In a reserved judgment handed down today in the case of Thornton v Telegraph Media Group Ltd ( EWHC 1414 (QB)) Mr Justice Tugendhat granted summary judgment to the defendant in respect of libel claims arising out of a review of the claimant’s book “Seven Days in the Art World” by Lynn Barber in the “Daily Telegraph” on 1 November 2008. This result was achieved by the introduction of a novel “threshold of seriousness” into the legal definition of what constitutes a “defamatory” imputation. The consequences are potentially far reaching.
The review contained the following words which were relevant to the application:
“Sarah Thornton is a decorative Canadian with a BA in art history and a PhD in sociology and a seemingly limitless capacity to write pompous nonsense. She describes her book as a piece of “ethnographic research”, which she defines as “a genre of writing with roots in anthropology that aims to generate holistic descriptions of social and cultural worlds”. She also claims that she practices “reflexive ethnography”, which means that her interviewees have the right to read what she says about them and alter it. In journalism we call this “copy approval” and disapprove.”
The defendant has made an offer of amends in relation to part only of the review. In relation to this part the claimant complained that the underlined words made the following allegations
(a) That she had given her interviewees the right to read what she proposed to say about them and alter it, a highly reprehensible practice which, in the world of journalism was known as “copy approval”.
(b) That she had thereby shown herself to be untrustworthy and fatally lacking in integrity and credibility as a researcher and writer.
The defendant relied on the defence of fair comment. This was struck out by Sir Charles Gray ( EWHC 2863 (QB)) and the defendant sought permission to appeal. At the hearing of the application for permission, Sedley LJ ( EWCA Civ 510) raised the question as to whether the words were defamatory at all and adjourned the application.
The defendant then took up the suggestion of Lord Justice Sedley and made an application for strike out and summary judgment on the basis that the claimant had no real prospect of establishing the words were defamatory or that the court should determine that they were not capable of bearing the pleaded meanings. We have been provided with copies of the Defendant’s Skeleton and the Claimant’s Skeleton for the application.
The issue on the application was whether the words complained of were “defamatory” of the claimant. This involved analysis of what this term actually means. In his judgment Mr Justice Tugendhat conducted a comprehensive analysis of the point. He suggested a possible “systematic ordering” of the cases using a distinction between two varieties
(A) personal defamation, where there are imputations as to the character or attributes of an individual and (B) business or professional defamation, where the imputation is as to an attribute of an individual, a corporation, a trade union, a charity, or similar body, and that imputation is as to the way the profession or business is conducted. These varieties are not mutually exclusive: the same words may carry both varieties of imputation. [33(i)]
He suggested three possible sub-varieties of personal defamation:
a) Imputations as to what is “illegal, mischievous, or sinful” in Pollock CBs’ phrase (in Clay v Roberts (1863), 8 LT 397, cited in Sim v Stretch). This would perhaps now be expressed as what is illegal, or unethical or immoral, or socially harmful, but will now cover imputations which are less serious than that …
b) Imputations as to something which is not voluntary, or the result of the claimant’s conscious act or choice, but rather a misfortune for which no direct moral responsibility can be placed upon the claimant (such as disease);
c) Imputations which ridicule the claimant”. [33(ii)]
In relation to business or professional defamation, he identified two sub-varieties:
a) Imputations upon a person, firm or other body who provides goods or services that the goods or services are below a required standard in some respect which is likely to cause adverse consequences to the customer, patient or client. In these cases there may be only a limited role for the opinion or attitude of right-thinking members of society, because the required standard will usually be one that is set by the professional body or a regulatory authority;
b) Imputations upon a person, firm or body which may deter other people from providing any financial support that may be needed, or from accepting employment, or otherwise dealing with them. In these cases there may be more of a role for the opinion or attitude of right-thinking members of society. [33(iii)]
He then went on to give detailed consideration to the question as to whether the definition of “defamatory” contains a “Threshold of Seriousness” ( – ). He concluded by accepting the submission by Mr David Price for the defendant that “whatever definition of “defamatory” is adopted, it must include a qualification or threshold of seriousness, so as to exclude trivial claims” . This threshold applied in relation to all types of defamation. He gave two reasons for his conclusion
i) It is in accordance with the true interpretation of Lord Atkin’s speech in Sim. It is also in accordance with the decision of Sharp J in Ecclestone with which I respectfully agree;
ii) It is required by the development of the law recognised in Jameel (Youssef) v Dow Jones as arising from the passing of the Human Rights Act 1998: regard for Art 10 and the principle of proportionality both require it. 
Applying this analysis to the facts of the case, the judge held that the allegation complained of was not capable of being a personal libel and, if it was, it fell far below the threehold of seriousness required. He also rejected the argument that this was a case of “business libel”. As a result, he summary judgment was entered for the defendant on the defamation issue. The judge gave permission to appeal on the basis that the appeal had a reasonable prospect of success and that there was a compelling reason why the appeal should be heard.
The case is potentially, of great importance, introducing a “substantial harm” test into the definition of what constitutes a defamatory allegation (incidentally along similar lines to what is contemplated by clause 12 of Lord Lester’s Defamation Bill). The judgment is likely to be controversial.
On the one hand, the arguments advanced in support of the “non-triviality” requirement are not entirely compelling. Neither Sim v Stretch nor Jameel are directed to the issue and provide no clear support for the approach. The argument appears to be that “adverse” is synonymous with “non-trivial” – which is, at best, debatable. Furthermore if, to be actionable, libels had to involve “substantial harm” then it is difficult to see how the traditional approach of awarding “nominal damages” in cases of where a claimant has suffered “no real damage” (Cooke v Brogden (1885) 1 TLR 497, 499) could be justified.
On the other hand, there are clear policy arguments in favour of the approach taken by the judge – particularly in view of Article 10. If harm is not “substantial” then it is unlikely that the Article 8 right to reputation will be engaged at all. More generally, it is difficult to see why the Court’s time should be occupied dealing with trivial cases. Nevertheless, it might be argued that a change of this importance should be brought about by statute or by the Supreme Court.
We look forward to the views of the appellate courts.