A recent decision of Sheriff McGowan's illustrates some of the difficulties facing a pursuer when trying to establish a defamation claim.
George Cowan, a painter and decorator, raised an action against Mark Bennett. The factual basis of the claim was that the defender had implied that Mr Cowan was homosexual, to the detriment of his reputation and business interests. Mr Cowan is not gay. The comments were made during regular meetings of a group of local businessmen.
It was established that the defender had referred to the pursuer as "the gay painter", and used other similar terms at these public business meetings. The Sheriff went on to consider what those words meant. With reference to the case of McLeod v News Quest (Sunday Herald) Limited, the Sheriff set out that the court had to consider how the hypothetical reasonable listener, who is not naïve but is not unduly suspicious, would have considered those words. The Sheriff found that no reasonable person would have formed the view that the defender was seriously suggesting that the pursuer was homosexual. The evidence of those who had witnessed the comments was that, although they did feel uncomfortable as the joke was in very bad taste, they did not take from it that the pursuer was homosexual. Accordingly, the pursuer's case failed.
The Sheriff went on to consider whether (had he found there to be an imputation of homosexuality) it would have been defamatory. He found that it was not. Being referred to as being gay is not likely to harm someone's reputation.
There were another two aspects of the pursuer's case; that the defender had distributed pink business cards as a comment about his sexuality, and that the defender was responsible for some defaced business cards which had offence remarks about the pursuer on them.On both these grounds, the pursuer's case failed as there was insufficient or contradictory evidence. He did not establish that the defender had distributed pink business cards, nor that he had defaced the pursuer's business cards with offensive remarks.
Although unsuccessful, it is clear from his decision that the Sheriff had considerable sympathy for the pursuer. He commented repeatedly on the defender's behaviour being in poor taste and that it had caused other parties discomfort. However, this was not sufficient of itself to establish defamation.
So, what went wrong with this case for the pursuer? Often with defamation cases there is confusing or contradictory evidence of who said or did what and when. In this case, the pursuer failed to establish some of the allegations he made against the defender. However, he did establish that the defender had called him a "gay painter", but being called "gay" could not be said to be damaging to his reputation. The pursuer was subjected to unpleasant and unwelcome abuse, but that alone was not sufficient to be defamatory.The abuse would have to have been a slight on the pursuer's reputation in the eyes of a reasonable person, and it simply could not be said that that had happened.