EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Eassie Lord Menzies Lord Brodie	[2013] CSIH 46 A681/10 OPINION OF THE COURT delivered by LORD BRODIE in the reclaiming motion of DAVID LYONS Pursuer and Reclaimer; against STEPHEN HOUSE, QPM, CHIEF CONSTABLE OF STRATHCLYDE POLICE Defender and Respondent: _______________

Act: Bovey QC, G Henderson; Drummond Miller LLP (for Ross Harper, Solicitors, Glasgow)

Alt: Maguire QC, Dawson; Simpson & Marwick

5 June 2013

Introduction

[1] The pursuer is a sole trader who runs a garage business trading as Applerow Motors. The defender is the Chief Constable of Strathclyde Police.

[2] On two occasions the defender has advised regulatory bodies that intelligence held by Strathclyde Police indicated that the pursuer was involved in serious and organised crime, including drug trafficking.

[3] The first occasion was on 17 October 2007 when a police officer acting on behalf of the defender wrote to the clerk City of Glasgow Council Licensing Committee objecting to an application, in terms of section 24 of the Civic Government (Scotland) Act 1982, by one M for the grant of a second-hand dealer's licence in respect of premises at 730 Balmore Road, Glasgow. The letter of 17 October 2007 stated that M had advised an officer of the Strathclyde Police Licensing Branch that "the business was leased for free" from the pursuer who was described as "a close associate" of M and M's father who had previously applied for a licence. The letter continued by stating inter alia, that the pursuer "is involved in serious and organised crime including the trafficking and supply of class A drugs."

[4] The second occasion was on 8 March 2010 when a police officer acting on behalf of the defender wrote to the Director of Intelligence of the Vehicle and Operator Services Agency in the following terms:

"Intelligence

4. Strathclyde Police operate the Scottish Intelligence Database (SID) which contains information and intelligence from a wide variety of sources, some of whom cannot be more fully described, which spans a considerable period of time.

...

David Lyons is documented on the Scottish Intelligence Database as being involved in Serious and Organised Crime and has many criminal associates who are involved in violence, money laundering and the acquisition and distribution of controlled drugs.

Intelligence provides that David Lyons has come to prominence through his criminal associations and an ongoing feud between rival criminal families. Current intelligence suggests that after the recent murder of a rival in the Glasgow area, David Lyons is fearful of a revenge attack which may take place at Applerow Garage. As a result of this information Strathclyde Police have increased patrols at the premises and surrounding area.

It is the opinion of Strathclyde Police that David Lyons, who is currently licensed under the Vehicle and Operator Services agency and holds an operator's licence under the Ministry of Transport, is not fit and proper persons (sic) to hold such a licence and is a danger to public safety due to his links with Serious and Organised Crime."

The pursuer's case

[5] The pursuer, while accepting that he is from a family various members of which have serious criminal records, denies that he is involved in serious organised crime. He avers that he has "led a straight life."

[6] In this action the pursuer has sued the defender for damages at common law for defamation and, by virtue of section 13 of the Data Protection Act 1998, in respect of contravention by the defender of the requirements of that Act. He seeks declarator that "any assertion to the effect that the pursuer is involved in serious and organised crime including the trafficking and supply of class A drugs is false." He also seeks interdict of the defender or others on his behalf "from representing that the pursuer is involved in serious and organised crime including the trafficking and supply of class A drugs".

[7] The pursuer's pleadings include averments to the effect that the defender had no power to process the information complained of and, separately, that processing the information was in breach of the pursuer's rights to privacy and confidentiality at common law. However, these averments are not related to any plea-in-law and nothing was made of them in argument. Mr Bovey expressly accepted on behalf of the pursuer that the defender was not acting ultra vires in communicating with the regulatory bodies. We therefore do not take these averments on powers, privacy and confidentiality to be part of the pursuer's case.

Decision by the Lord Ordinary

[8] The action was discussed on procedure roll. For reasons given in her opinion, the Lord Ordinary concluded that the pursuer had not averred a relevant case of actionable defamation. She found the pursuer's case under the Data Protection Act 1998 to be wholly misconceived. In any event, in her opinion, the Court of Session could not competently pronounce a declarator that the pursuer was not involved in criminal activity. She dismissed the action.

[9] The pursuer has reclaimed.

The Data Protection Act 1998

[10] "1.‒ Basic interpretative provisions.

(1) In this Act, unless the context otherwise requires‒

'data' means information which‒

(a) is being processed by means of equipment operating automatically in response to instructions given for that purpose,

(b) is recorded with the intention that it should be processed by means of such equipment,

(c) is recorded as part of a relevant filing system of with the intention that it should form part of a relevant filing system, [...]

(d) does not fall within paragraph (a), (b) or (c) but forms part of an accessible record as defined by section 68; [or]

[(e) is recorded information held by public authority and does not fall within any or paragraphs (a) to (d);]

'data controller' means, subject to subsection (4), a person who (either alone or jointly or in common with other persons) determines the purposes for which and the manner in which any personal data are, or are to be, processed;

'data processor', in relation to personal data, means any person (other than an employee of the data controller) who processes the data on behalf of the data controller;

'data subject' means an individual who is the subject of personal data;

'personal data' means data which relate to a living individual who can be identified‒

(a) from those data, or

(b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller,

and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual;

'processing', in relation to information or data, means obtaining recording or holding the information or data or carrying out any operation or set of operations on the information or data, including‒

(a) organisation, adaptation or alteration of the information or data,

(b) retrieval, consultation or use of the information or data,

(c) disclosure of the information or data by transmission, dissemination or otherwise making available, or

(d) alignment, combinations, blocking, erasure or destruction of the information or data;

...

2. ‒ Sensitive personal data.

In this Act 'sensitive data' means personal data consisting of information as to‒

...

(g) the commission or alleged commission by him of any offence,

...

4. ‒ The data protection principles.

(1) References in this Act to the data protection principles are to the principles set out in Part I of Schedule 1.

(2) Those principles are to be interpreted in accordance with Part II of Schedule 1.

(3) Schedule 2 (which applies to all personal data) and Schedule 3 (which applies only to sensitive personal data) set out conditions applying for the purposes of the first principle; and Schedule 4 sets out cases in which the eighth principle does not apply.

(4) Subject to section 27(1), it shall be the duty of a data controller to comply with the data protection principles in relation to all personal data with respect to which he is the data controller.

