Defamation - Case Law

Defamation - Privilege - Qualified - Newspaper publication concerning public figure engaged in political events - Whether defence of qualified privilege available - Whether privilege attaching to publication

The plaintiff, a prominent public figure in Ireland, began proceedings for defamation against the defendants, the publishers of an article contained in the British mainland edition of a national newspaper. The publication related to the political crisis in Ireland in 1994 culminating in the plaintiff's resignation as Taoiseach, and the collapse of his coalition government which had, during its course, progressed the peace process in Northern Ireland. The plaintiff claimed that the words complained of bore the meaning that he had deliberately and dishonestly misled the Dáil by suppressing crucial information about the Irish Attorney-General, whose appointment to the Presidency of the High Court he had sought to promote, and had similarly misled his cabinet colleagues by withholding the information and by lying as to when he had obtained it. The defendants pleaded, inter alia, the defence of qualified privilege at common law on the ground that, consonant with article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms,fn1 the public interest in the general publication of information and discussion relating to political issues and the public conduct of elected politicians engaged in them justified such protection. The judge ruled that the defence was not available. The jury returned a verdict in the plaintiff's favour and he was awarded the sum of 1p by way of damages.

Held, (1) dismissing the cross-appeal, that the common welfare of a modern plural democracy was best served by ample dissemination of information to the public and vigorous discussion of matters relating to the public life of the community and to those who participated in it; that, in maintaining a proper balance between freedom of speech and a public figure's right to his reputation and consistently with article 10, the defence of common law qualified privilege was available where the defendant had a legal, moral or social duty to publish the information to those, including the general public, who had a corresponding interest in receiving it, such tests to be more readily satisfied than formerly, and where the nature, status and source of the information and the circumstances of its publication were such that it should be protected in the absence of malice; that since the task of the press in informing the public on a matter which was of general concern in Great Britain constituted such a duty and since there was a general public interest in receiving that information, the duty and interest tests were satisfied, but that, since the nature, status and source of the information and the circumstances of its publication were not such, on the facts, as to justify its protection, the defence was not available (post, pp. 899E-G, 900G, 905G, 906A, 909B-C, 910A-B, 911A).

By a writ and statement of claim dated 18 August 1995 the plaintiff, Albert Reynolds, claimed:

(1) damages for defamation against the defendants, Times Newspapers Ltd, Alan Ruddock, John Burns and John Witherow, in respect of an article written by the second and third defendants and published by the defendants in the issue of The Sunday Times" for 20 November 1994 and

(2) an injunction restraining further publication of the same or similar words. The plaintiff asserted that in the context of the article as a whole the words complained of in their natural and ordinary meaning meant and were understood to mean that (1) in promoting the appointment of the Irish Attorney-General to the Presidency of the High Court of Ireland the plaintiff had deliberately and dishonestly misled the Dáil by suppressing information he possessed which would render the promotion out of the question; (2) by withholding the information from his coalition cabinet colleagues the plaintiff had deliberately and dishonestly misled them and (3) the plaintiff had lied to those colleagues about when the information came into his possession.

By their amended defence re-served on 4 November 1996 the defendants (1) denied that the words bore or were capable of bearing such meanings, alternatively (2) claimed that the words were published on an occasion of qualified privilege, in particular since (i) they were published in the course of public discussion and political debate concerning the views and conduct of the plaintiff and of other public officers of the Irish government in respect of the discharge of his and their public functions and in particular in the context of the collapse of the coalition government and the plaintiff's resignation as Taoiseach; (ii) the words related wholly to the plaintiff's conduct in his public roles and/or as an elected representative and leader of Fianna Fáil party and to his suitability for such roles; (iii) the reasons for the collapse of the coalition were of considerable importance and interest in the United Kingdom because of the critical stage of the peace process in Northern Ireland; (iv) the words correctly reported the stated reasons for the break up of the coalition, as stated, inter alia, by the spokesman of Mr Dick Spring, the leader of the Labour party, and accordingly (v) the defendants were under a duty, had a legitimate interest and were entitled as publishers, journalists and editor of "The Sunday Times," to communicate the information and opinions contained in the words complained of to their readers who had a legitimate interest in receiving them; alternatively the words were true. By his reply the plaintiff asserted that the defendants had been actuated by express malice.

During the course of the trial, John Burns gave evidence from which it was apparent that he bore no responsibility for the article and the judge accordingly directed that the action be discontinued against him. On 19 November 1996 the jury found in the plaintiff's favour but declined to make any award by way of damages. By his order the judge substituted an award in the sum of 1p, ruled that the defence of qualified privilege was not available to the defendants, and dismissed their application for costs up to the date of a payment into court, refusing them leave to appeal from that part of his order.

By a notice of appeal dated 20 December 1996 the plaintiff appealed on the grounds, inter alia, that (1) the summing up, which required particular care and thoroughness because the facts were complex, the evidence interrupted by illness and an interval of seven days occurring between the plaintiff's closing address and the retirement of the jury, was so confusing and unstructured, with large tracts of evidence unsummarised, that it was of no material assistance to the jury; (2) the summing up might have misled the jury into thinking that the words complained of could be defended as fair comment; (3) when purporting to summarise key factual issues the judge showed a fundamental misunderstanding of them; (4) in purporting to sum up, at the plaintiff's request, crucial factual issues the judge gave confusing directions; (5) the judge mistakenly transposed plaintiff and defendants in referring to issues of fact and to the submissions such that the transpositions were particularly prejudicial to the plaintiff; (6) the judge failed to sum up the plaintiff's factual case on malice; (7) the judge gave a seriously inadequate direction of the question of damages; and that in all the circumstances his misdirections and failure to put the plaintiff's case fairly to the jury resulted in justice neither being done nor seen to be done.

By notices of appeal, dated 23 December 1996 and 31 January 1997, and pursuant to leave granted by McCowan L.J., the defendants cross-appealed on the grounds, inter alia, that the judge (1) erred in law in holding that the defence of qualified privilege at common law was not available to them on the facts found by the jury; (2) misunderstood the meaning and relevance of the chilling effect" of libel actions, referred to in Derbyshire County Council v Times Newspapers Ltd [1993] AC 534, as inhibiting freedom of speech; (3) erred in considering that the defence of qualified privilege failed where the matters published did not constitute an urgent warning to the public about an imminent danger; (4) failed to have regard to the constitutional importance of the public interest considerations underlying the defence; (5) failed to recognise the reciprocity of duty and interest between the media and the public where the defamatory material was published in the course of public discussion and debate about political matters; (6) failed to have regard to the principle of freedom of speech contained in article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969) which accorded with the common law principle of free speech; and (7) failed to have regard to the political nature and content of the publication complained of; (8) erred in law in ruling that the jury were not entitled to award the plaintiff no damages and in substituting a nominal award; (9) failed to direct himself on the established principles that costs should be awarded to the party which had in substance and reality won the action; and (10) erred in holding that the plaintiff had obtained something of value and was therefore entitled to his costs.

The general principle -- analysis and conclusions

We do not for an instant doubt that the common convenience and welfare of a modern plural democracy such as ours are best served by an ample flow of information to the public concerning, and by vigorous public discussion of, matters of public interest to the community. By that we mean matters relating to the public life of the community and those who take part in it, including within the expression 'public life' activities such as the conduct of government and political life, elections (subject to s 10 of the 1952 Act, so long as it remains in force) and public administration, but we use the expression more widely than that, to embrace matters such as (for instance) the governance of public bodies, institutions and companies which give rise to a public interest in disclosure, but excluding matters which are personal and private, such that there is no public interest in their disclosure. Recognition that the common convenience and welfare of society are best served in this way is a modern democratic imperative which the law must accept. In differing ways and to somewhat differing extents the law has recognised this imperative, in the United States, Australia, New Zealand and elsewhere, as also in the jurisprudence of the European Court of Human Rights. It would be strange if the law in this country -- the land of Milton, Paine and Mill -- were to deny this recognition, and the history recited above in our judgment makes plain that it does not.

As it is the task of the news media to inform the public and engage in public discussion of matters of public interest, so is that to be recognised as its duty. The cases cited show acceptance of such a duty, even where publication is by a newspaper to the public at large. In modern conditions what we have called the duty test should, in our view, be rather more readily held to be satisfied.

Corresponding to the duty of the media to inform is the interest of the public to receive information. Article 10 of the convention lays down a right to receive information. We have no doubt that the public also have an interest to receive information on matters of public interest to the community (as opposed, of course, to information about matters in which the public may happen to be interested). The cases have accepted that the public generally may have an interest to receive information published in a newspaper, so satisfying that we have called the interest test. In modern conditions the interest test should also, in our view, be rather more readily held to be satisfied.

It would, however, in our judgment, run counter to English authority and do nothing to promote the common convenience of our society to discard the circumstantial test. Assuming in each case that a statement is defamatory and factually false although honestly believed to be true, it is one thing to publish a statement taken from a government press release, or the report of a public company chairman, or the speech of a university vice-chancellor, and quite another to publish the statement of a political opponent, or a business competitor or a disgruntled ex-employee; it is one thing to publish a statement which the person defamed has been given the opportunity to rebut, and quite another to publish a statement without any recourse to the person defamed where such recourse was possible; it is one thing to publish a statement which has been so far as possible checked, and quite another to publish it without such verification as was possible and as the significance of the statement called for. While those who engage in public life must expect and accept that their public conduct will be the subject of close scrutiny and robust criticism, they should not in our view be taken to expect or accept that their conduct should be the subject of false and defamatory statements of fact unless the circumstances of the publication are such as to make it proper, in the public interest, to afford the publisher immunity from liability in the absence of malice. We question whether in practice this is a test very different from the test of reasonableness upheld in Australia.

The view of the law which Lord Lester has urged upon us is in our view both too broad and too narrow. It is too broad because it exposes those who are properly the subject of political speech to false and defamatory factual statements about them with no protection save on proof, which will often be difficult or impossible, that the publisher lacked an honest belief in the truth of the statement. It is too narrow because confined to political speech or discussion. For understandable forensic reasons, Lord Lester framed his submission in terms wide enough to cover this case but no wider. That does not, however, absolve us from the need to state the law in terms which are clear and workable and serve the common convenience and welfare of society. If a businessman were said to have corrupted a serving politician, Lord Lester's 'political speech' qualified privilege would, in the absence of malice, protect the publisher in a suit by the politician. But what of a suit by the businessman? If, as we understood him to accept, the same privilege would apply in a suit by the businessman, it would seem unlikely that the privilege could be confined to political speech. But if the privilege could be and were so confined, we question whether the common convenience and welfare of society would be thereby served: there are, after all, many matters which affect the public interest and the health of society much more profoundly than the small change of political controversy.

It is also plain that Lord Lester's rule would emasculate, in the area of political speech, the defence of fair comment. While, as we have shown, this defence permits the expression of very strong opinions, so long as they are honest, it does require (subject to s 6 of the 1952 Act) that the facts commented upon be true. If Lord Lester's rule were adopted, the defence of fair comment would be unnecessary in political cases, as Cantley J pointed out in Littler's case; the important safeguard of truth would effectively disappear.

