Sir Elton John will be remembered for many things: a musical career spanning decades, tireless campaigning for charities, dubious fashion sense, spats with other superstars and being active in the gay rights movement.
Less well known, but likely to be just as enduring, is the effect his libel litigation has on the development of the law.
The first marker in this ground came in his 2008 case against The Guardian.
There, Sir Elton sued in relation to a tongue-in-cheek piece A peek at the diary of Elton John and was given short shrift by Justice Michael Tugendhat (pic) who found that:
“The words complained of … could not be understood by a reasonable reader of The Guardian Weekend section as containing the serious allegation pleaded…
The reasonable reader would expect so serious an allegation to be made without humour, and explicitly, in a part of the newspaper devoted to news.”
Many humorous or satirical articles and broadcasts have since depended on that case to dismiss plaintiffs seeking to rely upon the old notion that if you said it and a meaning was possible, you were entitled to a jury.
Justice Tugendhat, rightly with respect, amended that notion to take proper and appropriate notice of context.
It was, no doubt, with this in mind that Sir Elton launched his most recent libel case, this time against The Times, which had published a series of explosive articles detailing how the affluent find ways to avoid paying tax, which while perhaps legal, were not desirable.
Each day for a week, The Times exposed tax avoidance schemes and named celebrities who were involved.
The comedian Jimmy Carr and the singer Gary Barlow were among the high profile heads caught out in the investigation.
On the fourth day of its week of exposes, The Times turned its attention to the activities of an accountant, Patrick McKenna, who was wrongly identified as Sir Elton’s former accountant.
A photograph of Sir Elton was included, along with photos of other former clients of McKenna.
Although The Times did not expressly state that Sir Elton was involved in any tax avoidance scheme – or that he was or should be investigated – Sir Elton sued the newspaper, alleging that all three Chase level meanings (of guilt) arose in relation to him and “immoral tax avoidance”.
It was obviously a matter of grave concern to Sir Elton, as he had two QCs and at least three solicitors in court for the hearing before Justice Tugendhat.
In the corridor outside court 14, prior to the commencement of the hearing, these worthy legal minds were loudly opining about the ludicrous attitude of The Times in bringing an application for summary judgment on the basis that the pleaded meanings could not arise.
“Is their only point that Times readers are smarter than the rest?” one scoffed.
Justice Tugendhat heard the application. Ronald Thwaites QC, who appeared for Sir Elton, seemed clear that there was an unarguable defamation and told his Lordship all about it.
The gist of the argument was that there is no smoke without fire, why include his picture if the intention was not to defame Sir Elton and why name him so many times if people were not to conclude he should be investigated?
Interestingly, at one point Mr Thwaites informed the court that he would not be making submissions but for the publication of the photograph; at another point he said it was the combination of the photo and the many references to Sir Elton which caused the defamation.
The Times submitted that no reasonable reader could possibly conclude that Sir Elton had anything to do with the “immoral tax evasion” being investigated.
Specifically, the reader would know that The Times was not shy about naming the people it thought caught up in the avoidance schemes and that Sir Elton (pic) had not been named as one so caught up.
The submission was that the reasonable reader of The Times was smart enough to understand that Sir Elton had been included as “colour and movement” – for interest, not for condemnation.
Justice Tugendhat agreed:
“In the case of The Times, I take the hypothetical reasonable reader to be amongst the more highly educated and better informed members of the public …
A hypothetical reader of The Times who inferred [Sir Elton’s pleaded Chase Level 3 meaning] would be outside any definition of the reasonable reader that a jury could apply with perversity.
There is simply nothing to support the inference other than the alleged association [of accountant and client].”
He dismissed Sir Elton’s action, refusing leave to appeal.
Where this would leave readers of The Sun or The Daily Mirror is not clear.
Equally, would a segment broadcast on the BBC have the same consequences as the same segment broadcast on ITV or Channel 5?
The decision is clearly right. Publications and broadcasters should be expected to know their audiences and their journalism should be judged as their audience, used to what they get, would judge it.
It does not matter what the judge reads.
What matters is what the reasonable member of the intended audience could think – the one paying attention and not unduly suspicious, the one who follows what is happening in the journalism, the one who understands the context.
The Sir Elton John principle. Long may it be followed.
Stephen Collins is senior editorial lawyer for The Times and The Sunday Times.
This post originally appeared in the Gazette of Law and Journalism – Australia’s leading online media law journal.