With former Scottish Labour leader Kezia Dugdale winning the defamation case brought against her by Wings Over Scotland blogger Stuart Campbell, Rona Dougall discussed the judgement and the intricacies of the case with media lawyer David McKie.

Rona: David what did you make of the ruling?

David: I wasn't surprised. I thought she would win. And the reason I thought she would win is because fair comment is a very wide defence. It's got a wide latitude, in fact, it's probably a misnomer. And the comment doesn't always need to be fair provided it's an opinion, it's based on a factual premise and it's a matter of public interest and it's a genuinely held belief. So there were four boxes that Kezia Dugdale needed to take and she ticked all four of those boxes.

Rona: And it doesn't have to be correct. He said a comment can sometimes be fair even if it's wrong.

David: Well that was his opinion. The irony of this is that the judge expressed an opinion in the judgement. When a judge expresses an opinion, he's expressing a view as well which in a sense is a comment. So we're entitled to comment on what some people might agree with the judge. Others might not. It's a bit like football with referees. People talk about consistency. But I thought the sheriff in this case got the law right.

Rona: I mean some people say there's a bit of a fudge because and Kezia Dugdale and Stuart Campbell are both saying they have been vindicated here.

David: Well that often happens at the end of a court case. I don't think it was a fudge. The judge had to come down on one side or other of the legal argument. We have an adversarial legal system. Judges have a difficult job to do. I'm not sure whether he would have been caught in two minds during the case. I do know that it is possible. And when you're in court you don't always know the way the judge is going to go or what he or she is thinking. So but at the end of the day he had to make a decision and as I say there is an elasticity to the defence of fair comment that is quite different from standing up facts. The defence on a factual news article is quite different that's very narrow. Fair comment is very wide.

Rona: Where does this leave us in terms of freedom of speech? I mean is it okay to accuse someone of being homophobic now if you believe that to be true?

David: Well no that is not just about your belief. Your belief has to be an honestly held belief. But it also has to have a degree of factual basis on top of public interest element as well. So as I said at the beginning there were four boxes that she had to take. And by the way what Stuart Campbell had was very much a status all unarguable case. This appears to be quite a close case. And as I say the judge has got a difficult decision to make. But in terms of freedom of speech I think it's a victory for freedom of speech. As Kezia Dugdale said in Scotland it reinforces the importance of people being allowed to hear opinions even if those opinions appear to be the ramblings of a crackpot that in Scotland is something that we should continue in some respects to to allow.

The Story

The pro-independence blogger Campbell sued the Lothian MSP over a column she wrote in a national newspaper on March 7, 2017, referencing his "homophobic tweets".

In the article, Dugdale accused Campbell of posting a homophobic tweet targeting Scottish Secretary David Mundell's son Oliver, who is a Conservative MSP.

Campbell, 51, from Bath, denied the tweet was homophobic and tried to sue Dugdale for £25,000.

But on Wednesday it was ruled that although the MSP's accusation wasn't correct, her Daily Record column contained "the necessary elements for a defence of fair comment".

Following the judgement, Ms Dugdale thanked those who supported her throughout the case.

She said: "I am delighted to have won this case and hugely relieved after two long years of it hanging over me.

"This is an important judgement for the right to free speech and a healthy press. This ruling clearly demonstrates that every citizen is entitled to make comments as long as they are fair and reflect honestly held views."

Reacting to the decision on Wings Over Scotland Campbell said: "We're surprised and disappointed that despite the sheriff finding that I'm not a homophobe, and that it was defamatory to call me one, the judgement has gone in Kezia Dugdale's favour.