The Court of Appeal handed down an interesting decision this week in relation to the tort of malicious falsehood, one which might have wider implications for the law of libel. The issue in Ajinomoto Sweeteners Europe SAS v ASDA Stores Ltd ( EWCA Civ 609) concerned the determination of meaning in a malicious falsehood case. Put shortly: if it is alleged that the defendant has made false and malicious allegation, how the precise nature of the allegation made to be ascertained?
In a libel case the position would have been straightforward. There is a clearly established rule that the court must decide on “a single meaning” which the hypothetical ordinary, reasonable person would have understood to the words to bear. This is a legal fiction because it is obvious that words are understood in different ways by different people. Nevertheless, the “single meaning” rule has been well established in the law for two hundred years and was endorsed by the House of Lords in Charleston v News Group Newspapers  2 AC 65.
The Ajinomoto Sweeteners case concerned the sugar substitute “aspartame” – which is manufactured and supplied by the claimant. The defendant supermarket chain sells health foods which have the following words on the label:“No hidden nasties”, together with further words, typically reading “No artificial colours or flavours and no aspartame”.
The claimant suggested that there were three possible allegations made by these words:
A: That aspartame is harmful or unhealthy.
B: That there is a risk that aspartame is harmful or unhealthy.
C: That aspartame is to be avoided.
The defendant said that the words meant
D: That these foods were for customers who found aspartame objectionable.
At first instance ( EWHC 1717 (QB)) Tugendhat J held that this rule applied in malicious falsehood cases and that, although meaning B was a possible meaning the “single meaning” was meaning D.
This view was rejected by the Court of Appeal because, in Sedley LJ’s words “the rule itself is anomalous, frequently otiose and, where not otiose, unjust” (para 31). Rimer LJ pointed out the potential injustice arising from the judge’s finding that meaning B was a possible meaning
If the case were allowed to go to trial and the claimant were able to prove that such meaning was false, uttered with malice and calculated to damage it, why should it not be entitled to damages for the injury which the falsehood will have caused it? More importantly – and this is the primary remedy the claimant wants – why, if it can prove its case, should it not be entitled to have the defendant restrained by injunction from doing that which it wants to do, namely (presumably for its own commercial benefit) to continue to publish a falsehood that will continue to damage the claimant in the eyes of a substantial body of consumers? The result, however, of the application by the judge of the single meaning rule is that that body of consumers is removed from the court’s radar. The court instead satisfies itself with the fiction, contrary to its own finding, that the entire consuming public will interpret the defendant’s packaging as bearing a single innocuous meaning (para 41).
Rimer LJ cast serious doubt as to whether the rule is appropriate in libel cases:
“If the single meaning rule does achieve a fair balance in defamation law between the parties’ competing interests, that would appear to be the result of luck rather than judgment; and how the measure of such claimed fairness might be assessed may anyway be questionable. The application of the rule can also be said to carry with it the potential for swinging the balance unfairly against one party of the other, resulting in no compensation in cases when fairness might suggest that some should be due, or in over-compensation in others”. (para 43).
A further oddity about the application of a single meaning rule in malicious falsehood cases is that “malice” involves a finding about the defendant’s state of mind. The primary way of proving malice is to show that the defendant knew that the allegation being made was false (or was reckless about its truth or falsity). For that purpose, even in the defamation context, it is necessary to look at the allegation that the defendant believed was being made – not at the “single meaning” of the words (see Loveless v Earl  EWCA Civ 1670). In other words, in order to prove malice the claimant needs to focus on the allegation that the defendant thought was being made. This might well be different from the “single meaning” ascertained by judge or jury.
The “single meaning” rule is fundamental to the modern law of libel. It has not been addressed in any of the contributions to the “libel reform” debate – it is not dealt with, for example, in Lord Lester’s Defamation Bill. The judgment in Ajinomoto Sweeteners suggests that perhaps this might be one of the topics covered by a thoroughgoing review of the law.