Scottish Court of Session Decisions

Pursuer: Henderson; Haig-Scott & Co, W.S.

Defenders: Dunlop; Balfour & Manson

1 June 2006

Background

[1] This is an action in which the pursuer seeks damages for defamation arising out of an article published by the defenders in the "Evening Times", on 24 June 2005. The article concerned protests which were expected to accompany the G8 Conference planned to take place in Scotland in July of that year. The pursuer avers that he was at the time a member of an organisation called "Re-Shape Glasgow", which advertised its self as part of the Dissent Network. He avers that he made it clear to the defender's reporter that the disruption that he would participate in would be in the form of non-violent protest. He avers that it had been made clear to the reporter that the disruption to Glasgow businesses anticipated by the pursuer would arise out of a peaceful march around Glasgow in the form of "Make Borders History". That protest was intended to be a non-violent protest. He avers that in the article the defenders falsely represented that he was a leader and spokesman of "Dissent Network", who are planning to "wreak havoc in the city of Glasgow". He avers that the article made it clear that pursuer's group were part of the Dissent Network, which had been implicated in the bloody riots, including violent disorder, which broke out during May‑day protests in London 2001. He alleges that a proper reading of the article was that the pursuer associated with violent organisations and was conspiring to commit a violent form of breach of the peace (mobbing and rioting), and other violent criminal acts. In particular that there would be "threats" to Glasgow businesses and the plan actioned by the pursuer would be violent.

[2] The action came before me on the defenders' first plea-in-law, a general plea to the relevancy and the specification of the pursuer's averments, the argument for the defenders being that the article was not capable of bearing the meaning contended for by the pursuer.

[3] A copy of the article is lodged as 6/1 of process and during the discussion I was handed a copy of the newspaper itself. The article appears under a headline "Anarchist threats to Glasgow businesses" with the strap line "Activist says his group will wreak havoc as protests escalate ahead of the G8 Summit at Gleneagles". In the opening paragraph the article states that "Anarchist protestors today threatened to take direct action against Glasgow businesses. Members of the anti-capitalist Dissent Network have vowed to bring disruption to the city centre on Sunday 3 July - during the opening week of the Special Olympics". It goes on to suggest that anarchist groups were in "intent on causing disruption" during the G8 Summit and that protestors from the Dissent had set up base in a former factory in Glasgow. It goes on to state "and as more protestors arrived at the warehouse today, some of the extremist group's activists warned they would take action against Glasgow businesses. Chris Haickney who lives on the south side of the city, told how Dissent planned to wreak havoc in the city as part of a week of protests across Scotland at the start of July. Mr Haickney's group, Re-Shape Glasgow, which has an office on Pollockshaws Road, is part of Dissent Network which has been implicated in bloody riots including violent disorder which broke out during May day protests in London in 2001. ..... week of disruption will start in Glasgow on 3 July, when Mr Haickney promised activists would demonstrate in Glasgow. Asked whether Dissent protestors intended to demonstrate outside the businesses in the city he replied 'yes'. .... He would not reveal any further details of the action in Glasgow but trouble has erupted during past G8 protests at multinational changes such as McDonalds". The article then refers to proposed protests at Faslane followed by a planned rally at Dungavel. It then says "On 6 July Mr Haickney said that the group would head east to Edinburgh and Gleneagles to disrupt the summit of world leaders. However despite an anarchic manifesto which urges confrontation and civil disobedience, Mr Haickney said members of Re-Shape Glasgow were not interested in violent protests". Referring to the warehouse where protestors were staying Mr Haickney is quoted as saying "this is a place where people will be coming to stay and be safe. It is not a place where people are going to be taking a confrontational attitude". The article then reports "However, Mr Haickney, like several women pictured outside the warehouse earlier this week took offence when we tried to photograph him. Despite being a public place, he swore and lunged at our photographer for clasping a copy of yesterday's Evening Times". The article then quotes another member of Re-Shape Glasgow who said that the group was part of "a wider peace movement and did not condone violence". She said that she could not guarantee that members of Dissent would not use aggression against businesses in Glasgow saying "violence such as smashing up McDonalds or Starbucks is not something I partake in or condone. But I can understand why some people are driven by frustration to do this".

