Scottish Court of Session Decisions

The publication

"Lord Robertson - Sunday Herald

Last week, Lord Robertson settled his defamation claim against the Sunday Herald for a post by an anonymous contributor to our online reader forum in February 2003. (Full story: Business, page seven)".

"Robertson sues over Dunblane killer allegations".

The remainder of the Scotsman article, as reproduced, is illegible. To the right of the pursuer was a photograph of the masthead of the Scottish Daily Mail newspaper, with a small reproduction of an article from that newspaper, bearing the headline:

"Lord Robertson launches £200,000 action

NATO CHIEF SUES OVER DUNBLANE GUN LIES".

The remainder of the Scottish Daily Mail article is in tiny print, but the pursuer avers that the first sentence is legible and states:

"The head of Nato is suing for £200,000 damages over claims he was responsible for the Dunblane massacre."

Below the photograph of the pursuer, and the reproductions of the articles from the Scotsman and the Scottish Daily Mail, the article in the Sunday Herald was headed:

"Lessons from Robertson's victory

The £25,000 settlement of a case against the Sunday Herald by a Labour peer will inform future internet debate".

As the pursuer complains of the impression conveyed by the article as a whole, it is necessary to quote it at length:

"When Lord George Robertson accepted a £25,000 settlement over his 18‑month defamation battle with the Sunday Herald last week, it attracted predictably gleeful full-page reports in the Scottish Daily Mail and The Scotsman. The Scottish Daily Mail was particularly vitriolic. Its headline ran: 'Former Nato chief wins damages over paper's Dunblane massacre lies'.

Nothing new there, you might think. One paper settles a defamation case out of court in the most competitive newspaper market in the world, and certain sections of the media waste no time in shouting about it.

Back in March 2003, when Robertson issued proceedings against the Sunday Herald, those same two papers were the only ones to run extensive stories the next day. To explain the reasons and the background to the case the Sunday Herald places the following on record.

1. In February 2003, the Sunday Herald ran a story about the decision to apply a 100-year rule to the public release of the Dunblane massacre papers. The Sunday Herald asked readers for their views on the ruling. Readers were directed to the Sunday Herald online forums.

2. An anonymous contributor to the website posted a damaging allegation about Robertson. This was unknown to the Sunday Herald until three weeks later when, on March 4, Robertson, speaking from Nato headquarters in Brussels, contacted the Editor of the Sunday Herald, Andrew Jaspan. Robertson informed Jaspan about the 'website posting' to which another party had alerted him. He said he was furious about what was said against him and that it was very damaging. Jaspan said he would immediately investigate and they agreed that Robertson would call back later. The anonymous contribution was found, deleted and the online forums suspended within 15 minutes.

3. That evening Robertson called Jaspan at his home. Jaspan explained that the on-line editor had found the posting and acted as detailed above. Jaspan told him that he understood why Robertson would have been distressed by the story and apologised. They then went on to discuss amicably the impending war in Iraq.

4. On March 6, Robertson's lawyers, Bannatyne, Kirkwood, France (BKF), issued proceedings against the Sunday Herald and its publishers claiming damages of £200,000. The claim said the article on the 'site has a worldwide audience' and Robertson 'reasonably feared that the effect of the allegations made would diminish his chances of obtaining a suitable position following his standing down from his Nato post at the end of 2003'.

5. Simultaneously, the Scottish Daily Mail and The Scotsman, both legalled by BKF, the same firm that advised Robertson, carried front page and full-page stories on July 12 with full details of the case against the Sunday Herald. The papers said the £200,000 claim for damages by Robertson would be the biggest in Scottish legal history and The Scotsman crowed it might 'even force the Sunday Herald out of business'.

6. The Sunday Herald established that there were only 37 'hits' on that part of the website and along with its legal advisers and then publishers, SMG, a decision was made to contest the landmark case.

