Scottish Court of Session Decisions

This was an action of damages for slander by Donald Horne Macfarlane, East India merchant, 62 Portland Place, London, against Alexander Black & Company, designed as printers and publishers, 83 and 85 George Street, Oban, and John Stewart of Coll, in the county of Argyll, jointly and severally, the publishers and printers of a newspaper called the Oban Telegraph and West Highland Chronicle, on the ground that they had published certain articles in that newspaper of and concerning the pursuer, who was at the time candidate for the Parliamentary representation of the county of Argyll, which were false and slanderous.

The pursuer averred that during the whole period of his candidature the defenders had persistently inserted and published, and caused and allowed to be inserted and published, abusive malicious, calumnious, and untrue statements regarding him, not only in his public capacity, but also in his private character as a gentleman, and in regard to his religious views. That a paragraph was inserted by the defenders in the issue of the said newspaper for 9th July 1886 entitled “Macfarlane the Scoffer.” That the paragraph was couched in most offensive terms, and proceeded—“The Irish people tolerate a few vices, but a political quack they at once dismiss. He talks to the ‘rabble’ in a vulgar and morally offensive way.” The same paragraph also put the question—“Is the man who would stand up before a respectable audience and speak sarcastically about ‘God Almighty's earth’ a man you could admire? The most ignorant crofter in the Highlands would blush to the roots of his ears if he had in an unguarded moment publicly used the same words.” That the said paragraph referred to the pursuer, and falsely, calumniously, and maliciously represented him as a scoffer at religion, as morally offensive in his public addresses, and as sneering at the Divine government and Providence.

The pursuer further averred that in the same issue of that newspaper the defenders had inserted and published a paragraph headed, “Mr D. H. Macfarlane's doings” in which, inter alia, it was stated—“It is also affirmed that a boat from Mr Macfarlane's yacht was observed fishing near the Lochy on Sunday. Mr John Boyd and other members of the local Land League are reported to be incensed at this conduct, and to have refused to give further support to Mr Macfarlane's candidature.”

The pursuer averred that it was untrue that any boat from his yacht fished or was observed fishing near the Lochy on Sunday.

The pursuer pleaded—“(1) The defenders having published in said newspaper a paragraph or paragraphs containing false and calumnious statements in reference to the pursuer, are liable in reparation. (2) The paragraphs libelled being calculated and intended to injure the pursuer, and having had that effect, the pursuer is entitled to reparation for the loss and damage thereby caused.”

The defenders pleaded—“(1) The statements of the pursuer are irrelevant and insufficient in law to support the conclusions of the summons. (2) The articles libelled having been only fair comment on the pursuer's political attitude the defenders should be assoilzied. (3) The statements of the defenders not having been false they are entitled to absolvitor. (4) The defenders not having slandered the pursuer are entitled to be assoilzied.”

The pursuer proposed the following issues—“(1) It being admitted that on or about 9th July 1886 the defenders wrote, and caused to be published in the ‘ Oban Telegraph and West Highland Chronicle’ of that date the article contained in Schedule A hereto appended, whether the said article or part thereof is of and concerning the pursuer, and falsely and calumniously represents him as a scoffer at religion, as morally offensive in his public addresses, and as sneering at the Divine government and Providence, or contains similar false and calumnious representations of and concerning the pursuer, to his loss, injury, and damage? (2) It being admitted that on or about 9th July 1886 the defenders wrote and caused to be published in the ‘ Oban Telegraph and West Highland Chronicle’ of that date the article contained in Schedule B hereto appended, whether said article or part thereof, is of and concerning the pursuer, and falsely and calumnionsly represents him as a person guilty of a public breach of the Sabbath observance, who was

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irreligious, and disregarded and outraged the religious opinions of others, and as guilty of such indecorous and improper conduct as rendered him unfit to represent the constituency of Argyllshire in Parliament, to the loss, injury, and damage of the pursuer? Damages laid at £1000.”

The Lord Ordinary on 7th December 1886 pronounced this interlocutor:—“Disallows the issues proposed by the pursuer: Finds further that there is no issuable matter in the record: Dismisses the action and decerns, &c.

“ Opinion.—In this case I am clearly of opinion that I ought not to allow any issue. There is no issuable matter on record, in my view.

“I take the two charges separately—the charges that are made the subject of the first and second issues. Under the first of these charges the alleged libel is contained in an article which alludes to Mr Macfarlane in connection with his candidature for the Parliamentary representation of Argyllshire, as having used the expression ‘God Almighty's earth;’ and the writer asks whether ‘a man who would stand up before a respectable audience and speak sarcastically about “God Almighty's earth” was a man whom you could admire.’ It is not denied that Mr Macfarlane used the expression. I do not know whether he used it or not, but he does not deny it, and it is not said that the expression is in itself exceptionable. We may not admire it, and I think it is an expression which has come from the New World, and has not yet been fully naturalised in our country. Anything said about the use of it in this article is simply an imputation regarding the good taste and literary qualities of the candidate who used these words; and I am of opinion that the article will not bear the interpretation that is put upon it in the first issue, as representing Mr Macfarlane as ‘a scoffer at religion, as morally offensive in his public addresses, and as sneering at the Divine government and providence.’ Nor do I think that by any amendment of the issue it is possible to spell a libel out of this article. I regard it as a mere vituperative attack, such as is common at election times, and as meaning nothing but opposition and dislike to the candidate. Of course if there had been anything really libellous, the imputation of a crime or anything that would outrage the public conscience or sense of propriety, the fact of it being made at an election time would not excuse it. But I really do not think this goes beyond the licence of newspaper comment upon election speeches. It is to be observed that the editor quotes the words ‘God Almighty's earth,’ and whilst he gives his opinion upon them he does not impute to Mr Macfarlane any intention beyond what he deduces from the words used.

