In the case of Spicer v Commissioner of Police of the Metropolis  EWHC 1439 (QB) Warby J held that an article’s headline, however defamatory, must be read in context, with the text of the article, in order to arrive at the natural and ordinary meaning. The judgment provides a useful exposition of the ‘bane and antidote’ principle.
The article complained of was published on the Police’s Met Website in January 2017, headed “Two guilty of killing a woman while racing their cars”. In the body of the article the reader is told that the claimant, Mr Spicer, and Mr Reza (the friend he was racing) had been arrested and charged with causing death and causing injury by dangerous driving. It is made clear that only Mr Reza, whose car hit Hina Shamin crossing the road, was convicted of both charges. Mr Spicer was instead fined £1,000, ordered to pay £500 in costs, and given nine penalty points.
The preliminary issue for the trial on meaning was whether the headline reflects the natural and ordinary meaning of the article, read as a whole. Otherwise stated, whether the article means that – as stated in the headline – the claimant was one of two found “guilty of killing a woman while racing their cars”.
The principles applied governing meaning were conveniently summarised by Nicklin J in Koutsogiannis v The Random House Group Limited  EWHC 48 (QB) at [11-13].
Of particular relevance from Koutsogiannis are principles (viii) the ‘bane and antidote’ principle, and (xi) the characteristics of the reasonable reader. The bane and antidote principle was summarised by Nicklin J as follows:
“The publication must be read as a whole, and any “bane and antidote” taken together. Sometimes, the context will clothe the words in a more serious defamatory meaning (for example the classic “rogues’ gallery” case). In other cases, the context will weaken (even extinguish altogether) the defamatory meaning that the words bear if they were read in isolation (e.g. bane and antidote cases).”
Headlines commonly feature in bane and antidote arguments, partly because headlines are often written by editors who aim for something eye-catching but who are less familiar with the nuances of the text itself. Warby J noted that a headline can create a libel, even if the text contains none (Gatley on Libel and Slander 12th ed para 3.30). Having said this, there are also cases in which the text neutralises what would otherwise be a libel in the headline (the headline being the poison, to which the body of the article provides the antidote).
Warby J referred to the leading case of Charleston v News Group Newspapers Ltd  2 AC 65 in which an article concerning two characters from the TV series “Neighbours” appeared to be photographed having sex with each other. Later in the article it was made clear that their faces had been photoshopped onto two porn actors’ bodies. Read as a whole, the article was not considered defamatory, and that the claimants could not recover purely on the basis of the headline and photographs. Rather, as a matter of principle, there can only be a single ordinary meaning: allowing one meaning to be found for just the headline and pictures, and another for the article as a whole, would go against this principle.
Warby J followed the modern approach as recently approved in Tinkler v Ferguson  EWCA Civ 819  that, in their fact-finding role, the judge should read the article complained of once, forming a provisional view on meaning, and then look at the parties’ submissions.
Principle (xi) from Koutsogiannis, concerning the characteristics of the reasonable reader, was put by Nicklin J in this way:
“The hypothetical reader is taken to be representative of those who would read the publication in question. The Court can take judicial notice of facts which are common knowledge, but should beware of reliance on impressionistic assessments of the characteristics of a publication’s readership.”
Counsel for the defendant, suggested the representative reader as someone with an informed interest, professional or otherwise, in the workings of criminal justice, capable of picking out the essential components of the story. Counsel for the claimant, argued that this was a story of obvious human interest, and particular interest to the residents of Kingston and the surrounding areas. Warby J held that the only safe approach to take is to assume that the readership includes lay people with no special knowledge that would affect the way they read the words complained of.
The Claimant argued that the words complained of are clearly defamatory of the claimant in the meaning pleaded on his behalf. The ordinary reasonable reader would understand that both Mr Reza and Mr Spicer had unlawfully killed Ms Shamin. The bane is to be found primarily in the headline, but also in paragraph , which refers to the car race “leading to the death of a young woman” and to two men being “found guilty by a jury”.
