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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Robertson v. Newquest (Sunday Herald) Ltd & Ors [2006] ScotCS CSOH_97 (28 June 2006)
URL: http://www.bailii.org/scot/cases/ScotCS/2006/CSOH_97.html
Cite as: [2006] CSOH 97, [2006] ScotCS CSOH_97, 2006 SCLR 792

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OUTER HOUSE, COURT OF SESSION

 

[2006] CSOH 97

 

A733/04

 

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD REED

 

in the cause

 

GEORGE ISLAY McNEILL ROBERTSON,

LORD ROBERTSON OF PORT ELLEN

 

Pursuer;

 

against

 

NEWSQUEST (SUNDAY HERALD) LTD

AND OTHERS

 

Defenders:

 

 

________________

 

 

 

Pursuer: Keen, Q.C., Henderson; Haig-Scott & Co

Defenders: Jones, Q.C., Dunlop; Balfour & Manson

 

 

28 June 2006

 

Introduction

[1] This action, in which the pursuer seeks damages for defamation, came before me for debate in respect of the defenders' plea to the relevancy and specification of the pursuer's averments. The debate was concerned exclusively with the question whether the words complained of were capable of bearing the defamatory meaning averred by the pursuer. It was accepted that, if that question were answered in the affirmative, issues of privilege arose which could only be resolved after proof.

The background

[2] The pursuer was a Member of Parliament between 1978 and 1999, Secretary of State for Defence from 1997 to 1999, and Secretary General of NATO from 1999 until December 2003. Since then he has been a director of various companies. The first defenders are the owner and publishers of the Sunday Herald newspaper. The second defender was at the material time the editor of the Sunday Herald. The third defender was at the material time a journalist employed on the Sunday Herald.

[3] As well as being a newspaper, the Sunday Herald also has an online edition. The website had at the material time a section in which members of the public could air their views.

[4] On 9 February 2003 a notice was posted on the website by a member of the public. On 9 July 2003 the pursuer commenced proceedings against the first defenders in which he sought damages on the basis that the notice was defamatory of him. In July 2004 the first defenders intimated a tender, in terms of which they offered to pay 25,000 plus the expenses of the action. The pursuer accepted the tender, and final decree was pronounced on 14 September 2004.

 

The publication

[5] In its edition of 12 September 2004, the Sunday Herald carried on one of the pages of its principal section a brief notice:

"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)".

 

[6] A longer article (which is incorporated into the pursuer's pleadings) was printed on page 7 (the "Media" page) of the Business section of the newspaper. The article was headed by a photograph of the pursuer. Superimposed on the photograph, to the left of the pursuer, was a photograph of the masthead of the Scotsman newspaper, with a small reproduction of an article from that newspaper, bearing the headline:

"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

[7] The pursuer avers, in relation to the announcement in the earlier part of the newspaper, that "that announcement was, of itself, defamatory". The pursuer's averments do not, however, explain how or why the announcement was defamatory, and counsel for the pursuer did not respond to the submission on behalf of the defenders that the words in the announcement were incapable of bearing a defamatory meaning. In the circumstances, I am satisfied that the averment in question is irrelevant.

[8] So far as the main article is concerned, the pursuer makes two complaints. The first is that, as a consequence of the reproduction of the article from the Scottish Daily Mail (and, in particular, its first sentence), the article in the Sunday Herald repeated the false allegation that the pursuer was responsible for the Dunblane massacre. The second is that the article:

"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

[9] In relation to the first complaint referred to in the preceding paragraph, counsel for the defenders submitted that the article could not reasonably be understood as alleging that the pursuer was responsible for the Dunblane massacre. The article did not contain or repeat an allegation that he was in fact so responsible. Read as a whole, as it ought to be, the article could not reasonably be understood as alleging that the pursuer was responsible for the Dunblane massacre: on the contrary, it explained that he had sued in respect of that allegation and had received an apology and damages. Reference was made to Russell v Stubbs Ltd 1913 SC (HL) 14, James v Baird 1916 SC (HL) 158, Lewis v Daily Telegraph Ltd [1964] AC 234, Gillick v British Broadcasting Corporation [1996] EMLR 267 and McCann v Scottish Media Newspapers Ltd 2000 SLT 256.