...

7. ‒ Right of access to personal data.

(1) Subject to the following provisions of this section and to [sections 8, 9 and 9A], an individual is entitled‒

(a) to be informed by any data controller whether personal data of which that individual is the data subject are being processed by or on behalf of that data controller,

(b) if that is the case, to be given by the data controller a description of‒

(i) the personal data of which that individual is the data subject,

(ii) the purposes for which they are being or are to be processed, and

(iii) the recipients or classes of recipients to whom they are or may be disclosed,

(c) to have communicated to him in an intelligible form‒

(i) the information constituting any personal data of which that individual is the data subject, and

(ii) any information available to the data controller as to the source of those data, and

(d) where the processing by automatic means of personal data of which that individual is the data subject for the purpose of evaluating matters relating to him such as, for example, his performance at work, his credit worthiness, his reliability or his conduct, has constituted or is likely to constitute the sole basis for any decision significantly affecting him, to be informed by the data controller of the logic involved in that decision-taking.

...

(4) Where a data controller cannot comply with the request without disclosing information relating to another individual who can be identified from that information, he is not obliged to comply with the request unless‒

(a) the other individual has consented to the disclosure of the information to the person making the request, or

(b) it is reasonable in all the circumstances to comply with the request without the consent of the other individual.

(5) In subsection (4) the reference to information relating to another individual includes a reference to information identifying that individual as the source of the information sought by the request; and that subsection is not to be construed as excusing a data controller from communicating so much of the information sought by the request as can be communicated without disclosing the identity of the other individual concerned, whether by the omission of names or other identifying particulars or otherwise.

(6) In determining for the purposes of subsection (4)(b) whether it is reasonable in all the circumstances to comply with the request without the consent of the other individual concerned, regard shall be had, in particular, to‒

(a) any duty of confidentiality owed to the other individual,

(b) any steps taken by the data controller with a view to seeking the consent of the other individual,

(c) whether the other individual is capable of giving consent, and

(d) any express refusal of consent by the other individual.

...

10. ‒ Right to prevent processing likely to cause damage or distress

(1) Subject to subsection (2), an individual is entitled at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin, processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which he is the data subject, on the ground that, for specified reasons‒

(a) the processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another, and

(b) that damage or distress is or would be unwarranted.

(2) Subsection (1) does not apply‒

(a) in a case where any of the conditions in paragraphs 1 to 4 of Schedule 2 is met, or

(b) in such other cases as may be prescribed by the [Secretary of State] by order.

...

13. ‒ Compensation for failure to comply with certain requirements.

(1) An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage.

(2) An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that distress if‒

(a) the individual also suffers damage by reason of the contravention, or

(b) the contravention relates to the processing of personal data for the special purposes.

(3) In proceedings brought against a person by virtue of this section it is a defence to prove that he had taken such are as in all the circumstances was reasonably required to comply with the requirement concerned.

...

27. ‒ Preliminary.

(1) References in any of the data protection principles or any provisions of Parts II and III to personal data or to the processing of personal data do not include references to data or processing which by virtue of this Part are exempt from that principle or other provision.

(2) In this Part 'the subject information provisions' means‒

(a) the first data protection principle to the extent to which it requires compliance with paragraph 2 of Part II of Schedule 1, and

(b) section 7.

(3) In this Part 'the non-disclosure provisions' means the provisions specified in subsection (4) to the extent to which they are inconsistent with the disclosure in question.

(4) The provisions referred to in subsection (3) are‒

(a) the first data protection principle, except to the extent to which it requires compliance with the conditions in Schedules 2 and 3,

(b) the second, third, fourth and fifth data protection principles, and

(c) sections 10 and 14(1) to (3).

(5) Except as provided by this Part, the subject information provisions shall have effect notwithstanding any enactment or rule of law prohibiting or restricting the disclosure, or authorising the withholding, of information.

...

29. ‒ Crime and taxation.

(1) Personal data processed for any of the following purposes‒

(a) the prevention or detection of crime,

(b) the apprehension or prosecution of offenders, or

(c) the assessment or collection of any tax or duty or of any imposition of a similar nature,

are exempt from the first data protection principle (except to the extent to which it requires compliance with the conditions in Schedules 2 and 3) and section 7 in any case to the extent to which the application of those provisions to the data would be likely to prejudice any of the matters mentioned in this subsection.

(2) Personal data which‒

(a) are processed for the purpose of discharging statutory functions, and

(b) consist of information obtained for such a purpose from a person who had it in his possession for any of the purposes mentioned in subsection (1),

are exempt from the subject information provisions to the same extent as personal data processed for any of the purposes mentioned in that subsection.

(3) Personal data are exempt from the non-disclosure provisions in any case in which‒

(a) the disclosure is for any of the purposes mentioned in subsection (1), and

(b) the application of those provisions in relation to the disclosure would be likely to prejudice any of the matters mentioned in that subsection.

...

31. ‒ Regulatory activity.

(1) Personal data processed for the purposes of discharging functions to which this subsection applies are exempt from the subject information provisions in any case to the extent to which the application of those provisions to the data would be likely to prejudice the proper discharge of those functions.

...

(iii) dishonesty, malpractice or other seriously improper conduct by, or the unfitness or incompetence of, persons authorised to carry on any profession or other activity,

...

SCHEDULE 1

The data protection principles

Section 4(1) and (2)

PART I

The principles

1.

Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless‒

(a) at least one of the conditions in Schedule 2 is met, and

(b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.

...

4.

Personal data shall be accurate and, where necessary, kept up to date.

...

PART II

Interpretation of the principles in Part I

The first principle

1. ‒

(1) In determining for the purposes of the first principle whether personal data are processed fairly, regard is to be had to the method by which they are obtained, including in particular whether any person from whom they are obtained is deceived or misled as to the purpose of purposes for which they are to be processed.

(2) Subject to paragraph 2, for the purposes of the first principle data are to be treated as obtained fairly if they consist of information obtained from a person who‒

(a) is authorised by or under any enactment to supply it, or

(b) is required to supply it by or under any enactment or by any convention or other instrument imposing an international obligation on the United Kingdom.

