Richard Burgon MP v News Group Newspapers Limited and Thomas Newton Dunn

C, the Labour MP for Leeds East and Shadow Justice Secretary and Shadow Lord Chancellor, sought damages and an injunction for libel, malicious falsehood and/or breach of statutory duty under the Data Protection Act 1998 (‘DPA’) in respect of an online news article published by NGN (D1) written by The Sun’s political editor, Thomas Newton Dunn (D2), entitled “REICH AND ROLL: Labour’s justice boss ridiculed after he joins a heavy metal band that delights in Nazi symbols”.

The article said that C should not have joined the band because it had published a picture consisting of an image below a hashtag “#blacksabbath”, posted on its Twitter and Facebook accounts (the latter without the hashtag) which The Sun claimed was “Nazi associated iconography”, resemblant of the Nazi Schutzstaffel or ‘SS’ symbol.

C alleged that the natural and ordinary meaning of the article or, alternatively, by way of innuendo, meant in fact that “C has joined, and thereby willingly associated itself with, a heavy metal band that he knows delights in using Nazi symbols and iconography; and, therefore, is actively sympathetic to Nazi beliefs and ideology, alternatively, there are reasonable grounds to so suspect”.

The Ds contended that the article meant that “C had demonstrated terrible misjudgement and exposed himself to ridicule by associating himself with a band which, as he knew, uses Nazi associated iconography in its promotional material” and sought to defend the claim relying upon the defences of truth, honest opinion and public interest pursuant to sections 2, 3 and 4 of the Defamation Act 2013, respectively.

The Ds also denied malicious falsehood and breach of the DPA.

Libel

1. Meaning of the online article;
2. Whether publication caused or was likely to cause serious harm;
3. Whether the article was true;
4. Whether the article was honest opinion; and,
5. Whether the publication was on a matter of public interest.

Malicious Falsehood

1. Whether the words were false;
2. Whether the author D2 acted with malice; and,
3. Whether publication was calculated to cause pecuniary loss to C.

DPA

4. Whether the claim adds to the above two claims;
5. Whether News Group complied with the first, second and fourth data protection principles;
6. Whether there is a defence under s.32 DPA 1998; and,
7. Whether C suffered distress as a result of publication.
8. What, if any, remedy should be ordered for all three claims.

Held, giving judgment for C and awarding £30,000 in damages:

The meaning of the article was that “Mr Burgon joined a band which as he knew took great pleasure in using Nazi symbols”. This was both defamatory at common law and passed the s.1(1) Defamation Act 2013 ‘serious harm’ threshold.

The defences advanced by the Ds failed:

s.2 Truth: The article was neither true nor substantially true. The symbols in the image were not Nazi symbols nor did C or the band think the same. The image was produced as a tribute or imitation of the Black Sabbath album cover, “We Sold Our Soul for Rock ’n’ Roll”. In any event, the Ds had only pleaded Nazi associated iconography, and showing that some persons may have considered the image and SS to be stylistically similar would be a different and much less serious imputation for s.2(3) than the meaning found.

s.3 Honest opinion: The meaning was one of fact, not opinion, thus failing to satisfy s.3(2).

s.4 Public interest: D2 could not benefit from the protection of s.4 because he omitted/ ignored references to Black Sabbath, despite the on-the-record hashtag “#blacksabbath” on the image and explanation by the C’s representatives.

C was awarded C £30,000 in damages, and was granted an injunction to prohibit further publication.

The malicious falsehood claim was dismissed despite the inclusion of numerous falsehoods, as D2 was held to have acted honestly when he wrote the article.

The DPA claim was not addressed as it was not necessary considering the other findings.

An important win for a politician against the national media. This case gives a clear warning to journalists and publishers that failure to include an on-the-record comment from a subject of an article, especially when specifically sought, is likely to be fatal to the availability of the public interest defence where that comment would correct or alter the impression given by the article in its absence.

Haddon-Cave LJ rejected the Ds application for permission to appeal in June 2019.