[4] In advancing the defenders argument Mr Dunlop first of all addressed the general approach to be taken to an issue such as this under reference to John Russell v Stubbs Limited 1913 SC (House of Lords 14 at pages 20, 23 and 24. Gillick v The BBC 1996 EMLR 267 at pages 272 to 273 and McCann v Scottish Media Newspapers Limited 2000 Scotslaw Times 256 at page 261. From those cases he submitted that before an issue of defamation can be remitted to proof the Court must be satisfied that the words complained of are capable of the defamatory meaning ascribed to them. That is a matter of law, the test being whether the meaning contended for is a reasonable, natural or necessary interpretation. It is for the pursuer in an action to state definitely the meaning which he alleges that the article or words complained of bear, and to put that meaning in issue. The Courts should give the words the natural and ordinary meaning which would they have conveyed to the ordinary reasonable reader who is neither naïve nor unduly suspicious. The Court should not be too literal in its approach, or carry out an over elaborate analysis of the material in issue. A strained and sinister interpretation is to be left out of account. Once it has been determined whether the articles convey the meanings complained of, the remaining question is whether that meaning is defamatory, which depends on whether it amounts to injurious imputation against the character or reputation of the pursuer or, in other words, whether it is such as to tend to lower the pursuer in the estimation of right thinking members of society generally.

[5] With that introduction Counsel turned to the meaning contended for by the pursuer which he submitted was to be found in the averments at page 10B that "a proper reading of the article was that the pursuer associated with violent organisations and was conspiring to commit a violent form of breach of the peace (mobbing and rioting), and other violent criminal acts. In particular that there would be 'threats' to Glasgow businesses and that the planned action by the pursuer would be violent".

[6] Dealing with the first of these alleged meanings, he submitted that this imputation is not set out anywhere so could only be derived at a matter of inference. Such an inference was not a reasonable, natural or necessary inference but could only arise from a strained interpretation of the article. What the article does say is that demonstrations are planned, that the pursuer is involved in the planning, and that there is a risk of the demonstrations being attended with violence. That is as far as it goes. It does not say that he was conspiring to commit mobbing and rioting or a violent form of breach of the peace. He conceded that the pursuer might have a stronger case on the first part of the sentence, the allegation that he associated with violent organisations, but submitted that it was not a proper reading of the article to infer that the pursuer was conspiring to commit a violent form of breach of the peace and other violent criminal acts. He submitted that there was no suggestion of conspiring or planning to commit violence in the article. He drew attention to the direct quotes from the pursuer which distance Re-Shape Glasgow from violent protest or confrontation. Reading the article as a whole and under the guidance of the cases cited by him he submitted that all the article does is advise the public that demonstrations are planned and warn them that previous similar demonstrations have been marred by violence. This does not amount to an allegation that the pursuer was conspiring to engineer such violence. He submitted that the assertion of a risk of a future event or a concern that something might happen was not equivalent to saying that an individual was planning or conspiring to bring that event about. He submitted that the situation could be equiperated with that in cases where an allegation that someone is suspected of some wrongdoing does not carry the imputation that such a person is guilty of the suspected wrongdoing. As examples he referred to the cases of Lewis v Daily Telegraph Limited 1964 Appeal Cases 234 at pages 258 to 260 per Lord Reid and page 274 to 275 per Lord Hodson; and Mapp v News Group Newspapers Limited 1998 Queens Bench 520 at pages 526 to 527 and 529.

[7] He conceded that the article, particularly having regard to the strap line and paragraphs 7, 10 and 12 might be capable of bearing the meaning that the pursuer associated with violent organisations i.e. the first part of the first meaning contended for by the pursuer. However the matter went no further.

