A LAWYER acting for a pro-independence blogger who lost a £25,000 defamation battle against Kezia Dugdale has urged a court to overturn the decision. 

Stuart Campbell, who runs the website Wings Over Scotland, tried to sue the former Scottish Labour leader last year after she accused him of writing “homophobic tweets”.

But Sheriff Nigel Ross ruled Ms Dugdale did not have to pay damages following a three-day hearing in Edinburgh. 

He found that although she was incorrect to imply Mr Campbell was a homophobe in her Daily Record column, the article was covered by the defence of fair comment.

He later ordered Mr Campbell to pay Ms Dugdale’s full legal expenses, plus a 50 per cent “uplift”. 

Mr Campbell is appealing the decision in the Inner House of the Court of Session, where three senior judges heard the case virtually, using online video links, in a legal first sparked by the coronavirus crisis.

Craig Sandison QC, who is acting for the blogger, told the court the defence of fair comment fails on three separate grounds. 

But Roddy Dunlop QC, acting for Ms Dugdale, urged the judges to reject the appeal and insisted the irony of the legal action "remains lost" on Mr Campbell. 

He said: "This is a man who lives or dies on the basis of freedom of expression, who spends his time online belittling, reviling and abusing anyone with the temerity to disagree with his world view."

But the "first time someone dare stand up to him," Mr Dunlop said, "his first thought is to sue". 

The legal row centres on a tweet Mr Campbell, 52, sent in March 2017.

He wrote that the former Scottish Secretary David Mundell’s son, the Tory MSP Oliver Mundell, was “the sort of public speaker that makes you wish his dad had embraced his homosexuality sooner”.

David Mundell came out as gay in 2016.

Writing in her Daily Record column a few days later, Ms Dugdale said she was “shocked and appalled to see a pro-independence blogger’s homophobic tweets”, and accused Wings Over Scotland of spouting “hatred and homophobia towards others”.

Mr Campbell strongly refutes this and accused her of defamation.

Mr Sandison said the first ground for appeal "is that the allegation of homophobia made by the article written by the defender was an allegation of fact, not of opinion or comment".

He said a homophobe "is a thing that exists in the world, just as a racist is a thing that exists in the world".

He said the article made a specific allegation of homophobia.

He said: "I accept that this is a comment piece, on a comment page. 

"But crucially, comment – necessarily, in my submission – has to be about something. 

"And what the elements of comment in this article are about...is the supposed fact that the pursuer is a homophobe, or homophobic."

Mr Sandison also argued Ms Dugdale's article contained insufficient reference to the facts on which it was based.

He told the court: "She alleged not that the pursuer had made a single tweet which she considered homophobic, but rather that he had made an unspecified number of homophobic tweets."

The lawyer said this made the allegation very different.

But Mr Dunlop insisted it would be a "very odd situation indeed" if a misplaced letter S could destroy the defence. 

He added: "A single communication sent to multiple recipients merits the use of the plural - especially, I would content, where someone like the pursuer plainly uses Twitter in the knowledge, expectation and doubtless hope that one's tweet will be retweeted and thus gain greater currency."

Elsewhere, Mr Sandison insisted the comment itself "was not fair within the meaning of Scots law". 

He said whether someone honestly believes something is not enough to make that comment "fair". 

Honesty is not the same as fairness, the lawyer argued, and Scots law is concerned with what is "substantively fair".

He said Ms Dugdale made no effort to check Mr Campbell's previous publications to ascertain whether he is a homophobe, and was not prepared to call him a homophobe in court. 

Mr Sandison also argued there is no rational basis to conclude Mr Campbell's tweet was homophobic.

He said it was an "unkind tweet", adding: "In so far as it was a joke, it doesn't seem to me to be a terribly funny joke."

However he did not accept it was "singling out" Mr Mundell's sexuality gratuitously. 

He also took issue with Sheriff Ross's ruling that any damages resulting from the defamation action would have been vastly reduced to just £100, partly due to Mr Campbell's abrasive and rude writing style.

Mr Sandison insisted it is an "error of law" to conclude that Mr Campbell can have "no or little hurt feelings" if someone makes a specific false allegation about an aspect of his character. 

He said: "The pursuer gave out rudeness, certainly, but what he got back was a falsehood."

He suggested an award of £25,000 was justified by the seriousness of the allegation. 

He said: "The sheriff's approach to matters, just to say if you're rude you're not entitled to anything, is in my submission a plain error in law."

Mr Dunlop argued the ordinary, reasonable reader would know Ms Dugdale's article was a comment piece. 

Referring to Mr Campbell's tweet, he said: "It was a gratuitous reference. It wasn't just saying, 'I wish he'd never been born.'

"It was making fun of his father's sexuality to make the point that he wished he'd never been born. 

"And that is something that may fairly be described as homophobic, whether or not one agrees with that categorisation." 

He added: "When Mr Campbell decided to deride Oliver Mundell by focusing on his father's sexuality, he left himself open to commentary that doing so was homophobic."

Mr Dunlop said there was a "clear and unarguable failure" to prove any damage to reputation. 

The appeal was heard before judges Lord Carloway, Lord Menzies and Lord Brodie.

They will issue a decision at a later date.