One of the first things a party must show in a defamation action is that the statement complained of is capable of being defamatory.  To be defamatory the statement must lower the reputation of the subject in the eyes of the right thinking members of society.  It is impossible to provide a comprehensive statement of what could be defamatory. Generally, it must involve some prejudice to the character or reputation of the subject, which can include his personal, business or financial reputation.  This flexible test allows the Court to consider the statement in the context of society today and recognises that what is deemed defamatory can change as society changes.  This was shown in the recent Sheriff Court case of Cowan v. Bennet.

This case concerned two former friends, Mr Bennet and Mr Cowan.  Mr Bennet was referred to as "gregarious and outspoken".  The Court heard that he enjoyed "banter" and making jokes with the people he met.  These were not traits that Mr Cowan, a painter, shared.  The relationship between the two broke down after Mr Bennet started to refer to Mr Cowan as "the gay painter", even though Mr Cowan was heterosexual.  Mr Cowan brought an action for defamation claiming £10,000 damages.

The Sheriff found that the comments were intended to be a joke.  The Sheriff looked at the context of the comments and decided that a reasonable person would not conclude from the statement that Mr Cowan was homosexual.

The Sheriff went on to consider whether an allegation of homosexuality could be considered defamatory.  There are a number of instances of false allegations of homosexuality being found defamatory by courts.  These cases range from Richardson v Walker (1804) to the more recent example of Prophit v BBC (1999).  Prophit can be easily distinguished from the present case.  In that case an allegation of homosexuality was found to be defamatory as the pursuer was part of a religion that considered homosexuality sinful.  In the more factually similar case of AB v. XY (1916) the Court commented on the fact that the defamatory sting of the allegation was twofold.  Not only did the statement allege that the pursuer was homosexual but it also accused him of criminal conduct, homosexuality in 1916 being illegal.

Now, in 2012, Sheriff McGowan commented that times have moved on.  Homosexuality is widely protected by the law and many people are openly homosexual.  The allegation of homosexuality did not cause any damage to Mr Cowan.  Rather any damage done to his reputation was done by the fact that Mr Bennet repeatedly humiliated him and this was not consistent with the image of a serious businessman.

The law of defamation could not help Mr Cowan but the Sheriff was anxious that Mr Bennet should not come out of the case "smelling of roses".  The Sheriff said that Mr Bennet should bear some responsibility for the destruction of what was a good friendship.

Mr Bennet argued that these statements were just ‘banter’ and not meant to cause offence. Mr Cowan may have found the statements humiliating but the Court concluded that the fact that someone is a homosexual cannot lower their reputation in the eyes of right thinking members of society and, therefore, cannot be defamatory.  The Sheriff was also quick to discount speculation that prejudiced people would no longer use Mr Cowan’s painting business. A prejudiced person is not a right thinking member of society.