In his reply Lord Lester sought to demonstrate that his rule would have the positive virtue of discouraging irresponsible journalism by imposing a salutary discipline on the editor and journalists involved, since, absent a plea of justification, the focus of a trial would shift from the conduct of the plaintiff to the conduct of the newspaper, which in answer to a plea of malice would need to vindicate the conscientiousness of its investigation and of its conduct leading up to the publication. In our view, application of the circumstantial test would exert the same beneficial influence; and we remind ourselves that the law of defamation is concerned primarily to maintain the proper balance, not to regulate the practice of journalism.

For all these reasons we reject Lord Lester's proposed rule and adhere to the existing tests of qualified privilege, applied in the way we have described.

XX

The application of these principles to the present case

It is well settled that the question whether the occasion of publication is protected by qualified privilege is a question of law to be decided by the judge, but before he can reach that decision it may be necessary for the jury to make findings on any issues of fact in dispute upon which the answer to the question depends (Duncan and Neill para 14.07, Hebditch v MacIlwaine [1894] 2 QB 54 at 58, [1891-4] All ER Rep 444 at 445 per Lord Esher MR and Adam v Ward [1917] AC 309 at 318, [1916-17] All ER Rep 157 at 160 per Lord Finlay LC).

As already noted, in the present case there was only one issue of fact which was pertinent to qualified privilege left to the jury, namely whether the words complained of correctly reported Mr Spring's stated reasons for withdrawing from the government. This question was answered in the defendants' favour, and is not the subject matter of the plaintiff's appeal. We can therefore proceed on the footing that this answer was correct, and that otherwise the relevant facts are not in issue.

The circumstances in which Mr Reynolds' government fell from power were matters of undoubted public interest to the people of Great Britain. We think it clear that the defendants had a duty to inform the public of these matters and the public had a corresponding interest to receive that information. So the duty and interest tests were, in general, satisfied. We cannot, however, regard the circumstantial test as satisfied:

1. The allegation that Mr Reynolds had lied was attributed in the article to an unidentified colleague of Mr Spring. This source was later identified, as a result of the exchange of witness statements, as a Mr Finlay, who was not a deputy but was described in the Dail as 'Mr Spring's programme manager'. There was no evidence before the jury that Mr Spring authorised Mr Finlay to accuse Mr Reynolds of lying, and Mr Finlay (although present in court for part of the trial) was never called as a witness. In the bitter aftermath of these events, a member of the staff of one of Mr Reynolds' leading political opponents could scarcely be judged an authoritative source for so serious a factual allegation.

2. Mr Spring did not in terms accuse Mr Reynolds of lying to the Dail. He did, in his speech on Wednesday, 16 November, strongly criticise Mr Reynolds for failing to disclose what he had known on Tuesday, 15 November about the Duggan case; but his criticism was consistent with an honest but mistaken omission on Mr Reynolds' part.

3. The defendants wholly failed to record Mr Reynolds' own account of his conduct, as described by him when addressing the Dail in the Wednesday debate.

4. The defendants did not, between the debate on Wednesday and publication on Sunday, alert Mr Reynolds to their highly damaging conclusion that he had lied to his coalition colleagues and knowingly misled the Dail so as to obtain his observations on it.

5. The defendants failed to resolve whether Mr Reynolds was a victim of circumstance, as conveyed to Irish readers in the 'House of Cards' article, or a devious liar, as conveyed to readers on the mainland of Britain. It should have been obvious that he could not be both.

Given the nature, status and source of the defendants' information, and all the circumstances of the publication, this was not in our judgment a publication which should in the public interest be protected by privilege in the absence of proof of actual malice.

Defamation — Parties — Corporation — Newspaper article alleging monitoring by Saudi Arabia of bank accounts of prominent businessmen to prevent transfer of funds to terrorist organisations — Businessman and his trading company named — Whether proof of special damage an essential element in libel — Human Rights Act 1998, Sch 1, Pt 1, art 10

The Wall Street Journal lost their appeal in what will be seen by the media as a setback for Reynolds privilege: many media defendants had hoped that the Court of Appeal would relax the test for Reynolds privilege which Eady J had formulated as being: “whether the media had an obligation to publish and whether the public had a need to have the information contained within it in the sense that it would be wrong to deprive the public of it”. The Court of Appeal declined to interfere with this test holding that “on the facts of this case it does not seem to us that the precise definition of Reynolds privilege was material”.

The Court of Appeal also refused the WSJE’s appeals to the effect that (i) there should be no presumption of damage in the case of overseas trading corporations that do not trade in this jurisdiction; (ii) that the common law presumption of falsity infringes Article 6 and Article 10; and (iii) that the jury should have been required to deliver a verdict recording its decision as to the actual meaning of the article complained of.

The common law rule by which special damage was not required to be proved in order to establish a cause of action in libel, damage being presumed once the libel was proved, was unaffected by art10 of the Human Rights Convention in respect of a corporation. The same rule applied to a foreign corporation with a trading reputation within the jurisdiction.

The Court of Appeal so held, dismissing the appeal of the defendant, the Wall Street Journal Europe Sprl against, inter alia, the ruling of Eady J on 5 December 2003 on the claim brought by Mohammed Abdul Latif Jameel and Abdul Latif Jameel Co Ltd, rejecting the defendant's challenge on art 10 grounds to the presumption of damage once a libel was proved.

LORD PHILLIPS OF WORTH MATRAVERS MR, giving the judgment of the court, said that the jury concluded that the claimant company, a substantial Saudi Arabian trading company of which the first claimant was the general manager and president, had been defamed by the article published by the defendants and that the appropriate award of damages was £10,000.Those findings were made after directions on English law by the judge that they should award appropriate damages if they found that the claimant company had a trading reputation in England and that the article bore a defamatory meaning that was apt to damage that trading reputation. The company had not attempted to prove that the article had caused it any specific financial loss by way of special damages. In interlocutory proceedings before the trial Mr Robertson contended that the Human Rights Act 1998 required the court to redefine the English law of libel as it related to corporations or foreign corporations. If English law was to be compatible with art 10 of the Human Rights Convention it had to require proof of special damage as an essential element in the cause of action in libel. The judge rejected that submission. There was no dispute as to the relevant principles of English law prior to the coming into force of the 1998 Act. Mr Robertson submitted that it was not necessary in order to protect the reputation of others to allow a corporation to recover damages for libel when it had not demonstrated that the libel had caused it pecuniary damage; the effect on freedom of the press afforded by English law before the 1998 Act was disproportionate to the object that it was intended to achieve. Their Lordships said that the difficulty that a trading corporation would often have in proving that a defamation calculated to cause damage to its trading reputation had resulted in specific financial loss was obvious. The judge pointed out that an important object of the law of defamation was to provide a means for those defamed to achieve vindication. A requirement to prove special damage would leave many an injured corporation without remedy. Their Lordships agreed. Such a requirement would not go far enough to provide necessary protection for the reputation of corporations that were at risk of being damaged by inaccurate press reports. S and M v United Kingdom (1993) 18 EHRRCD 172 suggested that the Commission saw no objection in principle to a foreign corporation receiving the same protection for its reputation within the British jurisdiction as a British corporation. Their Lordships saw every reason why they should receive the same treatment. Differential treatment would be likely to constitute discrimination in the accordance of art 6 rights, contrary to the prohibition imposed by art 14. It was likely in practice that a foreign corporation which traded outside this jurisdiction but not within it would have greater difficulty in establishing that it had a trading reputation within this jurisdiction. If it succeeded however, the interests of justice required that the same principles of law should apply to its claim for defamation.

Appearances: Geoffrey Robertson QC and Rupert Elliott (Finers Stephens Innocent) for the defendant. James Price QC and Justin Rushbrooke (Peter Carter-Ruck & Partners) for the claimants.

This is only the fourth consideration by the Court of Appeal of Reynolds privilege (GKR Karate, Grobbelaar, Al-Fagih and Loutchansky) since Lord Nicholls, in introducing his ten non-exhaustive factors in 1999, anticipated that “over time, a valuable corpus of case law will be built up” and the first since the Privy Council’s judgment in Bonnick v Morris. In this judgment the Court of Appeal reviews the test for Reynolds privilege and discusses what role meaning and the subjective belief of the Defendant have to the availability of the Reynolds defence. It also introduces new pleading obligations for both parties.

The Wall Street Journal published an article in February 2002 that identified Mr Jameel´s group of companies as being among those whose bank accounts were being monitored by Saudi authorities, at the US government´s request, in connection with the actual or potential funding of terrorism. In an action brought by the main company in the Group and by Mr Jameel, the Defendant contended that the publication was protected by Reynolds privilege and disputed the Claimants´ ´reasonable grounds to suspect´ meaning, contending it was not defamatory or at worst bore the lowest tier of gravity meaning ‘grounds to investigate’.

The action was tried before a jury in December 2003. In answer to a shopping list of questions put to the jury, the jury accepted that the words bore a defamatory meaning of the Claimants but rejected the journalist’s case as to his contact with 4 out of 5 of his anonymous sources in Saudi Arabia (none of whom were called). The jury also did not accept his account of his attempts to verify the story and contact the Claimants in advance of publication. Subject to the defence of qualified privilege, the jury awarded damages of £30,000 to Mr Jameel and £10,000 to the company. On the basis of the jury´s findings of fact, Eady J rejected the defence of qualified privilege. The Defendant’s appealed on qualified privilege, presumption of falsity and presumption of damage.

(i) The Test: The Court of Appeal upheld Eady J’s identification of the primary question as being “whether the peculiar circumstances gave rise to a duty to publish. The question of whether there had been responsible journalism or the exercise of due professional skill and care were matters to be addressed when answering that primary question. ..The duty in question was a social or moral duty and that the obverse of this test was whether it was in the public interest at the time for the words to be published”.

“Responsible journalism is insufficiently precise to constitute the sole test for Reynolds privilege. … The requirements of responsible journalism will vary according to the particular circumstances and, in particular, the gravity of the defamation. Responsible journalism must be demonstrated before Reynolds privilege can be established. But there is a further element that must be demonstrated. The subject matter of the publication must be of such a nature that it is in the public interest that it should be published. This is a more stringent test that that the public should be interested in receiving the information.” (paragraph 87)

However, the court declined on the facts to wrestle with the Defendant’s submission that Eady J’s refinement of the test (“whether the media had an obligation to publish and whether the public had a need to have the information contained within it in the sense that it would be wrong to deprive the public of it”) was too stringent a test. Or, that if gravity is particularly relevant, why the jury should not have been asked for their decision as to the meaning of the article.

(ii)Jury finding on meaning: The difference between ´reasonable grounds to suspect´ and ‘grounds to investigate’ meanings can be a narrow one, the court held. “Had the issue of Reynolds privilege been likely to turn on whether the words bore the more or the less serious meaning, it might have been necessary to invite the jury to choose between the two. But the judge plainly did not consider that the precise nature of the defamatory sting was capable of affecting the outcome. We share that view.” (paragraph 84)

(iii) Defendant’s subjective belief: In a novel direction, the Court of Appeal held that responsible journalism requires a belief in the truth of the article’s [obvious] defamatory implications: “It is clear that he [the judge] did not consider that the article was one which it was in the public interest to publish without adequate attempts at verification and without belief in the truth of its defamatory implications. We are of the same mind”. (paragraph 89)

(iv) Bonnick v Morris: The Court of Appeal ruled that Bonnick has no application where the article is obviously capable of bearing a defamatory meaning and therefore questions as to whether Bonnick represents the law in this jurisdiction and, if it does, how it applies remain unanswered.

