IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
B E T W E E N:
Claim No. HQ09X01648
ROBERT DEE
Claimant
-vTELEGRAPH MEDIA GROUP LIMITED
Defendant
_______________________
DEFENDANT’S SKELETON ARGUMENT
FOR HEARING ON 24 FEBRUARY
RE: SINGLE MEANING
_______________________
Relevant legal principles
1. The principles relating to the determination of defamatory meaning are designed to
provide certainty and to hold a workable balance between freedom of expression and
the protection of reputation.
In mass media publications different people may
understand the same words differently. It is impracticable for the law to seek to attain
perfect justice by catering for the different ways in which a newspaper article might be
understood by its many readers.
The Courts have consistently been resistant to
attempts to carve up the readership in this manner.1
2. The single meaning rule is a well-established principle that is central to holding the
proper balance. The rule requires the meaning to be determined by reference to the
words that are deemed to constitute the entire publication. If the tribunal of fact were
permitted to determine the meaning of different parts of a publication in isolation, there
could be different and inconsistent meanings relating to the different parts.
3. The question therefore arises as to what constitutes the entire publication for the
purpose of determining meaning.
This must be a question of law for the Judge in
accordance with principle and established precedent. It is impermissible for the parties
to adduce evidence directed to how many readers were, in practice, likely to have read
1
See for example the recent judgment of Tugendhat J in Ajinomoto Sweeteners Europe SAS v
ASDA Stores Ltd [2009] 3 WLR 1149, a malicious falsehood claim.
1
some words, but not others. The tribunal of fact cannot be left to make up its own mind
as to which words it can or cannot take into account for the purpose of determining
meaning.
4. The most common example of such a dispute is where a claimant seeks to limit the
ambit of the publication in order to establish the meaning that he places on the words
and the defendant seeks to broaden it in order to negative or qualify the meaning.
In
general, the Courts have approached this issue on the basis that the defendant should
be entitled to rely on all the words that were accessible to the reader, even if a
substantial portion of readers would not have actually read them and/or it requires some
action on the part of the reader to access them e.g. turning to a different page. Gatley
[3.32] makes the general point that where “the publisher invites the public to read or view
all of the material” it should be treated as “one unit for the purposes of determining the
meaning of a particular part”.
5. In the context of a newspaper, it is well-established that where an article refers to
another article in the same issue either party is entitled to have both articles read for the
purpose of determining meaning. This principle is of direct relevance to the present
case and is binding on the Court. Gatley [3.32] states it in terms and refers to a number
of authorities in support. The relevant authorities are referred to in the schedule to this
skeleton argument.
6. In Charleston v News Group Newspapers Ltd [1995] 2 AC 65 the House of Lords held
that a newspaper article on a single page containing bold headlines and photographs
had to be construed as a whole even though many readers would only have seen the
headlines and the photographs. The House did not have to consider a publication on
different pages of a newspaper. However, it is implicit in the speech of Lord Nicholls that
the same principle applies:
“Newspapers get thicker and thicker. The News of the World published on 15 March
1992 contained 64 pages. Everybody reads selectively, scanning the headlines and
turning the pages.” at 73E
“This is not to say that words in the text of an article will always be efficacious to cure a
defamatory headline. It all depends on the context, one element in which is the lay-out of
the article. Those who print defamatory headlines are playing with fire. The ordinary
reader might not be expected to notice curative words tucked away further down in the
2
article. The more so, if the words are on a continuation page to which a reader is
directed. The standard of the ordinary reader gives a jury adequate scope to return a
verdict meeting the justice of the case.” at 74C
7. It is clear that Lord Nicholls is saying that the “continuation page to which a reader is
directed” is part of the entire publication for the purpose of determining meaning, but
may not be given the same attention as a bold headline. This is particularly so in an
extreme case such as Charleston where the headline and photographs convey a
knowingly false and defamatory impression.
8. There is no difference, as a matter of principle, between the continuation of what is
characterised as a single article on more than one page and the continuation of a story
by means of a fuller article on a different page to the summary. There can be no
difference in principle between “Continued on page 20” and “Full story..S20”. Nor can
the extent of the jump in pages to the continuation page make any difference. In both
cases the reader is “directed” to the further material and need only make a limited effort
to reach it. Some readers may not do so. However, any reasonable reader who is
acquainted with the claimant or interested in the subject matter will inevitably turn to the
further material. This is all the more so when he has been specifically invited to read the
“Full story” as opposed to a mere continuation of what he has already read or a further
article on the same subject.
9. This longstanding common law approach of incorporating all the material which the
public is invited to read is consistent with the underlying Strasbourg jurisprudence. Any
contrary approach would be inconsistent with such jurisprudence.
