Thornton v Telegraph Media Group Ltd (No 2)
Reference:  EWHC 1414 (QB);  EMLR 25
Court: Queen's Bench Division
Judge: Tugendhat J
Date of judgment: 16 Jun 2010
Summary: Defamation – Libel – Summary judgment - Determination of meaning – Whether words capable of bearing defamatory meaning – Threshold of seriousness
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Justin Rushbrooke KC (Claimant)
Instructing Solicitors: Taylor Hampton for C; David Price Solicitors & Advocates for D
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. One of the allegations complained of (‘the copy approval allegation’) arose out of the following 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’.
D’s defence of fair comment was struck out by Sir Charles Gray . A renewed application before Sedley LJ for permission to appeal that decision was adjourned pending an application to strike out the libel claim on the ground that copy approval allegation was not capable of being defamatory of C.
Whether the copy approval allegation was capable of being defamatory of C, or of bearing any meaning to the effect that C had been guilty of reprehensible conduct, was untrustworthy or was fatally lacking in integrity and credibility as a researcher and writer.
Granting summary judgment in favour of D on the copy approval allegation: The relevant words, whether read on their own or in context, were not capable of being a personal libel in the sense of imputing any reprehensible conduct, or of defaming C in her profession. Although words could be defamatory of a professional person even if they did not impute any moral fault or defect of character (Drummond-Jackson v British Medical Association  1 All ER 1094) C was not selling her services, and there was no attack on her technique in the Drummond-Jackson sense, so there could be no adverse consequences for readers of the kind that there would be in the case of a dentist said to practise a dangerous technique. Since professional writers were free to write to different standards for different readerships, it could not be defamatory of C to say that she did not apply in her book the standards of journalists relating to copy approval.Alternatively, if the Judge was wrong about this, the defamatory meaning borne by the words fell below the threshold of seriousness required by Sim v Stretch  TLR 669, see per Lord Atkin at 672.
The judgment contains a valuable analysis of business or professional libels and the essential features of the notion of “defamatory” in this context. More generally, however, there is room for debate as to whether the Judge’s introduction of a “threshold of seriousness” test adds clarity or an unnecessary complication to this aspect of the law. It might be thought that it has always been implicit in the jury’s (or judge’s) task of judging the impact of any matter complained of to exclude from their assessment of what is defamatory words that are no more than “exhibitions of bad manners or discourtesy”, to use Lord Atkin’s phrase. The Judge gave Dr Thornton permission to appeal on the basis that she had a real prospect of success, but it is understood that an appeal is not to be pursued. Consideration of these issues by a higher court will therefore have to wait for another day.