Reference:  EWHC 3355 (QB)
Court: High Court, Queen's Bench Division
Judge: Dingemans J
Date of judgment: 1 Nov 2013
Summary: Defamation - Libel – Meaning – Innuendo - Capability
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Appearances: Jonathan Barnes KC (Claimant)
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.)
The Defendant applied to have the claim in libel struck out, arguing that the word he used in his text message had been so offensive that it cannot be defamatory to say that the Claimant made it public.
Would no right-thinking member of society think the less of the Claimant, because he had only been accused, by supposedly disclosing the text message, of reporting wrongdoing or acting as an informer?
The “informer” authorities establish: first, that it cannot be defamatory to say of a person that he is acting disloyally in reporting a crime to relevant authorities, even if that statement exposes the person to odium or contempt from a section of society, such as criminals, see Mawe v Pigott (1869) Ir.R. 4 C.L. 54 and Byrne v Deane  1 KB 838; and secondly that unless the person is reporting a crime, it may be defamatory to say of a person that they have acted disloyally, even if the person was acting lawfully in carrying out the disloyal activity, see Myroft v Sleight (1921) 90 LJKB 883.
There was not much serious dispute about the potential meaning of the press release in the context of the Sun article, because it was accepted that the clear meaning was that the Claimant had made public the text message. Right-thinking members of society are well aware of the ordinary weaknesses and failings of mankind and that in private communications between former friends even the most well-intentioned and hard-working people might say things which should never be said. Therefore, 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.
Accordingly, the press release was capable of having the meaning attributed to it by the Claimant and was capable of being defamatory of him.
The Court was careful to record that this was an application about whether the relevant words are capable of bearing a defamatory meaning. It was not the hearing of a preliminary issue for a determination as to the actual meanings of the words. The matter will now proceed to a trial, at which actual meaning amongst other matters will fall to be determined.