Taking Umbrage

389

Kezia Dugdale (Labour), David ‘Fluffy’ Mundell (Tory), Stuart Campbell (Not SNP)

At what stage does fair comment cross the line to defamation? What constitutes deliberate, malicious, concentrated attack on an individual’s integrity and honesty, carried out to such an extent it imperils or degrades that individual’s reputation? The verdict in this case is stated at the end of the essay report.

Wings versus Dugdale

The court case of Stuart Campbell, editor of the pro-independence website Wings Over Scotland, suing Kezia Dugdale, the former leader of the Scottish branch of the Labour party, is small potatoes in the annals of political cause célèbre. The Dreyfus Case it is not, nor is it a check on a British cabinet minster’s honesty requiring five upstanding judges to settle the issue. This is a civil matter requiring one judge, a sheriff. If the case has any significance it lies in the novelty of a new wave blogger establishing legal precedent. 

I attended all three days of the case in Edinburgh’s plush Sheriff Court, keen to judge matters at first hand. Another reason for my attentive attendance was, I am a casualty of the collective malignancy dished out by Labour party hacks and their puppet master the GMB union, regrettably endorsed by dim SNP officials. (I am being kind to the SNP.)

Sticks and stones

The case has little interest for the wider public beyond the sideshow of how politics can so easily resort to smear and innuendo to stifle a strong voice, a trait well remunerated, one might add, by the unsuspecting taxpayer.

In epitome, the case is Dugdale, a gay politician, called Campbell a homophobe. In court Campbell was described as a vile person, Dugdale, indirectly as stupid. Accusation and counter-accusation was the order of the day.

‘Gay’ has long been used to denote a homosexual person, thus robbing the language of a good word for light-hearted happiness. Political correctness being what it is, which is mostly cant and clap-trap, everybody is outraged as a matter of daily therapy. It is a national pastime overtaking jogging for non-productive exercise. We take umbrage at the slightest resentment. A passing sleight is condemned as blatantly offensive, or abuse.

The parameters of fair comment

The US of A brought the law to bear on trolling and harassment in the digital age. A New York harpy, hiding behind a pseudonym, defamed a catwalk model so unceasingly by Internet that, tracked down by the model’s gumshoe, and sued by the model, the court found the reputation of the model sufficiently damaged to fine the woman making the unwarranted accusations and have her pay damages. Other successful cases and claims have followed, most recently a black woman against white supremacists.

The case of Wings v Dugdale is different in that an openly gay politician feels homophobia  should be ‘called out’ whenever it appears, her exegesis that Campbell used a gay man’s sexuality as a joke. The American case is similar in that Campbell argues the defamation is intended to reduce his influence as a political commentator.

The accusation of homophobia rests on one short Twitter tweet Campbell made, his remark swamped by howls of condemnation from the pious and the malicious, the pundit and the pure at heart, raising the question when is harsh criticism character assassination?

Trial by tweet

Strangely, no evidence was produced to show Campbell had suffered damage to his reputation. His counsel did not argue loss of face, income, prestige, or career prospects. If anything, Dugdale’s accusation raised his public profile attracting readers to his website.

Campbell averred he was where he was because he felt angry and distressed at being maligned, ‘horrified and appalled’ as he put it. He and his counsel argued Campbell champions gay rights, and indeed he has “praised the US whistle-blower Chelsea Manning as a hero”, which when one thinks about it, is not quite the same thing. Manning is a man who wishes to be treated as if a woman.

Dugdale was also horrified and appalled. Her counsel argued she had every right to say what she said about Campbell in her Daily Record column and elsewhere. It was fair comment, her belief of his homophobia an honestly held view, a defence she returned to time and time again.

Asked by Campbell to withdraw the accusation, she refused, and so found herself in court facing Sheriff Nigel Ross, a possible £25,000 damages and the pursuer’s legal expenses. 