As stated in
paragraph 44 of the primary skeleton argument, it is a settled part of the Strasbourg
jurisprudence that the form in which information and ideas are expressed is generally for
the publisher to decide, without interference from the domestic courts. It is a legitimate
and often necessary form of journalism to cross-refer to material within the issue of a
newspaper and in particular, to provide a summary in an early part with an invitation to
read the full story elsewhere in the issue. This is a feature of most media. Newspapers
often have shorter stories on the front page, known as “the write-off”, with more detailed
articles elsewhere in the issue.
It is also common to have freestanding sections,
particularly, in relation to sport. Magazines summarise their contents on the front page.
Television news programmes start with a summary of the main stories and then address
3
each story in turn. Web publications and search engines provide home page summaries
with the opportunity to access more information.
In such circumstances, it is not
reasonable to expect the meaning to be strictly delimited to the summary on which the
claimant chooses to sue. It would be contrary to Article 10 for a publisher to be visited
with a penalty in damages and costs where the decision to separate the coverage was
within acceptable bounds and read as a whole the coverage was defensible under
domestic law.
Application to the facts
10. C’s attempt to isolate the words on the front page is contrary to binding precedent and
tactically motivated.
11. As previously stated, the letter of claim, sent by C’s solicitors shortly after publication,
complained of the S20 article and sought to establish two discrete meanings relating to
them. It is reasonable to infer that C’s decision, 11 months later, to limit the POC to the
front page article, is not because he has in the interim decided that he is unconcerned by
the S20 article. It must be because the pleader is concerned that C’s claim will be
harmed if the Court is entitled to take into account both articles. The S20 article draws
an explicit distinction between the Spanish tournaments and the 54 consecutive defeats
on the international professional circuit. It is noteworthy that the pleader not only seeks
to limit his claim to the page 1 article but in paragraph 5 of the Reply actively seeks to
prevent D from relying on both articles to determine meaning. If C believes that the S20
article makes no difference, why seek to have the front page article determined in
isolation?
12. Whatever the motivation, the tactic is flawed. The front page article contains an explicit
reference to the S20 article which is described as the “Full story”. The sport section is
part of the same issue. S20 is the back page of the section and is easily accessible from
the front page of the main section. These facts, of themselves, are sufficient to entitle C
to rely on both articles in order to determine meaning. In short, there is no basis on
which the present case can be distinguished from the numerous previous authorities that
run counter to C’s argument.
4
13. Moreover, there is nothing in the S20 article which is inconsistent with the front page
article. It is simply the fuller story which the reader was expressly invited to read. There
is no basis on which to criticise D for choosing to publish a summary followed by a fuller
article. D was acting well within the wide discretion afforded by Article 10 in relation to
the form in which information and ideas are expressed.
14. C has given no explanation of why his claim is now limited to the front page article.
There is a passing attempt in [25] of his statement (tab 9, page 51 of Volume 1) to
establish evidence of a limited class of front page only readers: “The front page article,
which I have not the slightest doubt would be read by hundreds of thousands of people,
who would not bother with the separate Sport supplement, expressly states that I have
lost all my 54 professional matches”. In fact, the front page article did not expressly
state that he had lost 54 professional matches. The article referred to the run of defeats
“during his first three years on the circuit”. Any reader who had any doubt as to what
was meant by “the circuit” could have had the matter clarified by accepting the invitation
to go to the Sport section. It is inherently unlikely that any reasonable reader interested
in tennis and/or remotely acquainted with C would not have bothered to read the “Full
story”.
15. C’s speculation as to the “hundreds of thousands of people who would not bother” is not
evidence. In any event, the existence of a class of readers who only read the front page
article is irrelevant for the reasons stated. Similarly, any assessment of the size of such
a class in isolation or comparison with readers of both articles is irrelevant.
16. The determination of what constitutes the entire publication for the purposes of the
single meaning rule is a matter that should generally be addressed at the pre-trial stage,
so that the parties know where they stand as soon as possible. It is a question of law.
No evidence is admissible. The contents of the publication speak for themselves.
17. It would be wholly impermissible to conduct a detailed investigation of the likely number
of readers of the front page only as is apparently contemplated by paragraph 5 of the
Reply. This could never be properly ascertained. Moreover, the Court would have to
proceed on the basis of principle. If the Court were to allow in such potentially costly
and time consuming evidence it would have to be on the basis that once a claimant
5
could demonstrate a sufficient number or percentage of readers who had read only part,
he would be entitled to limit the determination of meaning to that part. That number or
percentage would have to be determined by the Courts or Parliament. There are many
reasons why such an approach should not be adopted. For present purposes, it is
sufficient that it is contrary to precedent. The determination of what constitutes the
entire publication is to be based solely by consideration of the publication itself, in
accordance with the principles set out above.
