Defamation Update: Part 2 – Heather Rogers QC

30 03 2011

This is the second part of a three part post dealing with the key libel cases over the last twelve months or so in England and Wales.  Part 1 was posted on 29 March 2011.

The fiction at the heart of defamation claims: the “single meaning rule”

In order to work out whether a publication is defamatory, it is necessary to work out what it means. The world of defamation is run on the basis of the “single meaning rule”: there is one “right” meaning to be attributed to a publication, that is, how it would have been understood by the (hypothetical) ordinary reasonable reader or viewer. This single meaning determines how serious the case is (which affects damages) as well as the scope of some substantive defences.

In Ajinomoto Sweeteners Europe SAS v ASDA Stores Ltd [2011] 2 WLR 91 CA, the question for the court was whether the single meaning rule should be applied to malicious falsehood cases. The Court of Appeal was unanimous that it should not and was scathing about the rule. According to Sedley LJ (with whom Sir Scott Baker agreed), the rule had “passed beyond redemption by the courts” [27] and was “anomalous, frequently otiose and, where not otiose, unjust” [31]. It would be “fairer and more realistic” to try malicious falsehood actions without applying the rule [34]. Rimer LJ at [43] thought that if the “single meaning rule” did achieve a fair balance in defamation law, that “would appear to be the result of luck rather than judgment”. “If the single meaning rule did not exist, I doubt if any modern court would invent it, either for defamation or any other tort.” Permission to appeal to the Supreme Court was granted in November 2010. (Though there is some doubt as to whether the appeal will take place).

If these criticisms of the rule are well-founded, is it time to look at its effect in defamation? The rule has been disapplied in “Reynolds/Jameel” cases, because of the need to make that defence practical and effective: Bonnick v Morris [2003] 1 AC 300 PC at [21-22] (Lord Nicholls). But it still applies in cases of justification (truth) and comment: as to the latter, see Lowe v Associated Newspapers [1997] QB 580 at [12-15], but also BCA v Singh [2011] 1 WLR 133 CA at [32] (and below). Is it time for libel to get real?

Defences – justification (truth)

There is not much to report in relation to this defence: the burden of proof is – and is likely to remain – on the defendant, despite calls from some campaigners for it to shift (The ECtHR has held that requiring defendants to prove truth is not incompatible with Article 10: see McVicar v UK (2002) 35 EHRR 22; Steel v UK [2005] EMLR 314). Disputes about what the publication means – or is reasonably capable of meaning – and about what facts the defendant is entitled to rely on (the “particulars of justification”) – continue to come before the court. Recent cases include:

  • Hunt v Evening Standard [2011] EWHC 272 (QB). Tugendhat J applied the familiar principles set out by the Court of Appeal in King v Telegraph [2004] EMLR 23, and the “similar fact” principles from O’Brien v Chief Constable of South Wales Police [2005] 2 AC 534, see [11-12]. This led him to strike out part of the plea of justification. However, he left in the plea of general bad reputation, that the “Claimant’s reputation among law enforcement agencies is as the head of one of the most notorious organised crime groups in the country; he is regarded as extremely dangerous and violent” [30-34]. The plea contrasts with the Claimant’s own description of himself as “a businessman with substantial interests in commercial property in the London area”.
  • Lord Ashcroft v Foley [2011] EWHC 292 (QB). Tugendhat J struck out defences of justification and comment: if there was a viable defence, it was in “everyone’s interests” that it should see the light of day and be properly addressed on a “fair and open basis”; but the case should not be allowed to go forward on a “muddled” basis: [63]. While it was not for the court to dictate how a defence of justification should be pleaded, it was legitimate for it to “try and focus the parties on the real dispute between them”, and to ensure that the defence was directed to a “coherent defamatory meaning” and that the claimant knew what s/he was supposed to have done: [28]. This was particularly so in relation to the “sensitive, and potentially scandalous” allegations made; a case – whether tried by judge or jury – should not be conducted on the basis of “nods and winks” [52].
  • Beach Developments Ltd v Foskett: [2011] EWHC 198 (QB). Tugendhat J decided that the principal defamatory meaning conveyed (by four publications) was one of actual guilt of dishonesty – which was what the claimant complained about. The judge refused to let a defence of justification directed to showing that the claimant was “nasty” to go forward. It would have been disproportionate to seek to adjudicate, separately, on an allegation of “unpleasantness” (particularly as the claimant was a company). Further, since the allegation was of “guilt” (Chase Level 1), the judge struck out any particulars of justification advanced in relation to lesser defamatory meanings (Chase Levels 2 or 3). The costs in relation to those matters were “significant”, involving a mass of detail and an expert report. He ordered that the defendant could not, in any event, recover his costs in relation to those matters. The claimant’s costs in relation to them were reserved.
  • Graham v West [2011] EWHC 4 (QB). At the trial of a case that was principally concerned with allegations of false arrest (against a police officer), the judge found that defamatory allegations were all true.
  • Cambridge v Makin [2011] EWHC 12 (QB).  At a trial by judge alone (Tugendhat J), the defendant failed to prove that the claimant had abused her position by acting on a conflict of interest [7], [141-147]. The judge focused closely on what had been published.

