The recent decision in the case of McEvoy v Michael ([2014] EWHC 701 (QB)) provides a helpful practical example and reminder of the breadth and value of the defence of fair comment (now honest opinion pursuant to s.3 of the Defamation Act 2013) in protecting political speech.
Background
The claimant, Neil McEvoy, is a member and former Deputy Leader of the Council of the City and County of Cardiff. He represents the Fairwater Ward for Plaid Cymru. The defendant, Mr Michael, is a member of the Labour Party, and between 2009 – 2012 was the chairman of the Fairwater branch of the Labour Party. There had been a history of personal antagonism between the claimant and the defendant. The claimant complained that he had been defamed in issues 6 and 7 of Fairwater and Pentrebane Fightback, a newsletter produced on behalf of the Fairwater branch of the Labour Party and distributed to households of the Fairwater district of Cardiff.
Issue 6 of the newsletter included in the headline: “Snouts in the Trough”. It alleged that the claimant (and other Plaid councillors) had claimed more in allowances in just over two years than their Labour predecessors. The newsletter claimed that as well as going on “jollies abroad to places like Korea and China” the claimant had raked in “thousands” more as a landlord renting out at least two properties including one to the “very Council he is Deputy Leader of!”. The newsletter alleged that the claimant was “not the socialist he pretends to be – more of a SOCIAL LANDLORD and a HYPOCRITE”. It went on to allege that “shockingly” the claimant was in receipt of child care allowance on top of his “huge” earnings.
The newsletter was illustrated by a photograph from the BBC comedy series Only Fools and Horses, with the face of the claimant superimposed onto the body of Derek (Del Boy) Trotter. At the top of the picture in capital letters were the words: “This time next year we’ll be millionaires Rodders!”. The picture also contained an image of Del Boy’s van on, on which was written:
“McEvoy’s Independent Trading
New York, Paris, Fair Water
Free Child Care
There was a box on top of the van, with the words:
DIY
INTERNATIONAL BUSINESS PARK KIT
MADE IN XIAMEN CHINA
The newsletter contained further allegations, including that Plaid councillors were responsible for the collapses of the local development plan and that in a “superb example of brass-necked hypocrisy” the claimant wanted to build a business park on “green fields” to “pay for his fantasy football plans”.
The words complained of in Issue 7 included allegations that Plaid councillors had ensured that nearly every member of a local panel was a Plaid Cymru member or supporter.
Although the newsletters contained a promotion statement which stated that they were printed and promoted by the defendant, they were in fact printed by another Labour Party member. The defendant contended that he was therefore not responsible for publication.
Judgment
The court ordered the trial of the following preliminary issues: (1) whether the defendant was the publisher of the words and images complained of; and (2) whether the words complained of were statements of fact or expression of opinion; and (3) whether the words complained of were defamatory of the claimant.
Responsibility for publication
Although the defendant did not write or draft the newsletter, the court held that the defendant was liable for publication of it. It did so on the basis that the defendant procured or participated in the publication. The court also stated that, if necessary, it would hold that the Promotion Statement was itself a sufficient assumption of responsibility to bring the case within the principles enunciated in Bunt v. Tilley [2007] 1 WLR 1243, per Eady J at 1249.
Meaning and honest comment
The judge held that the natural and ordinary meaning of the “Snouts in the Trough” article was an imputation of hypocrisy for taking full advantage of an expenses regime after criticising others for taking rather less advantage of it. It did not contain an imputation of fact. It did not mean that the claimant was taking money unlawfully or in contravention of the expenses regime. The claimant accepted that such an accusation was a comment. Similarly, the criticism of the claimant for receiving child allowance amounted to an accusation, by way of comment, of hypocrisy. It did not suggest that he was not entitled to receive the allowance. The judge agreed with Counsel for the defendant that the entire article was an extended allegation of hypocrisy.
In relation to the picture of Del Boy with the claimant’s face superimposed the judge rejected the claimant’s contention that it meant that the claimant was a roguish character who was not to be trusted and was given to unrealistic fantasies. Although the tone of the newsletter was “unremittingly hostile and personal, to an extent that many might find surprising and distasteful” it was necessary to consider what features of Del Boy were being used for comparison with the claimant. The judge concluded that picture (including its words) meant that the claimant was a ‘money-loving and money-seeking entrepreneur who had received ‘free child care’ by reason of his acceptance of child care allowance. Whilst these meanings were not of themselves defamatory they carried with them an accusation of hypocrisy, which constituted defamatory comment. The comparison to Del Boy suggested that the claimant was ‘prone to unrealistic fantasies and improbable business ideas’. Although this was undoubtedly a criticism it was not defamatory. It was the stuff of political disagreement to say that a politician’s ideas or policies are fantasies, or wholly lacking in realism. The picture and words did not contain the imputation that the claimant was dishonest.
Comment
The court’s finding that the defendant was liable for publication is not surprising. The evidence showed that the strategy for the newsletters was developed and agreed on by the Fairwater branch and the defendant was fully involved in the activities of the branch. The defendant was involved in the approval process.
Superimposing a rival politician’s face onto a picture of Del Boy from Only Fools and Horses, may not be the most common or conventional way to suggest that a politician’s ideas or policies are fantasies and that he lacks judgment, but such allegations and the method of making them are, as HHJ Keyser QC observed, the stuff of political disagreement. A finding that the newsletters contained defamatory statements of fact, which had to be justified, would have involved a serious interference with right to freedom of expression.
As the European Court of Human Rights has repeatedly recognised “while freedom of expression is important for everybody, it is especially so for an elected representative of the people”( Castells v. Spain (1992) 14 EHRR 445 at [43]) and that the “limits of acceptable criticism are wider in relation to politicians acting in their public capacity than in relation to private individuals” (Jerusalem v. Austria (2003) 37 EHRR 25, at [38]). In Waterson v. Lloyd [2013] EWCA Civ 136, Laws J observed that “a political context” informs the “balance to be struck between public interest and individual right: between free speech and private claims”.
The decision is also in accordance with the approach of the European Court of Human Rights that Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed: Oberschlick v. Austria (1995) 19 EHRR 389 at [64]; and Jersild v. Denmark (1995) 19 EHRR 1. Decisions on political “cartoons” are rare, but Counsel for the defendant was able to point to an interesting decision of the Court of Appeal for British Columbia in which the Chief Justice observed:
“Ordinary and reasonable persons in this country are well acquainted with the allegorical nature of political cartoons and … would have little difficulty in recognizing this cartoon as comment upon such facts” (Vander Zalm v. Times Publishers (1980) 109 DLR (3d) 531).
Anthony Hudson is a barrister at Matrix Chambers, specialising in media law.
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