Since the removal of the presumption that actions will be tried by juries, the preliminary determination of ‘meaning’ has become commonplace in libel cases.  This involves the (artificial) exercise of determining the ‘single meaning’ of the words complained about.

It is an objective exercise which requires the court to ask itself (and answer) this question: what would the ordinary reasonable reader understand the natural and ordinary meaning of the words to be?   The same set of rules applies to any publication complained of – whether that be a swift 10-word tweet, or a bulky 400-page book.

When undertaking an assessment of the meaning of a publication, the law is absolutely clear that it must be undertaken from the viewpoint of an ordinary, reasonable reader – the “man on the Clapham Omnibus” – who is “not naïve but not unduly suspicious”, “can read between the lines” and “who is not avid for scandal”.  The Courts must avoid over-elaborate analysis and must not view or assess the words through a lawyer’s lens – the ordinary man is not a lawyer.  As Gray J put it in Charman v Orion at [11] “The exercise is essentially one of ascertaining the broad impression made on the hypothetical reader by the [words complained of] taken as a whole.”

In order to reach the “natural and ordinary meaning” which a layperson would attribute to any article, a number of different rules and principles have been developed and implemented by the courts over the years. One such principle is that the single meaning must be arrived at based on factual allegations and opinions stated by the author/publisher only, to the exclusion of a reader’s own personal views or responses on those same matters. Recent decisions handed down show a pattern of Claimants attempting to import into the single meaning of a publication the personal, subjective conclusions of themselves or others who have read the publication complained of, thus inflating the seriousness of the meaning. Three of these decisions – considered below – in particular highlight how critically important an author/publisher’s choices of words and expressions used to convey matters of fact to their readers are, as well as the importance of Claimants stepping back from the personal reactions or responses to a publication when deciding whether to bring a claim.

Tinkler v Ferguson

The case of Tinkler v. Ferguson [2018] EWHC 3563 (QB) concerned a claim by a director of Stobart Group Limited (“Stobart”), against five other members of Stobart’s board of directors of that company. Mr Tinkler’s claim centred on an announcement made on the London Stock Exchanges Regulatory News Service by Stobart (the “Announcement”) which declared that Mr Tinkler intended to vote against the re-election of a director, Mr Ferguson, whereas the remainder of the board supported Mr Ferguson’s re-election; it went on to describe a series of challenges Stobart had faced from the Claimant, whose conduct, it said, had been disruptive.  Mr Tinkler issued libel proceedings claiming that the natural and ordinary meaning of the Announcement was that:

  1. the Claimant had acted in breach of his duties as a director of [Stobart] by deliberately destabilising the Board at a crucial time for the business; and/or
  2. the Claimant had done so for selfish and self-interested reasons to protect his own position, following his history of improper conduct and poor corporate governance which included forcing the Board to deal with unwarranted challenges [such challenges which were listed out by the Claimant to reflect a list in the Announcement].

The Defendants disagreed, contending for a meaning more closely related to the words used in the Announcement.  Nicklin J held that the single meaning of the Announcement, for the purposes of the defamation claim was:

  1. The Claimant had presented a series of challenges to the Board of Stobart which included those set out in [39] to [43], the most recent of which was his opposition to the re-election of Iain Ferguson as Chairman of Stobart.
  2. A vote to remove the current Chairman would weaken Stobart’s corporate governance, create instability, present a number of serious risks to Stobart, identified in [45] to [49], and would not be in the best interests of the shareholders.
  3. The Claimant’s behaviour was disruptive; and, in relation to the challenges identified in (a) unreasonable and his opposition to the re-election of the Chairman was regrettable and risked destabilising Stobart.

In coming to his decision, at [36]-[38] Nicklin J criticised the Claimant for seeking to import adjectives and subjective conclusions into the meaning and for taking too technical an approach. He said:

“I do not consider that the hypothetical ordinary reasonable reader would have understood the allegations being levelled at the Claimant to imply that he was in breach of his fiduciary duties as a director. That is a technical meaning that might occur, possibly to a company lawyer or those familiar with directors’ legal duties. Such an allegation is not stated expressly in the article and nor, in my judgment, is it implied…

…a number of adjectives and adverbs have been inserted into the Claimant’s meaning which are not part of the natural and ordinary meaning of the words. They are strained constructions of what is being said in the Announcement. For example, if an individual reader thought that the Claimant’s alleged behaviour was “selfish”, but that would be a personal judgment made by the individual reader. It is neither stated nor implied in the text. Such inferential meanings (that depend upon – and vary between – each individual reader’s moral judgment) are not part of the natural and ordinary meaning of words…

