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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 86
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A476/05
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OPINION OF LADY DORRIAN
in the cause
NORMAN CHRISTOPHER
HAICKNEY
Pursuer;
against
NEWSQUEST (HERALD
& TIMES) LIMITED
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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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.
The article
[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".
Submissions for defenders
[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 na๏ve
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.
Submissions for pursuer
[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.
Defenders' response
[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.
Decision
[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.