[10] In reply, counsel for the pursuer submitted that the article plainly contained, in the sentence reproduced from the Scottish Daily Mail, a repetition of the allegation that the pursuer was responsible for the Dunblane massacre. Counsel for the pursuer relied on the principle referred to in recent English authorities as the "repetition rule", which was summarised by Lord Devlin in Lewis v Daily Telegraph Ltd at pages 283 to 284:

"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 (10th 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"

 

(Nicholson v Merritt (1909) 109 Kentucky R 369 at 371). In any event, the report did not state that the allegation was untrue. Reference was also made to Charleston v News Group Newspapers Ltd [1995] 2 AC 65, Baldwin v Rusbridger [2001] EMLR 1063, Jameel v Times Newspapers Ltd [2004] EWCA Civ 983, [2004] EMLR 31, and (as to the circumstances in which a plea to relevancy ought generally to be sustained) Jamieson v Jamieson 1952 SC (HL) 40.

[11] Counsel for the pursuer thus began by considering a particular sentence contained in the publication. That sentence was said, by applying the repetition rule, to convey the defamatory imputation for which the pursuer seeks damages. That imputation could only be removed on the "bane and antidote" principle; and it was only in the clearest case that the court could reach the conclusion, as a matter of law, that the imputation had been so removed. In that regard, counsel cited the judgment of Sedley LJ in Jameel v Times Newspapers Ltd at paragraph 14:

"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."

 

[12] Counsel for the defenders on the other hand adopted, as I have explained, a fundamentally different approach, which began and ended by considering the effect on the reader of the publication as a whole, and did not accept that the "repetition rule" had any application.

[13] It appears to me to be necessary to analyse with some care the different principles, or so-called principles, on which each party relied. So far as Scots law is concerned, the general principle of interpretation to be applied when deciding whether a publication is capable of bearing the defamatory meaning attributed to it by the pursuer has been variously expressed in the authorities; but it would be difficult to improve on the formulation adopted by Lord Shaw of Dunfermline in Russell v Stubbs Ltd (at page 23):

"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?"

 

One of the difficulties in the law is that the "repetition rule" is, in my opinion, in conflict with that general principle: for the repetition rule is a rule of law which has implications for the meaning attributed to the statement in question. By holding the reporter of a defamatory allegation liable for the defamatory imputation conveyed by the allegation, and requiring him to establish the truth of the allegation (and not merely the accuracy of his report that the allegation had been made), the rule treats the reporter as if he had himself made the allegation, and not merely reported it; and it enables the pursuer to attribute to the report the defamatory imputation which the allegation itself contained. The rule thus attributes to a statement a meaning which the statement might not otherwise be considered to bear. As Simon Brown LJ observed in Stern v Piper [1997] QB 123 at pages 135 and 138:

"The repetition rule ... is a rule of law specifically designed to prevent a jury from deciding that a particular class of publication - a publication which conveys rumour, hearsay, allegation, repetition, call it what one will - is true or alternatively bears a lesser defamatory meaning than would attach to the original allegation itself. By definition, but for the rule, those findings would otherwise be open to the jury on the facts; why else the need for a rule of law in the first place?

... [T]he repetition rule is indeed a rule which, where it applies, dictates the meaning to be given to the words used."

