The Times is about to launch a special Scottish edition the intention from Mr Murdoch being that as the Scottish tabloid market was shaken up by the super soaraway Sun, the quality market is similarly ready for shaking.
A critical figure in the Times in Scotland is one Angus MacLeod, the Times political editor. MacLeod yesterday lost a defamation action against one of the other quality newspapers (the Sunday Herald).
In February 2005 MacLeod had written as article of Rees-Moggian predictive ability. The article stated that Jim Wallace would not resign as leader of Scotland’s Liberal Democrats, which Wallace did just over two months later. The Sunday herald has a diary column written by Alan Taylor. Taylor is something of a hero to this LJ as the man who persuaded the Booker prize jury in 1994 to award the prize to Jim Kelman for How late it was how late. However, his diary column is full of the usual and his 18th December 2005 diary column (the last of the year) was a “witty” review of the year. The review included the award of the Tartan Bollocks Award to Mr MacLeod for his column on Wallace. The article (which is not defamatory) read,
“As ever, the competition was intense for the prestigious Tartan Bollocks Award, which is given to the Holyrood hack who has made the biggest gaffe of the year.
“At a star-studless ceremony in an Edinburgh shebeen, Hamish McDonell, the Hootsmon’s peedie political editor, was shortlisted for his fantastic tale in which Lord Forsyth of Blessed Memory called for the abolition of MSPs.
“Sadly the story turned out to be so old that it had mould growing on it. Angus Macleod of the Times who, like Alexander Graham Bell, is justly renowned for his powers of invention, came close with his confident prediction that Jim Wallace would still be leading the LibDems in 2007. Mr Wallace repaid the faith shown in him by promptly announcing his retirement.
“I was shocked to learn that my dear friend Robbie Dinwoodie of The Herald was a contender, having opined that Tory MSP, David Davidson, would not lose his place on the health committee despite forming an unusually strong attachment to Gnat MSP Christine Grahame. How wrong you were, Mr Dinwoodie.
“None, however, it was universally agreed, could possibly compete with Campbell Gunn, who at the height of Taxigate told the embalmed readership of the Sunday Post that David McLutchie-at-Straws would survive the slings and arrows being hurled in his direction. A day later McLutchie offered his resignation. The gratitude of politicians!”
MacLeod argued that this was defamatory because it suggested that he invented stories for his paper. He argued in the court papers that, “The article conveyed to the reader the false impression that the pursuer enjoyed a just renown for his powers of invention. The reader would have concluded that he was a disreputable journalist who made up stories rather than investigate them. They would have concluded that he was not a fit and proper person to be employed by The Times or to take part in broadcasting for the BBC and other broadcasters.” What view the right-thinking public will take now I’m not sure.
Adotping the “It was satire, guv.” argument (much loved by this LJ) and that “no-one reading it could believe it was true” argument (also much loved by this LJ) the defence rest. MacLeod then attempted to show the article was defamatory. His argument warrants quoting in full,
“The pursuer had written his article of 25 February 2005 on the basis of information provided by Mr Wallace. The article published by the defenders described it as a prediction. If the article had said only that the pursuer had made a false prediction, that would not be defamatory; or if it had referred to the pursuer as being like Nostradamus or the Brahan Seer, no action would have been raised. But journalists were not permitted to invent stories. The question was whether the words complained of were capable of bearing a defamatory meaning. If there was controversy as to which of two meanings should be ascribed to them, the case should be sent to proof before answer [a hearing on the facts to decide if the words were defamatory]. Standing the duty of a journalist not to invent, the imputation in the article was capable of lowering the pursuer in the minds of right-thinking members of society. Reading the article as a whole would not assist. The diarist had been reporting events which had recently taken place. The other items related to other people. An invention was not the same as a prediction: the other persons referred to in the item were journalists who had made human errors by publishing an old story or by making wrong predictions or mistakes. The pursuer, however, was said to be “justly renowned for his powers of invention.” It was a strained construction of the passage to suggest that somewhere in the article there was something that could palliate the seriousness of the allegation. The situation could not be saved by surrounding the words in question with jokes and false facts. It was not a complete answer to a defamatory statement that it was meant as a joke: Prophit v British Broadcasting Corporation 1997 SLT 745 at page 747F. A person was not allowed to murder another’s reputation in jest. The Court would have to be satisfied that the alleged words in jest had been so written that it was obvious to every ordinary reasonable reader that only a jest was meant, and the words could in no respect be regarded as an attack upon the pursuer’s reputation (Gatley, paragraph 3.32 and footnote 29). Here, there was a bane, but no antidote (cf Gatley, paragraph 3.29). Having set up the defamatory idea that the pursuer had a reputation for being an inventor, what followed was a non sequitur. The fact that the statement was in the “Diary” was neither here nor there. It was not banter: it conveyed to the reader the meanings set out in article 4. “
So the case was then decided by Lord Macphail who placed the article in context (see para 16
The “Diary” consists of a number of items. It will suffice to notice a few of them. The second item is headed, “Up the Amazon without a paddle?” and begins, “Dramatic news!” It continues:
“Anthropologists combing the Amazonian rainforest for a lost Indian tribe have stumbled across Patricia Ferguson, Meenister for Everything, who was recently reported missing in despatches.”
The diarist goes on to inform the reader that Ms Ferguson “had spent her spell in the wilderness listening to Franz Ferdinand on her iPod and reading the Oor Wullie annual.” The next item is concerned with a statement by the First Minister about a bid by the city of Glasgow to host the Commonwealth Games in 2014. It states:
“‘We will have a quality bid,’ he decreed, like Caesar announcing the invasion of Gaul, ‘one that will deliver an event that will be the envy of the world.'”
Another item begins:
“Lord Berk, who in an earlier incarnation was called Birt, has left Downing Street for a job in the City. This was news to many, most of whom assumed that when the former BBC director general stood down he went into hospital to try and have his charisma by-pass op reversed.”
These examples indicate the context in which the item containing the passage complained of by the pursuer appears.
Having proved that the diary attempted to be amusing through reference to Oor Wullie Lord MacPhail then quoted the offending article in full (see above). Apparently MacLeod argued that the article was defamatory in four ways:
“(1) “The article conveyed to the reader the false impression that the pursuer enjoyed a just renown for his powers of invention.” (2) “The reader would have concluded that he was a disreputable journalist who made stories up rather than investigate them”. (3) “They would have concluded that he was not a fit and proper person to be employed by The Times or to take part in broadcasting for the BBC and other broadcasters.” (4) “Those who read his article would have concluded that he invented a conversation with Jim Wallace.””
The case is roundly dismissed by Lord McPhail after close textual analysis…