“In Bonnick it seems that the Defendant gave evidence that she did not appreciate that her article had a defamatory meaning. The Judicial Committee of the Privy Council considered that she could be forgiven for this and therefore had not acted irresponsibly in publishing the article. … We consider that the judge was justified in holding that no responsible journalist could have ignored the fact that the article was capable of a defamatory meaning. .. For these reasons we have concluded that the judge was correct to rule that Bonnick v Morris had no application to the facts of this case.” (paragraphs 90-97)

“It seems to us that, in seeking to demonstrate that a publication accords with the requirements of responsible journalism, a publisher will almost certainly wish to adduce evidence of the subjective belief of those responsible for the publication…to demonstrate that it was reasonable to believe that a defamatory article was true…or that a third party was conducting an investigation…[or] to demonstrate that it was reasonable not to appreciate that an article bore a defamatory meaning.” (paragraph 27)

“It is important that the pleadings should make clear where a defendant is relying on reasonable belief in the truth of matters published, or their implications, and where he is not. It is also important that the claimant should make clear whether or not he denies that the belief was held, or whether he merely contends that the belief was not reasonable.” (paragraph 31)

Judge or jury: “The division between the role of the judge and that of the jury when Reynolds privilege is in issue is not an easy one; indeed it is open to question whether jury trial is desirable at all in such a case.” (paragraph 70)

Presumption of falsity: Where the jury are asked to make findings of fact relevant to Reynolds privilege “it does not seem right to us that the jury should apply a presumption that the article was false”. (paragraph 61).

The Defendants submitted that Article 10 required a redefinition of English libel law to require corporations or, alternatively, foreign corporations which do not trade here, to prove special damage as a prerequisite for a cause of action in libel. The Court of Appeal rejected this argument on the grounds that a requirement to prove special damage would leave an injured corporation without a means to achieve vindication; and, in respect of foreign corporations, agreed with the European Commission of Human Rights that there is no objection in principle to a foreign corporation receiving the same protection for its reputation within this jurisdiction as a British corporation, and differential treatment would be likely to constitute discrimination in the accordance of Article 6 rights, which is prohibited by Article 14.

This appeal raises questions as to the meaning of the word 'defamatory' and as to the nature of an action for defamation.

The facts can be stated quite shortly. The plaintiff, Mr Steven Berkoff, is an actor, director and writer who is well known for his work on stage, screen and television. The first defendant, Miss Julie Burchill, is a journalist and writer who at the material times was retained to write articles about the cinema for the Sunday Times. The second defendants, Times Newspapers Ltd, are the publishers of the Sunday Times.

In the issue of the Sunday Times dated 30 January 1994 Miss Burchill wrote a review of the film 'The Age of Innocence'. In the course of the review, in a general reference to film directors, Miss Burchill wrote: '. . . film directors, from Hitchcock to Berkoff, are notoriously hideous-looking people . . .' Nine months later Miss Burchill returned to the same theme in a review of the film 'Frankenstein'. In this review, which was published in the issue of the Sunday Times dated 6 November 1994, Miss Burchill described a character in the film called 'the Creature'. She wrote:

'The Creature is made as a vessel for Waldman's brain, and rejected in disgust when it comes out scarred and primeval. It's a very new look for the Creature -- no bolts in the neck or flat-top hairdo -- and I think it works; it's a lot like Stephen Berkoff, only marginally better-looking.'

Following the publication of the second article Mr Berkoff made an immediate complaint. The complaint was rejected, however, and on 1 March 1995 Mr Berkoff issued a writ. In para 6 of the statement of claim, which was served on the same day as the writ was issued, it was alleged that the passages in the two articles which I have set out meant and were understood to mean that Mr Berkoff was hideously ugly. It is to be noted that in para 5 of the statement of claim, after the words in the second article of which complaint was made had been set out, it was pleaded that the plaintiff would rely on the full text of the article for context.

The defendants then issued a summons pursuant to RSC Ord 14A seeking an order that the following question of law might be determined: '. . . whether the meaning pleaded in paragraph 6 of the Statement of Claim . . . is capable of being defamatory . . .' The summons also included an application for an order that if it were determined that the meaning was not defamatory the action should be dismissed.

The summons was heard by Sir Maurice Drake sitting as a judge of the High Court. After hearing argument the judge dismissed the defendants' application, but he gave the defendants leave to appeal.

The primary submission on behalf of Mr Berkoff before the judge was that the meaning was defamatory because to call a person 'hideously ugly' would tend to expose him to ridicule. As a subsidiary submission it was contended that such a description would tend to cause other people to shun or avoid Mr Berkoff. The judge stated his conclusion as follows:

'I must say I am doubtful whether to call a person "hideously ugly" exposes that person to ridicule, but I have come to the conclusion that it is likely to lead ordinary reasonable people to shun the plaintiff, despite the fact that being hideously ugly is no reflection on a person's character or good reputation. For that reason, albeit with hesitation, I hold that to call a person "hideously ugly" is defamatory. If justification is pleaded, that will involve the jury deciding whether the plea is made out.'

The Law

Before stating my conclusion I propose to examine the relevant question of law under three headings. (1) The scope of the present application. (2) Definitions of 'defamatory'. (3) Additional guidance from decided cases. I turn to the first heading.

The scope of the present application

No order has been made as to the mode of trial in this case. One must therefore proceed on the basis that the action is likely to be tried, if at all, with a jury. The question of fact: libel or no libel, is a matter for the jury. But the court has jurisdiction to rule that as a matter of law words are incapable of being defamatory.

A striking example of the exercise of this jurisdiction is provided by the decision of the House of Lords in Capital and Counties Bank Ltd v George Henty & Sons (1882) 7 App Cas 741, [1881-5] All ER Rep 86. In that case the defendants sent a circular to a large number of their customers stating: 'Henty & Sons hereby give notice that they will not receive in payment cheques drawn on any of the branches of the Capital and Counties Bank.' The contents of the circular became known and there was a run on the bank. Nevertheless it was held by the House of Lords, affirming the majority decision of the Court of Appeal ((1880) 5 CPD 514), that in their natural meaning the words were not capable in law of being defamatory. It may be noted that the issue had been left to the jury at the trial but they had been unable to agree.

It is clear, however, that the court should exercise great caution before concluding that words are incapable of a defamatory meaning. In the present case the position is somewhat different because a specified meaning has been isolated and the preliminary issue requires the determination of the single question, whether that meaning is capable of being defamatory. The practice of pleading inferential meanings is of course to be encouraged where it is appropriate and it may often enable the court to dispose of extravagant inferential meanings under the new procedure enshrined in Ord 82, r 3A(1). But there may be cases, of which this perhaps is one, where the inferential meaning may not provide a wholly adequate paraphrase for the words complained of. Thus it was suggested in the review that the appearance of the 'marginally better-looking' creature was such that it was 'rejected in disgust' when it came out 'scarred and primeval'.

I turn next to consider some of the definitions of the word 'defamatory'.

Definitions of 'defamatory'

I am not aware of any entirely satisfactory definition of the word 'defamatory'. It may be convenient, however, to collect together some of the definitions which have been used and approved in the past.

(1) The classic definition is that given by Lord Wensleydale (then Parke B) in Parmiter v Coupland (1840) 6 M & W 105 at 108, 151 ER 340 at 341-342. He said that in cases of libel it was for the judge to give a legal definition of the offence which he defined as being:

'A publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule . . .'

It is to be noted that in Tournier v National Provincial Union Bank of England Ltd [1924] 1 KB 461 at 477, [1923] All ER Rep 550 at 557 Scrutton LJ said that he did not think that this 'ancient formula' was sufficient in all cases, because words might damage the reputation of a man as a business man which no one would connect with hatred, ridicule or contempt. Atkin LJ expressed a similar opinion ([1924] 1 KB 461 at 486-487, [1923] All ER Rep 550 at 561):

'I do not think that it is a sufficient direction to a jury on what is meant by "defamatory" to say, without more, that it means: Were the words calculated to expose the plaintiff to hatred, ridicule or contempt, in the mind of a reasonable man? The formula is well known to lawyers, but it is obvious that suggestions might be made very injurious to a man's character in business which would not, in the ordinary sense, excite either hate, ridicule, or contempt -- for example, an imputation of a clever fraud which, however much to be condemned morally and legally, might yet not excite what a member of a jury might understand as hatred, or contempt.'

(2) In Scott v Sampson (1882) 8 QBD 491, [1881-5] All ER Rep 628 the Divisional Court was concerned with the question as to the evidence which might be called by a defendant relating to the character of the plaintiff. Cave J explained the nature of the right which is concerned in an action for defamation (8 QBD 491 at 503, [1881-5] All ER Rep 628 at 634):

'Speaking generally the law recognizes in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit; and if such false statements are made without lawful excuse, and damage results to the person of whom they are made, he has a right of action.'

But, as was pointed out in the Faulks Committee Report of the Committee on Defamation (Cmnd 5909) para 62, the word 'discredit' is itself incapable of precise explication. Nevertheless, in Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 Scrutton LJ said that he thought that it was difficult to improve upon the language of this definition.

(3) In Sim v Stretch [1936] 2 All ER 1237 at 1240 Lord Atkin expressed the view that the definition in Parmiter v Coupland was probably too narrow and that the question was complicated by having to consider the person or class of persons whose reaction to the publication provided the relevant test. He concluded this passage in his speech:

'. . . after collating the opinions of many authorities I propose in the present case the test: would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?'

(4) As I have already observed, both Scrutton and Atkin LJJ in Tournier's case drew attention to words which damage the reputation of a man as a business man. In Drummond-Jackson v British Medical Association [1970] 1 All ER 1094, [1970] 1 WLR 688 the Court of Appeal was concerned with an article in a medical journal which, it was suggested, impugned the plaintiff's reputation as a dentist. Lord Pearson said:

'. . . words may be defamatory of a trader or business man or professional man, although they do not impute any moral fault or defect of personal character. They [can] be defamatory of him if they impute lack of qualification, knowledge, skill, capacity, judgment or efficiency in the conduct of his trade or business or professional activity . . .' (See [1970] 1 All ER 1094 at 1104, [1970] 1 WLR 688 at 698-699.)

It is therefore necessary in some cases to consider the occupation of the plaintiff.

(5) In Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 587 Slesser LJ expanded the Parmiter v Coupland definition to include words which cause a person to be shunned or avoided. He said:

'. . . not only is the matter defamatory if it brings the plaintiff into hatred, ridicule, or contempt by reason of some moral discredit on [the plaintiff's] part, but also if it tends to make the plaintiff be shunned and avoided and that without any moral discredit on [the plaintiff's] part. It is for that reason that persons who have been alleged to have been insane, or to be suffering from certain diseases, and other cases where no direct moral responsibility could be placed upon them, have been held to be entitled to bring an action to protect their reputation and their honour.'