7. SMG sold the Sunday Herald to Newsquest in April 2003. Both parties agreed to continue with the defence of the action, given its landmark legal importance, but to put a ceiling on escalating legal costs a decision was taken to make a 'tender' payment into court of £25,000 two months ago.

8. The Sunday Herald's legal advisers were stunned to find that Robertson accepted the sum last Wednesday having initially claimed £200,000 damages.

9. On Thursday, the Scottish Daily Mail and Scotsman ran their gleeful reports that Robertson had won his defamation action against the Sunday Herald. The Daily Mail claimed an article in the newspaper defamed Robertson. Wrong again. It was an anonymous posting on the website.

Had the case continued it would have been the first time a Scottish court had ruled on whether an anonymous contribution to a website was grounds for defamation against the newspaper.

To avoid liability, the Sunday Herald would have argued the defence of innocent dissemination, which means the paper did not know it was circulating a defamatory statement.

The Defamation Act 1996 says the Sunday Herald would have had to establish: that it was not the publisher of the comments, and it must not have known or had reason to know there was a defamatory statement on the website.

To be able to argue you are not the publisher, the law seems to say that you must not take any editorial control over what is being posted. David Flint, a media law specialist at MacRoberts, says: 'With clients, I tell them you are better to not monitor the site than to monitor it, because if you monitor it, you are going to have a liability.'

This is supported, for example, by the English case of Godfrey v Demon Internet in 2001. The provider (Demon Internet) being sued did not regularly police what went on the site, and the judge held that it was not a publisher in terms of the Defamation Act (which equally applies in England).

'I think the ISP [internet service provider] probably has a defence of innocent dissemination until such time as it is told something is wrong,' says Flint.

Other companies seem to follow the same, looser approach as the Sunday Herald. BBC Scotland dropped most pre-monitoring on its message boards and chat rooms as usage grew, and now only responds to warnings from users.

The Guardian does not pre-monitor either. 'We stick rigorously to the policy, and if there are any complaints we act on them immediately,' a spokeswoman says.

Peter Watson, legal adviser to the Sunday Herald, said: 'Reader forums play an important new role in the democratic process. It encourages readers and the general public to take part, and become involved, in important debates.

'Newspapers are in a difficult position as things stand at present as to whether they should or should not monitor the contributions to their forums. The Sunday Herald became the victim of an anonymous contribution which they knew nothing about at the time it was made, but when alerted to it, they acted promptly. The paper understood why Lord Robertson was upset and immediately apologised.

'It was Robertson's decision to take the matter further and sue either the person who made the allegation or the newspaper. He chose to act against the newspaper. The Sunday Herald had always instructed us to resolve the matter amicably.'

Since leaving his Nato post Robertson is reported to be a director of the following companies: Cable & Wireless (part-time executive chairman, fee £250,000 a year); Royal Bank of Canada Europe (fee £100,000 a year); Weir Group (fee £25,750); Smiths Group (fee £30,000); Englefield Capital (estimated fee £100,000); Washington-based The Cohen Group (senior counsellor, estimated fee £250,000)."

The pursuer's complaints

"set out by false assertion and innuendo to portray the pursuer as an irrational bullying individual who raised spurious proceedings. It portrayed him as someone who raised Court proceedings without delay and in circumstances of hypocracy [sic]".

I shall consider each of these complaints in turn.

The first complaint

"I agree, of course, that you cannot escape liability for defamation by putting the libel behind a prefix such as 'I have been told that ...' or 'It is rumoured that ...', and then asserting that it was true that you had been told or that it was in fact being rumoured. You have ... 'to prove that the subject matter of the rumour was true'."

The person who claimed that the pursuer was responsible for the massacre made a defamatory imputation to that effect. The Scottish Daily Mail, when it reported that such claims were made, repeated the allegation and gave it wider currency. When the defenders reproduced the article from the Scottish Daily Mail, they repeated the allegation again and renewed its currency. It was accepted that the defamatory sting could, in principle, be drawn by the remainder of the article. Counsel referred in that regard to the English concept of "bane and antidote", which takes its name from the dictum of Alderson B in Chalmers v Payne (1835) 2 Cr M & R 156 at page 159:

"[If] in one part of the publication something disreputable to the plaintiff is stated, but that is removed by the conclusion, the bane and the antidote must be taken together."