2. ‒

(1) Subject to paragraph 3, for the purposes of the first principle personal data are not to be treated as processed fairly unless‒

(a) in the case of data obtained from the data subject, the data controller ensures so far as practicable that the data subject has, is provided with, or has made readily available to him, the information specified in sub-paragraph (3), and

(b) in any other case, the data controller ensures so far as practicable that, before the relevant time or as soon as practicable after that time, the data subject has, is provided with, or has made readily available to him, the information specified in sub-paragraph (3).

(2) In sub-paragraph (1)(b) 'the relevant time' means‒

(a) the time when the data controller first processes the data, or

(b) in a case where at that time disclosure to a third party within a reasonable period is envisaged‒

(i) if the data are in fact disclosed to such a person within that period, the time when the data are first disclosed,

(ii) if within that period the data controller becomes, or ought to become, aware that the data are unlikely to be disclosed to such a person within that period, the time when the data controller does become, or ought to become, so aware, or

(iii) in any other case, the end of that period.

(3) The information referred to in sub-paragraph (1) is as follows, namely‒

(a) the identity of the data controller,

(b) if he has nominated a representative for the purposes of this Act, the identity of that representative,

(c) the purpose or purposes for which the data are intended to be processed, and

(d) any further information which is necessary, having regard to the specific circumstances in which the data are or are to be processed, to enable processing in respect of the data subject to be fair.

...

The fourth principle

7. ‒

The fourth principle is not to be regarded as being contravened by reason of any inaccuracy in personal data which accurately record information obtained by the data controller from the data subject or a third party in a case where‒

(a) having regard to the purpose or purposes for which the data were obtained and further processed, the data controller has taken reasonable steps to ensure the accuracy of the data, and

(b) if the data subject has notified the data controller of the data subject's view that the data are inaccurate, the data indicate that fact."

Submissions
Pursuer and reclaimer
Data Protection Act 1998

[11] The defender is the data controller of sensitive personal data relating to the pursuer to which provisions of the Data Protection Act 1998 apply. It was submitted that in processing sensitive personal data relating to the pursuer by sending the two letters complained of, the defender did not make it clear to the recipients of the letters that he was only reporting what is held in his records. The data were presented as if they were facts. The Lord Ordinary's analysis, which is entirely dependent on a reading of the letters that excludes endorsement by the defender of the factual accuracy of their contents, is erroneous. The Lord Ordinary was wrong to dismiss the case under the 1998 Act without any enquiry into the facts bearing on the fairness of the manner in which the defender had disseminated these sensitive personal data. The Lord Ordinary had erred in mistaking the pursuer's complaint as directed at the holding of sensitive personal data, rather than at the unfair dissemination of data. The provisions of the 1998 Act were to be seen as part of a panoply of legal protection of the subject's privacy and his rights in terms of article 8 of the European Convention on Human Rights. Unfair data processing fell foul of the legislation when viewed in that light. The critical aspect of the present complaint was that material had been disseminated which was shorn of any indication from where the underlying information came, with the result that the pursuer was unable to challenge it. This might be "OK in Data Protection Act terms" as long as the defender did not endorse the veracity of the information, but here the terms in which the offending letters were written suggested that the defender regarded it as fact that the pursuer was involved in serious organised crime. Reference was made to the following decisions: The Law Society v Kordowski [2011] EWHC 3185, R v Chief Constable of North Wales Police (ex p Thorpe) [1999] QB 396, Clift v Slough Borough Council [2011] 1 WLR 1774 and R (L) v Commissioner of the Metropolis [2010] 1 AC 410.

Defamation
[12] It was submitted on behalf of the pursuer that the Lord Ordinary had erred in not holding that the pursuer's averments were sufficient to allow enquiry on the issue of malice given that, while the defender may have believed the pursuer to be involved in serious organised crime, he had made (otherwise legitimate) representations to the relevant regulatory bodies in such a way as to make the allegations unanswerable. The unfairness of this was sufficient to demonstrate malice. Qualified privilege was just that and might be lost where, as here, it was misused. The Lord Ordinary had been wrong to conclude that the situations in which the letters complained of were written had been privileged. The applicable general principle was that there was a duty on the police not to disclose information about a person that would be damaging to its subject. It was for the police to justify any exception to, or departure from, that principle. Accordingly where, as here, a chief officer of police is sued for defamation by reason of the disclosure of damaging information, it was for him to plead himself into a situation of qualified privilege in the event of him relying on that defence. Here the defender's bald averments failed to address the pursuer's complaint of unfairness. The general context, in the sense of communication between public authorities on the matter of mutual interest, was not alone determinative. Regard had to be had to the specifics and, in particular, to the nature of the information being disclosed and the manner of the disclosure. There had always to be a balancing of the public interest on the one hand and private interest on the other: Bento v Chief Constable of Bedfordshire Police [2012] EWHC 1525 at para 93, Reynolds v Times Newspapers [2001] 2 AC 127 at 203C, 205A and 206E, R v Chief Constable of North Wales Police (ex p Thorpe) (supra) at 418A, Wood v Chief Constable of West Midlands [2004] EWCA Civ 1638 at para 65, R (L) v Commissioner of the Metropolis (supra) at paras 25 and 71. The Lord Ordinary had been wrong in the emphasis she placed on the scope to be given to the police's judgment in determining what information should be disclosed.

Remedies

[13] It was submitted that the remedy of declarator was competent: Norrie: Defamation and Related Actions in Scots Law at p 179. The decision in Law Hospital NHS Trust v Lord Advocate 1996 SLT 848 was not to contrary effect. Any decree granted by the court would bear a date and, accordingly, would tie any declarator granted to a determinate point of time. It was open to the court to grant a declarator in different terms if it was considered that what was concluded for was in some way inapposite.

Defender and Respondent
Data Protection Act
[14] It was submitted on behalf of the defender that the Lord Ordinary had been entirely correct in dismissing the pursuer's case in so far as it was based on an allegation of contravention of the requirements of the 1998 Act. No challenge had been advanced by the pursuer to the defender's holding, as such, sensitive personal data in the form of intelligence reports. There was no issue but that the defender did indeed hold intelligence relating to the pursuer and accordingly there was no suggestion by the pursuer that the defender's representation that he possessed intelligence was not accurate. Nor was it suggested by the pursuer that the defender did not in fact hold the opinions which had been expressed. There had been no breach of the fourth data protection principle. As the Lord Ordinary had held, there is no obligation on a data controller to investigate the veracity of data held by him. The pursuer's contention that the data processed was to the effect that the pursuer had committed certain crimes was not a fair or accurate interpretation of what had been disseminated by the sending of the two letters. A reader of the letters would not be misled into thinking the pursuer had been convicted of any offence. To say, as counsel for the pursuer had said, that the data disseminated were not accurate, or had been unfairly processed, because the source of the information had not been disclosed, indicated a failure to engage with and understand the provisions of the 1998 Act. The police do not have an obligation to disclose information relating to a data subject where the data is held for the purpose of preventing or detecting crime or for discharging regulatory functions: 1998 Act sections 29 and 31. Any such disclosure would, in any event, involve disclosing the identity of those from whom information had been received and who themselves were data subjects entitled to the protections of the Act. The Act provided the pursuer with no basis for his complaints.