Slesser LJ added, in relation to the facts in that case:

'One may, I think, take judicial notice of the fact that a lady of whom it has been said that she has been ravished, albeit against her will, has suffered in social reputation and in opportunities of receiving respectable consideration from the world.'

(6) The Faulks Committee in their report recommended that for the purpose of civil cases the following definition of defamation should be adopted (para 65):

'Defamation shall consist of the publication to a third party of matter which in all the circumstances would be likely to affect a person adversely in the estimation of reasonable people generally.'

(7) In the American Law Institute's Restatement of the Law of Torts (2nd edn, 1977) @ 559 the following definition is given:

'A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.'

(8) In some of the Australian states a definition of 'defamatory matter' is contained in the Code. In the Queensland Criminal Code @ 366, the following definition is given:

'Any imputation concerning any person, or any member of his family, whether living or dead, by which the reputation of that person is likely to be injured, or by which he is likely to be injured in his profession or trade, or by which other persons are likely to be induced to shun or avoid or ridicule or despise him . . .'

It will be seen from this collection of definitions that words may be defamatory, even though they neither impute disgraceful conduct to the plaintiff nor any lack of skill or efficiency in the conduct of his trade or business or professional activity, if they hold him up to contempt, scorn or ridicule or tend to exclude him from society. On the other hand, insults which do not diminish a man's standing among other people do not found an action for libel or slander. The exact borderline may often be difficult to define.

The case for Mr Berkoff is that the charge that he is 'hideously ugly' exposes him to ridicule, and/or alternatively, will cause him to be shunned or avoided. I turn therefore to such guidance as can be found in any of the decided cases to which we were either referred by counsel or to which my own limited researches have led me.

Guidance from decided cases

It will be convenient to consider the cases chronologically.

(1) In Cropp v Tilney (1693) 3 Salk 225, 90 ER 1132 the plaintiff complained of a publication which he said had resulted in his failing to be elected as a member of Parliament. The words of which he complained are irrelevant for present purposes, but it is to be noted that Holt CJ said (3 Salk 225 at 226, 90 ER 1132):

'Scandalous matter is not necessary to make a libel, it is enough if the defendant induces an ill opinion to be had of the plaintiff, or to make him contemptible and ridiculous; as for instance, an action was brought by the husband for riding Skimmington, and adjudged that it lay, because it made him ridiculous, and exposed him.'

It seems that the reference by Holt CJ was to the decision in Mason v Jennings (1680) T Raym 401, 83 ER 209, where the phrase 'riding Skimmington' was taken to imply that the plaintiff's wife beat him.

(2) In Villers v Monsley (1769) 2 Wils 403, 95 ER 886 the plaintiff complained of some verses written by the defendant which suggested that the plaintiff smelt of brimstone and which included the line: 'You old stinking, old nasty, old itchy old toad . . .' The court upheld the plaintiff's award of sixpence damages which he had received at Warwickshire Assizes. Lord Wilmot CJ said (2 Wils 403 at 403-404, 95 ER 886 at 886-887):

'. . . if any man deliberately or maliciously publishes any thing in writing concerning another which renders him ridiculous, or tends to hinder mankind from associating or having intercourse with him, an action well lies against such publisher. I see no difference between this and the cases of leprosy and plague; and it is admitted that an action lies in those cases . . . Nobody will eat, drink, or have any intercourse with a person who has the itch and stinks of brimstone; therefore I think this libel actionable, and that judgment must be for the plaintiff.'

The other members of the court agreed. Gould J said (2 Wils 403 at 404, 95 ER 886 at 887):

'What is the reason why saying a man has the leprosy or plague is actionable? [It] is because the having of either cuts a man off from society; so the writing and publishing maliciously that a man has the itch and stinks of brimstone, cuts him off from society. I think the publishing any thing of a man that renders him ridiculous is a libel and actionable . . .'

(3) In Dunlop Rubber Co Ltd v Dunlop [1921] 1 AC 367, [1920] All ER Rep 745 the plaintiff, who was the inventor of a pneumatic tyre, had assigned his interest in the invention to the defendant company. The plaintiff lived in Ireland. In 1891 the plaintiff had presented the defendants' predecessors in title with a portrait bust of himself and his signature to be used as a trade mark. Later, however, the defendants, without his permission, exhibited advertisements containing pictures intended to represent him, but the features, which were adapted from the portrait bust, were placed upon the body of a very tall man dressed in an exaggeratedly foppish manner, wearing a tall white hat, a white waistcoat, and carrying a cane and eyeglass. The plaintiff had obtained an injunction against the defendant company in the Chancery Division in Ireland and the injunction was upheld by the Court of Appeal in Ireland. On appeal to the House of Lords it was argued that leave should not have been given in Ireland to serve a writ in London.

But in the course of his speech dismissing the appeal Lord Birkenhead LC said ([1921] 1 AC 367 at 372, [1920] All ER Rep 745 at 747):

'. . . it was said in the Court below, and it has been said in other cases which were cited to us as authorities, that such an injunction would not be granted, and ought not to be granted, unless the Court was satisfied of the existence of a serious libel, unless indeed it was prepared confidently and completely to anticipate what the view of a jury would be when it tried the case. I am not sure that in some of the passages cited the case was not in this particular put rather too high. It is sufficient for me to say that the judges who tried this case have reached the conclusion (and I agree with them) that the exhibition of these pictures constituted a circumstance in which that which was done was at least capable of a defamatory meaning.'

It is to be noted that the claim in the writ for an injunction was to restrain the defendant from publishing any advertisements etc which contained pictures representing the plaintiff 'in absurd or unsuitable costumes or attitudes, or caricatures of him, or otherwise calculated to expose him to public ridicule or contempt by misrepresenting his appearance or costume'.

(4) In Zbyszko v New York American Inc (1930) 228 App Div 277 the plaintiff, who was a wrestler, complained of references to him in an article published by the defendant on the theory of evolution. The article called attention to the structural resemblance between man and the gorilla. Near the top of the page appeared a photograph of the plaintiff in a wrestling pose and under it the words: 'Stanislaus Zbyszko, the Wrestler, not Fundamentally Different from the Gorilla in Physique.' In close proximity to the photograph of the plaintiff was a photograph of a gorilla (described in the law report as 'hideous looking') which was stated to be a mounted specimen of the Great Kivu gorilla in Lord Rothschild's museum in England.

The plaintiff's action, in which it was pleaded that 'the plaintiff enjoyed an international reputation for dignity . . . kindliness, intelligence and culture', was struck out by the Supreme Court for New York County but the case was reinstated by the Appellate Division. It was held that the tendency of the article was to disgrace him and bring him into ridicule and contempt. Judge McAvoy said (at 413):

'Any written article is actionable . . . if it tends to expose the plaintiff to public contempt, ridicule, aversion, or disgrace, or induce an evil opinion of him in the minds of others and deprives him of their society. It is not necessary that words impute disgraceful conduct to the plaintiff. If they render him contemptible or ridiculous, he is equally entitled to redress.'

The court therefore held that the case could not be struck out before trial.

(5) In Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 the plaintiff complained that she could be identified with the character Princess Natasha in the film 'Rasputin, the Mad Monk'. The princess claimed damages on the basis that the film suggested that, by reason of her identification with 'Princess Natasha', she had been seduced by Rasputin. The princess was awarded GBP25,000 damages. In the Court of Appeal it was contended that if the film indicated any relations between Rasputin and 'Natasha' it indicated a rape of Natasha and not a seduction. Slesser LJ considered the defamatory nature of the film (at 587):

'I, for myself, cannot see that from the plaintiff's point of view it matters in the least whether this libel suggests that she has been seduced or ravished. The question whether she is or is not the more or the less moral seems to me immaterial in considering this question whether she has been defamed, and for this reason, that, as has been frequently pointed out in libel, not only is the matter defamatory if it brings the plaintiff into hatred, ridicule, or contempt by reason of some moral discredit on her part, but also if tends to make the plaintiff be shunned and avoided and that without any moral discredit on her part. It is for that reason that persons who have been alleged to have been insane, or to be suffering from certain diseases, and other cases where no direct moral responsibility could be placed upon them, have been held to be entitled to bring an action to protect their reputation and their honour.'

Later he added (at 588):

'When this woman is defamed in her sexual purity I do not think that the precise manner in which she has been despoiled of her innocence and virginity is a matter which a jury can properly be asked to consider.'

(6) In Winyard v Tatler Publishing Co Ltd (1991) Independent, 16 August the Tatler magazine published an article which contained a reference to a residential health spa of which Mr Stephen Winyard and Mrs Winyard, his mother, were directors. Mrs Winyard complained of a sentence which was in these terms:

'His mother, Gaynor Winyard, is an internationally renowned beauty therapist (known more familiarly on the beautician circuit as "the international boot").'

One of the meanings of 'boot' relied on by Mrs Winyard was that it meant 'an ugly harridan'. At the trial the judge considered a submission that in this meaning the word 'boot' was not capable of being defamatory. He said:

'In their context, applied to a lady who is in the alleged libel itself described as "a beauty therapist" and "someone on the beautician circuit" to call such a person "an ugly harridan" is in my view something beyond mere ridicule. It is ridicule, no doubt. But it is ridicule which the jury, if it thought right, would be entitled, within the well-known definition (which I am not going to repeat here but I shall state to the jury) of finding to be defamatory.'

It seems that the 'well-known definition' was that of Lord Atkin in Sim v Stretch [1936] 2 All ER 1237 at 1240: '. . . would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?'

In his judgment in the Court of Appeal, Staughton LJ referred to the judge's ruling:

'It may well be that in some cases to say that a woman is old and ugly, or haggard, would do no more than cause injury to her feelings, and would not affect her character or reputation. But the judge evidently felt that a different view might be taken if she was a beauty therapist. It is not, apparently, that she would have failed to exercise her skills in preserving her own appearance, but that others might not wish her to be in charge of their treatment. I entirely agree with the judge's ruling on this point; it was open for the jury, if they thought fit, to find that this meaning of the word "boot" lowered Mrs Winyard's character or reputation. Whether they did reach that conclusion we do not know. It may be that their verdict was entirely based on the innuendo meaning of a promiscuous slut, which (if established) was far more serious.'

(7) In Manning v Hill (A-G for Ontario and ors, interveners) (1995) 126 DLR (4th) 129 the Supreme Court of Canada was concerned with the relationship between the common law action for defamation and the Canadian Charter of Rights and Freedoms. In the course of his judgment, with which the majority of the court agreed, Cory J considered the nature of actions for defamation and the values which require to be balanced. He traced the history of proceedings designed to protect the reputation of an individual (see 126 DLR (4th) 129 at 160). Starting with the provisions of the Mosaic Code, he came to the origins of the modern law of libel arising out of De Libellis Famosis (1605) 5 Co Rep 125a, 77 ER 250. He continued (at 162-163):

'Though the law of defamation no longer serves as a bulwark against the duel and blood feud, the protection of reputation remains of vital importance . . . reputation is the "fundamental foundation on which people are able to interact with each other in social environments". At the same time, it serves the equally or perhaps more fundamentally important purpose of fostering our self-image and sense of self-worth. This sentiment was eloquently expressed by Stewart J in Rosenblatt v Baer ((1966) 383 US 75 at 92) who stated: "The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being -- a concept at the root of any decent system of ordered liberty."'

