Former MSP Frances Curran has failed in her attempts to sue the Daily Record for defamation over an article in which it quoted then Scottish Socialist Party leader Tommy Sheridan calling her a “scab”.
Curran launched the action over an article which appeared in the Scottish national daily tabloid in August 2006, in which Sheridan said he would “destroy the scabs who tried to ruin me”.
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The row followed the defamation case that same year in which a jury awarded Sheridan damages of £200,000 against the Scottish News of the World, which had reported allegations of infidelity and a visit to a “swingers'” club.
After the libel victory, Curran and other SSP members issued a joint statement in which they criticised Sheridan for having launched the case, saying he had dragged the party into the row and “lied his way” through the proceedings.
Curran was also involved in later statements criticising Sheridan. She launched her libel action against the Trinity Mirrow-owned Daily Record in August 2008.
In March 2010 the Temporary Lord Ordinary, Morag Wise QC, dismissed Curran’s action, holding that the article was not defamatory of her, and that it could in any event be characterised as a fair retort to an attack on Sheridan by Curran, among others, and so was protected by qualified privilege. Curran appealed.
In December 2010 Sheridan was convicted and jailed for perjury during the News of the World libel trial.
Curran subsequently amended her pleadings to add a claim that the newspaper could not be protected by qualified privilege.
She argued that Sheridan’s statements were actuated by malice, and so not protected by the fair retort claim, which, she claimed, in turn meant that the newspaper also could not avail itself of the qualified privilege defence.
The Extra Division of the Inner House of the Court of Session – Lady Paton, Lord Hardie and Lord Kingarth – rejected the appeal.
Sheridan’s case against NGN
Lady Paton, delivering the opinion of the court, said Sheridan characterised his dispute with News Group Newspapers (NGN), the News of the World’s publisher, “as a political struggle, in which he represented the ideals and goals of socialism which NGN sought to oppose and undermine”.
She went on: “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 News group Newspapers’).”
By contrast, Curran had accused Sheridan of lying during the civil jury trial, and in effect of having admitted that he had done what was alleged.
“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 NGN, 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.”
There was, Lady Paton said, a “clear line of authority in Scottish law” that a wide latitude was allowed to comment and criticism in the political and public sphere.
The question whether the statement was capable of bearing a defamatory meaning is not affected by inaccuracies in the statement.
The jurisprudence of the European Court of Human rights also emphasised the latitude given to statements about public figures and political matters – and the Strasbourg court had said that the limits of critical comment were wider if a public figure was involved “as he inevitably and knowingly exposes himself to public scrutiny and therefore must display a particularly high degree of tolerance”.
The court had also pointed out that “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 …”
Comments were not defamatory
Lady Paton said Sheridan’s response as reported in the article contained neither direct defamatory comments nor any of the defamatory innuendo which Curran had claimed.
“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,” she said.
“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 NGN.”
She went on: “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.”
On the issue of whether qualified privilege applied on the basis that Sheridan’s comments amounted to “fair retort” to an attack, Lady Paton said Curran had undoubtedly attacked and criticised Sheridan in the media, calling him a liar and perjurer who dragged the SSP through a court case and had paranoid imaginings that there was a plot to frame him.
“These were clearly serious allegations,” Lady Paton said. “Mr Sheridan was therefore in law entitled to give a robust response.”