Defamation
[15] It was submitted on behalf of the defender that both the communications in question were representations made by the defender to public bodies discharging regulatory functions in the lawful performance by the defender of his duties in terms of the Police (Scotland) Act 1967, section 17. Those bodies had legitimate interests in receiving the information held by the defender. There was no suggestion that the information disclosed was not relevant to the matters which the regulatory bodies required to determine. In the circumstances, both occasions were ones which attracted qualified privilege: Shaw v Morgan (1888) 15R 865 at 869. The occasions being privileged (and it is the occasion which should be the critical focus of the inquiry), it was for the pursuer to show actual malice if he was to succeed in an action for defamation: Robertson v Keith 1936 SC 29 at 44, 45, and 47, Innes v Adamson (1889) 14R 11 at 15, Hines v Davidson 1935 SC 30 at 36 to 38. In considering malice, the truth or untruth of the communication complained of is not to the point. The laws of Scotland and England might be the same, but an excursion into the more recent English authority was unnecessary. Any departure from what had been said in the 19^th century and early 20^th century cases in Scotland would be to innovate. However, when one looked at the English cases referred to by counsel for the pursuer, there was in fact nothing to be found there which justified any qualification to the classic statements of the law to be found in the Scottish authorities. The occasions in the present case were privileged and the pursuer had not put in issue any relevant facts to establish malice in fact. Therefore the action must fail. The defender, as the chief officer of police, had been exercising his statutory duty. He had been communicating with other bodies having a regulatory function. There was no question but that when a person is said to have been involved in organised crime that was a matter which the regulatory authorities in question need to know about. It was accordingly in the public interest that the defender should be able to communicate frankly and freely with such bodies without fear of being sued for defamation. It would be a matter of criticism had the defender not disclosed what he did disclose.

Remedy

[16] It was submitted that the declarator sought was too wide. Moreover, the conclusion invited the Court of Session to make an order interfering with the jurisdiction of the High Court of Justiciary and inhibiting the investigation of crime. This is not something that the Court of Session should do. The terms of the interdict sought by the pursuer presented similar problems.

Discussion

Data Protection Act

[17] The exact nature of the pursuer's claim under the Data Protection Act was somewhat elusive. At first blush it was simply based on the complaint that the data processed by the defender was inaccurate. The operative plea-in-law is in these terms: "The pursuer having suffered loss and damage through the making of defamatory statements, et separatim, breaches of statutory duty of the defender, is entitled to reparation therefrom therefor." On the face of the pleadings, the supporting averments appear to be confined to article 6 of condescendence where it is stated:

"As well as damages for a breach of common law obligations of privacy and confidentiality, the pursuer is entitled to damages by virtue of section 13 of the Data Protection Act 1998. The information was sensitive personal data within the meaning of section 2(g) of the Data Protection Act 1998 - 'alleged commission by him of any offence'. Schedule 1 to the Act applies. The information concerning the pursuer was neither accurate nor up to date."

Article 6 contains further averments but there is nothing to be found there, nor was there anything in the submissions on behalf of the pursuer, to suggest that these averments are other than a repetition, in various ways, of a complaint that by sending the two letters the defender was in breach of the fourth data protection principle, in other words that the data processed were inaccurate. However, in seeking to explain his case, counsel for the pursuer introduced two further elements by way of elaboration of the complaint of inaccuracy: endorsement and unfairness. As we understood counsel's submission, the pursuer's case was less to do with the accuracy of the information held by the defender and more to do with the endorsement by the defender of its veracity and the unfairness of the way in which it had been processed. That of course raises the questions (a) whether it can be said, on the basis of what is averred by the pursuer, that the defender endorsed the veracity of information to the effect that the pursuer was involved in serious and organised crime or that the defender had acted unfairly and (b) whether, even if he had, either "endorsement" or "unfairness" amount to breach of any statutory duty incumbent upon the defender in terms of the 1998 Act.

[18] Section 4(4) of the Act provides that it is the duty of a data controller to comply with the data protection principles in relation to all personal data with respect to which he is the data controller. Section 13 allows compensation to be claimed for damage suffered by reason of any contravention by a data controller of any of the requirements of the Act. It is uncontroversial that the defender is a data controller in terms of section 1(1). Among the data that he controls would appear to be information as to the alleged commission by the pursuer of an offence or offences. Information respecting that allegation is, as the pursuer avers, "sensitive personal data", as defined by section 2 of the Act. Among the requirements of the Act is that it shall be the duty of a data controller to comply with the data control principles set out in Schedule 1 to the Act. The fourth data protection principle is that personal data shall be accurate and, where necessary, kept up to date. However, the pursuer does not complain about the data that the defender controls and processes, in the sense of simply recording and holding. He is not in a position to do so because such personal data relating to the pursuer as is held on the Scottish Intelligence Database has been recorded and is held for the purposes of the prevention and detection of crime and the discharge of regulatory activity. Accordingly, in terms of sections 29 and 31, the data are exempt from the provisions of the Act that would otherwise permit their being accessed by the pursuer. The pursuer therefore does not know what they are and has no means of finding out, but then, equally, neither does anyone else, until the data are processed. Presumably it is for that reason that the pursuer's complaint is limited to the information which was processed by its dissemination in the letters of 17 October 2007 and 8 March 2010. Thus, for the pursuer to be able to say that there has been a contravention of the fourth data protection principle he requires to be able to aver that what appears in the letters is inaccurate. As we took Mr Bovey to acknowledge he cannot and indeed he does not do that, at least if the data processed goes no further than a statement that intelligence held by the defender indicates that the pursuer is involved in certain activities. The pursuer denies that he is involved in serious and organised crime. From that perspective, a statement or information to the effect that he is involved in serious and organised crime is inaccurate. It does not, however, follow that a statement to the effect that the police have intelligence (which means no more than information received) that indicates that the pursuer is involved in serious and organised crime is inaccurate.

