The recent decision in the case of Uppal v Endemol UK Ltd & Ors  EWHC 1063 (QB) is a useful reminder of the threshold of seriousness that must be met before words are found to be capable of bearing a defamatory meaning.
The claimant, Deana Uppal, is a model, actress and former Miss India UK. She was a housemate in the 2012 series of “Big Brother”. The premise of the reality game show is well known: contestants live together in the Big Brother house, under the constant watch of television cameras, competing to win a prize of £100,000. At times, the contestants are taken into the Diary Room to speak to Big Brother. The defendants are respectively the producer of Big Brother (“Endemol”), the broadcaster of Big Brother (“Channel 5”) and Conor McIntyre, a fellow housemate of the claimant on the programme The status of the proceedings against McIntyre was unclear at the time of the hearing.
The claim arose in respect of two broadcasts of events from the Big Brother house. The first broadcast was made on 25 June 2012 and showed a number of housemates sitting around the dining table in the kitchen, including McIntyre. As the claimant was washing up dishes, one of the housemates accused the claimant of having used her epilator on the kitchen table. In the exchange that took place, McIntyre rapped “It’s your epilator, stick it up your arse, we don’t give a fuck because I’m going to fucking smash your face you little piece of shit.” Following one of the housemate’s suggestions that he should “play fun games with her [the claimant] tonight”, McIntyre replied:
“With who? I’ll give her a fun game, I’ll stick this [showing the hair brush] up her fucking minge, the stupid bastard, I’ll give her a fucking epilator [thrusting the hair brush towards his groin]. I’m gonna play loads of pranks on her because she’s a fucking piece of shit, I don’t give a fuck if I get pulled into the Diary Room, so it could be …”
Shortly afterwards, McIntyre was shown going into the Diary Room, where he was reprimanded by Big Brother for his use of unacceptable language and behaviour.
The second broadcast was made on 19 July 2012. Two housemates, Scott and Ashley, were shown talking, while other housemates, including McIntyre, were listening. An exchange took place to the effect that Ashley had seen the claimant eating her milk and cereal with her hands, to which Scott replied:
“You know what, they used to do that in my Dad’s take away.”
“My Dad owned an Indian take away and they used to do the thing with their hands, maybe it’s the culture.”
Like McIntyre, Scott was then shown being reprimanded in the Diary Room by Big Brother and was issued with a formal warning.
The claimant alleged – alongside separate claims for breach of duty of care and breach of contract against Endemol and Channel 5 – that the words uttered in both broadcasts were defamatory. It was pleaded that the meanings of the words broadcast on 25June 2012 were “that the Claimant had below average intelligence“; “alternatively that the Claimant is in some way socially or intellectually inferior“. A further pleaded meaning, said to arise from the way in which the hair brush was used by McIntyre, was “that the Claimant was sexually promiscuous“. The words broadcast on 19 July 2012 were pleaded to mean “that the Claimant was in some way socially or intellectually inferior to the other housemates because she was of Indian origin or descent“.
The defendants brought an application seeking a ruling that the words complained of were incapable of bearing such meanings or of being defamatory of the claimant. For discussion of the defendants’ application for further information in relation to the claim for breach of duty of care and breach of contract, see - of the judgment.
Relevant legal principles
Dingemans J began by setting out the principles for determining meaning as set out in Jeynes v News Magazines Limited  EWCA Civ 130 at , namely that the governing principle is reasonableness. Noting the recognition in Lukowiak v Unidad Editorial (No.1)  EMLR 46 at  that the reasonable reader is now perceived by the courts as having a stronger stomach and more discriminating judgment than was traditionally recognised, Dingemans J accepted the submission of counsel for the defendants that the same ought to be expected of a reasonable viewer.
With regards to the threshold of seriousness which an allegation must pass to be counted as defamatory –set out in Thornton v Telegraph Media  1 WLR 1985 at  – Dingemans J reiterated the common position that insults or abuse are not actionable unless they contain defamatory statements. The Court of Appeal had accepted in Berkoff v Burchill  4 All ER 1008 that certain insults might be held to be defamatory because they would cause a person to be held up to contempt, scorn or ridicule. In this regard, Dingemans J noted in particular the qualification made by Millet LJ – who dissented in the result rather than the applicable legal test –that “it is one thing to ridicule a man; it is another to expose him to ridicule” (page 1020 a-b).
Applying these principles to the facts, Dingemans J held, giving short reasons (5 paragraphs), that neither of the broadcasts were capable of bearing the meanings alleged by the claimant, or any other meanings defamatory of the claimant.
The ‘25 June 2012’ broadcast
The words were not capable of meaning that the claimant had below average intelligence or was socially or intellectual inferior. The words did not reflect on the claimant’s social or intellectual status. The use of the words “piece of shit” were vile abuse by McIntyre, but not defamatory. McIntyre’s rap may have been ridiculing the claimant, but the rap was not capable of exposing the claimant to ridicule. Any reasonable viewer would have understood that the person whose reputation might have been adversely affected by this was the person who made the rap (McIntyre), and not the claimant.
The broadcast was also not capable of meaning that the claimant was sexually promiscuous. Even if, assuming in the claimant’s favour, a reasonable viewer might have considered that McIntyre intended to do what he had rapped about, no reasonable viewer could have thought that the claimant would have been a willing participant in any such activity. This was the case irrespective of the claimant’s suggestion that the existence of sexual relationships sometimes between contestants on Big Brother might help determine the meaning of the rap by way of innuendo.
In any event, the broadcast had to be seen with any ‘bane and antidote’, which included Big Brother’s condemnation of McIntyre’s remarks in the diary room.
The ‘19 June 2012’ broadcast
Although the words amounted to offensive racial stereotyping, they were not capable of meaning that the claimant was socially or intellectually inferior to the other housemates because of her Indian origin or descent. The words were a reflection on Scott, not the claimant. Dingemans J noted, in fairness to Scott, that he did seem genuinely sorry afterwards when given a final warning by Big Brother.
Dingemans J therefore dismissed the defamation claim and granted summary judgment in favour of Endemol and Channel 5.
The conclusion reached by Dingemans J is not surprising, both in light of the well-established legal principles on determining meaning and the arguably strained meanings pleaded by the claimant. It is also in keeping with the spirit of the ‘serious harm to reputation’ threshold introduced by section 1 of Defamation Act 2013, which the Explanatory Notes suggest‘raises the bar for bringing a claim’. Parties who choose to sue on insults or abuse will have to consider carefully their ability to 1) meet the threshold of seriousness required by section 1 of the 2013 Act (or, where the cause of action predates 1 January 2014, by the common law) and 2) persuade a judge that the modern hypothetical reasonable reader, with his or her strong stomach and discriminating judgment, would think less of the claimant as a result of the words complained of.
The decision – although limited to a determination of whether the words were capable of bearing a defamatory meaning as opposed to their actual meaning – further illustrates the increasing willingness of the courts to consider meaning as a preliminary issue (see notably RBOS Shareholders Action Group Ltd v News Group Newspapers Ltd  EWHC 130 (QB) at  and Johnston v League Publications  EWHC 874 (QB) at ). This trend is likely to continue following the removal of the right to a jury trial by section 11 of the 2013 Act.
Alexia Bedat is a barrister, currently working as a paralegal at 5RB.