The Appeal

It was argued by counsel on behalf of the defendants that the defining characteristic of the tort of defamation is injury to reputation. The fact that a statement may injure feelings or cause annoyance is irrelevant to the question whether it is defamatory. He reminded us of Lord Atkin's words in Sim v Stretch [1936] 2 All ER 1237 at 1242 that though the freedom of juries to award damages for injury to reputation was one of the safeguards of liberty, the protection was undermined 'when exhibitions of bad manners or discourtesy are placed on the same level as attacks on character, and are treated as actionable wrongs'. Counsel accepted that it was also defamatory to say of a man that he was suffering from certain diseases. But he submitted that a distinction had to be drawn between an allegation that someone was physically unwholesome and an allegation that someone was physically aesthetically unpleasing. It could not be defamatory to say that an individual had a streaming cold or influenza, so the test of being 'shunned or avoided' cannot be applied without qualification. It was also to be noted that it was not suggested in Youssoupoff's case that there was no evidence on which it could be found that the passages complained of were defamatory of the princess (see (1934) 50 TLR 581 at 586 per Greer LJ).

Counsel for Mr Berkoff on the other hand, contended that the present case fell into the residual class where words may be defamatory even though they do not involve an attack on a plaintiff's reputation in the conventional sense. Mr Berkoff, it was said, is an actor and a person in the public eye. It was submitted that it was necessary to look at all the circumstances. If this were done it was a matter for the jury to decide whether the words complained of had passed beyond mere abuse and had become defamatory by exposing Mr Berkoff to ridicule or by causing him to be shunned or avoided. It was suggested that these two passages would reduce the respect with which he was regarded. The words complained of might affect Mr Berkoff's standing among the public, particularly theatre-goers, and among casting directors.

In his helpful submissions on behalf of the defendants, Mr Price QC rightly underlined the central characteristic of an action for defamation as being a remedy for publications which damage a person's reputation. But the word 'reputation', by its association with phrases such as 'business reputation', 'professional reputation' or 'reputation for honesty', may obscure the fact that in this context the word is to be interpreted in a broad sense as comprehending all aspects of a person's standing in the community. A man who is held up as a figure of fun may be defeated in his claim for damages by, for example, a plea of fair comment, or, if he succeeds on liability, the compensation which he receives from a jury may be very small. But nevertheless, the publication of which he complains may be defamatory of him because it affects in an adverse manner the attitude of other people towards him.

It was argued on behalf of Mr Berkoff that in considering whether words were capable of a defamatory meaning it was necessary to take into account every possible group of persons to whom the words might apply. Could the words be defamatory of anyone? In my opinion this is not the right test. Mr Price was, I think, correct when he submitted that the question has to be answered in relation to the claim by the plaintiff. But if this is done, one has to look at the words and judge them in the context in which they were published. Indeed, as I pointed out earlier, it is pleaded in the statement of claim that reliance will be placed on the context. It may be that in some contexts the words 'hideously ugly' could not be understood in a defamatory sense, but one has to consider the words in the surroundings in which they appear. This task is particularly important in relation to the second article.

It is trite law that the meaning of words in a libel action is determined by the reaction of the ordinary reader and not by the intention of the publisher, but the perceived intention of the publisher may colour the meaning. In the present case it would, in my view, be open to a jury to conclude that in the context the remarks about Mr Berkoff gave the impression that he was not merely physically unattractive in appearance but actually repulsive. It seems to me that to say this of someone in the public eye who makes his living, in part at least, as an actor, is capable of lowering his standing in the estimation of the public and of making him an object of ridicule

I confess that I have found this to be a far from easy case, but in the end I am satisfied that it would be wrong to decide this preliminary issue in a way which would withdraw the matter completely from the consideration of a jury.

I would dismiss the appeal.


Millett LJ: Many a true word is spoken in jest. Many a false one too. But chaff and banter are not defamatory, and even serious imputations are not actionable if no one would take them to be meant seriously. The question, however, is how the words would be understood, not how they were meant, and that issue is pre-eminently one for the jury. So, however difficult it may be, we must assume that Miss Julie Burchill might be taken seriously. The question then is: is it defamatory to say of a man that he is 'hideously ugly'?

Mr Berkoff is a director, actor and writer. Physical beauty is not a qualification for a director or writer. Mr Berkoff does not plead that he plays romantic leads or that the words complained of impugn his professional ability. In any case, I do not think that it can be defamatory to say of an actor that he is unsuitable to play particular roles.

How then can the words complained of injure Mr Berkoff's reputation? They are an attack on his appearance, not on his reputation. It is submitted on his behalf that they would cause people 'to shun and avoid him' and would 'bring him into ridicule'. Ridicule, it will be recalled, is the second member of a well-known trinity.

The submission illustrates the danger of trusting to verbal formulae. Defamation has never been satisfactorily defined. All attempted definitions are illustrative. None of them is exhaustive. All can be misleading if they cause one to forget that defamation is an attack on reputation, that is on a man's standing in the world.

The cases in which words have been held to be defamatory because they would cause the plaintiff to be shunned or avoided, or 'cut off from society', have hitherto been confined to allegations that he suffers from leprosy or the plague or the itch or is noisome and smelly (see Villers v Monsley (1769) 2 Wils 403, 95 ER 886). I agree with Phillips LJ and for the reasons which he gives that an allegation of ugliness is not of that character. It is a common experience that ugly people have satisfactory social lives -- Boris Karloff is not known to have been a recluse -- and it is a popular belief for the truth of which I am unable to vouch that ugly men are particularly attractive to women.

I have no doubt that the words complained of were intended to ridicule Mr Berkoff, but I do not think that they made him look ridiculous or lowered his reputation in the eyes of ordinary people. There are only two cases which have been cited to us which are at all comparable. In Winyard v Tatler Publishing Co Ltd (1991) Independent, 16 August it was held to be defamatory to call a professional beautician 'an ugly harridan', not because it reflected on her professional ability, but because some of her customers might not wish to be attended by an ugly beautician. I find the decision difficult to understand, since the reasoning suggests that the cause of action would more properly be classified as malicious falsehood rather than defamation, so that actual loss of custom would have to be proved.

The other case is Zbyszko v New York American Inc (1930) 228 App Div 277. A newspaper published a photograph of a particularly repulsive gorilla. Next to it appeared a photograph of the plaintiff above the caption: 'Stanislaus Zbyszko, the Wrestler, Not Fundamentally Different from the Gorilla in Physique.' The statement of claim alleged that this had caused the plaintiff to be shunned and avoided by his wife (who presumably had not noticed her husband's physique until it was pointed out to her by the newspaper), his relatives, neighbours, friends and business associates, and had injured him in his professional calling. The Appellate Division of the New York Supreme Court held that the caption was capable of being defamatory. The case was presumably cited to us as persuasive authority. I find it singularly unpersuasive except as a demonstration of the lengths of absurdity to which an enthusiastic New York lawyer will go in pleading his case.

The line between mockery and defamation may sometimes be difficult to draw. When it is, it should be left to the jury to draw it. Despite the respect which is due to the opinion of Neill LJ, whose experience in this field is unrivalled, I am not persuaded that the present case could properly be put on the wrong side of the line. A decision that it is an actionable wrong to describe a man as 'hideously ugly' would be an unwarranted restriction on free speech. And if a bald statement to this effect would not be capable of being defamatory, I do not see how a humorously exaggerated observation to the like effect could be. People must be allowed to poke fun at one another without fear of litigation. It is one thing to ridicule a man; it is another to expose him to ridicule. Miss Burchill made a cheap joke at Mr Berkoff's expense; she may thereby have demeaned herself, but I do not believe that she defamed Mr Berkoff.

If I have appeared to treat Mr Berkoff's claim with unjudicial levity it is because I find it impossible to take it seriously. Despite the views of my brethren, who are both far more experienced than I am, I remain of the opinion that the proceedings are as frivolous as Miss Burchill's article. The time of the court ought not to be taken up with either of them. I would allow the appeal and dismiss the action.


Phillips LJ: In almost every case in the books, words which have been held to be defamatory have been words which have denigrated the character or personality of the plaintiff, not the corporeal envelope housing that personality. The law of defamation protects reputation, and reputation is not generally dependent upon physical appearance. Exceptionally there has been a handful of cases where words have been held defamatory, notwithstanding that they do not attack character or personality.

In Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 at 453 as Hunt J observed:

'At common law, in general, an imputation, to be defamatory of the plaintiff, must be disparaging of him . . . I say that this is "in general" the position, as the common law also recognizes as defamatory an imputation which, although not disparaging, tends to make other persons "shun or avoid" the plaintiff, for example, by attributing to him that he is insane: Morgan v Lingen ((1863) 8 LT 800); or by attributing to her that she has been raped . . . as well as an imputation that displays the plaintiff in a ridiculous light, notwithstanding the absence of any moral blame on his part . . .'

'Shun or avoid'

It is not easy to find the touchstone by which to judge whether words are defamatory which tend to make other persons shun or avoid the plaintiff, but it is axiomatic that the words must relate to an attribute of the plaintiff in respect of which hearsay alone is enough to provoke this reaction. That was once true of a statement that a woman had been raped and would still be true of a statement that a person has a serious infectious or contagious disease, or is physically unwholesome or is mentally deranged. There is precedent for holding all such statements defamatory. There is, however, with one possible exception, no precedent for holding it defamatory to describe a person as ugly. In my judgment, such a statement differs in principle from those statements about a person's physical condition which have been held to be defamatory. Those statements have, in every case, been allegations of fact -- illness, madness, filthiness or defilement. Hearsay factual statements about a person's physical condition can clearly be capable of causing those who hear or read them to avoid the subject of them. In contrast, a statement that a person is ugly, or hideously ugly, is a statement of subjective appreciation of that individual's features. To a degree both beauty and ugliness are in the eye of the beholder. It is, perhaps, just possible to think of a right minded person shunning one of his fellow men because of a subjective distaste for his features. What I find impossible to accept is that a right minded person would shun another merely because a third party had expressed distaste for that other person's features.

It is perhaps for this reason that statements disparaging, however strongly, a person's features -- and many such statements must have been published -- have never been the subject of a successful claim for defamation.

My conclusion is that a statement that a person is hideously ugly does not fall into that category of statements that are defamatory because they tend to make people shun or avoid the plaintiff.

Ridicule

The class of cases where it has been held defamatory, or potentially defamatory, to damage a plaintiff's reputation by exposing him to ridicule is too elusive to encapsulate in any definition. No case demonstrates this better than Dunlop Rubber Co Ltd v Dunlop [1921] 1 AC 367, [1920] All ER Rep 745, the facts of which have been outlined by Neill LJ. The preliminary point which is the subject of this appeal does not require us to decide whether the publications complained of are capable of constituting defamation of the plaintiff. The question which we are asked to answer is whether 'the meaning pleaded in para 6 of the statement of claim is capable of being defamatory'. The defendants' skeleton argument opened with the following proposition:

'The question of law for decision is whether a statement that an individual is ugly is capable of being defamatory. If this statement is defamatory in one case, it must be in all cases (in the absence of any distinguishing features of a particular case), so that there is no distinction to be drawn between the technical issue of law, whether it is capable of being defamatory, and the technical issue of fact, whether it is defamatory.'