 

One commentator has observed:

"Simon Brown LJ makes it clear, as does the decision itself, that the 'repetition' rule is designed to prevent the jury finding that the newspaper was merely reporting, not adopting, the allegations in question. In other words, even if it is made crystal clear - so that the jury is unanimously of opinion that no one could think otherwise - that the defendant is merely reporting the fact that so-and-so has said X and not taking any position about whether X is the case or not, the defendant must be held liable if X is defamatory and there is no privilege"

 

(Weir, A Casebook on Tort, 9th edition, 2000, page 531). Although the reasons for the rule (which were explained as well as they can be by Simon Brown LJ in Mark v Associated Newspapers Ltd [2002] EWCA Civ 772, [2002] EMLR 38 at paragraph 29) are perhaps not altogether convincing, there is no doubt that the rule is firmly established within its proper field of application: namely, the class of publication which, in the words used by Simon Brown LJ in Stern v Piper, "conveys rumour, hearsay, allegation, repetition".

[14] Although no Scottish authority was referred to in this connection, it is apparent that it has also been accepted in Scots law that the reporting of a defamatory allegation conveys the same imputation as the allegation itself. The leading Scottish cases are of some assistance in determining the proper application of the rule. In Wright & Greig v George Outram & Co (1890) 17 R 596, for example, a newspaper had reported evidence given in court proceedings, in the course of which the witness was reported as having made a defamatory allegation concerning the pursuers. The opinions are concerned primarily with the question whether the report attracted privilege, but Lord Kyllachy noted (at page 599) why (as was conceded) the report was defamatory if privilege were not established:

"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."

 

[15] In Pope v George Outram & Co Ltd 1909 SC 230 a newspaper had reported that the pursuer was accused in divorce proceedings of having committed adultery with a married woman, and that he denied the accusation. That was admittedly true. The newspaper contended that the report was not capable of conveying the imputation that the pursuer had in fact committed adultery as alleged. That contention was rejected. Lord McLaren stated, at page 235:

"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."

 

[16] I note that these cases were concerned with situations where a newspaper was "circulating", or "gave currency" to, a defamatory allegation. They were not concerned with situations where the allegation was mentioned (or was conveyed by inference) in an article whose tenor was destructive of any defamatory imputation.

[17] The situation might be considered, for example, where a newspaper reports that a person has been acquitted of a criminal charge. An acquittal cannot be reported without conveying (expressly or by implication) that the person was previously charged with a criminal offence; but the report of the acquittal cannot reasonably be understood as impugning the character of the person in question (provided, at least, that he had in fact been charged: cf. Lewis v Daily Telegraph Ltd at page 285, per Lord Devlin).

[18] Another illustration might be taken from the Australian case of Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679n, which concerned a newspaper report of a Ministerial statement to Parliament clearing the plaintiff of an allegation that he was responsible for a fatal accident. The nature of the allegation was mentioned in the statement and in the report. The plaintiff's argument, which bore some resemblance to that advanced on behalf of the pursuer in the present case, was summarised by Herron CJ at page 682:

"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."

 

[19] In relation to the "bane and antidote" principle, it was accepted in Stern v Piper (at page 136 per Simon Brown LJ) that a publication which reported a defamatory allegation would not itself be defamatory, and would not therefore fall within the scope of the repetition rule, "if, say, the defamatory sting of the article had been wholly removed by surrounding words".

[20] It appears to me that the latter approach - where part of the article, if it were read in isolation, would convey a defamatory imputation, but the remainder of the article prevents such an imputation from being conveyed - should be understood, at least in Scots law, as a particular example of the more general principle that a publication must be considered as a whole. That principle has long been established in Scots law and can be illustrated by Russell v Stubbs Ltd, where the publication of the pursuer's name in a list of persons against whom decrees in absence had passed (described by the pursuer as a credit blacklist) was held to be incapable of conveying to any reasonable mind the imputation that the pursuer was unable to pay his debts, by reason of a footnote to the list which stated that "in no case does publication of the decree imply inability to pay".

[21] The necessity of considering the impact of the publication as a whole, before deciding whether it is defamatory, was authoritatively re-affirmed more recently in Charleston v News Group Newspapers Ltd. The case can be summarised as follows:

"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."