Koutsogiannis v The Random House Group

This issue was also contemplated by Nicklin J in Koutsogiannis v The Random House Group [2019] EWHC 48 (QB).  That case concerned a book entitled “The Spider Network”, published by the Defendant which, over the course of some 440 pages, told the story of the infamous Libor-rigging scandal in the UK. The main protagonist in the book is Tom Hayes, an individual who was sentenced to 14 years prison for his role in the scandal, but the story is one of wide-ranging institutional manipulation of the data upon which interest rates were based, in which Tom Hayes was just one – albeit a very skilled – player.  The Claimant was mentioned in the book in only 9 pages out of 440 pages of text. He complained that his inclusion in a book which told the story of the “greatest scam of all time” based on decades worth of chicanery and questionable acts meant that he, expressly by the words used, and/or by association, was guilty of criminally dishonest and fraudulent conduct.

The Defendant – represented by Simons Muirhead & Burton – contended that the book went no further than alleging that the defendant was “was involved in a network of collusive behaviour, whereby he, along with many other traders, brokers and bank employees all over the world, deliberately tried to manipulate the Libor rate to the benefit of his own or his employers’ trading positions”.

The Court agreed with the Defendant’s case, save that it added to the end of the Defendant’s meaning the words “…but to the potential detriment of a very large number of people and entities including those who paid more than they should have done for financial products or services that were linked to the Libor rate”.

During the trial of meaning, there was considerable discussion of whether or not in context an allegation that an individual attempted to influence the Libor rate meant s/he was guilty of dishonesty or at the very least, unethical or immoral conduct. In essence it was a discussion of the level of culpability for such an act.  In his subsequent judgment, Nicklin J made clear the importance of distinguishing the facts stated and/or opinion expressed by the author, from the opinions, judgements or conclusions reached by any given reader of the book.  Nicklin J likened it to a discussion which might take place about the book at a Book Club. He said at [27]-[28]:

each reader could finish reading the Book and take a different view as to who were the “criminals” in the Libor scandal. In argument, I raised the example of a book group being set the Book to read and the discussion that could be imagined between the members of the group. The likely range of views as to who was “culpable” or “criminal” is not the pluralistic range of meanings from which the law plucks the single ‘correct’ meaning. The reaction of an individual to a publication can vary significantly depending on his/her own views and morality. The law has to be careful not to absorb these subjective reactions to the text into the objective assessment of its meaning.

I could not detect from the Book whether the author, in the end, felt any sympathy for Hayes. Nor could I clearly identify his opinion of Hayes and the others involved in the Libor manipulation. I could discern a clear contempt for the institutions and the senior executives who had been so keen to retain the services of Hayes, none of which the author (it appeared to me) thought had properly been held to account. The author’s view that the Libor rigging was not victimless comes across clearly. As regards the Claimant, the author does not make [or] express his view or opinion of him or his involvement in the Libor scandal. What is stated specifically about the Claimant in the Book is presented as factual.

Central to Nicklin J’s findings was the wholesale absence of any express or inferential statement of fact or opinion in the Book concerning the culpability of the Claimant.  The author had not expressed any statement of fact or opinion to the effect that the Claimant was dishonest or morally or ethically corrupt.  The question of his culpability for such actions was left to the readers – or the Book Club – to debate and decide.

Sheikh v Associated Newspapers Limited

Nicklin J’s judgment in Koutsogiannis can be compared with the findings of Warby J in Sheikh v Associated Newspapers [2019] EWHC 2947 (QB), handed down on 4 November 2019.  That case concerned an article published in Mail Online under the headline: “EXCLUSIVE: Top Tory peer’s appearance at Corbyn’s ‘hate conference’ in Tunisia comes after YEARS of rubbing shoulders with Islamists, hate preachers and Holocaust deniers”. As the headline indicated, the article reported that the Claimant, Lord Sheikh, had attended a ‘hate conference’ in Tunisia alongside Jeremy Corbyn and others labelled as holocaust deniers and anti-Semites, after years of “rubbing shoulders with Islamists, hate preachers and Holocaust deniers”. The Article included 15 photographs with captions, showing others who attended the conference, and illustrating these alleged examples of the Claimant’s past behaviour. The article also reported that “Tory backbenchers Rob Halfon and Zac Goldsmith have demanded an investigation into the peer’s presence at the hate-filled event, where the most anti-Semitic and bloodthirsty members of Hamas were invited”.

