Berezovsky v Forbes Inc & Michaels (No.2)
Reference:  EWCA Civ 1251;  EMLR 1030
Court: Court of Appeal
Judge: Aldous, Sedley & Arden LJJ
Date of judgment: 31 Jul 2001
Summary: Defamation - Libel - Meaning - Justification of lesser meaning - Article 10 - Human Rights Act 1998 - s.5 Defamation Act 1952
Desmond Browne QC - Leading Counsel (Claimant)
Instructing Solicitors: Peter Carter-Ruck & Partners for the Claimants; Pinsent Curtis Biddle for the Defendants
Libel action brought by the claimants over allegations suggesting involvement in serious crimes. Defendants did not justify guilt, but instead pleaded justification of the lower meaning of “reasonable grounds to suspect”. In addition, the Defendants relied on Reynolds qualified privilege. Eady J held that the article was incapable of bearing the lower meaning of “reasonable grounds to suspect” and the Defendants appealed to the Court of Appeal.
(1) Whether the rules governing the parameters of meaning and justification needed to be reviewed in order to be consistent with Article 10;
(2) Proper role of the Court of Appeal when hearing an appeal on a ruling on meaning
(3) Whether the Judge was right to rule that the article was incapable of bearing the lesser meaning pleaded by the Defendants.
Dismissing the appeal: (1) It was not necessary for the rules of meaning and justification to be reviewed. Article 10 concerns could, in an appropriate case, be accommodated within the defences of fair comment and/or Reynolds qualified privilege. To require a defendant, albeit a serious and reputable publisher, to be able to justify not a diminished version of a damaging assault on a claimant’s reputation but the essence or substance or sting of that assault was not a disproportionate invasion of the right of free expression but met the legitimate purpose of protecting people from the publication of damaging and unjustified falsehoods.
(2) The approach when determining the range of meanings that any publication can bear is an exercise in generosity not parsimony. If the analysis is performed fairly in accordance with the authorities the judgment of the Judge will not be second-guessed by the Court of Appeal.
The Court of Appeal refused to relax the rules governing justification to accommodate a Defendant that was unable to justify actual guilt. The defences available to a defamation defendant have to be viewed as a whole in order to decide whether Article 10 rights have been infringed.