Mr Justice Tugendhat explores what "defamatory" means in a media friendly ruling

In an important ruling on what "defamatory" means, Mr Justice Tugendhat granted the Telegraph Media Group Limited summary judgment against author, Dr Sarah Thornton. In doing so, he identified that defamatory statements must:

• Meet a seriousness threshold before they are actionable; and
• Affect the actions of right-thinking people towards the claimant, rather than just their thoughts or opinions of the claimant.

In his ruling, Tugendhat J classifies defamation into two categories: personal defamation and business defamation. As concerns personal defamation, he formulated a revised definition of "defamatory", namely: "the publication of which [the Claimant] complains may be defamatory of him because it substantially affects in an adverse manner the attitude of other people towards him, or has a tendency to do so".

This case involved a book review published in the Telegraph about the Claimant's book, "Seven Days in the Art World" which was based on interviews with people within the art world. The review contained an allegation that the Claimant had engaged in "copy approval" (i.e. giving her interviewees the right to read what she proposed to write about them). Both parties acknowledged that "copy approval" was a practice that is disapproved of in a journalistic context. The Telegraph claimed that while this was the case, it was not the case in a book context. Tugendhat J found that, insofar as the allegation of "copy approval" constituted a personal libel, it fell below the seriousness threshold and the claim failed. However, he thought that the words were more likely to constitute business or professional libel and went on to consider this.

As concerns business or professional libel, he distinguished between two types of defendants: some professionals, such as dentists, must work to only one professional standard or at least to a minimum standard. Others, such as writers, are free to choose among a number of acceptable standards. It is possible for a single writer to direct different products to different readerships or markets. He found that if a professional writer is free to write to different standards for different readerships or markets then to impute to a writer that she writes to one standard rather than another cannot of itself be defamatory. Accordingly, he could not see how it could be defamatory of Dr Thornton to allege that she did not apply in her book the standards of journalists relating to copy approval. Insofar as it was defamatory, the libel did not meet the seriousness threshold and the claim failed.

Comment

Tugendhat J explained that the reason he selected the word "attitude" in his definition was because it is clearer than the word "estimation" (used in the classic definition of defamatory: "words [which] tend to lower the plaintiff in the estimation of right-thinking members of society generally" (Sim v Stretch [1936])). He commented that the "word 'attitude' makes clear that it is the actions of right-thinking persons that must be likely to be affected (so that they treat the claimant unfavourably, or less favourably than they would otherwise have done), not just their thoughts or opinions." This is likely to be a controversial observation and possibly the subject of an appeal. Tugendhat J is saying that the alleged defamatory statement has to affect the way in which people who read it act towards the claimant, rather than how they think about him.

Tugendhat J made the following observation in relation to business defamation: "if an alleged defamation engages only a person's professional attributes, then what is at stake is less likely to engage their [privacy rights under Article 8, but may engage only their commercial or property rights (which are Convention rights, if at all, under Art 1 of the First Protocol).  However, neither party advanced submissions to me on the basis of Art 8. So it is not necessary to consider that aspect of the matter further." Hopefully, this point will be explored in future cases. This passage suggests that Tugendhat J is likely to favour Article 10 freedom of expression rights over Article 8 privacy rights in relation to business or professional defamation.

To read the judgment, click here

Lawyers Lorna Caddy, Niri Shanmuganathan