The Claimant further argued that article contained no satisfactory antidote to these sentences; there was nothing sufficient to remove their sting. It was submitted that the impression of gross misconduct by the claimant in regard to the accident is also underlined by the suggestion that he failed to stop but drove on and was only later found, arrested and charged.
The Defendant contended that the pleaded meaning “ignores the effect on the Article’s meaning of those words within it which are not complained of”. Read in context, the meaning is that the claimant was acquitted of both the offences of which Mr Reza was convicted. The real focus of the article in terms of the claimant is his involvement on racing Mr Reza. In this way, the article could not reasonably be read as suggesting that the claimant was convicted of involvement in the killing of the victim.
Warby J rejected the claimant’s Chase level one meaning, that the claimant was ‘found guilty by a jury of unlawful killing’. That conclusion could only be drawn if the passages selected by the claimant were considered in isolation.
Warby J noted that such a separation from the rest of the text neutralising the bane would be artificial. He went on to make four points: first, the ordinary and reasonable reader could only identify the claimant as a person defamed by this article unless they read at least up to paragraph 4, since this is the first time Mr Spicer’s name comes up. It would therefore be impossible for the claimant to complain of the headline and first paragraph in isolation. Secondly, paragraph 4 would not and cannot be read or interpreted in isolation from its immediate context, namely paragraphs 2 and 3. Thirdly, if paragraphs 2-4 are read together, they make clear that Mr Reza was convicted for the two charges (causing death and serious injury by dangerous driving) whilst Mr Spicer was acquitted for both. Fourthly, there is no reason for the reader to conclude that the claimant was convicted of causing death or serious injury carelessly, since the article makes clear it was Mr Reza’s car that caused the death and injury. The fact of the claimant’s modest sentence of a fine an penalty points reinforces this interpretation.
Whilst Warby J acknowledged that the headline is inconsistent with the text, he contended that ordinary reasonable readers would not allow the headline to distort the meaning they took from the article as a whole. Reading the headline and article together a reasonable reader would conclude that the headline was wrong.
In terms of the “racing allegation” – that the claimant was a participant in a hazardous road race at speeds over twice the legal limit, and that he did so to show off – Warby J held that the defendant’s Chase level two meaning was not high enough, and thus attributed it a Chase level one meaning (that the claimant was guilty of the allegation).
The ultimate meaning that the court came to was as follows:
“The claimant (1) took part with an acquaintance, Farid Reza, in a car race in the streets of Kingston upon Thames, in which they showed off by driving their high-performance cars at speeds of almost 70mph along public roads in an urban area at around 9pm, to see who had the fastest car; (2) did so with three friends in his car; (3) when Mr Reza’s car struck and killed a pedestrian, Hina Shamin, failed to stop but drove past the accident and away from the scene; (4) was for those reasons reasonably suspected of being jointly responsible with Mr Reza for causing the death of Hina Shamin, and of causing serious injury to a young boy who was one of Mr Reza’s passengers, by dangerous driving; (5) was arrested for, charged with, tried for and acquitted of those offences (Reza being convicted of both); but (6) was guilty and convicted of careless driving.”
This case will likely come as a relief to newspaper publishers who publish articles with incendiary headlines, in particular since the importance of headlines affecting the overall meaning was restated in Allen v Times Newspapers Ltd  EWHC 1235 (QB) [23, 57] and Hewson v Times Newspapers Ltd  EWHC 1000 (QB) [10, 31]. Headlines, or any individual phrase, must be read in the context of the whole article and cannot be isolated to give a different meaning from the single ordinary meaning arrived at by the court. Just as in Charleston, this was a case where the text of the article acted as a sufficient antidote to the ‘bane’ of the headline, thus lowering the seriousness of the meaning of the article found by the court.
Oscar Davies works at ACK Media Law and will start pupillage in September 2019.