[8] So far as the second meaning attributed by the pursuer this would only be defamatory if the second part of it, namely that the planned action by the pursuer would be violent, is the meaning properly to be drawn from the words complained of. He submitted that one cannot take from the article that the pursuer was planning violent action. He was planning protests certainly but the protest he was planning was of a non-violent nature. An assertion that the previous rallies have been attended with violence does not carry the reasonable inference that the pursuer himself was planning or intending violence. Turning to the first sentence of paragraph 4 alleging that "the pursuer was a leader and spokesman of 'Dissent Network' who are planning to 'wreak havoc in the city of Glasgow'", he submitted that it was unclear why this would be defamatory against the background of the pursuer's own averments. There he made it clear that the disruption that he would participate in would be in the form of non-violent protest, that he was a member of Re-Shape Glasgow which advertises itself as part of the Dissent Network and that he made it clear that "the disruption to Glasgow businesses anticipated by the pursuer would arise out of a peaceful march around Glasgow". He avers that the disruption to Glasgow business envisaged by the pursuer could not even encompass non-violent protest that would lead to arrest. Counsel for the defenders recognised that the first sentence of article 4 could add colour to the allegation that the pursuer associated with violent organisations. He said that although it might be reasonable to draw the inference that he was represented as a spokesman of Dissent Network, he was not represented as the leader of that organisation.

[9] In response Mr Henderson took no issue with the law as set out by Mr Dunlop. However he submitted that this was not a case relating to suspicion, such as Lewis or Mapp, but one where the proper reading was that the pursuer was implicated with a group which was threatening to wreak havoc on the city. He submitted that the disruption of business isn't capable of being described as "wreaking havoc" and was emotive, indicating more than severe disruption. He submitted that the defender was seeking to suggest that the words where a bane and an antidote, the bane being allegations which are clearly defamatory followed by the antidote which seeks to dilute those remarks. In this case the antidote consisted of quotations from the pursuer and another member of Re-Shape in relation to the peaceful nature of the organisation. He referred to Jameel v Times Newspapers Limited 2004 EMLR 31 665, in which the principal of bane and antidote was enunciated by Sedley L J as being that "a publication which advances and then purports to dispel the 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". At page 675 he said that the principle is 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". He submits that the averments on page 10 of the Record are an accurate interpretation of the meaning of the article. He then examined the article, drawing attention to paragraph 5 in which Dissent was described as an extremist group, paragraph 6 where the pursuer is associated with Dissent and paragraph 12 where the reference to trouble having erupted during the past was likely to concern the reader. The comments at paragraph 16 onwards about the peaceful nature of Re-Shape do not provide an antidote, particularly when one looks at paragraph 21 and 22 which refers to the pursuer swearing and lunging at the defenders' photographer. This tends to suggest that the paper does not accept that the pursuer is not planning violence and portrays him as a violent person. He submitted that a quote from another member of the organisation in paragraph 26, that she herself does not partake or condone violence but can understand why some people are driven by frustration to do, so was "telling".

[10] He submitted that the article went further than mere association with violent organisations but carries the imputation that the pursuer was planning violence. Counsel accepts that it would not be enough for his purposes for the article merely to hold the meaning that violence might erupt or even that it would erupt. For his purposes it was necessary for the article to have the meaning that the pursuer planned and intended violence to ensue.

[11] In relation to the case of Jameel counsel for the defenders submitted that this was not a bane and antidote case. There is in the first place no defamatory meaning and he referred to page 675 of the report where the Court noted that if the natural meaning of the publication was not defamatory there was no bane requiring an antidote.

[12] In my opinion, the article complained of is capable of bearing the meaning that the pursuer is associated with violent organisations. The first sentence of article 4 is relevant insofar as it lends colour to that assertion. I do not however consider that the article carries the remaining meaning contended for by the pursuer. I consider that it is not a "reasonable, natural or necessary" interpretation of the article that the pursuer was conspiring to commit a violent form of breach of the peace (mobbing and rioting) and other violent criminal acts or that the planned action by him would violent. These are the very specific meanings for which the pursuer contends and those are the meanings which I must address. The article does indeed suggest that violence might erupt from protests which were intended to be peaceful but that is not the same thing as saying that the pursuer was conspiring and planning violent criminal acts. I accordingly uphold the defenders' first plea-in-law to the extent of withholding from probation the words "and was conspiring to commit a violent form of breach of the peace (mobbing and rioting), and other violent criminal acts. In particular that there were would be 'threats', to Glasgow businesses and that the planned action by the pursuer would be violent". Having done so I allow the parties a proof before answer of their respective averments.