Vince v Associated Newspapers: a victory for common sense – Tom Double

In his article on the recent Court of Appeal judgment in Vince v Associated Newspapers Ltd [2026] EWCA Civ 899, Sean Sutherland warns, forebodingly, that the “striking decision risks undercutting the law of defamation, which has grown incrementally to balance the interests of freedom of expression and of reputation” and adding “uncertainty into the law.”

These risks are overstated. The decision in Vince v Associated Newspapers finally addresses what has long been recognised as the inherent unfairness engendered by the “rule in Charleston”, which requires the Court to consider an article as a whole when assessing a claim for libel, rather than headlines or selected parts.

Mr Sutherland appears to believe that the rule in Charleston is salutary, forming part of the “carefully calibrated rules” that balance the interests of freedom of expression and the protection of reputation.  But many practitioners are less enthusiastic about Charleston and the single meaning rule – whereby the Court is required to select one meaning from a range of possible meanings of a publication – and see them as being very difficult to reconcile with the fundamental concept of fairness.

Those within this camp are not simply ardent, claimant media lawyers, viewed cynically by some free-speech absolutists as being partisan and self-serving.  Indeed, in Ajinomoto Sweeteners Europe SAS v ASDA Stores Ltd [2010] EWCA Civ 609, the Court of Appeal resisted an attempt to import the single meaning rule into the tort of malicious falsehood and Rimer LJ highlighted the unfairness that it can cause both sides:-

“The application of the rule can also be said to carry with it the potential for swinging the balance unfairly against one party of the other, resulting in no compensation in cases when fairness might suggest that some should be due, or in over-compensation in others. No doubt it would keep the common law tidy if the single meaning rule were also applied in malicious falsehood claims, particularly because there will be cases in which a claim might be brought either in defamation or malicious falsehood. The common law has, however, never worried about tidiness. It has always been more concerned with meeting the justice of the particular case and developing itself accordingly. If the single meaning rule did not exist, I doubt if any modern court would invent it, either for defamation or any other tort. If the resolution of the present claim has to be forced into the artificial straitjacket of that rule, it will, I consider, carry with it the potential for the production of an injustice. The court ought only to risk the suffering by the claimant of such injustice if there are compelling policy reasons why the single meaning rule, itself an anomaly, ought to prevail in malicious falsehood claims as in defamation. I am not persuaded that there are any sufficient such reasons, not least because an essential ingredient of the claim is proof of malice on the part of the defendant. In a case in which the court has found that the statement complained of would be read by many in a damaging sense, the single meaning rule should not be allowed to bar a claim that the defendant has maliciously disparaged the claimant’s goods.”

So, whilst the rules in libel law may have been “carefully calibrated”, they are artificial and can result in serious unfairness to a claimant or a defendant.  Once this obvious point is made, a departure from the rules in defamation ought not necessarily to be regarded as such a bad thing.  This is particularly so given that Charleston (and the single meaning rule) are, on one view, anachronistic: they were decided in a very different era, where news was not so readily available online, from a multiplicity of sources.   News plurality in a digital world, together with shorter attention spans, must only increases the tendency of many readers not to read further than headlines and pictures, something which the Court of Appeal took judicial notice of in Mr Vince’s case.

Mr Sutherland also deplores the legal uncertainty he says the decision creates, referring to the “vague idea” of “a balance which will be influenced by the circumstances of the data usage, the interests of the data subject and the data controller, the public interest and whether the processing is proportionate to any harm caused”.  Judges in the Media and Communications List are, however, frequently required to carry out multi-factorial balancing exercises when considering other torts and have not, as far as this author is aware, expressed concern about any lack of certainty when doing so.  For instance, the tort of misuse of private information requires a Court when assessing whether a claimant has a reasonable expectation of privacy to consider the non-exhaustive list of so-called “Murray factors”, including the attributes of the claimant, the nature and purpose of the intrusion and the circumstances in which and the purposes for which the information came into the hands of the publisher.

The reason the Master of Rolls was reluctant to lay down any generally applicable test was because what is meant by unfair processing may be significantly affected by the context.  An unfair processing complaint against a GP surgery is likely, for instance, to involve materially different considerations from an unfair processing claim against a news publisher.

Mr Sutherland reserves his most strident criticism for the Master of the Rolls’ reliance on IPSO’s Editors’ Code and the Court’s apparent failure to understand its provisions. As a barrister who previously worked at IPSO, Mr Sutherland is ostensibly well-placed to comment on this issue.