[19] That is the context in which when asked by the court whether he relied on "endorsement", counsel for the pursuer replied in the affirmative because, as he put it, "as long as you do not endorse [a statement that the pursuer is involved in serious and organised crime] that may be OK in Data Protection Act terms". As we understood him, counsel accepted that if the Scottish Intelligence Database contains various pieces of data originating from information received (whether entirely reliable or not) which suggest that the pursuer is involved in serious and organised crime including the trafficking and supply of Class A drugs, then to process data to that effect by disseminating it in the form of a statement that "intelligence held by Strathclyde Police provides that the pursuer is involved in serious and organised crime including the trafficking and supply of Class A drugs" did not contravene the fourth data protection principle. Indeed, it was because counsel required to make that acknowledgement, that counsel sought to elaborate his case by reference to endorsement and unfairness.

[20] We pause to observe that we agree with what we took to be Mr Bovey's submission on the application of the fourth data protection principle. Expressed in short, the pursuer complains of the processing of the information that the pursuer is documented on the Scottish Intelligence Database as being involved in serious and organised crime. The pursuer does not aver that he is not so documented. He therefore does not aver a breach of the fourth data protection principle in respect of the personal data to which he refers. We would distinguish between "the pursuer is documented as being involved" (which is the information processed in the present case and which the pursuer would appear to accept as true) and "the pursuer is involved" (which we do not see as having been processed and which the pursuer says is false) but even if that is regarded as a fine distinction, a data controller is not required to guarantee that information obtained from a third party and then held by the data controller is factually correct. As the Lord Ordinary points out, paragraph 7 of Part II of Schedule 1 to the Act makes clear that the fourth principle is not to be regarded as contravened by reason of any inaccuracy in personal data which accurately record information obtained by the data controller from a third party in a case where the data controller has taken reasonable steps to ensure the accuracy of the data, and if the data subject has notified the data controller of the data subject's view that the data are inaccurate, the data indicate that fact. Here the pursuer does not aver that the defender has not taken such reasonable steps; or that he has notified the defender of his view that any personal data is incorrect and that the data do not indicate that fact. There is thus no relevant case pled of breach of the fourth data protection principle.

[21] We turn next to what Mr Bovey had to say about endorsement. Agreeing with the submission made to us on behalf of the defender, we do not consider that, on a fair reading of the letters, the defender endorsed the veracity of the statements complained of. The letters make clear that the defender is reporting on what is recorded in the database. No doubt in simply making that report the defender gives the information some credence, but that is different from giving an unequivocal endorsement of truth of the allegation of involvement in crime. The statement of opinion that the pursuer is not a fit and proper person to hold a licence is just that, namely a statement of opinion on a matter on which the defender might be expected to have, and disclose, an opinion. In any event, we do not accept that endorsement of the accuracy of ex hypothesi inaccurate information held by the data controller but obtained from a third party, of itself constitutes a breach of any duty imposed by the Act. That is demonstrated by the terms of paragraph 7 of Part II of Schedule 1 to the Act to which we refer above. More fundamentally Mr Bovey appeared unable to point to any statutory provision imposing a requirement not to "endorse". In the absence of such a requirement there can be no contravention of the statute and therefore no entitlement to damages by virtue of section 13 of the Act.

[22] The pursuer also complains of unfair processing of the data. In his grounds of appeal he contends that the Lord Ordinary erred in determining the issue of fairness in advance of the establishment of the facts.

[23] There is only one reference to unfairness in the pursuer's averments, and that is in a context which suggests that it has to do with the pursuer's defamation case. The averments are to be found in article 4 of condescendence and are in these terms:

"The manner in which material said to be in the defender's database has been digested in said letters so as to be devoid of any detail made it impossible for the pursuer effectively to deny involvement in serious or organised crime. While the defender may believe the pursuer to be involved in serious and organised crime, in making (otherwise legitimate) representations to the regulatory bodies, his officers did so in such a way as to make the allegations unanswerable. The pursuer could not respond to what was said. The unfairness with which they acted is such as to demonstrate malice. Qualified privilege is just that and should be lost where, as here, any qualified privilege has been misused."

Confirming that these were the averments upon which he relied for his case of breach of statutory duty by unfair processing, Mr Bovey explained that the pursuer's complaint was that the material disseminated had been "shorn of any indication where the information came from". That is what is said to be unfair.

[24] However a noticeable feature of Mr Bovey's presentation of the branch of the pursuer's case which proceeded on an allegation of unfair data processing as giving rise to a contravention of a requirement of the 1998 Act was the absence of anything by way of reference to or submission on the provisions of the Act which touch on unfairness. That is remarkable because in its first data protection principle, set out in Schedule 1, Part I, paragraph 1, the Act requires that personal data "shall be processed fairly and lawfully." "Lawfully" is not defined in the Act and therefore has no special meaning: The Law Society v Kordowski supra at para 78, following Murray v Express Newspapers [2007] EWHC 1908 (Ch) (reversed but not on this point: [2009] Ch 481). That is not quite the position with "fairly" in that paragraphs 1 to 4 of Part II of that Schedule all contain provisions which have a bearing upon whether personal data have been processed fairly. We did not hear submissions on these provisions, which were not even drawn to our attention. We therefore content ourselves with observing that there is nothing in paragraphs 1 to 4 which gives any obvious indication that what is complained of in the present case amounts to unfair processing of personal data.

[25] There is a further difficulty. The burden of this aspect of the pursuer's complaint is not about what has been processed by dissemination but about what has not been so processed. Because what was processed, by being disseminated, was "shorn" of any indication as to where the information came from, as Mr Bovey put it, the pursuer argues that he cannot effectively challenge its veracity. The pursuer does not identify what that further detail is; but it will inevitably be data and it will inevitably include sensitive personal data in respect of data subjects other than the pursuer. The defender, as data controller, is subject to the various requirements of the Act. Those include, the sixth data protection principle which provides that personal data shall be processed in accordance with the rights of data subjects. While the pursuer is a data subject so are all other persons who can be identified in the data that relates to the pursuer. It is difficult to see how disclosure of the sources from which the information to the effect that the pursuer was involved in organised crime comes could be done without infringing the rights of other data subjects. That being so, it is difficult to maintain that by disseminating less, rather than more, data the defender has processed personal data unfairly. Moreover, as Ms Maguire for the defender pointed out, when considering Mr Bovey's contention that it is somehow unfair that the pursuer has not been given more information, it is to be borne in mind that because of the purposes for which these data are held, they are exempt from the subject access provisions in the Act with the result that the pursuer is not entitled to know what the data are: sections 29 and 31. Given that the Act specifically provides that the pursuer shall not have access to these data, it is rather difficult to see how it can be said that by not disseminating more information the defender was in contravention of a statutory duty to act fairly.