 

[22] In Jameel v Times Newspapers Ltd, Sedley LJ observed (at paragraph 16):

"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.

[23] Turning to the article with which the present case is concerned, it appears to me that the correct approach is to consider the article as a whole and to determine whether it is capable of conveying to a reasonable reader the defamatory imputation alleged by the pursuer, rather than focusing on a sentence considered in isolation. This was the approach adopted in the present case by counsel for the defenders. Following that approach, the repetition rule would not apply unless the article was reasonably capable of being understood as repeating the claims that the pursuer was responsible for the Dunblane massacre. If the meaning of the article was not in substance to re-state or re-publish those claims, then the repetition rule would not arise.

[24] The article is concerned primarily to answer criticism of the Sunday Herald in other newspapers by explaining the background to the case and the reasons for its making a payment in settlement. That appears from the first three paragraphs. Most of the remainder of the article (from "Had the case continued" to the end of the penultimate paragraph) is concerned with the potential liability of a newspaper for a contribution by a reader to its website, and the scope of the defence of innocent dissemination. It is to those matters that the headlines "Lessons from Robertson's victory" and "The 25,000 settlement ... will inform future internet debate" refer. There are few references to the substance of the pursuer's complaint; and such references as there are make it clear that his complaint was well-founded. The main headline refers to his "victory", implying that his complaint was vindicated. The sub-headline ("25,000 settlement") indicates that he received a substantial payment. The first sentence contains a further reference to the "25,000 settlement", and quotes the Scottish Daily Mail's headline referring to the Sunday Herald's "Dunblane massacre lies". What follows indicates that the Sunday Herald was not the author of the allegation in question, but does not suggest that the allegation was anything other than false.

[25] Turning to the numbered paragraphs, paragraph 2 refers to "a damaging allegation" being posted by an anonymous contribution without the Sunday Herald's knowledge. It states that the contribution was deleted within 15 minutes of its coming to the Sunday Herald's knowledge. Paragraph 3 narrates that the editor told the pursuer that "he understood why [the pursuer] would have been distressed by the story", and that he apologised. Paragraphs 6 and 7 explain the decision to defend the proceedings brought by the pursuer as being based on the "landmark legal importance" of the case: an importance which the article goes on to explain as concerning the liability of the operator of an internet site for contributions posted by members of the public. There is no suggestion that the case was defended on the basis that the allegation was true: on the contrary, the report has explained that the pursuer had already received an apology from the editor. Paragraph 7 explains that the offer in settlement was made to protect the newspaper's position in relation to expenses, and paragraph 8 narrates the surprise of the newspaper's legal advisers that the offer was accepted. Paragraph 9 corrects the report in the Scottish Daily Mail that the pursuer had been defamed by an article in the Sunday Herald newspaper:

"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]."

[26] In the remainder of the article, concerned with the legal aspects of the case, it is said that:

"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.

[27] Set in that context, the photographs of the articles from the Scotsman and the Scottish Daily Mail can be seen as illustrating the background to the article, by showing earlier coverage of the story in the two newspapers whose criticisms of the Sunday Herald the article was designed to answer. I assume, as I must, that the first sentence of the Scottish Daily Mail article is legible, and states that:

"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.

[28] Even if I were to follow the approach adopted by counsel for the pursuer, and begin with the sentence which mentioned claims that the pursuer was responsible for the Dunblane massacre, I would arrive at the same conclusion. The sentence in question, in its original context in the Scottish Daily Mail, might well have fallen within the scope of the repetition rule: at the time of its publication by the Scottish Daily Mail, that newspaper might have been regarded as "circulating a slander" (in the phrase used by Lord Kyllachy in Wright & Greig v George Outram & Co) or as giving "currency to the story" (in the phrase used by Lord McLaren in Pope v George Outram & Co Ltd). In its context in the Sunday Herald article, however, published in the light of the pursuer's victory (as it is described), the sentence can no longer in my opinion be regarded in the same way. The publication of the photograph of the Scottish Daily Mail article would not, in its context, be understood by any reasonable reader of the Sunday Herald as circulating the allegation concerning the pursuer or giving currency to it. The whole tenor of the article is that the allegation against the pursuer was untrue; and the article cannot reasonably be understood as adopting or repeating that allegation.