The first point to make is that whilst Mr Sutherland refers to the Court’s reliance on the Editors’ Code as “striking and potentially problematic”, he must accept that the Court was obliged to have regard to it because it is a “relevant privacy code” within the meaning of section 12(4)(b) of the Human Rights Act 1998.  This has meant the Editors’ Code has been considered in many previous cases and so the description of the Court’s reliance on it as “striking” is slightly difficult to understand.

Mr Sutherland raises the interesting question of whether members of IPSO will be treated differently from the BBC who are regulated by OFCOM and the many media outlets who are not subject to any form of regulatory code.   The Court has certainly previously considered that it is obliged to have regard for the Editors’ Code in cases where the defendant is not a member of IPSO (see, for instance, Middleton & Anor v Person Or Persons Unknown [2016] EWHC 2354).   The Court of Appeal even accepted in Campbell v Frisbee [2002] EWCA Civ 1374 that it was “arguable” that the Editors’ Code should apply to a source, as well as a media organisation, although the issue ultimately did not need to be determined in that case.

OFCOM’s broadcasting code is also a relevant privacy code and so the Court would be obliged to have regard to it in a case where a media defendant is an organisation such as the BBC.

It is important to note that the Master of the Rolls’ decision was also very significantly affected “by the media context” as well as the Editors’ Code and so, even if a particular publisher is not an IPSO member, the media context is still likely to be relevant in cases against the press.   The absence of a strict test as to what constitutes unfair processing allows the Court flexibility to decide the weight to be attached to the relevant factors in each case.

Mr Sutherland’s most eviscerating criticism focuses on how he claims the Master of the Rolls misunderstood IPSO’s approach in dealing with Mr Vince’s complaint.  He states that, if the Court wanted to rely on the Editors’ Code, it should “probably get that Code right” and asserts that, in respect of Mr Vince’s complaint, “IPSO would have determined generally whether the article was inaccurate, misleading or distorted”. The fact that IPSO ought to consider generally whether the article was inaccurate, misleading or distorted does not necessarily mean that it will always do so in practice.  IPSO’s response to Mr Vince in relation to the article complained of read as follows:-

“You said [the article] breached Clause 1 because it featured two images of Mr Vince beneath the aforementioned headline. You believed this was inaccurate because Mr Vince was not the “sex harassment donor” reported on in the article. We considered the headline in conjunction with the article, where Clause 1 makes clear that headlines should be supported by the text of the article. We noted that the article made clear the basis for the article’s headline, where it reported on the Party repaying a donation from Davide Serra following allegations of sexual harassment. We also considered that the article made clear Mr Vince’s actions in relation to the article – which also reported on his leading a Just Stop Oil march in Central London, and why this had also supposedly caused the Party “embarrassment”. For example, it quoted the deputy chairman of the Conservative Party who said “’As if it wasn’t already clear enough, Labour’s big bankrollers and policy paymasters are the eco-fanatics themselves.’”. We therefore considered that the article supported and clarified the headline, and, in such circumstances, we did not consider the headline to be inaccurate in the manner you suggested. We did not identify grounds to investigate a possible breach of Clause 1.”

IPSO’s response therefore did not explicitly state that Associated Newspapers had failed to take care not to publish misleading information.  IPSO’s statement that it did not “identify grounds to investigate a possible breach of Clause 1” might suggest that it also considered whether the article was misleading but if that were the case, one might expect IPSO to say so using clearer language (as it did in its response to two complaints about two other articles that Mr Vince made at the same time).

Ironically, given the serious criticisms made by Mr Sutherland about the Court of Appeal’s interpretation of the Editors’ Code, he fundamentally misinterprets IPSO’s arguably most famous ruling against the Sun’s headline “Queen Backs Brexit”.   Mr Sutherland states that that article “taken as a whole was misleading” but IPSO found no such thing.  Instead, IPSO determined that “the headline – both in print and online – was not supported by the text and was significantly misleading” but held the complaint “as it related to the text of the article did not raise a breach of the Code.” Thus Mr Sutherland is wrong to say that the article taken as a whole was found to be misleading.

As expected, some media commentators have sought to impugn the Master of the Rolls’ decision and suggested that it would likely be overturned on appeal.  The Supreme Court will, however, have to wait for another case to address unfair processing in the media context, since Mr Vince’s claim has now settled.

Tom Double is a partner at Brett Wilson and acted for Dale Vince on the appeal.