I cannot accept this proposition. Where the issue is whether words have damaged a plaintiff's reputation by exposing him to ridicule, that question cannot be answered simply by considering whether the natural and ordinary meaning of the words used is defamatory per se. The question has to be considered in the light of the actual words used and the circumstance in which they are used. There are many ways of indicating that a person is hideously ugly, ranging from a simple statement of opinion to that effect, which I feel could never be defamatory, to words plainly intended to convey that message by way of ridicule. The words used in this case fall into the latter category. Whether they have exposed the plaintiff to ridicule to the extent that his reputation has been damaged must be answered by the jury. The preliminary point raised by the defendants cannot be answered in the affirmative and this appeal should be dismissed.

Disposition:
Appeal dismissed.


Resource book: Berkoff v Burchill and another
1/31/2007 12:07:23 AM
Berkoff v Burchill and another
[1996] 4 All ER 1008, [1997] EMLR 139
Court Of Appeal (Civil Division)


Resource book: Berkoff v Burchill and another
1/31/2007 12:07:39 AM
Neill, Millett, Phillips LJJ

Cur adv vult. 31 July 1996. The following judgments were delivered.

Neill LJ: Introduction

This appeal raises questions as to the meaning of the word 'defamatory' and as to the nature of an action for defamation.

The facts can be stated quite shortly. The plaintiff, Mr Steven Berkoff, is an actor, director and writer who is well known for his work on stage, screen and television. The first defendant, Miss Julie Burchill, is a journalist and writer who at the material times was retained to write articles about the cinema for the Sunday Times. The second defendants, Times Newspapers Ltd, are the publishers of the Sunday Times.

In the issue of the Sunday Times dated 30 January 1994 Miss Burchill wrote a review of the film 'The Age of Innocence'. In the course of the review, in a general reference to film directors, Miss Burchill wrote: '. . . film directors, from Hitchcock to Berkoff, are notoriously hideous-looking people . . .' Nine months later Miss Burchill returned to the same theme in a review of the film 'Frankenstein'. In this review, which was published in the issue of the Sunday Times dated 6 November 1994, Miss Burchill described a character in the film called 'the Creature'. She wrote:

'The Creature is made as a vessel for Waldman's brain, and rejected in disgust when it comes out scarred and primeval. It's a very new look for the Creature -- no bolts in the neck or flat-top hairdo -- and I think it works; it's a lot like Stephen Berkoff, only marginally better-looking.'

Following the publication of the second article Mr Berkoff made an immediate complaint. The complaint was rejected, however, and on 1 March 1995 Mr Berkoff issued a writ. In para 6 of the statement of claim, which was served on the same day as the writ was issued, it was alleged that the passages in the two articles which I have set out meant and were understood to mean that Mr Berkoff was hideously ugly. It is to be noted that in para 5 of the statement of claim, after the words in the second article of which complaint was made had been set out, it was pleaded that the plaintiff would rely on the full text of the article for context.

The defendants then issued a summons pursuant to RSC Ord 14A seeking an order that the following question of law might be determined: '. . . whether the meaning pleaded in paragraph 6 of the Statement of Claim . . . is capable of being defamatory . . .' The summons also included an application for an order that if it were determined that the meaning was not defamatory the action should be dismissed.

The summons was heard by Sir Maurice Drake sitting as a judge of the High Court. After hearing argument the judge dismissed the defendants' application, but he gave the defendants leave to appeal.

The primary submission on behalf of Mr Berkoff before the judge was that the meaning was defamatory because to call a person 'hideously ugly' would tend to expose him to ridicule. As a subsidiary submission it was contended that such a description would tend to cause other people to shun or avoid Mr Berkoff. The judge stated his conclusion as follows:

'I must say I am doubtful whether to call a person "hideously ugly" exposes that person to ridicule, but I have come to the conclusion that it is likely to lead ordinary reasonable people to shun the plaintiff, despite the fact that being hideously ugly is no reflection on a person's character or good reputation. For that reason, albeit with hesitation, I hold that to call a person "hideously ugly" is defamatory. If justification is pleaded, that will involve the jury deciding whether the plea is made out.'

The Law

Before stating my conclusion I propose to examine the relevant question of law under three headings. (1) The scope of the present application. (2) Definitions of 'defamatory'. (3) Additional guidance from decided cases. I turn to the first heading.

The scope of the present application

No order has been made as to the mode of trial in this case. One must therefore proceed on the basis that the action is likely to be tried, if at all, with a jury. The question of fact: libel or no libel, is a matter for the jury. But the court has jurisdiction to rule that as a matter of law words are incapable of being defamatory.

A striking example of the exercise of this jurisdiction is provided by the decision of the House of Lords in Capital and Counties Bank Ltd v George Henty & Sons (1882) 7 App Cas 741, [1881-5] All ER Rep 86. In that case the defendants sent a circular to a large number of their customers stating: 'Henty & Sons hereby give notice that they will not receive in payment cheques drawn on any of the branches of the Capital and Counties Bank.' The contents of the circular became known and there was a run on the bank. Nevertheless it was held by the House of Lords, affirming the majority decision of the Court of Appeal ((1880) 5 CPD 514), that in their natural meaning the words were not capable in law of being defamatory. It may be noted that the issue had been left to the jury at the trial but they had been unable to agree.

It is clear, however, that the court should exercise great caution before concluding that words are incapable of a defamatory meaning. In the present case the position is somewhat different because a specified meaning has been isolated and the preliminary issue requires the determination of the single question, whether that meaning is capable of being defamatory. The practice of pleading inferential meanings is of course to be encouraged where it is appropriate and it may often enable the court to dispose of extravagant inferential meanings under the new procedure enshrined in Ord 82, r 3A(1). But there may be cases, of which this perhaps is one, where the inferential meaning may not provide a wholly adequate paraphrase for the words complained of. Thus it was suggested in the review that the appearance of the 'marginally better-looking' creature was such that it was 'rejected in disgust' when it came out 'scarred and primeval'.

I turn next to consider some of the definitions of the word 'defamatory'.

Definitions of 'defamatory'

I am not aware of any entirely satisfactory definition of the word 'defamatory'. It may be convenient, however, to collect together some of the definitions which have been used and approved in the past.

(1) The classic definition is that given by Lord Wensleydale (then Parke B) in Parmiter v Coupland (1840) 6 M & W 105 at 108, 151 ER 340 at 341-342. He said that in cases of libel it was for the judge to give a legal definition of the offence which he defined as being:

'A publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule . . .'

It is to be noted that in Tournier v National Provincial Union Bank of England Ltd [1924] 1 KB 461 at 477, [1923] All ER Rep 550 at 557 Scrutton LJ said that he did not think that this 'ancient formula' was sufficient in all cases, because words might damage the reputation of a man as a business man which no one would connect with hatred, ridicule or contempt. Atkin LJ expressed a similar opinion ([1924] 1 KB 461 at 486-487, [1923] All ER Rep 550 at 561):

'I do not think that it is a sufficient direction to a jury on what is meant by "defamatory" to say, without more, that it means: Were the words calculated to expose the plaintiff to hatred, ridicule or contempt, in the mind of a reasonable man? The formula is well known to lawyers, but it is obvious that suggestions might be made very injurious to a man's character in business which would not, in the ordinary sense, excite either hate, ridicule, or contempt -- for example, an imputation of a clever fraud which, however much to be condemned morally and legally, might yet not excite what a member of a jury might understand as hatred, or contempt.'

(2) In Scott v Sampson (1882) 8 QBD 491, [1881-5] All ER Rep 628 the Divisional Court was concerned with the question as to the evidence which might be called by a defendant relating to the character of the plaintiff. Cave J explained the nature of the right which is concerned in an action for defamation (8 QBD 491 at 503, [1881-5] All ER Rep 628 at 634):

'Speaking generally the law recognizes in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit; and if such false statements are made without lawful excuse, and damage results to the person of whom they are made, he has a right of action.'

But, as was pointed out in the Faulks Committee Report of the Committee on Defamation (Cmnd 5909) para 62, the word 'discredit' is itself incapable of precise explication. Nevertheless, in Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 Scrutton LJ said that he thought that it was difficult to improve upon the language of this definition.

(3) In Sim v Stretch [1936] 2 All ER 1237 at 1240 Lord Atkin expressed the view that the definition in Parmiter v Coupland was probably too narrow and that the question was complicated by having to consider the person or class of persons whose reaction to the publication provided the relevant test. He concluded this passage in his speech:

'. . . after collating the opinions of many authorities I propose in the present case the test: would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?'

(4) As I have already observed, both Scrutton and Atkin LJJ in Tournier's case drew attention to words which damage the reputation of a man as a business man. In Drummond-Jackson v British Medical Association [1970] 1 All ER 1094, [1970] 1 WLR 688 the Court of Appeal was concerned with an article in a medical journal which, it was suggested, impugned the plaintiff's reputation as a dentist. Lord Pearson said:

'. . . words may be defamatory of a trader or business man or professional man, although they do not impute any moral fault or defect of personal character. They [can] be defamatory of him if they impute lack of qualification, knowledge, skill, capacity, judgment or efficiency in the conduct of his trade or business or professional activity . . .' (See [1970] 1 All ER 1094 at 1104, [1970] 1 WLR 688 at 698-699.)

It is therefore necessary in some cases to consider the occupation of the plaintiff.

(5) In Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 587 Slesser LJ expanded the Parmiter v Coupland definition to include words which cause a person to be shunned or avoided. He said:

'. . . not only is the matter defamatory if it brings the plaintiff into hatred, ridicule, or contempt by reason of some moral discredit on [the plaintiff's] part, but also if it tends to make the plaintiff be shunned and avoided and that without any moral discredit on [the plaintiff's] part. It is for that reason that persons who have been alleged to have been insane, or to be suffering from certain diseases, and other cases where no direct moral responsibility could be placed upon them, have been held to be entitled to bring an action to protect their reputation and their honour.'

Slesser LJ added, in relation to the facts in that case:

'One may, I think, take judicial notice of the fact that a lady of whom it has been said that she has been ravished, albeit against her will, has suffered in social reputation and in opportunities of receiving respectable consideration from the world.'

(6) The Faulks Committee in their report recommended that for the purpose of civil cases the following definition of defamation should be adopted (para 65):

'Defamation shall consist of the publication to a third party of matter which in all the circumstances would be likely to affect a person adversely in the estimation of reasonable people generally.'

(7) In the American Law Institute's Restatement of the Law of Torts (2nd edn, 1977) @ 559 the following definition is given:

'A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.'

(8) In some of the Australian states a definition of 'defamatory matter' is contained in the Code. In the Queensland Criminal Code @ 366, the following definition is given:

'Any imputation concerning any person, or any member of his family, whether living or dead, by which the reputation of that person is likely to be injured, or by which he is likely to be injured in his profession or trade, or by which other persons are likely to be induced to shun or avoid or ridicule or despise him . . .'

