LANDMARK DEFAMATION RULING: PUBLIC INTEREST AND HONEST OPINION DEFENCES UPHELD IN FIRST SCOTTISH CASE UNDER THE 2021 ACT

BACKGROUND:

Gillespie and MacMillan v Wardrop [2025] CSOH 46, in which BKF successfully represented the Defender, concerned a defamation action brought by James Gillespie and Mark MacMillan (“the Pursuers”) against Alan Wardrop over statements made by him after stepping down as director of St Mirren Football Club (SMFC). The Pursuers alleged that Mr. Wardrop made defamatory statements about them, seeking damages and an interdict to prevent further defamatory statements. The dispute centred on two statements made after Mr Wardrop stepped down as Director of SMFC one during his campaign for election to the supporters’ board and another published in The Herald.

While the Court found that the statements were defamatory and ultimately untrue, it accepted Wardrop’s defence of public interest under the Defamation and Malicious Publication (Scotland) Act 2021, (DMPA) ruling he reasonably believed the statements were in public interest and acted without malice.

This case marks the first reported Court of Session decision in Scotland to apply the 2021 Act, specifically addressing the statutory defences of publication on a matter of public interest and honest comment. The DMPA introduced significant reforms to Scottish Defamation law, aligning it more closely with developments in England and Wales, setting clear standards for when defamatory statements can be excused.

By upholding the public interest defence under Section 6 and the honest opinion defence under Section 7, the Court set an important precedent, demonstrating that individuals who act responsibly and raise legitimate public concerns may be protected, even if the statements they make are ultimately incorrect.

PUBLIC INTEREST:

The judgement hinged on the Court’s acceptance of the Mr Wardrop’s public interest defence under Section 6 of DMPA. Although the statements made by him regarding the Pursuers were found to be defamatory, the Court concluded that they addressed matters of significant public concerns – specifically the governance of SMFC, the conduct of charity-appointed directors, and the use of public funds.

Cruicially, Mr Wardrop demonstrated that he held a reasonable belief in the truth and public value of his statements. Mr Wardrop had taken steps to verify his concerns by consulting legal advice pre-publication, reviewing council documents, and submitting Freedom of Information requests. Although he did not contact the Pursuers for clarification, the Court accepted that his actions demonstrated a reasonable and responsible belief made in good faith and without malice. This justified the application of the public interest defence and resulted in the dismissal of the Pursuers’ claims.

HONEST OPINION:

The defence of honest opinion in terms of Section 7 of DMPA played a significant role in the Court’s decision regarding the Herald statement. This defence allows for a defamatory statement to be excused if it is clearly an opinion based on evidence and genuinely held by the defender.

In this case, Mr Wardrop accused the Pursuers of a “cover-up” and of “lying” in a statement published by the Herald. The Court determined that this was not a factual assertion, but an opinion drawn from available material. Additionally, the Court found no evidence to suggest that Mr Wardrop did not genuinely believe his statement.

This ruling confirms that for a successful honest opinion ruling, the statement must be recognisable as an opinion rather than an assertion of fact, based on evidence that existed at the time of publication, and the defender must genuinely hold the opinion expressed in the statement.

UNDERSTANDING SECTION 6 OF THE ACT AND ITS IMPLICATIONS

Under Section 6 of DMPA it is a defence to a defamatory statement if publication relates to a matter of public interest and the defender reasonably believed that publishing it was in the public interest. This defence is designed to protect freedom of expression on issues that affect the public, so long as the individual making the statements acts responsibly, seeks to verify the facts, and is not motivated by malice. This ruling makes clear that raising concerns about governance, charity involvement, or the use of public funds can fall within the scope of public interest.

This ruling confirms that the defender does not need to be correct in the allegations. Rather, the Defender must show that their belief in the truth and public value of the statements was formed through reasonable effort. The Court will assess the context in which the statement was made, the motivation behind it, and the steps taken to verify the information. As the first judicial interpretation of this new defence in Scotland, the decision is likely to have a significant impact on how future public interest defences are framed.

CONCLUSION:

This case sets a crucial precedent in the application of Defamation and Malicious Publication (Scotland) Act 2021, particularly the public interest defence. The ruling underscores the legal protection available to individuals who responsibly raise issues of public concern – even if they are ultimately mistaken in their claims. It affirms that Scottish defamation law now balances reputation rights with the importance of free expression in democratic discourse.

Campbell S Deane, Head of BKF’s reputation management team represented Alan Wardrop throughout the litigation