[26] Rather than addressing directly the actual terms of the 1998 Act and considering the implications of what he appeared to be arguing for, Mr Bovey took us to passages in four decisions relating to the publication of damaging information. In our opinion, none of the passages advanced his case. The judgment of Tugendhat J in The Law Society v Kordowski was relied on for the propositions that the Data Protection Act is one of many different sources of law that give effect to the obligation of the state to prevent interference with the right of individuals to protection of their private lives and that a purpose of the 1998 Act was to protect persons from being subjected unfairly and unlawfully to distress. There is nothing controversial in that proposition provided, that it is remembered that the Data Protection Act is a very detailed piece of legislation which attempts to deal with a number of particular situations and that processing of personal data "fairly" has a meaning specific to the Act. Mr Bovey also referred to Lord Bingham's speech in R v Chief Constable of North Wales Police (ex p Thorpe), an application for judicial review. Lord Bingham there identifies principles which should be observed by the police when considering what information they should disclose to the public. At 411B Lord Bingham observes that these principles "are consistent with the statutory policy expressed in section 28 (1) of the Data Protection Act 1984". That provision of the predecessor Act of 1984 is concerned with subject access restrictions in the areas with which sections 29 and 31 of the 1998 Act are concerned. But more importantly to say that certain principles are consistent with the policy of a statute does not mean that any departure from those principles amounts to a particular breach of statutory duty. For the pursuer to have an entitlement to compensation under section 13 of the 1998 Act he must aver and prove that the defender, as data controller, has contravened an identified requirement of that Act. Reference to principles, even principles which have an application in the circumstances in question but which do not form part of the requirements of the Act is simply nothing to the point. The passages from Clift v Slough Borough Council cited by counsel provide a reminder that by publishing damaging information unnecessarily widely a public authority may breach an individual's rights under article 8 of the European Convention on Human Rights whereas to require a public authority to do what it is required to do anyway in terms of the Data Protection Act cannot be held to be disproportionate. No doubt that is so. It might equally be observed that where a data controller who is a public authority does everything that is required by the 1998 Act then it will be for the individual who alleges a breach of article 8 to demonstrate that a particular disclosure of information is disproportionate. However, neither that observation nor what appears in the passages cited from Clift have any real bearing on a case in which article 8 is not being relied upon (other than as support for the availability of the remedy of declarator). Much the same could be said about the passages cited from R (L) v Commissioner of the Metropolis, the final case relied on by Mr Bovey in support of this chapter of his case.

[27] We do not question the soundness of what is said in the various passages referred to by Mr Bovey. Nor do we have any difficulty with the observation that a number areas of the law can be drawn on as providing protection for the individual against harmful or intrusive publication of information; and that what may be true for one of these areas may also be true for others. We do not dispute that statutes should be interpreted with an eye to compatibility with Convention rights. However, the question in this chapter of the pursuer's case is a rather narrow one, which these broad statements do not help to resolve. The pursuer sues for compensation for contravention by the defender of one or more of the requirements of the Data Protection Act 1998. To plead a relevant case he must identify a requirement of the Act and aver the manner or respect in which he says that it was contravened by the data processing complained of. In our opinion the pursuer has clearly failed to do that as a matter of pleading but even if the pleadings are laid aside we were unable to discern in Mr Bovey's submissions any basis upon which it could be said that by sending the two letters to the regulatory agencies the defender was in breach of his statutory duties under the 1998 Act. To have gone further and disclosed where the information came from, which is what Mr Bovey desiderated, was not only not required by the Act but doing so would seem inevitably to have infringed the rights of other data subjects. This branch or chapter of the pursuer's case is simply and fundamentally irrelevant.

Defamation

[28] The defender does not dispute that the communications complained of were defamatory or libellous of the pursuer in the sense that the meaning conveyed about his character would tend to lower him in the estimation of right-thinking members of society generally. We consider that to be correct. The distinction which can be made between "the pursuer is documented as being involved in serious and organised crime" and "the pursuer is involved in serious and organised crime" which in our opinion is relevant when considering the accuracy of an item of data for the purposes of the Data Protection Act, does not prevent the former statement from bearing an innuendo which is libellous. The defender does not offer to prove that it is true. For present purposes it can therefore be taken to be false. The communications in the two letters complained of are therefore actionable in damages in respect of injury to the pursuer's feelings and reputation, provided that the requisites of the civil wrong of defamation are met. The defender says that they are not, and that is because, on the pursuer's averments, it is clear that the communications complained of were made on occasions which attracted qualified privilege.

[29] Parties were agreed as to the place of qualified privilege in the structure of the law of defamation. In order for the making of a defamatory statement to amount to a civil wrong and therefore to be actionable it must be made maliciously (animo iniurandi). While just what is meant by malice does not readily admit of a comprehensive definition, that is usually not of importance because, generally, the existence of the necessary malice will be presumed simply on the basis of the language used in the communication; a statement which is false and defamatory is presumed to be made maliciously. There are, however, situations where malice will not be presumed. These are described as privileged. Where the privilege is absolute, that is an end of the matter; no action will lie. Where the privilege is qualified then an action may lie but, the necessary malice must be proved as a matter of fact. This is well established. It was explained in these terms by Shaw v Morgan supra by Lord Young at 869:

"The word 'privilege,' as has been often remarked, is an unfortunate and misleading word. But the idea it is meant to express is simple, and may be easily stated. The word 'privilege' is misleading, because it is apt to convey to the uninstructed mind the idea that there may be circumstances in which slander is privileged. That is not so. The doctrine stands on the proposition that there is no such thing as slander without malice. Slander is a defamatory statement maliciously made to the injury of another. If the statement, however defamatory, is not malicious, it is not slander. That law is stated both in the English text-books and by our own Judges. But when a man says or writes anything defamatory of another, he is assumed to do so maliciously. The law presumes malice from the defamatory character of the statement unless the occasion on which it is made is what is termed a privileged occasion, so that the presumption of malice is displaced by the occasion. If a man in mere gossip utter a slander, the law assumes that he did so maliciously, and he must answer accordingly for it. Malice is imputed to him without any evidence but the making of the statement, and the untruth of the statement, it being defamatory, will in like manner be presumed unless he proves its truth. But if the occasion be privileged, if the statement be made in the discharge of a duty or in the reasonable attention to a man's own business and affairs, which gives him legitimate cause to write or speak of his neighbour, the occasion displaces the presumption of malice and the presumption of falsehood, and he is only answerable if malice be shewn to have existed in fact, and if the statement be untrue."