David Price
Solicitor-Advocate for the Defendant
23 February 2010
6
Schedule
Rex v Lambert & Perry (2 Camp R.398)
Prosecution against the printer and proprietor of the Morning Chronicle newspaper in
relation to article critical of King George III.
Held that D has a right to have read in
evidence any extract from the same paper connected with the subject of the passage
charged as libellous, although disjoined from it by extraneous matter and printed in a
different character.
Cooke v Hughes (1824) Ry & M 112
In an action for a libel contained in a pamphlet, the defendant had a right to have the
whole of the publication read, from which the passages charged were extracts.
Thornton v Stephen (1837) 2 Mood & Rob 45 KBD Lord Denman CJ
In an action for a libel contained in the leading article of a newspaper, the defendant had
the right to have read, as part of the plaintiff's case, another part of the same newspaper
which was referred to in the article complained of.
Bolton v O'Brien (1885) 16 LR Ir 97
It was held that other passages of the same newspaper might be adduced in evidence to
illustrate the meaning of the passages charged to be libellous.
Hedley v Barlow (1865) 4 F & F 224 QBD Cockburn CJ
The whole of a journal was read as part of the plaintiff’s case as the articles in question
referred to the same subject matter.
Russell v Stubbs 1913 S.C. 14 House of Lords
An entry in a trade journal had to be read in conjunction with an explanatory note.
McCann v Scottish Media Newspapers Ltd 2000 SLT 256 Lord MacFadyen.
Three articles on different pages in one issue of a newspaper, the first ended with a
reference to the second and the second with a reference to the third were read as one
for the purpose of determining meaning.
7
“Mr Davies submitted that the proper approach to analysing whether a statement was
defamatory was to proceed in two stages by asking first what the direct or inferential
meaning of the words complained of was, then whether the words, so understood, were
defamatory. In dealing with the first of these stages, he submitted, the articles were to be
read as a whole. The question was what the ordinary reasonable person would
understand from the articles as a whole. That did not mean that the individual words or
sentences did not require to be examined, but it did mean that words should be read in
their context, rather than divorced from that context. Here the three articles should be
treated as one whole, since they all appeared in the one edition of the newspaper, and
more particularly because the first article ended with a cross reference to the second,
and the second ended with a cross reference to the third. In that connection he referred
to Russell v Stubbs Limited in which it was held that a published list of decrees in
absence had to be read with an explanatory note contained in the journal, pointing out
that publication did not imply inability to pay. He also cited Charleston v News Group
Newspapers Limited [1995] 2 AC 65, in which it was held that the question whether an
article was defamatory had to be answered by reference to the response of the ordinary
reasonable reader to the entire publication; and that a publication which, when
considered as a whole, was not defamatory, could not support a claim on the basis that
some readers would read only a part of it which, when considered in isolation, was
defamatory.”
“I accept Mr Davies' analysis of the questions which the court must address in judging
the relevancy of the pursuer's averments. The first stage is to examine what it is averred
that the material complained of would be understood to mean. That involves examination
of the words used, and of the inferences which they are said to bear. I accept Mr Davies'
submission that in that context the articles complained of must be read as a whole.
Within the context of a single article, that proposition is clearly borne out by Russell v
Stubbs Limited and Charleston v News Group Newspapers Limited. In the particular
circumstances if the present case, it is in my view appropriate to take the point further
and treat all three articles as constituting one whole. Whether the mere fact that all three
appeared in one edition of the newspaper would be sufficient to make that approach
appropriate does not in my view require to be determined, because here there is the
additional factor that the articles were linked by references leading the reader forward
from the first to the second, and from the second to the third.”
Galloway v Telegraph Group Ltd [2005] EMLR 7
A series of articles in one issue of a newspaper, including those not complained of, had
to be read together in order to determine meaning.
“48.Context is always important. In order to determine the natural meaning of the words
of which a claimant complains, it is necessary to take into account the context in which
they were used and the mode of publication. Thus a claimant cannot seek to isolate a
passage in an article, and complain of that alone, if other parts tends to throw a different
light on that passage: see e.g. per Lord Bridge in Charleston v News Group Newspapers
[1995] 2 AC 65, 70.
8
49.Context is perhaps especially important in this case, where the Claimant is
complaining of parts of newspaper articles spread over two days and consisting of a total
of thirteen pages. The context would thus include other parts of the coverage of which
no complaint is made. In particular, it is necessary to take account of the content of the
Baghdad documents (set out above) which were reproduced in the newspaper for
readers to consider.”
9