent who obeyed his principal's command to publish a libel was able to benefit from any privilege enjoyed by his principal: but those circumstances are very different from the circumstances in the present case, where Mr Sheridan was not the "principal" and NGNL were not his agents, simply carrying out his orders. On the contrary, the owners,

editors, and other staff at NGNL were in control of the decision whether or not to publish the information obtained from Mr Sheridan. [64] Quite apart from the lack of precedent, we consider that there is no support in principle for the pursuer's proposition. Malice on the part of an individual is not necessarily easy to detect. Accordingly, to deprive a newspaper or other publishing medium of the defence of qualified privilege because the individual whose views were reported is subsequently proved to have been motivated by malice would, in our view, place too heavy a burden upon the publisher. [65] In all circumstances, we reject the pursuer's contention that malice on the part of Mr Sheridan would deprive the defenders of any qualified privilege enjoyed by them in relation to the occasion of publishing Mr Sheridan's response to the attacks made on him. Conclusions [66] We summarise our conclusions as follows: Whether the article had a defamatory meaning [67] For the reasons given in paragraphs [43] to [54] above, it is our opinion that the article complained of did not have a defamatory meaning. We therefore agree with the conclusions reached by the Lord Ordinary in paragraphs [29] and [30] of her Opinion. Whether in any event qualified privilege applied, on the basis of "fair retort" [68] For the reasons given in paragraphs [55] to [60] above, we consider that Mr Sheridan's

response comes within the parameters of a fair retort, and that qualified privilege applied to the occasion of the publication of the article. We therefore also agree with the conclusion reached by the Lord Ordinary in paragraphs [31] and [34] of her Opinion. Whether the malice alleged to have motivated Mr Sheridan has any relevance [69] For the reasons given in paragraphs [61] to [65] above, we are not persuaded that any malice on the part of Mr Sheridan (if such could be proved) has any relevance for the present case. In particular we are not persuaded that, if Mr Sheridan was proved to have acted out of malice, the defenders would lose the defence of qualified privilege. Decision [70] We shall refuse the reclaiming motion and adhere to the interlocutor of the Lord Ordinary dismissing the action. We reserve the question of expenses to enable parties to address us on that matter. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII