Full case report
Thornton v Telegraph Group (No. 4)
Reference  EWHC 1884 (QB)
Court High Court, Queen's Bench Division
Judge Tugendhat J
Date of Judgment 26 Jul 2011
Defamation – Malicious Falsehood – offer of amends – malice – knowledge – Defamation Act 1996
The Claimant (C) was the authoress of a non-fiction book, ‘Seven Days in the Art World’. She sued the publishers of the Daily Telegraph (D) for libel and malicious falsehood on a review written by Lynn Barber (B). D had accepted that it was vicariously liable for B’s state of mind.
In relation to libel, the allegation complained of (“the interview allegation”), arose from the passage: ‘ Thornton claims her book is based on hour-long interviews with more than 250 people. I would have taken this on trust, except that my eye flicked down the list of her 250 interviewees and practically fell out of its socket when it hit the name Lynn Barber. I gave her an interview? Surely I would have noticed? I remember that she asked to talk to me, but I said I had already published an account of my experiences as a Turner Prize juror which she was welcome to quote, but I didn’t want to add to… ‘ An offer of amends was made by D in relation to the interview allegation under s.2 of the Defamation Act 1996. C rejected the offer and therefore at trial had to show in accordance with s.4(3) of the Act that B knew or had reason to believe that the interview allegation was false when the review was published by D.
With regard to malicious falsehood, the allegation complained of (“‘the copy approval allegation”) arose out of the passage: ‘She [ie C] also claims that she practices “reflexive ethnography”, which means that her interviewees have the right to read what she says about them and alter it. In journalism we call this “copy approval” and disapprove’. C claimed that this allegation was false and that B knew that it was false when she published it.
A separate claim was brought in relation to the online publication of the review which remained available on D’s website for several months after C’s complaint. C contended that even if the offer of amends was a good defence to the claim based on the initial publication, it provided no defence in respect of the continued website publication, either from the date that she complained directly to B about the article, or alternatively from the date that she complained to the editor, on the ground that from these dates D had the requisite knowledge under s.4(3) of the Act.
(1) In relation to the libel claim (based on the interview allegation):
(a) Did B know what she wrote to be false?
(b) If B did not know the interview allegation to be false, did she have reason to believe what she wrote to be false?
(2) In relation to the continued online publication of the review:
(a)Was B a sufficient publisher to make D liable for the purposes of s.4(3)?
(b) If not, was D liable on the basis of the state of mind of its in-house employees or agents?
(3) In relation to the malicious falsehood claim (based on the copy approval allegation):
(a) Was the copy approval allegation false?
(b) Did B known what she wrote to be false, or was she otherwise malicious?
(4) What damages were appropriate in relation to either tort?
(1) Granting judgment for the Claimant on the libel claim:
(a) B had in fact been interviewed by C by telephone on 11 December 2006. It followed that she knew she had been interviewed, unless she had subsequently forgotten about it. B’s assertions of poor memory were rejected. Her memory of the events in 2006, evidence at trial and demeanor as a witness suggested B knew that the interview allegation was untrue.
(b) In the alternative, if B’s memory was dim in relation to C’s request for an interview, Tugendhat J accepted without hesitation that B had been reckless in failing to check before making the interview allegation. Where a journalist contemplates publishing a statement of facts which is defamatory of the subject, it is a requirement of responsible journalism that the subject should be invited to comment upon that statement before it is published. B accepted she was accusing C of lying but failed to offer any convincing reasons for omitting to check if the allegation was true. Her behaviour subsequent to C’s complaint was further probative of her indifference.
(2) Concerning the alternative claim for libel in respect of the website publication:
(a) B’s claim that she did not know her reviews were published on the website was rejected. Applying the principle of responsibility for publication in Bunt v Tilley  1 WLR 1243, at , B was a publisher in the ordinary sense of the word in the law of libel, because she had knowingly permitted D’s in-house lawyers to communicate information which was defamatory. Given her malicious state of mind in relation to the interview allegation, this was all that C needed to prove in respect of the website publication. If the Judge was wrong about her initial state of mind, B was malicious after she had been put on notice of C’s complaint, and certainly after C had complained to the editor, since B had been sent a copy of that complaint. Moreover, if (contrary to the foregoing) D was correct that C needed to show that a deliberate decision had been taken in bad faith to continue publishing, C would still have succeeded. B had persuaded D’s in-house lawyers that the conversation which had taken place was not an interview and taken a deliberate decision to mislead them. If she had told the truth, the website publication would have been suspended.
(3) Granting judgment for the Claimant on the malicious falsehood claim:
(a) C’s evidence proved as a matter of fact that she did not grant her interviewees copy approval, merely an opportunity to give feedback. There was a distinction between the quotation approval practised by C and copy approval, which B well understood.
(b) On the basis of the book itself, the only material which B had before her at the time she wrote the review, B had no reason to believe and did not believe that C had given a right of copy approval to the people she had quoted. B understood that an opportunity was not a right and believed that what she had written was false.
Damages awarded to C:
(a) In assessing the award, Tugendhat J took into account the circulation of the review, both in hard copy and online, and the serious aggravating factors of B’s malice and D’s intrusive and humiliating cross-examination of C. Limited mitigation resulted from D’s apology, published about ten months after the first publication, and about six months after the review had been removed from the website.
(b) The least award of damages necessary was set at £65,000, £50,000 to the libel and £15,000 to the malicious falsehood and if necessary, apportioned 50/50 between the print and online edition.
This decision marks the first defeat at trial of an “offer of amends” defence with a finding of malice. The upshot of the long and complicated Thorntonlitigation is clear; “A reviewer is entitled to be spiteful, so long as he is honest” . Further, in some circumstances a journalist’s failure to check an allegation will lead to a finding of recklessness. Other useful points which emerge from the judgment are: (a) the need for an article to be removed from a newspaper’s website promptly if a finding of malice at common law or under s.4(3) is to be avoided in respect of online publications; (b) the need for an apology to be published promptly if it is to have any mitigating effect; (c) the large damages attributed to the online publication even though this was comparatively small (around 700 website readers, plus some republication on blogs and other website); and (d) the fine distinction that can exist between a libel and a malicious falsehood: the copy approval allegation had earlier been struck out as not defamatory, and yet was readily held to be professionally damaging as a malicious falsehood and led to an award of £15,000.
Taylor Hampton for the Claimant, David Price Solicitors and Advocates for the Defendant
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