 

The second complaint

[29] I turn now to the second complaint: that the article portrayed the pursuer as "an irrational bullying individual who raised spurious proceedings" and as "someone who raised Court proceedings without delay and in circumstances of hypocracy [sic]". In support of that complaint, counsel for the pursuer founded primarily on the paragraphs in the article numbered 3 and 4. Those paragraphs, it was argued, conveyed the impression that the pursuer had initiated proceedings less than 48 hours after an amicable discussion with the second defender about the situation in Iraq. In fact, as the pursuer offered to prove, the pursuer had made it clear during his conversation with the second defender that his solicitor would be in touch. There had followed correspondence between that solicitor and solicitors acting for the defenders. Although a claim had been intimated on the date mentioned in paragraph 4, proceedings had not been begun until 4 months later, once it became clear that the defenders were unwilling to offer compensation. The pursuer also offered to prove that the number of "hits" mentioned in paragraph 6 was less than the number mentioned in the first defenders' pleadings in the earlier action. Counsel also submitted that the figure of 25,000 mentioned in paragraph 7 might be thought by the ordinary reader to be inclusive of expenses (whereas, in fact, expenses were offered in addition), and to amount to no more than the recovery of expenses.

[30] The issue at the present stage is not whether what was said was accurate, but whether it was capable of conveying a defamatory imputation. In deciding the legal question whether a statement is capable of being defamatory, the classic test is that expressed by Lord Atkin in Sim v Stretch [1936] 2 All ER 1237 at page 1240:

"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.

[31] In the present case, I am satisfied that no reasonable person reading the article in question would conclude that the pursuer was (or was portrayed as being) irrational, bullying or hypocritical, or given to raising spurious legal proceedings. Far from portraying the pursuer as irrational, the article states in paragraph 3 that the second defender understood why the pursuer would have been distressed by the story. The newspaper's solicitor is quoted, later in the article, as again stating that the paper understood why the pursuer was upset. There is no suggestion that it was irrational of the pursuer to bring proceedings: on the contrary, the report that he received 25,000 in settlement of the action implies that his decision to bring proceedings was vindicated. I can see nothing in the article to support the contention that it portrays the pursuer as bullying or hypocritical. The contention that it portrays him as raising spurious legal proceedings appears to me to be equally without foundation, particularly given that the payment of a substantial sum in settlement is reported.

[32] The matter which counsel for the pursuer placed at the forefront of their argument, as I have mentioned, was the apparently short space of time between the pursuer's amicable conversation with the second defender, on the evening of 4 March, and the supposed issuing of proceedings on 6 March. It was the contrast between amicable discussion and the raising of proceedings two days later which was said to portray the pursuer as irrational and hypocritical. As I have indicated, I cannot accept that any reasonable reader would interpret the article as bearing that implication. I do accept that the implication is that the pursuer raised court proceedings without delay. I do not, on the other hand, accept that that implication is capable of being defamatory: to say that the Secretary General of NATO raised court proceedings without delay, when defamed by what was described in the article as "a damaging allegation", could not tend to lower him in the estimation of reasonable or right-thinking members of society. On the contrary, for a person in that position to raise proceedings without delay could only be regarded as reasonable and understandable. Indeed, although such prompt and firm action would be particularly understandable on the part of a person occupying such a prominent position in public life, I cannot imagine that it would be defamatory of anyone to say that he had responded to a damaging allegation by raising legal proceedings 48 hours later.

 

Conclusion

[33] In the circumstances, I shall sustain the defenders' preliminary plea and dismiss the action.

 

 

 


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