“Now, with regard to the second issue, the alleged libel is of a different character because it is founded upon an erroneous statement of fact. The statement is in substance that Mr Macfarlane, by himself or his servants or guests on board the yacht, fished on the loch on a Sunday. It is said by the pursuer that the statement is untrue, and I must take it that the pursuer comes into Court offering to prove its untruth. But the question is, whether this imputation is not only false but calumnious? It is not necessary, in order that the statement should be caluminous, that it should impute a crime; a statement may amount to a libel if it accuses a person of what is universally considered to be an immoral act, or if it imputes conduct which is contrary to the generally accepted standard of honour or propriety amongst gentlemen—amongst the class of persons to which the individual aggrieved belongs. But I cannot look at this statement as falling under either of these categories. No doubt the denunciation of a candidate on a charge of fishing on the Sunday was calculated to be prejudicial to his election prospects, but I cannot regard the statement as charging something contrary to the generally accepted standard of morality in the community. Many persons hold that fishing, playing cards, or engaging in lawful sports are perfectly innocent when engaged in on Sunday, as much so as on any other day of the week. Others think quite the reverse. There is no statute against engaging in sport on Sunday, and the matter of Sabbath observance on the first day of the week is a matter on which there is a great difference of opinion in the community. Indeed, there are great differences even amongst theologians as to the degree in which the first day of the week may be lawfully devoted to recreation or amusement. That being the case, I think that however offensive this article may have been to Mr Macfarlane, it does not accuse him of anything criminal or immoral, and I do not think the article bears the interpretation put upon it in the issue. The act is not charged in the article as a breach of Sabbath observance, or as having been done from irreligious motives. I think it is quite possible that the editor knew that Mr Macfarlane was a Roman Catholic, and that a person of his persuasion would not feel bound by the views that prevailed in Argyllshire as to Sabbath observance.

“On the whole, I think that this article is nothing more than an exhibition of the usual licence of election articles. It differs from the other article in so far that it represents Mr Macfarlane as having done something which he did not do. But it does not follow from this that it is actionable, and the remedy for verbal or written attacks of this sort is, that the gentleman may defend himself in the same way, which I have no doubt Mr Macfarlane is quite able to do. I shall therefore find that there is no issuable matter in the record, and dismiss the action, with expenses.”

The pursuer reclaimed, and argued—The first issue ought to be allowed. The title of the article was a libel in itself, and it did not matter if the statements in the article which was complained of were not such as to make every person consider the pursuer to be a scoffer; the innuendo was to be gathered from the article itself taken along with the title of the article. The article and title respresented him as being a scoffer at religion— Coghill v. Docherty, October 18, 1881, 19 S.L.R. 96; Davis v. ‘The Witness” Newspaper, July 5, 1855, 17 D. 1050. The second issue ought also to be allowed. It was necessary to innuendo that the pursuer was regardless of the religious feelings of the people among whom he was, and it was for the jury to say whether the innuendo was justified.

The respondent argued—There was nothing stated in the first issue to justify the innuendo put upon it, and the title of the article in the

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newspaper could not of itself be held to be libellous. The writer of that article merely stated what had been said, and gave his opinion upon it, but that did not constitute a libel. The pursuer did not deny that he used the actual language imputed to him, but the imputation of scoffing was merely an opinion of the writer. The press was privileged in making remarks upon the public utterances of public men at such a time as a Parliamentary election— Davis v. Duncan, April 21, 1874, L.R., 9 C.P. 396; Cunninghame v. Phillips, June 16, 1868, 6 Macph. 926; Campbell v. Ferguson, January 28, 1882, 9 R. 467. On the second issue and article—A public breach of Sabbath observance must be something that the person said to have been libelled was himself guilty of. The innuendo meant that Mr Macfarlane was guilty of irreligious conduct, but the article itself would not bear that construction.

The pursuer also proposed the following issue, but finally withdrew it—“It being admitted that on or about 9th July 1886 the defenders wrote and caused to be published in the ‘ Oban Telegraph and West Highland Chronicle’ of that date the articles contained in Schedules A and B hereto appended, whether the said articles, or any parts thereof, are of and concerning the pursuer, and whether the pursuer is thereby calumniously and injuriously held up to public hatred, contempt, and ridicule, to his loss, injury, and damage? Damages laid at £1000.”

At advising—