It was, however, no answer to say that the body of the article made it clear that the defenders did not believe the allegation to be true: someone who repeated a defamatory allegation, with the rider that he did not believe it, was nevertheless responsible for defamation. Counsel cited in that context an American dictum quoted in Gatley on Libel and Slander (10^th edition, 2004) at paragraph 6.34:

"No character or reputation would be safe, if a mere statement of a person's disbelief of a rumour which the speaker was engaged in circulating could be made to defeat the right of recovery for the slander"

"The principle is, in substance, that a publication which advances and then purports to dispel a defamatory allegation can be acquitted of any possible defamatory meaning only in the very clearest of cases. Mud, in short, is likely to stick, and it is for a jury to say whether it has done so."

"Is the meaning sought to be attributed to the language alleged to be libellous one which is a reasonable, natural, and necessary interpretation of its terms?"

"If a newspaper gives circulation to a slander, it is simply in the position of any other person circulating a slander, and the general rule is that a person circulating a slander is answerable equally with the author of the slander."

"Prima facie this is a libel, and it makes no difference in law that the newspaper did not publish the calumny on its own authority, but gave currency to the story for what it was worth. The injury to the pursuer is exactly the same, whether the writer himself affirms the truth of the story, or whether he says that some lawyer or other person has affirmed it."

"Mr. Evatt contended that there are statements in the article that are defamatory of the plaintiff, and that the mere fact that contradictory assertions accompany them does not prevent the article from having a libellous implication, even though the added matter refutes or neutralizes the defamatory matter. He cited many authorities where this had been held to be the case, in which the expression 'the bane and the antidote' was applied. I agree that, in some cases, these examples will raise questions for a jury as to the proper implication to be drawn by a lay reader who is reading the document as a whole. It formed no part of the submissions of the plaintiff that this was a case where the facts were such that it could be alleged that, in the guise of refutation, an opportunity was being availed of to make or repeat defamatory allegations. The plaintiff's submission is plain and bald. He asserts that, where it is intended to clear a person of a defamatory stigma by a published statement, defamatory matter is necessarily published because the statement of his innocence supports an implication that it has previously been said or believed that the person has been guilty of discreditable conduct. In other words, to specify the nature of the allegation intended to be refuted, it is said, is plainly defamatory."

That contention was unsurprisingly rejected:

"The whole tenor of the article is to inform the reader that Mr. Bik was wholly cleared, and no fair-minded reader could imply that Mr. Bik bore any responsibility for the fatality."

In his concurring judgment, Taylor AJA said, at page 683:

"It is to be assumed that reasonable men, that is men of ordinary intelligence and education, who are also fair minded and entertain a sense of justice, read the article as a whole and in the context of its publication. ... The theme of the article is that allegations or suggestions that the plaintiff ... was in any way responsible for the unfortunate fatality are without foundation. ... It does not simply say that allegations were made, it says that allegations were made which were without substance, and which should not have been made, since to do so was an injustice to the plaintiff."

The invocation of the "bane and antidote" principle was rejected (at pages 683-684):

"Mr. Evatt, for the appellant, contended that this article in one part made statements derogatory of the plaintiff, and later says that there is no substance in these statements. Such an article he said, if part is defamatory of the plaintiff, must be left to the jury for them to say what is the effect of the denial on the defamatory matter. ...

But the defamatory matter we are here concerned with is not a question of bane and antidote. It is plain in this article that it is not being said of the plaintiff that allegations were made of him as set out in the innuendo. What is being said is that untrue allegations to that effect had been made and this was an injustice and a Minister of the Crown had after investigation stated that these allegations were without substance."

