Category Archives: Curran v Daily Record

Frances Curran, Former SSP MSP, Loses Defamation Claim Against Daily Record [2011] CSIH 86 – Court Defends Press Right to “Exaggeration, Provocation and Harshness”

Frances Curran was one of the Scottish Socialist Party (SSP) MSP’s elected to Holyrood on the coat tails, some would say, of Tommy Sheridan.

However, when the SSP imploded in the aftermath of the News of the World’s allegations of “swinging” against Mr Sheridan, and his successful defamation claim against News International (NI) she, along with all of the other SSP MSP’s, lost her seat.

Ms Curran was not of the group which aligned itself with Mr Sheridan. She was assuredly not one of the “Sheridanistas”.

Ms Curran did not give evidence for NI in the original defamation trial, although the Daily Record suggested she had. She was not called upon to do so. Other SSP members did give evidence but unwillingly, having decided that they could not flout the law by refusing to appear.

In the aftermath of the victory for Mr Sheridan, which has turned out to be a Pyrrhic one in light of his subsequent prison sentence for perjury, three prominent SSP MSP’s, Ms Curran, Rosie Kane and Carolyn Leckie, issued a statement indicating their dis-satisfaction at the behaviour of Mr Sheridan and of the outcome of the trial.

On 5th August 2006 Ms Curran was quoted in the Daily Mail stating that Mr Sheridan had lied in the trial.

Tommy Sheridan replied in the pages of the Daily Record over the next few days. He accused Ms Curran, amongst others, of being a “scab” which is the ultimate insult to left wing politicians. He made it clear that he could see no way of working with the three specific members mentioned above for their “betrayal” of what he and the SSP stood for.

In November 2008, Ms Curran raised an action for defamation against the Record (but not against Mr Sheridan). She claimed that she had been defamed by the articles in the Record. She alleged that “the innuendo contained in the article was that, notwithstanding her professed commitment to socialism and trade unionism, the pursuer had been happy to align herself with, and to assist, the anti-socialist NI, in furtherance of a plot to destroy Mr Sheridan’s political career, and that in consequence she was a “scab” and a “political scab”, failing to act in accordance with her publicly professed principles in a way which was dishonourable, hypocritical and lacking in integrity, all of which was untrue. In particular, the article appeared to suggest that she had given evidence as a witness for NGNL against Mr Sheridan, when she had not.”

The paper defended the action, stating firstly that the articles were not defamatory, but even if they were, which was denied, they were covered by “qualified privilege” and as not motivated by malice, there was no liability.

The action was dismissed by the Temporary Judge at first instance, who upheld the defence propositions.

Ms Curran appealed and the appeal, before Lady Paton, Lord Hardie and Lord Kingarth had its decision issued today.

The court has rejected the appeal and upheld the initial decision.

The court decided that the “rough and tumble” of political discourse was an area where the court, traditionally, had been reluctant to interfere as regards defamation. The court reviewed a number of cases, including those from the European Court of Human Rights, and agreed that public figures, whilst not fair game for the press, ought to be prepared for rigorous analysis and discussion in the political field.

The judges quoted the European Court in Dlugolecki v Poland, 24 May 2009, Application no 23806/03 saying:-

The limits of critical comment are wider if a public figure is involved, as he inevitably and knowingly exposes himself to public scrutiny and therefore must display a particularly high degree of tolerance…. In the context of a public debate the role of the press as a public watchdog allows journalists to have recourse to a certain degree of exaggeration, provocation or harshness.

The court determined:-

“In particular, we are not persuaded that the article would lower the pursuer in the esteem of right-thinking members of the public. The public were well aware of the nature of Mr Sheridan’s dispute with the NGNL. As was noted by Lord Macphail in Macleod v Newsquest (Sunday Herald) Ltd 2007 SCLR 555 (quoting Neill LJ in Gillick v BBC [1996] EMLR 267):

“… (2) The hypothetical reasonable reader (or viewer) is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking. But he must be treated as a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available …”.

In our view, the readers of the article would appreciate that they were witnessing a political skirmish, with warring factions within the SSP and diametrically opposed views about how the party and its members should conduct themselves, including a characteristically forthright public berating by Mr Sheridan of those who, in his view, had failed to give him the unquestioning public and political support he needed in whatever way he demanded and at whatever personal cost to the individual.”

As far as the question of qualified privilege went, the court stated as follows:-

“In the present case, Mr Sheridan did not respond by calling the pursuer a liar. He focused instead upon the main themes underlying his whole campaign, namely socialism against anti-socialist forces epitomised by NI; his hope and belief that he would be wholly supported by fellow socialists, and in particular by members of the SSP; the fact that the pursuer had (so far as he was concerned) demonstrated political disloyalty both to him and to his socialist cause – which in his eyes qualified her as a “scab”; and his resulting anger and disappointment, with the caveat that he and the pursuer might find it difficult to work together in the SSP in the future. In our view, that retort, in the circumstances, came within the parameters of “fair retort”. Thus the defenders were entitled to qualified privilege on the occasion that they reported that retort.”

Bearing in mind that Mr Sheridan is a convicted perjurer, the words of the court seem almost complimentary to him! The suggestion of the court is that, rather than resort to personal attacks, as Ms Curran had done, he engaged in a political discourse detailing what he perceived to be the faults of the parties.

Finally, Ms Curran had added in a case that the words used were motivated by malice on the part of Mr Sheridan, as he now being a convicted perjurer knew that the foundation of his “attacks” on Ms Curran and others was unsound. By extension, if Mr Sheridan’s words were malicious, then the malice should be attributed to the Daily Record also.

The court rejected this argument too, saying:-

Quite apart from the lack of precedent, we consider that there is no support in principle for the pursuer’s proposition. Malice on the part of an individual is not necessarily easy to detect. Accordingly, to deprive a newspaper or other publishing medium of the defence of qualified privilege because the individual whose views were reported is subsequently proved to have been motivated by malice would, in our view, place too heavy a burden upon the publisher.”

A hearing at a later date will determine liability for costs, but one can only assume that Ms Curran will be found liable for all, or almost all, of them. The financial consequences for her will be grave. Whilst not as drastic a defeat as that of Mr Sheridan, as he ended up in prison, Ms Curran has lost the chance to vindicate her reputation (which I assume was her primary motivation, rather than financial recompense).

It would be ironic, to say the least, to see another former SSP MSP brought down by their voluntary decision to pursue a case through the courts, where in general, the politicians of the Left have been sceptical about achieving justice. Neither Mr Sheridan nor Ms Curran were forced to raise actions – but they both did and have had, or will have, to pay the consequences of their decisions.

For the press too, especially bearing in mind the barrage of negative publicity it has received and is receiving, it might be useful to bear in mind the quote from the European Court mentioned above – “In the context of a public debate the role of the press as a public watchdog allows journalists to have recourse to a certain degree of exaggeration, provocation or harshness“.

When the public perception of the press is that it only deals in exaggeration, provocation or harshness, it is legitimate to point out that, in some cicrumstances, such coverage is justified!

 

 

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Filed under Civil Law, Courts, Curran v Daily Record, Defamation, Press, Tommy Sheridan