Three of Scotland’s most senior judges have heard arguments in a virtual courtroom about a pro-independence blogger’s alleged defamation by Kezia Dugdale.
In a first in Scottish legal history, the panel met separately via video link while cases were put forward in the online Court of Session’s Inner House appeal.
Stuart Campbell launched the appeal after Scottish Labour leader Dugdale successfully defended his allegation of defamation last year.
His £25,000 action was launched after a newspaper column of hers was published on March 7 2017 in which she described tweets by the Wings Over Scotland blogger as homophobic.
Mr Campbell’s tweet at the centre of the row, made during the Conservative Party conference on March 3 that year, said: “Oliver Mundell is the sort of public speaker that makes you wish his dad had embraced his homosexuality sooner.”
In a written judgment, issued after the case was heard in April last year, sheriff Nigel Ross said Ms Dugdale’s article contained defamatory statements about Mr Campbell’s character but was protected by the defence of fair comment.
Judges Lord Carloway, Lord Menzies and Lord Brodie heard the appeal via video link on Tuesday.
Proceedings only had to be paused once when Roddy Dunlop QC, representing Ms Dugdale, appeared to lose connection on his laptop due to poor bandwidth and had to swap to using an iPad.
Mr Campbell’s QC, Craig Sandison, argued the defence should fail because identifying the blogger as a homophobe could be seen as a statement of fact rather than comment.
He said the use of the plural in tweets was false and could lead a reader of the article to believe Mr Campbell had used similar language on other occasions.
The lawyer described the comment about David Mundell MP as “gratuitous” but was merely a “subspecies” of a joke about wishing the MSP had never been born.
It was also heard Ms Dugdale had not read any of Mr Campbell’s other writings to reach a reasonable conclusion that he was a homophobe.
We are clearly in the territory of comment, not assertion of factRoddy Dunlop QC
Mr Sandison said: “There was a vast body of his publications, not only on his Twitter feed but also on his website – much of which was before the court in the first instance – which would have shown indubitably that there was nothing homophobic at all about the material, before committing herself to writing the article stating or implying that he was indeed a homophobe.”
The lawyer also argued the tweet was not actually homophobic.
Mr Dunlop argued the publication of the article as a column and the use of language such as “shocked” and “appalled” identified the piece as opinion.
He added: “We are clearly in the territory of comment, not assertion of fact.”
The lawyer also argued the use of the pluralisation of the tweet was acceptable in the article because it had been shared with thousands of his followers and was also retweeted.
Mr Dunlop said: “When one sends the blunderbuss tweet to the world at large, one loses the defence.”
It was heard the sheriff accepted the tweet amounted to a “derogatory” reference to homosexuality that gave a “factual basis” it had been homophobic.
Mr Dunlop also argued that Ms Dugdale does not need to go through all of the pursuer’s writings as long as her comment was based on a fact.
Lord Carloway, Scotland’s most senior judge, said a decision will be given in writing “as soon as it can”.
He addded: “The technology worked well from the Court’s perspective and the hearing captured the ambience of a physical courtroom.
“The judiciary fully support the promotion of virtual cases where it is technologically possible and appropriate in the current situation.”