Tweet of tweets

To the specific: the tweet was aimed at the Tory secretary of state’s son, Oliver Mundell, whom Campbell felt a very poor public speaker. Here is what it wrote verbatim:

“Oliver Mundell is the sort of public speaker that makes you wish his dad had embraced his homosexuality sooner”.

To the uninitiated in Wingsonian barbs, that remark is not really funny or witty. The second part of the sentence, the punchline, doesn’t quite connect with the first part if unfamiliar with Mundell’s sexual orientation, or his son’s inability to deliver a speech. It leaves the non-informed reader puzzled by the comment.

Ambiguity does not in itself constitute guilt. That should be obvious to all, and I’ve argued this till Saltire blue in the face with my own legal adviser. Ambiguity should constitute abstruseness and nothing more. But one’s enemies are always frantic to determine calumny. What the sheriff has to calculate is, does it lead the casual observer to assume it is a homophobic comment, that there is no other interpretation, no doubt existing, and therefore the reader is justified in condemning it? If he leans to that view, Campbell is in trouble, but only if he finds evidence that Campbell is a homophobe.

In other words, a person can think a remark homophobic, but that does not mean the speaker of it is a homophobe.  In that situation we are faced with insult versus evidence.

Campbell maintains the gibe is aimed at Oliver Mundell’s inadequacy to enunciate, not at his father’s long suppressed sexuality. As I’ve tried to demonstrate, that is not obvious on first reading. Nevertheless, the leap from a political poke in the eye to alleged all-out hate speech underpins the entire case.

Ambiguity and contradictions abound in the sphere of defamation: detestation expressed at Scotland’s legitimate political ambitions is not considered offensive, nor categorising Scots as lazy, alcoholics, or “subsidy junkies”. Those epithets are all acceptable to the British press and politician, not in the least racist commentary, for no one has challenged them in a court of law to prove them otherwise.

Background to the fairground

Mundell Senior came out as gay in 2016, saying it was “one of the most difficult things” he has ever done, although he ought to have added, it was the most difficult thing next to his job as secretary of state, for which the record shows him to be wholly unqualified.

Writing in her Daily Record column a few days later, Dugdale said she was “shocked and appalled to see a pro-independence blogger’s homophobic tweets”. (She used the plural.) The emphasis appears to be on pro-independence, rather than on Campbell.

Acting for Dugdale, the gist of QC Roddy Dunlop’s counter-argument was: Campbell’s tweet “targets a gay man in order to deride his son”.

I cannot see how it targets Mundell Senior, only that it uses his sexuality to make a rather leaden point about his son. The tweet is emblematic of the Wings Over Scotland site; while its editor can recognise a good joke when somebody coins one, sophisticated humour is not his forte. Scorn is the predominant attitude. 

The grillings

Placed under intense interrogation, there’s was no doubting Campbell’s ability to give clear, robust answers while under the cosh. He often matched counsel’s cross-examination with a series of strong ripostes. Told his written language is often peppered with profanities and abuse, he did not bat an eyelid. ‘Abuse’ he preferred to call “being rude”. Sheriff Ross intervened to ask what distinction Campbell drew between being rude and being abusive. Campbell answered, abuse is attacking people “without provocation”. “So one is discerning and the other isn’t?” the sheriff asked. “Yes”, replied Campbell. M’Lord will have the last word on that matter.

Dugdale struggled to develop her argument under cross-examination. She stuck rigidly to circular justification. She believed Campbell’s remark homophobic and that was that. She caused amusement when she said she did not know who George Takei was, the gay actor (and activist) of Star Trek fame, or the sexual orientation of Trump’s father, ignorance quite refreshing, it seemed to me. Whenever caught out on a factual howler she excused the faux pas by believing it correct at the time she uttered it. They cannot be lies, she said in so many words, if they are honest error.