Lord Hope was to the same effect in Reynolds v Times Newspapers [2001] 2 AC 127 at 229A:

"The foundation of an action of defamation is malice. If words are used which are defamatory and untrue the law implies malice. That presumption is rebutted if the occasion when the words were used is privileged. The privilege destroys the presumption. But it remains open to the claimant to prove that there was malice in fact."

[30] There also appeared to be common ground between the parties as to what gives rise to qualified privilege. We took both counsel to accept the soundness of the following passages from Reynolds:

"... there are circumstances, in the famous words of Parke B in Toogood v Spyring (1834) 1 CM & R 181, 193, when the 'common convenience and welfare of society' call for frank communication on questions of fact. In Davies v Snead (1870) LR 5 QB 608, 611, Blackburn J spoke of circumstances where a person is so situated that it, 'becomes right in the interests of society' that he should tell certain facts to another. There are occasions when the person to whom a statement is made has a special interest in learning the honestly held views of another person, even if those views are defamatory of someone else and cannot be proved to be true. When the interest is of sufficient importance to outweigh the need to protect reputation, the occasion is regarded as privileged.

Sometimes the need for uninhibited expression is of such a high order that the occasion attracts absolute privilege, as with statements made by judges or advocates or witnesses in the course of judicial proceedings. More usually, the privilege is qualified in that it can be defeated if the plaintiff proves the defendant was actuated by malice.

...

The essence of this defence lies in the law's recognition of the need, in the public interest, for a particular recipient to receive frank and uninhibited communication of particular information from a particular source. That is the end the law is concerned to attain. The protection afforded to the maker of, the statement is the means by which the law seeks to achieve that end." (Lord Nicholls at 193H to 194C and 195B)

"At the heart of the matter is the question whether 'the occasion' is privileged. This occurs where the person who makes the communication has an interest or duty to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it: Adam v Ward [1917] AC, 334, per Lord Atkinson. The interest or duty may be a legal or moral duty or it may arise from social circumstances. But it is essential that there should be a reciprocity of duty and interest as to the matter which is being communicated. As Lord Atkinson pointed out, the communication is often loosely described as privileged. But strictly speaking it is the occasion itself which is privileged." (Lord Hope at 194B)

[31] Where the parties were at issue was on the question whether the Lord Ordinary was correct in concluding, simply on a consideration of the pursuer's pleadings, that the occasions on which the two letters were communicated were privileged ones. On the defender's approach it was perfectly plain from the pursuer's averments that the circumstances - "the relationship in which the sender of the communication stood to the receiver of the communication", to use the language of Lord Justice-Clerk Aitchison in Hines v Davidson - were such that the two occasions on which the defender wrote to the regulatory agencies were privileged and therefore, because the pursuer had no relevant averments to support a case of actual malice, the Lord Ordinary had been correct to dismiss the action. In the pursuer's submission, on the other hand, determining whether a particular occasion attracted privilege depended upon a much more nuanced or contextual analysis of a sort that could only be carried out at proof. Reliance was placed on what had been said by Lord Nicholls in Reynolds v Times Newspapers supra at 195C.

[32] As with the branch of the case invoking the Data Protection Act, the burden of the pursuer's complaint under the head of defamation, as articulated by Mr Bovey, related not so much as to what the defender had stated but as to what he had not stated. Because the information disclosed in the two letters was but a part of what was in the defender's records and therefore selective in its nature, the pursuer was faced with allegations to which he could not effectively respond. As it is put in the Note of Arguments for the pursuer: "[at] the heart of this case is not the fact or legitimacy of disclosure but the unanswerable terms in which it is done." Again, the defender's presentation of information (or a summary of information) "shorn" of its provenance was, according to Mr Bovey, unfair. In the Note of Arguments for the pursuer this unfairness seems to be relied on as an indication of actual malice ("Qualified privilege is just that and should be lost where, as here, it is misused.") However, in his oral submissions we understood Mr Bovey to make more of unfairness as a matter which the Lord Ordinary should have allowed to go to proof, together with the defender's failure to make out any basis for an exception to the general principle that information damaging to an individual should not be disclosed by the police, with a view to determining whether these were indeed situations to which qualified privilege applied.

[33] In evaluating Mr Bovey's contentions, we would begin by observing that, while, drawing on what had been said by Lord Nicholls in Reynolds, emphasising and that the existence of privilege is contextual and needed to be looked at "with modern eyes", counsel for the pursuer appeared to take no issue with the structure of the law as established by the nineteenth century cases. By that structure we mean the displacement of the presumption of the necessary element of malice arising from the defamatory nature of the statement in question by the fact that the statement was made on an occasion to which privilege attaches, with the consequent requirement to prove actual malice if the statement is to be actionable. Thus, if the pursuer's averments point to the occasions in question being privileged and allow no other inference, and the pursuer does not sufficiently aver actual malice, he fails as a matter of relevancy. We would emphasise what was said by Lord Hope in Reynolds, under reference to the earlier cases, namely that it is an occasion which is properly to be described as privileged, not a particular communication, the occasion being defined by there being, on the one hand, a party with a duty or interest to make an entirely frank communication (irrespective as to whether it can be proved to be true) and, on the other hand, another party with a duty or interest to receive such a communication (see also Clift v Slough Borough Council at paras 24 and 25). The underlying policy is that there are occasions, identifiable by the existence of reciprocal duties or interests, where the public interest requires the frank and uninhibited giving of information, irrespective of any consequent harm to the reputation of any individual concerned. It is not a structure which is primarily concerned with the protection of purely private interest. Rather, it is about identifying occasions where private interest is subordinate to public interest, subject to the occasions not being abused by the making of statements with the intention, not of serving the public interest, but of doing harm to the person of whom the statement is made.

