Sarah Thornton’s long-running libel and malicious falsehood claim against the Telegraph Media Group has seen the parties in court again before Mr Justice Tugendhat who this time refused the newspaper’s application to amend its defence to the malicious falsehood claim (see Thornton v Telegraph Media Group (No.3)  EWHC 159 (QB)).
Dr Thornton is the author of the book, “Seven Days in the Art World”. Lynn Barber wrote a review of it in the “Daily Telegraph” on 1 November 2008 and Dr Thornton took offence and sued. The review had included the following statement:
“She [Dr Thornton] also claims that she practices “reflective ethnography” which means that her interviews have the right to read what she says about them and alter it. In journalism we call this copy approval and disapprove…”
These words had already been the subject of a judgment by Mr Justice Tugendhat on 16 June 2010 when he held that they were not defamatory or not serious enough to qualify as defamatory and granted summary judgment in respect of that part of the claim to the newspaper (see Thornton v Telegraph Media Group (No.2)  EWHC 1414 (QB)).
At the most recent hearing, the newspaper wished to amend its case in relation to the malicious falsehood claim and to rely on a defence akin to that of ‘honest comment’. While such a defence is used in the context of defamation actions, it has not previously been relied upon in defence to a malicious falsehood action and so this application raised a novel issue.
Mr Justice Tugendhat said that the question raised by the proposed amendment was whether it was the law that the words complained of cannot be regarded as false if they are comment which an honest person could express on the basis of the contents of the Book which are identified.
The Claimant argued that that this was irrelevant and that in a malicious falsehood claim the only question in relation to the first element of the tort was whether the claimant had established hat the words were false: there was no occasion to enquire whether the words were comment or not.
The argument put forward by the newspaper was that where the words are recognizable a comment, “the issue in relation to falsity in a malicious falsehood claim should not be whether the comment is true or false, but whether it has sufficient factual basis”.
The judge found the claimant was ‘clearly right’ and rejected the newspaper’s argument holding that it had no authority and was wrong in principle.
As is well established, where the defence of honest comment is raised against a claim in defamation the defendant needs to prove that the words are comment based on correct facts and that the comment is one which an honest person could have made on the facts proved by the defendant. The judge referred to this latter condition as “the objective criterion”, noting that even if the objective criterion is satisfied, the defence of honest comment can be defeated if the claimant establishes that the defendant was actuated by express malice (i.e. that the defendant did not honestly believe in the truth of what she had said).
The judge said that effect of the objective criterion is that if a defendant draws a false inference, then provided an honest person could have believed that inference to be true, the defendant is not liable, unless the claimant can prove that the defendant did not believe the inference to be true. However, he noted that the effect of introducing the objective test into malicious falsehood would be the opposite: if a defendant draws a false inference of fact, then provided an honest person could have believed that inference to be true, he is not liable, even if the claimant could prove that the defendant did not believe the inference to be true.
This is the second radical reform in relating to “honest comment” that had been raised recently by the Solicitor-Advocate, David Price, who was acting for the newspaper. The Supreme Court rejected the first, put forward in Spiller v Joseph ( UKSC 53), which argued for a reform of the law of honest comment in libel so that the defendant’s state of mind would be wholly irrelevant and the test would only depend upon the objective criterion. In that case the Supreme Court said that it was beyond the changes that could properly be made by development of common law and would require legislation. Given that fact, the result of this case – where an even more novel reform was proposed – was unsurprising.
Sara Mansoori is a barrister who will, from 1 April 2011, be a member of Matrix Chambers (see the announcement here)