A defendant may be able to obtain evidence through applications for third party disclosure. A recent illustration is Henry v News Group Newspapers Ltd [2011] EWHC 296 (QB), a libel claim brought by a social worker who had had some responsibility for “Baby P”, Peter Connelly, during his lifetime. The defendant successfully applied for disclosure of specified documents from the London Borough of Haringey (the claimant’s employer). Tugendhat J found that the documents sought (which he had not read, although extracts had been quoted in a skeleton argument) might well support NGN’s case or adversely affect the claimant’s case. Disclosure was “necessary in order to dispose fairly of the claim, including what is fair to third parties whose reputations may be affected by the outcome of these proceedings.”

 

Defences – comment

 

The law of fair comment has come under considerable media focus. It has long been recognised that the name – “fair comment” – is misleading (the commentator must be “honest”, but does not need to be “fair”) and ought to be changed. But, more important, is the fact that while the defence ought to provide a strong protection for freedom of expression, it remains bedevilled by technicalities and is difficult to mount in practice (it may be as onerous as a defence of justification).

The decision in British Chiropractic Association v Singh in the Court of Appeal [2011] 1 WLR 133 CA illustrated that the line between “fact” and “comment” is difficult to draw. Both the judge and the Court of Appeal thought the answer was obvious: the judge thought that what was published was plainly fact; the Court of Appeal was convinced it was plainly comment. Yet the “comment” defence requires – and is likely to continue to require – that what is published must be “recognisable as comment” (see below) or, if the Court of Appeal’s preferred name of “honest opinion” is followed, then “recognisable as opinion”.

The Supreme Court opted for renaming the defence “honest comment” in Joseph v Spiller [2010] UKSC 53, [2010] 3 WLR 1791 at [117] (for the Court of Appeal, see [2010] ICR 642, [2010] EMLR 7 CA). The defendants, who provided entertainment booking services, announced on their website that they were no longer able to take bookings for the claimants’ group because (it was alleged) they were “not professional enough” and had broken their contract. Comment was one of the defences raised. The judgments at first instance and on appeal were mainly taken up with the facts (the defence of justification) and, in particular, an analysis of the enforceability of a contractual re-engagement clause, in the light of the 2003 Employment Agencies & Employment Business Regulations SI 2003/3319. As to comment, the Court of Appeal overruled the judge’s decision that what had been published was fact (not comment) [28-31] and that the comment was not on a “matter of public interest”; but this success by the defendants made no real difference – the appeal court still struck out the comment defence, because of factual errors in what had been published [45-47].

The Supreme Court allowed the appeal. Its decision sets out a history of the comment defence and includes a re-statement of its essential elements: it adopted the summary by Lord Nicholls in Cheng v Paul [2001] EMLR 777, subject to a change in the fourth element [3], [105]. As varied by the Supreme Court, the elements would now read:

“16.     .… First, the comment must be on a matter of public interest. Public interest is not to be confined within narrow limits today: see Lord Denning in London Artists Ltd v Littler [1969] 2 QB 375, 391.

17.       Second, the comment must be recognisable as comment, as distinct from an imputation of fact. If the imputation is one of fact, a ground of defence must be sought elsewhere, for example, justification or privilege. Much learning has grown up around the distinction between fact and comment. For present purposes it is sufficient to note that a statement may be one or the other, depending on the context. ….

18.       Third, the comment must be based on facts which are true or protected by privilege: see, for instance, London Artists Ltd v Littler [1969] 2 QB 375, 395. If the facts on which the comment purports to be founded are not proved to be true or published on a privilege occasion, the defence of fair comment is not available.

19.       Next the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based. [The original formulation had read: “Next, the comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. The reader or hearer should be in a position to judge for himself how far the comment was well founded.”]

