#5423 - Defamatory Meaning (Defamation) - Irish Tort Law

Defamatory Meaning – Innuendo

Defamation Bill 2006

s.2 'defamatory statement' means a statement that tends to injure a persons reputation in the eyes of reasonable members of society, and 'defamatory' shall be construed accordingly

Charleston v Newsgroup Newspapers (HoL 1995)

Facts

1. The plaintiffs were pictured on the front of one of the defendants' newspapers having sex alongside the headline “Porn Shocker for Neighbours Stars”

2. The corresponding article made it clear that the faces of the actors were superimposed on the pictures and described them as victims.

Issue

• Bane and Antidote Rule

Judgment

1. Lord Goff of Chieveley (concurred with Lord Bridge)

2. Lord Bridge of Harwich (concurring)

   • The bane and antidote rule requires that the natural and ordinary meaning of the statement be ascertained with reference to the context in which it is used and the mode of publication.

   • Even in this case, where it is likely that a limited group of readers would only have seen the photo and not read the article, the fundamental principle is that the jury must refer themselves to the meaning that would be drawn by the ordinary, reasonable, fair-minded reader – this precludes them from considering that some readers would read different parts of the article and thus come to different conclusions as to what it means.

3. Lord Jauncey of Tullichettle (concurring)

4. Lord Mustill (concurring)

5. Lord Nicholls of Birkenhead (concurring)

   • Although common sense would advise that newspapers be held liable in a case like this, that is not the law on the subject.

   • The law of defamation judges defamatory meaning by reference to the ordinary reader of the statement – this is justified in light of the fact that readers of mass circulation publications vary widely in how they read and the meanings which they draw.

   • It is inconsistent with this standard to carve the readership of one article into different groups.

   • However, the layout of the article may be such that the ordinary reader would not find the 'antidote' – the article is on the borderline but it is saved by the fact A) that the ordinary reader would not take the photos at face value and B) need only look as far the additional photographs with the caption 'victim' for the sting to be removed.

McGarth v Independent Newspapers (HC 2004)

Facts

1. The plaintiff was a CIE employee and trade union shop steward.

2. He claimed that a photo of him above a newspaper article headed “businessman Pat McGarth stands to lose thousands after investing in eircom” was defamatory and sought an apology from the defendants.

3. The defendants refused to apologise, but printed a retraction stating that the plaintiff had borrowed money to invest in the shares (which was true) next to an article headed “big business linked to family of terrorist

Issue

• Defamatory meaning – Layout

Judgment (Gilligan J)

• The entire layout has to be taken as a whole and the meaning that it would convey to the ordinary, fair-minded and reasonable reader considered – Charleston adopted.

• The article as laid out does not bear the meaning alleged ie that the plaintiff had links to terrorists.

Tolley v Fry & Sons (HoL 1931)

Facts

1. The plaintiff was an amateur golfer whose picture was used in an advertising campaign by the defendants.

2. The plaintiff claimed that this implied that he had agreed to give his name to the campaign which was damaging to his reputation as an amateur golfer and could result in his dismissal from a reputable club.

Issue

• Innuendo

Judgment

1. Viscount Hailsham (concurring)

   • It was open to the jury to hold that an ordinary individual would assume that no reputable firm would have the effrontery and bad taste to take the name and reputation of a well known man for an advertisement without permission.

2. Viscount Dunedin (concurring)

   • On the face of it the advertisement is innocent, but the circumstances render it libellous.

3. Lord Buckmaster (concurring)

4. Lord Tomlin (concurring)

5. Lord Blanesburgh (concurring)

Cassidy v Daily Mirror (CA 1929)

Facts

1. The defendants published a photograph of a man and a woman with the caption “Mr. A and Miss B, whose engagement has just been announced”

2. The plaintiff was the wife of Mr A and claimed that the photo and caption implied that she was living with an unmarried man.

Issue

• Innuendo

Judgment

1. Scrutton LJ (concurring)

   • In principle to say something of person A can be defamatory of person B e.g. “A is a drunk, it runs in the family” can be defamatory of A's parents.