Campbell’s advocate, QC Craig Sandison, claimed Dugdale launched her defamatory attack because she had been “tormented” by Campbell’s constant articles deriding her honesty. He went on, “To accuse someone of homophobia puts a stain on a person’s character and lowers them in society’s eyes”, adding without a blush, “He is not a polite man, he doesn’t restrain himself in setting forth his views. He is not circumspect”.

The same but different

As I listened to the protagonists I was struck by Dugdale’s naivety and her chronic inability to express intelligence, yet taken by her calm demeanour in court; she stands to lose a lot if Campbell wins his action, including her bank account.

On the other hand, I was surprised by Campbell’s lack of charisma, his visage of the veritable Troglodyte. I did admire his intensity and his studied reasoning, though some will find his pugnacious persona unrelenting. If he and Dugdale share anything, it is a remoteness, and a belief they are right, come what may.

Witness for Dugdale, David Mundell, declined to appear, duly excused by Sheriff Ross.

Campbell’s counsel called two witnesses. The first was Colin Macfarlane, director of Stonewall Scotland, a charity fighting for lesbian, gay, bisexual and transgender rights, a group that has defined homophobia to save us the trouble of thinking for ourselves. The second was Paul Kavanagh, the author of couthy, (cosy and comfortable), popular pro-independence articles under the pseudonym Wee Ginger Dug. Both are gay men who look like bank managers and talk in a matter-of-fact way about their chosen paths.

Macfarlane considered Campbell guilty of homophobia. Kavanagh thought him innocent. In essence, Kavanagh’s argument was, being gay attunes one to anti-gay sentiment, better able to judge than the rest of us, an obvious truism but a poor line of reasoning. It follows, only a Jewish person can detect anti-Jewish hatred, and an African-American a racial slur, definitions self-evidently preposterous.

Now what?

Where does this leave the case and its outcome? Having read this far the reader will be disappointed to know I have not the slightest idea. It is impossible to say.

There are any number of permutations the presiding Sheriff could adopt. The question is whether the imputation – that Campbell is a “homophobe” – is true in general. ‘In general’ is the key phrase. Then again, there is something called ‘fair comment’.

The Sheriff will make his ruling in a few weeks. Scottish law is hazy on what constitutes hard and fast defamation as it emerges on the Internet, an area in legal flux, research ongoing, as it is in English law, an area on which the diligent advocates found themselves trawling extensively for precedent.

All I can say is, Campbell and Dugdale are public figures, people in the political arena used to wearing a skin as thick as a rhinoceros, and both are human, prey to hurt. The only thing they should fear is being ignored.

And in conclusion, M’Lord

To be frank, (if you catch my drift) were I gay I’d object to being introduced as a gay writer as much as I would a heterosexual writer. The terms gay, lesbian, what-have-you, seem redundant, meaningless categories. Why adopt a label? Human sexuality is a complicated thing. Surely we should judge a person by their acts of kindness and their integrity, not their sexual orientation?

Wondering why in a modern court of law, one laudably devoid of the worst of legal jargon, advocates and sheriffs insist on wearing 17th century perukes (wigs), and listening to the summations, an old, currently fashionable phrase came to mind…..

… if only Dugdale’s father had not met her mother….. and then I remembered he is a very strong supporter of Scotland’s independence. Nothing is plain black or white these days.

VERDICT:

As my perceptions of the case led me to reason, the verdict received on Wednesday 17 April, 2019, is a 50-50 judgement. Stuart Campbell is not a homophobe, but Kezia Dugdale’s accusation is fair comment. No damages awarded.

‘The sheriff found that “Ms Dugdale could [not] explain why the tweet was homophobic” by any known definition of the term, yet found her belief that it was to be fair on the grounds that she took an “impressionistic” approach to the meanings of words.’ 

Of Campbell’s original tweet Sheriff Ross added that, “The tweet was not motivated by homophobia and did not contain homophobic comments.” Sheriff Ross also agreed that “Campbell had demonstrated by his conduct over many years that he supports equality for homosexual people”.