20.       Finally, the comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views: see Lord Porter in Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449, 461, commenting on an observation of Lord Esher MR in Merivale v Carson (1888) 20 QBD 275, 281. It must be germane to the subject-matter criticised. Dislike of an artist’s style would not justify an attack upon his morals or manners. But a critic need not be mealy-mouthed in denouncing what he disagrees with. He is entitled to dip his pen in gall for the purposes of legitimate criticism: see Jordan CJ in Gardiner v Fairfax (1942) 42 SR (NSW) 171, 174.

21.       These are the outer limits of the defence.

Having reformulated the defence in this way, the Supreme Court found that the comment defence should be reinstated [118-127].  Other than suggesting the renaming of the defence, the Supreme Court resisted the invitation for wider reform [106-117]; there were “difficult questions”, which merited consideration by the Law Commission “or an expert committee” [117]. Not the Supreme Court in that case.

So – to put the main principles of the defence into an even shorter summary:

(1)   Comment must be on matter of public interest.

(2)   Comment must be recognisable as comment – not an imputation of fact (although can include an inference of fact)

(3)   Comment must be on facts that are true (or protected by privilege).

(4)   Comment must indicate (explicitly or implicitly, at least in general terms) the factual basis for the comment.

(5)   Comment must satisfy the “general test” – it must be one that an “honest” person could have made on the proved facts.

Even then, the defence can be defeated if the claimant proves “malice”.

It is worth noting that the importance of the distinction between “fact” and “value judgment” has long been recognised in Strasbourg: a requirement that a defendant prove the truth of a value judgment will violate Article 10, although a value judgment

which lacks any factual foundation will not be protected. However, in recent cases, arising from political debate, the ECtHR has acknowledged that there are cases where the distinction between statement of fact and value judgments has less significance. For example, in Dyuldin v Russia (2009) 48 EHRR 6, the ECtHR set out the following principles:

“46.     A further aspect relevant to the Court’s determination in the present case is the distinction between statements of fact and value judgments. It has been the Court’s constant view that, while the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by art.10..

47.       In the present case the Court observes that the domestic courts considered all terms employed by the applicants in their publication to be statements of fact without examining the question whether they could be considered to be value judgments. …

48.       The Court considers that the expressions used in the letter should be characterised as value judgments rather than statements of fact. However, since under the Court’s case law a value judgment must be based on sufficient facts in order to constitute a fair comment under art.10 , the difference between a value judgment and a statement of fact finally lies in the degree of factual proof which has to be established. …

49.       The Court would in any event observe that the distinction between statements of fact and value judgments is of less significance in a case such as the present one, where the impugned statement was made in the course of a lively political debate at local level and where elected officials and journalists should enjoy a wide freedom to criticise the actions of a local authority, even where the statements made may lack a clear basis in fact.”

In Strasbourg, it is the type of speech (here, political debate) that determines whether the widest possible protection for free speech is conferred. See also, for example, Lombardo v Malta (2009) 48 EHRR 23 at [60] (another “lively political debate” case); and Filatenko v Russia (2010) 50 EHRR 35 (defamatory statement made on live television show, shortly before elections).

Finally, in relation to comment, in Lait v Evening Standard [2010] EWHC 3239 (QB), Eady J ruled, pre-trial, that a defence of fair comment was bound to succeed. This is a remarkable win for the defendant, particularly as the court found that there was no substantive defence (comment or justification) to an allegation of “hypocrisy”, which the article could reasonably be found to bear, there was a significant factual error in the article, and the case was set for jury trial. The claimant, an MP, had sued over an article published in response to an open letter, of which she was a signatory, criticising a proposal in relation to MPs’ expenses. The defendant maintained that right-thinking members of the public would be fully entitled to feel angry at the Claimant, because she (like other MPs) should have “shut up” about expenses and should not have opposed, or criticised, the recommendations being made (in the “Kelly Report”). Eady J approached the matter as one of “principle and practicality” [44]. Since the comment defence was bound to succeed, in relation to the defendant’s meaning, the jury would not award compensation to the claimant for an additional, unsubstantiated, implication of hypocrisy and, in any case, it would make no sense to spend time and large sums of money to resolve that theoretical point [45]. An application to the Court of Appeal is pending – floating in early July 2011. This has the potential to be very interesting indeed.

Heather Rogers QC is a barrister at Doughty Street Chambers.  This is the second part of a paper delivered at the 18th Annual IBC Conference on Defamation and Privacy, held on 15 March 2011.

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31 03 2011
Midweek media law mop up: Mooting, souped up injunctions and CFA reform | media law & ethics

[…] Inforrm>>Defamation Update: Part 2 – Heather Rogers QC […]

21 07 2011

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