   • The words in this case were capable of meaning Mr. A is single and, the statement having been published to people who knew his wife, it was open to the jury to say whether these people could reasonably draw the inference that she was living in sin with the man who was actually her husband.

   • It is not a defence for the defendants to claim of a statement which conveys a defamatory meaning to those in possession of certain facts, that they were ignorant of those facts –having failed to make serious inquiries as to the veracity of their statements, they shoulder the burden if such a case as this occurs.

2. Russell LJ (concurring)

   • The caption can be construed as stating that Mr. A is an unmarried man and thus the question becomes whether the statement can and whether the statement is in fact defamatory of the plaintiff.

   • Liability for libel does not depend on the intention of the defamer, but on the content of the defamation – thus the newspaper's ignorance of the facts which rendered this statement libellous are irrelevant.

   • There is no rule that requires in the case of a defamatory statement, that if an innocent interpretation can be put on it, that meaning must be preferred – if that was the law it would make the procedure whereby the judge ascertains whether the statement is capable of bearing a defamatory meaning and the jury declare whether it does have such a meaning, irrelevant.

3. Greer LJ (dissenting)

   • It is not enough to say that, read in the light of certain facts that a statement is defamatory – the jury must be satisified that on a reasonable interpretation of the words used that the meaning is defamatory.

   • Where there are several possible meanings of the words used it is not open to the jury to find that the words are defamatory unless there is something in the documents or facts that would make it reasonable to attribute such a meaning to the words – the defamer in that case is really the person who chooses to interpret the words in such a way.

   • The law is that if such extrinsic facts are relied upon, the matter must be known to both the person who framed the alleged libel and to the persons to whom it was published.

Reynolds v Malocco (HC 1998)

Facts

1. The defendants sought to publish a story about the plaintiff referring to him as a 'gay bachelor' and that a number of nightclubs which he ran had been raided by the Gardaí.

2. He attempted to get an interlocutory injunction on the publication of the article

Issue

• Defamatory meaning – Innuendo

Judgment (Kelly J)

• On the face of it, the statements about the premises being raided do not contain any allegations of criminality.

• However it can be inferred from the assertions that a) the plaintiff was concerned about the consequences of conviction, b) its alluding to the fact that it was not the first time that a nightclub owner was jailed for such an offence, c) the juxtaposition of a photograph of the plaintiff's expensive car with a paragraph about such club owners obtaining money from drug sales, that there is a defamatory innuendo.

Quigley v Creation Ltd (SC 1971)

Facts

1. The defendants published an article purporting to be an interview with the plaintiff and which the plaintiff claimed contained certain words which meant he left Ireland to work in London because of financial gain.

2. The defendants claimed that the statements were incapable of being defamatory.

Issue

• Defamatory meaning

Judgment (Walsh J)

• The question of whether a libel exists is a matter of opinion and as such the Court will be slower to overturn a verdict in respect of libel than in other cases.

• The test is whether the statement will lower the the plaintiff in the eyes of the average right-thinking man – if it will, then it is defamatory if not true.

• The judge should not withdraw the question from the jury unless they are satisfied that it would be wholly unreasonable to attribute a defamatory meaning to the words alleged.

• In this case, it would not be wholly unreasonable for the jury to hold that it was defamatory to say of the plaintiff that the pursuit of money abroad was more important to him than the development of his talents in Ireland.

Cases Where the Right-Thinking Person Test Causes Problems

Reynolds v Malocco (HC 1998)

Facts

1. The plaintiff was referred to as a 'gay bachelor' in a magazine article.

Issue

• Defamatory meaning – problems with the right-thinking person test

Judgment (Kelly J)

• The reference to the plaintiff as being gay could be contrued as being defamatory – defamatory enough to warrant an interlocutory injunction.

Arab News Network v Khazen (CA 2001)

Facts

1. The plaintiff and his company complained that an article published by the defendants, in so far as it alleged that the plaintiff's were friendly to the US and Israel to the extent of undermining the Pan-Arabic cause.

Issue

• Right Thinking Person Test

Judgment

1. Keene LJ (concurring)

   • Even if the plaintiff were subject to allegations that would lower his standing in the eyes of the Arab...