The crucial determination in libel proceedings: Meanings

Does it mean that the words conveyed are fact or was it an opinion?

29 April 2021

Author: Olivia O'Kane
Practice Area: Media and Defamation

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On 16 March 2021 a judgment was delivered which brings clarity regarding libelous meanings and in particular, statements of fact or opinion.

Facts

On the trial of preliminary issues as to the meaning of words and whether they contained allegations of fact or opinion, the Claimant, royal commentator Lady Colin Campbell, brought libel proceedings in respect of an article published on 19 November 2019 in The Mirror and online, titled “A glimpse into the sordid world of entitled elite”. The article made reference to an interview given by Prince Andrew on Newsnight about his relationship with Jeffrey Epstein and contained the following words:

“Then, remarkably, Lady Colin Campbell left us all open-mouthed on Monday when she appeared on Breakfast TV to defend Epstein’s right to r*** children “He was procuring 14-year-old prostitutes,” she said. “They were not minors, they were prostitutes, there is a difference.” Is there?”

Both parties accepted that there was ambiguity in the wording “appeared on Breakfast TV to defend”, because “to defend” could, in this context, either be an infinitive of purposive or an infinitive governed by the verb “appeared”.

The Claimant submitted the words were factual and meant “the Claimant had appeared on national television for the specific purpose of defending Jeffrey Epstein’s right to r*** children and had done so.” The Defendant submitted the words meant “On Monday 18th November 2019 on Breakfast Television, the Claimant appeared to defend Jeffrey Epstein’s right to r*** children when she drew a remarkable and untenable distinction between procuring 14 year old prostitutes and procuring minors for sexual intercourse.” The Defendant contended that the statement was one of opinion.

There was also an issue as to whether the Court should watch the relevant extract of the Breakfast Television broadcast referred to in relation to issues of general knowledge, possible innuendo (subject to findings on meaning as pleaded) and general case management. The Defendant relied on McAlpine v Bercow [2013] EWHC 1342 (QB) at [51]-[54]:

“There may be an issue between the parties whether the circumstances of a publication amount to extrinsic facts, which have to be proved as such to support an innuendo, or whether they are general knowledge, which can be relied on in support of its natural and ordinary meaning.”

Issues and Decision

The issues for decision were:

  1. The natural and ordinary meaning of the words, including resolution of the ambiguity.
  2. Whether the statement was one of fact and opinion.
  3. Whether the Court should watch the short extract of the broadcast referred to.

It was held that the words complained of:

  1. Assert as fact: “Lady Colin Campbell appeared on a breakfast television programme. She did so to defend the Epstein’s actions towards minors. Her defence was that the children had been 14-year-old prostitutes rather than minors.”
  2. Express the opinion: “This is a shocking thing to say. Her comments are an exemplar of the sordid world of the entitled elite.”

It was noted that the Court would often read disputed material de bene esse (provisionally) without having ruled on its admissibility which could be pragmatic, save time and cost, and be helpful in the resolution of the question of admissibility. However, the Court declined to watch the programme extract or read the transcript as there was a risk that reading the material might make it more difficult for the Judge to determine the meaning of the words in the way that is required by the authorities. This would risk distorting, rather than assisting, the process of determining the correct meaning of the words.

There was no evidence that the detailed content of the programme was a matter of general knowledge at the time of publication of the article, nor was there evidence adduced as to the intersection between the people that (1) viewed the programme, and (2) read the article.

The Court found that the article would be read at speed and the Judge did not think that the hypothetical reasonable reader would be likely to notice the ambiguity. The words “appeared on Breakfast TV” would be read as identifying what the Claimant did and the words “to defend Epstein…” would be read as the Claimant’s purpose in doing that. The context of the article, including the title, promises the delivery of scandal which informs the meaning.

This was deemed to be an “opinion piece”. However, that opinion is based on asserted fact. The opinion that is expressed derives from “left us all open-mouthed” and the context of the words as a whole, which provide a “rogues’ gallery” of high-profile individuals whose actions are said to provide a “glimpse into the sordid world of entitled elite”. The Claimant did not make any complaint about this expression of opinion and accepted that if she did, and said, that which is attributed to her then that would amount to fair comment. Her complaint is that the statements of fact in the article were defamatory and unjust.

For the most part, a straightforward meaning and fact / opinion application in which the Court followed the guidelines set out in Koutsogiannis v Random House Group Ltd [2019] EWHC 48 (QB). The Defendant succeeded in removing from the meaning the Claimant’s wording that she had appeared on television “for the specific purpose of” defending Epstein. There was an order for costs in the case in respect of the application for a preliminary issue and the trial of the preliminary issue. This accords with Nicklin J’s observations in Sharif v Associated [2021] EWHC 343 (QB) at para 44 where Nicklin J said:

“I do not know ultimately who is going to be successful in this litigation at any trial. Even if it were possible to detect a clear ‘winner’ on the issue of meaning in this case, there is still a potential unfairness by making what is, in effect, an issue-based costs order at this stage. Although that party might have ‘lost’ the meaning issue, the party may yet ultimately ‘win’ at trial. In the ordinary course, therefore, the costs of determination of the preliminary issue of meaning should follow the ultimate event; the result of the action.”

Consequently, the Judge decided that there will need to be amendments to the statements of case and the Claimant’s Particulars of Claim to bring her pleaded meaning into line with that found by the Court. The Court does not usually grant permission for amendments that have not been seen but this case was an exception. To the extent that any amendments to the Defence are contentious, then the Defendant will need to make an application to amend.

Conclusion

Primarily, this case reasserts the straightforward meaning of words which the hypothetical, reasonable reader would understand and the application of fact / opinion set out in Koutsogiannis v Random House Group Ltd [2019] EWHC 48 (QB). However, journalists must be wary of the fine line that exists between sensationalism and defamation in opinion pieces. It will be interesting to see how this case will progress and it will certainly be one to look out for.

*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice that is tailored to your circumstances.

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