The leader of the RMT Union, Bob Crow, has failed in a libel claim against London Mayor Boris Johnson relating to leaflets issued the 2012 London Mayoral campaign.  In a judgment handed down on the day of the hearing  Mr Justice Tugendhat held that, in “the context of a hotly contested election” the words could not be held to be defamatory ([2012] EWHC 1982 (QB)).

Judgment

The claim arose of the publication of an election leaflet by Mr Johnson.  The leaflet was issued in very large numbers – the front is pictured on the right.  The front of the leaflet bore the words

“Not Again: Ken wants to come back with his … Council Tax rises, Broken promises, cronies, scandals, waste Bob Crow. NotKenAgain.com”

Mr Crow complained that the words bore that meaning

“1.  The Claimant’s policies, leadership of the RMT and association with Mr Livingstone: (a) seriously damages his electoral prospects and (b) has caused and will cause grave harm to the interests of Londoners.

2.  The Claimant was part of and supported a culture of political immorality involving broken promises, cronyism, scandals and waste“.

Mr Crow sought to add a third meaning by amendment:

“3. The claimant was part of a corrupt, scandalous, unaccountable and wasteful group of cronies”.

Mr Justice Tugendhat set out the well known principles governing the determination of meaning – set out conveniently in the recent case of Modi v Clarke ([2011] EWCA Civ 937 paras 10 to 12).  He went on to note that it was common ground that

“the fact that Mr Crow holds the position of general secretary of the RMT together with the fact that the words complained of were published in an election leaflet, mean that a particularly wide latitude for freedom of expression has to be allowed.” [13]

He went on to cite the Scots case Curran v Scottish Daily Record and Sunday Mail Limited ([2011] CSIH 86) in which Lady Paton had said

 “[45] There is a clear line of authority in Scottish law to the effect that a wide latitude is allowed to comment and criticism in the political and public sphere. In the late 19th century, Lord Shand observed at page 1113 of Godfrey v W & D C Thomson (1890) 17 R 1108:

“… I think that in these times persons must be allowed to speak pretty freely of public political conduct and principles …”

Mr Crow aruged that the leaflets were capable of meaning that he was one of those involved in the scandals, waste and other matters referred to.

Mr Justice Tugendhat said that the leaflet was issued by Mr Johnson, with the intention that the reader should understand that such an association carried negative connotations for the electorate.

“But whether words are defamatory, or merely insulting, or not even that, does not depend upon the intention of the publisher. The test is the understanding of the reasonable reader”  [21]

In this case, the reasonable reader would be a Londoner and the views of Londoners on the election were divided:

“There were a number of candidates at this election, as on previous elections. And as everyone knows, whether or not Mr Livingstone ought to be elected as Mayor of London was not a question upon which it could be said there was a right or a wrong answer which all right thinking people should give. So in my judgment the first meaning pleaded by Mr Crow is not capable of being defamatory” [22]

The judge held that the second and third meanings Mr Crow claimed could be defamatory in certain contexts.

But there were two difficulties.  The first was that what was described by the words ‘council tax rises, scandals, broken promises waste and cronies” were plainly what  Mr Johnson and his supporters attributed to Mr Livingstone.  The judge held that no reasonable reader could understand these matters are being attributed to Mr Crow by the leaflet [23].

Further,

“Further, in the context of a hotly contested election, these meanings could not in any event be held to be defamatory. In defamation context is crucial. In the context of an election, statements by one candidate about another candidate, or about a person associated with another candidate, are not capable of being understood as anything other than partisan” [24].

Right thinking members of society generally would not understand these partisan statemnts “as adversely affecting Mr Crow in their estimation.”

As a result, the action was struck out.  Unusually the judgment concludes with two pictures – of the front of the leaflets and the back of one of them.

Comment

The result is not surprising.   The context in which Mr Crow’s name was deployed on the leaflet in question was a political one.  Although this was hardly the discussion of “public political conduct and principles” which the Scots judge had in mind, the reader would obviously have understood that Mr Johnson was setting out a list of “perceived negatives” about Mr Livingstone – one of which was an association with Mr Crow (“He wants to come back with his Bob Crow”).

This is all part of the “rough and tumble” of political debate. No specific misconduct is alleged against Mr Crow and it is very difficult to see how an ordinary reader of the leaflet would have been led to think less of him as a result of all this.

The judgment is noteworthy for its express emphasis on the “latitude” to be given to political expression.  The conventional approach to this would be to deal with the importance of the speech as a factor relevant to a Reynolds defence but, instead, Mr Justice Tugendhat deals with this in the context of meaning.  In this case, the judge has provided further protection for “political expression” by holding, in effect, that statements made as part of partisan debate are not taken seriously by reasonable readers.

The sensitivity to the nature importance of freedom of expression in the political context is an important development and one which is consistent with the approach taken by the European Court of Human Rights in this area.  Whatever concerns they express about the baleful influence of “human rights” in other areas, the media can rest assured that the protection of political speech is a high priority both in London and Strasbourg.