It will be seen from this collection of definitions that words may be defamatory, even though they neither impute disgraceful conduct to the plaintiff nor any lack of skill or efficiency in the conduct of his trade or business or professional activity, if they hold him up to contempt, scorn or ridicule or tend to exclude him from society. On the other hand, insults which do not diminish a man's standing among other people do not found an action for libel or slander. The exact borderline may often be difficult to define.

The case for Mr Berkoff is that the charge that he is 'hideously ugly' exposes him to ridicule, and/or alternatively, will cause him to be shunned or avoided. I turn therefore to such guidance as can be found in any of the decided cases to which we were either referred by counsel or to which my own limited researches have led me.

Guidance from decided cases

It will be convenient to consider the cases chronologically.

(1) In Cropp v Tilney (1693) 3 Salk 225, 90 ER 1132 the plaintiff complained of a publication which he said had resulted in his failing to be elected as a member of Parliament. The words of which he complained are irrelevant for present purposes, but it is to be noted that Holt CJ said (3 Salk 225 at 226, 90 ER 1132):

'Scandalous matter is not necessary to make a libel, it is enough if the defendant induces an ill opinion to be had of the plaintiff, or to make him contemptible and ridiculous; as for instance, an action was brought by the husband for riding Skimmington, and adjudged that it lay, because it made him ridiculous, and exposed him.'

It seems that the reference by Holt CJ was to the decision in Mason v Jennings (1680) T Raym 401, 83 ER 209, where the phrase 'riding Skimmington' was taken to imply that the plaintiff's wife beat him.

(2) In Villers v Monsley (1769) 2 Wils 403, 95 ER 886 the plaintiff complained of some verses written by the defendant which suggested that the plaintiff smelt of brimstone and which included the line: 'You old stinking, old nasty, old itchy old toad . . .' The court upheld the plaintiff's award of sixpence damages which he had received at Warwickshire Assizes. Lord Wilmot CJ said (2 Wils 403 at 403-404, 95 ER 886 at 886-887):

'. . . if any man deliberately or maliciously publishes any thing in writing concerning another which renders him ridiculous, or tends to hinder mankind from associating or having intercourse with him, an action well lies against such publisher. I see no difference between this and the cases of leprosy and plague; and it is admitted that an action lies in those cases . . . Nobody will eat, drink, or have any intercourse with a person who has the itch and stinks of brimstone; therefore I think this libel actionable, and that judgment must be for the plaintiff.'

The other members of the court agreed. Gould J said (2 Wils 403 at 404, 95 ER 886 at 887):

'What is the reason why saying a man has the leprosy or plague is actionable? [It] is because the having of either cuts a man off from society; so the writing and publishing maliciously that a man has the itch and stinks of brimstone, cuts him off from society. I think the publishing any thing of a man that renders him ridiculous is a libel and actionable . . .'

(3) In Dunlop Rubber Co Ltd v Dunlop [1921] 1 AC 367, [1920] All ER Rep 745 the plaintiff, who was the inventor of a pneumatic tyre, had assigned his interest in the invention to the defendant company. The plaintiff lived in Ireland. In 1891 the plaintiff had presented the defendants' predecessors in title with a portrait bust of himself and his signature to be used as a trade mark. Later, however, the defendants, without his permission, exhibited advertisements containing pictures intended to represent him, but the features, which were adapted from the portrait bust, were placed upon the body of a very tall man dressed in an exaggeratedly foppish manner, wearing a tall white hat, a white waistcoat, and carrying a cane and eyeglass. The plaintiff had obtained an injunction against the defendant company in the Chancery Division in Ireland and the injunction was upheld by the Court of Appeal in Ireland. On appeal to the House of Lords it was argued that leave should not have been given in Ireland to serve a writ in London.

But in the course of his speech dismissing the appeal Lord Birkenhead LC said ([1921] 1 AC 367 at 372, [1920] All ER Rep 745 at 747):

'. . . it was said in the Court below, and it has been said in other cases which were cited to us as authorities, that such an injunction would not be granted, and ought not to be granted, unless the Court was satisfied of the existence of a serious libel, unless indeed it was prepared confidently and completely to anticipate what the view of a jury would be when it tried the case. I am not sure that in some of the passages cited the case was not in this particular put rather too high. It is sufficient for me to say that the judges who tried this case have reached the conclusion (and I agree with them) that the exhibition of these pictures constituted a circumstance in which that which was done was at least capable of a defamatory meaning.'

It is to be noted that the claim in the writ for an injunction was to restrain the defendant from publishing any advertisements etc which contained pictures representing the plaintiff 'in absurd or unsuitable costumes or attitudes, or caricatures of him, or otherwise calculated to expose him to public ridicule or contempt by misrepresenting his appearance or costume'.

(4) In Zbyszko v New York American Inc (1930) 228 App Div 277 the plaintiff, who was a wrestler, complained of references to him in an article published by the defendant on the theory of evolution. The article called attention to the structural resemblance between man and the gorilla. Near the top of the page appeared a photograph of the plaintiff in a wrestling pose and under it the words: 'Stanislaus Zbyszko, the Wrestler, not Fundamentally Different from the Gorilla in Physique.' In close proximity to the photograph of the plaintiff was a photograph of a gorilla (described in the law report as 'hideous looking') which was stated to be a mounted specimen of the Great Kivu gorilla in Lord Rothschild's museum in England.

The plaintiff's action, in which it was pleaded that 'the plaintiff enjoyed an international reputation for dignity . . . kindliness, intelligence and culture', was struck out by the Supreme Court for New York County but the case was reinstated by the Appellate Division. It was held that the tendency of the article was to disgrace him and bring him into ridicule and contempt. Judge McAvoy said (at 413):

'Any written article is actionable . . . if it tends to expose the plaintiff to public contempt, ridicule, aversion, or disgrace, or induce an evil opinion of him in the minds of others and deprives him of their society. It is not necessary that words impute disgraceful conduct to the plaintiff. If they render him contemptible or ridiculous, he is equally entitled to redress.'

The court therefore held that the case could not be struck out before trial.

(5) In Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 the plaintiff complained that she could be identified with the character Princess Natasha in the film 'Rasputin, the Mad Monk'. The princess claimed damages on the basis that the film suggested that, by reason of her identification with 'Princess Natasha', she had been seduced by Rasputin. The princess was awarded GBP25,000 damages. In the Court of Appeal it was contended that if the film indicated any relations between Rasputin and 'Natasha' it indicated a rape of Natasha and not a seduction. Slesser LJ considered the defamatory nature of the film (at 587):

'I, for myself, cannot see that from the plaintiff's point of view it matters in the least whether this libel suggests that she has been seduced or ravished. The question whether she is or is not the more or the less moral seems to me immaterial in considering this question whether she has been defamed, and for this reason, that, as has been frequently pointed out in libel, not only is the matter defamatory if it brings the plaintiff into hatred, ridicule, or contempt by reason of some moral discredit on her part, but also if tends to make the plaintiff be shunned and avoided and that without any moral discredit on her part. It is for that reason that persons who have been alleged to have been insane, or to be suffering from certain diseases, and other cases where no direct moral responsibility could be placed upon them, have been held to be entitled to bring an action to protect their reputation and their honour.'

Later he added (at 588):

'When this woman is defamed in her sexual purity I do not think that the precise manner in which she has been despoiled of her innocence and virginity is a matter which a jury can properly be asked to consider.'

(6) In Winyard v Tatler Publishing Co Ltd (1991) Independent, 16 August the Tatler magazine published an article which contained a reference to a residential health spa of which Mr Stephen Winyard and Mrs Winyard, his mother, were directors. Mrs Winyard complained of a sentence which was in these terms:

'His mother, Gaynor Winyard, is an internationally renowned beauty therapist (known more familiarly on the beautician circuit as "the international boot").'

One of the meanings of 'boot' relied on by Mrs Winyard was that it meant 'an ugly harridan'. At the trial the judge considered a submission that in this meaning the word 'boot' was not capable of being defamatory. He said:

'In their context, applied to a lady who is in the alleged libel itself described as "a beauty therapist" and "someone on the beautician circuit" to call such a person "an ugly harridan" is in my view something beyond mere ridicule. It is ridicule, no doubt. But it is ridicule which the jury, if it thought right, would be entitled, within the well-known definition (which I am not going to repeat here but I shall state to the jury) of finding to be defamatory.'

It seems that the 'well-known definition' was that of Lord Atkin in Sim v Stretch [1936] 2 All ER 1237 at 1240: '. . . would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?'

In his judgment in the Court of Appeal, Staughton LJ referred to the judge's ruling:

'It may well be that in some cases to say that a woman is old and ugly, or haggard, would do no more than cause injury to her feelings, and would not affect her character or reputation. But the judge evidently felt that a different view might be taken if she was a beauty therapist. It is not, apparently, that she would have failed to exercise her skills in preserving her own appearance, but that others might not wish her to be in charge of their treatment. I entirely agree with the judge's ruling on this point; it was open for the jury, if they thought fit, to find that this meaning of the word "boot" lowered Mrs Winyard's character or reputation. Whether they did reach that conclusion we do not know. It may be that their verdict was entirely based on the innuendo meaning of a promiscuous slut, which (if established) was far more serious.'

(7) In Manning v Hill (A-G for Ontario and ors, interveners) (1995) 126 DLR (4th) 129 the Supreme Court of Canada was concerned with the relationship between the common law action for defamation and the Canadian Charter of Rights and Freedoms. In the course of his judgment, with which the majority of the court agreed, Cory J considered the nature of actions for defamation and the values which require to be balanced. He traced the history of proceedings designed to protect the reputation of an individual (see 126 DLR (4th) 129 at 160). Starting with the provisions of the Mosaic Code, he came to the origins of the modern law of libel arising out of De Libellis Famosis (1605) 5 Co Rep 125a, 77 ER 250. He continued (at 162-163):

'Though the law of defamation no longer serves as a bulwark against the duel and blood feud, the protection of reputation remains of vital importance . . . reputation is the "fundamental foundation on which people are able to interact with each other in social environments". At the same time, it serves the equally or perhaps more fundamentally important purpose of fostering our self-image and sense of self-worth. This sentiment was eloquently expressed by Stewart J in Rosenblatt v Baer ((1966) 383 US 75 at 92) who stated: "The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being -- a concept at the root of any decent system of ordered liberty."'

The Appeal

It was argued by counsel on behalf of the defendants that the defining characteristic of the tort of defamation is injury to reputation. The fact that a statement may injure feelings or cause annoyance is irrelevant to the question whether it is defamatory. He reminded us of Lord Atkin's words in Sim v Stretch [1936] 2 All ER 1237 at 1242 that though the freedom of juries to award damages for injury to reputation was one of the safeguards of liberty, the protection was undermined 'when exhibitions of bad manners or discourtesy are placed on the same level as attacks on character, and are treated as actionable wrongs'. Counsel accepted that it was also defamatory to say of a man that he was suffering from certain diseases. But he submitted that a distinction had to be drawn between an allegation that someone was physically unwholesome and an allegation that someone was physically aesthetically unpleasing. It could not be defamatory to say that an individual had a streaming cold or influenza, so the test of being 'shunned or avoided' cannot be applied without qualification. It was also to be noted that it was not suggested in Youssoupoff's case that there was no evidence on which it could be found that the passages complained of were defamatory of the princess (see (1934) 50 TLR 581 at 586 per Greer LJ).