Outcome: a pyrrhic victory for Campbell. For the opponents of civil rights and reason, the outcome is carry on, smearmongers! All is safe.

 

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25 Responses to Taking Umbrage

  1. Marconatrix says:

    I admire your ability to sit through all of this, and indeed save the rest of us. Thank you for your summary, the phrase “clear as mud” unfortunately comes to mind, regarding the case that is, not your own noble attempt to make some sense of it!

  2. Grouse Beater says:

    From the opposing arguments no one can guess with any certainty what the sheriff’s ruling will be. The case for both sides rang poor and rang good. I thought it equally balanced. Dugdale’s time in the witness box was, as expected, her poorest moment, but she had a rottweiler of an advocate who made up for her inadequacy. I’m loathe to give a verdict; on the balance of probabilities maybe Campbell on reduced damages. Then again, perhaps a draw. I am not a trained defamation lawyer. Whatever is the sheriff’s verdict, it will set precedent.

  3. Why did Stuart campbell introduce a witness Macfarlane from stonewall who spoke against Stuart’s case by saying he thought him homophobic ?
    Was this a mistake ?
    Wouldn’t he have been better with just the one witness Mr Kavanagh who spoke in Stuart’s favour?
    I’m puzzled by that

  4. Grouse Beater says:

    I didn’t understand the thinking behind it. Next day when Campbell’s counsel was cross examining Dugdale I rationalised it as, the first set a definition of ‘homophobia’, the second showed a gay man did not find the joke homophobic. It was not a clear cut issue, that there is only one interpretation. But I’m still puzzled. Why the Stonewall definition could not have been left to a written submission is a mystery.

  5. 1. I am not a trained defamation lawyer.
    2. Whatever is the sheriff’s decision, it will set precedent.
    3. Why if 1. are you so sure about 2. ?
    4. Sorry for being pedantic but I am genuinely curious bearing in mind your many experiences in court as a party litigant.

  6. Grouse Beater says:

    Can you name a similar case held in a Scottish court? If you can, then perhaps the judge will cite it in his forthcoming judgement. However, if one had existed the defence would have quoted it, had it gone against the pursuer, and vice versa, the pursuer’s advocate would have stated it as evidence his client should win the day. As I mention later in the essay, the law on Internet issues is still under discussion, hence ‘setting a precedent’.

  7. diabloandco says:

    Grousebeater , we can only wait for the verdict now . In the meantime how is your own ‘fight ‘ progressing?
    I had the misfortune to read the responses below the line to the Commander of the soldiers who had been using the photo of Mr Corbyn as a target and it brought home to me the mainstream media’s ability to twist ,muck spread and smear with little effort or thought, thus endangering people in the public eye.

    It also made me aware how easily folk are swayed and how little analytical intelligence is applied by some.

  8. Grouse Beater says:

    My fight is on hold pending the outcome of Wings’ battle. The modest sum raised, enough to pay initial research and send warning letters to key transgressors, will be used to pay for that legal service. Beyond that is a question mark. A good number of people shouted ‘anti-Semite’ but didn’t name names and so cannot be sued. And you’re correct about the neurotic reaction by fools. Told the essay was anti-religious and they read it as that without a shred of evidence it is so. Some folk need others to make up their minds for them.

  9. diabloandco says:

    will keep a purse at the ready!

  10. Grouse Beater says:

    I’m very reluctant to ask for donations, as friends will attest. Wings gets paid to assess daily newspapers and so it quite correct to ask for more in order to pursue those who’d defame his reputation for fairness. I do what I do voluntarily.

  11. Donald McGregor says:

    And so, a 50:50 outcome?
    Will the true feelings of the sheriff be reflected in the costs awarded? Or is the sheriff sort of hoping both will now swallow their pride and pay their own costs?

