Reference:  EWCA Civ 121;  EMLR 17
Court: Court of Appeal (Civil Division)
Judge: McCombe and Sharp LJJ, Mitting J
Date of judgment: 20 Feb 2015
Summary: Defamation – Libel – Meaning – Capability
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Jonathan Barnes KC (Respondent)
Instructing Solicitors: Simon Smith, Solicitor, for the Claimant; David Price Solicitors and Advocates for the Defendant
The Defendant, a former professional footballer, issued a press release explaining his decision to resign as a Kick It Out trustee. Kick It Out is an anti-racism campaign group, supported by the Football Association. The Claimant, also a former professional footballer, complained that with reference to an earlier newspaper article published in the Sun, headlined “A football anti-racism champion has sparked a race row after calling another black man “n*****””, concerning a row between the two men, who were previously friends and business colleagues, the Defendant’s press release implied that the Claimant had acted disloyally to the Defendant by making public a text message sent by the Defendant to the Claimant, which contained an extremely offensive word. The Claimant in fact denies that it was him who made the text public.
At first instance Dingemans J held that right-thinking members of society could take the view that disclosing a private communication to the public, with the inevitable consequence that a former friend would lose his office was both disloyal and wrong. He considered the press release bore the meaning that the Claimant had made the text public and was capable of being defamatory of him.
The Defendant appealed arguing that right-thinking members of society could not conclude that someone’s conduct was reprehensibly disloyal when it led to the public exposure of wrongdoing by another, in this case himself. Further he argued that since the conduct imputed to the Claimant was lawful it could not be defamatory to say that the Claimant had engaged in it.
Had the judge been wrong not to strike out the claim on the basis the words complained of were incapable of bearing a meaning defamatory of the Claimant.
Consideration of the “abritrium boni” or an “ethical benchmark” adds nothing to the current legal analysis of what is or is not defamatory. The answer depends in part on the attitude of society generally. It does not follow from the authority of Byrne v Deane  1 KB 818, that to say of a man that he put in motion the proper machinery for suppressing crime could not be defamatory of him, that “suppression of crime” can simply be equated with “freedom of expression on a matter of public interest”. There is no such bright line formula. Equally problematic is any attempt to link the notion of what is defamatory with what is lawful. While to allege that someone acted unlawfully would normally (save for trivial examples) defame him or her it is not the law that merely because conduct is lawful it cannot be defamatory of someone to say they engaged in it.