Counsel for Mr Berkoff on the other hand, contended that the present case fell into the residual class where words may be defamatory even though they do not involve an attack on a plaintiff's reputation in the conventional sense. Mr Berkoff, it was said, is an actor and a person in the public eye. It was submitted that it was necessary to look at all the circumstances. If this were done it was a matter for the jury to decide whether the words complained of had passed beyond mere abuse and had become defamatory by exposing Mr Berkoff to ridicule or by causing him to be shunned or avoided. It was suggested that these two passages would reduce the respect with which he was regarded. The words complained of might affect Mr Berkoff's standing among the public, particularly theatre-goers, and among casting directors.

In his helpful submissions on behalf of the defendants, Mr Price QC rightly underlined the central characteristic of an action for defamation as being a remedy for publications which damage a person's reputation. But the word 'reputation', by its association with phrases such as 'business reputation', 'professional reputation' or 'reputation for honesty', may obscure the fact that in this context the word is to be interpreted in a broad sense as comprehending all aspects of a person's standing in the community. A man who is held up as a figure of fun may be defeated in his claim for damages by, for example, a plea of fair comment, or, if he succeeds on liability, the compensation which he receives from a jury may be very small. But nevertheless, the publication of which he complains may be defamatory of him because it affects in an adverse manner the attitude of other people towards him.

It was argued on behalf of Mr Berkoff that in considering whether words were capable of a defamatory meaning it was necessary to take into account every possible group of persons to whom the words might apply. Could the words be defamatory of anyone? In my opinion this is not the right test. Mr Price was, I think, correct when he submitted that the question has to be answered in relation to the claim by the plaintiff. But if this is done, one has to look at the words and judge them in the context in which they were published. Indeed, as I pointed out earlier, it is pleaded in the statement of claim that reliance will be placed on the context. It may be that in some contexts the words 'hideously ugly' could not be understood in a defamatory sense, but one has to consider the words in the surroundings in which they appear. This task is particularly important in relation to the second article.

It is trite law that the meaning of words in a libel action is determined by the reaction of the ordinary reader and not by the intention of the publisher, but the perceived intention of the publisher may colour the meaning. In the present case it would, in my view, be open to a jury to conclude that in the context the remarks about Mr Berkoff gave the impression that he was not merely physically unattractive in appearance but actually repulsive. It seems to me that to say this of someone in the public eye who makes his living, in part at least, as an actor, is capable of lowering his standing in the estimation of the public and of making him an object of ridicule

I confess that I have found this to be a far from easy case, but in the end I am satisfied that it would be wrong to decide this preliminary issue in a way which would withdraw the matter completely from the consideration of a jury.

I would dismiss the appeal.


Millett LJ: Many a true word is spoken in jest. Many a false one too. But chaff and banter are not defamatory, and even serious imputations are not actionable if no one would take them to be meant seriously. The question, however, is how the words would be understood, not how they were meant, and that issue is pre-eminently one for the jury. So, however difficult it may be, we must assume that Miss Julie Burchill might be taken seriously. The question then is: is it defamatory to say of a man that he is 'hideously ugly'?

Mr Berkoff is a director, actor and writer. Physical beauty is not a qualification for a director or writer. Mr Berkoff does not plead that he plays romantic leads or that the words complained of impugn his professional ability. In any case, I do not think that it can be defamatory to say of an actor that he is unsuitable to play particular roles.

How then can the words complained of injure Mr Berkoff's reputation? They are an attack on his appearance, not on his reputation. It is submitted on his behalf that they would cause people 'to shun and avoid him' and would 'bring him into ridicule'. Ridicule, it will be recalled, is the second member of a well-known trinity.

The submission illustrates the danger of trusting to verbal formulae. Defamation has never been satisfactorily defined. All attempted definitions are illustrative. None of them is exhaustive. All can be misleading if they cause one to forget that defamation is an attack on reputation, that is on a man's standing in the world.

The cases in which words have been held to be defamatory because they would cause the plaintiff to be shunned or avoided, or 'cut off from society', have hitherto been confined to allegations that he suffers from leprosy or the plague or the itch or is noisome and smelly (see Villers v Monsley (1769) 2 Wils 403, 95 ER 886). I agree with Phillips LJ and for the reasons which he gives that an allegation of ugliness is not of that character. It is a common experience that ugly people have satisfactory social lives -- Boris Karloff is not known to have been a recluse -- and it is a popular belief for the truth of which I am unable to vouch that ugly men are particularly attractive to women.

I have no doubt that the words complained of were intended to ridicule Mr Berkoff, but I do not think that they made him look ridiculous or lowered his reputation in the eyes of ordinary people. There are only two cases which have been cited to us which are at all comparable. In Winyard v Tatler Publishing Co Ltd (1991) Independent, 16 August it was held to be defamatory to call a professional beautician 'an ugly harridan', not because it reflected on her professional ability, but because some of her customers might not wish to be attended by an ugly beautician. I find the decision difficult to understand, since the reasoning suggests that the cause of action would more properly be classified as malicious falsehood rather than defamation, so that actual loss of custom would have to be proved.

The other case is Zbyszko v New York American Inc (1930) 228 App Div 277. A newspaper published a photograph of a particularly repulsive gorilla. Next to it appeared a photograph of the plaintiff above the caption: 'Stanislaus Zbyszko, the Wrestler, Not Fundamentally Different from the Gorilla in Physique.' The statement of claim alleged that this had caused the plaintiff to be shunned and avoided by his wife (who presumably had not noticed her husband's physique until it was pointed out to her by the newspaper), his relatives, neighbours, friends and business associates, and had injured him in his professional calling. The Appellate Division of the New York Supreme Court held that the caption was capable of being defamatory. The case was presumably cited to us as persuasive authority. I find it singularly unpersuasive except as a demonstration of the lengths of absurdity to which an enthusiastic New York lawyer will go in pleading his case.

The line between mockery and defamation may sometimes be difficult to draw. When it is, it should be left to the jury to draw it. Despite the respect which is due to the opinion of Neill LJ, whose experience in this field is unrivalled, I am not persuaded that the present case could properly be put on the wrong side of the line. A decision that it is an actionable wrong to describe a man as 'hideously ugly' would be an unwarranted restriction on free speech. And if a bald statement to this effect would not be capable of being defamatory, I do not see how a humorously exaggerated observation to the like effect could be. People must be allowed to poke fun at one another without fear of litigation. It is one thing to ridicule a man; it is another to expose him to ridicule. Miss Burchill made a cheap joke at Mr Berkoff's expense; she may thereby have demeaned herself, but I do not believe that she defamed Mr Berkoff.

If I have appeared to treat Mr Berkoff's claim with unjudicial levity it is because I find it impossible to take it seriously. Despite the views of my brethren, who are both far more experienced than I am, I remain of the opinion that the proceedings are as frivolous as Miss Burchill's article. The time of the court ought not to be taken up with either of them. I would allow the appeal and dismiss the action.


Phillips LJ: In almost every case in the books, words which have been held to be defamatory have been words which have denigrated the character or personality of the plaintiff, not the corporeal envelope housing that personality. The law of defamation protects reputation, and reputation is not generally dependent upon physical appearance. Exceptionally there has been a handful of cases where words have been held defamatory, notwithstanding that they do not attack character or personality.

In Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 at 453 as Hunt J observed:

'At common law, in general, an imputation, to be defamatory of the plaintiff, must be disparaging of him . . . I say that this is "in general" the position, as the common law also recognizes as defamatory an imputation which, although not disparaging, tends to make other persons "shun or avoid" the plaintiff, for example, by attributing to him that he is insane: Morgan v Lingen ((1863) 8 LT 800); or by attributing to her that she has been raped . . . as well as an imputation that displays the plaintiff in a ridiculous light, notwithstanding the absence of any moral blame on his part . . .'

'Shun or avoid'

It is not easy to find the touchstone by which to judge whether words are defamatory which tend to make other persons shun or avoid the plaintiff, but it is axiomatic that the words must relate to an attribute of the plaintiff in respect of which hearsay alone is enough to provoke this reaction. That was once true of a statement that a woman had been raped and would still be true of a statement that a person has a serious infectious or contagious disease, or is physically unwholesome or is mentally deranged. There is precedent for holding all such statements defamatory. There is, however, with one possible exception, no precedent for holding it defamatory to describe a person as ugly. In my judgment, such a statement differs in principle from those statements about a person's physical condition which have been held to be defamatory. Those statements have, in every case, been allegations of fact -- illness, madness, filthiness or defilement. Hearsay factual statements about a person's physical condition can clearly be capable of causing those who hear or read them to avoid the subject of them. In contrast, a statement that a person is ugly, or hideously ugly, is a statement of subjective appreciation of that individual's features. To a degree both beauty and ugliness are in the eye of the beholder. It is, perhaps, just possible to think of a right minded person shunning one of his fellow men because of a subjective distaste for his features. What I find impossible to accept is that a right minded person would shun another merely because a third party had expressed distaste for that other person's features.

It is perhaps for this reason that statements disparaging, however strongly, a person's features -- and many such statements must have been published -- have never been the subject of a successful claim for defamation.

My conclusion is that a statement that a person is hideously ugly does not fall into that category of statements that are defamatory because they tend to make people shun or avoid the plaintiff.

Ridicule

The class of cases where it has been held defamatory, or potentially defamatory, to damage a plaintiff's reputation by exposing him to ridicule is too elusive to encapsulate in any definition. No case demonstrates this better than Dunlop Rubber Co Ltd v Dunlop [1921] 1 AC 367, [1920] All ER Rep 745, the facts of which have been outlined by Neill LJ. The preliminary point which is the subject of this appeal does not require us to decide whether the publications complained of are capable of constituting defamation of the plaintiff. The question which we are asked to answer is whether 'the meaning pleaded in para 6 of the statement of claim is capable of being defamatory'. The defendants' skeleton argument opened with the following proposition:

'The question of law for decision is whether a statement that an individual is ugly is capable of being defamatory. If this statement is defamatory in one case, it must be in all cases (in the absence of any distinguishing features of a particular case), so that there is no distinction to be drawn between the technical issue of law, whether it is capable of being defamatory, and the technical issue of fact, whether it is defamatory.'

I cannot accept this proposition. Where the issue is whether words have damaged a plaintiff's reputation by exposing him to ridicule, that question cannot be answered simply by considering whether the natural and ordinary meaning of the words used is defamatory per se. The question has to be considered in the light of the actual words used and the circumstance in which they are used. There are many ways of indicating that a person is hideously ugly, ranging from a simple statement of opinion to that effect, which I feel could never be defamatory, to words plainly intended to convey that message by way of ridicule. The words used in this case fall into the latter category. Whether they have exposed the plaintiff to ridicule to the extent that his reputation has been damaged must be answered by the jury. The preliminary point raised by the defendants cannot be answered in the affirmative and this appeal should be dismissed.

Disposition:
Appeal dismissed.