  12. Grouse Beater says:

    As I understand it, Campbell has not been awarded damages. I guess he will have to consult his lawyer to see if there’s a loophole by which they can appeal. I’d have thought, proven not guilty of homophobia, ‘some’ damages would be awarded, but there you are. The lesson handed down is, if you don’t want defamed don’t use Internet social media.

  13. Donald McGregor says:

    I’m maybe being too un-legal in my understanding, but no damages have been awarded, then what’s the default position over costs, that as I understand, both parties have racked up despite having had the option to call it quits, or have the thing resolved in a cheaper manner?

  14. Grouse Beater says:

    Neither are awarded costs, Campbell has not received damages, as far as I know.

  15. George S Gordon says:

    No damages, and no costs awarded YET. Wings still to decide on an appeal.
    Does the sheriff wait to see if there will be an appeal before deciding on costs?

  16. Grouse Beater says:

    Yes, the court won’t act on anything unless an appeal is lodged. Campbell has a limited time to do that. My personal view is damages sought, £25,000, too high. A high figure can appear excessive set against the context of the offence, a low figure going to a charity, tells a judge the pursuer is not greedy, but instead is acting on principal.

  17. George S Gordon says:

    It could also be argued that claiming a low figure (£1K?) means you are not too bothered, and I imagine Wings was advised on what to claim.
    He also offered her the option to withdraw her claims – claims which may be fair comment but the judge also said were wrong and defamatory.

  18. Grouse Beater says:

    The Sheriff handed back Campbell’s reputation clean of homophobia. Dugdale owes him an apology, but is not honourable enough to do that.

  19. Perhaps there needs to be some kind or mediation in cases like this. ‘look guys, this is all a bit he said, she said, can we agree to apologise for any hurt caused etc?

    WoS offered her the chance to donate £5k to charity & to apologise. She refused.

    Why he got so angry to take it all the way I don’t know. Ego, Revenge, whatever? He doesn’t need the money I’m sure. He is rude & arrogant & quite self opinionated. Her attack was because he was a Pro Indy man.

    She was way too quick to jump onto social media to claim victory AND give interview to BBC. She clearly has learned NOTHING from her experience. She is now a known liability who will find her political career decline even more.

    I see her going as an Independent with backing from some dark source, and still she will lose. The Labour party distanced themselves, either because they saw it as a lost cause or not worth the bother … or both.

    The Sheriff has opened a can of worms for sure!

  20. George S Gordon says:

    I see she is still whining about lack of support from UK Labour. And claiming victory of course.

  21. Grouse Beater says:

    She’s shameless.

  22. Alastair Naughton says:

    Can anyone tell me where exactly Stu offered KD the chance to retract? The reason I ask is that I got into a spat with a troll on the National website, during which I insisted he had offered her the chance to retract. He came back with a quote from the ruling suggesting he hadn’t, but I am sure he DID in fact offer her the chance to retract. Can anyone help? Thanks!

  23. Grouse Beater says:

    Alastair – Almost as soon as Dugdale’s piece was published Campbell challenged it, and then, I think, after angry tweets demanded an apology. I read it. He never received one, hence the court case, but I know he tried, twice in my recollection. He’s a registered journalist, and no matter what one feels about his tone, he always follows a set pattern that allows his opponents an honourable escape route.

  24. George S Gordon says:

    I believe GB is correct. With no response from Dugdale, Campbell then asked for £10K damages at an early stage. Dugdale then made her famous speech in Parliament. There is no doubt this had a political motivation, based on her belief that there are SNP politicians who follow Campbell’s tweets or read his blog. Hence she was trying to force MSPs, and especially the FM, to support her claim.

    She can do this under privilege rules, and I don’t think it was mentioned in court for that reason, but nevertheless it further promoted her claim that Campbell is a homophobe to the public, perhaps more so than her piece in the Daily Record since she got extensive coverage again in all the unionist rags and the BBC.

    I believe Campbell’s damages claim was only raised to £25K after that.

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