[34] For Mr Bovey the starting point in his argument was the principle, derived from R v Chief Constable of North Wales Police (ex p Thorpe), that there was a duty on the police not to disclose information that is damaging to its subject. Accordingly, in any particular case it was for the police to establish that an exception should be made to that principle and any unfairness in the way that information was disclosed was relevant to determining whether a communication was or was not privileged. Ms Maguire, pointing out that the case of Thorpe was not concerned with defamation but with judicial review of administrative action described this approach as innovative. In our opinion she was correct, and by that we mean that Mr Bovey invited us to adopt an approach contrary to authority which is binding on us. We reiterate: qualified privilege attaches to an occasion, its existence being identified by a concurrence of reciprocal duties or interests. As was said by the Lord Justice-Clerk in Hines v Davidson supra at 36:

"It is well settled that the question of privilege, when to be determined ab ante, falls to be decided on the pursuer's averments, and it is these averments, and these only, that must be looked at to ascertain what was the relationship in which the sender of the communications stood to the receiver of the communications, so as to be able to say whether the communication is protected as being made on a privileged occasion."

The principle enunciated by Lord Bingham in Thorpe is no doubt sound but in the present context, where the statements in question are ex facie defamatory, it is superfluous. The making of an ex facie defamatory statement is wrongful, subject to any available defence. In Thorpe what was in issue was the lawfulness of the disclosure of accurate (and therefore not defamatory) information, hence the need to rely on a principle based on considerations of privacy and confidentiality. There is no need to rely on such a principle here, or indeed possible contravention of article 8, as discussed in R (L) v Commissioner of Police of the Metropolis. The issue is not whether the defender's statements can be said to have been unlawful administrative acts on his part. The issue is the different one of whether the occasions on which the statements were made were privileged, in the sense explained in Shaw, Reynolds and Hines. Mr Bovey's submissions did not really address that issue at all. His focus was on the content of the statements, his complaint being that they were less informative than they might have been. That says nothing about the occasions on which the statements were made. We accept that the content of the statements is relevant; but relevant to the entirely different question of whether, on an occasion of qualified privilege, the communication was actually malicious. Mr Bovey's reference to Wood v Chief Constable of West Midlands provided a reminder that not every statement by a public official such as a police officer is privileged, even where it purports to draw the attention of another party to supposed wrongdoing. We also accept that there will be cases where proof will be necessary in order to determine whether there was in fact a relationship of reciprocal duties or interests giving rise to an occasion of qualified privilege when the statement was made: eg Massie v McCaig and Ors [2013] CSIH 14. However, the issue of whether or not there was such a relationship giving rise to an occasion of qualified privilege is not informed by proof of the "fairness" of the way in which information is communicated. Conceivably, considerations of fairness might bear on the question of whether an occasion of qualified privilege has been abused by the making of a communication motivated by actual malice. In the present case what is said to be unfair is the failure of the defender to reveal the provenance of the information which he communicated to the respective regulatory authorities. We consider that to be an inadequate basis for an allegation of actual malice. However it does not seem that the pursuer in fact advances a case of actual malice. He expressly acknowledges the defender's good faith in article 4 of condescendence where he allows that "the defender may believe the pursuer to be involved in serious and organised crime". He describes the representations made to the regulatory bodies as "legitimate" subject only to the qualification that the way in which the representations were presented (lacking detail as to their provenance) made them unanswerable. That is reinforced in the pursuer's note of arguments, at paragraph 12, by the acknowledgement that the defender's motive (that a person believed to be unfit to do so should not hold a licence) was a legitimate one.

[35] The Lord Ordinary was satisfied, on the pursuer's pleadings, that the occasions on which the two letters were communicated were privileged ones; the making of the communications being within the ambit of police duties and relating to matters of public concern to the relevant regulatory bodies. In our opinion she was correct in the conclusion to which she came. It follows that the pursuer puts forward no basis upon which he can establish the element of malice which is necessary for a relevant case of defamation. It is not to be imputed from the terms of the statements complained of and the pursuer offers nothing of relevance by reference to which it may be proved extraneously. This chapter of his case is therefore irrelevant also.

Remedies

[36] Had the pursuer been able to plead a relevant case, he would have been entitled to go to proof with a view to obtaining either compensation in respect of breach of statutory duty by virtue of section 13 of the 1998 Act or common law damages in respect of defamation or, to the extent that they would not duplicate each other, both. However, while the question is academic, in our opinion he would not have been entitled to the remedies of declarator or interdict in the terms sought.

[37] The court will not grant a declarator that is meaningless or has no purpose. Like anyone else, the pursuer is presumed to be of good character, of good reputation and innocent of any wrongdoing. It follows that a grant of declarator by the Court of Session that an assertion to the effect that the pursuer is involved in serious and organised crime including the trafficking and supply of class A drugs is false, would add nothing to what is in any event presumed to be so. It is therefore unnecessary and that is a sufficient reason for this court not to grant a declarator in these terms. The absence of any real purpose for such a declarator also emerges from a consideration of who would be bound by the finding that decree in the terms concluded for purports to make. It would not be binding on the High Court of Justiciary or the Lord Advocate in respect of anything that might be brought before the criminal courts: Law Hospital NHS Trust v Lord Advocate 1996 SLT 848. Neither would it constitute res judicata in respect of any matter of purely civil right as against any party other than the present defender. However, the matter goes further than that. The declarator sought by the pursuer is couched by reference to an undetermined point of time. The presumptions of good character, good reputation and innocence which are enjoyed by the pursuer and everyone else are only presumptions. They can be displaced by proof to the requisite standard to contrary effect. To grant declarator that any assertion that the pursuer is, for example, involved in organised crime is false could never be justified. If read literally, it would mean that irrespective of what the pursuer might be involved in in the future and irrespective of what evidence might come to light as to what may have been his involvement in the past, any assertion that he is or has been involved in organised crime would be false. That would be nonsensical.

[38] Agreeing with the Lord Ordinary, we would see the pursuer as having no averments to indicate that he might be defamed by the defender at some future date and therefore no basis upon which he might be entitled to interdict in the terms concluded for.

Decision

[39] We refuse the reclaiming motion.