"The plaintiffs (as so often) were television actors, playing a blameless married couple in Neighbours. Pornographers devised a computer game in which their faces were superimposed on bodies of other actors and actresses intently engaged in deplorable intimacies. The News of the World reproduced two stills from the game with the headline 'Streuth! What's Harold up to with our Madge?' The plaintiffs alleged that many readers of such newspapers get no further than the headlines and that such persons would suppose that the plaintiffs had lent themselves to the depicted practices. The House of Lords did not dissent from this, but held that the test was what the ordinary, reasonable, fair-minded reader would understand, and that such a person would read the text, which clearly counteracted the defamatory effect of the headline and pictures"

(Weir, ibid). In his speech, Lord Bridge of Harwich cited with approval the following passage from the then current edition of Duncan & Neill on Defamation:

"In order to determine the natural and ordinary meaning of the words of which the plaintiff complains it is necessary to take into account the context in which the words were used and the mode of publication. Thus a plaintiff cannot select an isolated passage in an article and complain of that alone if other parts of the article throw a different light on that passage."

"There seems to me to be an unaddressed tension between the principle that the feasible range of meanings is to be derived from the article as a whole, read through the eyes of a sensible person, and the principle that if the article contains a defamatory statement or imputation, that will define its meaning unless it is very plainly negatived in the same article."

In relation to the latter principle of English law, I have quoted Sedley LJ's statement of the principle at paragraph 14 of the same judgment, to the effect that it is only in the very clearest of cases that the court can decide, as a matter of law, that the "antidote" has cured the "bane". Similar observations have been made in other English cases (eg in Mark v Associated Newspapers Ltd at paragraph 37 per Simon Brown LJ). Where an article contains a statement which is prima facie defamatory, I accept that the court may sometimes find it difficult to conclude, as a matter of law, that the article as a whole is nevertheless incapable of conveying a defamatory imputation, but I would not myself be inclined, so far as Scots law is concerned, to elevate that practical difficulty into a legal principle of interpretation. I also note that, while it may sometimes be difficult to reach that conclusion, it is by no means impossible, as is illustrated by Charleston v News Group Newspapers Ltd.

"Wrong again. It was an anonymous posting on the website."

In the latter sentence, the sense must be:

"It was an anonymous posting on the website [which defamed Robertson]."

"To avoid liability, the Sunday Herald would have argued the defence of innocent dissemination."

There is no suggestion that the newspaper would have argued that the allegation in question was true: on the contrary, the article explains that the defence of innocent dissemination "means the paper did not know it was circulating a defamatory statement". The article next explains that, in order to establish a defence of innocent dissemination, the newspaper must not have known or had reason to know that "there was a defamatory statement on the website". The implication is that the statement in question was indeed defamatory. Finally, in relation to the body of the article, it quotes the newspaper's legal adviser as saying that the newspaper "became the victim of an anonymous contribution", and that:

"The paper understood why Lord Robertson was upset and immediately apologised."

The implication is again that the contribution was indeed defamatory, and that the newspaper accepted that the pursuer's distress was justified.

"The head of Nato is suing for £200,000 damages over claims he was responsible for the Dunblane massacre."

I accept that that sentence implicitly asserted that such claims had been made. The distinction between stating:

"X is suing for damages over claims that he is Y"

and stating:

"Claims have been made that X is Y. X is suing for damages"

is purely formal; and the law of defamation is concerned with substance rather than form. Nevertheless, for the reasons I have explained, my conclusion is that the Sunday Herald article, read as a whole, cannot be understood by any reasonable reader as making, repeating, circulating or giving currency to the allegation that the pursuer was responsible for the Dunblane massacre.

The second complaint

"Would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?"

In the present case, the question, more particularly, is whether the words are capable of the particular defamatory meaning which the pursuer attributes to them. The answer to that question, as explained earlier, depends on whether the meaning sought to be attributed to the publication in issue is a defamatory one which is a reasonable, natural or necessary interpretation of its terms.

Conclusion