The Claimant contended the article meant that he “is a supporter of anti-Semitism, holocaust denial, violent Islamist jihad, terrorism and hate preaching” (collectively referred to as the “Ideologies”). The defendant’s position was that, “at its highest” the Article meant “that the Claimant has irresponsibly and/or uncritically rubbed shoulders with organisations and individuals who have variously espoused and/or expressed some or all of the anti-Semitic views and support for violence against Jewish and/or Israeli and/or Western interests which are mentioned in the Article and in some cases supported them in circumstances that found a reasonable suspicion that the Claimant has tacitly condoned at least some of these views [in the sense of not condemning those repugnant views or at least some of them when he should] and/or positions such as to merit an investigation into the matter by the Chairman of his party.”

Warby J held that the natural and ordinary meaning of the words and photographs complained of in their context:

…is that the claimant has a long history of support for, or close association with, people and organisations that express or hold anti-Semitic and other extremist views and attitudes which, despite his attempts to explain it,

    1. i) provides strong grounds for suspecting that he is secretly an anti-Semite who approves of and sympathises with Holocaust denial, Islamist jihad and hate-preaching, which he is prepared knowingly and actively to support;
    2. ii) is shocking and disturbing.

The reader comment adds the imputation that the claimant is a hate-filled idiot, unfit to be a Member of Parliament.

Although Warby J accepted in principle the Claimant’s submission that meaning can be inferred from the text of an article, he again emphasised that meaning must still derive from the words actually used by the publisher. In this regard, Warby J made the point that the Claimant had been unable to point to any words in the article to support a meaning that Lord Sheikh had supported or adopted the Ideologies themselves, and that a reader’s own conclusions and response to the publication were irrelevant. At [41] and [42] Warby J held:

Some readers might conclude, on the basis of the facts presented, that the claimant is indeed an anti-Semitic sympathiser with and supporter of extremist and violent Islamist causes. But that would be their own conclusion. As Ms Page [for the Claimant] has pointed out in her argument on the “fact or opinion” issue, a meaning can be inferential, rather than spelled out, but still it must derive from what is actually said by the publisher. Ms Page [for the Claimant] has submitted that the Article presents those with whom the claimant has associated, or supported, as unequivocally evil. There is no nuance and no balance, she says. But she is unable to point to any passage in the article which expressly or clearly depicts the claimant as a sympathiser with or supporter of anti-Semitism, Holocaust denial or the other extremist positions. Her case is, as it has to be, that this is implicit.

There are instances of the word “support” or “supporter” in paragraphs [17], [22], [23] and [28]; these link the claimant closely with organisations to which, and people to whom, highly reprehensible conduct or beliefs are attributed. But there is force in the point that nowhere does this Article directly attribute to this claimant the expression of any anti-Semitic views, or any explicit support for any of the ideologies. Overall, the picture presented by the defendant is one of association. The Article clearly suggests that the claimant is guilty of association with others; but guilt by association does not follow. It is necessary to go further and assess what is implicit in the associations, as presented to the reader. It is of course possible, by presenting a person as an associate of someone or somebody accused of criminality, to imply that the person is himself guilty of the same wrongdoing, or at least that he approves of, or condones it. But association with someone who is portrayed as accused or suspected of wrongdoing, or who is himself said to be an associate of wrongdoers is (or may be) different. There is a wide range of possible implications.

There is no doubt that this artificial exercise is often difficult for individual claimants to understand and accept. Any individual reading allegations about themselves to which they object in a national newspaper or a book, having formed their own subjective views on what that piece is saying and in most cases having received strong personal reactions from family and friends, will consider they are well placed to give a view on what the ‘ordinary reasonable reader’ would understand the piece to mean.  However, the clear message from the specialist media judges in Tinkler, Koutsogiannis and Sheikh is that Claimants must distinguish between the natural and ordinary meaning of a publication, on the one hand, and a reader’s own personal conclusion or opinion about what they’ve read, on the other.  There may be cases which involve inference, however any inference must be carefully considered and drawn from the words complained about.

Erica Henshilwood is a Senior Associate in the Media: Content and Disputes team at Simons Muirhead & Burton LLP